Ex Parte McDonough et al

Board of Patent Appeals and Interferences

Sep 29, 2010

09699517 (B.P.A.I. Sep. 29, 2010)

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.
09/699,517 10/31/2000 Timothy A. McDonough 14917.0971USI1/150635.01 7863
27488 7590 09/29/2010
MERCHANT & GOULD (MICROSOFT)
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
EXAMINER
ABDULSELAM, ABBAS I
ART UNIT PAPER NUMBER
2629
MAIL DATE DELIVERY MODE
09/29/2010 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte TIMOTHY A. McDONOUGH, CARL J.
LEDBETTER, ROBERT SCOTT PLANK, STEVEN W.
FISHER, STEVEN T. KANEKO, and STEVEN BATHICHE
________________

Appeal 2009-014362
Application 09/699,517
Technology Center 2600
________________

Before KENNETH W. HAIRSTON, MARC S. HOFF, and
CARL W. WHITEHEAD, Jr., Administrative Patent Judges.

HAIRSTON, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 17, 18, 33, 35, 37, and 39 to 52. Claims
1 to 16, 19 to 32, 34, 36, and 38 have been canceled. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appellants’ invention relates to a user/event notification system with
an illuminated computer input device (see Fig. 1) and associated method that
serves to notify a user even when a monitor is off or when a screen saver is
running (Abs.; Spec. 1-3). More specifically, Appellants disclose and claim
a method for controlling an illumination member on a computer input device
(e.g., a mouse as in Fig. 1) (see claims 37, 39, 40, 41, 42, 43, 44, 49, and 50).
The notification can make the illumination member blink as a function of the
number or priority of messages received (Abs.; claim 49). Messages may be
text messages or instant messages (claims 39 and 52). Notification can be
based on requests for solicitations (claims 41 and 50), video and audio
conference calls (claim 40), whether an incoming message is in a set of
senders (claims 35, 37, and 49), conditions relating to a character in a game
program (claim 44), and whether or not a correct answer has been input
(claims 43 and 52).
Claims 39 is representative of the claimed invention and reads as
follows, with emphasis added:
Claim 39: A method for controlling an illumination member on a
computer input device, said method comprising:
(a) determining, in a computer, whether a predetermined event has
occurred; and
(b) changing a state associated with the illumination member in
response to the determination step,
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wherein said determining step includes determining whether an instant
message has been received and determining whether an email message has
been received,
wherein said changing step includes changing the state associated
with the illumination member to a first state in response to determining an
instant message has been received and changing the state associated with
the illumination member to a second state in response to determining an
email message has been received.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Suzuki US 5,890,139 Mar. 30, 1999
Stanek US 5,936,554 Aug. 10, 1999
Macko US 6,052,563 Apr. 18, 2000
Kreisel US 6,088,516 Jul. 11, 2000
Gough US 6,360,221 B1 Mar. 19, 2002
(filed Sep. 21, 1999)
Pennell US 6,874,023 B1 Mar. 29, 2005
(filed Nov. 10, 1999)
(i) The Examiner rejected claims 39, 51, and 52 under 35 U.S.C. §
102(e) as anticipated by Kreisel.
(ii) The Examiner rejected claims 33, 37, and 40 under 35 U.S.C. §
103(a) based upon the teachings of Kreisel.
(iii) The Examiner rejected claims 35 and 49 under 35 U.S.C. § 103(a)
based upon the teachings of Kreisel and Stanek.
(iv) The Examiner rejected claims 41 and 50 under 35 U.S.C. § 103(a)
