Andrew Wilson

Patent Trials and Appeals Board

Apr 2, 2021

2019005988 (P.T.A.B. Apr. 2, 2021)

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.
12/732,190 03/26/2010 Andrew David Wilson 14917.3277US01/328888USNP 2629
27488 7590 04/02/2021
MERCHANT & GOULD (MICROSOFT)
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
EXAMINER
RIFKIN, BEN M
ART UNIT PAPER NUMBER
2198
NOTIFICATION DATE DELIVERY MODE
04/02/2021 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):
USPTO27488@merchantgould.com
usdocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW DAVID WILSON
Appeal 2019-005988
Application 12/732,190
Technology Center 2100
Before JASON V. MORGAN, MICHAEL J. ENGLE, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 7–10, 20, 21, and 24–35. Claims
3–6, 11–19, 22, and 23 are cancelled. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm in part.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as
Microsoft Technology Licensing, LLC of Redmond, Washington. Appeal
Br. 3.
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CLAIMED SUBJECT MATTER
Appellant’s Specification describes the invention as follows:
According to one aspect presented herein, a multi-factor
probabilistic model is utilized to evaluate user input to determine
if the user input is intended for an on-screen user interface
control. In particular, when user input is received, the probability
that the user input was intended for each on-screen user interface
control is computed. The user input is then associated with the
user interface control that has the highest computed probability.
Spec. ¶ 6.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A computer-implemented method for evaluating a touch
input to control a user interface control, the method comprising:
displaying, by a computing device, one or more user
interface controls each defined by respective boundaries;
receiving, at the computing device, the touch input,
wherein the received touch input is not received within the
respective boundaries of any of the one or more user interface
controls;
for each of the one or more user interface controls,
computing, by the computing device, a probability that the
received touch input was intended to be received by that user
interface control, wherein the probability is computed based on
a comparison of one or more characteristics associated with the
received touch input to one or more corresponding characteristics
associated with an expected touch input to the user interface
control; and
providing, at the computing device, a notification that the
received touch input is a selection of the user interface control
having a highest computed probability.
Appeal Br. 24 (Claims Appendix).
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REFERENCES2
The prior art relied upon by the Examiner is:
Name Reference Date
Bartulis US 4,332,464 June 1, 1982
Hullender US 2003/0156145 A1 Aug. 21, 2003
Sokolsky US 2003/0193481 A1 Oct. 16, 2003
Wilson US 2003/0193572 A1 Oct. 16, 2003
Pohjola US 2009/0006958 A1 Jan. 1, 2009
Louch US 2009/0100384 A1 Apr. 16, 2009
Daverman US 2010/0053116 A1 Mar. 4, 2010
Rubine, The Automatic Recognition of Gestures, Doctoral Dissertation –
Carnegie Mellon University (Dec. 1991)
REJECTIONS
Claims 1, 2, 9, 10, 21, and 27 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Louch, Pohjola, and Daverman. Final
Act. 3.
Claim 7 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Louch, Pohjola, Daverman, and Rubine. Final Act. 7.
Claim 8 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Louch, Pohjola, Daverman, and Wilson. Final Act. 8.
Claims 20 and 25 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Louch and Daverman. Final Act. 10.
Claim 24 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Louch, Daverman, and Pohjola. Final Act. 12.
Claim 26 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Louch, Daverman, and Hullender. Final Act. 13.

2 All citations herein to the references are by reference to the first named
inventor/author only.
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Claims 28 and 29 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Louch, Pohjola, Daverman, and Hullender. Final
Act. 14.
Claims 30 and 33 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Louch, Bartulis, and Daverman. Final Act. 16.
Claim 31 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Louch, Bartulis, Daverman, and Wilson. Final Act. 19.
Claim 32 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Louch, Bartulis, Daverman, and Pohjola. Final Act. 21.
Claims 34 and 35 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Louch, Bartulis, Daverman, and Sokolsky. Final
Act. 22.
ISSUES
First Issue: Has the Examiner erred in finding Louch and Pohjola
teach or suggest the “computing . . . a probability” limitation of claim 1?
Second Issue: Has the Examiner erred in finding the cited references
teach or suggest the “providing . . . a notification” limitation of claim 1?
