Smoke Messaging, LLC

Patent Trials and Appeals Board

Apr 23, 2021

2020000687 (P.T.A.B. Apr. 23, 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.
15/096,711 04/12/2016 Wade T. Belliston 68422.00100 4258
20322 7590 04/23/2021
SNELL & WILMER L.L.P. (Main)
400 EAST VAN BUREN
ONE ARIZONA CENTER
PHOENIX, AZ 85004-2202
EXAMINER
TORRES, MARCOS L
ART UNIT PAPER NUMBER
2647
NOTIFICATION DATE DELIVERY MODE
04/23/2021 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):
IPDOCKET@swlaw.com
chauff@swlaw.com
dgiancaterin@swlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________ 

Ex parte WADE T. BELLISTON
________________

Appeal 2020-000687
Application 15/096,711
Technology Center 2600
________________

Before JOSEPH L. DIXON, JASON J. CHUNG, and
BETH Z. SHAW, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Non-Final
Rejection of claims 1, 3, 4, 6–8, and 17–19.2 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
INVENTION
The invention relates to a secured messaging system utilizing a
limited viewing window. Spec. ¶ 4. Claim 1 is illustrative of the subject
matter on appeal and is reproduced below:

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, Wade T. Belliston is the real
party in interest. Appeal Br. 2.
2 Claims 2, 5, and 9–16 are cancelled. Appeal Br. 15–16.
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1. A method for improving the functioning of a mobile device, the
method comprising:
receiving, at the mobile device configured with a touch-
sensitive display screen, an electronic message;
displaying, responsive to operation of a mobile application
on the mobile device and responsive to a first touch input
received at a first location on the display screen, a first portion of
the content of the electronic message within a visibility window
that is centered on the first location on the mobile device display
screen;
darkening, responsive to operation of the mobile
application on the mobile device, the mobile device display
screen outside the visibility window to render imperceptible the
content of the electronic message not comprising the first portion
and to reduce the amount of electricity drawn from the battery of
the mobile device due to operation of the mobile device display
screen; and
relocating, responsive to a second touch input received at
a second location on the display screen, the visibility window to
be centered on the second location to conceal the first portion of
the electronic message and to display a second portion of the
content of the electronic message,
wherein the mobile device display screen comprises an
array of pixels, wherein each pixel of the mobile device display
screen comprises a range of energy states ranging from a
minimum energy state to a maximum energy state, and wherein
the darkening comprises setting all pixels of the mobile device
display screen outside the visibility window to the minimum
energy state.
Appeal Br. 15 (Claims Appendix).

REJECTIONS
The Examiner rejects claims 1, 3, 4, 7, 8, and 17–19 under 35 U.S.C.
§ 103 as being unpatentable over the combination of Chen (US Pat. Pub.
2011/0304536 A1, pub. Dec. 15, 2011) in view of Sato (US Pat. Pub.
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2012/0218206 A1, pub. Aug. 30, 2012) in view of Yoon (US Pat. Pub.
2014/0176456 A1, pub. June 26, 2014). Non-Final Act. 4–8.
The Examiner rejects claim 6 under 35 U.S.C. § 103 as being
unpatentable over the combination of Chen, Sato, Yoon,3 and Song (US Pat.
Pub. 2016/0253508 A1, pub. Sept. 1, 2016). Non-Final Act. 8–9.
ANALYSIS
I. Claim 1 Rejected Under 35 U.S.C. § 103
A. Modifying Chen with a Reference that Teaches Blacking out Portions
of a Screen such that the user Cannot Distinguish Content Would Not
Change the Principle of Operation of Chen
The Examiner finds that a person having ordinary skill in the art
would have combined Chen and Sato, so that a user can black out portions of
the screen to prevent seeing the portions of messages while keeping some
other portions of the messages visible. Ans. 5; Non-Final Act. 5 (citing Sato
¶ 81). The Examiner determines that blacking out portions of the display as
suggested by Sato does not change the principle of operation of Chen to
display data because Chen’s paragraph 44 merely states “[t]he brightness
adjustment should follow the principle that the user can still distinguish
content of the section of the screen” (emphasis added); “should” means
“what is probable,” which is not the same as “require[s].” Ans. 4 (citing
Chen ¶ 44). The Examiner determines the principle of operation of Chen is
displaying a portion of a LCD screen while dimming the remaining portion
of the LCD screen to improve power saving. Ans. 5 (citing Chen ¶ 6).

