Ex Parte Tootill

Board of Patent Appeals and Interferences

Feb 22, 2010

10346351 (B.P.A.I. Feb. 22, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte DAVID TOOTILL
____________________

Appeal 2009-007675
Application 10/346,351
Technology Center 2100
____________________

Decided: February 22, 2010
____________________

Before JAY P. LUCAS, ST. JOHN COURTENAY, III, and DEBRA K.
STEPHENS, Administrative Patent Judges.

STEPHENS, Administrative Patent Judge.

DECISION ON APPEAL
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Appellant appeals under 35 U.S.C. § 134(a) (2002) from a final
rejection of claims 1, 2, 4-13, 15-24, 26-34, and 36-44 (App. Br. 2, Ans. 2-
3)1. We have jurisdiction under 35 U.S.C. § 6(b) (2008) ), and we heard the
appeal on January 21, 2010.

We AFFIRM.
Introduction
According to Appellant, the invention is a system and method for
mouseless navigation of web-based applications that associate features with
a first key selection and provides a second key selection to navigate within
the feature (Abst., Spec. 3).

STATEMENT OF THE CASE
Exemplary Claim
Claim 1 is an exemplary claim and is reproduced below:
A method for mouseless navigation of web-based
applications, the method comprising:

generating a user interface associated with a web-based
application, the user interface including a plurality of features,
each feature associated with a first navigation mechanism
providing navigation to the feature using a first key selection,
the first navigation mechanism and the first key selection
associated with an input mechanism;

associating at least one of the plurality of features with a
second navigation mechanism, the at least one associated

1 The Examiner withdrew the rejection of claims 14, 25 and 35 in the
Answer and found that these claims are allowable over the prior art (Ans. 3).
Claim 3 has been cancelled (App. Br. 2, Ans. 3).
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feature having one or more sub-features, wherein the second
navigation mechanism provides navigation among the sub-
features using at least one second key selection, the second
navigation mechanism and the second key selection associated
with the input mechanism, wherein the at least one second key
selection includes at least one of an arrow key, a Home key, an
End key, a Shift-arrow key combination, a Shift-Home key
combination, or a Shift-End key combination; and

presenting the user interface to a user, whereby the user
navigates to the at least one feature in the user interface using
the first navigation mechanism associated with the at least one
feature, and whereby the user navigates among the sub-features
of the at least one feature using the second navigation
mechanism associated with the at least one feature.

Prior Art
Tervo 2002/0036620 A1 Mar. 28, 2002
Ellis 6,898,762 B2 May 24, 2005

HTML 4.01 Specification W3C Recommendation, WORLD WIDE
WEB CONSORTIUM (W3C), Dec. 24, 1999, www.w3.org/TR/html4/
(hereinafter “W3C”).

Rejections
Claims 1, 2, 4-13, 15-24, 26-34, and 36-44 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Tervo, Ellis and W3C.

GROUPING OF CLAIMS
(1) Appellant argues claims 1, 2, 4-9, 11-13, 15-23, 26-33 and 36-44
as a group on the basis of representative claim 1 (App. Br. 7). We therefore
treat claims 2, 4-9, 11-13, 15-23, 26-33 and 36-44 as standing or falling with
representative claim 1.
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(2) Appellant also submits separate arguments for claims 10, 24, and
34 as a group on the basis of representative claim 10 (id. at 11). We
therefore treat claims 24 and 34 as standing or falling with representative
claim 10.2
We accept Appellant’s grouping of the claims. See 37 C.F.R.
§ 41.37(c)(1)(vii).

ISSUE 1
35 U.S.C. § 103(a): claims 1, 2, 4-9, 11-13, 15-23, 26-33 and 36-44
ISSUE 1a
Appellant asserts Ellis is nonanalogous art and thus, the references
have been improperly combined (App. Br. 5). Specifically, Appellant
argues his disclosure clearly states the field of endeavor relates to
“mouseless navigation of web applications” where a user would normally
use a mouse for navigating through web-based application interfaces (id.).
In contrast, according to Appellant, Ellis is related to interactive television
program guide systems for which a user can navigate through use of a
remote control (id. at 6). Additionally, Appellant contends Ellis does not
pertain to the particular problem addressed by Appellant – using keys on a
keyboard to navigate a web application interface but instead pertains to
client-server based program guides (id.).