Third Issue: Has the Examiner erred in finding Louch teaches or
suggests “the received touch input comprises a motion gesture and the
probability that the motion gesture was intended for the user interface
control is computed over time,” as recited in claim 9?
Fourth Issue: Has the Examiner erred in finding Pohjola teaches or
suggests the disputed limitations of claim 10?
Fifth Issue: Has the Examiner erred in finding Louch teaches the
“computing . . . a probability” limitation of claim 20?
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Sixth Issue: Has the Examiner erred in finding Louch and Pohjola
teach or suggest “the comparison of the one or more characteristics
comprises a comparison of a motion of the received touch input to a motion
of the expected touch input,” as recited in claim 27?
Seventh Issue: Has the Examiner erred in finding Louch and
Hullender teach or suggest “the comparison of the one or more
characteristics comprises a comparison of a shape of the received touch
input to a shape of the expected touch input,” as recited in claim 28?
Eighth Issue: Has the Examiner erred in finding Louch and Hullender
teach or suggest “wherein the comparison of the one or more characteristics
comprises a comparison of a size of the received touch input to a size of the
expected touch input,” as recited in claim 29?
Ninth Issue: Has the Examiner erred in finding Louch, Bartulis, and
Daverman teach or suggest the “based on a comparison of one or more
characteristics, . . . , the one or more characteristics comprising a type of
user input and at least one of a shape, a size, or a more” limitation of
claim 30?
Tenth Issue: Has the Examiner engaged in impermissible hindsight in
combining the references?
ANALYSIS
First Issue
Appellant’s claim 1 recites the following limitation:
computing, by the computing device, a probability that the
received touch input was intended to be received by that user
interface control, wherein the probability is computed based on
a comparison of one or more characteristics associated with the
received touch input to one or more corresponding characteristics
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associated with an expected touch input to the user interface
control.
Appeal Br. 24 (Claims Appendix). The Examiner concludes this limitation
is obvious over the combined teachings of Louch and Pohjola. Final Act. 3–
4 (citing Louch ¶ 57; Pohjola ¶ 37). In reaching this conclusion, the
Examiner determines that Pohjola’s description of evaluating touch events
and identifying candidate links for selection as the most likely intended
target teaches the first part of the limitation—computing a probability that
the received touch input was intended to be received by that user interface
control. Final Act. 4. The Examiner further determines that the first part of
the limitation is also taught by Louch’s description of using detected motion
and mistaken inputs to ascertain what the intended input was, and then
changing the input based on that determination. Final Act. 3–4. The
Examiner further determines that the second part of the limitation—wherein
the probability is computed based on a comparison of one or more
characteristics associated with the received input to one or more
corresponding characteristics associated with an expected touch input to the
user interface control—is taught by Louch because Louch’s system
determines the user’s intended input by comparing the actual input to what
the user intended to select. Final Act. 3.
Appellant argues the Examiner has erred because Louch “relates to
adjusting a graphical user interface based on physical motion of the
electronic device,” (Appeal Br. 8) and “describes the device learning
particular characteristics of the motion of the device and the user’s
interactions with the device in light of the device’s motion” (Appeal Br. 9)
(emphasis omitted). Appellant further argues:
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[L]earning the particular characteristics of the motion of a device
and the user’s interactions to predict where a user may touch the
display, and adjusting the graphical user interface based on the
prediction does not teach or suggest computing a probability that
the received touch input was intended to be received by that user
interface control.
Appeal Br. 9 (emphasis omitted).
Appellant also disputes the Examiner’s findings relating to Pohjola.
Specifically, Appellant argues that “Pohjola is directed at modifying a
graphical user interface or presenting a new GUI based on a missed touch
event.” Appeal Br. 10. According to Appellant, however, “considering
every link within a threshold distance does not teach or suggest computing a
probability that the received touch input was intended to be received by that
user interface.” Appeal Br. 10 (emphasis omitted).
