Ex Parte Craig et al

Board of Patent Appeals and Interferences

Apr 24, 2010

10180266 (B.P.A.I. Apr. 24, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RANDALL A. CRAIG, BETHANY L. KESSEN,
ALEX D. LITTLE, and ANGELA P. ROBERTSON
____________

Appeal 2008-002754
Application 10/180,266
Technology Center 2100
____________

Decided: April 24, 2010
____________

Before JOHN A. JEFFERY, JEAN R. HOMERE, and JAY P. LUCAS,
Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 5-10. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.

STATEMENT OF THE CASE
Appellants invented a graphical calendar display with calendar control
capabilities. Each togglable calendar date can be selected or deselected
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without regard to the state of other contiguous calendar dates. An
application programming interface enables external application programs to
access the calendar date states. See generally Abstract; Spec. 5-6. Claim 5
is illustrative:
5. A method of resolving a set of calendar dates comprising the steps
of:

responsive to receiving an activating signal from an independent
application program, displaying a plurality of toggleable calendar dates in a
graphical calendar display;

visually toggling within said graphical calendar display selected ones
of said calendar dates between a selected state and a de-selected state
without regard to the state of contiguous ones of said calendar dates;

identifying all of said calendar dates having a selected state; and,

forwarding said identified calendar dates to said independent
application program.

The Examiner relies on the following as evidence of unpatentability:
Tsukui US 6,791,589 B2 Sept. 14, 2004
(filed Nov. 29, 2000)
Microsoft® Outlook® 2000 SP-3 (9.0.0.6627), Corporate or Workgroup –
Security Update, Copyright © 1995-1999 Microsoft Corp. (“Outlook”).

Rob Parsons, A Generic Calendar Application, Feb. 1996, available at
http://www.avdf.com/feb96/gcaland.html (“Parsons”).

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THE REJECTIONS
1. The Examiner rejected claims 5, 6, 8, and 9 under 35 U.S.C. § 103(a)
as unpatentable over Tsukui and Parsons. Ans. 5-7.1
2. The Examiner rejected claims 7 and 10 under 35 U.S.C. § 103(a) as
unpatentable over Tsukui, Parsons, and Outlook. Ans. 8-10.

CLAIM GROUPING
Appellants indicate that (1) claims 6, 8, and 9 stand or fall with claim
5 regarding the first rejection, and (2) claim 10 stands or falls with claim 7
regarding the second rejection. App. Br. 3, 5. Accordingly, we select claims
5 and 7 as representative for each rejection. See 37 C.F.R. §
41.37(c)(1)(vii).

THE OBVIOUSNESS REJECTION OVER TSUKUI AND PARSONS
Regarding representative claim 5, the Examiner finds that Tsukui
discloses every recited feature except for (1) displaying a graphical calendar
responsive to receiving an activating signal from an independent application
program, and (2) forwarding identified calendar dates to this program. Ans.
5. The Examiner, however, cites Parsons’ teaching of reusing calendar
application components in other applications, and concludes that skilled
artisans would have known to use selected calendar dates in Tsukui such that
Tsukui’s calendar could be reused in other applications. Ans. 5-6, 11.

1 Throughout this opinion, we refer to (1) the Appeal Brief filed February 5,
2007; (2) the Examiner’s Answer mailed July 20, 2007; and (3) the Reply
Brief filed September 20, 2007.
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Appellants argue that the Examiner failed to establish a reasonable
expectation of success for combining Tsukui and Parsons to arrive at the
claimed invention. According to Appellants, Parsons fails to teach or
suggest how to implement Tsukui’s teachings separate from an independent
application program, let alone how to return certain togglable (i.e., selected
and deselected) calendar dates that are independent of other contiguous
togglable dates. App. Br. 4-5; Reply Br. 2. Appellants add that since Tsukui
and Parsons are directed to two different types of applications, their
functionality is not necessarily transferable to the other. Reply Br. 2.
The issue before us, then, is as follows:

ISSUE
Is the Examiner’s reason to combine the teachings of Tsukui and
Parsons to arrive at the invention of claim 5 supported by articulated
reasoning with some rational underpinning to justify the Examiner’s
obviousness conclusion?
This issue turns on whether ordinarily skilled artisans would have
reasonably expected success from the Examiner’s proposed combination.

FINDINGS OF FACT (FF)
1. Tsukui’s calendar display apparatus has a date selecting function
and can completely display the states of all selected dates using a relatively
small display area, even when the selected dates are not accommodated in a
displayed calendar month. Tsukui, col. 1, ll. 50-55.

