Ex Parte KeeneyDownload PDFPatent Trial and Appeal BoardAug 27, 201813528836 (P.T.A.B. Aug. 27, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/528,836 06/21/2012 69316 7590 08/29/2018 MICROSOFT CORPORATION ONE MICROSOFT WAY REDMOND, WA 98052 FIRST NAMED INVENTOR Richard A. Keeney 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. 336331.01 7357 EXAMINER BUKOWSKI, KENNETH ART UNIT PAPER NUMBER 2621 NOTIFICATION DATE DELIVERY MODE 08/29/2018 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): usdocket@microsoft.com chriochs@microsoft.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RICHARD A. KEENEY 1 Appeal 2017-011339 Application 13/528,836 Technology Center 2600 Before MICHAEL J. STRAUSS, JON M. JURGOV AN, and MICHAEL J. ENGLE, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL 1 According to Appellant, the real party in interest is Microsoft Technology Licensing, LLC. See App. Br. 1. Appeal 2017-011339 Application 13/528,836 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims 1-8 and 15-26. Claims 9-14 are canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. THE INVENTION The claims are directed to determining touch intensity applied to a touch screen of a mobile device using accelerometer measurements. Abstract. Claim 1, reproduced below, is representative of the claimed subject matter: 1. A processor-implemented method, comprising: executing a first thread, within a first process, that continuously reads accelerometer readings received from an accelerometer housed in a mobile device through execution of at least one accelerometer application programming interface (API); executing a second thread, within the first process, concurrently with the first thread, the second thread performing actions comprising: sensing a touch onto the mobile device at a first point in time through at least one touch sensor API; obtaining a plurality of the accelerometer readings correlated to a time period that coincides with the first point in time, the accelerometer readings including real-time values representing acceleration along one or more axes of the mobile device; and calculating an intensity of the sensed touch based on a first subset of the plurality of the accelerometer readings; and executing a software application that receives the intensity of the sensed touch and alters an audio and/or video presentation based on the intensity of the sensed touch, wherein the first thread and the second thread execute on a same processor. 2 Appeal 2017-011339 Application 13/528,836 REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Linjama Edpalm Orr Williams Luk Beer US 2004/0169674 Al US 2008/0150902 Al US 2010/0194692 Al US 2011/0310041 Al US 2012/0197587 Al DEI02007031550 REJECTIONS Sept. 2, 2004 June 26, 2008 Aug. 5, 2010 Dec. 22, 2011 Aug. 2, 2012 Jan. 8,2009 The Examiner made the following rejections: Claims 1, 3-7, 15-18, 21, and 23-26 stand rejected under pre-AIA 35 U.S.C. § I03(a) over Orr and Williams. 2 Final Act. 3-6. Claim 2 stands rejected under pre-AIA 35 U.S.C. § I03(a) over Orr, Williams, and Beer. Final Act. 6-7. Claims 8 and 19 stand rejected under pre-AIA 35 U.S.C. § I03(a) over Orr, Williams, and Linjama. Final Act. 7. Claim 20 stands rejected under pre-AIA 35 U.S.C. § I03(a) over Orr, Williams, and Luk. Final Act. 7. Claim 22 stands rejected under pre-AIA 35 U.S.C. § I03(a) over Orr, Williams, and Edpalm. Final Act. 8. 2 The Examiner states the claims are rejected under 35 U.S.C. § I03(a) as "anticipated" over the indicated combinations of references. However, the use of the term "anticipated" is inappropriate as it is reserved for rejections pursuant to 35 U.S.C. § 102. See Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628,631 (Fed. Cir. 1987) ("A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference."). We find the imprecise use of this term of art to be harmless error. 3 Appeal 2017-011339 Application 13/528,836 ANALYSIS Appellant's contentions are unpersuasive of reversible Examiner error. We adopt as our own ( 1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2-8) and (2) the reasons set forth by the Examiner in the Examiner's Answer in response to Appellant's Appeal Brief (Ans. 2-5) and concur with the conclusions reached by the Examiner. We highlight the following for emphasis. AP!s The Examiner finds Orr teaches or suggests the disputed executing and sensing steps of claim 1. Final Act. 4. The Examiner further finds Orr discloses routing accelerometer data through a serial interface (Final Act. 4 ( citing Orr ,r 87)) and using an API for routing serial data (id. ( citing Orr ,r 183)). The Examiner relies on Williams for explicitly disclosing "at least one accelerometer application programming interface (API) and at least one touch sensor APL" Final Act. 5 (citing Williams ,r,r 20, 32 for disclosing an "API [enabling] the features of the touch input (the real-time accelerometer readings of the touch found in Orr) to be used/read in order to execute software based on those values"). Appellant argues the cited portions of Williams are vague and "[ w ]ithout a further elaboration on how this API operates, this cited section of Williams fails to disclose the accelerometer API and touch sensor API of claim 1." App. Br. 9. According to Appellant, William's APis are used in connection with user interface objects, not to read data from sensors such as the recited accelerometer and touch sensor of claim 1. Appellant argues the noted deficiency of Williams is not an improper attack on the combination of Orr and Williams but identifies a claim element missing from the relied- 4 Appeal 2017-011339 Application 13/528,836 upon Williams reference and, therefore, missing from the combination. App. Br. 10-11. The Examiner responds, explaining that, although disclosing routing serial data from an accelerometer and API for routing serial data, "the API of Orr is not disclosed as a specific accelerometer API [or] a touch sensor APL" Ans. 3. Therefore, the Examiner relies on Williams for disclosing how an exemplary accessibility API would function. Id. The Examiner further explains "[t]he Office, however, has not bodily incorporated Williams into [Orr's] disclosure, but is using Williams to teach the ability for an API to communicate the functions of the device (e.g., real-time accelerometer readings of the touch found in Orr) in order to be executed by the software." Id. Appellant's arguments are unpersuasive of Examiner error. We agree with the Examiner in finding "the teaching of the communication and functionality of the API of Williams, in light of [0087] of Orr providing the actual accelerometer reading and touch events, reads on [ A Jppellant' s invention, as claimed." Id. In particular, the only deficiency of Orr is in not particularly disclosing that the routing of serial accelerometer and touch sensor data is performed using an accelerometer API and a touch sensor APL However, Orr does disclose use of an API for routing serial data and Williams discloses a number of actions that the API can support as the user interacts with the device. Therefore, we agree with the Examiner finding the combination of Orr and Williams would have taught or suggested the disputed accelerometer API (i.e., an API routing serial accelerometer data) and a touch sensor API (i.e., an API routing serial touch sensor data) of claim 1. 5 Appeal 2017-011339 Application 13/528,836 We are also unpersuaded Williams' s disclosure of using an API is fatally vague (App. Br. 9) for lack of sufficient evidence or reasoned argument supporting Appellant's conclusion. Mere attorney arguments and conclusory statements, which are unsupported by factual evidence, 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). Attorney argument is not evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such argument take the place of evidence lacking in the record. To the contrary, Appellant's Specification itself appears to lack API details similar to those alleged to render Williams' s API description inadequate. In particular, the Specification describes that In one or more embodiments, the accelerometer API(s) 110, touch sensor API( s) 118, the accelerometer sensor driver 108 and the touch sensor driver 116 may be implemented in software. One or more of these components may be part of the mobile device's operating system. In one or more embodiments, the mobile device may utilize the Microsoft® Windows® Phone Operating system and the APis 110, 118 may be part of the motion sensor APis supported by the Microsoft® Windows® Phone Operating System. Spec. ,r 19. Appellant further describes the APis may be a sequence of instructions (Spec. ,r 20) but again fails to provide any further details such as a flow chart detailing such instructions. Thus, the level of detail describing Williams' s API appears to be consistent with the level of detail provided by Appellant's Specification. Accordingly, Appellant's arguments that Williams' s description of the disputed APis would have been inadequate to a person of ordinary skill in the art are unpersuasive. 6 Appeal 2017-011339 Application 13/528,836 Reasons to Combine Orr and Williams Appellant contends the combination of Orr and Williams is improper because (i) Orr's interrupt processing is necessary to accommodate rapid sensor timing requirements that cannot be satisfied using slower API techniques (App. Br. 11-12), and (ii) "the incorporation of the APis of Williams into the system of Orr would not yield nothing more than predictable results" (App. Br. 12). Appellant argues "[t]he APis of Williams inject a signal into the system of Williams which is the opposite of reading data from a sensor [as claimed]." Id. The Examiner refutes Appellant's unsuitability argument (i) by noting "[A]ppellant's claims use an API to accomplish the same goal-reading the accelerometer readings as well as sensing a touch by the touch sensor." Ans. 4. Responding to Appellant's arguments that Williams' s APis do not read data, the Examiner explains that Williams's APis are relied upon for transferring data from an accelerometer, not for reading data as argued. Id. Appellant's