We are not persuaded of error. Pohjola teaches that when a touch
event occurs on a touchscreen, an event detector may be configured to
determine the nature of the touch event. Pohjola ¶ 35. Pohjola teaches that
a candidate selection element “may be configured to determine candidate
links (or objects) in response to the type of event.” Pohjola ¶ 36. Pohjola
explains that “due to the ambiguity associated with determining a target of a
touch event that is initiated with a finger, embodiments of the present
invention may intelligently select candidate links that could be potential
targets of the touch event.” Pohjola ¶ 36. Pohjola further teaches the
selected candidate links are evaluated to determine the likelihood that the
user intended to select each one of the candidate links. Pohjola ¶ 38 (“links
having higher probability being, for example, higher on a list or otherwise
more prominently displayed then links with lower probability”). We agree
with the Examiner that this description teaches “computing, by the
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computing device, a probability that the received touch input was intended
to be received by that user interface control.”
Pohjola further teaches that the computed probability may be based on
various aspects of the received touch input. For example, Pohjola teaches
that the “candidate links closer to the location of the touch event may be
considered to have a higher probability of being an intended target than
candidate links farther from the location of the touch event.” Pohjola ¶ 38.
We agree with the Examiner that this teaching is sufficient to render obvious
the second portion of the limitation—“wherein the probability is computed
based on a comparison of one or more characteristics associated with the
received touch input to one or more corresponding characteristics associated
with an expected touch input to the user interface control”—because the
location of a touch event is a “characteristic associated with the received
touch input” and is compared to the location of a candidate link.
Second Issue
Claim 1 also recites the limitation “providing, at the computing
device, a notification that the received touch input is a selection of the user
interface control having a highest computed probability.” Appeal Br. 24
(Claims Appendix). In rejecting claim 1, the Examiner finds Louch and
Pohjola do not explicitly teach this limitation, and instead the Examiner
relies on Daverman. Final Act. 4 (citing Daverman ¶ 28). Specifically, the
Examiner finds that Daverman teaches an environment in which the system
determines the intended target and initiates the input based on the intended
target. Final Act. 4.
Appellant contends the Examiner erred in several respects. First,
Appellant argues that the Examiner failed to identify Daverman in the
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statement of rejection (i.e., in the rejection heading), and therefore the
Examiner’s use of Daverman in the rejection is improper. Appeal Br. 10.
Second, Appellant argues Daverman does not teach the limitation because
Daverman’s touch input is not received in a selection of a user interface
control. Appeal Br. 10–11. Third, Appellant argues Daverman is deficient
because the notification received touch input is not a selection of a user
interface control having the highest probability. Appeal Br. 11.
We are not persuaded of error. We are not persuaded that the
Examiner’s failure to specifically list Daverman in the statement of rejection
renders the rejection improper. The heading of the rejection is just that—a
heading. The substance of the rejection makes clear that Daverman was
relied upon to reject the claim, and Appellant does not show any confusion
in that regard nor show that Appellant was prejudiced by the omission in the
heading. We also do not find Appellant’s second and third arguments
persuasive because the Examiner does not rely on Daverman for the recited
“user interface control.” The Examiner relies on Daverman only to show
that it was known to determine an intended target for a user input and to
notify the system accordingly in order to allow the intended target to be
acted upon. As we do not find error in the rejection of claim 1, we sustain
its rejection.
Third Issue
Claim 9 depends from claim 1 and recites “the received touch input
comprises a motion gesture and the probability that the motion gesture was
intended for the user interface control is computed over time.” In rejecting
claim 9, the Examiner finds that Louch (¶¶ 57–58) teaches this limitation
because it describes the system “predicting what the user intended, and
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selecting that.” Final Act. 6 (emphasis omitted). The Examiner finds that
Louch teaches the recited “computer over time” because “[the prediction of
user intent] happens in the real world, it is clearly computed over time.”
Final Act. 6 (emphasis omitted).
Appellant contends the Examiner’s reliance on Louch is misplaced
because Louch describes detecting motion of the device itself, but does not
provide any description that an input touch input is a motion gesture.
Appeal Br. 13. Appellant further argues that the temporal element of the
claim—that the probability “is computed over time”—is also absent from
Louch. Appeal Br. 13. We agree.
As argued by Appellant, there is a temporal element recited in the
claim. This element provides that the probability is “computed over time.”
The Examiner broadly construes this limitation to simply require that the
computation of the probability occurs in the real world and nothing more.
