Ex Parte BorovskyDownload PDFPatent Trial and Appeal BoardDec 16, 201311294790 (P.T.A.B. Dec. 16, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte ANDREW BOROVSKY __________ Appeal 2011-012916 Application 11/294,790 Technology Center 2100 __________ Before DEMETRA J. MILLS, ERIC GRIMES, and LORA M. GREEN, Administrative Patent Judges. MILLS, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134. The Examiner has rejected the claims for anticipation and obviousness. We have jurisdiction under 35 U.S.C. § 6(b). Appeal 2011-012916 Application 11/294,790 2 STATEMENT OF CASE The object of the invention as described in the Specification at pages 3- 4 is as follows. A system and method masks the latency in certain operation of a computer program by making the user interface being displayed appear to flip around and display its opposite side containing the next user interface when the user requests such operations be performed. [Specification, Fig. 3.] Other morphings of one user interface into the next may also be employed. The appearance of motion allows the user to determine that the operation of the program hasn't stopped, and yet the fact that the animation relates to both the current user interface and the subsequent user interface integrates the two and is not disjoint from either. The following claims are representative. 1. A method of displaying a first user interface and a second user interface related to the first user interface, the method comprising: displaying the first user interface, the first user interface including a selectable interface element that, when selected, effects a display of the second user interface; in response to a user selection of the selectable element, displaying a first latency-masking animation of the first user interface that is visually related to the first user interface initially, and visually related to a second latency-masking animation of the second user interface at least near the end of the first animation, substantially in place of the first user interface, the first animation at least mostly ceasing to appear over time; performing operations during the display of at least part of the first animation, the operations including receiving the second user interface and the second animation, the received second animation of the second user interface generated based on information associated with the first user interface including information input to the first user interface, at least the receiving having an expected resource-based latency that affects at least the first animation; displaying the second animation following the display of at least a portion of the first animation, the second animation being visually related to Appeal 2011-012916 Application 11/294,790 3 the second user interface at least near the end of the second animation, and visually related to the first animation at least initially; and displaying the second user interface following at least a portion of the display of the second animation. 2. The method of claim 1, wherein the operations performed during the display of at least part of the first animation comprise downloading over a network at least a portion of the second animation and the second user interface. 29. The method of claim 1, wherein the second user interface presents options for configuring items displayed in the first user interface, and wherein the method further comprises: in response to a command to submit configuration information input to the second user interface, displaying a third latency-masking animation of the second user interface, the third animation received during the display of at least part of the first animation; during the display of at least a part of the third animation, uploading the configuration information to a data processing component and receiving an updated version of the first user interface that reflects the uploaded configuration information; and displaying the received updated version of the first user interface in place of the second user interface, wherein at least one of the uploading of the configuration information and the receiving of the updated version of the first user interface has an expected resource-based latency that affects at least the third latency- masking animation. Cited References Goode et al. US 5,781,227 Jul. 14, 1998 Nason et al. US 2004/0032423 A1 Feb. 19, 2004 Arent US 6,018,724 Jan. 25, 2000 Simister et al. US 2003/0132959 A1 Jul 17, 2003 Appeal 2011-012916 Application 11/294,790 4 Grounds of Rejection 1. Claims 1-3, 7, 8, 11-13, 16-22 and 29-31 are rejected under 35 U.S.C. § 102(b) as being anticipated by Goode. 2. Claims 3, 8 and 13 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Goode in view of Nason and Arent. 3. Claims 23-28 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Goode in view of Arent. 4. Claims 4, 5, 9, 10, 14 and 15 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Goode in view of Nason and Simister. FINDINGS OF FACT The Examiner’s findings of fact are set forth in the Answer at pages 3-13. The following fact is highlighted. 