Ex Parte Hobbs et alDownload PDFPatent Trial and Appeal BoardMay 18, 201813625288 (P.T.A.B. May. 18, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/625,288 09/24/2012 29540 7590 DAY PITNEY LLP One Canterbury Green 201 Broad Street Stamford, CT 06901 05/22/2018 FIRST NAMED INVENTOR Rowland Hobbs 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 710392.000180 6032 EXAMINER PAYER,PAULF ART UNIT PAPER NUMBER 2674 NOTIFICATION DATE DELIVERY MODE 05/22/2018 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): Patents@daypitney.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROWLAND HOBBS, GEORGE DY, DUKE SHERMAN, and DAVID SONNENBERG Appeal2017-001317 Application 13/625,288 1 Technology Center 2600 Before ERIC B. CHEN, HUNG H. BUI, and DAVID J. CUTITTA II, Administrative Patent Judges. BUI, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 41---66 and 68-77, which are all the claims pending in the application. Claims 1--40 and 67 have been canceled. Appeal Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). WeAFFIRM. 2 1 According to Appellants, the real party in interest is Linea Photosharing LLC. Appeal Br. 2. 2 Our Decision refers to Appellants' Appeal Brief filed April 25, 2016 ("App. Br."); Reply Brief filed October 25, 2016 ("Reply Br."); Examiner's Answer mailed August 25, 2016 ("Ans."); Final Office Action mailed November 30, 2016 ("Final Act."); and original Specification filed September 24, 2012 ("Spec."). Appeal2017-001317 Application 13/625,288 STATEMENT OF THE CASE Appellants' Invention Appellants' invention relates to a mosaic generating platform (MGP) that enables automatic generation of aesthetically balanced image mosaics. Spec. ,r 35. According to Appellants, "the MGP may convert a group of photos into a visually stimulating mosaic display of photos using templates and data regarding the photo. For example, a user may create a storyline of an event (e.g., grandpa's 70th birthday) using a mosaic. The user may upload photos of the event and the MGP may generate a mosaic ... edit the generated mosaic, share the mosaic with others ( e.g., give others permission to add more photos to the mosaic and/ or to add comments to photos in the mosaic), print out the mosaic ( e.g., as a photo album, as a mosaic), and/or the like." Spec. ,r 35. Claims 41 and 77 are independent. Claim 41 is illustrative of the claimed subject matter, as reproduced below with disputed limitations in italics: 41. A processor-readable tangible non-transient medium storing a computer program for operating a system for generating a scrollable mosaic of a plurality of provided images and displaying the mosaic on a display screen of a computing device, the program compnsmg: instructions for obtaining or receiving via a processor a group of images; instructions for determining via the processor the number of images in the group of images and attributes of the images; instructions for determining via the processor an arrangement of the group of images into a scrollable mosaic of images that is configured for display on a visual screen of a computing device, the mosaic of images having a two dimensional display size that is larger than the display screen of the computing device, wherein the instructions [ 1] specify the arrangement of the group of images by 2 Appeal2017-001317 Application 13/625,288 stacking a plurality of templates selected from a group of predefined templates into a template configuration, each template having a two dimensional display size that is the same as the visual display screen, such that the mosaic has a two-dimensional area that is an integer multiple of the visual display screen that is greater than one, a plurality of the stacked templates each have a plurality of image tiles, each of the image tiles in the mosaic being configured to be associated with an image from the group of images; instructions for generating the mosaic via processor; and instructions for generating a display signal for displaying the mosaic on the visual display screen of the computing device; [2] wherein templates in the stack of templates are chosen such that two identical templates do not appear sequentially in the mosaic. App. Br. 14 (Claims App'x) (bracketing added). Examiner's Rejections and References (1) Claims 41-55, 60, 61, 65, 66, and 68-75 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over Paul et al. (US 2010/0043017 Al; published Feb. 18, 2010), Bogart et al. (US 8,212,834 B2; issued Jul. 3, 2012), Schrier et al. (US 2012/0159314 Al; published June 12, 2012), Miller ("Windows Phone 7 Companion" published Nov. 2010), Doll et al. (US 2013/0024757 Al; published Jan. 24, 2013). Final Act. 3-18. (2) Claims 56-58 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over Paul, Bogart, Schrier, Miller, Doll, and Siegler ("Distilled from Burbn, Instagram Makes Quick Beautiful Photos Social" published Sep. 20, 2010). Final Act. 18-19. (3) Claims 59 and 76 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over Paul, Bogart, Schrier, Miller, Doll, and Skakkebaek et al. (US 2009/0083637 Al; published Mar. 26, 2009). Final Act. 19-20. 