This interpretation is unreasonably broad, as it encompasses any
computation of a probability that could possibly exist. The fact that
Appellant added this limitation to the claim suggests that its meaning is
intended to be something more than any computation. The Specification
describes that certain user input, such as gestures, vary with time. As such,
these inputs “can be evaluated over the duration of the user input to
determine the intended UI control.” Spec. ¶ 22 (reference numerals
omitted). The Examiner identifies nothing in Louch that indicates that the
probability that the motion gesture was intended for the user interface
control was computed against an input that occurs over a period of time. As
such, we are persuaded of error, and we do not sustain the rejection of
claim 9.
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Fourth Issue
Claim 10 depends from claim 1 and recites:
determining . . . whether a plurality of user interface controls
each have a high computed probability; and
in response to determining that at least two of the plurality of user
interface controls have a high computed probability, providing,
by the computing device, a second user interface through which
a user can specify which of the at least two of the plurality of user
interface controls the received touch input was intended.
Appeal Br. 25 (Claims Appendix).
The Examiner finds the limitations of claim 10 taught by Pohjola
because Pohjola describes providing potential candidate links for selection
by the user based on their respective probabilities. Final Act. 6 (citing
Pohjola ¶ 38).
Appellant argues that Pohjola’s touch event is computed with respect
to candidate links, but that Pohjola does not “teach or suggest computing a
probability for a user interface control, or determining that at least two user
interface controls have a high computed probability.” Appeal Br. 14
(emphasis omitted). We disagree.
Pohjola describes that multiple candidate links may be determined
based on their proximity to the location of the received touch input. Pohjola
¶ 37. Pohjola teaches that once multiple candidate links are identified, they
may be presented in a “modified or alternative user interface” such that “link
. . . reordering may be performed on the basis of a probability order with
links having higher probability being, for example, higher on a list or
otherwise more prominently displayed that links with lower probability.”
Pohjola ¶ 38. We agree with the Examiner that the candidate links are
analogous to the recited “user interface control” and that Pohjola’s
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description of ordering multiple links by probability and displaying higher
probability links more prominently teaches “determining that at least two
user interface controls have a high computed probability.” Appellant seems
to suggest that candidate links are not “user interface controls”; but that
suggestion is not supported by the Specification which states that it should
be appreciated that “UI controls 106 are elements of a graphical user
interface that display information to a user and/or that receive input from a
user.” Spec. ¶ 18. Pohjola’s candidate links are encompassed by this broad
definition. As such, we do not find either of the alleged differences
identified by Appellant to be persuasive of Examiner error, and we sustain
the rejection of claim 10.
Fifth Issue
The Examiner rejects independent claim 20 as obvious over Louch
and Daverman. Final Act. 10–11. The Examiner finds that Louch teaches
each of the elements of claim 20 except for “the received user input is a
selection of the at least one of the plurality of user interface controls.” Final
Act. 11. The Examiner cites Daverman as teaching this limitation. Final
Act. 11.
Appellant argues the rejection is in error for the same reasons as
argued with respect to claim 1—that Louch fails to teach or suggest
“computing a probability” as recited claim 20. Appeal Br. 15. Appellant
also relies on the claim 1 argument that Daverman fails to teach “generating
a notification.” Appeal Br. 15–16.
We are not persuaded of error for the same reasons as discussed above
in connection with claim 1. Accordingly, we sustain the rejection of
claim 20. Appellant groups dependent claim 25 together with independent
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claim 20. As such, our decision with claim 20 is outcome determinative as
to claim 25, and we also sustain the rejection of claim 25.
Sixth Issue
Claim 27 depends from claim 1 and recites the limitation “the
comparison of the one or more characteristics comprises a comparison of a
motion of the received touch input to a motion of the expected touch input.”
Appeal Br. 26 (Claims Appendix). The Examiner finds this limitation is
taught by Louch’s description of “learning from the user mistakes which
includes taking in their actual inputs and comparing it to what they actually
intended to select.” Final Act. 7 (emphasis omitted). The Examiner finds
that the “comparison of a motion” is taught by Louch because “[a]s this is a
touch system, this clearly includes the touching motion.” Final Act. 7
(emphasis omitted).