1. Figures 3A and 3B of the Specification are reproduced below. Appeal 2011-012916 Application 11/294,790 5 Figure 3A shows an illustration of a first user interface and selected frames of an animation showing the first user interface rotating out according to one embodiment of the present invention. Figure 3B shows an illustration of selected frames of an animation showing a second user interface rotating in and a second user interface according to one embodiment of the present invention. Discussion ISSUE The Examiner concludes that Goode teaches each element claimed. In particular, the Examiner finds that Goode discloses when a subscriber selects certain functions, usually via an input device such as a remote control, that are used to control the flow of information to a television in the subscriber's home. [sic] [t]hese certain functions that result in execution of the latency masking routine are those that require the information server to provide a new information stream, e.g., selecting a new program for viewing, changing on-screen menus, and the like (Col. 2 lines 10-18). (Ans. 3-4.) Appellant argues that “Goode does not disclose ‘receiving the second user interface and the second animation’” (App. Br. 5.) Appellant further argues that, Goode does not disclose that “the received second animation of the second user interface generated [is] based on information associated with the first user interface including information input to the first user interface.” (App. Br. 8, emphasis removed.) Appellant argues that, “Goode does not disclose that the fade in to the predefined image, or any other fading, is generated based on information associated with the first user interface including information input to the first user interface.” (App. Br. 9.) Appeal 2011-012916 Application 11/294,790 6 Appellant argues that, “Goode does not disclose that the operations performed during the display of at least part of the first animation comprise downloading over a network at least a portion of the second animation and the second user interface.” (App. Br. 10.) The dispositive issue is: Does the cited prior art support the Examiner’s conclusion that each claimed element is known in the prior art? PRINCIPLES OF LAW In making our determination, we apply the preponderance of the evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Office.) In order for a prior art reference to serve as an anticipatory reference, it must disclose every limitation of the claimed invention, either explicitly or inherently. See In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). To anticipate, every element and limitation of the claimed invention must be found in a single prior art reference, arranged as in the claim. Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001). “In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of presenting a prima facie case of obviousness. Only if that burden is met, does the burden of coming forward with evidence or argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993) (citations omitted). In order to determine whether a prima facie case of obviousness has been established, we consider the factors set forth in Graham v. John Deere Co., 383 U.S. 1, 17 (1966): (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at Appeal 2011-012916 Application 11/294,790 7 issue; (3) the level of ordinary skill in the relevant art; and (4) objective evidence of nonobviousness, if present. “The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). ANALYSIS We note that Appellant provides separate argument in the Brief for representative claims 1, 2 and 29. (App. Br. 5, 10, and 12.) We further note that independent claim 1 does not specify the manner or location from which the second user interface and animation are received. Nor does claim 1 specify the nature of the information associating the first and second user interface. Claim 1 uses the transitional language “comprising” and therefore is open to additional or intervening method steps. We agree with the Examiner’s fact finding, statement of the rejection and responses to Appellant’s arguments as set forth in the Answer for claim 1. We find that the Examiner has provided evidence to support a prima facie case of anticipation. We provide the following additional comment to argument set forth in the Brief for emphasis. Appellant argues that “Goode does not disclose ‘receiving the second user interface and the second animation.’” (App. Br. 5.) Fig. 1 of Goode evidences that images are received over a communications network. “The set top terminal 108 receives the data streams from the forward channel, demodulates those streams and processes them for display on the display device 110 (e.g ., a conventional television).” (Col. 3, ll. 2 and 44-47; Ans. 4-5.) Both the set top terminal and display Appeal 2011-012916 Application 11/294,790 8 device receive the processed signal streams and the predefined image and fade in animation (col. 2, ll. 28-30; Fig 1). The set top terminal is also where the subscriber selects certain functions (Abstract) through changes on the screen menu’s (col. 2, l. 17; col. 3, ll. 1-25). (Ans. 4-5.) Therefore, both the second user interface/menu and second animation (fade in) are received by the set top terminal or display device. Appellant argues that, “Goode does not disclose that the fade in to the predefined image, or any other fading, is generated based on information associated with the first user interface including information input to the first user interface.” (App. Br. 9.) We are not persuaded. Goode discloses that the latency masking routine is executed whenever a customer selects a particular function (e.g. from a menu or first user interface) that will result in latency. (Abstract, col. 4, ll. 59-62.) Therefore Goode discloses the fade routine (to the predefined image) is generated based on information associated with a selection from the first user interface/menu including information input to the first user interface. Appellant further argues that, Goode does not disclose that “the received second animation of the second user interface generated [is] based on information associated