Ex Parte Lengeling

Patent Trial and Appeal Board

Jun 26, 2017

13038217 (P.T.A.B. Jun. 26, 2017)

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.
13/038,217 03/01/2011 Gerhard Lengeling 106842100300
(P10820US1)
8382
119082 7590 06/28/2017
Annie cln MORRTSON fr FOFRSTFR T T P SF
EXAMINER
425 MARKET STREET
SAN FRANCISCO, CA 94105-2485
LONG, ANDREA NATAE
ART UNIT PAPER NUMBER
2175
NOTIFICATION DATE DELIVERY MODE
06/28/2017 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):
EOfficeSF @mofo.com
PatentDocket @ mofo. com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GERHARD LENGELING
Appeal 2015-0082751
Application 13/038,2172
Technology Center 2100
Before MAHSHID D. SAADAT, NORMAN H. BEAMER,
and MELISSA A. HAAPALA, Administrative Patent Judges.
BEAMER, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—10 and 20-31. Claims 11—19 are canceled. We
have jurisdiction over the pending rejected claims under 35 U.S.C. § 6(b).
We affirm.
1 An oral hearing was held June 15, 2017.
2 Appellant identifies Apple Inc. as the real party in interest. (App. Br. 4.)
Appeal 2015-008275
Application 13/038,217
THE INVENTION
Appellant’s disclosed and claimed inventions are directed to
controlling a slider on a touch-screen. (Abstract.) Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A method comprising:
at an electronic device with a touch-sensitive display:
displaying, on the touch-sensitive display, a
control for controlling a function that has a first state and
a second state, wherein the control includes a slider that
toggles between a first position and a second position;
while the function is in the first state and the slider
is in the first position, detecting a first user gesture
associated with the control;
in response to detecting the first user gesture
associated with the control while the function is in the
first state, switching the function from the first state to
the second state and toggling the slider from the first
position to the second position;
detecting an end of the first gesture, and
maintaining the function in the second state and
maintaining the slider in the second position after
detecting the end of the first gesture;
while the function is in the second state and the
slider is in the second position, detecting a second user
gesture associated with the control; and
in response to detecting the second gesture
associated with the control while the function is in the
second state, switching the function from the second state
to the first state while maintaining the slider in the
second position;
detecting an end of the second gesture, and
in response to detecting the end of the second
gesture, switching the function from the first state to the
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second state while maintaining the slider in the second
position.
REJECTION
The Examiner rejected claims 1—10 and 20-31 under 35 U.S.C.
§ 103(a) as being unpatentable over Matas (US 8,116,807 B2, issued Feb.
14, 2012), Chambers et al. (US 2003/0028382 Al, pub. Feb. 6, 2003)
(“Chambers”), and Ball et al. (US 7,831,054 B2, issued Nov. 9, 2010)
(“Ball”). (Final Act. 3-8.)
ISSUES ON APPEAL
Appellant’s arguments present the following issues3:
Issue One: Whether the Examiner erred in finding the combination of
Matas, Chambers, and Ball teaches or suggests all of the limitations of
independent claims 1, 20, and 26. (App. Br. 11—26.)
Issue Two: Whether the Examiner erred in finding the combination of
Matas, Chambers, and Ball teaches or suggests the additional limitations of
claim 4. (App. Br. 27.)
Issue Three: Whether the Examiner erred in finding the combination
of Matas, Chambers, and Ball teaches or suggests the additional limitations
of dependent claims 5, 22, and 28. (App. Br. 28—30.)
3 Rather than reiterate the arguments of Appellant and the findings of the
Examiner, we refer to the Appeal Brief (filed May 1, 2015); the Reply Brief
(filed Sept. 16, 2015); the Final Office Action (mailed May 6, 2014); and the
Examiner’s Answer (mailed July 17, 2015) for the respective details.
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Application 13/038,217
Issue Four: Whether the Examiner erred in finding the combination
of Matas, Chambers, and Ball teaches or suggests the additional limitations
of dependent claims 7, 24, and 30. (App. Br. 30-31.)
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner errs. We disagree with Appellant’s arguments,
and we adopt as our own (1) the pertinent findings and reasons set forth by
the Examiner in the Action from which this appeal is taken (Final Act. 3—8)
and (2) the corresponding reasons set forth by the Examiner in the
Examiner’s Answer in response to Appellant’s Appeal Brief (Ans. 8—18).
