Polycom, Inc.

Patent Trials and Appeals Board

Dec 2, 2021

2020004974 (P.T.A.B. Dec. 2, 2021)

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.
14/871,012 09/30/2015 Konstantin Pirogov 199-1215US 1060
11422 7590 12/02/2021
Keith Lutsch PC - Poly
801 Travis Street, Suite 1610
Houston, TX 77002
EXAMINER
HARRIS, DOROTHY H
ART UNIT PAPER NUMBER
2625
NOTIFICATION DATE DELIVERY MODE
12/02/2021 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):
eofficeaction@appcoll.com
patents@keithlutschpc.com
polyip@dennemeyer.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KONSTANTIN PIROGOV and SIMON MORET
___________

Appeal 2020-004974
Application 14/871,012
Technology Center 2600
____________

Before CAROLYN D. THOMAS, CARL W. WHITEHEAD JR., and
MICHAEL J. STRAUSS, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 3–7, 9–13, 15–19, and 22–32, all of the pending
claims. Final Act. 1.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42.
Appellant identifies the real party in interest as Plantronics, Inc. Appeal Br.
3.
2 In this Decision, we refer to Appellant’s Appeal Brief (“Appeal Br.,” filed
March 3, 2020) and Reply Brief (“Reply Br.,” filed June 17, 2020); the Final
Office Action (“Final Act.,” mailed September 10, 2019) and the Examiner’s
Answer (“Ans.,” mailed April 17, 2020); and the Specification (“Spec.,”
filed September 30, 2015 as amended January 9, 2019). Rather than repeat
the Examiner’s findings and Appellant’s contentions in their entirety, we
refer to these documents.
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STATEMENT OF THE CASE
The claims relate to “a touch-sensitive device configured to recognize
a multi-finger touch.” Spec. ¶ 7. As noted above, claims 1, 3–7, 9–13, 15–
19, and 22–32 are pending. Claims 1, 7, 13, and 19 are independent.
Appeal Br. 27 (claim 1), 28 (claim 7), 29 (claim 13), 30–31 (claim 19)
(Claims App.). Claims 3–6, 25, and 29 depend directly or indirectly from
claim 1, claims 9–12, 26, and 30 depend directly or indirectly from claim 7,
claims 15–18, 27, and 31 depend directly or indirectly from claim 13, and
claims 22–24, 28, and 32 depend directly or indirectly from claim 19. Id. at
27–33.
Claim 1, reproduced below with a disputed limitation emphasized, is
illustrative.
1. A touch-sensitive device, comprising:
memory that stores a plurality of computer programs and
an operating system enabling at least one of the plurality of
computer programs to run in the foreground of the touch-
sensitive device;
a touch-sensitive input including a plurality of touch-
sensitive regions, the plurality of touch-sensitive regions
including three predetermined touch-sensitive regions, wherein
the touch-sensitive device does not display the boundaries of the
touch-sensitive regions; and
a processor that performs a function in response to a
simultaneous touch of the predetermined touch-sensitive regions
regardless of the computer program running in the foreground.
Id. at 27 (emphasis added). Each of independent claims 7, 13, and 19 recites
limitations corresponding to the disputed limitations of claim 1. Id. at 28–
31.
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REFERENCES AND REJECTIONS
The Examiner relies upon the following references:
Name3 Reference Pub. Date
Tsern US 2009/0199130 A1 Aug. 6, 2009
Lim US 2010/0110025 A1 May 6, 2010
Ayanam US 2014/0282045 A1 Sept. 18, 2014
Kies US 2014/0282272 A1 Sept. 18, 2014
Khoury US 2016/0343350 A1 Nov. 24, 2016
The Examiner rejects:4
a. claims 1, 3–5, 7, 9–11, 13, 15–17, 19, 22, 23, and 25–32 under 35
U.S.C. § 103 as obvious over the combined teachings of Tsern,
Lim, Ayanam, and Kies (Final Act. 5–23); and
b. claims 6, 12, 18, and 24 under 35 U.S.C. § 103 as obvious over the
combined teachings of Tsern, Lim, Ayanam, Kies, and Khoury (id.
at 24–25).
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the contentions and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). The Examiner and Appellant focus their findings and

