Ex Parte Alphin et al

Patent Trials and Appeals Board

Jan 28, 2019

13563351 - (D) (P.T.A.B. Jan. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/563,351
142810 7590
Newport IP, LLC
1400 112th Ave SE
Suite 100
Bellevue, WA 98004
FILING DATE FIRST NAMED INVENTOR
07/31/2012 Thomas Henry Alphin III
01/30/2019
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
MS2-0091US 9936
EXAMINER
FIGUEROA, KEVIN W
ART UNIT PAPER NUMBER
2124
NOTIFICATION DATE DELIVERY MODE
01/30/2019 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
scott@newportip.com
docketing@newportip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte THOMAS HENRY ALPHIN III, MAVERICKJ. VELASCO, and
CHRISTOPHER J. MCGUIRE
Appeal2017-009036
Application 13/563,351
Technology Center 2100
Before ROBERT E. NAPPI, THU A. DANG, and JAMES W. DEJMEK,
Administrative Patent Judges.
DANG, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-14 and 16-21. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm. The decision does not address any issue concerning
subject matter eligibility.
A. INVENTION
According to Appellants, the invention is directed to techniques and
apparatuses "enabling a tailored operating system learning experience"
1 According to Appellants, the real party in interest is Microsoft Technology
Licensing, LLC. App. Br. 3.
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Application 13/563,351
which "can tailor a learning experience to a user's computer device or a
user's specifications." Abst.
B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A computer-implemented method comprising:
receiving, as part of an initial login event at a computing
device, a hardware characteristic of the computing device other
than from a user of the computing device, the computing device
associated with an operating system (OS), the hardware
characteristic affecting use of an OS gesture;
identifying and retrieving, responsive to receiving the
hardware characteristic and as part of the initial login event, an
OS training tutorial subset IO corresponding to the hardware
characteristic;
receiving, as part of the initial login event, a specification
of an OS environment affecting an appearance or operation of
the OS gesture;
tailoring, responsive to receiving the specification of the
OS environment and as part of the initial login event, the OS
training tutorial subset to the specification; and
presenting, as part of the initial login event, the tailored
OS training tutorial subset effective to demonstrate the use of
the OS gesture according to the hardware characteristic of the
computing device and with the appearance or operation of the
specification.
C.PRIORART
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
C. Stephanidis et al., Adaptable and adaptive user interfaces for
disabled users in the AVANT! project, 1430 LECTURE NOTES IN COMPUTER
SCIENCE 15 3 ( 1998) ("Stephanidis").
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Application 13/563,351
Alexandros Paramythis et al., Adaptive Learning Environments and e-
Learning Standards, 2 ELECTRONIC JOURNAL OF E-LEARNING 181-94 (Feb.
2004) ("Paramythis").
The Mac OSX Setup Assistant,
https://www.informit.com/library / content.aspx?b= J\1ac OS X Unleashed&
seqNum=2 7 ("OSX").
Siefert et al. (US 6,732,358 Bl; published May 4, 2004) ("Siefert")
Burkhardt et al. (US 6,823,508 Bl; published Nov. 23, 2004)
("Burkhardt").
YOCHAYKIRIATYET AL., INTRODUCING WINDOWS 7 FOR DEVELOPERS
(2009) ("Windows 7").
D. REJECTIONS
1) Claims 1-5 and 21 stand rejected under 35 U.S.C. § I03(a) over
Stephanidis, Paramythis, and Siefert.
2) Claim 6 stands rejected under 35 U.S.C. § I03(a) over
Stephanidis, Paramythis, Siefert, and OSX.
3) Claims 7-11 stand rejected under 35 U.S.C. § I03(a) over
Stephanidis, Paramythis, and Burkhardt.
4) Claims 12-14, 16-18, and 20 stand rejected under 35 U.S.C.
§ I03(a) over OSX, Stephanidis, Paramythis, and Burkhardt.
5) Claim 19 stands rejected under 35 U.S.C. § I03(a) over OSX,
Stephanidis, Paramythis, Burkhardt, and Windows 7.
II. ISSUE
The principal issue before us is whether the Examiner errs in
combining Stephanidis, Paramythis, and Siefert, OSX, Burkhardt, and/or
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Windows 7 in the rejection of the claims. In particular, the issue turns on
whether the Examiner set forth sufficient motivation to combine the
references, and whether the proposed combinations change a principle
operation of Paramythis.