conclusory statements are unpersuasive for lack of sufficient supporting evidence or technical reasoning. Although Appellant alleges one skilled in the art would not have modified Orr's interrupt-driven sensor sampling with Williams' s API method, as pointed out by the Examiner, Appellant's Specification discloses using an API while providing little detail that might support the alleged inadequacy of prior art APis to perform the desired sensor sampling functions. Furthermore, rather than disclosing a requirement for interrupt-driven sensor sampling as argued, Orr discloses that in some embodiments, "the interrupts may not be required and could be omitted." Orr ,r 87. Orr further discloses that "[i]n some embodiments, the handheld electronic device 102 is provided with a service 7 Appeal 2017-011339 Application 13/528,836 routing application programming interface (API) which provides an application with the ability to route traffic through a serial data ... connection" (Orr ,r 183) and Williams discloses using APis to support touch input components, motion sensors, accelerometers, and other devices (Williams ,r 20). Thus, we find insufficient evidence to support Appellant's contentions that the API of Williams would be unsuitable for use in the method or device of Orr. Similarly, Appellant's contentions that the combination would not produce predictable results (App. Br. 12) is not supported by the evidence of record. Concerning Appellant's arguments that Williams' s APis are unsuitable because they simulate signals rather than reading actual motion data (id.), we agree with the Examiner that the argument fails to address the Examiner's finding that Orr (not Williams) teaches reading real data from the accelerometer and touch inputs whereas Williams teaches APis utilizing such data (which work the same regardless of whether from real or simulated data). Ans. 4. Concurrent Execution of First and Second Threads Appellant contends the prior art fails to teach "the concurrent execution of the first and second threads in a same process on the same processor as recited in claim 1." App. Br. 13. In particular, Appellant argues Orr does not "disclose the use of threads within the same process on the same processor as those terms are disclosed in Applicant's specification." App. Br. 15. Instead, according to Appellant, Orr discloses "[t]he first thread operates on the accelerometer and the second thread operates on the microprocessor." Id. The Examiner responds, finding that "Processor 312 of Orr controls the accelerometer and processes readings therefrom. 8 Appeal 2017-011339 Application 13/528,836 Therefore the first and second threads are both performed by the same processor." Ans. 6. Appellant's arguments are unpersuasive. As found by the Examiner, Orr's first thread continuously reads accelerometers signals and, therefore, is executed concurrently with the second thread that detects the sensed touch signal. See Ans. 6. We also agree with the Examiner in finding, because Orr's microprocessor controls the accelerometer and processes readings ''from [the] accelerometer" rather than in the accelerometer, the first and second threads operate on the common microprocessor. Furthermore, we note that Orr discloses an embodiment wherein processing attributable to the accelerometer instead may be performed by the microprocessor based on raw data sent by the accelerometer to the microprocessor. Orr ,r 87. 3 Thus, in this embodiment, all processing is performed by the microprocessor and, accordingly, this arrangement further satisfies the argued limitation. For the reasons discussed above, we are unpersuaded of Examiner error in connection with the rejection of claim 1. Accordingly, we sustain 3 Paragraph 87 of Orr discloses: In other embodiments, rather than being performed by the accelerometer 310 the comparisons may be performed by the microprocessor 312 (typically the processor 240 of the handheld electronic device 102) based on raw data sent by the accelerometer 310 to the microprocessor 312 via the serial interface. Typically, this comparison and subsequent tap detection would be performed by the operating system 223 which returns a tap input, or possibly hard tap/soft tap input, to the active application and/or user interface framework which interprets this input accordingly. This data may be read in real- time by the microprocessor 312 at the sampling rate of the accelerometer 310, or less frequency at predetermined intervals. In such embodiments, the interrupts may not be required and could be omitted. 9 Appeal 2017-011339 Application 13/528,836 the rejections of independent claim 1 and, for the same reasons, independent claims 15 and 21 under 35 U.S.C. § 103(a) together with the rejections of dependent claims 2-8 and 16-20, and 22-26 which are not argued separately with particularity. DECISION We affirm the Examiner's decision to reject claims 1-8 and 15-26 under 35 U.S.C. § 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). See 37 C.F.R. § 41.50(±). AFFIRMED 10 Copy with citationCopy as parenthetical citation