2 Appellant also submitted separate arguments for claims 14, 25 and 35 in
the Appeal Brief. As the Examiner found these to be allowable in the
Answer (Ans. 3), we will not discuss this argument.
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The Examiner finds Appellant is construing the field of endeavor too
narrowly and that both Ellis and Tervo are directed toward the field of
navigating a graphical user interface (Ans. 14).

Issue 1a: Has Appellant shown the Examiner erred in finding Ellis is
analogous art?

FINDINGS OF FACT (FF)
We find the following:
Tervo Reference
(1) Tervo teaches a method and system for that allows a user to
select a single keystroke to automatically access screen fields, functions, and
programs and to execute another function or screen (Abst., ¶[002])).
Ellis Reference
(2) Ellis teaches a method and system for an electronic program
guide (Abst.). An interactive television program guide allows users to
navigate within the program guide to choose guide data, schedule reminders,
schedule program recordings, and parentally lock programs (id.).
(3) “A user controls the operation of user television equipment 22
with user interface 46. User interface 46 may be a pointing device, wireless
remote control, keyboard, touch-pad, voice recognition system, or any other
suitable user input device.” (col. 9, ll. 56-60) (emphasis added).
Dictionary Definitions
(4) The term “mouse” is defined as “[a] common pointing device.
The basic features of a mouse are a flat-bottomed casing designed to be
gripped by one hand, one or more buttons on the top, a multidirectional
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detection device (usually a ball) on the bottom, and a cable connecting the
mouse to the computer.” MICROSOFT COMPUTER DICTIONARY 348 (5th ed.
2002).
(5) The term “remote control” is defined as “1: control as by radio
signal) or operation from a point at some distance removed 2: a device or
mechanism for controlling something from a distance” MERRIAM
WEBSTER’S COLLEGIATE DICTIONARY 987 (10th ed. 2000).
(6) The suffix “-less” is defined as “destitute of: not having” (id. at
666).

PRINCIPLES OF LAW
References within the statutory terms of 35 U.S.C. § 103 qualify as
prior art for an obviousness determination only when analogous to the
claimed invention. In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992). Two
separate tests define the scope of analogous prior art: (1) whether the art is
from the same field of endeavor, regardless of the problem addressed and,
(2) if the reference is not within the field of the inventor's endeavor, whether
the reference still is reasonably pertinent to the particular problem with
which the inventor is involved. In re Deminski, 796 F.2d 436, 442 (Fed. Cir.
1986); In re Wood, 599 F.2d 1032, 1036 (CCPA 1979); In re Bigio, 381
F.3d 1320, 1325 (Fed. Cir. 2004) (emphasis added).

ANALYSIS
We find none of Appellant’s arguments to be persuasive. Ellis is
directed to an interactive television program guide (FF 2). Ellis specifically
discloses that a user can navigate within the program guide – a software
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application – using various devices including a pointing device, wireless
remote control, keyboard, touch-pad, or other suitable devices (FF 3).
Therefore, Appellant’s arguments that Ellis does not teach navigating with a
keyboard are in error.
Moreover, Appellant has not defined “mouseless” in his Specification.
Therefore, we take the broadest reasonable definition. We find one of
ordinary skill in the art at the time of the invention would have reasonably
found mouseless (the term actually recited in the claim – not keyboard –
which Appellant seems to argue) to mean destitute of a mouse. We further
find one of ordinary skill in the art at the time of the invention would have
reasonably found mouse to have the meaning defined above (FF 4). Thus,
we find a system controlled by any of a wireless remote control, a keyboard,
a touch-pad, a voice control, a trackball, a keypad, etc. are all mouseless
systems. Indeed, Ellis discusses a system that is mouseless and allows
navigating within a software application.
Therefore, Ellis, like Tervo and Appellant’s invention, discusses
mouseless navigating within a software application. To be analogous art, the
references do not have to address the same problem, as Appellant would
have us believe (see In re Deminski, 796 F.2d at 442). Instead, the art needs
to be from the same field of endeavor, or if not within the same field, must
be reasonably pertinent to the particular problem with which Appellant is
involved (id.). We find Tervo, Ellis, and Appellant’s invention are
analogous art – all three references discuss navigating within a software
application using a “mouseless” device. Moreover, all the references, Tervo,
Ellis, and W3C, are reasonably pertinent to the Appellant’s problem since
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each discusses navigating software applications. Under either test, these
references are analogous.

