Avaya Inc.

Patent Trials and Appeals Board

Jul 30, 2021

2020002558 (P.T.A.B. Jul. 30, 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.
14/619,815 02/11/2015 David L. Chavez 4366-706 7880
48500 7590 07/30/2021
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
MIDKIFF, AARON
ART UNIT PAPER NUMBER
2621
NOTIFICATION DATE DELIVERY MODE
07/30/2021 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):
cjacquet@sheridanross.com
edocket@sheridanross.com
pair_Avaya@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID L. CHAVEZ
Appeal 2020-002558
Application 14/619,815
Technology Center 2600
Before MARC S. HOFF, LARRY J. HUME, and CATHERINE SHIANG,
Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1–5, 7, 8, 11–18, and 20, which are all
claims pending in the application. Appellant has canceled claims 6, 9, 10,
and 19. See Appeal Br. 10 et seq. (Claims App.). We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Avaya Inc. Appeal
Br. 2.
Appeal 2020-002558
Application 14/619,815

2
STATEMENT OF THE CASE2
The claimed subject matter is directed to a wearable system input
device. See Spec. (Title). In particular, Appellant’s disclosed embodiments
and claimed invention relate to “an egg-shaped, or ovoid, input control
device is provided that can measure pressure points with an accelerometer
and a tactile effects layout.” Spec. ¶ 9.
Exemplary Claims
Claim 1 and 12, reproduced below, are representative of the subject
matter on Appeal (emphases added to contested prior-art limitations):
1. An input control device, comprising:
an arcuate contact surface separated into a plurality of
defined input sensor contact areas distributed around and
covering the arcuate contact surface, wherein the input control
device is configured as a ovoid shape, and wherein the arcuate
contact surface covers the input control device;
a plurality of input sensors with one or more input
sensors of the plurality of input sensors disposed adjacent to
each defined input sensor contact area and configured to receive
user input therefrom wherein each defined input sensor contact
area is identified by one or more of orientation marks,
indentations, or dimples; and
a controller operatively connected to the one or more
input sensors and configured to:

2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
Sept. 18, 2019); Reply Brief (“Reply Br.,” filed Feb. 12, 2020); Examiner’s
Answer (“Ans.,” mailed Dec. 12, 2019); Final Office Action (“Final Act.,”
mailed Apr. 10, 2019); and the original Specification (“Spec.,” filed Feb. 11,
2015).
Appeal 2020-002558
Application 14/619,815

3
detect a contact condition of one or more digits of
a hand of a user on the arcuate surface of the input
control device,
determine a baseline locational arrangement of the
one or more digits relative to one another and the
plurality of defined input sensor contact areas based on
the detected contact condition of the one or more digits,
and
dynamically assign one or more input sensors
adjacent to each of the one or more digits to receive
input based on the baseline locational arrangement,
wherein upon detecting movement of the one or more
digits, the controller is configured to dynamically assign
the input sensors that are contacted to receive input.
12. The input control device of claim 4, wherein the
control instruction is based at least partially on a pressure
associated with the one or more digits contacting a particular
defined input sensor contact area of the input control device.
REFERENCES
The Examiner relies upon the following prior art as evidence:
Name Reference Date
Drumm US 5,363,120 Nov. 8, 1994
Kryze et al. (“Kryze”) US 2012/0162073 A1 June 28, 2012
Mosby et al. (“Mosby”) US 2013/0127729 A1 May 23, 2013
REJECTION
Claims 1–5, 7, 8, 11–18, and 20 stand rejected under 35 U.S.C. § 103
as being unpatentable over the combination of Kryze, Mosby, and Drumm.
Final Act. 5.
Appeal 2020-002558
Application 14/619,815

4
CLAIM GROUPING
Based on Appellant’s arguments (Appeal Br. 5) and our discretion
under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of the obviousness
rejection of claims 1–5, 7, 8, 11, 13–18, and 20 on the basis of representative
claim 1. We address the obviousness rejection of separately argued
claim 12, infra.3
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. To the extent Appellant has not
advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv).
We disagree with Appellant’s arguments with respect to claims 1–5,
7, 8, 11–18, and 20 and, unless otherwise noted, we incorporate by reference
herein and 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
and rebuttals set forth in the Examiner’s Answer in response to Appellant’s
arguments. We highlight and address specific findings and arguments
regarding claims 1 and 12 for emphasis as follows.

