Ex Parte Im et al

Patent Trial and Appeal Board

Jan 14, 2014

11245231 (P.T.A.B. Jan. 14, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/245,231 10/06/2005 Jong-Hyeok Im 678-2037 3181
66547 7590 01/14/2014
THE FARRELL LAW FIRM, P.C.
290 Broadhollow Road
Suite 210E
Melville, NY 11747
EXAMINER
STERNBANE, LAURENCE J
ART UNIT PAPER NUMBER
2699
MAIL DATE DELIVERY MODE
01/14/2014 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 JONG-HYEOK IM and HUN-WOONG YANG
____________________

Appeal 2011-010916
Application 11/245,231
Technology Center 2600
____________________

Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-4, 6, and 7. Claim 5 has been canceled. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
Appellants’ Disclosed Invention
Appellants’ disclosed invention relates to a dual liquid crystal display
(LCD) screen mobile phone that opens up to reveal a wide screen display
mode where both LCD screens operate to create a display to a user (see Fig.
5; Title; Abst.; Spec. 1:13-15).
Exemplary Claim
Independent claim 1 is representative of claims 1-4, 6, and 7 on
appeal, and recites a folder-type mobile phone with dual outer liquid crystal
displays (LCDs), where when the phone is closed around a hinge both
screens are “completely visible to a user” (see claim 1 infra; claim 7; Figs.
3-6, especially Fig. 5 showing the phone unfolded). Exemplary independent
claim 1 under appeal, with emphases and bracketing added, reads as follows
(the only other independent claim on appeal, claim 7, contains a similar
limitation as limitation [B] found at the end of claim 1 infra):
1. A folder-type mobile phone having dual outer liquid
crystal displays, comprising:
a body housing;
a folder being opened from the body housing;
a main liquid crystal display provided in the lengthwise
direction of the body housing;
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a sub-liquid crystal display provided in the lengthwise
direction of the folder; and
a hinge unit rotatably connecting the folder to the body
housing, the hinge unit disposing the main liquid crystal display
and the sub-liquid crystal display to be positioned parallel to
each other in side by side relation by rotating the folder about a
hinge axis of the hinge unit so that the folder becomes remote
from the body housing in the lengthwise direction of the body
housing,
[A] wherein the main liquid crystal display and the sub-
liquid crystal display of the mobile phone operate as a single
wide screen display, when the folder is open during a wide
screen display mode, and
[B] wherein the main liquid crystal display and the sub-
liquid crystal display of the mobile phone are both completely
visible to a user when the folder is closed onto the body
housing.
The Examiner’s Rejections
(1) The Examiner rejected claims 1-4, 6, and 7 as being unpatentable
under 35 U.S.C. § 103(a) over the combination of Yoshihara (US
2004/0061662 A1; published April 1, 2004) and Choi (JP 2003-0045892;
published December 3, 2001). Ans. 4-9.
(2) The Examiner rejected claim 2 as being unpatentable under
35 U.S.C. § 103(a) over the combination of Yoshihara, Choi, and Virnich
(US 2006/0066227 A1; published March 30, 2006, filed Sept. 24, 2004).
Ans. 9-11.
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Appellants’ Contentions1
(1) Appellants contend (App. Br. 8-12; Reply Br. 1-4) that the
Examiner erred in rejecting claims 1, 3, 4, 6, and 7 under 35 U.S.C. § 103(a)
over Yoshihara and Choi for numerous reasons including:
(a) Yoshihara and Choi, whether taken individually or together
in combination, fail to teach or suggest that a main LCD and sub-LCD
of a mobile phone “are both completely visible to a user[,] when the
folder is closed onto the body housing” as recited in (limitation [B] of
representative claim 1, and similarly recited in the last limitation of
claim 7) claims 1 and 7 (App. Br. 12);
(b) neither of Choi’s displays are visible when the folder is
closed (App. Br. 8), and therefore, Choi fails to teach or suggest
limitation [B] at issue since neither of Choi’s displays are visible
when the folder is closed (App. Br. 8);
(c) Yoshihara’s Figure 11 shows display D2 is visible when the
folder is closed onto the main body, and only a portion of display D1
remains visible (App. Br. 8);
(d) nothing in Yoshihara or Choi provides any reason for the
design choice relied upon by the Examiner, and doing so would
require a new hinge mechanism (App. Br. 10); and

1 Appellants argue claims 1, 3, 4, 6, and 7 on the basis of claim 1 (App. Br.
12; Reply Br. 3). We select claim 1 as representative of the group of claims
1, 3, 4, 6, and 7 rejected over Yoshihara and Choi, and decide the appeal of
claims 3, 4, 6, and 7 on the same basis as claim 1.

