Ex Parte Hunt et alDownload PDFPatent Trial and Appeal BoardMay 27, 201613311420 (P.T.A.B. May. 27, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/311,420 12/05/2011 109808 7590 06/01/2016 LENOVO/P ANGRLE Pangrle Patent, Brand & Design Law, P.C. 3500 W Olive Ave 3rd Floor Burbank, CA 91505 FIRST NAMED INVENTOR John Miles Hunt 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. RPS9201l0050-US-NP 7089 EXAMINER GUO,XILIN ART UNIT PAPER NUMBER 2616 NOTIFICATION DATE DELIVERY MODE 06/01/2016 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): brian@ppbdlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN MILES HUNT and JOHN WELDON NICHOLSON Appeal2014-009655 Application 13/311,420 Technology Center 2600 Before ST. JOHN COURTENAY III, THU A. DANG, and LARRY J. HUME, Administrative Patent Judges. DANG, Administrative Patent Judge. DECISION ON APPEAL Appeal2014-009655 Application 13/311,420 l. STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm. A. THE INVENTION Appellants' claimed invention relates to techniques for controlling display of information. (Spec. i-f 1.). B. ILLUSTRATIVE CLAIM Claim 1 is exemplary: 1. A method comprising: operating a 3-axis accelerometer having two axes that define a plane and an axis perpendicular to the plane to provide an acceleration value along each of the axes; and orienting output to a display in either a portrait format or a landscape format based on comparing the acceleration values for the two axes that define the plane to a threshold that depends on the acceleration value for the axis perpendicular to the plane. C. REJECTIONS The prior art relied upon by the Examiner as evidence in rejecting the claims on appeal is: N asiri et al. Cumming MacGougan et al. US 2009/0303204 Al US 2010/0222046 Al US 2012/0309412 Al 2 Dec. 10, 2009 Sept. 2, 2010 Dec. 6, 2012 Appeal2014-009655 Application 13/311,420 Claims 1-3, 5-8, 11 and 16-20 stand rejected under 35 U.S.C. § 102 (b) as being anticipated by N asiri. Claims 9 and 10 stand rejected under 35 U.S.C. § 103 (a) as being unpatentable over the combination ofNasiri and MacGougan. Claims 4 and 12-15 stand rejected under 35 U.S.C. § 103 (a) as being unpatentable over the combination ofNasiri and Cumming. II. ISSUE The principal issue before us is whether the Examiner erred in finding Nasiri discloses: "comparing the acceleration values for the two axes that define the plane to a threshold that depends on the acceleration value for the axis perpendicular to the plane," as recited in claim 1 (emphasis added). III. FINDINGS OF FACT The following Findings of Fact (FF) are shown by a preponderance of the evidence. Nasiri 1. N asiri discloses that accelerometers can be used in handheld devices to switch an orientation of a displayed image or application between portrait and landscape modes of the screen, but do not work well if the screen of the device is pointing upwards or downwards because accelerometers cannot detect rotation around the gravitational vector. Accordingly, Nasiri teaches using a yaw gyroscope to control portrait and landscape orientation. When the integrated gyroscope signal passes a threshold indicating a 90 degree rotation, the image shown on the screen is rotated in the opposite direction by 90 degrees. The threshold can also be less than 90 degrees. (i-f 131-132). 3 Appeal2014-009655 Application 13/311,420 2. Angular velocities can be assigned thresholds in multiple axes. (iT 124). 3. Gravity is used to determine the direction and speed of the scrolling. The speed of the sliding caused by gravity can be determined based on an angle of the device relative to the vertical direction (as determined from the gravity vector); the further the device is tilted, the faster the elements are displayed. (iT 0110). 4. The handheld electronic device may include a display and motion sensors sensing linear acceleration and rotational rate around three axes. (Abstract, iT 31.) MacGougan 5. MacGougan teaches a tri-axial accelerometer sensor that detects acceleration of a mobile device in three dimensions, where a mobile device is associated with an x, y, and z axis. (Fig. 2, iTiT 17, 20). 6. During the static state, a signal vector can be defined that represents the acceleration due to gravity affecting the accelerometer data. (iT 24). Cumming 7. Cumming teaches the angle of z-axis relative to gravity of a three- axis accelerometer can be calculated using three non-linear equations related to the acceleration values for the three axes. (iT 72). IV. ANALYSIS Regarding claim 1 's limitation "a threshold depends on the acceleration value for the axis perpendicular to the plane" (emphasis added), 4 Appeal2014-009655 Application 13/311,420 Appellants contend "Nasiri fails to disclose such a threshold.'' 1 (App. Br. 13-14; see also App. Br. 6). In particular, Appellants contend the Specification explains how the technology differs from Nasiri (e.g., static threshold versus a dynamic threshold) and argue the Examiner's claim interpretation is not consistent with the Specification. (App. Br. 7). Appellants specifically contend "Appellant submits that 'a threshold that depends on the acceleration value for the axis perpendicular to the plane' is not a static threshold under any 'broadest reasonable interpretation consistent with the specification."' (App. Br. 8). According to Appellants, the trip angles described in Appellants' Specification are fixed and do not depend on the acceleration value of the z-axis. (App. Br. 12). Appellants further contend Nasiri's threshold "is not being modified" (App. Br. 15) and that "Nasiri is silent as to the threshold itself being dependent on the device being close to horizontal." (App. Br. 16). We have considered all of Appellants' arguments and evidence presented. However, we disagree with Appellants' contentions regarding the Examiner's rejections of the claims. We agree with the Examiner's findings, and find no error with the Examiner's finding that claim 1 is anticipated by Nasiri. We give claims their broadest reasonable interpretation consistent with the specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). However, while we interpret claims broadly but reasonably in light of the specification, we nonetheless must not import limitations from 1 Appellants address independent claims 1, 12, and 16 together. See App. Br. 10. 