CYPRESS LAKE SOFTWARE , INC. (PATENT OWNER) et al.

Patent Trials and Appeals Board

Sep 11, 2020

90014250 - (D) (P.T.A.B. Sep. 11, 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.
90/014,250 01/02/2019 9423954 PMOR0129B.RE 6963
92045 7590 09/11/2020
The Caldwell Firm, LLC
PO Box 59655
Dept. SVIPGP
Dallas, TX 75229
EXAMINER
SAADAT, CAMERON
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
09/11/2020 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 CYPRUS LAKE SOFTWARE, INC.
Patent Owner and Appellant
____________

Appeal 2020-005815
Reexamination Control 90/014,250
United States Patent 9,423,954 B2
Technology Center 3900
____________

Before JOHN A. JEFFERY, MARC S. HOFF, and KARL D. EASTHOM,
Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. §§ 134 and 306 the Examiner’s
decision to reject claims 14–16. We have jurisdiction under 35 U.S.C.
§§ 134 and 306.
We AFFIRM.

1 Appellant identifies the real party in interest as Cyprus Lake Software, Inc.
Appeal Br. 3.
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STATEMENT OF THE CASE
This proceeding arose from a request for ex parte reexamination filed
on January 2, 2019 of United States Patent 9,423,954 (“the ’954 patent”),
issued to Morris on August 23, 2016.
The ’954 patent describes a mobile device graphical user interface that
changes the size of adjacent, non-overlapping windows via a touchscreen.
See generally ’954 patent col. 20, l. 11 – col. 22, l. 29; Fig. 6A. Claim 14 is
illustrative and reproduced below:
14. An apparatus, comprising:
at least one processor configured for coupling with
memory and a touchscreen, and
further configured for:
storage of a plurality of applications including a first
application, a second application, and a third application,
utilizing the memory, the applications including a first program
component and a second program component;
detection of a first user input;
in response to the first user input, presentation of,
utilizing the touchscreen, a first window associated with the
first program component including at least one user interface
element;
detection of a second user input in connection with the at
least one user interface element of the first window;
in response to the second user input in connection with
the at least one user interface element of the first window,
creation of a second window associated with the second
program component and presentation thereof, utilizing the
touchscreen, adjacent to and not overlapping with respect to the
first window, for presenting, in the second window, data
associated with the at least one user interface element of the
first window;
detection of a third user input; and
in response to the third user input, change, utilizing the
touchscreen, the presentation
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of the first window and the second window, such that a first
size of the first window and a second size of the second
window are both changed, and the second window remains
adjacent to and not overlapping with respect to the first
window.

RELATED PROCEEDINGS
Appellant informs us that this appeal to related to six ex parte
reexamination proceedings involving six different patents, namely (1)
90/014,332; (2) 90/014,467; (3) 90/014,329; (4) 90/014,310; (5) 90/014,333;
and (6) 90/014,331. Appeal Br. 4.

THE REJECTIONS
The Examiner rejected claims 14 and 15 under 35 U.S.C. § 103 as
unpatentable over Kim (US 2008/0158189 A1; published July 3, 2008) and
Seo (US 2010/0066698 A1; published Mar. 18, 2010). Final Act. 7–11.2
The Examiner rejected claim 16 under 35 U.S.C. § 103 as
unpatentable over Kim, Seo, and Jobs (US 2005/0149879 A1; published July
7, 2005). Final Act. 11–12.

THE OBVIOUSNESS REJECTION OVER KIM AND SEO
Regarding independent claim 14, the Examiner finds that Kim’s
apparatus includes, among other things, (1) a first application (multitasking
program); (2) a second application (broadcast viewing program); and (3) a

2 Throughout this opinion, we refer to (1) the Final Office Action mailed
August 27, 2019; (2) the Appeal Brief filed March 25, 2020 (“Appeal Br.”);
and (3) the Examiner’s Answer mailed May 5, 2020 (“Ans.”).
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third application (other disclosed applications, such as photo album,
messaging, or folder applications). See Final Act. 7–11; Ans. 5–6.
According to the Examiner, these three applications include respective
“program components,” including (1) a first program component that is any
part of Kim’s multitasking program; and (2) a second program component
that is any part of the broadcast viewing program. Ans. 5–6.
Although the Examiner acknowledges that Kim does not state
explicitly that the controller in Figure 1 is a processor, the Examiner cites
Seo as teaching this feature in concluding that the claim would have been
obvious. Final Act. 8.
Appellant argues that Kim’s task list and associated multitasking
function are not part of an application, namely a software function that
performs a specific function, but are rather general system functions
performed by the operating system. Appeal Br. 7–9, 11–19, 23–30.
Appellant argues other recited limitations summarized below.

