Ex Parte Racha et al

Patent Trial and Appeal Board

Mar 31, 2017

14489941 (P.T.A.B. Mar. 31, 2017)

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.
14/489,941 09/18/2014 Srini Racha 83474805 7737
28395 7590 04/04/2017
RROOKS KTTSHMAN P C /FfTET EXAMINER
1000 TOWN CENTER LEE, SIU M
22ND FLOOR
SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER
2632
NOTIFICATION DATE DELIVERY MODE
04/04/2017 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 @brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SRINI RACHA and DAVID MARVIN GERSABECK
Appeal 2016-007457
Application 14/489,941
Technology Center 2600
Before BRADLEY W. BAUMEISTER, MICHAEL J. STRAUSS, and
JAMES W. DEJMEK, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-007457
Application 14/489,941
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—20, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The claims are directed to selective mobile application lockout based
on determining speed and interface-usage thresholds are exceeded. Spec.,
Title, claim 1. Claim 1, reproduced below with an argued limitation
emphasized in italics, is representative of the claimed subject matter:
1. A system comprising:
a processor, in communication with a mobile device
interface, configured to:
receive a mobile device speed;
determine if the mobile device speed is above a
predetermined threshold;
determine if an interface-usage threshold of the interface
has been exceeded', and
lock out a foreground application from use if the mobile
device speed is above the predetermined threshold and the
interface-usage threshold has been exceeded.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Langberg et al. US 5,852,630 Dec. 22, 1998
(“Langberg”)
Schlesener et al. US 2010/0113073 Al May 6, 2010
(Schlesener”)
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Application 14/489,941
REJECTIONS
The Examiner made the following rejections:
Claims 1—15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schlesener. Final Act. 4—9.
Claims 16—20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schlesener and Langberg. Final Act. 10-13.
APPELLANTS’ CONTENTION
According to Appellants, Schlesener locks out texting capabilities
based on detecting poor typing proficiency and, although arguably teaching
an “interface-related-usage,” fails to teach or suggest “interface-usage” or
the “related interface-usage” threshold, as recited by claim 1. App. Br. 5—6.
ISSUE ON APPEAL
Whether the Examiner erred in interpreting the disputed phrase
“interface usage threshold” to include Schlesener’s threshold of number of
uses of a backspace function and frequency of using the backspace function.
CONTENTIONS AND ANALYSIS
Appellants’ arguments are unpersuasive. We adopt as our own (1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken (Final Act. 2—13) and (2) the reasons set forth by the
Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief
(Ans. 2—5) and concur with the conclusions reached by the Examiner. We
highlight the following points for emphasis.
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Application 14/489,941
Appellants argue the Examiner’s interpretation of the phrase
“interface usage threshold” is overly broad.1 App. Br. 5—6. Appellants note
the steps of Schlesener relied upon by the Examiner for teaching the
disputed interface usage threshold are based on a determination of poor
typing ability indicated by excessive misspellings or backspacing. App.
Br. 6. “[Appellants] point[] out, however, that the basis in Schlesener for
preventing interface usage is that a user is a poor typist, not the interface-
usage exceeding a threshold.” Id. Appellants argue, because “[t]he claims
base lockout on over-use of interface” rather than typing skills as per
Schlesener, the methods produce different results. Id. For example,
according to Appellants, a fast, accurate typist would not be locked-out by
Schlesener’s method, but would be by that of Appellants. Id. Furthermore,
a slow, unskilled typist making numerous spelling mistakes would be
locked-out by Schlesener, but not necessarily by the claimed method. Id.
The Examiner responds, although the Specification provides non­
limiting examples, it does not set forth a “clear definition of the [disputed
phrase] ‘interface-usage threshold.’” Ans. 4. Those non-limiting examples
include use of the keyboard or keypad, tapping a screen, or otherwise
providing input that is measured and found to be excessive over a predefined
period of time. Ans. 3 (paraphrasing Spec. 142).
Therefore, the [E]xaminer takes a broadest reasonable
interpretation of the threshold of the metrics (threshold of
number of uses of a backspace function and frequency of using
1 Appellants indicate a willingness to amend the claims and include