based upon the teachings of Kreisel and Pennell.
(v) The Examiner rejected claims 17, 18, and 42 under 35 U.S.C. §
103(a) based upon the teachings of Kreisel and Macko.
(vi) The Examiner rejected claim 43 under 35 U.S.C. § 103(a) based
upon the teachings of Kreisel and Suzuki.
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(vii) The Examiner rejected claims 44 to 48 under 35 U.S.C. § 103(a)
based upon the teachings of Kreisel and Gough.
With regard to the anticipation rejection of claims 39, 51, and 52, the
Examiner relies upon Kreisel (Figs. 1b, 2; col. 3, ll. 18-21; col. 8, l. 38 to
col. 9, l. 32) as teaching the recited methods, and computer-readable medium
with instructions, for controlling an illumination member on a computer
input device including (i) determining if a predetermined event, such as
reception of an instant message or an email, has occurred, and (ii) changing
the illumination member to first and second states in response to either the
email or instant message receipt, respectively (Ans. 14-17, 21-22). The
Examiner determines that step 202 in Figure 2 and column 8, line 65,
teaches determining whether an instant message has been received (Ans.
14). As to claim 52, the Examiner notably does not make any findings with
respect to whether Kreisel teaches the recited feature of a predetermined
event being the input of a correct answer (see generally Ans. 14-15, 21-22)
(note that this same “correct answer” feature is recited in claim 43, and the
Examiner relies upon Suzuki as showing this feature as to claim 43).
With regard to the obviousness rejection of claim 43, the Examiner
admits that Kreisel does not teach determining whether a correct answer has
been input, and relies upon Suzuki (Fig. 5, step 109; col. 7, ll. 8-14) as
teaching a not-yet-answered processing unit 160 for transmitting an answers
via email to assist with online shopping (Ans. 11). The Examiner
determines that it would have been obvious to modify Kreisel’s email
system of Figure 1b “to adapt Suzuki’s answer transmission via email (109)
as configured in Fig. 5” (Ans. 19).
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With regard to the obviousness rejections of claims 33, 35, 37, 40, and
49, the Examiner admits that Kreisel does not teach establishing a set of
senders and determining whether a sender of an incoming message is in the
set (Ans. 4-6). The Examiner relies on Kreisel’s (i) communication package
3 and memory including incoming queue 23 and outgoing queue 25 which
store messages (see col. 3, ll. 13-27), and (ii) processing sequence in Figure
4,2 including newly received message status (see step 204), as suggesting the
recited limitation of establishing a set of senders and determining whether a
sender of an incoming communication is in the set (Ans. 3-7, 15-17). The
Examiner concludes that it would have been obvious to one of ordinary skill
in the art to utilize message storage in a computer 2 and communications
package 3 as shown in Figure 1b of Kreisel to track the status of each
received message (Ans. 15-17).
With regard to the obviousness rejection of claim 40, the Examiner
admits that Kreisel does not teach receiving a request to respond to a video
or audio conference call as recited in claim 40 (Ans. 7). The Examiner finds
that Kreisel’s computer terminals 2 with electronic communications package
3 or 5 shown in Figure 1a (see col. 2, ll. 62-67) teach or suggest the recited
feature of claim 40 of determining whether a request to respond to a video or
audio conference call has been received (Ans. 17).

