Ex Parte WEKSLER et al

Patent Trial and Appeal Board

Nov 29, 2018

14270807 (P.T.A.B. Nov. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/270,807 05/06/2014
63203 7590 12/03/2018
ROGITZ & AS SOCIA TES
4420 Hotel Circle Court
SUITE 230
SAN DIEGO, CA 92108
FIRST NAMED INVENTOR
ARNOLD S. WEKSLER
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.
RPS920130269-US-NP 6766
EXAMINER
MISHLER, ROBIN J
ART UNIT PAPER NUMBER
2628
NOTIFICATION DATE DELIVERY MODE
12/03/2018 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):
Noelle@rogitz.com
eofficeaction@appcoll.com
J ohn@rogitz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARNOLD S. WEKSLER, RUSSELL SPEIGHT V ANBLON,
JOHN CARL MESE, and NATHAN J. PETERSON
Appeal2018-004097
Application 14/270,807 1
Technology Center 2600
Before CAROLYN D. THOMAS, DAVID J. CUTITTA II,
and MICHAEL J. ENGLE, Administrative Patent Judges.
CUTITT A, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's final decision rejecting claims 1-3, 5, 7, 8, 11-14, 16, 17, 19,
and 23-29, which are all the claims pending in the application. 2 We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Lenovo Singapore PTE. Ltd. ("Appellant") is the applicant, as provided for
under 3 7 C.F .R. § 1.46, and is also identified in the Appeal Brief as the real
party in interest. See Appeal Br. 2.
2 Claims 4, 6, 9, 10, 15, 18, and 20-22 are cancelled. See Appeal Br. 15-18.
Appeal2018-004097
Application 14/270,807
STATEMENT OF THE CASE
Invention
Appellant's invention relates to altering the presentation of a virtual
keyboard presented on a display of a device based on input from a motion
sensor. See Spec. 1. 3
Exemplary Claim
Claims 1, 13, and 1 7 are independent. Claims 1, 11, and 2 7 are
exemplary and are reproduced below with limitations at issue italicized.
1. A device comprising:
at least one touch-enabled display;
at least one motion sensor;
at least one processor; and
storage accessible to the at least one processor and
comprising instructions executable by the at least one processor
to:
present, on the touch-enabled display, a keyboard in a first
configuration;
receive at least one motion signal from the motion sensor;
at least in part based on the motion signal, identify whether
motion of the device is at least as great as a threshold;
responsive to identifying that motion of the device is at
least as great as the threshold, present the keyboard in a second
configuration different from the first configuration; and
subsequent to presentation of the keyboard in the second
configuration and responsive to identifying that motion of the
device has gone below the threshold, return the keyboard to
presentation per the first configuration.
3 Throughout this Decision, we refer to the following documents:
(1) Appellant's Specification, filed May 6, 2014 ("Spec."); (2) the Final
Office Action, mailed August 2, 2017 ("Final Act."); (3) the amended
Appeal Brief, filed November 29, 2017 ("Appeal Br."); (4) the Examiner's
Answer, mailed January 22, 2018 ("Ans."); and (5) the Reply Brief, filed
March 6, 2018 ("Reply Br.").
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Application 14/270,807
11. The device of Claim 1, wherein the signal contains
information that is indicative of movement of the device at least
in a first direction of a first dimension and in a second direction
of a second dimension, and wherein the instructions are further
executable by the at least one processor to:
at least in part in response to receipt of the signal, present
the keyboard in the second configuration, wherein at least a
portion of the keyboard is presented in the second configuration
on at least one area of the touch-enabled display on which the
keyboard is not presented in the first configuration, the area
being in a display direction on the touch-enabled display relative
to the first configuration that corresponds to third and fourth
directions respectively in the first dimension and second
dimension that are respectively at least substantially opposite the
first and second directions.
27. The device of Claim 1, wherein the instructions are
executable by the at least one processor to:
present, on the touch-enabled display, a user interface
(UI) different from the keyboard, the UI comprising a selector
element that is selectable to enable the device to change
configurations of the keyboard based on signals from the motion
sensor.
Appeal Br. 14, 16, 19--20.
REFERENCES AND REJECTION
Claims 1-3, 5, 7, 8, 11-14, 16, 17, 19, and 23-29 stand rejected under
35 U.S.C. § 103 as being unpatentable over the combination ofWalline (US
2010/0241983 Al; published Sept. 23, 2010) and Lewbel (US 9,244,604 Bl;
issued Jan. 26, 2016). Final Act. 2-8.
Our review in this appeal is limited only to the above rejection and the
issues raised by Appellant. Arguments not made are waived. See Manual of
Patenting Examining Procedure§ 1205.02 (9th ed., Rev. 08.2017 (Jan.
2018)); 37 C.F.R. §§ 4I.37(c)(l)(iv) and 4I.39(a)(l).
