Ex Parte Curtis

Patent Trials and Appeals BoardJul 3, 2019

13831517 - (D) (P.T.A.B. Jul. 3, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/831,517 03/14/2013 Keith Edwin Curtis 86528 7590 07/08/2019 Slayden Grubert Beard PLLC 401 Congress Avenue Suite 1650 Austin, TX 78701 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. 68354.118932 3411 EXAMINER GUPTA, PARUL H ART UNIT PAPER NUMBER 2627 NOTIFICATION DATE DELIVERY MODE 07/08/2019 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): dallen@sgbfirm.com patent@sgbfirm.com trosson@sgbfirm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KEITH EDWIN CUR TIS Appeal2018-000328 Application 13/831,517 1 Technology Center 2600 Before DENISE M. POTHIER, CARLL. SILVERMAN, and SCOTT E. BAIN, Administrative Patent Judges. BAIN, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1-3 and 6-26, which constitute all claims pending in the application. Claims 4 and 5 have been cancelled. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm-in-part, reverse-in-part, and enter a new ground of rejection for claim 24 under pre-AIA 35 U.S.C. Â§ 112, second paragraph, pursuant to our authority under 37 C.F.R. Â§ 41.50(b). 1 Appellant identifies Microchip Technology Incorporated as the real party in interest. App. Br. 2. Appeal2018-000328 Application 13/831,517 BACKGROUND The Claimed Invention Appellant's invention relates to a liquid crystal display with integrated capacitive touch sensors. Abstract; Spec. ,r,r 2-5. Claims 1, 17, and 24 are independent. Claim 1 is illustrative of the invention and the subject matter of the appeal, and reads as follows: 1. An LCD display with integrated capacitive touch sensors compnsmg: an LCD display comprising at least one numeric or alphanumeric symbol formed by a plurality of electrodes; at least one capacitive touch sensor arranged above a display layer or within transparent layers of the LCD display forming the at least one numeric or alphanumerical symbol and wherein the at least one capacitive touch sensor is associated with a single numeric or alphanumeric symbol and arranged in a layer above the single numeric or alphanumerical symbol such that the at least one capacitive touch sensor at least partly covers and overlays the single numeric or alphanumeric symbol. App. Br. 11 (Claims App 'x) ( emphases added). The Re} ections on Appeal Claims 1-3, 6-11, 13-17, and 24--26 stand rejected under pre-AIA 35 U.S.C. Â§ 103 as being unpatentable over Swedin (US 2007 /0046639 Al; pub. Mar. 1, 2007), Wyatt et al. (US 2013/0176251 Al; pub. Jul. 11, 2013) ("Wyatt"), and Akiyama (US 2008/0238883 Al; pub. Oct. 2, 2008). Final Act. 2-17. Claims 12 and 18-23 stand rejected under pre-AIA 35 U.S.C. Â§ 103 as being unpatentable over Swedin, Wyatt, Akiyama, and Dalal (US 2008/0243806 Al; Oct. 2, 2008). Final Act. 17-24. 2 Appeal2018-000328 Application 13/831,517 DISCUSSION We have reviewed the Examiner's rejection in light of Appellant's arguments presented in this appeal. Arguments which Appellant could have made but did not make in the Brief are deemed to be waived. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). On the record before us, we are not persuaded the Examiner erred in rejecting claims 1-3, 6-23, 25, and 26. As to those claims, we adopt as our own the findings and reasons set forth in the rejection from which the appeal is taken and in the Examiner's Answer. We are persuaded of error regarding the Examiner's obviousness rejection of claim 24, but we conclude that the claim is indefinite and we enter a new ground of rejection on that basis. We provide the following discussion for highlighting and emphasizing particular arguments and issues. Claim 1 Appellant argues the Examiner erred in finding Akiyama teaches a capacitive touch sensor "arranged above a display layer or within transparent layers ... associated with a single numeric or alphanumeric symbol," as recited in claim 1. App. Br. 6-7. Specifically, Appellant asserts that Akiyama' s touch electrodes are in the "same layer" and not "above a display layer or within transparent layers. Id. at 7. We are not persuaded by this argument, because the Examiner relies not only on Akiyama's teaching of touch sensors, but also on Wyatt's teaching of touch sensors overlaid upon numeric or alphanumeric symbols in a display (and Swedin's teaching of a segmented electrode display with touch sensors). Wyatt Fig. 2, ,r 2; Akiyama Fig. I la; Final Act. 3. Because Appellant's argument does not account for the combination, it does not 3 Appeal2018-000328 Application 13/831,517 demonstrate error. In re Keller, 642 F.2d 413,426 (CCPA 1981) ("one cannot show non-obviousness by attacking references individually where ... the rejections are based on combinations of references"). Appellant next argues that the Examiner erred in combining Wyatt with Swedin. App. Br. 5. Appellant asserts that Wyatt relates to dot-matrix displays, and a "person skilled in the art would not consider Wyatt when designing an LCD display that comprises multi-segment individual characters, such as 7-segment displays [ as in Swedin]." Id. at 5-6. We, however, agree with the rationale to combine provided by the Examiner. As the Examiner explains: Wyatt [teaches] how the touch electrode interacts with a display. The display can be any type of display. Swedin teaches the display of an alphanumeric character using a 7-segment display that incorporates touch. Wyatt teaches the details of the touch electrode, including proximity to the display and the blanking interval used with the display. Thus, it would be obvious to one of ordinary skill in the art to incorporate the details of how the touch is used as taught by Wyatt in the display of Swedin. The rationale to combine would be to allow the user to interact directly with what is displayed as given in paragraph 0002 of Wyatt [broadly describing touch-screen input/output interfaces]. Ans. 2; Final Act. 4--5 (also explaining rationale to include Akiyama in the combination); see also Wyatt ,r 2; Akiyama ,r,r 22, 48, 50; DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1365 (Fed. Cir. 2006) (rationale to combine references also may be found within the references themselves). Moreover, the references all are directed to the same purpose of optimizing input sensing and control in touch screen display devices. See Innovention Toys LLC v. MGA 4 Appeal2018-000328 Application 13/831,517 Entertainment Inc., 637 F.3d 1314, 1321-23 (Fed. Cir. 2011) (finding no error in combining references that share the "same purpose," "goal," or "objective"). For all of these reasons, we find the Examiner has sufficiently "articulated reasoning with some rational underpinning" to support the legal conclusion of obviousness. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007). Accordingly, Appellant has not persuaded us that the Examiner erred in rejecting claim 1 as unpatentable over Swedin, Wyatt, and Akiyama, and we sustain the rejection. Claim 17 Appellant argues that the Examiner erred in rejecting independent claim 17, which recites "similar limitation[ s ]" to claim 1, for the same reasons as claim 1. App. Br. 7-8. As discussed above, however, we are not persuaded by Appellant's arguments relating to claim 1. Appellant also briefly argues that Wyatt is "not related art" because the display in Wyatt "consists of a dot-matrix." Id. As discussed above, we find that the Examiner did not err in combining the references. To the extent Appellant implies that Wyatt is not analogous art, we disagree. A prior art reference is analogous to an application if it is "from the same field of endeavor" or if it is "reasonably pertinent to the particular problem with which the inventor is involved." In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). A prior art reference is reasonably pertinent if it is one which, because of the matter with which it deals, logically would have commended itself to an inventor's attention in considering his or her invention as a whole. In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379-80 (Fed. Cir. 2007). Here, the prior art references are from the same field of 5 Appeal2018-000328 Application 13/831,517 endeavor (i.e., control of touch screen displays) and are reasonably pertinent to the particular problem with which the inventor is involved (i.e., "flexibility of touch screen user inputs"). Spec. ,r 2; Swedin Abs., ,r 1-15; Akiyama ,r 3-9; Wyatt ,r 2, 7. Accordingly, Appellant has not persuaded us that the Examiner erred in rejecting claim 17 as unpatentable over Swedin, Wyatt, and Akiyama, and we sustain the rejection. Claim 24 Independent claim 24 recites, inter alia, a first and second electrode pad arranged in a layer above the seven segment electrodes, wherein a combined surface area of the at least two capacitive touch sensor pads has approximately the same size as a size of the seven segment number and substantially overlays a surface portion of the LCD display occupied by the seven segment number. App. Br. 15. The Examiner relies on Akiyama as teaching this limitation, finding that although Akiyama only discloses a "single touch pad," it can "perform the same functionality" as the recited pads. Ans. 3--4. The Examiner further reasons that "[ m Jere changes in size or proportion to allow the touch pads to be the same size as the display also does not render the invention to be patentably distinct." Ans. 4 ( citing In Re Rinehart, 531 F .2d 1048 (CCPA 1976)). As Appellant argues, however, the claim does not merely recite general functionality of sensor pads, but rather recites an express structural relationship between a "first and second electrode pad," "two capacitive touch sensor pads," and "the seven segment number." App. Br. 15. Appellant's Specification explains that the reason for reciting two or more 6 Appeal2018-000328 Application 13/831,517 sensor pads is to facilitate the detection of a "swiping" motion across them, i.e., to detect a touch at one pad and then the other. Spec. Fig. 2, ,r,r 21-25. Thus, Appellant is not merely claiming elements that are changed in size or proportion, as in Rinehart. See supra. The Examiner asserts that the single touch pad in Akiyama could simply be divided in "two separate halves." Ans. 3--4. The Examiner has not explained, however, how doing so would satisfy the claim's requirement of "at least two capacitive touch sensor pads" overlaying "the [single] seven segment number." App. Br. 15 (emphasis added). Moreover, as Appellant argues, it is unclear on this record how the Examiner proposes that the elements of Akiyama, as shown in Figure 2(a), would be modified to show "two separate touch pads" overlaying a single seven-segment number. App. 8; Ans. 3. Accordingly, we are persuaded the Examiner has erred in rejecting claim 24, and we do not sustain the obviousness rejection of claim 24. We, however, also find that claim 24 is indefinite, because the phrase "the at least two capacitive touch sensor pads" has no antecedent basis. Pursuant to our authority under 37 C.F.R. Â§ 4I.50(b), we, therefore enter a new ground of rejection of claim 24 under pre-AIA 35 U.S.C. Â§ 112, second paragraph. Remaining Claims Appellant does not argue separately any of the remaining claims, all of which depend (directly or indirectly) from claim 1 or claim 17. For the reasons discussed above regarding claim 1 and claim 17, we sustain the rejections of the remaining claims. 7 Appeal2018-000328 Application 13/831,517 DECISION We affirm the Examiner's decision rejecting claims 1-3, 6-23, 25, and 26. We reverse the Examiner's decision rejecting claim 24. In a new ground of rejection pursuant to our authority under 37 C.F.R. Â§ 4I.50(b ), we reject claim 24 under pre-AIA 35 U.S.C. Â§ 112, second paragraph as indefinite. TIME PERIOD FOR RESPONSE This decision contains new grounds of rejection pursuant to 37 C.F.R. Â§ 4I.50(b). Section 4I.50(b) provides "[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review." Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. 8 Appeal2018-000328 Application 13/831,517 (2) Request rehearing. Request that the proceeding be reheard underÂ§ 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in MPEP Â§ 1214.01. AFFIRMED-IN-PART 9