3 Appeal2017-001317 Application 13/625,288 (4) Claims 62 and 77 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over Paul, Bogart, Schrier, Miller, Doll, and Urashima (US 2010/0008570 Al; published Jan. 14, 2010). Final Act. 20. (5) Claims 63 and 64 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over Paul, Bogart, Schrier, Miller, Doll, and Loui et al. (US 2003/0072486 Al; published Apr. 17, 2003). Final Act. 21. Issue on Appeal Based on Appellants' arguments, the dispositive issue on appeal is whether the cited prior art discloses or suggests: [ 1] "specify the arrangement of the group of images by stacking a plurality of templates selected from a group of predefined templates into a template configuration," and [2] "wherein templates in the stack of templates are chosen such that two identical templates do not appear sequentially in the mosaic" as recited in independent claims 41 and 77. App. Br. 6-10; Reply Br. 5---6. ANALYSIS Claims 41-55, 60, 61, 65, 66, and 68-75 In support of the obviousness rejection of independent claim 41, the Examiner finds the combination of Paul, Bogart, Schrier, Miller, and Doll teaches Appellants' claimed "computer program for operating a system for generating a scrollable mosaic of a plurality of provided images and displaying the mosaic on a display screen of a computing device" including all the claim limitations recited to support the conclusion of obviousness. Final Act. 3-9 (citing Paul ,r,r 1, 6, 11, 18, Figs. 3 and 6; Bogart 1:53-57, 4 Appeal2017-001317 Application 13/625,288 2:7-10; 33:45-50, 34:17-19, Figs. 9-11; Schrieri"f 33, Fig. 3; Miller's Figs. 1-3; Doll i"fi"f 7, 41, 51, Figs. 3--4). In particular, the Examiner relies on Miller for teaching a scrollable mosaic of images and "specify[ing] the arrangement of the group of images by stacking a plurality of templates selected from a group of predefined templates into a template configuration." Final Act. 7-8 (citing Miller ,r 7, Figs. 1--4, Abstract). The Examiner also relies on Doll for teaching "templates in the stack of templates [] chosen such that two identical templates do not appear sequentially in the mosaic." Final Act. 9 (citing Doll i"fi"f 41, 51); Ans. 21 (citing Doll ,r 40). Appellants contend "the references relied upon by the Examiner [including Miller and Doll]" do not teach or suggest the disputed limitations: [ 1] "specify the arrangement of the group of images by stacking a plurality of templates selected from a group of predefined templates into a template configuration," and [2] "wherein templates in the stack of templates are chosen such that two identical templates do not appear sequentially in the mosaic" as recited in claim 41. Appeal Br. 6-10; Reply Br. 5---6. In particular, Appellants acknowledge Doll teaches "selecting templates" such that the same template may be prevented from being used sequentially, but argue Doll "does not prevent two identical templates from appearing in sequence, as that can occur randomly." Appeal Br. 9. According to Appellants, "Doll does not disclose or suggest preventing successive pages from having the same template." Reply Br. 6. Appellants also argue "the Examiner's asserted combination of Doll with the teachings of Miller, which allegedly teach a display will scrolling tiles, is inappropriate as the teachings of Doll regarding avoiding 5 Appeal2017-001317 Application 13/625,288 scrolling and those of Miller teach away from one another. See In re Gurley, 27 F.3d 551,553 (Fed. Cir. 1994) ("a reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.") App. Br. 10 (emphasis added). Appellants' arguments are not persuasive. First, we note Appellants do not contest the Examiner's factual findings regarding Paul, Bogart, and Schrier. Nor do Appellants present any arguments to explain why the Examiner's factual findings regarding Miller are in error. As such, we will not review those uncontested aspects of the rejection. See Ex Parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010) (precedential) ( the BP AI "reviews the obviousness rejection for error based upon the issues identified by appellant, and in