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Application 14/270,807
CONTENTIONS AND ANALYSIS
Rejections Under § 103
Claim 11
Issue 1: Does the Examiner err in finding the combination of Walline
and Lewbel teaches or suggests
wherein at least a portion of the keyboard is presented in the
second configuration on at least one area of the touch-enabled
display on which the keyboard is not presented in the first
configuration, the area being in a display direction on the touch-
enabled display relative to the first configuration that
corresponds to third and fourth directions respectively in the
first dimension and second dimension that are respectively at
least substantially opposite the first and second directions,
as recited in claim 11?
The Examiner finds Walline teaches "having accelerometers for
detecting accelerations in one or more axes" including both "the X and Y
axis" and "wherein the end user is able to associate any predetermined
acceleration with any predetermined keyboard configuration, including
wherein the acceleration and configuration are in substantially opposite
directions" as recited in claim 11. Ans. 2-3 ( citing Walline ,r,r 21, 22,
Fig. 2).
Appellant disputes the Examiner's factual findings, arguing Walline
"discloses movement of its allegedly analogous keyboard according to a
direction of movement of Walline' s device" and not in an opposing
direction, as recited in claim 1. Appeal Br. 5---6. Appellant further argues
the Examiner "is now using an alleged teaching of a genus - an end user
adjusting keyboard configuration selections to be made by the device based
on various accelerations -to attempt to reject an alleged species of that
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Application 14/270,807
alleged genus as obvious even though the species itself is not disclosed."
Reply Br. 2.
We find Appellant's argument persuasive because we agree the
Examiner does not show that Walline specifically teaches or suggests
presenting the keyboard in an area on the touch-enabled display that is
opposite the first and second directions indicative of movement of the
device, as recited in claim 11. See Walline ,r,r 22 ( disclosing an example
embodiment configured "to slide keyboard 16 as if sliding down an incline
in the direction of the tilt") ( emphasis added), 21 ( explaining how "[ a ]n end
user may adjust keyboard configuration selections" based on "an
acceleration along an associated axis," but never mentioning a configuration
opposite the acceleration). Nor has the Examiner shown it would have been
obvious to modify the cited combination to arrive at the patented invention
recited in claim 11. See Takeda Chem. Indus., Ltd. v. Alphapharm Pty., Ltd.,
492 F.3d 1350, 1357 (Fed. Cir. 2007). We, therefore, do not sustain the
Examiner's 35 U.S.C. § 103 rejection of claim 11.
Claims 27-29
Issue 2: Does the Examiner err in finding the cited combination
teaches or suggests "present, on the touch-enabled display, a user interface
(UI) different from the keyboard, the UI comprising a selector element that
is selectable to enable the device to change configurations of the keyboard
based on signals from the motion sensor," as recited in claim 27?
The Examiner finds Walline' s description of a user interface for
keyboard manager 30 teaches the limitation at issue in claim 27. Final
Act. 8; Ans. 3--4 ( citing Walline ,r,r 21-23).
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Appellant disputes the Examiner's factual findings, arguing that
neither cited paragraph 21 nor 23 "indicate that key configurations can be
user-selectable and that settings related to them are stored in keyboard
manager 30" and that "neither paragraph discloses precisely how those key
configurations might be selected by a user and stored in the keyboard
manager 30." Appeal Br. 8-9.
Appellant's arguments fail to persuasively address the Examiner's
finding that Walline discusses a user interface at paragraph 22. See Ans. 3-
4. Specifically, the Examiner finds Walline "discloses wherein the end user
may adjust the slide responsiveness to tilting through an interface of the
keyboard manager" and "Walline also discloses ... wherein a user can lock
or unlock a keyboard into place using an interface of the keyboard
manager." Ans. 3--4 (citing Walline ,r 22). We agree with the Examiner's
findings, noting Walline discloses that "[t]he end user may lock keyboard 16
or adjust the slide responsiveness to tilting as needed during use through an
interface with keyboard manager 30." Walline ,r 22. In response, Appellant
argues "Walline itself fails to specify what form the 'interface' may take and
certainly does not specify that it is one that is presented on a display." Reply
Br. 5. We are unpersuaded. Because Walline' s interface is discussed in the
context of the "example embodiment[s]" of "FIGS. 3 through 7" depicting a
graphical user interface on a "touch screen display" (Walline ,r 22), we agree
with the Examiner's finding that Walline's interface teaches or at least
suggests a user interface "present, on the touch-enabled display," as recited
in claim 27. Also, we agree with the Examiner's finding that Walline's
interface, by allowing a user to lock keyboard 16 or adjust the slide
responsiveness (see Ans. 3), may be used to enable touch screen display 12
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"to change configurations of the keyboard based on signals from the motion
sensor," as recited in claim 27.
Next, Appellant argues W alline does not teach or suggest "a selector
element that is selectable to enable the device to change configurations of
the keyboard based on signals from the motion sensor" "because the relied-
upon portions of Walline merely disclose allowing a user to adjust which
keyboard configurations are presented based on accelerometer input, not
whether keyboard configurations might change at all based on accelerometer
input." Appeal Br. 9--10.
