10854132 (B.P.A.I. Nov. 22, 2011)

Ex Parte Darty et al

Board of Patent Appeals and InterferencesNov 22, 2011

10854132 (B.P.A.I. Nov. 22, 2011)

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. 10/854,132 05/26/2004 Mark Anthony Darty 501014.20008 6840 20999 7590 11/23/2011 FROMMER LAWRENCE & HAUG 745 FIFTH AVENUE- 10TH FL. NEW YORK, NY 10151 EXAMINER HUYNH, BA ART UNIT PAPER NUMBER 2179 MAIL DATE DELIVERY MODE 11/23/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte MARK ANTHONY DARTY, JAMES DOUGLAS FLETCHER II, and LAURA TRANTHAM RHOME ____________ Appeal 2010-005984 Application 10/854,132 Technology Center 2100 ____________ Before ST. JOHN COURTENAY, III, JAMES R. HUGHES, and ANDREW J. DILLON, Administrative Patent Judges. DILLON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005984 Application 10/854,132 2 Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants have invented a method for providing command functionality for a computing device which involves displaying at least one control icon using a first focal plane; and displaying a working environment in a second focal plane, wherein the first focal plane appears at least partially superimposed over the second focal plane. See Abstract. Claim 1 is illustrative, with key disputed limitations emphasized: 1. A method for providing command functionality for a computing device comprising: displaying at least one control icon using a first focal plane; and displaying a working environment using at least a second focal plane and third focal plane distinct from said first focal plane; wherein, said first focal plane appears at least partially superimposed upon said at least second focal plane and third focal plane; and wherein the first focal place [sic], the second focal plane and the third focal plane are functionally interrelated. The Examiner relies on the following as evidence of unpatentability: Hijikata US 5,898,433 Apr. 27, 1999 Seymour US 2004/0239582 A1 Dec. 2, 2004 (PCT filed May 1, 2002) Appeal 2010-005984 Application 10/854,132 3 THE REJECTION The Examiner rejected claims 1-20 under 35 U.S.C. § 103(a) as unpatentable over Hijikata and Seymour. Ans. 3-7.1 CONTENTIONS Regarding representative claim 1, the Examiner finds that Hijikata discloses a method and corresponding system for providing command functionality for a computing device which displays three focal planes which are functionally interrelated to provide a display system, where the first focal plane is a desktop window which inherently displays control icons, but notes that Hijikata discloses that the desktop window is under the second and third focal planes, rather than over the second and third focal plane, as claimed. The Examiner cites Seymour for the display of “primary information” in a first focal plane superimposed over a secondary information plane. Ans. 3-4. Appellants argue that Hijikata does not disclose “displaying at least one control icon using a first focal plane” wherein the first focal plane appears at least partially superimposed upon said at least second focal plane and third focal plane. App. Br. 11. Appellants argue that any control icons within Hijikata would be displayed within the desktop and would then underlie the other two focal planes, rather than be superimposed upon the other two focal planes. Reply Br. 10. Appellants also argue that a standard desktop window with program icons is not functionally related to any other windows. App. Br. 15. 1 Throughout this opinion, we refer to the Appeal Brief filed September 11, 2009, the Examiner’s Answer mailed January 7, 2010, and the Reply Brief filed March 5, 2010. Appeal 2010-005984 Application 10/854,132 4 The issue before us, then, is as follows: ISSUE Under § 103, has the Examiner erred in rejecting claim 1 by finding that Hijikata and Seymour collectively would have taught or suggested (1) “displaying at least one control icon using a first focal plane,” (2) “wherein [the] first focal plane appears at least partially superimposed upon said at least second focal plane and third focal plane,” and (3) “wherein the first focal plane, the second focal plane[,] and the third focal plane are functionally interrelated”? FINDINGS OF FACT We find that the following enumerated findings of fact (FF) are supported by at least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Office). 1. Appellants’ Specification sets forth that “certain controls or groups of controls are represented by icons or objects that reside on an image layer at a different focal distance [than] the image layer used for general information display.” Spec. 13, ¶[35]. 2. Appellants’ Specification lists by way of a “non-limiting example only” that activation or selection of control object 50 “may launch an associated application in the working environment displayed using layer 40.” Spec. 5, ¶[17]. 3. Hijikata discloses a 3-D window display device which projects windows onto a projection plane using a virtual viewing point whereby the Appeal 2010-005984 Application 10/854,132 5 user can perceive the overlapped state of multiple windows in the Z axis. Hijikata, Abstract. 4. Figure 2 of Hijikata is reproduced below: Figure 2 of Hijikata depicts a diagram explaining the operational principle of the 3-D model window display. The figure depicts a desktop window which underlies two other windows, Window1 and Window2. Hijikata, Figure 2, col. 6, ll. 19-37. 5. Seymour discloses an information display which displays primary information in a first focal plane and secondary information in a second focal plane. Seymour, Abstract. 6. Appellants’ Specification recites that the various focal planes may be “functionally inter-related,” reciting as an example the activation of Appeal 2010-005984 Application 10/854,132 6 a control object in one focal plane to launch an application in a second focal plane. Speci. 5, ¶[17]. ANALYSIS Appellants argue that Hijikata clearly depicts a desktop layer, which the Examiner finds would inherently display control icons, in a position which permanently underlies the remaining two focal planes, and consequently, Hijikata fails to show or suggest a first focal plane which displays a control icon and which appears at least partially superimposed over the remaining two focal planes. App. Br. 11, Reply Br. 10. The Examiner finds that the desktop layer of Hijikata inherently would display “control icons” which could be utilized to launch an application, noting that such techniques are well known in the art. Ans. 8. We concur with the Examiner’s finding that Hijikata inherently discloses “control icons” which may be utilized to launch an application within another focal plane. Further, we find that such “control icons” are a reasonable interpretation of control object 50, in accordance with the definitions set forth in Appellants’ Specification. (FF1-2). We also find that Hijikata discloses a display system which displays multiple windows which are displayed in a partially superimposed fashion. (FF3). We find that Hijikata discloses a desktop (presumably displaying various control icons) which underlies two other windows in different focal planes. (FF4). We find that Seymour discloses a display system, in the same general technical area, where different data is displayed in different focal planes. (FF5). Appeal 2010-005984 Application 10/854,132 7 Our analysis of Appellants’ exemplary claim 1 reveals that, except for the recital of “functionally interrelated,” the specific details recited by Appellants in claim 1 are merely non-functional descriptive matter, and consequently the balance of the claimed invention is at least suggested by the display system of Hijikata. See Ex parte Nehls, 88 USPQ2d 1883, 1887- 90 (BPAI 2008) (precedential) (discussing non-functional descriptive material). Appellants provide, as a definition of “functionally inter-related,” the selection of a control icon in one focal plane to launch an application in a second focal plane. (FF6). Given the broad definition of “functionally inter-related” provided by Appellants we find that exemplary claim 1 is at least suggested by the cited references. We are therefore not persuaded that the Examiner erred in rejecting representative claim 1 and claims 2- 20 not separately argued with particularity. CONCLUSION The Examiner did not err in rejecting claims 1-20 under § 103. ORDER The Examiner’s decision rejecting claims 1-20 is affirmed. 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). AFFIRMED Appeal 2010-005984 Application 10/854,132 8 llw