Ex Parte Killian et al

Patent Trial and Appeal Board

Jan 12, 2018

13252826 (P.T.A.B. Jan. 12, 2018)

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.
13/252,826 10/04/2011 David Killian 339192-US-CNT 8905
69316 7590 01/17/2018
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
EXAMINER
TAN, ALVIN H
ART UNIT PAPER NUMBER
2172
NOTIFICATION DATE DELIVERY MODE
01/17/2018 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):
u sdocket @ micro soft .com
chriochs @microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID KILLIAN, GLENN HARTER, JUSTIN FLORES, and
PAUL KRZYZANOWSKI
Appeal 2017-000753
Application 13/252,826
Technology Center 2100
Before ST. JOHN COURTENAY III, JOHN PINKERTON, and
JOYCE CRAIG, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1—11 and 13—22, which are all the claims pending in this application.
Claim 12 is cancelled. In the Advisory Action (2), mailed on October 29,
2015 (after the Aug. 13, 2015 final action), the Examiner indicates that
claims 2 and 13 contain allowable subject matter. Also in the Advisory
Action (2), the Examiner withdrew the rejections under pre-AIA 35 U.S.C.
§ 112, first and second paragraphs. Therefore, the rejections under pre-AIA
35 U.S.C. § 103(a) of claims 1, 3—11, and 14—22 are before us on appeal.
We have jurisdiction over these rejected claims under 35 U.S.C. § 6(b).
We affirm.
Appeal 2017-000753
Application 13/252,826
STATEMENT OF THE CASE
Introduction
Appellants’ invention “relates generally to a user interface, and more
specifically, to a user interface for use in connection with a remote control
unit that contains multiple consumer electronic devices.” (Spec. 13).
Representative Claim
1. A system including a graphical user interface for
managing a plurality of system devices within a controlled
environment, comprising:
one or more processors configured to generate the
graphical user interface, the graphical user interface configured
to:
display a set of first control objects associated with
a plurality of respective system devices within the
controlled environment;
enable a user to select a system device of the
plurality of respective system devices for active user
control of the selected system device by at least
providing an activation input for a corresponding control
object of the set of first control objects;
and
display a device control interface configured to
simultaneously present, automatically in response to at
least the activation input being provided:
an indication of the selected system device;
a set of second control objects associated with a
plurality of respective affiliate system devices within the
controlled environment, the respective affiliate system
devices being selected by the at least one or more
processors based on a determination by the at least
one of the one or more processors that the respective
affiliate system devices are child devices in a chain of
system devices of the selected system device; and
2
Appeal 2017-000753
Application 13/252,826
control options for the selected system device, each
control option being associated with a sequence of
commands that, when executed, sends instructions to
control at least one of operations or functions of the chain
of system devices of the selected system device.
(Contested limitations LI and L2 are emphasized in italics and bold,
respectively).
Rejections 1
A. Claims 1, 3—11, 14—20, and 22 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being obvious over the combined teachings and
suggestions of Dresti et al. (US 2003/0103088 Al, published June 5,
2003) (hereinafter “Dresti”), Slemmer (US 2003/0231212 Al,
published Dec. 18, 2003), and Humpleman et al. (US Patent No.
6,198,479 Bl, issued Mar. 6, 2001) (hereinafter “Humpleman”).
B. Claim 21 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Dresti,
Slemmer, Humpleman, and Hinckley et al. (US 7,358,956 B2, issued
Apr. 15, 2008) (hereinafter “Hinckley”).
ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. To the extent Appellants have not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 41.37(c)(l)(iv). We highlight and address specific findings
and arguments for emphasis in our analysis below.
1 In the Advisory Action (2), mailed Oct. 29, 2015, the Examiner withdrew
previous rejections under pre-AIA 35 U.S.C. § 112, first and second
paragraphs, and also withdrew the rejection of claims 2 and 13 under
§ 103(a), indicating that claims 2 and 13 are allowable.
3
Appeal 2017-000753
Application 13/252,826
Rejection A of Independent Claim 1 under § 103(a)
Issue: Under pre-AIA 35 U.S.C. § 103(a), did the Examiner err by
finding the cited combination of Dresti, Slemmer, and Humpleman teaches
or suggests contested limitations LI and L2:
[LI] the graphical user interface configured to: . . . display a
device control interface configured to simultaneously present,
automatically in response to at least the activation input being
provided: an indication of the selected system device; a set of
second control objects associated with a plurality of respective
affiliate system devices . . . and control options for the selected
system device, [and]
[L2] the respective affiliate system devices being selected by
the at least one or more processors based on a
determination by the at least one of the one or more
processors that the respective affiliate system devices are
child devices in a chain of system devices of the selected
system device[,]
within the meaning of representative claim l?2 (Emphasis added in italics
and bold).
