Ex Parte Idzik et al

Patent Trial and Appeal Board

Sep 29, 2014

12634872 (P.T.A.B. Sep. 29, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JACEK S. IDZIK and ROBERT J. LOWLES
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Appeal 2012-010470
Application 12/634,872
Technology Center 2800
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Before BRADLEY R. GARRIS, GEORGE C. BEST, and
CHRISTOPHER M. KAISER, Administrative Patent Judges.

KAISER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the decision of the
Primary Examiner finally rejecting claims 1–5, 7–13, and 15–20 (“Final
Rej.”). We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

OPINION
Appellants’ invention “relates to a keyboard for use with a mobile
communication device.” Spec. ¶ 2.
Claim 1, reproduced below, is representative of the appealed subject
matter:
1. A method for a handheld electronic device including a
keyboard having a plurality of keys, the method comprising:
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transmitting a light through at least one light pipe
housing a plurality of sensors, each of the plurality of sensors in
a one-to-one relationship with a corresponding key on the
keyboard, each of the plurality of sensors including a bandpass
filter to assist in sensing light;
determining a key selection by comparing a measured
amount of light surrounding one of the plurality of sensors with
a threshold value;
transmitting a signal when one of the plurality of sensors
has determined that the measured amount of light exceeds the
threshold value;
storing the key selection in a memory of the device; and
providing a tactile response to a user when one of the
keys is selected.
Appeal Br. 18.
The Examiner rejected claims 1–5, 7–13, and 15–20 as unpatentable
over claims 1, 2, 7–9, 11, and 12 of U.S. Patent No. 7,655,901 on the ground
of nonstatutory obviousness-type double patenting. Final Rej. 3. Appellants
do not argue any error in this rejection, which is not withdrawn in the
Examiner’s Answer, and we accordingly affirm it summarily. Answer 4–11;
see Manual of Patent Examining Procedure (MPEP) § 1205.02 (9th ed. Mar.
2014) (“If a ground of rejection stated by the examiner is not addressed in
the appellant’s brief, appellant has waived any challenge to that ground of
rejection and the Board may summarily sustain it, unless the examiner
subsequently withdrew the rejection in the examiner’s answer.”).
The Examiner also rejected the following claims as unpatentable
under 35 U.S.C. § 103(a) as obvious over the following combinations of
prior-art references: claims 1–3 and 15–17 over Friedrich,1 Isherwood,2

1 Friedrich et al., US 3,621,268, issued Nov. 16, 1971.
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Kraus,3 and Bonanno;4 claims 4, 5, and 18 over Friedrich, Isherwood, Kraus,
Bonanno, and Yeschick;5 claims 7 and 19 over Isherwood, Kraus, and
Bonanno; claims 8–11 over Isherwood, Kraus, Bonanno, and Friedrich; and
claims 12 and 13 over Isherwood, Kraus, Bonanno, and Yeschick.

Rejections of Claims 1–3, 7–11, 15, and 19
Appellants argue that the Examiner’s rejections (1) of claims 1–3 and
15–176 over Friedrich, Isherwood, Kraus, and Bonanno; (2) of claims 7 and
19 over Isherwood, Kraus, and Bonanno; and (3) of claims 8–11 over
Isherwood, Kraus, Bonanno, and Friedrich are erroneous for two reasons:
(1) Kraus and Bonanno are non-analogous art to the claimed invention,
Appeal Br. 9, 15, and (2) none of the cited references teach a bandpass filter
that assists in sensing light, as required by Appellants’ claims. Id. at 11, 15.
We are not persuaded by either argument.
“The analogous-art test requires that the Board show that a reference
is either in the field of the applicant’s endeavor or is reasonably pertinent to
the problem with which the inventor was concerned in order to rely on that
reference as a basis for rejection.” In re Kahn, 441 F.3d 977, 986–87 (Fed.
Cir. 2006) (citing In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992)). We
agree with the Examiner that Kraus and Bonanno are analogous art. Kraus
teaches a keyboard overlay to be used with a touch-sensitive screen. Kraus,