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2. Tsukui’s Figure 2 shows calendars corresponding to August and
September (201 and 202) that include check boxes 206 for selecting
particular dates in these months (indicated by an “X” in these boxes).
Tsukui, col. 3, l. 66 – col. 4, l. 3; Fig. 2.
3. In Figure 2, five days are selected in the September calendar (Sept.
6, 7, 14, 21, and 28). Tsukui, col. 4, ll. 6-8; Fig. 2.
4. When the “display month change button” 205a is pressed under the
state shown in Figure 2, a state shown in Figure 1 is displayed in which
October is displayed instead of September. The selected dates for
September (Sept. 6, 7, 14, 21, and 28), however, are displayed in Figure 1 in
a “selected date list part” 103 along with associated check boxes 107.
Tsukui, col. 4, ll. 4-23; Figs. 1-2.
5. Tsukui notes that program codes read by a computer are executed
to realize the described functions. Tsukui adds that an operating system
operated on the computer based on the codes’ instruction can perform some
or all of “actual processings” which can realize the functions of described
embodiments. Tsukui, col. 6, ll. 51-58.
6. Parsons discloses a generic calendar application (i.e., a calendar
“object”) that is independent of the operating system’s date format settings.
Parsons, at 1.
7. Parsons notes that since the calendar application has limited use as
a stand-alone application, it is designed such that it can be used as a (1)
stand-alone application, and (2) a reusable component than can be reused in
other applications. Parsons, at 4 (“Implementing the Calandar” [sic]).
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8. To be useful with other Windows applications, Parsons’ calendar
application must be able to pass the user’s selected date back to the calling
application. Id.
9. The calendars in Tsukui’s Figure 1 have “display month changing
buttons” 105a-d. Tsukui, col. 3, ll. 59-65; Fig. 1.

PRINCIPLES OF LAW
To be patentable under § 103, an improvement must be more than the
predictable use of prior art elements according to their established functions.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Moreover, if a
technique has been used to improve one device, and an ordinarily skilled
artisan would recognize that it would improve similar devices in the same
way, using the technique is obvious unless its actual application is beyond
his or her skill. Id.
“An obviousness determination requires that a skilled artisan would
have perceived a reasonable expectation of success in making the invention
in light of the prior art.” Amgen, Inc. v. F. Hoffman-La Roche Ltd., 580 F.3d
1340, 1362 (Fed. Cir. 2009).

ANALYSIS
Based on the record before us, we find no error in the Examiner’s
obviousness rejection of representative claim 5 which calls for, in pertinent
part, (1) displaying plural togglable calendar dates responsive to receiving an
activating signal from an independent application program, and (2)
forwarding identified selected dates to this program.
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Appellants do not dispute the Examiner’s specific findings regarding
Tsukui (Ans. 5) which discloses an application that displays calendars that
include check boxes 206 for selecting particular dates in these months
(indicated by an “X” in these boxes). FF 2-3. And when Tsukui’s “display
month change button” 205a is pressed under the state shown in Figure 2, a
state shown in Figure 1 is displayed in which October is displayed instead of
September. FF 4. The selected dates for September (Sept. 6, 7, 14, 21, and
28), however, are displayed in Figure 1 in a “selected date list part” 103
along with associated check boxes 107. Id.
Rather, Appellants argue that the Examiner failed to establish a
reasonable expectation of success for combining Tsukui and Parsons to
arrive at the claimed invention. We disagree. The Examiner cited Parsons
merely to show that a calendar application need not be a stand-alone
application, but rather can function as a component that is reusable in other
applications. Ans. 5, 6, 11.
This ability for Parsons’ calendar application to operate in concert
with different applications is a key feature of that system, particularly since
the reference emphasizes that the calendar application would have limited
use as a stand-alone application. FF 7. To this end, Parsons’ calendar
application must be able to pass the user’s selected date back to the calling
application to be useful with other Windows applications. FF 8; emphasis
added.
Based on Parsons’ clear preference for operating a calendar
application in concert with other applications, namely by passing selected
dates to a calling application, we see no reason why such functionality could
not be utilized in Tsukui. Not only could such a “calling application” in
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Tsukui be part of or otherwise associated with, the operating system (FF 5),
we also see no reason why Tsukui’s functionality could not be adapted to
operate in conjunction with other applications as Parsons
suggests. Such an enhancement is tantamount to the predictable use of prior
art elements according to their established functions—an obvious
improvement. See KSR, 550 U.S. at 417.
And while Parsons may not specifically teach how to implement this
improvement in Tsukui’s system, that gap is hardly dispositive of whether
such an improvement would have been obvious or whether skilled artisans
would have reasonably expected success for such an improvement. It is well
settled that if a technique has been used to improve one device, and an
ordinarily skilled artisan would recognize that it would improve similar
devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill. Id.
Based on Parsons’ disclosure of a reusable calendar component for
use with other applications (FF 7-8), skilled artisans would have recognized
that similar devices (e.g., calendar applications such as those disclosed by
Tsukui) could have been improved in the same way, namely by providing
the ability to pass selected dates to a calling application. See FF 8.
Appellants have provided no evidence on this record proving that such an
improvement would have been beyond the level of ordinarily skilled
artisans.
That said, we recognize that obviousness determinations require that
skilled artisans would have perceived a reasonable expectation of success in
making the invention in light of the prior art. Amgen, 580 F.3d at 1362. But
on this record, there is simply no evidence before us that rebuts the notion
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that modifying Tsukui in light of the teachings of Parsons is nothing more
than the predictable use of prior art elements according to their established
functions. See KSR, 550 U.S. at 417. Skilled artisans would have therefore
reasonably expected success for this enhancement in light of this
predictability. See Amgen, 580 F.3d at 1362.
We are therefore not persuaded that the Examiner erred in rejecting
representative claim 5, and claims 6, 8, and 9 which fall with claim 5.