5 Appeal2014-009655 Application 13/311,420 the specification into the claims. See Phillips v. AWH Corp., 415 F.3d 1303, 1316, 1323 (Fed. Cir. 2005) (en bane) (citations omitted).2 We are unpersuaded by Appellants' arguments on unclaimed distinctions of claim term "threshold," i.e., static versus dynamic thresholds, because we find no support in the claim language for any such distinctions regarding "a threshold. "3 Thus, Appellants' numerous arguments in their Brief citing their Specification, but not the claim language, are not commensurate with the scope of claim 1. Nasiri discloses using a yaw gyroscope to control portrait and landscape orientation (FF 1 ). N asiri' s handheld electronic device may include display and motion sensors sensing linear acceleration along, and rotational rate around three axes (FF 2, 4). Therefore, we agree with the Examiner's finding that, under a broad but reasonable interpretation of claim term "a threshold" that "depends on 2 We note that although Appellants argue that "Examiner changed his language from using the term 'display parameters' to using the term 'the threshold"' (App. Br. 6; 13-14), the Examiner, in fact, does employ the claim term 'threshold' in rejecting claim 1 in both the Final Rejection (Final Act. 15) and the Advisory Action (Advisory Act. 2). Furthermore, the Examiner clarifies in the Answer that to the extent the phrase "display parameter" was used it was a typographical error in the Final Action which was corrected in the Advisory Action. (Ans. 6). Appellants do not respond to nor rebut the Examiner's clarification in the Reply Brief. 3 Even if the word "dynamic" were to be read into the claim from the Specification, we do note that Nasiri teaches what may reasonably be construed as a "dynamic" threshold, i.e., "[s]ome accelerometers may be dynamically activated or deactivated, for example to control power usage or adapt to motion processing needs." (Nasiri i-f 56.) 6 Appeal2014-009655 Application 13/311,420 the acceleration value for the axis perpendicular to the plane," Nasiri's threshold is not precluded. (Final Act. 13). Further, while Appellants raised additional arguments for patentability of independent claim 16, and dependent claims 2, 3, 5-8, 11, 17-20, rejected on the same basis as claim 1 (App. Br. 17-21 ), we find that the Examiner has rebutted each of those arguments in the Answer by a preponderance of the evidence. (Ans. 7-15). Therefore, we adopt the Examiner's findings and underlying reasoning, which we incorporate herein by reference. Consequently, we have found no reversible error in the Examiner's rejections of these claims. Regarding dependent claims 9 and 10, rejected under 35 U.S.C. § 103(a), Appellants make mere attorney arguments without presenting evidence regarding specific claim language. (App. Br. 21-22). Argmnent of counsel cannot take the place of evidence lacking in the record. Meitzner v. Ji;findick, 549 F.2d 775, 782 (CCPA 1977); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). As such, these arguments 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). Thus, we find Appellants' argmnents and proffered evidence unpersuasive. \Ve agree wHh the Examiner's finding that the combination of the cited references teach the argued limitations of clairn 9 because ~1acGougan's gravity vector projected onto the z-axis teaches or at least suggests the limitation '"with respect to gravity" as recited in claim 9. (FF 5, 6, see also FF 3 (Nasiri)). Therefore, we sustain the Exarniner's rejection of dependent claims 9 and 10 under l 03(a). 7 Appeal2014-009655 Application 13/311,420 Regarding dependent claim 4, rejected under 35 U.S.C. § 103(a), Appellants contend Cumming's equations "at para. 72," which include "equations (3 ), ( 4) and ( 5) for angles with respect to measurements from individual axes of a three-axis accelerometer ... are nothing other than equations for determining angles based on a three-axis accelerometer configured with respect to Cartesian coordinates." (App. Br. 23 (emphasis omitted)). However, we agree with the Examiner's finding that Cumming's non-linear equations teaches or at least suggests the disputed limitation "a non-linear relationship," as recited in claim 4. (Ans. 17-18, FF 7). Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the combined teachings and suggestions of the cited prior art combination to teach or suggest the disputed limitation of dependent claim 4, nor do we find error in the Examiner's resulting legal conclusion of obviousness. Further, while Appellants raised additional arguments for patentability of independent claim 12, rejected on the same basis as claim 4 (App. Br. 24-- 25), we find that the Examiner has rebutted each of those arguments in the Answer by a preponderance of the evidence. (Ans. 18-19). Accordingly, we adopt the Examiner's findings and underlying reasoning, which we incorporate herein by reference. Consequently, we have found no reversible error in the Examiner's rejection of independent claim 12. As Appellants have not provided separate arguments with respect to dependent claims 13-15, rejected on the same basis as claim 4, we similarly sustain the Examiner's rejection of these claims under 35 U.S.C. § 103(a). 8 Appeal2014-009655 Application 13/311,420 Y. CONCLUSION AND DECISION We affirm the Examiner's rejections of claims 1-3, 5-8, 11, and 16- 20 under § 102(b ). We affirm the Examiner's rejection of claims 4, 9, 10, and 12-15 under§ 103(a). 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