ISSUE
Under § 103, has the Examiner erred by finding that Kim and Seo
collectively would have taught or suggested an apparatus configured to store
three applications including first and second program components as recited
in claim 14, where these components are those of different applications as
recited in claim 15?

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ANALYSIS
Claim 14
As noted above, claim 14 recites, in pertinent part, three applications
that include first and second program components. Because this dispute
turns on the meaning of the term “application,” we therefore begin by
construing this term.
The Specification does not define the term “application,” unlike many
other terms whose concrete definitions leave no doubt as to their meaning.
See, e.g., ’954 patent col. 5, ll. 58–61 (defining “device” and “node”
explicitly); col. 6, ll. 29–36 (defining “Z-order” and “Z-value” explicitly);
col. 6, ll. 37–41 (defining “user interface (UI) element handler” explicitly);
col. 6, ll. 41–43 (defining “program entity” explicitly); col. 6, l. 63 – col. 7,
l. 9 (defining “presentation space” explicitly); col. 7, ll. 10–13 (defining
“program” or “executable” explicitly); col. 7, ll. 27–46 (defining
“addressable entity” explicitly); col. 24, ll. 58–64 (defining “a,” “an,” and
“the” explicitly).
In other words, the ’954 patent is replete with concrete definitions of
various terms that limit their interpretation to those definitions, yet the patent
does not define the very term in dispute, namely an “application.” We,
therefore, construe the term with its broadest reasonable interpretation in
light of the Specification and consistent with the construction articulated by
the District Court in related litigation, namely a software program that
performs a specific function. Accord Appeal Br. 8 (quoting the court’s
construction).
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Based on this construction, we see no error in the Examiner’s reliance
on Kim’s multitasking and broadcast viewing programs for teaching the
recited first and second applications, respectively. See Ans. 5–6. As shown
in Kim’s Figures 2A and 2B, movable menu bar 124 includes a button 125
that is used to execute mobile terminal functions or menus. Kim ¶ 36; Figs.
2A–B. This functionality is shown in Kim’s Figure 4, where the device
executes a certain function in step S50 responsive to touching a particular
execution button 125 in step S40. See Kim ¶ 51.
These particular functions invoked upon touching the corresponding
button 125 include (1) a text messaging function shown in Figures 6A and
6B; (2) a photo album function shown in Figure 7; and (3) a multitasking
function shown in Figure 9. See Kim ¶¶ 51–61. As Kim’s paragraph 61
explains, the multitasking function fetches and displays, as text and/or icons,
a list of tasks available for multitasking. From this list, the user then selects
multiple tasks, such as the broadcast viewing and photo album functions 127
and 129, that are performed simultaneously. Kim ¶ 61.
Based on this functionality, we see no error in the Examiner’s finding
that Kim’s multitasking function is an “application,” namely a software
program that performs a specific function, specifically multitasking,
consistent with the term’s broadest reasonable interpretation in light of the
Specification. Accord Ans. 12, 17 (noting that Kim’s multitasking function
is a specific function initiated by selecting button 125 for the specific
purpose of multitasking other applications). That Kim’s multitasking
function in Figure 9 is listed among other applications invoked by selecting
button 125, namely text messaging and photo album functions in Figures 6A
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and 7, respectively, as the Examiner indicates (Ans. 9–11) only further
bolsters the notion that Kim’s multitasking function is just one of several
applications selected via button 125.
Appellant’s contention that Kim’s task list and associated multitasking
function are not applications, but rather general system functions that are
part of the device’s operating system (Appeal Br. 7–9, 11–19, 23–30) is
unavailing. First, even assuming, without deciding, that Kim’s multitasking
function in Figure 9 executes a system command or communicates with the
operating system to produce a task list, that alone does not preclude the
associated multitasking software from being considered an “application”
under its broadest reasonable interpretation, namely a software program that
performs a specific function, including multitasking. Accord Ans. 14
(noting this point).
Nor do we see error in the Examiner’s finding that Kim’s applications,
include respective “program components,” including (1) a first program
component that is any part of Kim’s multitasking program; and (2) a second
program component that is any part of Kim’s broadcast viewing program.
Ans. 5–6. Although the ’954 patent’s column 7, lines 14 to 16 notes that a
program or executable component can include an application—the very
opposite to the recited applications that include program components—the
’954 patent nevertheless notes in column 8, lines 49 to 53 that components
can be at least partially included in an application. Despite this
contradiction, nothing in the claim or the ’954 patent precludes the recited
program components from including the various portions of the respective
broadcast viewing and multitasking programs as the Examiner indicates
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(Ans. 5–6) given the scope and breadth of the term “program component”—
a term that is not defined in the ’954 patent, unlike the many other terms
whose concrete definitions leave no doubt as to their meaning as noted
previously.
We reach this conclusion despite the ’954 patent distinguishing
operating system 120 from applications 122 in the execution environment of
Figure 1. See ’954 patent col. 4, ll. 35–38. Leaving aside the fact that the
’954 patent does not define the term “application” unlike the many other
terms that the patent defines clearly and unambiguously as noted previously,
nothing on this record precludes Kim’s multitasking function from being
considered an “application” under its broadest reasonable interpretation even
assuming, without deciding, that at least some of Kim’s multitasking
functionality involves the operating system.
Appellant’s reliance on the previously-filed Smith Declaration3—a
declaration that was not provided to the Board in connection with the Appeal
Brief—is unavailing. See Appeal Br. 15, 19. Leaving aside Appellant’s
failure to make this evidence of record in this appeal, much less Dr.
Bederson’s countervailing declaration,4 Dr. Smith’s averments in paragraphs
19 to 29 of his declaration that Kim’s multitasking functionality is part of the
operating system is undercut by Dr. Bederson’s averments to the contrary in
paragraphs 74 to 84 of his declaration. Although we appreciate Dr. Smith’s
insights in this regard, the probative value of his declaration is diminished