2 The Examiner mistakenly and continually refers to Figure 4, step 204 of
Kreisel as teaching a processing sequence including a status of newly
received messages (see Ans. 4-6). We note that Figure 4 of Kreisel has no
step 204, but does have a step 402 where a new mail flag is changed to false
and the illumination member is turned off indicating the user has viewed the
message (see col. 9, l. 62 to col. 10, l. 5). Figure 2 contains a step 204,
however, where a new mail flag is set to true when a new message is
received and the illumination member is turned on (see col. 7, l. 61 to col. 8,
l. 9).
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With regard to claims 41 and 50, the Examiner admits the Kreisel fails
to teach (i) determining whether a request to respond to a solicitation has
been received, and (ii) determining whether a request to join a chat room has
been received (Ans. 7-9). The Examiner notably fails to assert that Pennell
teaches anything about joining chat rooms (Ans. 7-9), and states that Pennell
(see col. 1, ll. 42-45) teaches discerning the sender of an email and using that
information to control future emails (Ans. 17-18, 20-21).
With regard to the obviousness rejection of claims 17, 18, and 42, the
Examiner relies upon Macko (col. 8, ll. 1-4, 56-67; Fig. 13) as teaching
activation of an email program 700 in a computer or PC 130 corresponding
to the timing of a scheduled appointment (Ans. 9-10, 18).
With regard to the obviousness rejection of claims 44 to 48, the
Examiner relies upon Gough as teaching or suggesting the recited features of
determining the state, characteristic, or condition of a character in a game
program (Ans. 11-13, 19-20). The Examiner finds that Gough teaches an
interactive email system for implementing a chess game having characters
(e.g., pawns, knights, rooks, bishops, queens, and kings) that remembers
character positions, enforces rules, and tracks lives remaining (Ans. 12-13,
19). The Examiner determines that it would have been obvious to modify
Kreisel’s email communication system of Figure 1b with Gough’s
interactive email driven game (see Gough’s Fig. 13) “because the use of
enhanced interactive email helps attract users and members to the website as
taught by Gough (col. 2, lines 45-49)” (Ans. 20).
With regard to the anticipation rejection of claims 39, 51, and 52,
Appellants argue inter alia (App. Br. 5-8; Reply Br. 5-6), that Kreisel fails to
teach (i) determining if an instant message is received and instead concerns
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email messages, and (ii) changing the state of the illumination member in
response to receipt of an instant message. Appellants also argue (App. Br.
7) that Kreisel fails to teach or suggest discriminating (e.g., by applying
different states to the illumination member) between email messages and
instant messages. As to claim 52, Appellants contend (App. Br. 7-8) that
Kreisel fails to teach anything related to establishing a third state of the
illumination member based on the determination that a correct answer has
been input.
With regard to the obviousness rejection of claim 43, Appellants
contend (App. Br. 13-14; Reply Br. 11-12 (citing Suzuki, col. 7, ll. 8-14))
that Suzuki discloses searching a database for an answer to a consumer’s
question and then editing and emailing the answer, but fails to disclose
determining whether the answer is correct.
With regard to the obviousness rejections of claims 33, 35, 37, 40, and
49, Appellants argue (App. Br. 8-9; Reply Br. 3-5) that Kreisel fails to teach
or suggest establishing a set of senders and determining whether the sender
of an incoming message is in the set. Appellants also argue (App. Br. 9;
Reply Br. 6-7) with respect to claim 40 that Kreisel fails to teach or suggest
anything about receiving a request to respond to a video conference call or
an audio conference call.
With regard to the obviousness rejection of claims 41 and 50,
Appellants contend (App. Br. 9-11; Reply Br. 7-9) that Kreisel and Pennell
fail to teach or suggest (i) determining whether a user is capable of receiving
a solicitation (see claim 41), and (ii) determining whether a request to
respond to a solicitation to join a chat room has been received (see claim
50).
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With regard to the obviousness rejection of claims 17, 18, and 42,
Appellants contend (App. Br. 11-13; Reply Br. 9-11) that Kreisel and Macko
are not properly combinable because Macko is related to a cell phone and
not a computer as recited in the claims, and that Macko merely discloses
specifying actions with respect to daily appointments.
With regard to the obviousness rejection of claims 44 to 48,
Appellants contend (App. Br. 14-16; Reply Br. 12-13) that Gough does not
disclose or suggest characters in a game program (claim 44), determining a
proximity of a character (claim 45), a number of lives remaining for a
character (claim 46), an amount of supply for the character (claim 47), and a
character entering a game area (claim 48). Appellants admit that Gough
teaches a chess game program that emails moves back and forth, but asserts
that “[t]he game program is a chess program and there are no underlying
characters participating in the chess program” (App. Br. 15-16).
Based on Appellants’ arguments, the issues presented are:
(i) Does Kreisel disclose instant messaging and changing an
illumination member to first and second states based on
determining whether an instant message or an email message
has been received, as set forth in claims 39, 51, and 52?
(ii) Does Kreisel disclose changing the illumination member to a
third state based on determining that a correct answer has
been input, as set forth in claim 52?
(iii) Does Suzuki disclose determining whether a correct answer
has been input, as set forth in claim 43?
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(iv) Do Kreisel teach or suggest establishing a set of senders and
determining whether a sender of an incoming message is in
the set, as set forth in claims 33, 35, 37, 40, and 49?
(v) Does Kreisel disclose receiving a request to respond to a
video or audio conference call, as set forth in claim 40?
(vi) Do Kreisel or Pennell teach or suggest (i) determining
whether a user is capable of receiving a solicitation, as set
forth in claim 41, and (ii) determining whether a request to
respond to a solicitation to join a chat room has been
received, as set forth in claim 50?
(vii) With regard to the obviousness rejection of claims 17, 18,
and 42, are Kreisel and Macko properly combinable?
(viii) Does Gough’s email for a chess game teach or suggest the
character related determinations set forth in claims 44 to 48?