3 Claim 6 depends from claim 1. The Examiner rejects claim 1 over the
combination of Chen, Sato, and Yoon. In claim 6’s rejection, we interpret
the Examiner’s omission of Yoon as a typographical error. Therefore, we
interpret claim 6’s rejection as over the combination of Chen, Sato, Yoon,
and Song.
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Appellant argues that because Chen merely teaches dimming portions
of the screen outside an active window while a user can still distinguish the
content of the dimmed portions of the screen, Chen may not be combined
permissibly with a reference that teaches blacking out portions of a screen
such that the user cannot distinguish content would change the principle of
operation of Chen. Appeal Br. 8–9 (citing Chen ¶ 44). We disagree with
Appellant.
In particular, we agree with the Examiner’s determination that
blacking out portions of the display as suggested by Sato does not change
the principle of operation of Chen to display data. Ans. 4 (citing Chen ¶ 44).
We also agree with the Examiner’s determination of the principle of
operation of Chen. Ans. 5 (citing Chen ¶ 6); see also Chen ¶ 2 (“The present
invention relates to a display power saving method and related electronic
system.”). Moreover, although a Reply Brief is not required, Appellant does
not rebut the Examiner’s new determinations in the Answer. Compare Ans.
4 (making new determinations that paragraph 44 merely states “should,”
which is not the same as “requiring” and that the principle of operation of
Chen is displaying a portion of a LCD screen while dimming the remaining
portion of the LCD screen to improve power saving methods), with Non-
Final Act. 4–8 (lacking the aforementioned determinations).
Accordingly, Appellant does not persuade us of error.
B. Modifying Chen with a Reference that Teaches Blacking out Portions
of a Screen such that the user Cannot Distinguish Content Would Not
Render Chen Inoperable for its Intended Purpose
The Examiner determines that the intended purpose of Chen is to
display information to the user as desired while improving power saving.
Ans. 5–6. The Examiner determines that modifying Chen would not force
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the user to guess a location of blacked-out portions and click a pointer to
make a different window visible because the user is the one that determines
which areas to hide in the blacked-out portions. Ans. 5–6.
Appellant further argues that combining Chen with any reference
teaching partial or complete screen blackout renders Chen inoperable for its
intended purpose, because “the user would be forced to ‘guess’ to what
location in the blacked-out portion of the screen the user should direct and
click the pointer in order to make a different window visible.” Appeal Br.
9–10. We disagree with Appellant.
As an initial matter, Appellant’s argument lacks evidentiary support.
Such “[a]ttorneys’ argument is no substitute for evidence.” Johnston v.
IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989). Additionally, we agree
with the Examiner’s determination that the intended purpose of Chen is to
display information to the user as desired while improving power saving.
Ans. 5–6 (citing Chen ¶ 6); see also Chen ¶ 2 (“The present invention relates
to a display power saving method and related electronic system.”). Also, we
agree with the Examiner’s determination that modifying Chen would not
force the user to guess a location of blacked-out portions and click a pointer
to make a different window visible because the user is the one that
determines which areas to hide in the blacked-out portions. Ans. 5–6.
Furthermore, although a Reply Brief is not required, Appellant does not
rebut the Examiner’s new determinations in the Answer. Compare Ans. 5–6
(making new determinations that the intended purpose of Chen is to display
of information to the user as desired and that modifying Chen would not
force the user to guess a location of blacked-out portions and click a pointer
to make a different window visible because the user is the one that
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determines which areas to hide in the blacked-out portions), with Non-Final
Act. 4–8 (lacking the aforementioned determinations).
Therefore, Appellant does not persuade us of error.
C. Yoon Teaches the Limitation “wherein the darkening comprises
setting all pixels of the mobile device display screen outside the visibility
window to the minimum energy state”
The Examiner finds Yoon teaches using the electronic device with
minimum power consumption by turning on certain areas of a screen to
illuminate pixels within that area while turning off other areas of the screen,
which the Examiner maps to “setting all pixels of the mobile device display
screen outside the visibility window to the minimum energy state” as recited
in claim 1. Ans. 6 (citing Yoon ¶ 8); Non-Final Act. 5–6 (citing Yoon ¶¶ 8,
72, 125).
Appellant argues that Yoon fails to teach “wherein the darkening
comprises setting all pixels of the mobile device display screen outside the