III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Stephani dis
1. Stephanidis discloses a user interface component, which tailors
itself to the abilities, skills, requirements, and preferences of individual
users. Stephanidis, Abst. An additional Device Software Layer (DSL)
provides a way to uniformly control and communicate with hardware and
software. Id. at 4. Specific interaction techniques facilitate use of special
devices by disabled users. Id. at 5. For example, switch interaction can be
achieved through scanning and on-screen keyboards; gesture recognition
permits use of a joystick by blind users; and tactile presentation in braille is
augmented with special symbolic annotations. Id. Lexical level adaptations
can include scanning, font, color, size, speech, sound, and presentation
parameters. Id. at 7.
Paramythis
2. Paramythis discloses e-Learning standards for facilitating and
supporting adaptive techniques. Paramythis, Abst. According to
Paramythis, the motivation behind the analysis is to attain interoperability
between adaptive learning systems; reuse of adaptive learning materials; and
facilitating adaptively supported distributed learning activities. Id.
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Adaptivity can be used in the context of computational learning
environments. Id. at 181. A learning environment is considered adaptive if
it is capable of: monitoring the activities of its users; interpreting these on
the basis of domain-specific models; inferring user requirements and
preferences out of the interpreted activities, appropriately representing these
in associated models; and, finally, acting upon the available knowledge on
its users and the subject matter at hand, to dynamically facilitate the learning
process. Id. at 182.
Siefert
3. Siefert discloses a system for storing information that allows a
user to search the information. Siefert, 2:20-46. A tutorial that explains to
the user how to use the system is automatically shown when the user logs on
for the first time. Id. at 22:32-38.
osx
4. OSX discloses a setup assistant for a Mac OS. OSX at 1.
When the OS X boots for the first time, it will prepare several system files.
Id. During this setup process, the user will configure his or her first user
account. Id. at 2.
Burkhardt
5. Burkhardt discloses a software program, such as an operating
system, that is automatically customized to a specific user. Burkhardt, Abst.
The user-specific information can be integrated into the OS upon initial boot
of the computer by the user. Id.
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IV. ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments presented in this appeal. Arguments which Appellants could
have made, but did not make in the Brief are deemed to be waived. See 37
C.F.R. § 4I.37(c)(l)(iv) (2015). On the record before us, we are
unpersuaded the Examiner has erred. We adopt as our own the findings and
reasons set forth in the rejections from which the appeal is taken and in the
Examiner's Answer, and provide the following for highlighting and
emphasis.
Claims 1-6, and 21
As to independent claim 1, Appellants contend that the combination
of "Paramythis's 'adaptive learning' with Stephanidis 'receipt of hardware
characteristics' and 'specification of an OS environment' ... alters an
operating principle of Paramythis." Br. 16. In particular, Appellants argue
that Paramythis provides a learning environment that is "adaptive based on
monitoring the activities of its users," wherein the combination with
Stephanidis, would instead be "adapting based on a hardware characteristic
of the computing device," not a user, thus altering the operating principle of
Paramythis. Id. at 15-16 (quoting Paramythis, 182 (emphases added)).
Appellants further contest the Examiner's rationale for combining
Siefert with Stephanidis and Paramythis as insufficient to support a
conclusion of obviousness. Id. at 17-20. The rationale based on the
combination "yield[ing] predictable results," Appellants argue, is "so
sweepingly broad" as to encompass different fields of endeavor (id. at 18),
does not show why a skilled artisan would have selected particular
components for combination (id. at 18-19), is based on hindsight
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reconstruction (id. at 19), lacks rational underpinning (id.), and does not
show how monitoring user activities "after an initial login event" is logical
with a tutorial "initiated at a first login event" (id. at 19--20).
We have considered all of Appellants' arguments and evidence
presented. However, we are unpersuaded by Appellants' contentions
regarding the Examiner's rejections of the claims. On this record, we find
no error with the Examiner's combination of references and ultimate
conclusion that the claims would have been obvious over the combined
references.
As to Appellants' contention that the operating principle of
Paramythis is altered by its combination with Stephanidis, Appellants appear
to have viewed the references from a different perspective than that of the
Examiner. That is, this contention does not take into account what the
collective teachings of the prior art would have suggested to one of ordinary
skill in the art. See In re Keller, 642 F.2d 413,425 (CCPA 1981)("The test
for obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference; .... Rather,
the test is what the combined teachings of the references would have
suggested to those of ordinary skill in the art.") ( citations omitted).
