Ethan Joshua. Fricklas et al.

Patent Trials and Appeals BoardJul 15, 2019

13854478 - (D) (P.T.A.B. Jul. 15, 2019)

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. 13/854,478 04/01/2013 Ethan Joshua Fricklas RPS920130013USNP(710.223) 6316 58127 7590 07/15/2019 FERENCE & ASSOCIATES LLC 409 BROAD STREET PITTSBURGH, PA 15143 EXAMINER KHAN, IBRAHIM A ART UNIT PAPER NUMBER 2692 MAIL DATE DELIVERY MODE 07/15/2019 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ETHAN JOSHUA FRICKLAS, MICHAELA ROSE CASE, AARON MICHAEL STEWART, and THOMAS JOHN SLUCHAK JR. ____________ Appeal 2018-007642 Application 13/854,478 Technology Center 2600 ____________ Before JOHN A. JEFFERY, JENNIFER L. McKEOWN, and JASON M. REPKO, Administrative Patent Judges. JEFFERY, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants’ invention provides haptic feedback responsive to touching the surface of a touch-sensitive device, such as a screen or touch pad. To this end, the frequency, duration, or amplitude of the haptic feedback’s pulse characteristics is changed automatically with corresponding changes in 1 Appellants identify the real party in interest as Lenovo (Singapore) PTE. LTD. App. Br. 3; Reply Br. 3. Appeal 2018-007642 Application 13/854,478 2 functions of an underlying application, such as volume control, zooming, or scrolling. See generally Abstract; Spec. ¶¶ 16–23; Figs. 1A–1G. Claim 1 is illustrative: 1. A method, comprising: detecting touch input at a surface of a touch sensitive device, wherein the touch input changes at least one setting of an application; and activating one or more actuators to provide haptic feedback in response to the touch input at the surface of the touch sensitive device; the haptic feedback comprising a tactile indicator created via automatically changing a pulse characteristic of the haptic feedback; wherein changes to the pulse characteristic of the haptic feedback are synchronized with and imitate an action of an output function corresponding to the change in the at least one setting of the application. THE REJECTIONS The Examiner rejected claims 1–4, 7–10, and 15–20 under 35 U.S.C. § 103 as unpatentable over Terlizzi et al. (US 2009/0167704 A1; published July 2, 2009) and Levesque et al. (US 2014/0139450 A1; published May 22, 2014). Final Act. 3–13.2 2 Throughout this opinion, we refer to (1) the Final Rejection mailed November 8, 2017 (“Final Act.”); (2) the Appeal Brief filed April 9, 2018 (“App. Br.”); (3) the Examiner’s Answer mailed May 23, 2018 (“Ans.”); and (4) the Reply Brief filed July 23, 2018 (“Reply Br.”). Appeal 2018-007642 Application 13/854,478 3 The Examiner rejected claims 5 and 6 under 35 U.S.C. § 103 as unpatentable over Terlizzi, Levesque,3 and Israr et al. (US 2011/0248837 Al; published Oct. 13, 2011). Final Act. 13–14. The Examiner rejected claims 11–14 under 35 U.S.C. § 103 as unpatentable over Terlizzi, Levesque, and Modarres et al. (US 2011/0261021 Al; published Oct. 27, 2011). Final Act. 14–16. THE OBVIOUSNESS REJECTION OVER TERLIZZI AND LEVESQUE Regarding independent claim 1, the Examiner finds that Terlizzi discloses, among other things, activating an actuator to provide haptic feedback responsive to touch input at the surface of a touch sensitive device, where the haptic feedback comprises a tactile indicator created by automatically changing the feedback’s pulse characteristic. Final Act. 3–4. Although the Examiner acknowledges that Terlizzi’s (1) touch input changes at least these haptic feedback changes at least one application setting, and (2) haptic feedback is synchronized with, and imitates an action of, an output function corresponding to the application setting change, the Examiner cites Levesque for teaching these features in concluding that the claim would have been obvious. Final Act. 4. 3 Claims 5 and 6 depend from claim 4 that was rejected over Terlizzi and Levesque. See Final Act. 3. Although the Examiner omits the Levesque reference in the statement of the rejection of claims 5 and 6, the Examiner nonetheless refers to Levesque in the body of the rejection. See Final Act. 13. Accordingly, we presume that the Examiner intended to include Levesque in this rejection, and treat the Examiner’s error in this regard as harmless. Appeal 2018-007642 Application 13/854,478 4 Appellants argue that the Examiner fails to (1) articulate a reason why ordinarily skilled artisans would have combined the references; (2) provide an evidentiary basis for such a finding; and (3) provide a satisfactory explanation for a motivation to combine the references that includes an express and rational connection with the evidence presented. App. Br. 15; Reply Br. 17. Appellants add that the Examiner’s reliance on Levesque is misplaced because the relied-upon knob’s coarseness change is an “arbitrary haptic effect” that is not synchronized with—nor does it imitate an action of—an output function corresponding to an application setting change as claimed. App. Br. 15–17; Reply Br. 17–19. ISSUES (1) Under § 103, has the Examiner erred in rejecting claim 1 by finding that Terlizzi and