Contested Limitation LI — Representative Claim 1
In the final Action (14), the Examiner finds the contested limitation
LI claim language is taught or suggested by Humpleman:
Humpleman discloses a method and apparatus for controlling a
plurality of devices on a home network to perform a service
[column 2, lines 19-22], A session manager displays related
devices on a network and allows users select a device for
control [column 15, lines 7-12, 34-41; figure 8], After selection
of a device, the user is presented with control options for
2 We give the contested claim limitations the broadest reasonable
interpretation (BRI) consistent with the Specification. See In re Morris, 111
F.3d 1048, 1054 (Fed. Cir. 1997)
4
Appeal 2017-000753
Application 13/252,826
controlling the selected device [figure 10, 706]. The session
manager continues to display the contents of the device link
page with only those related devices to the selected device
activated [column 15, lines 49-64; column 16, line 8 to column
17, line 15]. Thus, the interface of Humpleman displays a set
of second control objects concurrently with the control
options associated with the selected device. Additionally, the
selected device is indicated as shown in [figure 11]. This
allows users to more easily see which devices are related to a
selected device. The user may then select a second device
from the related devices [column 17, lines 16-26] wherein the
user is presented with control options for controlling the
second device [figure 11].
(emphasis added).
Regarding contested limitation LI of claim 1, Appellants contend,
inter alia: “Humpleman does not teach or suggest a set of second control
objects that is simultaneously displayed with control options and a system
device indication, as recited in claim 1.” (App. Br. 9) (emphases added in
bold, underline in original). In support, Appellants contend that:
[I]n contrast to claim 1, Humpleman discloses that all icons of
available devices are populated in the interface when the
session manager is activated (see FIG. 8, device link page 710),
and then subsequently, a user may select a device
icon to populate the user interface with controls therefor (see
FIG. 10 (804): “when the user selects the device button 712 for
Dad’s TV, the session manager displays the top-level home
page 804 for the respective home device,” col. 15, lines 49-51).
However, the other device icons are already displayed in device
link page 710, and are not displayed in response to the user
selecting device button 712. As noted by the Examiner on page
14 of the Office Action, “[t]he session manager continues to
display the contents of the device link page with only those
related devices to the selected device activated” (emphasis
added). Thus, any of the device icons displayed in the session
manager of Humpleman are not a set of second control objects
5
Appeal 2017-000753
Application 13/252,826
associated with a plurality of respective affiliate system devices
that are simultaneously present, automatically in response to
at least the activation input being provided, as recited in
independent claim 1 at least because the device icons in the
device link page are previously and continually displayed with
respect to the selection of a given device.
Furthermore, activation of the session manager in
Humpleman in no way teaches or suggests activation of a
control object, as in claim 1. The recited control objects are
each associated with a system device, and upon their activation,
system devices are selected for active user control. In contrast,
the session manager of Humpleman is not associated with any
devices on the network, and activation of the session manager
displays devices icons but does not select devices for active
user control.
In Humpleman, activation of the session manager does
not select devices, and additionally, activation of a control for
any given device does not, when executed, “display a device
control interface configured to simultaneously present,
automatically in response to at least the activation input being
provided: an indication of the selected system device; a set of
second control objects associated with a plurality of respective
affiliate system devices ... and control options for the selected
system device” for active user control of the selected system
device, as in independent claim 1. Accordingly, neither the
session manager nor the device icons of Humpleman teach or
suggest the recited claim feature.
(App. Br. 10-11).
The Examiner disagrees:
[The] Examiner notes that Appellant mischaracterizes the
claim by requiring the set of second control objects to be
displayed in response to at least activating a control object of a
set of first controls objects. Nowhere in the claim restricts the
set of second control objects from already being displayed
before being presented. The claim only recites that the set of
second control objects are simultaneously presented in
6
Appeal 2017-000753
Application 13/252,826
response to at least the activation input being provided.
Examiner interprets “presented” as to bring forth or show.
Therefore, if a plurality of items are already being displayed, a
subset of the items may then be presented by emphasizing those
items belonging to the subset and deemphasizing the items not
belonging to the subset.