The issue here is not whether the adaptive learning of Paramythis (FF
2) would have been modified to receive "hardware characteristics" and
"specification of an OS environment" (FF 1 ), as Appellants suggest (Br. 15-
16). Rather, the issue is whether, in view of Paramythis's learning
environment that is "adaptive based on monitoring activities of its users"
(id., FF 2), the ordinarily skilled artisan would have modified Stephanidis's
adaptive user interface component (Br. 15-16, FF 1) to tailor itself based on
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user activities. Here, the Examiner concludes that a person of ordinary skill,
upon reading Paramythis, would find it obvious to include in Stephanidis,
"adaptations that take place at the system's interface and are intended to
facilitate or support the user's interaction with the system," and a training
tutorial that "can be received and be adaptable." Ans. 16-17. Appellants do
not point to any express support in the portions of Stephanidis and
Paramythis for a teaching that would criticize, discredit or discourage one of
ordinary skill from using the adaptable training tutorial to further support a
user's interaction with a user interface system. Id., see In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004).
As to the Appellants' argument that the Examiner's motivation for
combining Siefert was insufficient to support a conclusion of obviousness
(Br. 18-20), we find no error with Examiner's conclusion that the "results
would be predictable when combined" (Ans. 18). The Supreme Court has
stated clearly the "combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results." KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398,416 (2007). As the
Examiner points out, Siefert shows use of a tutorial when a user logs on the
first time (Ans. 18; FF 3), and it would have been obvious "to utilize a
tutorial initiated at a first login event since a combination of known methods
would yield predictable results" (Final Act. 4; Ans. 18).
Here, Appellants have presented no evidence that providing a tutorial
when a user logs on the first time 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 find such a combination of references in the same
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field of endeavor of providing user interfaces would have been well within
the ordinary level of skill of the art. See KSR, 550 U.S. at 417. In particular,
we find that Appellants' invention is simply a modification of familiar prior
art teachings that would have realized a predictable result to the skilled
artisan. The skilled artisan is "a person of ordinary creativity, not an
automaton." Id. at 421.
On this record, we find no error in the Examiner's rejection of claim
1, and of claims 2-5 and 21, depending therefrom but not argued separately
(Br. 33), over Stephanidis, Paramythis, and Siefert. For similar reasons, we
also affirm the rejection of claim 6, depending from claim 1, but not argued
separately, over Stephanidis, Paramythis, Siefert, and OSX. Id.
Claims 7-14, and 16-20
Appellants repeat the arguments for claim 1 with respect to
independent claims 7 and 12. Br. 20-26, 28-32. In particular, Appellants
repeat that the prima facie case of obviousness has not been established at
least because of the asserted motivation to combine the references is not
supported sufficiently by articulated reasoning with some rational
underpinning (id. at 20-23, 28-31 ), and that the operating principle of
Paramythis is altered by its combination with Stephanidis. Id. at 25-26, 31-
32.
As discussed above with respect to claim 1, we are not persuaded by
Appellants' arguments that the operating principle of Paramythis is altered
by its combination with Stephanidis. Id. at 20-23, 25-26.
As for Appellants' arguments that the Examiner has set forth
insufficient rationale for combining the references with Burkhardt, we agree
with the Examiner that Burkhardt shows data can be integrated with a boot
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up (Ans. 20; FF 5), wherein a skilled artisan would have recognized that "the
results would be predictable" and that "Paramythis and Stephanidis will
continue to gather and adapt their data, whether or not their data is adapted
at boot up or at a later time" (Ans. 20).
Similarly, as for Appellants' arguments that the Examiner has set
forth insufficient rationale for combining with OSX, we agree with the
Examiner that OSX shows presenting a setup at the initial login event of an
operating system and to customize parameters (id. at 21; FF 4 ), wherein a
skilled artisan would have recognized that "[t]he results would be[]
predictable" and that "whether the hardware is specified by a user, or
analyzed and detected automatically, the functionality would be the same"
(Ans. 21).
On this record, we find no error in the Examiner's rejection of claim
7, and of claims 8-11, depending therefrom but not argued separately (Br.
33), over Stephanidis, Paramythis, and Burkhardt; of claim 12, 13, 14, 16-18
and 20, over OSX, Stephanidis, Paramythis, and Burkhardt; and of claim 19,
depending from claim 12, over OSX, Stephanidis, Paramythis, Burkhardt,
and Windows 7. Id.
V. CONCLUSION AND DECISION
The Examiner's rejections of claims 1-14 and 16-21 under 35 U.S.C.
§ 103(a) are 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)(l )(iv).
AFFIRMED
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