Issue 1b
Appellant asserts his invention is not obvious over Tervo, Ellis and
W3C because the references, taken alone or in combination, fail to teach or
suggest “associating at least one of the plurality of features with a second
navigation mechanism, wherein the second navigation mechanism provides
navigation among the sub-features using at least one second key selection”
as recited in claim 1 (see also commensurate language in claims 16, 26, and
36) (App. Br. 7). Specifically, Appellant argues Tervo does not teach or
suggest a user interface feature having sub-features or suggest the user
interface has any features that can be navigated “within” (id. at 8).
Therefore, Appellant argues, Tervo does not teach a "second navigation
mechanism [that] provides navigation within the at least one feature” (id.).
Moreover, Appellant argues Ellis relates to a fundamentally different type of
user interface from the recited invention, instead describing conventional
techniques for using a remote control to navigate an interactive television
program guide (id. at 9). Appellant further contends Ellis does not disclose,
teach, or suggest that a keyboard can be used to navigate interactive program
guides or that computer-based user interfaces can be navigated using a
remote control instead of a keyboard (id.).
The Examiner finds Appellant’s argument regarding Tervo to be
unpersuasive because the Examiner relied on Ellis to teach the recited
limitation (Ans. 14). The Examiner further finds a remote control and a
keyboard could be one unit and a keyboard is a type of remote control (and
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vice versa) since both have keys and both remotely operate a machine (id. at
15). Moreover, the Examiner finds, even if the keyboard and remote were
separate devices, the combination of Tervo and Ellis would still teach the
claimed limitation (id.). Indeed, the Examiner finds “association” is a broad
term and can denote two devices are part of a same system (id.).

Issue 1b: Has Appellant shown the Examiner erred in finding Ellis
teaches “associating at least one of the plurality of features with a second
navigation mechanism wherein the second navigation mechanism provides
navigation among the sub-features using at least one second key selection?”

FURTHER FINDINGS OF FACT (FF)
We further find the following:
Ellis Reference
(7) The program guide client may display program listings in a
suitable program listings screen on user television equipment 22 such as, for
example, displaying the program listings by time (col. 11, ll. 14-17, FIG. 6).
A highlight region 151 may highlight the current program listing 150 (col.
11, ll. 17-19).
(8) Ellis further provides:
A user may position the highlight region 151 by entering
appropriate commands with user interface 46. For example, if
user interface 46 has a keypad, a user can position highlight
region 151 using “up” and “down” arrow keys on remote
control 40. A user may select a listing by, for example,
pressing on the “OK” or “info” key on remote control 40.
Alternatively, a touch sensitive screen, trackball, voice
recognition device, or other suitable device may be used to
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move highlight region 151 or to select program listings without
the use of highlight region 151.

(col. 11, ll. 19-28).
(9) Ellis further states:
The program guide may also provide users with an opportunity
to parentally control titles, programs, or channels using boolean
or natural language expressions. If desired, program guide
server 25 may parentally control programs based on user
preference profiles. A user may indicate a desire to parentally
control titles, programs, or channels by, for example, selecting a
selectable Parents feature 106 from main menu 102 of FIG. 5.
In response, the program guide may display a criteria screen,
such as illustrative criteria screens 161 and 169 of FIGS. 17a
and 17b. The program guide client may display criteria screen
161 of FIG. 17a to provide a user with an opportunity to control
programs, for example, according to a boolean type expression.
The user may construct a boolean type expression by selecting
criteria such as attribute types, attributes, and logical operators.
The user may make such selections, for example, using any
suitable combination of right, left, up, or down arrow key
sequences to sequence through the attribute types, attributes and
logical operators.

(col. 18, ll. 32-47).
Dictionary Definitions
(10) The term “mechanism” is defined as “1a: a piece of machinery
b: a process or technique for achieving a result” (MERRIAM WEBSTER’S
COLLEGIATE DICTIONARY 719 (10th ed. 2000).
(11) The term “associate” is defined as “to join or connect together”
or “to bring together or into relationship in any of various intangible ways”
(id. at 70).

