Ex Parte Papakipos et alDownload PDFPatent Trial and Appeal BoardDec 28, 201613276634 (P.T.A.B. Dec. 28, 2016) Copy Citation 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. 13/276,634 10/19/2011 Matthew Nicholas Papakipos 079894.0245 1268 91230 7590 Baker Botts L.L.P. 2001 Ross Avenue. 6th Floor Dallas, TX 75201 12/30/2016 EXAMINER HARRIS, DOROTHY H ART UNIT PAPER NUMBER 2625 NOTIFICATION DATE DELIVERY MODE 12/30/2016 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): ptomaill @bakerbotts.com ptomail2 @ bakerbotts .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATTHEW NICHOLAS PAPAKIPOS and MATTHEW CAHILL Appeal 2016-000419 Application 13/276,6341 Technology Center 2600 Before JOSEPH L. DIXON, KAMRAN JIVANI, and MATTHEW J. MCNEILL, Administrative Patent Judges. JIVANI, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1, 7—10, and 12—24, which are all the claims pending in the present application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants identify Facebook, Inc. as the real party in interest. App. Br. 2. Appeal 2016-000419 Application 13/276,6340F STATEMENT OF THE CASE The present application relates to selecting a notification profile of a mobile device based on device orientation. Spec. 11. Claim 1 is illustrative and is reproduced below with the disputed limitation emphasized. 1. A device comprising: one or more processors; one or more sensors coupled to the processors; and a memory coupled to the processors comprising instructions executable by the processors, the processors being operable when executing the instructions to: at predefined intervals of time, periodically access an orientation sensor to determine a current orientation of the device, the current orientation being a downward-facing orientation such that a back side of the device faces upward; determine that the device has been in the current orientation for at least a threshold period of time and that the current orientation corresponds to a particular one of a plurality of notification profiles of the device, wherein in at least one of the notification profiles an operating parameter of an indication of an incoming message is modulated according to an affinity value of the incoming message with respect to a user of the device; in response to determining that the device has been in the current orientation for at least a threshold period of time and that the current orientation corresponds to a particular one of the notification profiles, determine that one or more conditions for transitioning the device to the particular one of the notification profiles are met, wherein at least one of the conditions comprises the device being in the current orientation of down-ward facing for at least a pre-determined amount of time; 2 Appeal 2016-000419 Application 13/276,6340F in response to determining that the conditions are met, automatically transition the device to the particular one of the notification profiles associated with a quiet mode; and while the device is in the down-ward facing position and operating according to the particular one of the notification profiles in the quiet mode, displaying content on a first display disposed on the back side of the device while maintaining a second display disposed on a front side of the device in a powered off state. The Rejections Claims 1, 10, 12, 19, 20, 23, and 24 stand rejected under 35 U.S.C. § 103(a) over Choi et al. (US 2008/0032748 Al; Feb. 7, 2008), Gonzalez et al. (US 2004/0081305 Al; Apr. 29, 2004), Tseng (US 8,442,600 Bl; May 14, 2013) and Culbert et al. (US 2009/0167542 Al; July 2, 2009). Claims 7, 8, and 21 stand rejected under 35 U.S.C. § 103(a) over Choi, Gonzalez Tseng, and Culbert, and Altman et al. (US 2008/0070593; Mar. 20, 2008). Claims 9 and 22 stand rejected under 35 U.S.C. § 103(a) over Choi, Gonzalez, Tseng, Culbert, and Paek et al. (US 2012/0150772 Al; June 14, 2012). Claims 13 and 16—18 stand rejected under 35 U.S.C. § 103(a) over Choi, Gonzalez, Tseng, Culbert, and Hinckley et al. (US 2002/0167488 Al; Nov. 14, 2002). Claims 14 and 15 stand rejected under 35 U.S.C. § 103(a) over Choi, Gonzalez, Tseng, Culbert, Hinckley, and C. Anderson (US 2007/0004451 Al; Jan. 4, 2007) (“Anderson”). 