2 Isherwood et al., US 4,701,747, issued Oct. 20, 1987.
3 Kraus et al., US 2003/0235452 A1, published Dec. 25, 2003.
4 Bonanno, US 4,468,999, issued Sep. 4, 1984.
5 Yeschick, US 4,119,953, issued Oct. 10, 1978.
6 As discussed below, Appellants have additional arguments with respect to
the rejection of claims 16 and 17 over Friedrich, Isherwood, Kraus, and
Bonanno.
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Abstract. When so used, Kraus’s overlay becomes a keyboard for making
input to an electronic device. Id. Accordingly, it is not outside Appellants’
field of electronic device keyboards. Similarly, Bonanno teaches a keyboard
for a music synthesizer, Bonanno, col. 1, ll. 6–9, which is also within the
field of keyboards for electronic devices.
We are also not persuaded by Appellants’ argument that no cited
reference teaches a bandpass filter that assists in detecting light. The
Examiner relies on Bonanno to disclose this limitation. Final Rej. 12 (citing
Bonanno, col. 6, ll. 9–19). Appellants argue that Bonanno fails to disclose
this limitation because Bonanno’s bandpass filter is applied to the electrical
signal output from the light sensor as opposed to being used to filter the light
reaching the sensor. Appeal Br. 11. We disagree that the claim term “assist
in sensing light” must be interpreted so narrowly. It is well established that
“the PTO must give claims their broadest reasonable construction consistent
with the specification. . . . Therefore, we look to the specification to see if it
provides a definition for claim terms, but otherwise apply a broad
interpretation.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007). Here, Appellants do not point us to any portion of their
Specification that suggests that “assist in sensing light” is limited to keeping
unwanted light from reaching the sensor. Therefore, we interpret this phrase
broadly to encompass any way in which the bandpass filter helps the light
sensor detect light. Accordingly, as long as Bonanno discloses a bandpass
filter that helps its associated light sensor detect light, this disclosure falls
within the broadest reasonable interpretation of the claim term. We agree
with the Examiner that Bonanno does disclose such a bandpass filter. The
bandpass filter in Bonanno performs the same function—precluding
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interference by ambient light—as Appellants’ bandpass filter. Compare
Bonanno, col. 6, ll. 14–19 (“a narrow bandpass filter . . . allows calibration
of the unit . . . without the need for special fixtures or the like precluding
interference by ambient light”) with Spec. ¶ 19 (“by using a bandpass
filter . . . ambient light does not interfere with the readings of the sensors”).
Because Kraus and Bonanno are analogous art to Appellants’ claimed
invention, and because Bonanno discloses a bandpass filter that assists in
detecting light, we affirm the Examiner’s rejections (1) of claims 1–3 and 15
over Friedrich, Isherwood, Kraus, and Bonanno; (2) of claims 7 and 19 over
Isherwood, Kraus, and Bonanno; and (3) of claims 8–11 over Isherwood,
Kraus, Bonanno, and Friedrich.

Rejection of Claims 16 and 17
In addition to the arguments discussed above, Appellants argue that
the Examiner’s rejection of claim 16 is improper because no reference
teaches the light sensor being “integrated with the corresponding bandpass
filter,” as required by claim 16. Appeal Br. 12, 20. Appellants also argue
that the Examiner’s rejection of claim 17 is improper because no reference
teaches the “programmable [bandpass] filter” required by claim 17. We are
not persuaded by either of these arguments.
With respect to claim 16, the Examiner relies on Bonanno to teach a
bandpass filter that is integrated with a sensor. Final Rej. 12; Answer 30–
31. Appellants argue that Bonanno’s filter is separate from—and, therefore,
not integrated with—its corresponding light sensor. Appeal Br. 12. The
Examiner responds that “integrated” can mean “united; formed, coordinated,
or [blended] into a functioning or unified whole” and that Bonanno’s filter
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and sensor are united in this sense. Answer 31. We agree with the
Examiner that the broadest reasonable interpretation of “integrated” includes
components that, although not built as a single unit, function together as a
whole. Appellants point to no language in their Specification that requires a
narrower interpretation. Accordingly, we affirm the Examiner’s rejection of
claim 16 as obvious over Friedrich, Isherwood, Kraus, and Bonanno.
With respect to claim 17, the Examiner found that a person of
ordinary skill in the art would have known that bandpass filters can be
programmable. Answer 13. Although Appellants argue that the Examiner
erred by taking official notice of such a fact (i.e., knowledge of an artisan at
the time of the invention), Appeal Br. 13, they do not argue that the finding
itself is incorrect. Indeed, Appellants’ own Specification suggests that a
person of ordinary skill in the art would have known about programmable
bandpass filters. See Spec. ¶ 27 (stating that a bandpass filter “may be a
programmable filter” without further defining or limiting the term). Because
Appellants have not demonstrated that the Examiner’s finding is erroneous,
we affirm the Examiner’s rejection of claim 17 as obvious over Friedrich,
Isherwood, Kraus, and Bonanno.