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(e) the Examiner’s motivation for the proposed combination of
Yoshihara and Choi and the asserted design choice is improper,
conclusory, and lacks a rational underpinning (App. Br. 11).
(2) Appellants contend (App. Br. 8-9 and 13) that the Examiner erred
in rejecting claim 2 under 35 U.S.C. § 103(a) over Yoshihara, Choi, and
Virnich for numerous reasons including:
(a) Virnich’s displays are on opposite sides of the folder
portion, making it impossible for both displays to be visible when the
folder is closed (App. Br. 8-9 and 12);
(b) nothing in Yoshihara, Choi, or Virnich provides any reason
for the design choice relied upon by the Examiner, and doing so
would require a new hinge mechanism (App. Br. 10); and
(c) claim 2 is patentable due to its dependency upon claim 1 as
argued supra (App. Br. 12).
Issue on Appeal
Based on Appellants’ arguments, the following issue is presented for
appeal:
Did the Examiner err in rejecting claims 1-4, 6, and 7 as being
obvious because (a) Yoshihara and Choi are not properly combinable, and
(b) the base combination of Yoshihara and Choi, when combined with the
knowledge of a person having ordinary skill in the art of folder-type, dual
screen display devices at the time of Appellants’ invention, fails to teach or
suggest the “wherein” limitation [B] at issue in representative claim 1 in
order to maximize viewing area of both screens to a user?

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PRINCIPLES OF LAW
“[C]laims under examination before the PTO are given their broadest
reasonable interpretation consistent with the specification.” In re Abbott
Diabetes Care Inc., 696 F.3d 1142, 1148 (Fed. Cir. 2012). Whether an
invention would have been obvious is a question of law based on underlying
findings of fact. In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000).
A claimed invention is unpatentable if the differences between the
claimed invention and the prior art are such that the claimed invention as a
whole would have been obvious to one of ordinary skill in the relevant art.
35 U.S.C. § 103. Whether a claimed invention would have been obvious is a
question of law, based on factual determinations regarding the scope and
content of the prior art, differences between the prior art and the claims at
issue, the level of ordinary skill in the pertinent art, and any objective indicia
of non-obviousness. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007); Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18
(1966). The Examiner’s articulated reasoning in the rejection must possess a
rational underpinning to support the legal conclusion of obviousness. KSR
Int’l Co. v. Teleflex, Inc., 550 at 418 (citing In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006)).
In KSR, the Supreme Court criticized a rigid approach to determining
obviousness based on the disclosures of individual prior-art references, with
little recourse to the knowledge, creativity, and common sense that an
ordinarily skilled artisan would have brought to bear when considering
combinations or modifications. KSR, 550 U.S. at 415-22. The Supreme
Court required an analysis that reads the prior art in context, taking account
of “demands known to the design community,” “the background knowledge
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possessed by a person having ordinary skill in the art,” and “the inferences
and creative steps that a person of ordinary skill in the art would employ.”
Id. at 418. This “expansive and flexible approach,” id. at 415, is consistent
with our reviewing court’s own pre-KSR decisions acknowledging that the
inquiry “not only permits, but requires, consideration of common knowledge
and common sense.” DyStar Textilfarben GmbH & Co. Deutschland KG v.
C.H. Patrick Co., 464 F.3d 1356, 1367 (Fed. Cir. 2006).
The Examiner’s analysis in this case does not simply and narrowly
focus on the prior-art references applied, but relies upon the knowledge and
perspective of one of ordinary skill in the art to explain why an ordinarily
skilled artisan would have been motivated to combine and/or modify the
cited references to arrive at the claimed inventions.2 As KSR established, the
knowledge of such an artisan is part of the store of public knowledge that
must be consulted when considering whether a claimed invention would
have been obvious.