3 Appeal 2016-000419 Application 13/276,6340F ANALYSIS Based on Appellants’ arguments, we decide the appeal on the basis of representative claim 1. See 37 C.F.R. § 41.37(c)(l)(iv) (2012). Appellants’ arguments focus on the claimed “at predefined intervals of time, periodically access [ing] an orientation sensor to determine a current orientation of the device.” App. Br. 19—20; Reply Br. 3^4. The Examiner rejects claim 1, in relevant part, relying on the combination of Choi and Culbert. Final Act. 3—10. Specifically, the Examiner finds: Choi discloses that after collection of an event, placement attitude is monitored for a preset time duration in order to determine whether the placement attitude (orientation) remains constant. The plain meaning of monitoring corresponds to testing or sampling, especially on a regular or ongoing basis (see definition of monitor cited on PTO 892 dated September 3, 2014). Ans. 3 (citing Choi 9, 32, 42). The Examiner further finds Culbert discloses “monitoring sensor data over a particular period of time,” which the Examiner finds would teach or suggest the claimed periodically accessing. Ans. 4 (citing Culbert || 9, 12, 66—72). Appellants argue that, although the Examiner and Appellants “do not necessarily disagree about the operations described in Choi,” the Examiner errs in rejecting claim 1 because Choi’s “activating a sensor in response to a detected event and then monitoring the device for a given amount of time thereafter is not analogous to Appellants’ claim language.” Reply Br. 3 (emphasis added); App. Br. 19. Appellants further contend that, although “Culbert discloses that the received data may be analyzed to determine the condition of the device at a given moment... or over a period of time,” the 4 Appeal 2016-000419 Application 13/276,6340F Examiner errs in rejecting claim 1 because “determining the position of a device during a period of time is not analogous to periodically determining the position of a device.” Reply Br. 3 (emphasis added); App. Br. 20. Finally, Appellants contend, the Examiner engages in “impermissible hindsight reconstruction of Appellants’ claims.” Reply Br. 4; App. Br. 22. We have considered Appellants’ arguments in the Appeal Brief and Reply Brief, as well as the Examiner’s findings and reasons in the Examiner’s Answer thereto. We are not persuaded by Appellants’ arguments. Instead, we agree with and adopt as our own, the Examiner’s findings and reasons. We further emphasize the following. First, we are not persuaded by Appellants’ arguments regarding the cited references because the arguments reduce to an assertion that the claim language is not disclosed verbatim in the cited references. The doctrine of obviousness is not an ipsissimis verbis test. That is, identity of terminology is not required. In re May, 574 F.2d 1082, 1090 (CCPA 1978). Appellants’ arguments seeking “analogous” disclosure in the cited references are misplaced because the obviousness inquiry is properly directed to whether the cited references would teach or suggest the claimed subject matter to one of ordinary skill in the art at the time. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007). Moreover, “it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom.” In re Preda, 401 F.2d 825, 826 (CCPA 1968). Absent from Appellants’ contentions is persuasive evidence or argument as to why the cited disclosures would not, at minimum, suggest periodically determining orientation at predefined intervals of time, particularly in light of Choi’s disclosure, cited by the 5 Appeal 2016-000419 Application 13/276,6340F Examiner, that continuous monitoring would be undesirable. Ans. 3; Choi 1 42 (“continuous monitoring of movement of the mobile terminal 100 using the sensor 131 may consume too much power and interrupt other functions”). Second, we are similarly not persuaded by Appellants’ argument regarding alleged hindsight reconstruction. A prima facie case of obviousness requires “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). Upon review of the Examiner’s findings, we observe the Examiner articulates detailed reasoning identifying specific teachings of Choi and Culbert and sets forth a motivation to combine these teachings. Ans. 3^4; Final Act. 3—10. We determine the Examiner’s findings are reasonable because a skilled artisan would “be able to fit the teachings of multiple patents together like pieces of a puzzle” since the skilled artisan is “a person of ordinary creativity, not an automaton.” KSRInt’l Co. v. Teleflex, Inc., 550 U.S. 398, 420-21 (2007). We note Appellants do not proffer evidence that combining Choi’s monitoring of orientation for a predetermined duration with Culbert’s monitoring over a period of time would have been “uniquely challenging or difficult for one of ordinary skill in the art. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418-19). Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection of claim 1. Appellants present no further arguments concerning independent claim 20 nor dependent claims 7—10, 12—19, and 21—24. App. Br. 23—24. Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejections of these claims. 6 Appeal 2016-000419 Application 13/276,6340F DECISION We affirm the Examiner’s decisions rejecting claims 1, 7—10, and 12— 24. 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 7 Copy with citationCopy as parenthetical citation