Rejection of Claims 4, 5, and 18
The Examiner rejected claims 4, 5, and 18 as obvious over Friedrich,
Isherwood, Kraus, Bonanno, and Yeschick. Appellants argue that this
rejection is improper for two reasons.
First, Appellants argue that Yeschick is not analogous art to the
claimed invention. Appeal Br. 13–14. We are not persuaded by Appellants’
argument. Yeschick discloses a controller for a computer display that is
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“arranged to perform various operations upon request by . . . keyboard
units.” Yeschick col. 4, l. 67 – col. 5, l. 1. Accordingly, we agree with the
Examiner that Yeschick is within Appellants’ field of keyboards for
electronic devices. See Answer 33.
Appellants also argue that Yeschick does not teach scanning for a key
press and then interrupting all applications, as Appellants contend is required
by each of claims 4, 5, and 18. Id. at 14. We are not persuaded by this
argument. First, the Examiner relies on Isherwood, not Yeschick, to teach
the claimed scanning. Answer 33–34. One cannot show nonobviousness by
attacking references individually when the rejection is based on a
combination of references. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Accordingly, it is irrelevant whether Yeschick teaches the claimed scanning,
and Appellants do not challenge the Examiner’s finding that Isherwood
teaches this limitation.
Second, contrary to Appellants’ argument, claims 4, 5, and 18 do not
require the interruption of all applications. Instead, they require only
“interrupting applications executing on the device.” Appeal Br. 18.
Appellants do not challenge the Examiner’s finding that Yeschick discloses
interrupting at least some applications executing on a device upon detecting
a key press. See Final Rej. 13–14. Accordingly, Appellants have not shown
error in the Examiner’s reliance on Yeschick to teach the limitation
“interrupting applications executing on the device.”
We affirm the Examiner’s rejection of claims 4, 5, and 18 as obvious
over Friedrich, Isherwood, Kraus, Bonanno, and Yeschick.

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Rejection of Claims 12 and 13
Appellants argue that the Examiner erred by rejecting claims 12, 13,
and 20 as obvious over Isherwood, Kraus, Bonanno, and Yeschick because,
contrary to the Examiner’s findings, Isherwood fails to disclose determining
which light sensor produced a detected interrupt signal. We are not
persuaded by this argument for two reasons. First, the Examiner did not
reject claim 20 as obvious over Isherwood, Kraus, Bonanno, and Yeschick.
The only rejection of claim 20 is on the ground of obviousness-type double
patenting, and the rejection over Isherwood, Kraus, Bonanno, and Yeschick
is applied only to claims 12 and 13. Final Rej. 3, 19–20. Second, the
limitation that Appellants argue is not disclosed by Isherwood (“scanning
each sensor to determine which sensor produced the interrupt signal”) is not
recited in either claim 12 or claim 13. Appeal Br. 20. Accordingly,
Appellants have shown no error in the Examiner’s rejection of claims 12 and
13 as obvious over Isherwood, Kraus, Bonanno, and Yeschick, and we
affirm that rejection.

ORDER
The Examiner’s decision rejecting claims 1–5, 7–13, and 15–20 is
affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED
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