Ex Parte Trotta et al

Patent Trial and Appeal Board

Sep 25, 2017

13036678 (P.T.A.B. Sep. 25, 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.
SONY-48300 5405
EXAMINER
FIBBI, CHRISTOPHER J
ART UNIT PAPER NUMBER
2174
MAIL DATE DELIVERY MODE
13/036,678 02/28/2011
102824 7590 09/25/2017
HAVERSTOCK & OWENS, LLP
162 N. WOLFE ROAD
SUNNYVALE, CA 94086
Nicholas Trotta
09/25/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte NICHOLAS TROTTA, GEORGE ALFRED ARRIOLA, and
VINCE NAKAYAMA
Appeal 2017-005682
Application 13/036,6781
Technology Center 2100
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
JOYCE CRAIG, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—19, which are all of the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Sony Corp. App.
Br. 2.
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Application 13/036,678
INVENTION
Appellants’ application relates to the presentation of user interface
elements and, more particularly, to methods and apparatus for presenting
graphical elements. Spec. 2. Claim 1 reads as follows:
1. A method for displaying a user interface to present a
plurality of media titles, the method comprising the acts of:
detecting a user input associated with a displayed user
interface;
determining, by a device, one or more media titles for
presentation in response to the user input, wherein media titles
are selected based on ratings generated for each media title
relative to one or more attributes associated with the user;
displaying a first graphical element based on a selected
media title, wherein the first graphical element is assigned a
first focus state and associated with a position of a spiral
formation;
displaying at least one additional graphical element based
on one or more selected media titles, wherein the at least one
additional graphical element is assigned a second focus state
and associated with a position of the spiral formation, wherein
the first focus state and the second focus state have different
colors; and
adjusting the display of the user interface, wherein a
display position of each displayed graphical element is
advanced relative to a previous display position of the spiral
formation.
REJECTIONS
Claims 1—4, 6—8, 10-16, and 18 stand rejected under pre-AIA
35 U.S.C. § 103(a) as unpatentable over the combination of Neuman et al.
(US 2010/0318928 Al, publ. Dec. 16, 2010) (“Neuman”) and De Ruyter et
al. (US 2007/0120856 Al, publ. May 31, 2007) (“De Ruyter”). Final Act. 3.
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Application 13/036,678
Claims 5, 9, and 17 stand rejected under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over the combination of Neuman, De Ruyter, and Ma et al.
(US 2011/0099519 Al, publ. Apr. 28, 2011) (“Ma”). Final Act. 11.
Claim 19 stands rejected under pre-AI A 35 U.S.C. § 103(a) as
unpatentable over the combination of Neuman, De Ruyter, Hashimoto et al.
(US 7,600,192 Bl, iss. Oct. 6, 2009) (“Hashimoto”) and Asami (US
2002/0054158 Al, publ. May 9, 2002). Final Act. 13.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions the Examiner erred. We disagree with Appellants’ contentions.
Except as noted below, we adopt as our own: (1) the findings and reasons set
forth by the Examiner in the action from which this appeal is taken and (2)
the reasons set forth by the Examiner in the Examiner’s Answer in response
to Appellants’ Appeal Brief. We concur with the findings and legal
conclusions reached by the Examiner. We highlight the following additional
points.
Rejection of Claims 1—4, 6—8, 10—16, and 18 under 35 U.S.C. § 103(a)
In rejecting claim 1, the Examiner found Neuman teaches all of the
limitations recited in claim 1, except “wherein the first focus state and the
second focus state have different colors.” Final Act. 3—5. The Examiner
relied on De Ruyter for that limitation. Id. at 5—6. The Examiner also found
Neuman’s teaching of Apple’s GENIUS program inherently teaches “the use
of genre, rating and play count regarding media from the user's own media
library.” Ans. 2—3; Final Act. 17.
Appellants first contend the Examiner erred in rejecting claim 1
because Neuman does not teach the limitation “wherein media titles are
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selected based on ratings generated for each media title relative to one or
more attributes associated with the user’'' recited in claim 1. App. Br. 6. In
support of their contention, Appellants describe various teachings of
Neuman. Id. at 6—7.
Appellants’ arguments do not persuade us of Examiner error.
Appellants’ arguments are conclusory, merely reciting the claim limitation,
the disclosures of Neuman, and asserting that the two are not the same. Id.
Appellants have not persuasively explained why the quoted portions of
Neuman set forth on pages 6—7 of the Appeal Brief show that the disputed
limitation would not have been obvious to an artisan of ordinary skill. We
afford such conclusory attorney argument little weight. In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997); see also Enzo Biochem, Inc. v. Gen-
Probe, Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) (“Attorney argument is no
substitute for evidence.”).
Moreover, our reviewing court has long “recognized that inherency
may supply a missing claim limitation in an obviousness analysis.” PAR
Pharm., Inc. v TWIPharms., Inc., 773 F.3d 1186, 1194—95 (Fed. Cir. 2014).
On this record, Appellants have not persuaded us that the evidence cited by
