Ex Parte GASPAR et al

Patent Trials and Appeals Board

Jun 4, 2018

13569700 - (D) (P.T.A.B. Jun. 4, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/569,700 08/08/2012
55498 7590 06/06/2018
Vista IP Law Group, LLP (Oracle)
2160 Lundy Avenue
Suite 230
San Jose, CA 95131
FIRST NAMED INVENTOR
Brian GASP AR
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.
ORA120991-US-NP 9261
EXAMINER
BLAUFELD, JUSTIN R
ART UNIT PAPER NUMBER
2142
NOTIFICATION DATE DELIVERY MODE
06/06/2018 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):
docketing@viplawgroup.com
ev@viplawgroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN GASP AR, ANIL SUDHAKARAN, APPLA J. PAD ALA,
HARI G. NAIR, and MAKOTO ISHIJIMA
Appeal2017-009700
Application 13/569,700
Technology Center 2100
Before JOHN A. JEFFERY, ST. JOHN COURTENAY III, and JASON M.
REPKO, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-22. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
STATEMENT OF THE CASE
Appellants' invention is a graphical interface for interacting with a
multi-level hierarchy. To this end, (1) a hierarchy data structure is received
describing adjacent hierarchical levels, and, based on this received data
structure, (2) a graphical screen device is formed with corresponding
1 Appellants identify the real party in interest as Oracle International
Corporation. App. Br. 2.
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Application 13/569,700
concentric annular areas, where each larger ring corresponds to a
successively next lower level of the hierarchy. See generally Abstract; Spec.
i-fi-125-27; Fig. IA. Claim 1 is illustrative:
A computer implemented method for interacting with a
multilevel
hierarchy, the method comprising:
receiving, by a computer, a hierarchy data structure, the
hierarchy data structure describing a plurality of adjacent
hierarchical levels;
selecting at least two of the plurality of adjacent hierarchical
levels of the hierarchy data structure;
forming a graphical screen device having a plurality of
concentric areas, each one of the concentric areas
corresponding to a respective level of the hierarchy data
structure;
populating a first concentric area with at least some node
information pertaining to a first level of the selected adjacent
hierarchical levels, wherein the first level is the highest level of
the selected at least two adjacent hierarchical levels; and
populating, at an outer annular area relative to the first
concentric area, a second concentric area with at least some
node information pertaining to a second level of the selected
adjacent hierarchical levels, wherein the second level is lower
than the first level, such that moving outward from the first
concentric area, each outer successive concentric area
corresponds to a successively lower hierarchical level,
wherein, when a node of the outer annular area is selected, the
selected node moves up to an inner annular area relative to the
outer annular area; and
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wherein the outer annular area rotates relative to the inner
annular area based at least in part on a speed of a gesture
initiated by a user.
THE REJECTIONS
The Examiner rejected claims 1---6, 8-13, and 15-22 under 35 U.S.C.
§ 102(e) as anticipated by Tuchman (US 2013/0223614 Al; Aug. 29, 2013).
Final Act. 3-9.2
The Examiner rejected claims 7 and 14 under 35 U.S.C. § 103 as
unpatentable over Tuchman and van Os (US 2010/0011304 Al; Jan. 14,
2010). Final Act. 9-10.
THE ANTICIPATION REJECTION
The Examiner finds that Tuchman discloses every recited element of
independent claim 1 including moving a selected node of an outer annular
area to an inner annular area when that node is selected. Final Act. 4---6.
According to the Examiner, this movement is shown in Tuchman's Figures
6A to 6C, where, after selecting the letter "C," a third outer ring is displayed
with associated graphical representations. Id. at 5---6. The Examiner adds
that Tuchman rotates the outer annular area relative to the inner annular area
based at least partly on a speed of a user-initiated gesture, namely by
swiping a finger on a touch sensitive screen. Id. at 6.
2 Throughout this opinion, we refer to (1) the Final Rejection mailed April 7,
2016 ("Final Act."); (2) the Appeal Brief filed January 13, 2017 ("App.
Br."); (3) the Examiner's Answer mailed May 5, 2017 ("Ans."); and (4) the
Reply Brief filed July 5, 2017 ("Reply Br.").
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Appellants argue that Tuchman does not move a selected node up to
an inner annular area relative to an outer annular area when a node of the
outer annular area is selected, let alone rotate the outer annular area based at
least partly on a speed of a user-initiated gesture. App. Br. 17-23; Reply Br.
2-10. According to Appellants, even if a swiping action necessarily has
more than zero speed as the Examiner finds, Tuchman nevertheless fails to
disclose that this alleged speed has any bearing on the alleged relative
rotation of the outer annular area relative to the inner annular area. Reply
Br. 3--4. Appellants add that, contrary to the Examiner's finding, the ring
containing the selected context element labeled "Support" and its associated
context elements in Tuchman's Figure 5A never moves to a different area,
but rather remains in the same position on the screen as shown in Figure 5B.
App. Br. 20-21; Reply Br. 5---6.