Levesque collectively would have taught or suggested changes to the haptic feedback pulse characteristics are synchronized with, and imitate an action of, an output function corresponding to an application setting change (“the synchronization and imitation limitation”)? (2) Is the Examiner’s proposed combination of the cited references supported by articulated reasoning with some rational underpinning to justify the Examiner’s obviousness conclusion? ANALYSIS We begin by noting that the Examiner’s reliance on the particular teachings of Terlizzi is undisputed. Rather, as noted above, this dispute Appeal 2018-007642 Application 13/854,478 5 turns solely on the references’ combinability and the Examiner’s reliance on Levesque for teaching the synchronization and imitation limitation. Turning to the rejection, we see no error in the Examiner’s reliance on Terlizzi and Levesque for collectively at least suggesting the synchronization and imitation limitation despite Appellants’ arguments to the contrary (see App. Br. 15–17; Reply Br. 17–19). First, it is undisputed that Terlizzi’s actuator is actuated to provide haptic feedback responsive to touch input at the surface of a touch sensitive device, where the haptic feedback comprises a tactile indicator created by automatically changing the feedback’s pulse characteristic. See Final Act. 3–4. Nor is it disputed that Terlizzi’s pulse characteristic changes are synchronized with changes in an application’s characteristics. See id. at 4. On this record, we see no reason why these changes could not also be synchronized with—and imitate the action of—an output function corresponding to a setting of the application in light of Levesque as the Examiner proposes. As shown in Levesque’s Figure 3A, a computing device controller 304 includes an image of a knob that controls a music player’s settings, including adjusting the volume. Levesque ¶ 55. In one embodiment, as the user adjusts the knob, the device outputs a different simulated texture by, for example, making the touch display’s surface coarser as the user increases the music player’s volume, thus providing haptic feedback. Levesque ¶ 57. The clear import of this functionality is that increasing the surface’s coarseness as the user increases the volume effectively synchronizes this haptic feedback with the corresponding change in the music player application’s volume setting. In other words, in Levesque, there is a direct Appeal 2018-007642 Application 13/854,478 6 temporal relationship between the user’s changing the player’s volume by adjusting a knob and the corresponding change in the knob’s coarseness— both changes occurring approximately simultaneously. See Levesque ¶ 57. Given this temporal relationship, Levesque’s haptic feedback changes effectively imitate output function actions, namely volume changes, at least with respect to commensurate coarseness changes. Accord Ans. 6 (noting that Levesque’s volume increase is imitated by a coarseness increase). Given these teachings, along with the Examiner’s undisputed finding that Terlizzi’s pulse characteristic changes are synchronized with changes in an application’s characteristics (see Final Act. 3–4), we see no error in the Examiner’s findings that Terlizzi and Levesque collectively at least suggest the synchronization and imitation limitation. Although Appellants characterize Levesque’s knob’s coarseness change as an “arbitrary haptic effect” (App. Br. 15–17; Reply Br. 17–19), nothing in the claim precludes Levesque’s functionality when combined with Terlizzi for the reasons noted above and those indicated by the Examiner. In short, Appellants’ arguments are unavailing and not commensurate with the scope of the claim. Moreover, Appellants’ arguments regarding Levesque’s individual shortcomings regarding the synchronization and imitation limitation (App. Br. 15–17; Reply Br. 17–19) do not show nonobviousness where, as here, the rejection is based on the cited references’ collective teachings. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Lastly, despite Appellants’ arguments to the contrary (App. Br. 15; Reply Br. 17), we find the Examiner’s proposed combination of the cited references is supported by articulated reasoning with some rational Appeal 2018-007642 Application 13/854,478 7 underpinning to justify the Examiner’s obviousness conclusion as indicated in the rejection (Final Act. 4) and in the response to arguments (Ans. 4). Therefore, we are not persuaded that the Examiner erred in rejecting claim 1, and claims 2–4, 7–10, and 15–20 not argued separately with particularity. THE OTHER OBVIOUSNESS REJECTIONS We also sustain the Examiner’s obviousness rejections of claims 5, 6, and 11–14. Final Act. 13–16. Because these rejections are not argued separately with particularity, we are not persuaded of error in these rejections for the reasons previously discussed. CONCLUSION The Examiner did not err in rejecting claims 1–20 under § 103. DECISION We affirm the Examiner’s decision to reject claims 1–20. 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). AFFIRMED