Ex parte Lueders

Board of Patent Appeals and Interferences

Jun 4, 1998

08293104 (B.P.A.I. Jun. 4, 1998)

Application for patent filed August 19, 1994. 1
According to appellant, this application is continuation of
Application 07/852,741, filed March 16, 1992, which is
continuation of Application 07/579,214, filed September 5,
1990, which is continuation of Application 07/356,912, filed
May 23, 1989, which is division of Application 07/279,240,
filed November 30, 1988, which is continuation of Application
07/170,603, filed March 14, 1988, which is continuation of
Application 06/900,668, filed August 27, 1986, all of which
are now abandoned.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 57
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte WILLIAM A. LUEDERS
__________
Appeal No. 96-3624
Application No. 08/293,1041
__________
ON BRIEF
__________
Before HAIRSTON, KRASS and BARRETT, Administrative Patent
Judges.
Appeal No. 96-3624
Application No. 08/293,104
2
KRASS, Administrative Patent Judge.
Appeal No. 96-3624
Application No. 08/293,104
3
DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 36 through 39 and 44, all of the claims pending in the
application.
The invention is directed to a keyboard with a flexible
display which is program-controlled to automatically change
the switch identification as the operator progresses in
performing a programmed function. Further, the operator can
input information into the processing system and the
processing system can provide prompting information on the
keyboard to the operator.
Representative independent claim 36 is reproduced as
follows:
36. A programmable processing system, comprising:
a keyboard having a plurality of switches, each
individually operable to generate electrical indication of its
operations and wherein each is individually operable to
perform multiple functions;
a flexible, continuous programmable template display
membrane having electrical connections for addressing display
elements to be illuminated, wherein said membrane covers said
switches; and
a processor electrically connected to said keyboard and
to said membrane for displaying on said display membrane
Appeal No. 96-3624
Application No. 08/293,104
The U.S. Court of Appeals for the Federal Circuit2
reversed a decision by this Board affirming the examiner’s
rejection of claims 78 through 99 in Application Serial No.
07/853,356. In re Lueders, 111 F.3d 1569, 42 USPQ2d 1481
(Fed. Cir. 1997).
4
positional indicia of desired ones of said switches, and for
displaying on said display membrane functional indicia of the
function of desired ones of said switches.
The examiner relies on the following references:
Koike et al. (Koike) 4,336,530 Jun. 22,
1982
Hunter et al. (Hunter) 4,823,311 Apr. 18,
1989
Mosley (Polaroid), “Flexible LCD is lighter and thinner than
glass,” EDN, Vol. 30, Issue 24 (Oct. 1985) p. 93.
Claims 36 through 39 and 44 stand provisionally rejected
under obviousness-type double patenting as unpatentable over
claims 78 through 83 and 88 through 99 of Serial No.
07/853,356.2
Claims 36 through 39 and 44 stand further rejected under
35 U.S.C. 103 as unpatentable over Koike in view of Hunter and
Polaroid.
Reference is made to the briefs and answer for the
respective positions of appellant and the examiner.
Appeal No. 96-3624
Application No. 08/293,104
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OPINION
We will summarily sustain the provisional rejection of
claims 36 through 39 and 44 under obviousness-type double
patenting since appellant has failed to present any arguments
as to the merits of this provisional rejection, preferring to
assert only that “whether obviousness-type double patenting is
an issue shall be addressed when claims become allowed”
[principal brief-page 2]. In view of the examiner’s assertion
of the provisional rejection and the lack of a properly filed
terminal disclaimer by appellant in order to overcome such
provisional rejection, it is not a matter of whether
obviousness-type double patenting is an issue; rather,
obviousness-type double patenting is an issue and should have
been addressed.
With regard to the rejection of claims 36 through 39 and
44 under 35 U.S.C. 103, we will not sustain this rejection as
we find that the examiner has not established a prima facie
case of obviousness with regard to the claimed subject matter.
In particular, the examiner applies Koike as disclosing a
flexible, continuous template display membrane to display
Appeal No. 96-3624
Application No. 08/293,104
6
positional and functional indicia and wherein the membrane
covers a plurality of switches. The examiner recognizes that
Koike does not disclose that the membrane is a programmable
display membrane with electrical connections. Therefore,
Hunter was applied for the teaching of using a programmable
display membrane and a processor which can be electrically
programmed to display indicia and for its teaching of