2 And, more specifically, the Examiner relies upon the ability and knowledge
of the person of ordinary skill in the art to arrange and modify the particular
placement of Yoshihara’s screen D1 (e.g., “from one side of a housing to
another” as determined by the Examiner at Ans. 6, “on either the inner or
outer surface of the main housing or sub-housing of a mobile device” and/or
with “both displays on the external surface of the mobile device” as
determined by the Examiner at Ans. 13) to be completely visible/viewable to
a user. We find that this would be especially true for wide screen devices
using two screens such as found in the folder-type mobile phone using a
wide-screen display of Choi (see Choi’s Figs. 1-3 showing side-by-side
screens 100 and 200 for use in wide-screen viewing) in order for users to
better enjoy moving images and/or games on the combined screens as taught
by Choi.
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ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions in the Appeal Brief (App. Br. 8-14) and the Reply Brief (Reply
Br. 1-4) that the Examiner has erred. We disagree with Appellants’
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Ans. 4-11), as
well as the Advisory Action mailed October 25, 2010, and (2) the reasons set
forth by the Examiner in the Examiner’s Answer in response to Appellants’
Appeal Brief (see Ans. 9-14). We concur with the conclusions reached by
the Examiner.
Examiner’s Prima Facie Case
Yoshihara (Figs. 9-11) combined with Choi (Figs. 1-3) teaches or
suggests a mobile phone with dual LCD screens that fold to provide a wide-
screen view. We do not find the Examiner’s reasoning for the modification
of the location of screens of the collective teachings and/or suggestions of
Yoshihara and Choi (from an inner surface of a folder housing to an outer
surface of a folder housing) to be unreasonable. We agree with the
Examiner (Ans. 12-13) that only a limited number of options would be
available to the folding-type mobile phone designer or ordinarily skill artisan
in the field to provide a wide-screen view using two screens of a folding
mobile phone (i.e., either two screens on the inside of the folder housing as
is found in Choi’s Figures 1, 2a, 2b, and 3, or two screens on the outside of
the folder housing as found in Appellants’ Figure 5 and Yoshihara’s Figures
1, 2, 7, 9, and 11). Indeed, we also agree with the Examiner (Ans. 12) that:
(i) Appellants’ own admitted prior art shown in Figures 1 and 2 of the
Drawings of the Specification on appeal, as well as Choi (see Figs. 1, 2, 7, 9,
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and 11), disclose installing screens on either an inside or an outside of a
folding housing of a mobile phone;
(ii) Yoshihara discloses dual displays on a folding phone that are
disposed such that the two screens face the same direction when the housing
is open (see Yoshihara, Figure 9) or closed (see Yoshihara, Figures 7 and
11); and
(iii) modifying the combination of Yoshihara and Choi (as modified
by design choice as to screen placement) with Virnich would not require a
new hinge mechanism (Ans. 13).
The Examiner has provided articulated reasoning with a rational
underpinning to support the combination for the legal conclusion of
obviousness, i.e., set forth a prima facie case of obviousness in rejecting
claims 1, 3, 4, 6, and 7 under § 103(a) over Yoshihara and Choi (Ans. 4-9).
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). We agree with the
Examiner that the combination of Yoshihara and Choi meets all of the dual
outer LCD limitations set forth in representative claim 13 and that it would
have been obvious to combine Yoshihara and Choi. Indeed, the Examiner
explains in detail the reasons that would motivate an ordinarily skilled
artisan to combine: (1) the teachings of Yoshihara with those of Choi (Ans.
5-6 and 8-9), and (2) the teachings of Virnich with those of Yoshihara and
Choi (Ans. 10-11). Thus, the Examiner has met the prima facie showing

3 The Examiner provided element-to-element matching of the features of the
references to the limitations of the claims in a sufficiently articulate and
informative manner (see, e.g., discussion of claim 1 at Ans. 4-6 and
discussion of claim 7 at Ans. 7-9, see also discussion of claim 2 at Ans. 9-
10).
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and the burden of persuasion shifts to Appellants to demonstrate non-
obviousness.4
Appellants’ Burden to Rebut Prima Facie Case
If a prima facie case of obviousness is established, the burden shifts to
the applicant to come forward with arguments and/or evidence to rebut the
prima facie case. See, e.g., In re Dillon, 919 F.2d 688, 692 (Fed. Cir. 1990).
To establish a prima facie case of obviousness, so as to meet the notice
required of 35 U.S.C. § 132, requires (1) “set[ting] forth the statutory basis
of the rejection”; (2) “the reference or references relied upon”; and (3)
explaining the references “in a sufficiently articulate and informative
manner.” In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011). Further, there
must be (4) “a reason to combine prior art references[, which] is a question
of fact.” Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342,
1367 (Fed. Cir. 2012) (internal citations omitted). Also, an obviousness
determination cannot rest upon impermissible hindsight reasoning, and to
guard against hindsight reasoning the Federal Circuit “flexibly seeks
evidence from before the time of the invention in the form of some teaching,
suggestion, or even mere motivation [(]conceivably found within the
knowledge of an ordinarily skilled artisan[)] to make the variation or
combination.” Rolls-Royce, PLC v. United Technologies Corp., 603 F.3d
1325 (Fed. Cir. 2010) (internal citations omitted).