Contrary to Applicant's arguments, Humpleman discloses
a method and apparatus for controlling a plurality of devices on
a home network to perform a service [column 2, lines 19-22]. A
session manager displays related devices on a network and
allows users select a device for control [column 15, lines 7-12,
34-41; figure 8], After selection of a device, the user is
presented with control options for controlling the selected
device [figure 10, ‘706). As shown in [figure 10], the selected
device “Dads TV” is indicated on the display. The session
manager continues to display the contents of the device link
page ‘710’ with only those related devices to the selected
device activated [column 15, lines 49-64; column 16, lines 8-
21, 38-42; column 17, lines 1-10]. For each home device found
to have a matching capability to the selected home device, the
session manager continues to activate the respective device
button and for each home device that is found to have no
matching capabilities to the selected home device, the session
manager deactivates the respective device button [column 16,
lines 8-21, 38-42; column 17, lines 1-17. Thus, in response to
selecting a device (e.g. “Dad’s TV”), the system will present a
set of second control objects associated with a plurality of
respective affiliate system devices by emphasizing those
devices having a matching capability to the selected device and
deemphasizing those devices that do not have matching
capabilities to the selected device. The set of emphasized
devices in ‘710’ will be simultaneously presented with an
indication of the selected device /figures 10, 11, ‘712, ’ ‘804 ]
and control options associated with the selected device [figures
10, 11, ‘706 ]. This allows users to more easily see which
devices are related to a selected device for further user control.
(Ans. 3 4) (bold emphases added, underline and italics in original).
7
Appeal 2017-000753
Application 13/252,826
In reviewing the record, we particularly note Appellants argue that
“activation of the session manager in Humpleman in no way teaches or
suggests activation of a control object, as in claim 1.” (App. Br. 11) (bold
emphasis added).
This statement (id.) indicates to the Board that Appellants have
misunderstood or mischaracterized the Examiner’s mapping of the claim
terms to the corresponding features found in the cited combination of
references. As explained by the Examiner (Ans. 4—5): “Contrary to
Appellant's argument, it is the selection of the device ‘712’ [figure 10] that
[the] Examiner interprets as the activation of the control object in claim 1,
and not activation of the session manager.” (Ans. 4) (emphasis added).
As further explained by the Examiner:
In response to activating the device “Dads TV” in ‘710’ figure
10], the system will simultaneously present (1) an indication
of the selected device [figures 10, 11, ‘712,’ ‘804’, (2) a set of
second control objects associated with a plurality of respective
affiliate system devices by emphasizing those devices having a
matching capability to the selected device and deemphasizing
those devices that do not have matching capabilities to the
selected device, and (3) control options associated with the
selected device figures 10, 11, ‘706].
(Ans. 4—5) (bold emphasis added).
Thus, the Examiner (id.) reads the recited “activation input for a
corresponding control object of the set offirst control objects'1'’ (claim 1) on
Humpleman’s (activation input) device button 712 for “Dad’s TV,” as
shown in Humpleman’s Figure 10. We find Humpleman’s plural input
buttons 712, as depicted within device link box 710 (including the selected
(dotted, i.e., activated) “Dad’s TV” box —Fig. 10), teach or suggest the
8
Appeal 2017-000753
Application 13/252,826
recited: “display a device control interface configured to simultaneously
present, automatically in response to at least the activation input being
provided: an indication of the selected system device;” (Claim 1, emphases
added).
We find Humpleman’s dotted “Dad’s TV box (712) (Fig. 10)
evidences that when “Dad’s TV” is selected, this action simultaneously and
responsively opens device top-level home page box 804, corresponding to
“Dad’s TV,” which further depicts “a set of second control objects
associated with a plurality of respective affdiate system devices.” (Claim 1).
We find at least the depicted television channel and volume front
panel controls (i.e., “second control objects” associated with “Dads TV”
712), are similar to channel and volume controls inherently associated with
“Basement TV” 712, thus teaching or at least suggesting set of second
control objects associated with a plurality of respective affdiate system
devices.” (Claim 1) (emphasis added). See Humpleman’s device link page
710 (Fig. 10). Thus, we find Humpleman’s depicted channel and volume
front panel controls (i.e., “second control objects”), when combined with
Dresti || 211—212 (teaching macro controls), teach or suggest the recited
“control options for the selected system device,” as claimed. (Claim 1,
emphases added).
We also agree with the Examiner’s broad but reasonable claim
interpretation: The “Examiner notes that the term ‘active user control’ has
not been explicitly defined in Appellant’s specification. Therefore,
Examiner interprets use of the term ‘active user control’ in claim 1 as
allowing any type of control of the selected device.” (Ans. 5). Because
“applicants may amend claims to narrow their scope, a broad construction
9
Appeal 2017-000753
Application 13/252,826
during prosecution creates no unfairness to the applicant or patentee.” In re
ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007)
(internal citation omitted). On this record, Appellants have not shown that
the Examiner’s broader interpretation is overly broad or unreasonable.
For at least these reasons, we are not persuaded of error regarding the
Examiner’s underlying factual findings and ultimate legal conclusion of
obviousness regarding contested limitation LI.
