Ex Parte BermanDownload PDFPatent Trial and Appeal BoardFeb 19, 201612722178 (P.T.A.B. Feb. 19, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121722,178 03/11/2010 57726 7590 02/23/2016 MILLER, MATTHIAS & HULL LLP ONE NORTH FRANKLIN STREET SUITE 2350 CHICAGO, IL 60606 FIRST NAMED INVENTOR Michele Berman 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 28951150001 2568 EXAMINER MISKA,VITW ART UNIT PAPER NUMBER 2833 NOTIFICATION DATE DELIVERY MODE 02/23/2016 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): bmatthias@millermatthiashull.com mloye@millermatthiashull.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHELE BERMAN Appeal2014-003740 Application 12/722, 178 Technology Center 2800 Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and JAMES C. HOUSEL, Administrative Patent Judges. PERCURIAM. DECISION ON APPEAL 1 STATEMENT OF THE CASE Appellant2 filed an appeal under 35 U.S.C. § 134 from the Examiner's decision rejecting claims 1-16. We have jurisdiction under 35 U.S.C. §§ 6(b) and 134(a). We AFFIRM. The claims on appeal are directed to child-friendly clock devices (see, e.g., claim 1). Appellant discloses that children between the ages of2 and 5 1 Our decision refers to the Specification filed Mar. 11, 2010 (Spec.), Appellant's Appeal Brief filed Aug. 20, 2013 (Br.), and the Examiner's Answer mailed Nov. 27, 2013 (Ans.). 2 Appellant identifies the real party of interest as Zazoo Kids, Inc. Br. 3. Appeal2014-003740 Application 12/722, 178 have difficulty reading traditional clocks and are disinclined to remain in bed until a reasonable hour. Spec. i-f 3. Appellant discloses this problem is exacerbated in summer months because sunrise can occur before it is time to wake up and sundown can occur after bedtime. Id. Young children need a simple, clear mechanism to determine whether they should get up out of bed or stay in bed and try to fall back asleep. Spec. i-f 5. In view of this, Appellant discloses a clock device allowing a child to wake up, observe the clock device, and see a digital photo/image indicating whether it is time to wake up or time to stay in bed. Spec. i-f 7. Independent claim 1 is illustrative of the subject matter on appeal. Claim 1 is reproduced from the Claims Appendix of the Appeal Brief: 1. A child-friendly clock device for conveying waking time to children, the clock device comprising: a photo area for displaying a digital image; an image input mechanism for receiving image data from a user; and a controller for recefving a its er selection of tvvo or more images and for receiving at least one alarm time, the controller being adapted to switch a display in the photo area at the alarm time from a first one of the images, which indicates night time, to a second one of the images, indicating day time. Br. 12 (emphasis and indents added). The claims on appeal stand rejected as follows: (1) claims 1-12, 15, and 16 under 35 U.S.C. § 103(a) as being unpatentable over Smith3 and Gorden; 4 3 Smith, US 2009/0016168 Al, published Jan. 15, 2009. 4 Gorden, US 6,795,377 B2, issued Sept. 21, 2004. 2 Appeal2014-003740 Application 12/722, 178 (2) claim 13 under 35 U.S.C. § 103(a) as being unpatentable over Smith and Gorden and further in view of Chan; 5 and (3) claim 14 under 35 U.S.C. § 103(a) as being unpatentable over Smith and Gorden and further in view of Clapper. 6 OPINION Rejection (1) The Examiner finds Smith discloses a child-friendly clock device comprising a photo area for displaying a digital image. Ans. 2. The Examiner finds Smith does not specifically disclose a controller or an image input mechanism for receiving image data from a user but determines a controller and image input mechanism would be required for operating the clock disclosed by Smith. Ans. 3. In particular, the Examiner cites Smith's disclosure of programmable clock features and, in view of this, determines the clock would include a controller. Id. With regard to the image input mechanism, the Examiner cites Smith's disclosure of clock embodiments including programming capability for inputting images in paragraph 34, and Smith's disclosure of Universal Serial Bus (USB) ports for receiving downloaded programming instructions in paragraph 68. Id. Based on this evidence, the Examiner determines the clock of Smith would include an image input mechanism for receiving image data from a user. Id. The Examiner finds Gorden discloses an alarm clock having an image input mechanism and a controller, citing the memory devices 44 and CPU 42 disclosed by Gorden. Ans. 3--4. The Examiner concludes it would have 5 Chan, US 6,443,615 Bl, issued Sept. 3, 2002. 6 Clapper, US 2004/0150635 Al, published Aug. 5, 2004. 