4 Once the Examiner has satisfied the burden of presenting a prima facie
case of obviousness, the burden then shifts to Appellants to present evidence
and/or arguments that persuasively rebut the Examiner’s prima facie case.
See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
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Unexpected Results
It is well established that Appellants bear the burden of showing that
the claimed invention imparts unexpected results. In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997); In re Klosak, 455 F.2d 1077, 1080 (CCPA
1972). Such burden requires Appellants to provide a showing that is
actually unexpected and is reasonably commensurate with the scope of
protection sought by the claims on appeal. See In re Grasselli, 713 F.2d
731, 743 (Fed. Cir. 1983); In re Clemens, 622 F.2d 1029, 1035 (CCPA
1980); Klosak, 455 F.2d at 1080.
Here, as correctly found by the Examiner at page 14 of the
Answer, Appellants have not demonstrated that the claimed subject matter of
representative claim 1 of locating dual LCD screens of mobile device so as
to be completely visible to a user when a folder is closed produces any
unexpected or extraordinary results. Furthermore, we agree with the
Examiner that placing both screens on external surfaces of the mobile device
of Yoshihara combined with Choi would not provide any unexpected results
to a user (i.e., both screens would be visible to a user even when the device
is closed (Ans. 13). We also agree with the Examiner that only a limited
number of arrangements exist for dual screen, wide-screen devices that fold
on a hinge as would be the situation in the combination of Yoshihara and
Choi (Ans. 12-13). The expected result of trying different screen
arrangements based on a limited number of optional placements available
for side-by-side screen arrangements for wide-screen viewing as taught by
Choi (see Choi, Figs. 1-3 showing screens 100 and 200) agrees with the
disclosure of Yoshihara (Figs. 9-11) which teaches that main-LCD and sub-
LCD screens facing opposite directions when the folder is closed and a same
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direction when the folder is open, yielding the expected result of providing
dual LCDs on the outside of the folder while at the same time producing a
wide-screen mode using two side by side screens.
We, therefore, agree with the Examiner’s findings and conclusions
that one of ordinary skill in the art of mobile devices using dual screens at
the time of Appellants’ invention, in view of the combined teachings and
suggestions of Yoshihara and Choi modified by a predictable choice in
design or placement of screens used for dual and/or wide screen viewing,
would have been motivated to perform routine experimentation to find the
optimum/workable placement for the dual screens of a mobile phone used
for wide-screen viewing of games and images that allows a user to have the
best view, e.g., by being able to completely view both screens when the
folder is closed (Ans. 4-6 and 12-14).
Hindsight
Appellants contend (App. Br. 11) the Examiner’s obviousness
determination is hinged upon impermissible hindsight and is thus
conclusory. To support their conclusions of hindsight, Appellants
themselves present conclusory statements that such combinations of
references would require more than ordinary skill in the art (App. Br. 9-10).
Appellants’ conclusory statements are unsupported by factual evidence. In
addition, arguments of counsel cannot take the place of factually supported
objective evidence. See, e.g., In re Huang, 100 F.3d 135, 139-40 (Fed. Cir.
1996); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Also, while not
required to, Appellants have not submitted evidence of secondary
considerations. Evidence of secondary considerations “may also serve a
guard against slipping into use of hindsight.” Kahn, 441 F.3d at 986
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(quoting Graham v John Deere Co., 383 U.S. 1, 36 (1966)). Therefore, we
accord very little probative value to Appellants’ conclusory statements that
combining the teachings of Yoshihara and Choi, and/or Yoshihara, Choi,
and Virnich, required more than ordinary skill in the art.
In view of the foregoing, Appellants’ contentions (App. Br. 9-12;
Reply Br. 3-4) that it would not have been obvious to combine Yoshihara
and Choi and/or Yoshihara, Choi, and Virnich because the Examiner’s
reasoning is conclusory and involves hindsight are unconvincing.
Ordinary Skill and Design Choice
Moreover, we are not persuaded that modifying Yoshihara with the
dual, side-by-side screen mobile phone with a wide-screen mode of Choi,
and re-arranging screen locations to produce predictable results of providing
maximum visibility for a user was “uniquely challenging or difficult for one
of ordinary skill in the art” at the time of Appellants’ invention (see
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007) (citing KSR, 550 U.S. at 418)). In both Yoshihara and Choi, multiple
arrangements are disclosed for using multiple screens in a mobile device.
And, in Choi, two screens are used side by side to produce a wide-screen
mode for viewing moving images and games to a user.
Routine optimization of scientific variables by ordinarily skilled
artisans that produce predictable variations are likely (i) the product not of
innovation but of ordinary skill and common sense, and (ii) barred by