3 All reference citations are to the first named inventor only.
4 The Examiner objects to claims 1, 5, 7, 13, 19, and 29–32 for various
formal reasons. Final Act. 3–4. Although Appellant contends the objections
are improper (Appeal Br. 10–15), the Examiner correctly notes that
objections are not appealable but, instead, are reviewable by filing a petition
with the Director. Ans. 3 (citing MPEP § 706.01). Accordingly, the
objections are not before us and we do not substantively address them or
Appellant’s arguments in connection therewith.
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contentions on claim 1 (see Appeal Br. 20–26; Ans. 3–8); so do we.
Arguments not made are forfeited.5 Unless otherwise indicated, we adopt
the Examiner’s findings in the Final Office Action and the Answer as our
own and add any additional findings of fact for emphasis. We address the
rejections below.
ANALYSIS
As noted above, the Examiner rejects claim 1 as obvious over the
combined teachings of Tsern, Lim, Ayanam, and Kies. Final Act. 5–10. In
particular, the Examiner finds Tsern’s disclosure of a wristwatch having an
interactive multi-touch display teaches or suggests the majority of the
limitations recited in claim 1. Id. at 5–7 (citing Tsern ¶¶ 13–20, 35; Figs. 1–
4). The Examiner finds, however, “Tsern does not appear to explicitly
disclose simultaneous touch of three predetermined regions [or disclose]
programs running in the foreground,” as recited in claim 1. Id. at 7
(emphasis omitted).
Nevertheless, the Examiner finds Lim and Ayanam teach
simultaneous touching of three predetermined regions (id. at 8–10) and Kies
teaches a foreground application (id. at 7–8). In particular, the Examiner
finds (i) Lim’s disclosure of opening a task manager by pressing downward
with three fingers at once (id. at 8 (citing Lim ¶¶ 73–86)) taken together with

