Ex Parte Archer et al

Patent Trial and Appeal Board

Aug 23, 2017

12957574 (P.T.A.B. Aug. 23, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/957,574 12/01/2010 Donald Gene ARCHER 20100705 1377
7590 08/25/201725537
VERIZON
PATENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
EXAMINER
SHIAU, SHEN C
ART UNIT PAPER NUMBER
2174
NOTIFICATION DATE DELIVERY MODE
08/25/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patents @ verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DONALD GENE ARCHER and WILLIAM D. YORK
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Application 12/957,574
Technology Center 2100
DENISE M. POTHIER, JOHNNY A. KUMAR, and JOHN D. HAMANN,
Administrative Patent Judges.
KUMAR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1 and 3—23. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Exemplary Claim
Exemplary claim 1 under appeal reads as follows:
1. A method implemented by a device, the method
comprising:
displaying display elements, in a standard keyboard
layout, on a touch screen associated with the device;
1 Appellants identify Verizon Communications Inc. as the real party in
interest (Br. 3),
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displaying a first instruction to a user, instructing the user
to place the user's fingers at a home position on the keyboard;
displaying to the user, a second instruction, instructing
the user to move fingers on the user’s hand to bring the user's
fingers closer together or spread the user's fingers;
displaying to the user, a third instruction, instructing the
user to rotate the user's hands, while contacting the touch
screen;
detecting interactions of the user’s fingers, by the device,
in response to movement of the user’s fingers;
determining, by the device, at least a type of interaction
by the user's fingers based on the detected interactions;
reducing, by the device, the sizes or spacing of one or
more of the display elements in response to determining that the
type of interaction is the user’s fingers being brought closer
together;
enlarging, by the device, the sizes or spacing of one or
more of the display elements in response to determining that the
type of interaction is the user's fingers being spread apart;
rotating, by the device, the display elements in response
to determining that the type of interaction is the user's fingers
being rotated;
displaying, on the touch screen, a first reconfigured
keyboard layout that includes the one or more display elements
that are reduced or enlarged in size or spacing; and
displaying on the touch screen, a rotated first
reconfigured keyboard layout that includes the one or more
display elements, wherein the rotated first reconfigured
keyboard layout comprises:
a first portion of the display elements, rotated in a first
direction with respect to the standard keyboard layout, wherein
the first portion does not include the display elements of the
entire standard keyboard layout,
a second portion of the display elements rotated in a
second direction with respect to the standard keyboard layout,
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and wherein the second portion does not include the display
elements of the entire standard keyboard layout, and
wherein the first portion and the second portion of the
rotated first reconfigured keyboard layout correspond to the
display elements of the entire standard keyboard layout.
REFERENCES and REJECTIONS
Claims 1, 9, and 16 are rejected under 35 U.S.C. § 112(b) or 35 U.S.C.
§112 (pre-AIA), second paragraph, as being indefinite for failing to
particularly point out and distinctly claim the subject matter which the
inventor or a joint inventor, or for pre-AIA the applicant regards as the
invention.
Claims 1 and 3—23 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over by Kim et al. (US Pub. No. 2009/0237359 Al;
published Sept. 24, 2009) (hereinafter Kim) in view of Harris (US Pub. No.
2012/0119999 Al; Provisional Filed: Nov. 11, 2010) and in further view of
Li (US Pub. No. 2010/0302165 Al; published Dec. 2, 2010).
ANALYSIS
THE INDEFINITENESS REJECTION
The Examiner concludes that claims 1, 9, and 16 are indefinite
because the claims are “trying to claim the third instruction” as being
separately displayed from the second instruction, but in the Specification the
contents of the second instruction and the third instruction are displayed
together. Final Act. 3^4.
Appellants contend:
Claim 1 plainly recites displaying first, second, and third
instructions and is not attempting to claim whether the instructions are
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displayed separately or simultaneously, as alleged in the Final Office
Action. . . . Moreover, Appellants respectfully submit that it
is irrelevant whether the third instruction is displayed with or
separately from the second instruction. That is, the features of claim 1
are clearly understood from a plain reading of the claim and are
therefore not indefinite (M.P.E.P. at 2173.02).
Br. 10-11.