replacing conventional non-electrical overlays to permit the
expansion of the number of functions without cluttering the
keyboard. Polaroid is relied on for the teaching of the
conventionality of a flexible programmable display membrane,
the examiner concluding that it would have been obvious “to
replace the flexible membrane of Koike with the programmable
flexible membrane of Polaroid because it provides the
advantage of increased flexibility as taught by Hunter”
[answer-page 6].
We disagree. In Koike, an indicia sheet 6 carries groups
of key indicia, one group of indicia intended for a timepiece
function and another group intended for a calculator function.
When mechanical slide switch 8 is moved, one of the groups of
indicia is visible and the other group is masked. Depending
Appeal No. 96-3624
Application No. 08/293,104
7
on the position of the slide switch 8, each switch of the
keyboard has an alternative function. Thus, it may fairly be
said that Koike does disclose a keyboard having a plurality of
switches, each individually operable to generate electrical
indication of its operations and wherein each is individually
operable to perform multiple functions. However, Koike
clearly does not disclose a “flexible, continuous programmable
template display membrane...wherein said membrane covers said
switches” and a “processor electrically connected to said
keyboard and to said membrane for displaying...positional
indicia of desired ones of said switches, and for
displaying...functional indicia of the function of desired
ones of said switches” [emphasis ours], as claimed.
While Polaroid does disclose a flexible LCD and Hunter
does disclose programmably alterable interactive labels for
certain function keys, we find nothing in the applied
references which would have led the skilled artisan to modify
Koike in such a manner as to apply a programmable display
membrane, having electrical connections for addressing display
elements to be illuminated, over the switches. Polaroid’s
flexible LCD certainly does not suggest this and Hunter
Appeal No. 96-3624
Application No. 08/293,104
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clearly fails to suggest any such display membrane, Hunter
providing a separate dedicated display for each definable
function key. Thus, the only reference left which could
possibly disclose a display membrane is Koike. But Koike
discloses a transparent sheet 5 through which to view indicia,
an indicia sheet 6 which provides groups of indicia, some of
which will be masked and some of which will be visible,
elastic members 3 and a rigid board 2 on which key contacts 1
are located. The best that could be considered an overlay
display membrane in Koike is the indicia sheet 6. Yet, Koike
discloses nothing which may be considered the claimed
programmable display membrane which is interactive with the
keyboard such that display elements to be illuminated are
addressed and a processor connected to both the keyboard and
the membrane causes the display, on the membrane, of
positional and functional indicia. Neither Hunter nor
Polaroid is of any help in this regard since only Hunter shows
an interaction between definable function keys F1-F5 and
dedicated displays 31-35 but clearly fails to suggest anything
like the claimed programmable template display membrane, which
covers the keyboard switches and interacts with the keyboard
Appeal No. 96-3624
Application No. 08/293,104
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for displaying, on the membrane, positional and functional
indicia and having electrical connections for addressing
display elements to be illuminated.
Similarly, the applied references do not make the subject
matter of independent method claim 44 obvious since none of
these references suggests the functions of the claimed
programmable display membrane. Moreover, with regard to claim
44, we find no suggestion by the applied references, and the
examiner has pointed to nothing therein, of the claimed
“displaying...at continuous locations including locations
between keys as well as overlying keys not used to effect the
currently desired function.”
We have not sustained the rejection of claims 36 through
39 and 44 under 35 U.S.C. 103 but we have sustained the
provisional rejection of these claims under the doctrine of
obviousness-type double patenting in view of appellant’s lack
of argument on this issue.
Accordingly, the examiner’s decision is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
Appeal No. 96-3624
Application No. 08/293,104
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AFFIRMED
KENNETH W. HAIRSTON )
Administrative Patent Judge)
)
)
)
ERROL A. KRASS ) BOARD OF
PATENT
Administrative Patent Judge) APPEALS AND
) INTERFERENCES
)
)
LEE E. BARRETT )
Administrative Patent Judge)
Appeal No. 96-3624
Application No. 08/293,104
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Pehr Jansson
Texas Instruments Inc.
P.O. Box 655474 Mail Stop 219
Dallas, TX 75265