Appellant argues the Examiner has erred because the motion
described in Louch is “the motion of the device and the user’s interactions
with the device in light of the device’s motion.” Appeal Br. 16 (emphasis
omitted). Appellant further argues “[a]dditionally, Louch does not disclose
or suggest comparing a motion of a received touch input to a motion of an
expected touch input.” Appeal Br. 16 (emphasis omitted).
We are persuaded of error. Appellant’s first argument is, in
substance, the same argument we rejected in connection with claim 1. As
such, we do not find this argument persuasive. Appellant’s second
argument—that Louch does not consider motion of a received touch input—
is persuasive. The Examiner finds that the motion required for any touch
input is within the scope of “a motion of the received touch input.” Ans. 13
(“Furthermore, touch gestures clearly include motion as touching something
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requires motion.”). In the context of Appellant’s Specification, it is clear
that “motion of an expected touch input” is not simply the act of touching.
Rather, the “motion of an expected touch input” is described exclusively in
connection with the motion that is typically associated with controlling a
particular user interface element—the motion that occurs while touching the
screen. Spec. ¶ 7 (“the probability that the motion, or path, of the user input
is consistent with motion typically utilized to control the user interface
control”). We discern no teaching in Louch that takes into account the
motion that occurs while the user is touching the input screen. Thus, the
Examiner’s finding is based on an unreasonably broad interpretation of
“motion of an expected touch input.” As such, we are persuaded the
Examiner erred in rejecting claim 27, and we do not sustain its rejection.
Seventh Issue
Claim 28, which depends from claim 1, recites “the comparison of the
one or more characteristics comprises a comparison of a shape of the
received touch input to a shape of the expected touch input.” Appeal Br. 26
(Claims Appendix). The Examiner rejects claim 28 as obvious over Louch,
Pohjola, Daverman, and Hullender. Final Act. 14–15. Specifically, the
Examiner finds that Louch teaches the comparison of claim 28, except that it
does not teach comparison of a shape. Final Act. 15 (citing Louch ¶ 57).
The Examiner cites Hullender’s description of using the size and shape of
gestures in controlling a user interface as remedying Louch’s deficiency.
Final Act. 15 (citing Hullender ¶ 44). The Examiner concludes:
At the time of invention it would have been obvious to one
skilled in the art of touch screens to combine the work of Louch
and Hullender in order to allow the system to include shape and
size of input for consideration.
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The motivation for doing so would be to allow gestures to “have
varying impact or extent on what they are modifying”
(Hullender, Pg.4, paragraph 0056) or in the case of Louch, allow
the system to include the size and shape of the touch screen
interaction when predicting what is being requested by the user.
Therefore at the time of invention it would have been obvious to
one skilled in the art of touch screens to combine the work of
Louch and Hullender in order to allow the system to include
shape and size of input for consideration.
Final Act. 15.
Appellant argues that the rejection is in error because “the fact that a
gesture can have a size and a shape does not teach or suggest using the size
and/or the shape in a comparison of a received touch input to an expected
touch input.” Appeal Br. 18. We agree with Appellant.
We agree with the Examiner that Hullender provides a general
description of using the size and shape of gestures and controlling a user
interface. We disagree with the Examiner, however, that the mere fact that
size and shape gestures were known in the prior art would have made it
obvious to make them the basis of the recited “comparison . . . of the
received touch input.” Nothing in Hullender suggests that any comparison
of its size and shape input gestures could be made against expected input
gestures. Nor does Louch contemplate that the comparison could include
anything more than the location and/or target selection of the touch input.
Louch’s system looks to the location of the received touch input vis-à-vis the
location of the intended touch input in the context of motion of the device,
and then adjusts the interface accordingly. Louch ¶ 47. In short, the
Examiner has not provided sufficient reasoning to explain why a person of
ordinary skill in the art, possessing the teachings of Louch and Hullender,
would have extended Louch to additionally consider the shape of the input
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in ascertaining user intent. As such, we are persuaded the Examiner has
erred in rejecting claim 28, and we do not sustain its rejection.