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PRINCIPLES OF LAW
We determine the scope of the claims in patent applications not solely
on the basis of the claim language, but upon giving claims their broadest
reasonable construction in light of the specification as it would be
interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The properly interpreted claim
must then be compared with the prior art.
“In the absence of an express intent to impart a novel meaning to the
claim terms, the words are presumed to take on the ordinary and customary
meanings attributed to them by those of ordinary skill in the art.” Brookhill-
Wilk 1, LLC. v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003)
(citation omitted). “[T]he words of a claim ‘are generally given their
ordinary and customary meaning.’” Phillips v. AWH Corp., 415 F.3d 1303,
1312 (Fed. Cir. 2005) (en banc) (citations omitted). The “ordinary and
customary meaning of a claim term is the meaning that the term would have
to a person of ordinary skill in the art in question at the time of the invention,
i.e., as of the effective filing date of the patent application.” Id. at 1313.

ANALYSIS
Appellant argues that Tervo does not teaching this limitation,
however, the Examiner relies on Ellis to teach it. Appellant’s arguments as
to whether a remote control is a keyboard, etc. are moot since, as discussed
above, Ellis discloses use of a keyboard. Moreover, the claim recites a
mouseless system which, as discussed above, includes any system without a
mouse, whether that includes a remote control, keyboard, or other mouseless
device.
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Claim 1 requires associating a feature with a second navigation
mechanism (See App. Br. 15, Claims App’x). Appellant has not defined
either “associating” or “mechanism” in his Specification. Therefore, we
take the broadest reasonable construction giving the terms the ordinary and
customary meanings attributed to them by one of ordinary skill in the art at
the time of the invention (See Brookhill, 334 F.3d at 1298, and Phillips, 415
F.3d at 1313). We find “associating” means bringing together, in this
recitation, a feature and a second navigation mechanism (FF 11). We further
find a mechanism is a piece of machinery or a technique for achieving a
result (FF 10).
Given these definitions, we find the claimed first and second
navigation mechanisms could be either two different devices or one device
with two techniques for navigating. Ellis teaches a first navigation
mechanism that allows selection of a parental control feature from a list of
several features (FF 9 and FIG 5, element 102). Once that feature is
selected, sub-features are displayed (FF 10 and FIG. 17a and 17b). A user
may then use a second navigation mechanism to navigate through sub-
features (FF 10). The second navigation mechanism is the mechanism that
controls through right, left, up, or down arrow key sequences, thus allowing
a user to sequence through the criteria or through use of a natural language
expression (id.).
We therefore find Ellis teaches associating the feature (in this
example, parental control) having sub-features (e.g., genre, actor, rating,
etc.), with a second navigation mechanism (right, left, up, or down arrow
keys) that allows navigation within the sub-features (e.g., genre, actor,
rating, etc.) using one of the keys. Accordingly, we find the Examiner did
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not err in concluding Tervo and Ellis teach “associating at least one of the
plurality of features with a second navigation mechanism wherein the
second navigation mechanism provides navigation among the sub-features
using at least one second key selection.”

ISSUE 2
35 U.S.C. § 103(a): claims 10, 24, and 34
Appellant asserts his invention is not obvious over Tervo, Ellis and
W3C because none of the references teach the feature of “associating each
of the plurality of features with a first key selection by … disabling use of
ALT keys at a host used by the user” as claimed in dependent claim 10
(App. Br. 11). Specifically, Appellant contends the Examiner identifies the
passages of W3C that relate to “Access keys” as allegedly teaching disabling
the use of ALT keys (id.). However, Appellant asserts W3C merely
discusses how an implemented access key can be invoked simply does not
disclose, teach, or suggest “disabling use of Alt keys at a host used by the
user,” such that each feature in a user interface can be associated with a first
key selection (id.).
The Examiner finds W3C teaches the assignment of ALT keys (Ans.
16). The Examiner specifically finds a user can chose to not assign the ALT
keys or to reassign the ALT keys to a different combination (id.). Thus, the
Examiner finds that if the user changed the combination, the user would be
disabling the ALT key combinations (id.). Therefore, the Examiner finds
W3C teaches “associating each of the plurality of features with a first key
selection by... disabling use of Alt keys at a host used by the user” as recited
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in claim 10 and recited with commensurate language in claims 24 and 34 (id.
at 15-16).