3 Appeal2014-003740 Application 12/722, 178 been obvious to modify the clock of Smith to include the controller and image input mechanism of Gorden. Ans. 4. Appellant argues the missing elements of Smith (i.e., the image input mechanism and controller) are not necessary features in Smith's clock, citing case law relating to inherency. Br. 9-10. Moreover, Appellant contends Smith describes a functioning clock without disclosing a controller or image input mechanism. Br. 10. Appellant's arguments are not persuasive. As an initial matter, we note that the appropriate question under the current § 103 rejection is not whether a reference inherently discloses a claimed feature but whether the claimed feature would have been obvious. Moreover, Appellant has not met their burden of providing evidence or argument rebutting the Examiner's case of unpatentability. "[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability. If that burden is met, the burden of coming forward with evidence or argument shifts to the applicant." In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Here, the Examiner finds Smith discloses a clock that can be programmed to display a sun image at a pre-determined time and switch images in the display of the clock, such as by switching between an image indicating night time and an image indicating day time. Ans. 2. The disclosure of Smith supports this finding because Smith discloses a clock that can display an image to indicate a time and an image may be programmed to be displayed at a predetermined time, such as by turning off an image of a star and turning on an image of a sun. Smith i-fi-134, 38, and 39. With regard to the image input mechanism of claim 1, Smith's 4 Appeal2014-003740 Application 12/722, 178 suggestion of a programming capability for inputting images, and the disclosure of a USB port that may be included in a clock for the reception of downloaded programming instructions supports the Examiner's finding. Smith i-fi-134 and 68. The evidence supports the determinations that the clock of Smith would include a controller in order to perform the programmed functions described by Smith and would include an image input mechanism. Gorden further supports the Examiner's position because Gorden discloses a clock having input/output ports 30 and 32, which can be USB ports; a CPU 42; and at least one memory device 44 that can be a removable or non-removable device, such as flash memory, and can contain image data, such as photographic image data. Gorden col. 8, 11. 34--37 and 49---65. In other words, Gorden demonstrates it is known for a clock to include a controller and an input/output port, such as a USB port, capable of interfacing with a memory device to receive image data. Appellant's naked assertion that Smith does not require an image input mechanism or a controller does not direct us to any reversible error in the Examiner's findings or determinations. Appellant further contends the clock of Gorden "is not indicated to accept user input." Br. 10. In particular, Appellant asserts the "memory device 44 in Gorden is not said to be usable to provide user input," and "the class of memory devices mentioned here clearly indicates that this is not a user input port." Id. These arguments seem to conflate two structures recited in claim 1: the image input mechanism and the controller. To the extent Appellant is arguing that Gorden fails to teach "a controller for receiving a user selection of two or more images and for receiving at least one alarm time," as recited in claim 1, the Examiner has determined the 5 Appeal2014-003740 Application 12/722, 178 clock of Smith would include a controller, which is substantiated by the disclosure of Gorden, as discussed above. Appellant has not provided evidence or argument to rebut the Examiner's case ofunpatentability. To the extent Appellant is arguing that Gorden fails to teach "an image input mechanism for receiving image data from a user," the Examiner determines each of Smith and Gorden discloses a USB port, as discussed above. Therefore, Appellant's argument does not direct us to any reversible error. Claims 2-12, 15, and 16 have not been argued separately and therefore fall with claim 1. Br. 10. For the reasons discussed above and those set forth in the Examiner's Answer, we sustain the Examiner's§ 103 rejection of claims 1-12, 15, and 16 under 35 U.S.C. § 103(a) as being unpatentable over Smith and Gorden. Rejections (2) and (3) Claims 13 and 14 have not been argued separately. For the reasons discussed above and those set forth in the Examiner's Answer, we sustain the Examiner's§ 103 rejections of claims 13 and 14. DECISION The decision of the Examiner is affirmed. No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. § 1.136(a)(l). AFFIRMED 6 Copy with citationCopy as parenthetical citation