FINDINGS OF FACT (FF)
1. Appellants describe a using an illumination member of a mouse to
notify a user of an incoming e-mail, voice mail, or facsimile message,
or of a number of messages (Spec. 13). The illumination member
may also notify a user of a request for solicitation, request to join a
chat room, instant messaging, request for video and/or audio
conference calls, scheduled events, or changes in game conditions
(Spec. 14).
2. Kreisel describes changing the state of an illumination member (LEDs
17 and 21) on a computer input device (keyboard 15) of a computer 2
(Figure 1b; col. 8, l. 61 to col. 9, l. 32). Kreisel describes a network
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having multiple terminals in communication with each other (Fig. 1a;
col. 2, ll. 36-38). Kreisel determines whether a new email message
has been received and notifies a user visually by lighting LEDs 17 and
21 (col. 1, ll. 10-14, 40-64; col. 2, ll. 16-23, 36-38; col. 8, ll. 39-46).
Messages and data relating to the messages is stored in a memory
(col. 3, ll. 13-27), and the LEDs are made to flash in differing states
based on a new message being received or multiple messages being
received (col. 8, l. 61 to col. 9, l. 32; Fig. 2, steps 202 and 204).
3. Pennell describes managing internet communications so as to ensure a
user’s privacy and minimize unsolicited communications with the user
(col. 1, ll. 42-45).
4. Macko describes a controller 116 for controlling a communication
device 100 based on information stored in an appointment book 117
(Abstract). Macko describes a method of forwarding an email
concerning a scheduled appointment (Figure 13; col. 8, ll. 1-4, 56-67).
Macko describes a communication device 100 as being a cellular
telephone or other portable communication device (col. 1, ll. 5-16),
and having a controller 116 including a microprocessor, CPA 160,
RAM 162, ROM 164, display 120, I/O units 168 and 170, and a PC
interface for connecting to a PC 130 or PC site 214 (col. 2, l. 11 to col.
3, l. 39).
5. Suzuki describes a not-yet-answered case processing unit 160 that
stores and edits input answers into email format and then transmits the
answers (col. 7, ll. 6-14; Fig. 5, steps 108 and 109; Abs.).
6. Gough describes an interactive chess game played over email that
“remembers positions, enforces rules, etc.” (Fig. 13; col. 15, l. 66 to
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col. 16, l. 14). Gough describes an email method and system with
enhanced email messages that are highly compelling and which will
attract users and members to the website and increase advertising
value of the system (col. 2, ll. 45-49).