Appellants’ Specification discloses:
[0037] If the user chooses the “Yes” selection mechanism,
device 100 may provide an instructional window 420 on display 120,
as shown in Fig. 4B. Instructional window 420 may include a window
or another similar mechanism that provides instructions to the user.
For example, as shown in Fig. 4B, instructional window 420 may
instruct the user to “Place your fingers at the home position on the
keyboard.'1'’
(Emphasis added).
Appellants’ Specification also discloses:
[0038] For example, as shown in Fig. 4C, instructional window
425 may instruct the user to “Spread or contract your fingers to
adjust spacing. Rotate your hands to adjust split.'1'’ Based on
instructional window 425, the user may contract his/her fingers,
spread his/her fingers, and/or rotate his/her hands.
(Emphasis added).
In other words, the claimed first instruction encompasses the
instruction “Place your fingers at the home position on the keyboard”; the
claimed second instruction encompasses “Spread or contract your fingers to
adjust spacing”; and the claimed third instruction encompasses “Rotate your
hands to adjust split.”
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We will not sustain the Examiner’s indefiniteness rejection of claims
1, 9, and 16 because ordinary, skilled artisans would understand that “a
second instruction” and “a third instruction” interpreted in light of the
Specification refer to separate instructions.
Therefore, we are persuaded that the Examiner erred in rejecting
claims 1, 9, and 16 as indefinite.
THE OBVIOUSNESS REJECTION OVER KIM, HARRIS, AND LI
Appellants contend that the combination of Kim, Harris, and Li does
not teach or suggest the claimed subject matter because
Harris (or the combination of Kim and Harris) does not disclose
or suggest displaying a first instruction to a user, instructing the
user to place fingers at a home position on the keyboard, and
displaying to the user, a second instruction, instructing the user
to move fingers on the user’s hand to bring the user’s fingers
closer together or spread the user’s fingers, as recited in claim
1.
Br. 14. Appellants also contend “Kim, Harris and Li do not disclose or
suggest displaying to the user, a third instruction, instructing the user to
rotate the user’s hands, while contacting the touch screen, as recited in claim
1.” Id.
In particular, Appellants contend “Harris merely chooses a layout that
may be associated with user’s preference”; “Kim does not detect the
movement of the fingers on the user’s hand to determine a type of
interaction by the user’s fingers”; and “Li’s mechanism for obtaining the
interaction of the user does not correspond to the user contacting a touch
screen.” Br. 13—18.
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These arguments are not persuasive because they attack the references
individually rather than the combination of references. It is well established
that one cannot show non-obviousness by attacking references individually
where the rejection is based upon the teachings of a combination of
references. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986);
see also In re Keller 642 F.2d 413, 425 (CCPA 1981).
The Examiner finds that Harris teaches
the broadest reasonable interpretation of the “home position” is
equivalent to the comfortable position that the user is familiar with
and used to for typing as disclosed by Harris (Paragraph 18)....
Harris teaches if the user puts their fingers too far apart, the system
can display a message saying “....put your fingers closer together....”
(Paragraph 26) which is equivalent to “.... displaying to the user, a
second instruction, instructing the user to move fingers on the user's
hand to bring the user's fingers closer together or spread the user's
fingers;....” It would have been obvious the instruction in Harris can
also include spreading] the user’s fingers when the user’s fingers are
too close together (common sense).
Ans. 4 (bolding omitted).
The Examiner finds Kim teaches:
The broadest reasonable interpretation of “.... interactions of
the user's fingers in response to movement of the user's finger....” can
be equivalent to user moving their fingers to touch the screen with
their fingers (e.g. a point or location on the touch screen which
fmger(s) of one or both hands of the user touches as disclosed by Kim
in paragraph [0032]). In other words, the fingers have to have moved
to a location on the screen and user touching the screen before the
touch points can be detected and the relation between reference points
can be used to determine if the left and right portion of keyboards
should be reduced (Paragraphs 32, 37-38) or the key should be
enlarged (Paragraph 15). Furthermore, there are no limitations in
claim 1 that preclude the prior art from using the touch point of
the reference fingers from both hands and the distance between the
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reference fingers to determine a type of interaction by the user's
fingers thereby to determine whether to reduce or enlarge the keys.
Ans. 5.