THE OBVIOUSNESS REJECTION OVER TSUKUI, PARSONS, AND OUTLOOK
Regarding representative claim 7, the Examiner finds that Tsukui and
Parsons disclose all recited steps except for automatically setting to a
selected state calendar dates that are between two other dates. Ans. 8. The
Examiner, however, cites various screenshots from Outlook as teaching this
feature in concluding the claim would have been obvious. Ans. 8-9.
According to the Examiner, automatically selecting multiple dates in a
calendar application via the shift key, and deselecting certain of these dates
via the control key as shown in the Outlook screenshots is more efficient and
requires fewer keystrokes than other date selection and deselection methods.
Ans. 12-14.
Appellants argue that not only does the applied prior art fail to provide
the requisite motivation to combine the references, but the Examiner’s
reliance on Outlook is purportedly “pure speculation” since Outlook is said
to “not contain any explicit teachings.” App. Br. 5-7; Reply Br. 3.

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The issues before us, then, are as follows:

ISSUES
(1) Are the Examiner’s factual findings regarding Outlook supported
by a preponderance of the evidence?

(2) Is the Examiner’s reason to combine the teachings of Tsukui,
Parsons, and Outlook to arrive at the invention of claim 7 supported by
articulated reasoning with some rational underpinning to justify the
Examiner’s obviousness conclusion?

ADDITIONAL FINDINGS OF FACT
10. Figures 7a through 7c of Outlook are screenshots which show a
group of monthly calendars from March to November 2006 on the right side
of each figure. Outlook, Figs. 7a-7c.
11. Figure 7a of Outlook includes a textual legend “First End-Point
Date Selected,” and shows an arrow-shaped cursor pointing to March 13,
2006. In this figure, one day is highlighted with a black square surrounding
the numeral “13” in the month “March 2006.” Outlook, Fig. 7a.
12. Figure 7b of Outlook includes a textual legend “Second End-
Point Date Selected With Shift Key Depressed.” In this figure, five
consecutive days are highlighted with a black rectangle surrounding the
group of numerals “13,” “14,” “15,” “16,” and “17” in the month “March
2006.” An arrow-shaped cursor points to the numeral “17” in the month
“March 2006.” Outlook, Fig. 7b.
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13. Figure 7c of Outlook includes a textual legend “Deselecting a
Calendar Date in Between First and Second End-Point by Releasing the
Shift Key, Depressing the Ctrl Key, and Selecting a Date in Between the
First and Second End-Point.” In this figure, four days are highlighted as
follows: (1) a black square surrounds the numeral “13” in the month “March
2006”; and (2) a black rectangle surrounds the group of numerals “15,”
“16,” and “17” in the month “March 2006.” An arrow-shaped cursor points
to the non-highlighted numeral “14” in the month “March 2006.” Outlook,
Fig. 7c.
14. Outlook includes a screenshot entitled “About Microsoft
Outlook” which includes the following text: “Microsoft® Outlook® 2000
SP-3 (9.0.0.6627) . . . Copyright © 1995-1999 Microsoft Corp.”