Eighth Issue
Claim 29 depends from claim 1, and recites “wherein the comparison
of the one or more characteristics comprises a comparison of a size of the
received touch input to a size of the expected touch input.” Appeal Br. 27
(Claims Appendix). The Examiner rejects claim 29 as obvious over the
combined teachings of Louch, Pohjola, Daverman, and Hullender. Final
Act. 15. More specifically, the Examiner finds that Louch teaches all of
claim 29 except for a “comparison of a size,” and relies on Hullender’s
description of gesture size and shape for controlling a user interface as
remedying Louch’s deficiency. Final Act. 15 (citing Hullender ¶ 44).
Appellant argues that the rejection is in error for the same reasons as
discussed with respect to claim 28 above—namely, that “the fact that a
gesture can have a size and a shape does not teach or suggest using the size
and/or the shape in a comparison of a received touch input to an expected
touch input.” Appeal Br. 19. We agree with Appellant.
We agree with the Examiner that Hullender provides a general
description of using the size and shape of gestures and controlling a user
interface. We disagree with the Examiner, however, that the mere fact that
size and shape gestures were known in the prior art would have made it
obvious to make them the basis of the recited “comparison . . . of the
received touch input.” Nothing in Hullender suggests that any comparison
of its size and shape input gestures could be made against expected input
gestures. Nor does Louch contemplate that the comparison could include
anything more than the location and/or target selection of the touch input.
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As we discussed above, Louch’s system looks to the location of the received
touch input vis-à-vis the location of the intended touch input in the context
of motion of the device, and then adjusts the interface accordingly. Louch
¶ 47.
In short, the Examiner has not shown that the references teach or
otherwise suggest using a comparison of the size of a touch input to the size
of an expected input as a basis for ascertaining user intent. Nor has the
Examiner provided sufficient reasoning to explain why a person of ordinary
skill in the art, possessing the teachings of Louch and Hullender, would have
extended Louch to additionally consider the size of the input in ascertaining
user intent. As such, we are persuaded the Examiner has erred in rejecting
claim 29, and we do not sustain its rejection.
Ninth Issue
Claim 30 is independent, and recites:
A method, comprising:
displaying, by a computing device, one or more user
interface controls each defined by bounding coordinates;
receiving, at the computing device, a user input that is not
within the bounding coordinates of any of the one or more user
interface controls;
computing, by the computing device, a probability that the
received user input was intended for the user interface control
based on a comparison of one or more characteristics associated
with the received user input to one or more corresponding
characteristics associated with an expected user input for the user
interface control, the one or more characteristics comprising a
type of user input and at least one of a shape, a size, or a motion
of the expected user input; and
providing, at the computing device, a notification that the
received user input is a selection of the user interface control that
is associated with a highest computed probability.
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Appeal Br. 27 (Claims Appendix).
The Examiner rejects claim 30 as obvious over Louch, Bartulis, and
Daverman. Final Act. 17–19. The Examiner relies primarily on Louch
(citing Louch ¶¶ 57–58), finding that it teaches all of the limitations except
for the selection of “interface controls,” and the use of “bounding
coordinates” in connection with those interface controls. The Examiner
turns to Daverman for the selection of user interface controls (citing
Daverman ¶ 28) and Bartulis for “bounding coordinates” (Bartulis col. 6,
ll. 5–23). Final Act. 19.
Appellant challenges the Examiner’s findings with respect to Louch.
In large part, Appellant’s arguments are similar to those we rejected in
connection with claim 1, above. For example, Appellant argues that Louch
fails to teach or suggest the “providing a notification” (Appeal Br. 20)
limitation as recited in the claim. For the same reasons discussed above, we
do not find these arguments persuasive. Appellant also challenges the
Examiner’s findings with respect to the “computing a probability” limitation
(Appeal Br. 19). For the most part, Appellant’s arguments as to this
limitation are similar to those we rejected in connection with the “computing
a probability” limitation claim 1. However, Appellant briefly notes that
claims 30’s “computing a probability limitation” requires that the
characteristic of the received input that is compared with the corresponding
characteristic of an expected input includes “at least one of a shape, a size,
or a motion of the expected user input,” and Louch fails to teach or suggest
this limitation. Appeal Br. 20.
