Ex Parte Yu et alDownload PDFPatent Trial and Appeal BoardDec 23, 201613518189 (P.T.A.B. Dec. 23, 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. 13/518,189 06/21/2012 Kun Yu 042933/421322 2567 10949 7590 12/28/2016 Nokia Corporation and Alston & Bird LLP c/o Alston & Bird LLP Bank of America Plaza, 101 South Tryon Street Suite 4000 Charlotte, NC 28280-4000 EXAMINER BUKOWSKI, KENNETH ART UNIT PAPER NUMBER 2621 NOTIFICATION DATE DELIVERY MODE 12/28/2016 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): u sptomail @ alston .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KUN YU and HAO UI WANG Appeal 2016-003793 Application 13/518,189 Technology Center 2600 Before THU A. DANG, SCOTT E. BAIN, and STEVEN M. AMUNDSON, Administrative Patent Judges. DANG, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1—19 and 24, which are all of the pending claims. Claims 20-23 and 25—38 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2016-003793 Application 13/518,189 A. INVENTION According to Appellants, the invention relates to “controlling the aural or visual output of a portable electronic apparatus using gesture input” (Spec. 1,11. 5-7). B. REPRESENTATIVE CLAIMS Claim 1 is exemplary: 1. An apparatus, comprising: at least one processor; and at least one memory storing computer program instructions configured, working with the at least one processor, to cause the apparatus at least to perform: detecting user input; selecting, in dependence upon the detected user input, at least a portion of an output of a user output device as the at least a portion of the output is output by the user output device; determining, while the at least a portion of the output of the user output device is selected, whether a user makes a gesture input by moving the apparatus; and altering, in response to determining that the gesture input has been made by the user, the selected at least a portion of the output of the user output device as the selected at least a portion of the output is output by the user output device. C. REJECTIONS Claims 1—7, 9, 11—13, 15—19, and 24 stand rejected under 35 U.S.C. § 102(b) as being anticipated by, or alternatively under 35 U.S.C. § 103(a) as being unpatentable over Kotzin (US 2005/0219223 Al; pub. Oct. 6, 2005). Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Kotzin and Cho (US 2006/0258194 Al; pub. Nov. 16, 2006). 2 Appeal 2016-003793 Application 13/518,189 Claims 10 and 14 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Kotzin and Dahlke (US 2009/0280860 Al; pub. Nov. 12, 2009). The principal issues before us are whether the Examiner erred in finding that Kotzin discloses “selecting ... a portion of an output of a user output device as the .. . output is output” and “altering, in response to determining that the gesture input has been made by the user, the selected . . . portion of the output... as the selected . . . portion of the output is output” (claim 1). The following Findings of Fact (FF) are shown by a preponderance of the evidence. Kotzin discloses detecting how the user is holding the device and generating a virtual output representative of the sensed characteristic or data management function (Abst.). Figure 1 is reproduced below: II. ISSUES III. FINDINGS OF FACT Kotzin iriGr. 1 3 Appeal 2016-003793 Application 13/518,189 Figure 1 shows an exemplary embodiment, wherein, in response to sensing the pouring gesture of the device 100, device 100 initiates a data transfer to a second device 102 and presents on the display 104 a virtual representation of a glass pouring liquid (128). The user would “pour” the content until the amount of content received by device 102 is the desired amount, and stop the pouring gesture to terminate the data transfer (id.). The virtual representation may be a glass emptying in relation to the pouring gesture (142), or a graphical representation of a plunger on the display of the device having motion or animation that coincides with a contextual characteristic of a push-pull motion of the housing 100 (144). IV. ANALYSIS As to claim 1, Appellants contend “there is a clear separation between selection of the file and the display of the status indicator,” such that “using the gesture to alter the display of the status indicator does not read on Appellant’s claimed feature of altering the selected at least a portion of the output as it is output' (App. Br. 9). That is, Appellants contend “Kotzin fails to teach or suggest selection of any content ‘as it is output’ and altering that same output using a gesture input” (id. at 10). According to Appellants, “[t]he glass of water status indicator is not the content, but merely a ‘virtual physical feedback’ representation of the status of the file transfer operation” (id. at 11). Further, “selection of a file for a file transfer and subsequent display of a status indicator does not reflect ‘altering the icon as it is output,’ as the icon is no longer present to be output” but instead “it is replaced by the ‘pouring water’ status indicator” (id. at 12). 