The Examiner relies upon Li for teaching “rotating hands (i.e. the type
of interaction is the user’s fingers being rotated) causes the orientation of the
virtual keyboard to rotate accordingly (i.e. rotating, by the device, the
display elements in response to....the type of interaction...user’s fingers
being rotated).” Ans. 6.
In view of these findings, Appellants’ arguments are unpersuasive
because they do not address the actual reasoning of the Examiner’s rejection
based on the combination of the applied prior art. They fail to acknowledge
the knowledge, creativity, and common sense that one of ordinary skill in the
art would have used when considering combinations or modifications. See
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 415—22 (2007); see also Randall
Mfg. v. Rea, 733 F.3d 1355, 1362 (Fed. Cir. 2013).
Regarding Appellants’ contentions that “the combination of Kim,
Harris and Li cannot be combined without materially destroying the
intended purposes of Kim, Harris, and Li” ( Br. 19—21),2 we find combining
2 Appellants also contend:
Moreover, using a laser interface such as Li would destroy the
purpose disclosed in Kim, which uses touch points, and Harris which
detects finger positions. In addition, using the touch points disclosed
in Kim within a touchless system, such as disclosed by Li, would
destroy the purpose of Li’s touchless system. Therefore, it would not
have been obvious to combine Kim, Harris and Li since the
combination would effectively destroy the functioning and purpose
of each individual reference.
Br. 22-23.
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the respective reference teachings in the manner proffered by the Examiner
would have merely resulted in “the predictable use of prior art elements
according to their established functions,” KSR Int’l Co. v. Teleflex Inc., 550
U.S. at 417. See Final Act. 6—7. We find the Examiner provided sufficient
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness. See KSR, 550 U.S. at 418; see also Final Act. 6—
7.3 We are further mindful that the skilled artisan would “be able to fit the
teachings of multiple patents together like pieces of a puzzle” because the
skilled artisan is “a person of ordinary creativity, not an automaton.” KSR,
550 U.S. at 420-21.
This reasoning is applicable here. Accordingly, on this record we are
not persuaded the Examiner erred by combining the cited references under
§103.
Regarding Appellants’ contention (claim 8) at page 22 of the Appeal
Brief that Li does not function with a capacitive touch screen, we disagree
with the Appellants because Appellants do not explain why it would not
have been obvious to one skilled in the art to use a capacitive touch screen.
We note the background section in Appellants’ Specification admits
capacitive touch screens are known in the art:
Devices, such as mobile communication devices (e.g., cell
phones, personal digital assistants (PDAs), smart phones, tablet
computers, etc.), include touch sensitive input devices (e.g., touch
3 The Examiner finds “[i]t would have been obvious to modify Kim with
the teachings of Harris to provide helpful instruction to the user with the
motivation so that user can operate the keyboard with a more comfortable
position, faster with less mistake.” Final Act. 6. The Examiner also finds
“[i]t would have been obvious to one of ordinary skill in the art at the time
of the invention to modify Kim and Harris with the teachings of Li with the
motivation for better ergonomics (Paragraph 39).” Final Act. 7.
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sensitive interfaces or displays, touch screens, etc.). Touch screens
are usually formed with either a resistive or capacitive film layer,
located above a display, which is used to sense a touch of the user’s
finger or a stylus.
Spec. 11 (Emphasis added). Moreover, Li is being relied upon for the
limited purpose in the rejection to teach keyboard layout features and not the
claimed touch screen features. Final Act. 7, 10.
For dependent claims 3—7, Appellants rely on the arguments
presented for claim 1. Br. 22. For independent claims 9 and 16, Appellants
rely on the arguments presented for claim 1. Br. 23—25. We are not
persuaded for the previously discussed reasons.
For dependent claims 10-15 and 17—23, Appellants rely on the
arguments presented for claims 9 and 16, respectively, which we determined
are unavailing. Br. 24, 26. We further adopt the Examiner’s findings and
underlying reasoning, which are incorporated herein by reference.
We observe that no Reply Brief is of record to rebut such findings,
including the Examiner’s responses to Appellants’ arguments.
DECISION
We affirm the Examiner’s decision to reject claims 1 and 3—23 under
§103.
We reverse the Examiner’s decision to reject claims 1, 9, and 16 under
§112, second paragraph.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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