35 U.S.C. § 103. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. at 420; Pfizer,
Inc. v. Apotex, Inc., 480 F.3d 1348, 1371 (Fed. Cir. 2007).
An obviousness “analysis need not seek out precise teachings directed
to the specific subject matter of the challenged claim, for a court can take
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account of the inferences and creative steps that a person of ordinary skill in
the art would employ.” KSR Int'l v. Teleflex Inc., 550 U.S. at 418. The
discovery of an optimum value of a results-effective variable in a known
process is normally obvious. In re Aller, 220 F.2d 454, 456 (CCPA 1955).
In the instant case before us, discovery of the optimum placement of
two screens on a folding mobile phone using side-by-side screens (external
to a folder) for providing wide-screen viewing by a user would have been
obvious to a person of ordinary skill in the art. We are not persuaded that
choosing screen placement in a folding mobile phone for visibility was
“uniquely challenging or difficult for one of ordinary skill in the art” at the
time of Appellants’ invention (see Leapfrog Enters., Inc. v. Fisher-Price,
Inc., 485 F.3d at 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418)).
Appellants’ arguments to the contrary (App. Br. 8-12; Reply Br. 1-3) do not
convince us otherwise.
We agree with the Examiner (Ans. 6 and 13) that the particular
placement of Yoshihara’s screen D1 to make it completely viewable is well
within the skill of the ordinary artisan and would have been an obvious
design choice. The concept of screen visibility using multiple screens is not
a new one, and Appellants do not dispute this fact by way of showing
unexpected results, commercial success, or other secondary considerations
and/or evidence of record.
The re-arrangement of known elements such that the dual screens
used in a folding-type dual outer LCD display device to increase viewing
area to a user does not provide any novel or unexpected results. A design
choice may be an acceptable rationale for an obviousness rejection when a
claimed product merely arranges known elements in a configuration that
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provides no novel or unexpected results. See e.g., In re Kuhle, 526 F.2d 553,
555 (CCPA 1975) (“the particular placement of the contact provides no
novel or unexpected results. The manner in which electrical contact is made
for Smith’s battery would be an obvious matter of design choice within the
skill of the art.”).
Appellants’ arguments to the contrary (App. Br. 8-12; Reply Br. 1-3)
have not persuaded us of error in this reasoning, and are found to be
conclusory and without evidentiary support found in the record before us on
appeal.
Summary
Claims 1, 3, 4, 6, and 7
In view of the foregoing, Appellants have not sufficiently shown that
the Examiner erred in rejecting representative claim 1 under
35 U.S.C. § 103(a) over Yoshihara and Choi. Accordingly, we sustain the
Examiner’s obviousness rejection of representative claim 1 based upon the
combined teachings and suggestions of Yoshihara and Choi, as well as
claims 3, 4, 6, and 7 grouped with claim 1.
Claim 2
Appellants’ arguments (App. Br. 10) that nothing in Yoshihara, Choi,
or Virnich provides any reason for the design choice relied upon by the
Examiner, and doing so would require a new hinge mechanism, are not
persuasive. The Examiner has relied upon Yoshihara (Ans. 4 and 7 citing
Yoshihara’s unit H in Fig. 1) as teaching the recited hinge, as well as finding
that Choi additionally teaches or suggests a hinge (Ans. 8), as does Virnich
(Ans. 10). We are not persuaded that modifying the combination of
Yoshihara and Choi (as modified by design choice as to screen placement)
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with Virnich would require a new hinge mechanism, since the hinge of
Yoshihara provides both rotation and hinging movement in multiple
directions (Ans. 13), and the Examiner has not expressly relied on the hinges
of Choi and/or Virnich as meeting the claim limitations of claims 1 and 2.
Instead, the Examiner has merely cited additional support for making the
combinations, namely that all of the applied references pertain to the art of
mobile devices having multiple screens on a hinged and folding housing.
For similar reasons as provided above with respect to claim 1, and
because the Examiner relies upon the base combination of Yoshihara and
Choi (and not Virnich) as teaching the features of claim 1 (including the
“hinge unit” that “rotatably connect[s] the folder to the body housing” as
recited in claim 1) from which claim 2 depends, we sustain the Examiner’s
obviousness rejection of claim 2.

CONCLUSION
The Examiner has not erred in rejecting claims 1, 3, 4, 6, and 7 as
being obvious because (a) Yoshihara and Choi are properly combinable, and
(b) the base combination of Yoshihara and Choi, when combined with the
knowledge of a person having ordinary skill in the art of folder-type, dual
screen display devices at the time of Appellants’ invention, fails to teach or
suggest the “wherein” limitation [B] at issue in representative claim 1 in
order to maximize viewing area of both screens to a user.

DECISION
The Examiner’s rejections of claims 1-4, 6, and 7 are affirmed.
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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

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