Ex Parte Idzik et alDownload PDFPatent Trial and Appeal BoardSep 29, 201412634872 (P.T.A.B. Sep. 29, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JACEK S. IDZIK and ROBERT J. LOWLES ____________ Appeal 2012-010470 Application 12/634,872 Technology Center 2800 ____________ 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: Appeal 2012-010470 Application 12/634,872 2 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 Appellants do not argue any error in this rejection, which is not withdrawn in the Examiner’s Answer, and we accordingly affirm it summarily.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. Appeal 2012-010470 Application 12/634,872 3 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. Appeal 2012-010470 Application 12/634,872 4 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 Appeal 2012-010470 Application 12/634,872 5 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 Appeal 2012-010470 Application 12/634,872 6 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 Appeal 2012-010470 Application 12/634,872 7 “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. Appeal 2012-010470 Application 12/634,872 8 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 lp Copy with citationCopy as parenthetical citation