the Examiner (Ans. 2-4) does not show “the natural result flowing from the
operation as taught would result in the performance of the questioned
function,” which is the test for inherency under 35 U.S.C. § 103. PAR
Pharm., 773 F.3d at 1194—95.
Appellants next contend neither Neuman nor De Ruyter teaches the
limitations “wherein the first graphical element is assigned a first focus state
and associated with a position of a spiral formation,” “wherein the at least
one additional graphical element is assigned a second focus state and
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associated with a position of the spiral formation,” and “wherein the first
focus state and the second focus state have different colors,” as recited in
claim 1. App. Br. 7. Appellants acknowledge De Ruyter teaches two sets of
N colored squares, but argue that De Ruyter does not teach that the colors
are different. Id.
We are not persuaded of Examiner error regarding the disputed
limitations. The Examiner concluded Appellants’ Specification defines
“focus state” as “one or more of shape, size and transparency.” Ans. 5
(citing Spec. 117). The Examiner found Neuman’s graphical element is
assigned a “first focus state,” and Neuman’s active digital file, graphically
distinguished as the largest size on a GUI, teaches or at least suggests a
“second focus state.” Ans. 5 (citing Neuman || 14, 50). The Examiner
further found De Ruyter’s color coding teaches the first and second focus
states have different colors. Ans. 6 (citing De Ruyter || 6, 35, 86).
Appellants have not persuaded us that the Examiner’s interpretation of
the limitations “wherein the first graphical element is assigned a first focus
state and associated with a position of a spiral formation . . . wherein the at
least one additional graphical element is assigned a second focus state and
associated with a position of the spiral formation, wherein the first focus
state and the second focus state have different colors” is overly broad,
unreasonable, or inconsistent with the Specification.2 We agree with the
Examiner's broad, but reasonable, claim interpretation, which supports the
2 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 and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted). We further note Appellants have not filed a
Reply Brief to rebut the Examiner's additional findings and clarifications in
the Answer. Arguments not made are waived. 37 C.F.R. § 41.37(c)(l)(iv).
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Examiner’s finding that Neumann’s icons of differing sizes teaches the first
and second focus states. See Neumann, || 8, 14, 50, 55. We also agree with
the Examiner because De Ruyter’s color coding teaches or at least suggests
“having different colors.” See De Ruyter, || 6, 35, 86.
For these reasons, we are not persuaded the Examiner erred in finding
the combination of Neuman and De Ruyter teaches or suggests the disputed
limitations of claim 1.
Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of
representative independent claim 1, as well as the Examiner's rejection of
grouped claims 2-4, 6—8, 10-16 and 18, for which Appellants make no
additional arguments. App. Br. 9—11. See 37 C.F.R. § 41.37(c)(l)(iv).
Rejection of Claims 5, 9, and 17 under 35 U.S.C. § 103(a)
Because Appellants present no separate, substantive arguments
directed to the obviousness rejection of claims 5, 9, and 17 under 35 U.S.C.
§ 103(a) (App. Br. 11—12), we sustain the Examiner’s rejection of these
claims.
Rejection of Claim 19 under 35 U.S.C. § 103(a)
Regarding claim 19, Appellants repeat the arguments made for
claim 1 and further contend Hashimoto does not teach ratings generated for
each media title relative to one or more attributes associated with the user, or
wherein adjusting the display of the user interface includes transitioning
graphical elements in the spiral formation to a detailed view. App. Br.
12—14. Appellants further argue Asami does not teach transitioning
graphical elements in the spiral formation to a detailed view. Id. at
14—15.
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We are not persuaded by Appellants’ arguments because Appellants
argue the references separately, even though the Examiner relied on the
combination of Neuman, De Ruyter, Hashimoto, and Asami for teaching or
suggesting the disputed steps. Final Act. 13—16, Ans. 7—9; In re Mouttet,
686 F.3d 1322, 1332 (Fed. Cir. 2012) (citing In re Keller, 642 F.2d 413, 425
(CCPA 1981) (“[T]he test for obviousness is what the combined teachings of
the references would have suggested to those having ordinary skill in the
art.”).
Here, the Examiner cited Asami for teaching adjusting the display of
the user interface includes transitioning graphical elements in the spiral
formation to a detailed view. Ans. 8—9. We agree with the Examiner’s
finding that Asami’s Figures 27—31 teach provision of the display window
while the object is part of the spiral interface, which teaches or suggests the
disputed limitation. Id. (citing Asami, Figs. 27—31, 207, 209).
Because Appellants do not persuasively rebut the Examiner’s findings
regarding the disputed limitations of claim 19 in a Reply Brief, on this
record, we are not persuaded of Examiner error. Accordingly, we sustain the
35 U.S.C. § 103(a) rejection of independent claim 19.
DECISION
We affirm the Examiner's decision rejecting claims 1—19.
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). See C.F.R.
§ 41.50(f).
AFFIRMED
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