proposed claim language toward furthering prosecution. App. Br. 6.
Because the proposed language has not been entered, any issue of whether
such language would distinguish over the art of record is not before us, and
we decline the invitation to issue an advisory opinion addressing the
proposed language.
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Appeal 2016-007457
Application 14/489,941
the backspace function) as the claimed interface-usage threshold
of the interface, and when the number of usage of the backspace
is over a threshold and determine that the current typing
proficiency is substandard and disable manual entry and
transmission of outgoing text messages [as disclosed by
Schlesener]; thus [satisfying] the claimed limitation.
Ans. 4—5.
Appellants reply, arguing Schlesener’s consideration of a backspace
usage threshold or a correction incidence threshold is in connection with
identifying poor typing, but “[t]he number of times a user simply uses the
interface, for any reason (as claimed), is not what Schlesener considers.”
Reply Br. 3.
We are not persuaded of error because Appellants provide insufficient
evidence or reasoned argument rebutting the Examiner’s interpretation of the
phrase interface-usage threshold, as recited by claim 1. During examination
of a patent application, pending claims are given their broadest reasonable
construction consistent with the specification. In re Am. Acad, of Sci. Tech.
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re Prater, 415 F.2d 1393,
1404—05 (CCPA 1969). Because “applicants may amend claims to narrow
their scope, a broad construction during prosecution creates no unfairness to
the applicant or patentee.” In re ICON Health & Fitness, Inc., 496 F.3d
1374, 1379 (Fed. Cir. 2007) (citing Am. Acad., 367 F.3d at 1364).
Specifically, Appellants fail to provide sufficient evidence or reasoned
argument that the Examiner’s interpretation is either inconsistent with the
Specification or otherwise unduly broad to persuade us Schlesener’s number
of uses of a backspace function and frequency of using the backspace
function is not included in, or does not teach or suggest the disputed
interface-usage threshold. Furthermore, Appellants’ argument concerning
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Application 14/489,941
potential differences in the results produced by embodiments of the claimed
invention versus Schlesener’s method are unpersuasive because Appellants
have not identified any differences in the respective underlying methods that
are reflected in the claims themselves. See In re Self, 671 F.2d 1344, 1348
(CCPA 1982) (limitations not appearing in the claims cannot be relied upon
for patentability).
Our reviewing court guides it is irrelevant that the prior art and the
present invention may have different purposes. See Nat 7 Steel Car, Ltd. v.
Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1339 (Fed. Cir. 2004) (“A finding
that two inventions were designed to resolve different problems ... is
insufficient to demonstrate that one invention teaches away from another.”).
That is, it is sufficient that references suggest doing what Appellants did,
although the Appellants’ particular purpose was different from that of the
references. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (citing In re
Gershon, 372 F.2d 535, 538—39 (CCPA 1967)). “Obviousness is not to be
determined on the basis of purpose alone.” In re Graf, 343 F.2d 774, 111
(CCPA 1965). “Common sense teaches . . . that familiar items may have
obvious uses beyond their primary purposes, and in many cases a person of
ordinary skill will be able to fit the teachings of multiple patents together
like pieces of a puzzle.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 420
(2007); see also id. at 421 (“A person of ordinary skill is also a person of
ordinary creativity, not an automaton.”).
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the rejections of independent claim 1 and, for
the same reasons, independent claims 11 and 16 under 35 U.S.C. § 103(a)
over Schlesener together with the rejections of dependent claims 2—10, 12—
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Application 14/489,941
15, and 17—20 under 35 U.S.C. § 103(a), which depend therefrom and which
were not argued separately with particularity.
CONCLUSION
The Examiner did not err in interpreting the disputed phrase “interface
usage threshold” to include Schlesener’s threshold of number of uses of a
backspace function and frequency of using the backspace function.
DECISION
We affirm the Examiner’s decision to reject claims 1—20.
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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