B&R INDUSTRIAL AUTOMATION GMBH

Patent Trials and Appeals Board

Dec 18, 2020

2020003489 (P.T.A.B. Dec. 18, 2020)

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.
15/460,847 03/16/2017 Guenter SCHUSTER P52036 1231
7055 7590 12/18/2020
GREENBLUM & BERNSTEIN, P.L.C.
1950 ROLAND CLARKE PLACE
RESTON, VA 20191
EXAMINER
LUI, DONNA V
ART UNIT PAPER NUMBER
2621
NOTIFICATION DATE DELIVERY MODE
12/18/2020 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):
gbpatent@gbpatent.com
greenblum.bernsteinplc@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GUENTER SCHUSTER
Appeal 2020-003489
Application 15/460,847
Technology Center 2600
Before ALLEN R. MACDONALD, CAROLYN D. THOMAS, and
MICHAEL J. STRAUSS, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–19. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1 We refer to the Specification, filed March 16, 2017 as amended May 23,
2018 (“Spec.”); Final Office Action, mailed August 9, 2019 (“Final Act.”);
Appeal Brief, filed December 30, 2019 (“Appeal Br.”); Examiner’s Answer,
mailed February 6, 2020 (“Ans.”); and Reply Brief, filed April 6, 2020
(“Reply Br.”).
2 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 B & R Industrial
Automation GmbH. Appeal Br. 2.
Appeal 2020-003489
Application 15/460,847
2
CLAIMED SUBJECT MATTER
The claims are directed to a touchscreen having a tactile guide track
machined into a front surface thereof to provide haptic feedback to a user in
locating particular touch sensitive portions of the touchscreen. See
generally, Spec., Abstract. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A touchscreen comprising:
an image-generating layer;
a sensor layer; and
a touch layer having an external surface and an internal
surface,
wherein the sensor layer is adhesively connected to the
internal surface of the touch layer,
wherein, when a touch organ touches the external surface, the
touch of the touch organ is measurable and evaluatable by
the sensor layer through a thickness of the touch layer, and
wherein at least one guide track for the touch organ, which is
machined out of the external surface of the touch layer, is
located over the image-generating layer, whereby a
representation associated with the at least one guide track
is displayable behind the guide track.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Pryor US 2008/0211779 A1 Sept. 4, 2008
Nishikawa US 2010/0013786 A1 Jan. 21, 2010
Myers US 2013/0076649 A1 Mar. 28, 2013
Huang US 2015/0123924 A1 May 7, 2015
Pope US 2015/0135108 A1 May 14, 2015
Ninomiya US 2015/0190114 A1 July 9, 2015
Ozeki US 2016/0357294 A1 Dec. 8, 2016

Appeal 2020-003489
Application 15/460,847
3
REJECTIONS
Claims 1, 4, 6, 7, and 12–18 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Ozeki and Pryor. Final Act. 2–9.
Claims 2, 8, and 10 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Ozeki, Pryor, and Ninomiya. Final Act. 10–11.
Claim 3 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Ozeki, Pryor, and Huang. Final Act. 11–12.
Claim 5 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Ozeki, Pryor, and Myers. Final Act. 12.
Claims 9, and 11 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Ozeki, Pryor, and Nishikawa. Final Act. 12–13.
Claim 19 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Ozeki, Pryor, and Pope. Final Act. 13–14.

OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of Appellant’s arguments and evidence.
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). We
disagree with Appellant that the Examiner erred and adopt as our own the
findings and reasons set forth by the Examiner to the extent consistent with
our analysis herein. Final Act. 2–14; Ans. 3–10. We add the following
primarily for emphasis.
The Examiner finds Ozeki’s display device including a cover glass,
sensor, and display panel teaches or suggests the basic structure of the
touchscreen of claim 1 except “Ozeki does not explicitly mention wherein
the at least one guide track is located over the image-generating layer,
Appeal 2020-003489
Application 15/460,847
4
whereby a representation associated with the at least one guide track is
displayable behind the guide track.” Final Act. 2–3. Although finding
Ozeki’s concave portion 7 teaches a guide track machined in “any arbitrary
position in the front surface 3 . . . of the cover glass 1,” the Examiner finds
the concave portion is not explicitly described as located over a portion of
liquid-crystal display 44 having a displayable guide track. Id. at 3. In
addressing the noted deficiency, the Examiner finds Pryor’s control system
touch screen, including surface relief features described as linear and
circular grooves for guiding a user’s fingertip to locations on a display
screen, teaches or suggests the requirement that a representation associated
with the at least one guide track (e.g., image of a control dial) is displayable
behind the guide track. Id. at 3. According to the Examiner, with reference
to Pryor,
[I]t would have been obvious . . . to modify the touchscreen of
Ozeki, wherein the at least one guide track is located over the
image-generating layer, whereby a representation associated
with the at least one guide track is displayable behind the guide
track, as taught by Pryor so as to maximize the available display
and control surface (¶ 103), to make controls easy to use without
an undue sequence of glances required (¶ 127), and to provide a
mechanism for utilizing completely different and
interchangeable tactile and graphic information (¶ 154).
Id.
Appellant presents several arguments:
1. Appellant argues “while the exact positioning of [Ozeki’s] concave
portion 7 may be arbitrary, this arbitrary positioning would be in
the end or edge portions of the front cover glass so that the
Appeal 2020-003489
Application 15/460,847
5
concave portion 7 does not interfere with display area 6 or any
portion of the back cover glass.” Appeal Br. 12.
2. Appellant argues Pryor is deficient because “[w]hile PRYOR also
provides passing references as to using a touchscreen, capacitive
sensors, etc., PRYOR does not detail these embodiments and/or
describe any specific structure for performing his invention with
these alternative screens and sensors.” Id. at 13.
3. Appellant argues the combination of Ozeki and Pryor is not
supported by sufficient “articulated reasoning with technical
underpinnings.” Id. Appellant contends, to the contrary, Ozeki’s
concave portions are located outside a display area thereby
avoiding distortion of any displayable imaging that would result by
positioning those portions as taught by Pryor. Id. at 14–15.
Furthermore, according to Appellant, “the indentions of OZEKI
and PRYOR are intended for wholly distinct purposes and are
located in wholly distinct positions with respect to the display
screen, [such that] there would not appear to be any logical or
obvious reasoning to modify OZEKI in the manner suggested by
the Examiner with the subject matter described in PRYOR.” Id. at
16–17.
The Examiner responds, finding “[t]he guide track of Ozeki is meant
to teach guidance for finger placement on the touch layer where a sensor
layer is adhesively connected to the internal surface of the touch layer.”
Ans. 4. The Examiner explains that Pryor (not Ozeki) is relied upon for
teaching grooves forming a guide track positioned over an image-generating
layer “whereby a representation associated with the at least one guide track
Appeal 2020-003489
Application 15/460,847
6
is displayable behind the guide track” as recited by claim 1. Id. (citing Pryor
Figs. 4a, 5a/5b; ¶¶ 2154, 72, 284, 322). The Examiner discounts Appellant’s
argument that “arrangement of the concave portion 7 [of Ozeki] on the front
cover glass in a location that is positioned over the display would interfere
with the user’s use and enjoyment of the display [because] this same
interference would apply the Appellant’s invention.” Id.
The Examiner further disputes as inadequate the reasons given for
modifying Ozeki to include Pryor’s grooves located over a display portion,
directing attention to portions of Pryor describing the advantages of
providing tactile guides such as grooves that “are small enough in
height/depth or slope so as to not appreciably disturb video images on the
screen in the same location.” Id. at 4–5. The Examiner also disagrees that
modifying Ozeki to include Pryor’s guide track over a display portion would
detract from a user’s enjoyment of viewing images through Ozeki’s cover
glass, noting that Pryor teaches a “guidance track is positioned in the corner
of the display such that an image of a map can be displayed without any
discontinuities formed in the cover glass surface.” Id. at 5. Finally, the
Examiner disagrees “that the indentations of Ozeki and Pryor are for a
wholly distinct purpose and that there is no logical or obvious reasoning to
modify Ozeki with Pryor,” explaining “Pryor teaches placing the guidance
track in the border and display area (see fig. 4a - centrally and border, fig. 5b
- border only) and that the fingerprint identification can be achieved (¶287;
¶297), therefore the combination of Ozeki and Pryor are more than
appropriate.” Id.at 5–6, (emphasis omitted).
Appellant’s arguments are unpersuasive of reversible Examiner error
for the reasons given by the Examiner. Contrary to Appellant’s argument
Appeal 2020-003489
Application 15/460,847
7
that Ozeki’s concave portion is in an edge of a front cover glass, outside of a
display area, Ozeki further discloses “The position at which the concave
portion 7 is formed is any arbitrary position in the front surface 3 . . . of the
cover glass 1. “ Ozeki ¶ 172. That is, although depicting an edge location,