PRINCIPLES OF LAW
Anticipation
Anticipation is established when a single prior art reference discloses,
expressly or under the principles of inherency, each and every limitation of
the claimed invention. Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342,
1347 (Fed. Cir. 1999); In re Paulsen, 30 F.3d 1475, 1478-79 (Fed. Cir.
1994).
Obviousness
The Examiner’s articulated reasoning for an obviousness rejection
must possess a rational underpinning to support the legal conclusion of
obviousness. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).

ANALYSIS
Anticipation
Turning first to the anticipation rejection of claims 39, 51, and 52, we
are persuaded by Appellants’ argument (App. Br. 7) that Kreisel fails to
teach or suggest discriminating between email messages and instant
messages by applying different states to the illumination member. Although
Kreisel teaches changing the state of LEDs 17 and 21 based on an email
message being received, and even describes that a flag is set based on
incoming mail being received in step 204 of Figure 2, Kreisel does not
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disclose different states for the LEDs based on two different types of
messages (email messages and instant messages) (FF 2). Therefore, even if
Kreisel presumably encompasses instant messaging, nothing is present in
Kreisel to suggest that instant messages and email messages are to be
notified differently to a user, as recited in claims 39 and 52. In addition,
Appellants’ additional argument as to claim 52 (App. Br. 7-8) that Kreisel
fails to teach anything related to establishing a third state of the illumination
member based on the determination that a correct answer has been input is
also persuasive because Kreisel teaches nothing about a correct answer
being input (see FF 2).
Because Kreisel fails to disclose each and every limitation of the
claimed invention, we will not sustain the anticipation rejection of claims 39,
51, and 52. Atlas Powder, 190 F.3d at 1347; Paulsen, 30 F.3d at 1478-79.
Obviousness
Turning next to the obviousness rejection of claim 43, we are
persuaded by Appellants’ arguments (App. Br. 13-14; Reply Br. 11-12
(citing Suzuki, col. 7, ll. 8-14)) that Suzuki discloses searching a database
for an answer and then editing and emailing the answer, but fails to disclose
determining whether the answer is correct.
Suzuki discloses emailing an answer, but is silent as to determining
whether such answer is actually correct and has been input, as set forth in
claim 43 (see FF 5).
Accordingly, we will not sustain the obviousness rejection of claim
43.
Turning next to the obviousness rejections of claims 33, 35, 37, 40,
and 49, Appellants’ argument (App. Br. 8-9; Reply Br. 3-5) that Kreisel fails
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to teach or suggest establishing a set of senders and determining whether the
sender of an incoming message is in the set is convincing. Appellants’
contention (App. Br. 9; Reply Br. 6-7) that Kreisel fails to teach or suggest
anything about receiving a request to respond to a video conference call or
an audio conference call, as in claim 40, is also convincing.
Kreisel is silent as to establishing a set of senders and determining
whether a sender of an incoming message is in the set, and such a feature is
neither taught nor suggested by the disclosure of a memory with queues for
storing messages (see FF 2). Thus, Kreisel fails to teach establishing a set of
senders and determining whether a sender of an incoming message is in the
set, as set forth in claims 33, 35, 37, 40, and 49.
In addition, Kreisel is silent as to the network terminals having video
or audio conference call capabilities or receiving a request to respond to a
video or audio conference call, as set forth in claim 40 (see FF 2). The
Examiner has not set forth articulated reasoning for the obviousness
rejection (e.g., a link between conference calling and commonly known
computer terminals on networks) that possesses a rational underpinning to
support the legal conclusion of obviousness. Kahn, 441 F.3d at 988.
Accordingly, we will not sustain the obviousness rejections of claims
33, 35, 37, 40, and 49.
Turning next to the obviousness rejection of claims 41 and 50,
Appellants’ contention (App. Br. 9-11; Reply Br. 7-9) that Kreisel and
Pennell fail to teach or suggest (i) determining whether a user is capable of
receiving a solicitation (see claim 41), and (ii) determining whether a request
to respond to a solicitation to join a chat room has been received (see claim
50), is persuasive.
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Neither Kreisel nor Pennell teaches or suggests anything about
determining whether a user is capable of receiving a solicitation or mention
anything about joining a chat room (FF 2, 3). The Examiner has not set
forth articulated reasoning for the obviousness rejection (e.g., how or why
chat rooms are known and would have been obvious in light of the teachings
of Kreisel and/or Pennell) that possesses a rational underpinning to support
the legal conclusion of obviousness. Kahn, 441 F.3d at 988.
Accordingly, we will not sustain the obviousness rejection of claims
41 and 50.
Turning next to the obviousness rejection of claims 17, 18, and 42, we
are not persuaded by Appellants’ arguments (App. Br. 11-13; Reply Br. 9-
11) that Kreisel and Macko are not properly combinable because Macko is
related to a cell phone and not a computer as recited in the claims, and that
Macko merely discloses specifying actions with respect to daily
appointments.
Macko teaches or suggests the event scheduling features of claims 17,
18, and 42 and that such an appointment scheduling program would be
applied to a cell phone or a computer (FF 4). Because both Macko and
Kreisel concern email, computers, and communications devices (see FF 2,
4), it would have been obvious to modify Kreisel’s computer 2 with
Macko’s scheduling and appointment book features.
Accordingly, we will sustain the Examiner’s obviousness rejection of
claims 17, 18, and 42.
Turning lastly to the obviousness rejection of claims 44 to 48, we are
not persuaded by Appellants’ contentions (App. Br. 14-16; Reply Br. 12-13)
that Gough’s chess game program that emails moves back and forth does not
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disclose or suggest character related determinations, as set forth in claims 44
to 48. The features of characters in a game program (claim 44), determining
a proximity of a character (claim 45), a number of lives remaining for a
character (claim 46), an amount of supply for a character (claim 47), and a
character entering a game area (claim 48) are all taught or suggested the
game of chess. Specifically, chess involves characters (e.g., king, queen,
pawns, etc.). Thus, Appellants’ assertion that “[t]he game program is a
chess program and there are no underlying characters participating in the
chess program” (App. Br. 15) is not well taken.
The characters (e.g., pawn) leave the game area when they are taken,
and end their lives (i.e., life supply amounts must be tracked). When a pawn
makes it all the way across the board and leaves the game area it becomes a
queen. Based on proximity of one character to another, the game program
must determine whether or not the condition of check or checkmate exists.
In view of the foregoing, we will sustain the Examiner’s obviousness
rejection of claims 44 to 48.