ISSUE
Under § 102, has the Examiner erred in rejecting claim 1 by finding
that Tuchman discloses moving a selected node of an outer annular area to
an inner annular area when that node is selected, where the outer annular
area rotates relative to the inner annular area based at least partly on a speed
of a user-initiated gesture?
ANALYSIS
We begin by noting that a key disputed aspect of claim 1 is that a
selected node of an outer annular area moves up to an inner annular area
when that node is selected. Our emphasis on the word "when" underscores
that this is a conditional limitation that need not be satisfied to meet the
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claim under its broadest reasonable interpretation. See Ex parte
Schulhauser, No. 2013-007847 (PTAB Apr. 28, 2016) (precedential); see
also MANUAL OF PATENT EXAMINING PROCEDURE (MPEP) § 2111.04(II)
(9th ed. Rev. 08.2017 (Jan. 2018)) (citing Schulhauser). Although the
limitations at issue in Schulhauser were rendered conditional by the
recitation of "if' (see Schulhauser at 6-8), we discern no meaningful
distinction between the recitation of "if' and "when" in this context. See,
e.g., MERRIAM-WEBSTER'S THIRD NEW lNT'L DICTIONARY OF THE ENGLISH
LANGUAGE 2602 ((unabridged) 2002) (defining "when," in pertinent part, as
"in the event that : on condition that : IF").
Because the recited "when" condition need not be satisfied to meet
claim 1, the recited selected node movement need not be disclosed in
Tuchman to satisfy the claim. Therefore, Appellants' arguments regarding
Tuchman's alleged shortcomings this regard (App. Br. 20-21; Reply Br. 5-
6) are unavailing and not commensurate with the scope of claim 1 for that
reason alone.
To be sure, the broadest reasonable interpretation of an apparatus
claim with structure that performs a function, which only needs to occur if a
condition precedent is met, still requires structure for performing the
function should the condition occur. Schulhauser at 14--15. Therefore, our
interpretation of independent claims 8 and 15 differs from method claim 1
because the structure, namely the system and processor configured to
perform the recited functions, is present in the system regardless of whether
the condition is met and the function is actually performed.
Nevertheless, we are unpersuaded of error in the Examiner's rejection
of claim 1 even if the recited condition had to be satisfied to meet the claim
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(which it does not). In the rejection, the Examiner finds that the recited
selected node movement is shown in Tuchman's Figures 6A to 6C, where,
after selecting the letter "C," a third outer ring is displayed with associated
graphical representations. Final Act. 5---6 (citing Tuchman i-f 133).
Appellants do not squarely address-let alone persuasively rebut-
these particular findings. See App. Br. 17-23; Reply Br. 2-10. As shown in
Tuchman's Figures 6A and 6B, the selected node associated with the
selected letter "C" effectively moves up to an inner annular area responsive
to that selection. See Tuchman i-f 133. Therefore, Appellants' contentions
pertaining to the alleged shortcomings of Tuchman's Figures 5A and 5B in
this regard (App. Br. 20-21; Reply Br. 5---6) are unavailing, for they are not
germane to the Examiner's reliance on the functionality of Tuchman's
Figures 6A to 6C for disclosing the recited upward movement in the
rejection. See Final Act. 5---6.
Nor are we persuaded of error in the Examiner's reliance on the
functionality of Tuchman's Figures 5A and 5B for disclosing rotating an
outer annular area relative to the inner annular area based at least partly on a
speed of a user-initiated gesture, namely by swiping a finger on a touch
sensitive screen. Final Act. 6; Ans. 3--4. Our emphasis on the word "a"
underscores that the claim does not specify a particular speed or type of
gesture, apart from a user initiating the gesture. Accord Ans. 3--4 (noting
this point). Under its broadest reasonable interpretation, then, claim 1
merely requires the outer annular area to rotate relative to the inner annular
area based at least partly on some unspecified speed of a user-initiated
gesture.
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Given this breadth, we see no error in the Examiner's finding that
Tuchman's swiping3 gesture that rotates ring 505 in paragraph 131
necessarily has some speed which, in the Examiner's parlance, is "more than
zero." Ans. 4. The term "swipe" is defined, in pertinent part, as "to strike or
move with a sweeping motion." MERRIAM WEBSTER'S COLLEGIATE
DICTIONARY 1192 (10th ed. 1993). Therefore, swiping a finger on a touch-
sensitive screen would necessarily have some speed as part of this sweeping
motion. See id. at 1129 (defining "speed," in pertinent part, as "rate of
motion"); see also THE OXFORD AMERICAN DESK DICTIONARY 57 6 (Frank
Abate ed. 1998) (defining "speed," in pertinent part, as "rapidity of
movement"). Because the finger swipe's sweeping motion and its associated
speed causes the outer ring 505 in Figure 5B to rotate as noted in Tuchman's
paragraph 131, this rotation is, therefore, based at least partly on some speed
of that user-initiated swiping gesture.
To be sure, the Examiner relies on different embodiments of Tuchman
for disclosing the last two clauses of claim 1, namely the functionality of ( 1)
Tuchman's Figures 6A to 6C for disclosing the recited selected node
movement, and (2) Figures 5A and 5B for disclosing the recited rotation.