We concur with the applicable conclusions reached by the Examiner and
emphasize the following.
Issue One
In finding Matas, Chambers, and Ball teach or suggest the limitations
of independent claims 1, 20, and 26, the Examiner relies on the disclosure in
Matas of a “vibrate mode switch icon” in the form of a slider bar on a touch
screen display that toggles between an on and off position via a swipe
gesture, such as “one or more taps, one or more swipes, [etc.].” (Final Act.
3^4; Matas Fig. 5C, col. 14,11. 57—63, col. 18,11. 7—16.) The Examiner also
relies on the disclosure in Chambers of a button used to control microphone
status, where the button may be, for example, a touch-sensitive onscreen
graphical button, and in which tapping the button toggles the microphone on
and off, while pressing and holding the button temporarily reverses the
microphone state. (Final Act. 4—5; Ans. 12—13; Chambers ^fl[ 23, 65—67.)
The Examiner further relies on the disclosure in Ball of a slider-type
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graphical volume control that changes position in response to one gesture
(swiping), and changes appearance (in color or intensity) but not position in
response to a second gesture (selecting the mute box). (Final Act. 5; Ans. 8—
9; Ball, Figs. 9, 11, col. 4,11. 19-24, col. 5,11. 51-59, col. 6,11. 18-29.)
Appellant argues Ball is “completely irrelevant to the claimed
graphics,” because:
[T]he slider in Ball that remains in the same position with the
changing state of the mute function is fundamentally
different, and does not correspond to, the claimed slider,
because the position of the slider in Ball never changes in
response to the changing state of the mute function, whether or
not such change was caused by a first gesture or a second
gesture.
The position of the slider in Ball changes only in
response to the increasing or decreasing volume level, and is
not associated with the state of the mute function.
* * *
Nowhere does Ball disclose or suggest the graphics of a control
that behaves in one way with the changing state of the
associated function, if the change is caused by a first gesture,
and behaves in a different way with the changing state of the
same function, if the change is caused by a second gesture.
(App. Br. 17—19, see also App. Br. 22—23 (“Not a single control in Ball has
the graphics that behave in two different ways with the changing state of the
same function, depending on whether the changes are caused by a first
gesture or a second gesture.”)
These arguments are unpersuasive because the Examiner relies on the
combination of Matas, Chambers, and Ball as teaching or suggesting these
limitations. In re Mouttet, 686 F.3d 1322, 1333 (Fed. Cir. 2012) (citing In re
Keller, 642 F.2d 413, 425 (CCPA 1981)) (“[T]he test for obviousness is
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Application 13/038,217
what the combined teachings of the references would have suggested to
those having ordinary skill in the art.”). As described above, Matas teaches
a slider bar that toggles between two states in response to a swiping gesture,
Chambers teaches a control that toggles persistently between two states in
response to one gesture (a tap) and temporarily in response to a different
gesture (press and hold), and Ball teaches a slider bar that changes position
in response to one gesture (swiping), and changes appearance but not
position in response to a second gesture (selecting the mute box).
With respect to Ball, Appellant argues the slider volume control, and
muting check box, and their respective functions, are “not associated” and
“not related” — i.e., that “[t]he Examiner has mixed up Ball’s gestures,
functions, and function states to manufacture the rejection.” (App. Br. 18;
Reply Br. 8.) To the contrary, however, the mute function is directly related,
and indeed part of, the volume control, as confirmed by the Examiner in
citing an alternative embodiment disclosed in Ball, in which the slider
toggles between two states (zero versus non-zero volume level) in response
checking or unchecking the mute control box. (Ans. 9; Ball Fig. 11, col. 6,
11. 18-29.)
Appellant further argues the Examiner errs because Chambers
discloses a “mechanical button,” which “would not be applicable to the
graphics of a virtual control disclosed on the screen, much less the graphical
position of the virtual control responding differently in response to the two
different gestures.” (App. Br. 21—22.) This mischaracterizes the record —
“the disclosure of Chambers teaches the buttons for operating the audio
states may be any type to include touch-sensitive buttons and where the
button may be displayed onscreen as a graphical user interface. These
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buttons can additionally visually change to visually identify a current state.”