3 “Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv).
In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
Appeal 2020-002558
Application 14/619,815

5
1. § 103 Rejection of Claims 1–5, 7, 8, 11, 13–18, and 20
Issue 1
Appellant argues (Appeal Br. 5–8; Reply Br. 2–3) the Examiner’s
rejection of claim 1 under 35 U.S.C. § 103 as being obvious over the
combination of Kryze, Mosby, and Drumm is in error. These contentions
present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests “[a]n input control device” that includes “a controller operatively
connected to the one or more input sensors and configured to,” inter alia,
“dynamically assign one or more input sensors adjacent to each of the one or
more digits to receive input based on the baseline locational arrangement,
wherein upon detecting movement of the one or more digits, the controller is
configured to dynamically assign the input sensors that are contacted to
receive input,” as recited in claim 1?
Principles of Law
“[O]ne cannot show non-obviousness by attacking references
individually where . . . the rejections are based on combinations of
references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). “The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference . . . . Rather,
the test is what the combined teachings of those references would have
suggested to those of ordinary skill in the art.” Id. at 425.
In KSR, the Court stated “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
Appeal 2020-002558
Application 14/619,815

6
than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
416 (2007).
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill . . . . [A] court
must ask whether the improvement is more than the predictable
use of prior art elements according to their established
functions.
Id. at 417.
Further, the relevant inquiry is whether the Examiner has set forth
“some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006) (cited with approval in KSR, 550 U.S. at 418).
Analysis
Claim 1 recites, “dynamically assign one or more input sensors
adjacent to each of the one or more digits to receive input based on the
baseline locational arrangement, wherein upon detecting movement of the
one or more digits, the controller is configured to dynamically assign the
input sensors that are contacted to receive input.”
Appellant contends “Mosby does not teach or suggest, and in fact,
teaches away from dynamically activating the input sensors that are
Appeal 2020-002558
Application 14/619,815

7
contacted to receive input.” Appeal Br. 7 (emphasis added).4 Appellant
alleges the broadest reasonable interpretation of their claim is “the input
sensors associated with the user’s ring finger on the hand operating the
device can be dynamically assigned based on the detected location of the
user’s left ring finger. Furthermore, the device dynamically determines the
location of the user’s fingers in order to make the assignment.” Id.
The Examiner finds Mosby in paragraph 21 teaches the disputed
limitation. Ans. 3; see also Final Act. 7. Mosby discloses “[t]he keyboard
generation module 29 may be further configured to measure a distance of the
finger-to-finger line 34 and generate the virtual keyboard 22 with the layout
24 that is further based on the distance of the finger-to-finger line 34.”
Mosby ¶ 21.
Under the broadest reasonable interpretation of claim 1, we conclude
the claim does not recite or require a continuous re-assigning of input
sensors to fingers, as argued by Appellant. Our interpretation is consistent
with the Specification, which explains in another embodiment, “the input
control device may continually and dynamically reconfigure itself based on
the position in a user’s hand.” Spec. ¶ 80 (emphasis added). We conclude
the claim only requires that this assignment happens once in order to be
considered a dynamic assignment. Therefore, we agree with Examiner that
Mosby, at least in paragraph 21 teaches or suggests the argued limitation.

4 Although Appellant makes passing reference to a “teach away” argument
(Appeal Br. 7), Appellant provides no further arguments with regard to any
allegedly improper motivation to combine the references in the manner
suggested by the Examiner.
Appeal 2020-002558
Application 14/619,815

8
Appellant further argues, “[i]nherently, the virtual keyboard taught in
Mosby must be relatively static.” Appeal Br. 7. However, the Examiner
found Mosby Figures 3 and 4 illustrate a dynamic keyboard, i.e., a keyboard
that adapts according to finger placement, as replicated below, particularly
in Mosby Figure 4.

“FIG. 3 is a schematic diagram illustrating forming the virtual
keyboard of FIG. 1 over detected finger touches of two hands of a user.”
Mosby ¶ 7. “FIG. 4 is a schematic diagram illustrating forming the virtual
keyboard of FIG. 1 into a left-hand section and a right-hand section at
different orientations.” Mosby ¶ 8.
We disagree with Appellant’s “[i]nherently . . . relatively static”
argument (Appeal Br. 7) because Mosby, in Figure 3, and particularly in
Figure 4, teaches or suggests a dynamic keyboard.
[0041] FIG. 3 illustrates forming a virtual keyboard 22 over
detected finger touches 16 of a home row gesture 14 according
to the present disclosure. In this example, a home row gesture
14 may include a palm touch 18 and finger touches 16 of all
fingers of each hand of a user. In some embodiments, the
virtual keyboard 22 may be formed over the finger touches 16,
so that a home row of the virtual keyboard (“ASDFGHJKL:/;)
Appeal 2020-002558
Application 14/619,815