See Final Act. 5---6 (citing Tuchman i-fi-f 133 and 131, respectively, in
connection with these limitations).
It is well settled that to anticipate under § 102, a prior art reference
"must not only disclose all elements of the claim within the four comers of
the document, but must also disclose those elements arranged as in the
3 Appellants' contention that Tuchman does not mention the word "swipe"
or its equivalents (App. Br. 23) is, at best, overstated, for this contention
ignores Tuchman' s explicit use of the term "swiping" in paragraph 131.
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claim." Net Moneyin, Inc. v. Verisign, Inc., 545 F.3d 1359, 1369 (Fed. Cir.
2008) (citation and internal quotation marks omitted). Thus, the reference
must clearly and unequivocally disclose the claimed invention or direct
those skilled in the art to the invention without any need for picking,
choosing, and combining various disclosures not directly related to each
other by the teachings of the cited reference. In re Arkley, 455 F.2d 586, 587
(CCPA 1972).
On this record, we cannot say that the Examiner erred in this regard,
for not only do Appellants fail to identify such a deficiency in the
Examiner's findings (to the extent that such a deficiency exists), Appellants
do not squarely address-let alone persuasively rebut-the Examiner's
finding that Tuchman's paragraph 64 generalizes with respect to any
embodiment that an outer row's graphical representations can rotate around
an inner row. Final Act. 6. Notably, this unrebutted finding provides at
least some factual basis for the Examiner's relying on the embodiments of
Tuchman's (1) Figures 6A to 6C for disclosing the recited selected node
movement, and (2) Figures 5A and 5B for disclosing the recited rotation, for
the Examiner finds that this latter rotation can also apply to any other
embodiment-including that of Figures 6A to 6C-in light of Tuchman's
paragraph 64. That Tuchman's references to "one embodiment" and "an
embodiment" means that a particular feature, structure, or characteristic
described in connection with that embodiment can be included in at least
one embodiment of the invention as noted in paragraph 18 only further
weighs in favor of the Examiner in this regard.
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Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2-6, 8-13, and 15-22 not argued separately with
particularity.
THE OBVIOUSNESS REJECTION
We also sustain the Examiner's obviousness rejection of claim 7
reciting that the method of claim 1 further comprises at least one of a
numeric adornment and a cancel adornment. Our emphasis on "at least one"
underscores that only one of the two recited adornments need be taught or
suggested by the prior art to satisfy the claim.
Despite Appellants' arguments to the contrary (App. Br. 23-26; Reply
Br. 10-13), we see no error in the Examiner's reliance on van Os' badges
550 in Figure 5A for teaching the recited numeric adornment. Final Act. 9-
10. As van Os explains in paragraph 45, these badges' numbers indicate the
number of new or unread messages or voicemails associated with a
particular contact. Given this teaching, as well as the striking similarity
between these numeric adornments and those shown in Figure 4 of the
present application, we see no error in the Examiner's proposed
combination, for it uses prior art elements predictably according to their
established functions-an obvious improvement. See KSR Int 'l Co. v.
Teleflex, Inc., 550 U.S. 398, 417 (2007).
Appellants' arguments regarding van Os' alleged shortcomings do not
squarely address-let alone persuasively rebut-the Examiner's particular
findings from van Os' paragraph 45. See App. Br. 26 (citing van Os
Abstract; i-fi-1 4--7, 176). Moreover, Appellants' contentions regarding van
Os' using the term "speed" in a different context and lacking swiping (App.
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Br. 26) are unavailing, for the Examiner cites Tuchman-not van Os-for
teaching those features. See Final Act. 6. In short, Appellants' arguments
regarding the cited references' individual shortcomings in this regard (App.
Br. 26) do not show nonobviousness where, as here, the rejection is based on
the cited references' collective teachings. See In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986).
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 7, and claim 14 not argued separately with particularity. 4
CONCLUSION
The Examiner did not err in rejecting (1) claims 1---6, 8-13, and 15-22
under§ 102, and (2) claims 7 and 14 under§ 103. 5
DECISION
We affirm the Examiner's decision to reject claims 1-22.
4 Because we sustain the Examiner's obviousness rejection solely on the
basis of the Examiner's findings and conclusions articulated in the rejection,
we need not address the merits of the Examiner's additional rationale based
on non-functional descriptive material articulated for the first time on page 6
of the Examiner's Answer. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421,
1423 (Fed. Cir. 1984) (approving ITC's determination based on a single
dispositive issue, and not reaching other issues not decided by the lower
tribunal).
5 Appellants' contention that the Examiner's Answer misinterprets the
recited "client-side cache" on page 14 of the Reply Brief is puzzling, as is
Appellants' assertion that claims 1, 2, 4, 6-9, 11, 13-22, 24, and 26-31 are
allowable, for the claims in the present appeal not only lack a "client-side
cache," but they also lack claims 24 and 26-31. Nevertheless, to the extent
that these contentions are intended to apply to the present appeal, we find
these contentions unavailing for the reasons previously discussed.
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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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