5 See In re Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020)
(“We interpret the Patent Office to be arguing that Google’s failure to raise
its lexicography arguments, inadvertent or not, compels a finding of
forfeiture.”); 37 C.F.R. § 41.37(c)(1)(iv) (2018) (“Except as provided for in
§§ 41.41, 41.47 and 41.52, any arguments or authorities not included in the
appeal brief will be refused consideration by the Board for purposes of the
present appeal.”).
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(ii) Ayanam’s disclosure of a determination by a gesture command
submodule of a predetermined set of multi-touch characteristics including
location (id. at 8–9 (citing Ayanam ¶ 72)) combine to teach or suggest the
disputed limitation of responding to a simultaneous touch of three
predetermined touch-sensitive regions (id. at 9–10). The Examiner applies
Kies’s disclosure of a foreground application providing a user display while
another application runs in the background for teaching the disputed
limitation of a program running in the foreground. Id. at 7–8 (citing Kies
¶¶ 92–93). The Examiner finds motivation existed to combine the
references’ teachings. Id. at 8–9.
Appellant argues the combination of Tsern, Kies, Lim, and Ayanam
fails to teach “a device that performs a function (regardless of the computer
program running in the foreground) in response to a user touching three
predetermined touch-sensitive regions.” Appeal Br. 20–21 (footnote
omitted). According to Appellant, Tsern describes universal contact
gestures using one or two fingers, none of which “involve the simultaneous
touch of three predetermined touch-sensitive regions as recited in claim 1.”
Id. at 21 (emphasis omitted). Appellant contends the addition of Lim fails to
cure the noted deficiency. Appellant argues Lim’s disclosure of global
gestures, including opening a task manager “by pressing ‘three fingers at
once’ or ‘bringing three spread fingers together[,]’ . . . can be performed
anywhere on [Lim’s] touchpad, rather than [at] ‘three predetermined touch-
sensitive regions’ as recited in claim 1.” Id. (citing Lim ¶¶ 71–72).
Addressing the Ayanam reference, Appellant contends Ayanam discloses
gestures using a single touch, not the simultaneous touch of three
predetermined touch-sensitive regions. Id. at 22.
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The Examiner responds, finding Lim’s disclosure of a High
Dimensional Touchpad (HDTP) that can distinguish global commands using
complex gestures including “three-finger posture or complex three-finger
movement” (Lim ¶ 73) and the simultaneous pressing of three fingers to
open a task manager (Lim ¶ 76) teaches the disputed three touch-sensitive
regions. Ans. 6. The Examiner finds Ayanam’s disclosure of a gesture
command submodule that determines values of a predetermined set of multi-
touch characteristics, including locations, teaches or suggests predetermined
touch-sensitive regions, i.e., specific touch locations and provides the
following explanation.
Therefore by incorporating Lim’s teaching to have a three
fingers at once gesture assigned to a global command, combined
with Ayanam’s teaching that multitouch characteristics, such as
locations of the multitouch input data characteristics are
compared with values of the characteristics defined in record
entries, so as to then select a record entry and accordingly a
mapped command, with Tsern’s invention having universal
contact gesture mapped to a function in all operational modes
would have been a straight-forward combination of known
gestures, used to invoke known functions, being compared using
known techniques to determined which mapped command
corresponds to the user’s input gesture. Therefore as best
understood by the Office the results of the combined teachings
of the prior art would result in fairly teaching or suggesting the
claimed features using known techniques with predictable
results.
Id. at 7–8 (emphasis omitted).
Appellant replies, arguing Ayanam’s “[touch] locations are relative to
each other or to the previous location (for trajectory) and are not
predetermined touch sensitive regions on a touch-sensitive input as
claimed.” Reply Br. 2–3.
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Appellant’s contentions are unpersuasive of reversible Examiner
error. During examination, pending claims are given their broadest
reasonable interpretation consistent with the specification. In re Am. Acad.
of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest
reasonable interpretation standard, claim terms are given their ordinary and
customary meaning as would be understood by one of ordinary skill in the
art in the context of the entire disclosure. In re Translogic Tech., Inc., 504
F.3d 1249, 1257 (Fed. Cir. 2007). However, although we interpret claim
limitations consistent with the specification, we do not import limitations
from the specification into the claims. In re Van Geuns, 988 F.2d 1181,
1184 (Fed. Cir. 1993) (citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir.
1989)). During examination, when claims can be readily amended,
ambiguities should be recognized, scope and breadth of language explored,
and clarification imposed. Zletz, 893 F.2d at 321. Construing claims
broadly during prosecution is not unfair to the applicant because the
applicant has the opportunity to amend the claims to obtain more precise
claim coverage. Am. Acad. of Sci. Tech Ctr., 367 F.3d at 1364.
Appellant directs attention to paragraph 33 of the Specification in
support of the recited plurality of touch sensitive regions including three
predetermined touch-sensitive regions. Appeal Br. 4 (Summary of Claimed
Subject Matter). We do not find any reference to, much less a definition for,
a predetermined touch-sensitive region in the cited portion, nor any other
portion of the Specification. However, as noted by Appellant, pending
dependent claims 29–32 recite wherein the predetermined touch-sensitive
regions include the bottom-left, the bottom-center, and the top-right of the
touch-sensitive input. Reply Br. 1. As found by the Examiner, Tsern
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discloses a touch display having corresponding regions wherein, for
example,
[t]he corner to corner swipe further comprises at least one of a
single contact starting at the top right corner of the display and
moving diagonally down to the bottom left comer of the display
and a single contact starting at the top left corner of the display
and moving diagonally down to the bottom right comer of the
display.
Tsern ¶ 17. Thus, Tsern’s display locations precisely correspond to
Appellant’s regions of the dependent claims. Therefore, Tsern’s description
of a touch-sensitive display having corner regions teaches or suggests the
predetermined touch-sensitive regions of claim 1.
Furthermore we are unpersuaded by Appellant’s argument that
Ayanam’s “locations are relative to each other or to the previous location
(for trajectory) and are not predetermined touch sensitive regions on a touch-
sensitive input as claimed.” Reply Br. 2–3. In particular, Appellant fails to
explain why a disclosure of a location, that is determined in response to an
initial finger touch, is not predetermined at the time the second touch occurs,
or otherwise provide persuasive evidence that a location relative to a
previous location does not at least suggest a predetermined location or
region.
Moreover, claim 1 does not attribute any functionality distinguishing
regions from each other except by location. For example, there is no
requirement that the processor performs different functions in response to
the simultaneous touching of different combinations of predetermined touch-
sensitive regions. Thus, absent any difference in functionalities, disclosure
by the applied prior art of a single touch-sensitive region renders obvious
multiple touch-sensitive regions. “It is well settled that the mere duplication
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of parts has no patentable significance unless a new and unexpected result is
produced.” In re Harza, 274 F.2d 669, 774 (CCPA 1960). Appellant does
not identify any new or unexpected result that would occur due to the use of
a plurality of touch-sensitive regions.
Thus, for the reasons discussed above, the Examiner did not err in
finding the combination of Tsern, Lim, Ayanam, and Kies teaches or
suggests a function in response to a simultaneous touch of the predetermined
touch-sensitive regions. Accordingly, we sustain the Examiner’s rejection of
claim 1 as obvious over the combined teachings of Tsern, Lim, Ayanam, and
Kies. Further, Appellant does not challenge the obviousness rejections of
independent claims 7, 13, 19 or of dependent claims 3–6, 9–12, 15–18, and
22–28. See Appeal Br. 23. Thus, we also sustain the rejections of those
claims.
We are also unpersuaded the Examiner errs in rejecting dependent
claims 29–32. Appeal Br. 24–26. As explained above, Tsern’s paragraph
17 discloses in haec verba the corner locations recited by these claims.
Accordingly, we further sustain the Examiner’s rejection of claims 29–32.
DECISION
1. The Examiner does not err in rejecting:
a. claims 1, 3–5, 7, 9–11, 13, 15–17, 19, 22, 23, and 25–32 under
35 U.S.C. § 103 as obvious over the combined teachings of
Tsern, Lim, Ayanam, and Kies; and
b. claims 6, 12, 18, and 24 under 35 U.S.C. § 103 as obvious over
the combined teachings of Tsern, Lim, Ayanam, Kies, and
Khoury.
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2. Thus, on this record, claims 1, 3–7, 9–13, 15–19, and 22–32 are not
patentable.
CONCLUSION
We affirm the Examiner’s rejections of claims 1, 3–7, 9–13, 15–19,
and 22–32.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1, 3–5, 7, 9–
11, 13, 15–17,
19, 22, 23, 25–
32
103 Tsern, Lim, Ayanam,
Kies
1, 3–5, 7, 9–
11, 13, 15–
17, 19, 22,
23, 25–32

6, 12, 18, 24 103 Tsern, Lim, Ayanam,
Kies, Khoury
6, 12, 18, 24
Overall
Outcome
1, 3–7, 9–13,
15–19, 22–32

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