9
may be formed over the detected finger touches 16, and the
space bar may be positioned over detected thumb touches 18.
[0042] FIG. 4 illustrates a virtual keyboard 22 may be formed
in a left-hand section 22A and a right-hand section 22B. For
example, a virtual keyboard 22 may be formed with the left-
hand section 22A formed over finger touches 16 of a left hand
of a user and the right-hand section 22B formed over finger
touches 16 of a right hand of the user. A layout 24 of each of
the sections may be determined based on a palm touch 18 and
finger touch(es) 16 detected for a corresponding hand of the
user.
Mosby ¶¶ 41, 42.
Appellant also presents arguments concerning Mosby’s dismiss
gesture. Appeal Br. 7. However, we consider this point to be moot because
the claim does not require that the input sensors be dismissed by detection of
a dismissal gesture.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner’s reliance on the cited prior art to teach
or suggest the disputed limitation of claim 1, nor do we find error in the
Examiner’s legal conclusion of obviousness.
Therefore, we sustain the Examiner’s obviousness rejection of
independent claim 1, and grouped claims 2–5, 7, 8, 11, 13–18, and 20, which
fall therewith. See Claim Grouping, supra.
2. § 103 Rejection of Claim 12
Issue 2
Appellant argues (Appeal Br. 8) the Examiner’s rejection of claim 12
under 35 U.S.C. § 103 as being obvious over the combination of Kryze,
Appeal 2020-002558
Application 14/619,815

10
Mosby, and Drumm is in error. These contentions present us with the
following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests “[t]he input control device of claim 4, wherein the control
instruction is based at least partially on a pressure associated with the one or
more digits contacting a particular defined input sensor contact area of the
input control device,” as recited in claim 12?
Analysis
Appellant argues “claim 12 claims that different pressures to the same
input sensor may indicate different controls.5 Although Kryze discusses a
touch sensor layer, there is no discussion of determining/detecting a pressure
associated with a touch contact.” Appeal Br. 8. Claim 12 recites that “the
control instruction [be] based at least partially on a pressure associated with
the one or more digits contacting a particular defined input sensor contact
area of the input control device.” Claim 12.
The Examiner finds that Kryze teaches “an actuation sensing
component . . .’ by which actuation activity is sensed. Actuation is
understood — in the context of described ‘. . . flexible surface . . .’ and ‘. . .
elevation units . . .’ — to correspond to the depression of portions of the
device in a manner comparable to button.” Ans. 5 (citing Kryze ¶ 16).
Kryze discloses:
The touch sensor layer can have a flexible surface with a
selectively variable shape. The sensing portion includes an
actuation sensing component for sensing actuation activity

5 We note the argued limitation is not claimed.
Appeal 2020-002558
Application 14/619,815

11
associated with the shape in the touch sensor layer. The flexible
surface and actuation sensing component interact to provide
both input and output to a user of the apparatus. The flexible
surface may have a selectively variable shape. The actuation
sensing component can sense actuation activity associated with
the shape in the surface. Further, the apparatus may include
elevation units that adjust a physical shape of an input and
output surface area, wherein the controller is further configured
to adjust particular ones of the elevation units.
Kryze ¶ 16 (emphasis added).
We agree with Examiner because we find that sensed actuation
activity associated with the shape in the surface, as taught by Kryze,
corresponds to detecting a pressure associated with a touch contact, and
deriving a control instruction from the sensed actuation pressure.
Therefore, we agree with the Examiner’s finding that the combination
of Kryze, Mosby, and Drumm teaches or suggests all the elements of claim
and 12. See Ans. 3–5. Accordingly, we sustain the Examiner’s obviousness
rejection of claim 12.
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 2–3) not in response to a shift in the Examiner’s position in
the Answer, arguments raised in a Reply Brief that were not raised in the
Appeal Brief or are not responsive to arguments raised in the Examiner’s
Answer will not be considered except for good cause (see 37 C.F.R.
§ 41.41(b)(2)), which Appellant has not shown.

Appeal 2020-002558
Application 14/619,815

12
CONCLUSION
We AFFIRM the Examiner’s rejection.
More specifically, Appellant has not persuasively argued the
Examiner erred with respect to the obviousness rejection of claims 1–5, 7, 8,
11–18, and 20 under 35 U.S.C. § 103 over the cited prior art combination of
record, and we sustain the rejection.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5, 7, 8,
11–18, 20
103 Kryze, Mosby,
Drumm
1–5, 7, 8,
11–18, 20

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)(1)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED