Ex Parte Kosonen et al

Patent Trial and Appeal Board

Oct 28, 2016

12227313 (P.T.A.B. Oct. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/227,313 02/18/2009
10949 7590 11/01/2016
Nokia Corporation and Alston & Bird LLP
c/o Alston & Bird LLP
Bank of America Plaza, 101 South Tryon Street
Suite 4000
Charlotte, NC 28280-4000
FIRST NAMED INVENTOR
Timo Kosonen
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.
042933/417430 6491
EXAMINER
BADAWI, ANGIE M
ART UNIT PAPER NUMBER
2172
NOTIFICATION DATE DELIVERY MODE
11/01/2016 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):
usptomail@alston.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMO KOSONEN, KAI HA VUKAINEN,
JUKKA HOLM, and ANTTI ERONEN
Appeal2015-006772
Application 12/227 ,313 1
Technology Center 2100
Before ALLEN R. MacDONALD, MICHAEL M. BARRY, and
MICHAEL J. ENGLE, Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 2, 4--16, and 18-23, which are all of the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Technology
The application relates to "changing an appearance of a graphical user
interface in response to music." Spec. 1:7-10.
Representative Claim
Claim 1 is representative and reproduced below with the limitations at
issue emphasized:
1 Appellants state the real party in interest is Nokia Corporation. App. Br. 2.
Appeal2015-006772
Application 12/227,313
1. A method comprising:
providing an audio control signal to an audio output device
of an apparatus to cause the audio output device to play audible
music;
obtaining music information that defines at least one
characteristic of the audible music wherein the music
information is obtained by processing the audible music; and
controlling changes to an appearance of a graphical user
interface of the apparatus using the music information by
changing the appearance of a graphical menu item, wherein the
graphical menu item enables access to functions of the
apparatus.
Rejections
Claims 1, 2, 4--7, 12-16, and 18-23 stand rejected under 35 U.S.C.
§ 103(a) as obvious over the combination of Tsujimoto (US 5,969,719; Oct.
19, 1999), Georges et al. (US 2004/0089141 Al; May 13, 2004), and
Thomas et al. (US 2002/0042920 Al; Apr. 11, 2002). Final Act. 4.
Claims 8-11 stand rejected under 35 U.S.C. § 103(a) as obvious over
the combination of Tsujimoto, Georges, Thomas, and Kalish (US
2004/0201603 Al; Oct. 14, 2004). Final Act. 19.
ISSUES
1. Did the Examiner err in finding the combination of Tsujimoto
and Georges teaches, suggests, or otherwise renders obvious "obtaining
music information that defines at least one characteristic of the audible
music," as recited in claim 1?
2. Did the Examiner err in finding the combination of Tsujimoto
and Thomas teaches, suggests, or otherwise renders obvious "the music
information is obtained by processing the audible music," as recited in
claim 1?
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Application 12/227,313
3. Did the Examiner err in finding the combination of Tsujimoto
and Georges teaches, suggests, or otherwise renders obvious "changing the
appearance of a graphical menu item," as recited in claim 1?
4. Did the Examiner err in finding Tsujimoto teaches, suggests, or
otherwise renders obvious "the graphical menu item enables access to
functions of the apparatus," as recited in claim 1?
5. Did the Examiner err in finding a person of ordinary skill in the
art would have combined Tsujimoto with Georges and Thomas?
ANALYSIS
According to Appellants, all of the independent claims "recite similar
features to those of Claim 1." App. Br. 13-14. Appellants therefore rely on
the arguments against claim 1 for all claims on appeal. Id.
"obtaining music information that defines ... the audible music"
Appellants contend Tsujimoto does not teach or suggest obtaining
information defining the audible music because the relevant audio signal in
Tsujimoto is not played by the speaker. App. Br. 8. "But one cannot show
non-obviousness by attacking references individually where, as here, the
rejections are based on combinations of references." In re Keller, 642 F.2d
413, 426 (CCPA 1981). Here, the Examiner also relies on Georges for
teaching this limitation. Ans. 24--25. Specifically, Georges teaches "a
visual representation of a speaker that preferably is pulsing in time with the
music being played." Georges i-f 96, FIG. 7 A. Appellants have not
addressed Georges for this limitation and have not persuaded us of error in
the Examiner's findings.