Contested Limitation L2 — Representative Claim 1
We reproduce contested limitation L2 of claim 1 below:
[L2] the respective affiliate system devices being selected by
the at least one or more processors based on a
determination by the at least one of the one or more
processors that the respective affiliate system devices are
child devices in a chain of system devices of the selected
system device; (emphasis added).
Regarding limitation L2 of claim 1, Appellants contend, inter alia:
For instance, in Slemmer, the disclosed devices in the hierarchy
(see Slemmer, paragraphs [0007] and [0116]-[0117]) are not
“selected” based on being included in the hierarchy. Instead,
Slemmer discloses that devices in the hierarchy list are
“cycled through” individually and provided a
communication “until a response is received or the list is
exhausted.” Slemmer, paragraph [0116]. In other words, a list
of alternative devices that may be able to reply to a
communication are interrogated one at a time by providing the
communication, but Slemmer lacks any notion of selecting a
plurality of devices, much less selecting a plurality of devices
because the devices are on the list. Put another way, the
hierarchy in Slemmer is not a basis for selecting a number of
10
Appeal 2017-000753
Application 13/252,826
the devices —rather, the hierarchy is a list of devices to which
communications sequentially provided if required.
(App. Br. 15—16) (emphasis added).
In the Answer (8), the Examiner finds the contested limitation L2
claim language is taught or suggested as follows:
Regarding the use of Slemmer, the combination of Dresti in
view of Slemmer are used to teach the limitation “the respective
affiliate system devices being selected by the at least one or
more processors based on a determination by the at least one of
the one or more processors that the respective affiliate system
devices are child devices in a chain of system devices of the
selected system device.” One cannot show nonobviousness by
attacking references individually where the rejections are based
on combinations of references. See In re Keller, 642 F.2d 413,
208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d
1091, 231 USPQ 375 (Fed. Cir. 1986).
After reviewing the evidence, we disagree with Appellants that
“Slemmer lacks any notion of selecting a plurality of devices” because
sequential communication or interrogation is purportedly not the same as
selecting. We note Appellants admit “Slemmer discloses that devices in the
hierarchy list are ‘cycled through’ individually and provided a
communication ‘until a response is received or the list is exhausted.
Slemmer, paragraph [0116].” (App. Br. 15).
Therefore, we find cycling to address each device in turn in the
hierarchy list (thus addressing “child” devices as distinguished from parent
devices in the hierarchy), as taught by Slemmer (| 116), necessarily requires
selecting each device in the hierarchy for such sequential communication or
11
Appeal 2017-000753
Application 13/252,826
interrogation purposes, thus at least suggesting contested limitation L2.3
Thus, we find the evidence cited by the Examiner (Ans. 13) sufficient to
show that “the natural result flowing from the operation as taught would
result in the performance of the questioned function.” PAR Pharm., Inc. v
TWIPharms., Inc., 773 F.3d 1186, 1194-95 (Fed. Cir. 2014) (internal
citation omitted).
For at least these reasons, we are not persuaded of error regarding the
Examiner’s underlying factual findings and ultimate legal conclusion of
obviousness regarding contested limitation F2.
Based upon a preponderance of the evidence, we are not persuaded
the Examiner erred. Accordingly, we sustain rejection A under § 103 of
representative independent claim 1. Grouped claims 3—11, 14—20, and 22
(not separately argued) fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Rejection B Under § 103 of Dependent Claim 21
Appellants do not advanced separate, substantive arguments for
dependent claim 21, which was rejected separately under §103 rejection B.
Therefore, such arguments are waived. See 37 C.F.R. § 41.37(c)(l)(iv).
3 Our reviewing court guides: ‘“the question under [35 U.S.C. § 103] is not
merely what the references expressly teach but what they would have
suggested to one of ordinary skill in the art at the time the invention was
made.’” Merck & Co. v. Biocraft Laboratories, Inc., 874 F.2d 804, 807
(Fed. Cir. 1989); see also MPEP § 2123.
12
Appeal 2017-000753
Application 13/252,826
Reply Brief
To the extent Appellants advance new arguments in the Reply Brief
not in response to a shift in the Examiner’s position in the Answer, we note
arguments raised in a Reply Brief that were not raised in the Appeal Brief or
are not responsive to arguments raised in the Examiner’s Answer will not be
considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
CONCLUSION
Based upon a preponderance of the evidence, and on this record, we
are not persuaded the Examiner erred in rejecting claims 1, 3—11, and 14—22
under pre-AIA 35 U.S.C. § 103(a), as being obvious over the combined
teachings, and suggestions of the cited references.
DECISION
We affirm the Examiner’s decision rejecting claims 1, 3—11, and
14—22 under pre-AIA 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(f).
AFFIRMED
13