We are persuaded of error. As we noted in connection with claims
27–29 above, Louch does not describe the characteristics of shape (supra
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discussion of claim 28), size (supra discussion of claim 29), and motion
(supra discussion of claim 27). As such, the Examiner has failed to account
for “at least one of a shape, a size, or a motion of the expected user input,”
as recited in claim 30, and we do not sustain the rejection.
Tenth Issue
Appellant further contends that the § 103 rejections “are improper
because the rejections use impermissible hindsight.” Appeal Br. 21–22.
More specifically, Appellant argues the “Office Action relies on information
gleaned solely from Appellant’s specification” and “uses the claims in the
present application as a template or guide to interpret and assemble the
teachings of the references against the claims.” Appeal Br. 21. Appellant
provides one specific example of the Examiner’s alleged hindsight bias—the
combination of Louch and Hullender in connection with claims 28 and 29.
Appeal Br. 21–22. Otherwise, Appellant does not present any specific
argument as to the combinations of the references.
With specific reference to claims 28 and 29, we have determined
supra that the Examiner has not sufficiently explained why a person of
ordinary skill in the art, possessing the teachings of Louch and Hullender,
would have extended Louch to additionally consider the size or shape of the
input in ascertaining user intent. Whether characterized as impermissible
hindsight or a more general failure to supply sufficient reasoning to explain
the combination, we agree with Appellant as to these claims. Appellant does
not provide any specific challenge to the reasoning relied upon in connection
with any other rejection. Appellant does not provide any argument
addressing the reasons for combining the remaining references provided by
the Examiner—which in each case include citations to the references
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themselves in support of the combinations. As such, aside from claims 28
and 29, Appellant has not sufficiently explained why the reasoning provided
in combining the references amounts to impermissible hindsight bias.
Remaining Claims
Appellant presents no separate arguments for patentability of any
other claims. Accordingly, we sustain the Examiner’s rejections of these
claims for the reasons stated with respect to the independent claims from
which they depend. See 37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
We affirm in part the Examiner’s decision to reject the claims.
More specifically,
We affirm the rejection of claims 1, 2, 10, and 21 under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Louch, Pohjola, and
Daverman.
We affirm the rejection of claim 7 under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Louch, Pohjola, Daverman, and Rubine.
We affirm the rejection of claim 8 under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Louch, Pohjola, Daverman, and Wilson.
We reverse the rejection of claims 9 and 27 under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Louch, Pohjola, and Daverman.
We affirm the rejection of claims 20 and 25 under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Louch and Daverman.
We affirm the rejection of claim 24 under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Louch, Daverman, and Pohjola.
We affirm the rejection of claim 26 under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Louch, Daverman, and Hullender.
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We reverse the rejection of claims 28 and 29 under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Louch, Pohjola, Daverman, and
Hullender.
We reverse the rejection of claims 30 and 33 under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Louch, Bartulis, and Daverman.
We reverse the rejection of claim 31 under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Louch, Bartulis, Daverman, and Wilson.
We reverse the rejection of claim 32 under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Louch, Bartulis, Daverman, and
Pohjola.
We reverse the rejection of claims 34 and 35 under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Louch, Bartulis, Daverman, and
Sokolsky.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 9, 10,
21, 27
103(a) Louch, Pohjola,
Daverman
1, 2, 10, 21 9, 27
7 103(a) Louch, Pohjola,
Daverman, Rubine
7
8 103(a) Louch, Pohjola,
Daverman, Wilson
8
20, 25 103(a) Louch, Daverman 20, 25
24 103(a) Louch, Daverman,
Pohjola
24
26 103(a) Louch, Daverman,
Hullender
26
28, 29 103(a) Louch, Pohjola,
Daverman,
Hullender
28, 29
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30, 33 103(a) Louch, Bartulis,
Daverman
30, 33
31 103(a) Louch, Bartulis,
Daverman, Wilson
31
32 103(a) Louch, Bartulis,
Daverman, Pohjola
32
34, 35 103(a) Louch, Bartulis,
Daverman,
Sokolsky
34, 35
Overall
Outcome
1, 2, 7, 8,
10, 20, 21,
24–26
9, 27–35

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED IN PART