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Application 12/227,313
"changing the appearance ofa graphical menu item"
Appellants argue Tsujimoto teaches "an animated icon," which "has
no relation to a graphical menu item." App. Br. 9. This argument, however,
is contradicted by the present application's Specification.
Figures 2A and 2B from the present application are reproduced below.
22
,.)
""' 124 120
Cl -41/ "f B -
CS2}J26A D __// -268
MESSAGES PHONEBOOK
J26C /~26D
~ [@_/
MEDIA CAMERAS
Fig. 2A
MESSAGES PHONEBOOK ·
Fig. 28
Figures 2A and 2B "illustrate a GUI 20 that changes appearance in
response to and in time with the tempo of the beats in audible music,"
including "a number of graphical menu items 26A, 26B, 26C and 26D."
Spec. 3 :28-31. "[T]he graphical menu item 26A is animated. It pulsates in
size with the beat of the music." Id. at 4:3--4. Thus, "[t]he graphical menu
item 26A ... has an increased size S2 in Fig 2B." Id. at 4:4--5.
As can be seen in Figures 2A and 2B, graphical menu item 26A is an
icon labeled "MESSAGES" that pulsates with the music. Appellants have
failed to meaningfully distinguish this from the teaching in Tsujimoto that
"an icon image is made to change its size" with the music. Tsujimoto 7:49-
53, FIG. 2 (label 14); see also Spec. 4:30-5:2 ("The graphical items ... may
include, for example, ... icons"). Thus, we agree with the Examiner's
finding that Tsujimoto teaches this limitation. Ans. 26.
Appellants' arguments regarding Georges for this limitation are moot
given the Examiner's reliance on Tsujimoto. App. Br. 10; Ans. 28.
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Application 12/227,313
"the graphical menu item enables access to functions of the apparatus"
We agree with the Examiner that "the features upon which applicant
relies (i.e., the changed graphical menu item enables access to function[s] of
the apparatus) are not recited in the rejected claim." Ans. 27. Here,
Appellants concede that in Tsujimoto, "the operator can activate the icon
image to display the hidden window." App. Br. 10; Tsujimoto 3:26-30. As
the Examiner notes, "Appellants did not state how or why reopening a
window ... do[ es] not teach accessing functions." Ans. 28. We therefore
agree with the Examiner that Tsujimoto teaches or suggests this limitation.
"the music information is obtained by processing the audible music"
Appellants contend Thomas "provides" information such as "the title
of the song" by "retrieving or downloading supplemental content rather than
processing an audible signal." App. Br. 11-13. We are not persuaded of
error. Although claim 1 recites "the music information is obtained by
processing the audible music," dependent claim 2 further recites "the music
information is metadata for the audible music." The Specification explains
"[t ]his metadata may indicate characteristics of the music such as, for
example, the music genre, keywords from the lyrics, time signature, mood
(danceable, romantic) etc." Spec. 6: 1-3. Appellants have not sufficiently
persuaded us of any patentable distinction between the metadata disclosed in
the Specification and Thomas' teaching of metadata in the form of
"information relating to the song playing in the background," such as "the
title of the song, the artist, a clip of the music video, a picture of the artist, or
any other suitable media." Thomas i-f 111; Ans. 31.
Moreover, the Examiner does not rely on Thomas alone and instead
also combines Thomas with Tsujimoto. Tsujimoto teaches two audio
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Application 12/227,313
signals, one of which is output through the speaker while the other has real-
time information extracted for visual display (rather than audio output).
App. Br. 7 (citing Tsujimoto 5:58---6:6); Tsujimoto FIG. 2. Specifically,
Tsujimoto teaches that "from the ... audio signal which is not currently
output in the form of a sound through the loudspeaker, real-time information
is extracted, such as the level of volume ... and a pair of a pitch and a
length." Tsujimoto 2:67-3:6; Ans. 31. Applying Tsujimoto's identical
processing to the audio signal that is being played, e.g., based on Thomas'
teaching that "the user may indicate a desire to obtain information relating to
the song playing in the background of the selected media by selecting button
912," would yield only the predictable result of providing the volume level
and pitch/length for the song being played. Ans. 31-32. We are not
persuaded by Appellants' conclusory attorney argument that the processing
of the audio signal provided to the speaker "would require considerable
inventive activity," particularly since Appellants have not shown any way in
which the processing of either audio signal would differ. Reply Br. 4.