with the first user interface including information input to the first user interface.” (App. Br. 8, emphasis removed.) Again, we are not persuaded. In one example in the Specification (page 11) the first user interface (menu) may include a conventional shopping cart and the second user interface (menu) is used to configure the number or type of an item in the shopping cart. However, the association or Appeal 2011-012916 Application 11/294,790 9 relationship between the first and second user interface information is not so limited in the claims. For example, in Goode, an on screen menu selection may drive a change to a new program for viewing or a new menu where a further selection is made. (Goode, col. 2, ll. 10-18; Ans. 3-4.) Goode’s method fades out the first displayed image (first animation) and fades in the new program or menu (second animation). Thus, the second (fade in) animation is based on information input to the first user interface, because the information input to the first user interface determines what image (program or menu) will fade in during the second animation. In other words, the received second animation of the second user interface is generated based on information associated with the first user interface including information input to the first user interface. With respect to the first and second animations [the] Examiner is interpreting [that] an animation can be an image or a fade wherein it is understood a fade mask latency by having one image transition to another image over a period of time so that the initial image relates to the recieved [sic] upstream image from the server over a period of time which includes a portion of the initial image and a portion of a second upstreamed image from a server which will mask latency (Col. 5 lines 1-33 and Col. 5 lines 48- Col. 6 line 20 Fig. 2) [s]ince Goode disclose 3 images and the images are on a server the images are received from the server to the display on the set top terminal wherein a masking effect is used to fade the present image to the predefined image and another fade from a new information stream which is stored on a server to the set top terminal. . . . Therefore the[r]e is no apparent difference between the animation of the applicant and the fade and masking effects of Appeal 2011-012916 Application 11/294,790 10 the received streaming server stored images to the set top terminal display of Goode since it is understood the present image is during the display and the predefined image is stored on the server therefore there will be a fade in and fade from and the fade in is being received from the server. (Ans. 15-16, emphasis added.) In other words, because one image menu fades out of and into another, the menus are visually related to the fade animation and associated with the fade in animation and new menu. Appellant provides no evidence to the contrary. With respect to claims 2, 7, and 12, Appellant argues that, “Goode does not disclose that the operations performed during the display of at least part of the first animation comprise downloading over a network at least a portion of the second animation and the second user interface.” (App. Br. 10; emphasis added.) The Examiner responds that Goode discloses “the images being displayed and being received (i.e. downloaded) from the image memory in the set top terminal of the network” (Answer 17). We do not agree with this reasoning. As illustrated in Goode’s Figure 1, information is downloaded from an information server to a set top terminal via “communications network 106.” We therefore agree with Appellants that information stored in the image memory of the set top box is not downloaded over a network, as required by claim 2. The rejection of claims 2, 7, and 12 is reversed. With respect to claims 29-31, Appellant argues that, “Goode does not disclose ‘in response to a command to submit configuration information input to the second user inteface [sic], displaying a third latency masking animation.’” (App. Br. 12.) Appellants argue that “[a]lthough Goode discloses that a customer can select functions that cause the latency masking Appeal 2011-012916 Application 11/294,790 11 routine 200 to be executed, Goode does not disclose that the customer interacts with the predefined image to cause a fade up to the new video stream” (id. at 12-13). The Examiner does not respond to this argument in the Response to Arguments section of the Answer. Nor does the Grounds of Rejection section of the Answer with respect to claim 29 (Ans. 6-7) specifically provide evidence in Goode of “submit[ting] configuration information input to the second user interface.” The anticipation rejection of claims 29-31 is reversed. Appellant does not specifically argue obviousness rejections 2, 3 and 4, other than for the reasons presented for rejection 1. (App. Br. 14.) Rejection 1 has not been rebutted by a preponderance of the evidence and therefore, rejections 2, 3, and 4 are affirmed for the same reasons as rejection 1. See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (“When the appellant fails to contest a ground of rejection to the Board, . . . the Board may treat any argument with respect to that ground of rejection as waived.”). CONCLUSION OF LAW The cited references support the Examiner’s anticipation and obviousness rejections, which are affirmed for the reasons of record, except that the anticipation rejection of Claims 2, 7, 12, and 29-31 is reversed. Appeal 2011-012916 Application 11/294,790 12 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED-IN-PART lp Copy with citationCopy as parenthetical citation