visibility window to the minimum energy state” because Yoon is directed to
predictive approaches for lighting portions of a display while the user is not
currently touching those portions. Appeal Br. 10 (citing Yoon ¶¶ 8, 72,
103–125, 206, Figs. 2, 3, 14–19). We disagree with Appellant.
Appellant’s argument is unpersuasive because it amounts to a bodily
incorporation argument. Appeal Br. 10 (citing Yoon ¶¶ 8, 72, 103–125, 206,
Figs. 2, 3, 14–19). We note the test for obviousness is what the combined
teachings of the references would have suggested to a person of ordinary
skill in the art, not whether one reference may be bodily incorporated into
the structure of another reference. In re Keller, 642 F.2d 413, 425 (CCPA
1981).
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The Examiner relies on Sato to teach contact sensors or touch sensors
of touch panel detect the sweep operation (i.e., this teaches the
current/continuous touch on a mobile device screen). Ans. 7 (citing Sato
¶ 80); see also infra § II (explaining Sato’s touch panel in further detail).
Yoon teaches using the electronic device with minimum power consumption
(i.e., minimum energy state) by turning on certain areas of a screen to
illuminate pixels within that area while turning off other areas (i.e., setting
all pixels outside the visibility window) of the screen, which teaches “setting
all pixels of the mobile device display screen outside the visibility window
to the minimum energy state” as recited in claim 1. Ans. 6 (citing Yoon
¶ 8); Non-Final Act. 5–6 (citing Yoon ¶¶ 8, 72, 125).
Therefore, Appellant does not persuade us of error. Appellant does
not argue claims 6–8 and 17 separately with particularity. Appeal Br. 8–13.
Accordingly, we sustain the Examiner’s rejection of: (1) independent claim
1; and (2) dependent claims 6–8 and 17 under 35 U.S.C. § 103.
II. Claim 3 Rejected Under 35 U.S.C. § 103
The Examiner finds Sato teaches that contact sensors or touch sensors
of touch panel detect a sweep operation of moving a contact position as a
shading operation and a mobile phone causes the shade image to be
displayed on an area of the touch panel corresponding to the movement of
the contact position by the shading operation, which the Examiner maps to
“the first portion is displayed responsive to a user maintaining a continuous
touch on the mobile device screen near the location on the mobile device
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screen of the first portion of the contents of the message content” recited in
claim 3. Ans. 7 (citing Sato ¶ 80); Non-Final Act. 6 (citing Sato ¶¶ 43, 81).
Appellant argues that Sato fails to teach “the first portion is displayed
responsive to a user maintaining a continuous touch on the mobile device
screen near the location on the mobile device screen of the first portion of
the contents of the message content” because Sato’s contact sensors
implementing the shade or sweep operation are disposed on the sides of the
mobile device, not a touch screen. Appeal Br. 10–11 (emphasis added). We
disagree with Appellant.
As an initial matter, the Examiner makes new findings in the Answer.
Compare Ans. 7 (citing Sato ¶ 80) (presenting new findings by citing to
paragraph 80 and providing an additional explanation (i.e., “either one
[sensor or screen] can be used”), with Non-Final Act. 6 (citing Sato ¶¶ 43,
81). Although a Reply Brief is not required, Appellant does not rebut the
Examiner’s new findings in the Answer.
The cited portions of Sato teach that contact sensors or touch sensors
of touch panel detect the sweep operation (i.e., this teaches the continuous
touch on a mobile device screen) of moving the contact position as the
shading operation and the mobile phone causes the image of a shade to be
displayed on an area of the touch panel corresponding to the movement of
the contact position by the shading operation (i.e., this teaches the sweep
operation moves the shade, and we note that while the shade moves down, a
part of image can be viewed), which teaches or suggests the limitation “the
first portion is displayed responsive to a user maintaining a continuous touch
on the mobile device screen near the location on the mobile device screen of
the first portion of the contents of the message content.” Ans. 7 (citing Sato
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¶ 80); Non-Final Act. 6 (citing Sato ¶¶ 43, 81) (emphasis added); see also
Sato ¶ 55, Fig. 8 (showing that the shading operation moves up to reveal
portions of content on the display).
Accordingly, we sustain the Examiner’s rejection of claim 3 under
35 U.S.C. § 103.
III. Claim 4 Rejected Under 35 U.S.C. § 103
The Examiner finds that Sato teaches that contact sensors or touch
sensors of touch panel detect the sweep operation of moving the contact
position as the shading operation and the mobile phone causes the shade
image to be displayed on an area of the touch panel corresponding to the
movement of the contact position by the shading operation, which the
Examiner maps to the limitation “the visibility window is moved in response