Ozeki contemplates other locations for machining a concave portion.
Furthermore, the Examiner relies on Pryor, not Ozeki, for teaching the
argued guide track located over the image-generating layer with a
representation associated with the guide track displayable behind the guide
track. Final Act. 3, Ans. 4. Thus, Appellant’s argument does not address
the Examiner’s findings. Instead, Appellant’s argument is improperly based
on an attack on the Ozeki reference individually when the rejection is based
on the combination of Ozeki and Pryor. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.” In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425
(CCPA 1981)).
Likewise, Appellant’s second argument that Pryor is lacking a
detailed description of specific structure of a touchscreen (Appeal Br. 13) is
unpersuasive because, other than the location of the guide track positioned
over the image-generating layer, the Examiner finds Ozeki, not Pryor,
teaches or suggest the claimed layered touchscreen construction. Final Act.
2–3. Thus, this argument also fails to address the Examiner’s findings.
We are also unpersuaded the Examiner erred in combining the
teachings of Ozeki and Pryor. Contrary to Appellant’s argument, we
determine the Examiner has articulated reasoning with rational
underpinnings sufficient to justify the legal conclusion of obviousness. See
Appeal 2020-003489
Application 15/460,847
8
discussion above, Final Act. 3. Likewise, Appellant’s argument that
including Pryor’s grooves for guiding a user’s fingertip in Ozeki’s cover
glass would be undesirable because it would distort the underlying image is
also unpersuasive for several reasons. As an initial matter and as found by
the Examiner, Pryor teaches positioning a guidance track in the corner of a
display outside of a map display area such that the map is free of and
undistorted by the guidance track. Ans. 5 (citing Pryor Fig. 5b).
Furthermore, Pryor teaches guide track features that minimize distortion:
“[D]epressions in smooth surfaces of even 0.003 inches for example can be
sensed (thickness of human hair), while even 0.020 inches deep or high can
be used with little optical effect in many cases especially where slopes are
small.” Pryor ¶ 284.
Still further, other than attorney argument, Appellant provides
insufficient evidence that any visual distortion rises to the level as to
dissuade or discourage one skilled in the art from combining the teachings of
Ozeki and Pryor. Mere attorney argument and conclusory statements, which
are unsupported by factual evidence, are entitled to little probative value. In
re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d
699, 705 (Fed. Cir. 1984). Attorney argument is not evidence. In re
Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such argument take
the place of evidence lacking in the record. We further note that Appellant’s
Specification makes no mention of the argued problem of image distortion
caused by machining guide tracks into the surface of a touch screen much
less provide a solution to the alleged problem.
Finally, we are unpersuaded the combination is improper because, as
alleged by Appellant, the indentions of Ozeki and Pryor serve different
Appeal 2020-003489
Application 15/460,847
9
purposes. Appeal Br. 16. Both references describe forming concave
portions or indents in a surface of a display to enhance tactile-based finger
placement, Ozeki disclosing “the center part of the fingertip can be led
naturally to the bottom 8 of the concave portion 7” (Ozeki ¶ 175) and Pryor
disclosing “the touch screen can desirably have relief features such as
indents . . . in order to guide the users finger tip . . . to a certain location on
the screen” id. at ¶ 284. Thus, we are unpersuaded by Appellant’s
arguments that the Examiner’s combination of references is inadequate or
improper.
Appellant’s contentions of error in connection with dependent claims
4, 6, 7, and 12–18 are repetitive of those addressed above in connection with
independent claim 1, alleging the combination of Ozeki and Pryor is
improper. Appeal Br. 17–22. These arguments are unpersuasive for the
reasons discussed above.
Likewise, Appellant’s contentions of error in connection with the
rejections of claims 2, 8, and 10 (id. at 22– 26), claim 3 (id. at 26–28), claim
5 (id. at 28–32), claims 9 and 11 (id. at 32–35), claim 19 (id. at 35–38) are
unpersuasive as based on the argument found unpersuasive for the reasons
discussed above including allegations that the Examiner has failed to
provide sufficient articulated reasoning for combining the teachings of the
references, that the additional references do not cure the deficiencies argued
in connection with the combination of Ozeki and Pryor as applied in
rejecting independent claim 1, and that the various combinations would
result in excessive distortion of a displayed image. As discussed above,
Appellant provides insufficient evidence in support of these allegations of
error including that the alleged disadvantages would have dissuaded or
Appeal 2020-003489
Application 15/460,847
10
discouraged one skilled in the art from making the asserted combinations
and/or modifications. See also Ans. 6–10.
For the reasons discussed above, Appellant’s arguments are
unpersuasive of reversible Examiner error and we sustain the rejections of
all claims under 35 U.S.C. § 103.
CONCLUSION
We affirm the Examiner’s rejection of claims 1, 4, 6–7, and 12–18
under 35 U.S.C. § 103 over Ozeki and Pryor.
We affirm the Examiner’s rejection of claims 2, 8, and 10 under 35
U.S.C. § 103 over Ozeki, Pryor, and, Ninomiya.
We affirm the Examiner’s rejection of claim 3 under 35 U.S.C. § 103
over Ozeki, Pryor, and Huang.
We affirm the Examiner’s rejection of claim 5 under 35 U.S.C. § 103
over Ozeki, Pryor, and Myers.
We affirm the Examiner’s rejection of claims 9 and 11 under 35
U.S.C. § 103 over Ozeki, Pryor, and Nishikawa.
We affirm the Examiner’s rejection of claim 19 under 35 U.S.C. § 103
over Ozeki, Pryor, and Pope.
Appeal 2020-003489
Application 15/460,847
11
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 6, 7,
12–18
103 Ozeki, Pryor 1, 4, 6, 7,
12–18

2, 8, 10 103 Ozeki, Pryor,
Ninomiya
2, 8, 10
3 103 Ozeki, Pryor,
Huang
3
5 103 Ozeki, Pryor,
Myers
5
9, 11 103 Ozeki, Pryor,
Nishikawa
9, 11
19 103 Ozeki, Pryor, Pope 19
Overall
Outcome
1–19

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