4 Appeal 2016-003793 Application 13/518,189 We have considered all of Appellants’ arguments and evidence presented. However, we disagree with Appellants’ contentions regarding the Examiner’s rejections of the claims. Based on the record before us, we are unpersuaded that the Examiner erred in finding that claim 1 is anticipated by or alternatively obvious over Kotzin. As a preliminary matter of claim construction, we give the claims their broadest reasonable interpretation consistent with the Specification. See In re Morris, 111 F.3d 1048, 1054 (Fed. Cir. 1997). While we interpret claims broadly but reasonably in light of the Specification, we nonetheless must not import limitations from the Specification into the claims. See Phillips v. AWHCorp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc). The Examiner interprets ‘“an output’ of the device . . . broadly enough to include a visual output of the display” (Ans. 2). We do not consider such interpretation that “the output of the device in Kotzin is a visual output, which could be considered to be all or a part of the display screen” (id.) to be overly broad or unreasonable. Kotzin discloses detecting how the user is holding the device and generating a virtual output representative of the sensed characteristic (FF). In particular, Kotzin discloses making a selection to output/display a visual output on the display screen, and in response to determining that the gesture input, such as a pouring motion, has been made by the user, altering the visual output to a pouring glass as it is being output (id.). Although Appellants contend “[t]he glass of water status indicator is not the content, but merely a ‘virtual physical feedback’ representation of the status of the file transfer operation” (App. Br. 11), nothing in the claims precludes the Examiner’s broad but reasonable interpretation of selected 5 Appeal 2016-003793 Application 13/518,189 “output” (or selected “content” as argued) as the “visual output” on the display screen including “a ‘virtual physical feedback’ representation of the status,” as long as the “visual output” is selected and then altered as it is being output. Appellants further contend “selection of a file for a file transfer and subsequent display of a status indicator” is not selection of any content as it is output and altering that same output because “the icon ... is replaced by the ‘pouring water’ status indicator” {id. at 12). We, however, agree with the Examiner’s finding that, in Kotzin, the same visual output on the display screen is “selected” and then altered (Ans. 2). That is, giving the term “selecting” its broadest reasonable interpretation, we are unpersuaded that the Examiner erred in finding Kotzin discloses “selecting” a visual output on the display screen as it is being output, wherein the same visual output is then altered in dependence of the pouring motion to the “pouring water” status indicator. Here, Appellants concede that the visual output on the display screen is “replaced by the ‘pouring water’ status indicator” (App. Br. 12). As the Examiner finds, in Kotzin, “the content is selected by user” by “selecting, in dependence upon the detected user input, at least a portion of an output of a user output device” as it is being output (Ans. 2). We agree with the Examiner’s finding that “after selection of the content. . . that is visually output. . ., and once the gesture is detected, the visual output is then altered by the device to show a glass or plunger in motion” {id. at 3). Therefore, we agree with the Examiner’s finding that Kotzin discloses the disputed limitations of claim 1 (Ans. 2—3). 6 Appeal 2016-003793 Application 13/518,189 On this record, Appellants do not persuade us of reversible error in the Examiner’s 35 U.S.C. § 102(b) rejection of claim 1 and claims 2—7, 9, 11— 13, 15—19, and 24 not separately argued and falling therewith. Further, assuming arguendo our reviewing court were to conclude that, given the broadest reasonable interpretation, Kotzin does not specifically disclose the contested limitations of selecting the output as it is being output, and then altering the “same” output as it is being output, as Appellants contend (App. Br. 10), the Examiner also rejects the claims under 35 U.S.C. § 103(a) as being obvious over Kotzin. Based on the record before us, we also agree with the Examiner that Kotzin at least teaches or suggests the disputed limitations (Ans. 3). Although Appellants contend that Kotzin (or any of the other cited references) does not “actually teach” the disputed limitations (App. Br. 10), the Supreme Court instructs that the conclusion of obviousness can be based on the background knowledge possessed by a person having ordinary skill in the art. KSRInt’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). Here, Appellants have presented no evidence that “selection of content being displayed or output” and then “altering that same [sic] content in response to a gesture input” (App. Br. 10, emphasis added) would have been “uniquely challenging or difficult for one of ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Instead, we discern no error in the Examiner’s conclusion that it would have been well within the skill of one skilled in the art to select and alter the same content. See KSR, 550 U.S. at 417. That is, the skilled artisan is “a person of ordinary creativity, not an automaton.” Id. at 421. Here, we find Appellants’ invention is simply a 7 Appeal 2016-003793 Application 13/518,189 modification of prior art teachings that would have realized a predictable result (id.). On this record, Appellants also do not persuade us of reversible error in the Examiner’s 35 U.S.C. § 103(a) rejection of claims 1—7, 9, 11—13, 15— 19, and 24 over Kotzin. Appellants provide no substantive arguments with respect to the other rejections except to contend that “none of the other cited prior art references cure the deficiencies of Kotzin” (App. Br. 13). Accordingly, we also affirm the rejections of claim 8 over Kotzin in further view of Cho; and claims 10, and 14 over Kotzin in further view of Dahlke. V. CONCLUSION AND DECISION We affirm the Examiner’s rejections of claims 1—7, 9, 11—13, 15—19, and 24 under 35 U.S.C. § 102(b); and of claims 1—19 and 24 under 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). AFFIRMED 8 Copy with citationCopy as parenthetical citation