We are unpersuaded. Even under Appellant's claim interpretation, we
agree with the Examiner that in addition to other configuration selections,
"Walline also discloses ... the end user may lock the keyboard into place ...
using an interface." Ans. 3--4 (citing Walline ,r 22). Under Appellant's
claim interpretation, an interface to selectively lock or unlock a keyboard
teaches or suggests "a selector element that is selectable to enable the device
to change configurations of the keyboard based on signals from the motion
sensor," as claimed. See Appeal Br. 10. Accordingly, we sustain the
Examiner's 35 U.S.C. § 103 rejection of dependent claim 27, and of
dependent claims 28 and 29, which are only nominally argued separately.
See Appeal Br. 9.
Claims 1, 2, 3, 5, 7, 8, 11-14, 16, 17, 19, and 23-29
Issue 3: Does the Examiner provide a sufficient reason to combine
the teachings of Walline and Lewbel in the rejection of claim 1?
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Appellant argues the Examiner's Answer relies on new reasoning that
"constitutes a new ground of rejection." Reply Br. 6. Appellant further
argues "the examiner's newly-provided rationale should be ignored because
it has not been timely presented, [ and has] not been designated as a new
ground of rejection." Id. at 7.
We are unpersuaded by Appellant's argument that "reversal of all of
the obviousness rejections is appropriate" because "[t]he new reasoning
provided in the Answer constitutes a new ground of rejection." Reply Br. 6,
9. If Appellant believed the new reasoning in the Answer changed the basis
of the rejection so as to make a new ground of rejection, Appellant's proper
recourse would have been to petition the Director of Technology Center
2600, as stated in 37 C.F.R. § 41.40:
Any request to seek review of the primary examiner's failure to
designate a rejection as a new ground of rejection in an
examiner's answer must be by way of a petition to the Director
under § 1.181 of this title filed within two months from the
entry of the examiner's answer and before the filing of any
reply brief. Failure of appellant to timely file such a petition
will constitute a waiver of any arguments that a rejection must
be designated as a new ground of rejection.
37 C.F.R. § 41.40(a) (2012).
No such petition has been filed in this case and so Appellant waives
the argument that the Examiner's new reasoning in the Answer constitutes a
new ground of rejection.
Next, Appellant argues "it is too late now for the examiner to make up
for the insufficiencies of the formal rejections now because new rationales
constitute new grounds of rejection per In re Leithem." Reply Br. 6-7
(citing In re Leithem, 661 F.3d 1316, 1319 (Fed. Cir. 2011)).
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We disagree. In Leithem, our reviewing court remanded the case to
the Board because the Board relied upon a new ground of rejection not relied
upon by the examiner. See Leithem, 661 F.3d at 1319. Here, as discussed in
more detail below, the Board has not developed a new rationale different
from that of the Examiner, but instead only relies on the Examiner's
rationale as set forth in the Answer. Accordingly, In re Leithem is not
applicable here.
Next, Appellant argues that "simply alleging in the Answer that 'when
combined, the keyboard adjusts for both intentional user movements/motion
(Walline) and unintentional ambient movement/motion (Lewbel)' to create a
better user experience prima facie stands for nothing more than an allegation
that the two references could be combined," which does not provide a
legally sufficient motivation to combine. Reply Br. 8-9.
We are unpersuaded because Appellant fails to fully address the
Examiner's reasoning for combining the teachings of Walline and Lewbel.
Lewbel's abstract, cited by the Examiner, indicates that in Lewbel, "the area
of a control on the touch sensor may be [made] larger when operated in a
high vibration or motion environment, such as on a train, walking, and so
forth" in response to ambient motion to facilitate a user's activation of the
controls. Lewbel Abstract; see Ans. 4. Lewbel also discloses that "ambient
motion such as vibration, accelerations, and so forth may adversely affect
the user's ability to correctly enter data or commands into the device."
Lewbel 1:9-12. The Examiner's reasoning indicates that incorporating the
teachings of Lewbel creates a better user experience because Lewbel teaches
"the keyboard is easier to read and use in a high ambient motion
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environment when the size and location of the keyboard is increased."
Ans. 4.
The Examiner, therefore, has provided a reason with rational
underpinnings to combine the teachings of Walline and Lewbel. See Final
Act. 3; Ans. 4; see also In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
("[R]ejections on obviousness grounds [require] some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness") ( cited with approval in KSR Int 'l Co. v. Teleflex Inc., 550 U.S.
398,418 (2007)). Appellant fails to show why the Examiner's reasoning is
deficient. Appellant also fails to provide evidence to demonstrate the
Examiner's proffered combination would have been "uniquely challenging
or difficult for one of ordinary skill in the art." Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007).
For the reasons discussed, Appellant has not shown error in the
Examiner's factual findings or conclusion of obviousness. Accordingly, we
sustain the Examiner's 35 U.S.C. § 103 rejection of claims 1, 11, and 27-29,
and of claims 2, 3, 5, 7, 8, 12-14, 16, 17, 19, and 23-26, which are not
argued separately.
DECISION
We reverse the Examiner's decision to reject claim 11.
We affirm the Examiner's decision to reject claims 1-3, 5, 7, 8, 12-
14, 16, 17, 19, and 23-29.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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