3 See Declaration of Michael J. Smith filed July 29, 2019 (“Smith Decl.”)
4 See Declaration of Benjamin B. Bederson, Ph.D. filed Jan. 2, 2019.
(“Bederson Decl.”).
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significantly by Dr. Bederson’s countervailing declaration—both of which
the Examiner considered in concluding that claim 14 would have been
obvious. See Ans. 2.
We further note that claim 14 recites, quite broadly, that the three
recited applications include first and second program components, but does
not specify that each application includes those components. Therefore,
nothing in the claim precludes the Examiner’s mapping (1) the recited first
program component to any part of Kim’s multitasking application, and (2)
the recited second program component to any part of Kim’s broadcast
viewing application. See Ans. 5–6. To the extent that Appellant contends
that each of the three recited applications must include both recited
components (see Appeal Br. 7–8, 27–29), such an argument is not
commensurate with the scope of the claim.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 14.

Claim 15
We also sustain the Examiner’s rejection of claim 15 reciting, in
pertinent part, the first and second program components are components of
different applications. See Final Act. 11. As noted previously, we see no
error in the Examiner’s mapping Kim’s multitasking and broadcast viewing
programs to the recited first and second applications, respectively. See Ans.
5–6, 19 (reiterating this mapping as “Interpretation I”). Nor do we see error
in the Examiner’s finding that these different applications include respective
“program components,” namely (1) a first program component that is any
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part of Kim’s multitasking program; and (2) a second program component
that is any part of Kim’s broadcast viewing program. See Ans. 5–6, 19.
Because we find no error in the Examiner’s first articulated interpretation
that maps the first application to Kim’s multitasking application and its
associated components, including those associated with the task list, we need
not address the Examiner’s alternative interpretation that maps the recited
first program component to Kim’s photo album application. Accord Ans. 19
(noting this point).
Appellant’s contentions, then, regarding the alleged shortcomings of
the Examiner’s second alternative interpretation based on the photo album
component (Appeal Br. 9–10, 19–23) do not persuasively rebut the
Examiner’s findings and conclusions based on the first alternative
interpretation. See Final Act. 9–11. Nevertheless, to the extent that
Appellant’s arguments regarding the Examiner’s second interpretation,
including the cited prior art’s alleged failure to create a second window
associated with the second program component responsive to detecting a
second user input in connection with the first window’s user interface
element and presenting data associated with the user interface element in the
second window, somehow also apply to the first alternative interpretation
(see id.), we find such arguments unavailing.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 15.

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THE OBVIOUSNESS REJECTION OVER KIM, SEO, AND JOBS
We also sustain the Examiner’s obviousness rejections of claim 16
over Kim, Seo, and Jobs. Final Act. 11–12. Because this rejection is not
argued separately with particularity (see Appeal Br. 10), we are not
persuaded of error in this rejection for the reasons previously discussed.

CONCLUSION
The Examiner’s decision rejecting claims 14–16 is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
14, 15 103 Kim, Seo 14, 15
16 103 Kim, Seo, Jobs 16
Overall
Outcome
14–16

REQUESTS FOR EXTENSIONS OF TIME
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED

sl

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PATENT OWNER:

THE CALDWELL FIRM, LLC
PO Box 59655, Dept. SVIPGP
Dallas, TX 75229

THIRD PARTY REQUESTER:

WOLF GREENFIELD & SACKS P.C.
600 Atlantic Avenue
Boston, MA 02210-2206