light of the arguments and evidence produced thereon," and treats arguments not made as waived). Second, Doll teaches template-based page layouts that enable a user to browse content items (e.g., images) through a series of discrete pages, each of which fit in the available display area of a display device. Doll ,r,r 7, 18. Examples of these page templates are shown in Figure 2, with each template having a different set of slots to accommodate content items ( e.g., images) and any number of templates used to provide a variety of different page layouts. Doll ,r 30. According to Doll, these templates can be organized according to the number of slots, for example, from three to seven slots, referred to as the "cardinality" of the template. Doll ,r 31. As correctly recognized by the Examiner, "[s]electing cardinalities of pages according to 6 Appeal2017-001317 Application 13/625,288 the {5, 3, 4, 7, 6} section ensures that two identical templates do not appear sequentially in the mosaic." Ans. 21 (citing Doll ,I 40). Lastly, the Federal Circuit has said: "[a] reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant. The degree of teaching away will of course depend on the particular facts; in general, a reference will teach away if it suggests that the line of development flowing from the reference's disclosure is unlikely to be productive of the result sought by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) (citing United States v. Adams, 383 U.S. 39, 52 (1966)). A reference does not teach away, however, if it merely expresses a general preference for an alternative invention but does not "criticize, discredit, or otherwise discourage" investigation into the invention claimed. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Here, Miller already teaches a scrollable mosaic of images. Doll simply suggests template-based page layouts that enable a user to browse content items (e.g., images) through a series of discrete pages. Appellants have not presented any evidence or arguments to persuade us that Doll would disparage or otherwise discourage one of ordinary skill in the art from the path described in the claims of the application, i.e., the subject matter of Appellants' claimed invention. Thus, we do not find that Doll teaches away from Miller as Appellants argue. App. Br. 10. Based on this record, we are not persuaded of Examiner error. Accordingly, we sustain the Examiner's obviousness rejection of 7 Appeal2017-001317 Application 13/625,288 independent claim 41 and its dependent claims 42-55, 60, 61, 65, 66, and 68-75, which Appellants do not argue separately. App. Br. 10. Claims 56--58 Claim 56 depends from claim 41, and further comprises "instructions for displaying, via the processor, the mosaic on the visual display screen of the computing device as a continuous film strip or a continuous film loop that scrolls across the visual display screen of the computing device." Appellants argue Siegler, like Miller, teaches "only a fixed configuration of images and does not disclose varying templates for display of content and thus image configurations of the scrolling content ( continuous film strip) remain constant in the computer" and "teaches away from the Doll reference which discloses measures for avoiding scrolling of content." App. Br. 10-11. We disagree. As correctly recognized by the Examiner, the scrolling of content items ( e.g., images) as a continuous film strip or film loop is well known, as evidenced from Siegler. Final Act. 18 (citing Siegler p. 4). In particular, Siegler teaches an interface for an Instagram photo sharing application which allows a user to use the phone's touchscreen and scroll the interface in a vertical direction. Ans. 17. For this reason, we sustain the Examiner's obviousness rejection of claim 56 and its dependent claims 57-58, which Appellants do not argue separately. App. Br. 11. With respect to the remaining claims, Appellants reiterate the same arguments presented against independent claim 41. App. Br. 11-13. For the same reasons discussed relative to claim 41, we also sustain the Examiner's 8 Appeal2017-001317 Application 13/625,288 obviousness rejections of ( 1) dependent claims 59 and 7 6, (2) dependent claims 62 and 77, and (3) dependent claims 63 and 64. CONCLUSION On the record before us, we conclude Appellants have not demonstrated the Examiner erred in rejecting claims 44--66 and 68-77 under 35 U.S.C. § I03(a). DECISION As such, we AFFIRM the Examiner's final rejection of claims 44--66 and 68-77. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 9 Copy with citationCopy as parenthetical citation