PRINCIPLES OF LAW
“The motivation [to combine references] need not be found in the
references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself.” DyStar Textilfarben GmbH & Co.
Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1361 (Fed. Cir. 2006)
(citation omitted).
Computer screenshots can be considered as evidence. See
Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1362 (Fed
Cir. 2001).

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ANALYSIS
We find no error in the Examiner’s obviousness rejection of claim 7.
Appellants’ argument is premised on the assertion that since Outlook
purportedly “does not contain any explicit teachings,” the Examiner’s
position is therefore speculative. App. Br. 7; Reply Br. 3.
While Outlook is essentially a collection of screenshots, these
screenshots and their accompanying textual legends nevertheless contain
relevant teachings that amply demonstrate the functionality of Microsoft
Outlook 2000. See FF 10-14. That is, these screenshots represent an actual
implementation of certain features of Microsoft Outlook 2000 during
operation, and therefore illustrate how a user would implement those
features. See id.; see also Amazon.com, 239 F.3d at 1362 (considering
computer screenshots as evidence).
Figure 7a, for example, shows how to select a first end-point calendar
date (March 13, 2006) by pointing to that date with the arrow-shaped cursor
as evidenced by the figure’s textual legend “First End-Point Date Selected.”
FF 11. And Figure 7b, entitled “Second End-Point Date Selected With Shift
Key Depressed,” shows how to select a second end-point calendar date
(March 17, 2006) by pointing the cursor to March 17 and depressing the
shift key. FF 12. As Figure 7b illustrates, this process highlights five
consecutive days, namely March 13-17, 2006. Id. Lastly, Figure 7c
illustrates how to deselect a particular day (March 14, 2006) between the
first and second end points by (1) releasing the shift key; (2) depressing the
Ctrl key; and (3) selecting a date between the end points. FF 13. The result
of this deselection is apparent from (1) the arrow-shaped cursor pointing to
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“March 14,” and (2) the lack of highlighting associated with this day as
compared to Figure 7b. Compare Outlook, Fig. 7c with Outlook, Fig. 7b.
Based on these teachings, we see no error in the Examiner’s reliance
on these representations for the recited features of claim 7. Although
Appellants question whether the Examiner’s analysis is adequately based on
what was known at the time of the invention (June 26, 2002) (Reply Br. 3),
the Outlook screenshots nevertheless include an indication that they
represent the functionality of Microsoft Outlook 2000 SP-3 as it existed
before Appellants’ filing date, as evidenced by the software’s copyright date
of “1995-1999.” FF 14.
In short, the Examiner found that this software contains the
functionality represented by the screenshots—a finding that is supported by
a preponderance of the evidence. See FF 10-14. Absent evidence to the
contrary (which there is none on this record), we therefore presume that this
functionality was present in this version of Microsoft Outlook 2000 which,
based on the record before us, was available to the public at least as of 1999.
See FF 14. Outlook therefore qualifies as prior art for all that it teaches,
including the functionality illustrated in the screenshots as well as their
corresponding descriptions. See FF 10-14. See also Amazon.com, 239 F.3d
at 1362. We therefore are not persuaded that the Examiner’s reliance on
Outlook for teaching the features of claim 7 is erroneous.
Further, we are not persuaded that the Examiner erred in combining
these teachings with the other cited prior art to arrive at the claimed
invention. Appellants contend that the Examiner’s combination is erroneous
since the applied prior art does not provide the asserted motivation to
combine the references. App. Br. 7; emphasis added. But the reason to
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combine references need not be limited to the art itself: rather, it can stem
from a variety of other sources, such as common knowledge in the art or the
nature of the problem itself. DyStar, 464 F.3d at 1361.
In this regard, the Examiner has provided ample reason for ordinarily
skilled artisans to apply the teachings of Outlook to the Tsukui/Parsons
system which stems from at least the common knowledge in the art, namely
to provide a more efficient selection and deselection capability by reducing
the amount of keystrokes to achieve these functions. See Ans. 12-14. Such
an enhancement would be particularly beneficial in Tsukui, especially since
the individually-selectable days are arranged in a conventional calendar
format with rows of days representing individual weeks. See FF 2-4. This
row-based layout would be particularly suitable for selecting multiple days
via a range selection such as that taught by Outlook. See FF 10-14.
We are therefore not persuaded that the Examiner erred in rejecting
representative claim 7, and claim 10 which falls with claim 7.

CONCLUSION
The Examiner did not err in rejecting claims 5-10 under § 103.

ORDER
We affirm the Examiner’s decision rejecting claims 5-10.

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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)(1)(iv).

AFFIRMED

pgc

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