(Ans. 12—13; Chambers Tflf 23, 65)
Appellant also argues the Examiner used improper hindsight in
relying on the cited combination. (App. Br. 20.) We are not persuaded the
Examiner’s combination is improper. As the Examiner finds, “[i]t would
have been obvious to one skilled in the art at the time the invention was
made to have incorporated the temporary toggle of Chambers with the slider
of Matas to reduce the amount of input required by a user when temporarily
wanting to access a different state.” (Final Act. 4—5.) Also, “[i]t would have
been obvious to one skilled in the art at the time the invention was made to
have combined the slider of Ball with the method of Matas as modified by
Chambers to visually preserve the value when the second state is temporarily
switched.” (Final Act. 5; see also Ans. 10-11.) Appellant does not point to
any evidence of record that the resulting combination would be “uniquely
challenging or difficult for one of ordinary skill in the art” or “represented an
unobvious step over the prior art.” Leapfrog Enters., Inc. v. Fisher-Price,
Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR Int 7 Co. v. Teleflex
Inc., 550 U.S. 398, 418—19 (2007)). The Examiner’s findings are reasonable
because the skilled artisan would “be able to fit the teachings of multiple
patents together like pieces of a puzzle” because the skilled artisan is “a
person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 420—21.
We are persuaded the claimed subject matter exemplifies the principle that
“[t]he combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.”
KSR, 550 U.S. at 416.
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Issue Two
Claim 4 depends from claim 1 (via claim 3), and further requires the
second gesture of claim 1 to be a “tap and hold gesture includ[ing] one or
more points of contact on the touch-sensitive display.” (App. Br. 34.) The
Examiner relies on the above discussed disclosure in Chambers of the
“press[] and hold[]” functionality of the microphone button. (Final Act. 5—
6.) Appellant again argues the Examiner errs because the button of
Chambers is mechanical, which argument is without merit for the reasons
discussed above. (App. Br. 27; Ans. 15—16.)
Issue Three
Claims 5, 22, and 28 depend, respectively, from claims 1, 20, and 26,
and further require a change in appearance of the slider in response to the
second gesture. (App. Br. 34, 36, 37.) The Examiner relies on the above
discussed operation disclosed in Ball, in which the slider changes color or
intensity in response to selecting the mute box. (Final Act. 6.) Appellant’s
arguments of Examiner error reprise the above discussed assertions that the
mute function is unrelated to the volume function. (App. Br. 28—30.) Those
arguments are unpersuasive for the reasons discussed.
Issue Four
Claims 7, 24, and 30 depend respectively, from claims 1, 20, and 26,
and further require the function to be a “sustain function.” (App. Br. 34, 36,
37—38.) The Examiner relies on the above discussed mute function of Ball,
and, absent any definition of “sustain” in the Specification, broadly
interprets “sustain” to encompass “mute.” (Final Act. 7.) As the Examiner
finds:
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Application 13/038,217
In response to applicant’s argument that the references
fail to show certain features of applicant’s invention, it is noted
that the features upon which applicant relies (i.e., the virtual
sustain pedal provides for notes played by a user to endure
beyond the period of time the user held down the key to play
that note or beyond a regularly established note duration) are
not recited in the rejected claim(s). Although the claims are
interpreted in light of the specification, limitations from the
specification are not read into the claims. See In re Van Geuns,
988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
The term “sustain” given the broadest reasonable
interpretation in light of the specification would encompass to
maintain audio playback. Ball discloses muting and unmuting
the volume/audio. Stopping or muting the volume or audio
would therefore reasonably read on the claimed limitation.
(Ans. 17—18.) Accordingly, we sustain the Examiner’s rejection of claims 7,
24, and 30.
CONCLUSIONS
For the reasons stated above, we sustain the obviousness rejections of
claims 1, 4, 5, 7, 20, 22, 24, 26, 28, and 30. We also sustain the obviousness
rejections of claims 2, 3, 6, 8—10, 21, 23, 25, 27, 29, and 31, which rejections
are not argued separately with particularity.
DECISION
We affirm the Examiner’s obviousness rejections of claims 1—10 and
20-31.
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
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