to the user moving the continuous touch to a new location on the mobile
device screen” recited in claim 4. Ans. 7 (citing Sato ¶ 80); Non-Final Act.
6 (citing Sato ¶¶ 43, 81).
Appellant argues that Sato fails to teach “the visibility window is
moved in response to the user moving the continuous touch to a new
location on the mobile device screen” because the “shading” or “sliding”
operation of Sato is performed based on continuous touch with contact
sensor, not based on continuous contact with the touchscreen. Appeal Br. 12
(emphasis added). We disagree with Appellant.
As an initial matter, the Examiner makes new findings in the Answer.
Compare Ans. 7 (citing Sato ¶ 80) (presenting new findings by citing to
paragraph 80 and providing an additional explanation (i.e., “either one
[sensor or screen] can be used”), with Non-Final Act. 6 (citing Sato ¶¶ 43,
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81). Although a Reply Brief is not required, Appellant does not rebut the
Examiner’s new findings in the Answer.
The cited portions of Sato teach the contact sensors or touch sensors
of touch panel detect the sweep operation (i.e., this teaches the continuous
touch on the mobile device screen) of moving the contact position as the
shade operation and the mobile phone causes the shade image to be
displayed on an area of the touch panel corresponding to movement of the
contact position by the shade operation (i.e., this teaches the sweep operation
moves the shade to a new location, and we note that when the shade moves,
the visibility window outsides of the shade moves accordingly), which
teaches or suggests the limitation “the visibility window is moved in
response to the user moving the continuous touch to a new location on the
mobile device screen” recited in claim 4. Ans. 7 (citing Sato ¶ 80); Non-
Final Act. 6 (citing Sato ¶¶ 43, 81); see also Sato ¶ 55, Fig. 8 (showing that
the shading operation moves up to reveal portions of content on the display).
Accordingly, we sustain the Examiner’s rejection of claim 4 under
35 U.S.C. § 103.
IV. Claim 18 Rejected Under 35 U.S.C. § 103
The Examiner finds that Sato teaches changing the amount of content
that is displayed on a screen of the touch panel according to various contact
operations detected by the touch sensor of the touch panel, which the
Examiner maps to the limitation “the first portion is displayed responsive to
a user of the mobile device touching the mobile device display screen at a
location that is within the location of the first portion of the content of the
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electronic message” recited in claim 18. Ans. 7–8 (citing Sato ¶¶ 34, 42–44,
80); Non-Final Act. 7–8 (citing Sato ¶¶ 42–44, 81).
Appellant argues that Sato fails to teach “the first portion is displayed
responsive to a user of the mobile device touching the mobile device display
screen at a location that is within the location of the first portion of the
content of the electronic message” because Sato conceals a portion of the
touchscreen responsive to the user touching a contact sensor on the side of
the mobile device so that the touch locations are different and the results are
directly opposite. Appeal Br. 12 (emphasis added). We disagree with
Appellant.
As an initial matter, the Examiner makes new findings in the Answer.
Compare Ans. 7–8 (citing Sato ¶¶ 34, 42–44, 80) (presenting new findings
by citing to paragraph 80), with Non-Final Act. 7–8 (citing Sato ¶¶ 42–44,
81). Although a Reply Brief is not required, Appellant does not rebut the
Examiner’s new findings in the Answer.
The cited portions of Sato teach changing the amount of content that
is displayed (i.e., the first portion is displayed) on a screen of the touch panel
according to various contact operations detected (i.e., responsive to a user of
the mobile device touching the mobile device display screen) by the touch
sensor of the touch panel, which teaches or suggests “the first portion is
displayed responsive to a user of the mobile device touching the mobile
device display screen at a location that is within the location of the first
portion of the content of the electronic message” recited in claim 18. Ans.
7–8 (citing Sato ¶¶ 34, 42–44, 80); Non-Final Act. 7–8; see also Sato ¶ 55,
Fig. 8 (showing that the shading operation moves up to reveal portions of
content on the display).
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Claim 19 depends from claim 18. Appellant does not argue claim 19
separately with particularity. Appeal Br. 8–13. Accordingly, we sustain the
Examiner’s rejection of claims 18 and 19 under 35 U.S.C. § 103.
We have only considered those arguments that Appellant actually
raised in the Brief. Arguments Appellant could have made, but chose not to
make, in the Brief have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION

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). See
37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3, 4, 7, 8,
17–19
103 Chen, Sato, Yoon 1, 3, 4, 7, 8,
17–19

6 103 Chen, Sato, Yoon,
Song
6
Overall
Outcome
1, 3, 4, 6–8,
17–19