CONCLUSIONS
Kreisel does not explicitly or inherently disclose instant messaging or
determining whether an instant message or an email message has been
received and operating differing states of an illumination member of a
computer input device in response thereto, as set forth in claims 39, 51, and
52. Kreisel does not disclose changing the illumination member to a third
state based on determining that a correct answer has been input, as set forth
in claim 52.
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Suzuki does not disclose determining whether a correct answer has
been input, as set forth in claim 43.
Kreisel does not teach or suggest establishing a set of senders and
determining whether a sender of an incoming message is in the set, as set
forth in claims 33, 35, 37, 40, and 49. Kreisel also does not disclose
receiving a request to respond to a video or audio conference call, as set
forth in claim 40.
Neither Kreisel nor Pennell teaches or suggests (i) determining
whether a user is capable of receiving a solicitation, as set forth in claim 41,
and (ii) determining whether a request to respond to a solicitation to join a
chat room has been received, as set forth in claim 50.
In view of the foregoing, the Examiner erred in rejecting (i) claims 39,
51, and 52 under 35 U.S.C. § 102(e), and (ii) claims 33, 35, 37, 40, 41, 43,
49, and 50 under 35 U.S.C. § 103(a).
With regard to the obviousness rejection of claims 17, 18, and 42,
Kreisel and Macko are properly combinable and Appellants have not shown
that Macko does not teach or suggest the event scheduling features of these
claims.
Gough’s email for a chess game teaches or suggests the character
related determinations set forth in claims 44 to 48.
In view of the foregoing, the Examiner did not err in rejecting claims
17, 18, 42, and 44 to 48 under 35 U.S.C. § 103(a).

ORDER
The decision of the Examiner rejecting claims 17, 18, 42, and 44 to 48
is affirmed. The decision of the Examiner rejecting claims 33, 35, 37, 39 to
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41, 43, and 49 to 52 is reversed. Accordingly, the decision of the Examiner
is affirmed-in-part.
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)(v).

AFFIRMED-IN-PART

babc

MERCHANT & GOULD (MICROSOFT)
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903