Thus, we find no error in the Examiner finding "the combination of
Tsujimoto and Thomas teaches the argued limitations." Ans. 32.
Combining Tsujimoto with Georges and Thomas
Appellants also contend that Georges and Thomas are not analogous
art to Tsujimoto. App. Br. 10-11, 13; Reply Br. 5, 7.
Prior art is analogous if either (A) "the art is from the same field of
endeavor, regardless of the problem addressed" or (B) regardless of field of
endeavor, the reference is "reasonably pertinent to the particular problem
with which the inventor is involved." Innovention Toys, LLC v. MGA
Entm 't, Inc., 637 F.3d 1314, 1321 (Fed. Cir. 2011) (quotation omitted). "A
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Application 12/227,313
reference is reasonably pertinent if it is one which, because of the matter
with which it deals, logically would have commended itself to an inventor's
attention in considering his problem." Id. (quotation omitted). "If a
reference disclosure has the same purpose as the claimed invention, the
reference relates to the same problem, and that fact supports use of that
reference in an obviousness rejection." Id. (quotation omitted). However,
"[t]he pertinence of the reference as a source of solution to the inventor's
problem must be recognizable with the foresight of a person of ordinary
skill, not with the hindsight of the inventor's successful achievement." Sci.
Plastic Prod., Inc. v. Biotage AB, 766 F.3d 1355, 1359 (Fed. Cir. 2014).
In Innovention, the patentee argued the references "describ [ ed]
computer-based, chess-like strategy games" and were "non-analogous art
because the [asserted] patent's inventors were concerned with making a non-
virtual, three-dimensional, laser-based board game, a project that involves
mechanical engineering and optics, not computer programming." 637 F.3d
at 1316, 1321. The Federal Circuit found "an electronic, laser-based
strategy game, even if not in the same field of endeavor, would nonetheless
have been reasonably pertinent to the problem facing an inventor of a new,
physical, laser-based strategy game" because both "relate to the same goal:
designing a winnable yet entertaining strategy game." Id. at 1322.
Given the limited record before us, we are not persuaded by
Appellants' argument. Appellants too narrowly interpret both the fields of
endeavor of the prior art and the particular problems they try to address. For
example, Appellants limit Georges to "the generation or modification of a
musical composition." App. Br. 10. Yet Georges describes its disclosure
more broadly: "[t]he present invention relates to systems and methods for
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Application 12/227,313
... playing music." Georges if 2. More specifically, "[w]hat is important to
this aspect of the present invention [is] that the user be presented with a
multi-lane visual representation . .. of the music that is being composed or
played." Id. if 96 (emphasis added); see also Spec. 1:7-10 (broadly defining
the field of the present application as "an adaptive user interface" in which
"some embodiments relate to ... changing an appearance of a graphical user
interface in response to music"). Similarly, Thomas is related to the visual
display of "music information," such as "the title of the song, the artist, a
clip of the music video, a picture of the artist, or any other suitable media" of
"the song playing in the background." Thomas if 111, FIG. 18; Ans. 34.
Given a problem addressed by Tsujimoto is how to visually display an audio
signal, we are not persuaded that Georges or Thomas are not "reasonably
pertinent" to the problem with which Tsujimoto is involved. Nor are we
persuaded by Appellants' conclusory assertions that a person of ordinary
skill would be unable or unmotivated to combine the three references.
Accordingly, we sustain the Examiner's rejection of claim 1, and
claims 2, 4--16, and 18-23, which Appellants argue are patentable for similar
reasons. See App. Br. 13-14; 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
For the reasons above, we affirm the Examiner's decision rejecting
claims 1, 2, 4--16, and 18-23.
No time period for taking subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a). 37 C.F.R. § 41.50(f).
AFFIRMED
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