Issue 2: Has Appellant shown the Examiner erred in concluding the
combination of Tervo, Ellis and W3C teaches “associating each of the
plurality of features with a first key selection by … disabling use of Alt keys
at a host used by the user?”

FURTHER FINDINGS OF FACT (FF)
We further find as follows:
W3C Reference
(12) W3C defines the HyperText Markup Language (HTML)
according to W3C Recommendations (pg. 7).
(13) An attribute assigns an access key (a single character from a
document character set) to an element (pg. 22). Pressing the assigned access
key to an element gives focus to that element (id.). The invocation of access
keys depends on the underlying system (id.). For example, MS Windows
based machines require pressing the “alt” key in addition to the access key
while Apple systems require pressing the “cmd” key in addition to the
access key (id.)

PRINCIPLES OF LAW
Discussing the question of obviousness of a patent that claims a
combination of known elements, KSR Int’l v. Teleflex, Inc., 550 U.S. 398
(2007) explains:
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When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill. Sakraida [v. Ag
Pro, Inc., 425 U.S. 273 (1976)] and Anderson's-Black Rock[,
Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969)] are
illustrative ─ a court must ask whether the improvement is
more than the predictable use of prior art elements according to
their established functions.
Id. at 417.

ANALYSIS
The W3C reference is related to web based applications and teaches
assigning a function to a key (FF 13). We thus find one of ordinary skill in
the art would have been able to assign a function to disable the key (disable
use of the key). Indeed we find a person of ordinary skill in the art would
have recognized using the prior art element of assigning a function to a key
is an established function. Moreover, we find one of ordinary skill in the art
at the time the invention was made would have had associating each of the
features with a first key selection by assigning new functions to keys
including disabling the “alt” key, within their skill set.
We again note that Appellant is arguing elements not recited in the
claims. The claim does not recite “disables any default use of the Alt key
and allows host to assign new functions to an Alt-x key combination” as
argued by Appellant (Reply Br. 6-7). The claims do not require that the host
performs the “identifying” or “associating” and further, the claims do not
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recite “assigning” but instead only “associating” (App. Br. 17, Claims App’x
Claim 10). As discussed above, “associating” means “to bring together or
into relationship in any of various intangible ways” (FF 11). W3C teaches
bringing a first key selection into a relationship with features (FF 13). We
thus find that W3C teaches and suggests “associating each of the plurality of
features with a first key selection by…disabling use of Alt keys at a host
used by the user.”

CONCLUSION
Appellant has not shown the Examiner erred in finding Ellis is
analogous art. Additionally, Appellant has not shown that the Examiner
erred in finding Ellis teaches “associating at least one of the plurality of
features with a second navigation mechanism wherein the second navigation
mechanism provides navigation among the sub-features using at least one
second key selection”.
Thus, Appellant has not shown the Examiner erred in rejecting
independent claims 1, 16, 26, and 36 as obvious over Tervo, Ellis and W3C.
Since claims 2, 4-9, 11-13 and 15 depend from independent claim 1, claims
17-23 dependent from claim 16, and claims 27-33 depend from claim 26 and
these claims were not argued separately, claims 2, 4-9, 11-13, 15, 17-23 and
27-33 are also found to be obvious over Tervo, Ellis and W3C.
Accordingly, we conclude Appellant has not shown the Examiner
erred in rejecting claims 1, 2, 4-9, 11-13, 15-23, 26-33, and 36-44 under 35
U.S.C. § 103(a) for obviousness over Tervo, Ellis and W3C.
Finally Appellant has not shown that the Examiner erred in
concluding the combination of Tervo, Ellis and W3C teaches “associating
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each of the plurality of features with a first key selection by … disabling use
of Alt keys at a host used by the user.” Accordingly, we conclude Appellant
has not shown the Examiner erred in rejecting claims 10, 24, and 34 under
35 U.S.C. § 103(a) for obviousness over Tervo, Ellis and W3C.

DECISION
The Examiner’s rejection of claims 1, 2, 4-13, 15-24, 26-34, and 36-
44 under 35 U.S.C. § 103(a) as being obvious over Tervo, Ellis and W3C is
affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2009).

AFFIRMED

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