Ex Parte Lindsay et al

Patent Trial and Appeal Board

Mar 31, 2017

13035750 (P.T.A.B. Mar. 31, 2017)

United States Patent and Trademark Office
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.
13/035,750 02/25/2011 Donald James Lindsay 38440-US-PAT 3488
95866 7590 04/04/2017
Fleit Gibbons Gutman Bongini & Bianco P.L.
551 NW 77th street
Suite 111
Boca Raton, EL 33487
EXAMINER
PACK, CONRAD R
ART UNIT PAPER NUMBER
2174
NOTIFICATION DATE DELIVERY MODE
04/04/2017 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):
ptoboc a @ fggbb .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DONALD JAMES LINDSAY, DAMON NOEL KROPF-
UNTUCHT, DAVID PAUL YACH, and MICHAEL GREGORY SMITH
Appeal 2016-002919
Application 13/035,750
Technology Center 2100
Before JAMES R. HUGHES, LARRY J. HUME, and JOHN D. HAMANN,
Administrative Patent Judges.
HUGHES, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s final decision rejecting claims 1—3, 6, 12, 14—16, 20, 24, and 26.
Claims 4, 5, 7—11, 13, 17—19, 21—23, and 25 have been canceled. Final Act.
1—2; App. Br. 18—20.1 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 We refer to Appellants’ Specification (“Spec.”), filed Feb. 25, 2011
(claiming benefit of US 61/327,520, filed Apr. 23, 2010); Appeal Brief
(“App. Br.”) filed May 21, 2015; and Reply Brief (“Reply Br.”) filed
Jan. 11, 2016. We also refer to the Examiner’s Answer (“Ans.”) mailed
Nov. 10, 2015, and Final Office Action (Final Rejection) (“Final Act.”)
mailed Feb. 27, 2015.
Appeal 2016-002919
Application 13/035,750
Appellants ’ Invention
The invention concerns apparatus and methods for selecting files
displayed in the graphical user interface (GUI) of a mobile device. The
apparatus includes a detector configured to detect user selection of multi­
select mode by detecting double-tapping on a representation of one of
multiple displayed files. Spec. 2, 3, 15—18, 23, 24, 26, 30-33, 38;
Abstract.
Representative Claim
Independent claim 1, reproduced below with key disputed limitations
emphasized, further illustrates the invention:
1. An apparatus for facilitating selection of files at a
mobile device, the apparatus comprising:
a display device configured to display representations of a
plurality of the files;
a detector configured to detect a user selection to enter a
multi-select mode by detecting double-tapping upon a
representation of a first one of the plurality offiles and to detect
selection made by way of the display device of a plurality offiles
to be aggregated, while entered in the multi-select mode, wherein
the first one of the plurality offiles is included in the plurality of
files to be aggregated; and
an aggregator configured to aggregate the plurality of the
files responsive to the selection detected by the detector.
Rejections on Appeal
1. The Examiner rejects claims 1—3, 6, 12, and 14—16 under 35
U.S.C. § 103(a) as being unpatentable over Krishnaraj et al. (US
2011/0126156 Al, published May 26, 2011 (filed Feb. 9, 2010))
(“Krishnaraj”), Gutowitz (US 6,885,317 Bl, issued Apr. 26, 2005) and
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Application 13/035,750
Daughtery et al. (US 2004/0135817 Al, published July 15, 2004)
(“Daughtery”).
2. The Examiner rejects claims 20, 24, and 26 under 35 U.S.C.
§ 103(a) as being unpatentable over Krishnaraj, Gutowitz, Daughtery, and
Boda etal. (US 2011/0181520 Al, published July 28, 2011 (filed Jan. 26,
2010)) (“Boda”).
ISSUE
Based upon our review of the record, Appellants’ contentions, and the
Examiner’s findings and conclusions, the issue before us follows:
Did the Examiner err in finding that Krishnaraj, Gutowitz, and
Daughtery collectively would have taught or suggested “a detector
configured to detect a user selection to enter a multi-select mode by
detecting double-tapping upon a representation of a first one of the plurality
of files” and the additional selection “of a plurality of files to be aggregated,
while entered in the multi-select mode, wherein the first one of the plurality
of files is included in the plurality of files to be aggregated” within the
meaning of Appellants’ claim 1 under § 103 and the commensurate
limitations of claim 14?
ANALYSIS
The 35 U.S.C. §103 Rejection of Claims 1—3, 6, 12, and 14—16
Appellants argue claims 1—3, 6, 12, and 14—16 together as a group.
See App. Br. 4—14. Appellants do not separately argue independent claims 1
and 14, or dependent claims 2, 3, 6, 12, 15, and 16. See App. Br. 13—14.
Accordingly, we select independent claim 1 as representative of Appellants’
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Application 13/035,750
arguments with respect to claims 1—3, 6, 12, and 14—16. 37 C.F.R.
§ 41.37(c)(l)(iv).
We adopt as our own (1) the findings and reasons set forth by the
Examiner in the action from which this appeal is taken (Final Act. 3—7), and
(2) the reasons set forth by the Examiner in the Examiner’s Answer (Ans. 2—
8) in response to Appellants’ Appeal Brief. We concur with the findings and
conclusions reached by the Examiner, and we provide the following for
emphasis.
Appellants contend Krishnaraj, Gutowitz, and Daughtery do not teach
the disputed features of representative claim 1. See App. Br. 4—13; Reply
Br. 2—5. Specifically, Appellants contend “Krishnaraj does not disclose that
user selection to enter a multi-select mode is detected by detecting double­
tapping upon a representation of a file,” but instead “describes triggering a
multi-select mode by pressing an object and holding it down.” App. Br. 7.
Appellants concede that “Gutowitz teaches . . . detecting selection to enter
into a different mode comprises detecting double tapping upon a display
device,” but contend that “Gutowitz does not disclose entering a multi-select
mode and the double tapping action is not related to any selectable file.”
App. Br. 8. Similarly, Appellants concede “Daughtery describes ....
selection of all or a portion of a plurality of objects, while preserving the
ability to select or deselect individual objects” (App. Br. 9), but contend
“there is no mention of entering a multi-select mode which enables the user
to select additional files where ‘the first one of the plurality of files is
included in the plurality of files to be aggregated,’ as recited by independent
claim 1” (App. Br 10—11). Appellants further contend combining
Krishnaraj, Gutowitz, and Daughtery “would result in a situation which
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frustrates the purposes of’ Krishnaraj, Gutowitz, and Daughtery (App.
Br. 11), such that “there is no motivation to combine Krishnaraj and
Gutowitz” (App. Br. 12), and even if combined “the combined system would
not yield the same result as disclosed in the present application and recited in
independent claim 1” (App. Br. 13).
We agree with the Examiner and find Appellants’ contentions
unpersuasive of Examiner error. The Examiner finds that it was known to
select a multi-select mode by a touch input on a touch-screen GUI of a
mobile device — “pressing an object and holding down for a certain period
[gesturing on a representation]” (Final Act. 4), i.e., by touching a touch
screen for a period of time. Final Act. 3—7; Ans. 2—8 (citing Krishnaraj
116, 118). That is, Krishnaraj was cited for the limited purpose of
teaching or suggesting selecting a multi-select mode (Krishnaraj 1116) by a
touch input (Krishnaraj 1116) on a touch-screen of a mobile device (see
Krishnaraj 130). The Examiner also finds it was known to select an object
or change an input mode by double-tapping an object or key of a touch
screen interface — “enter a different mode by detecting double tapping upon
a representation in an interface” (Final Act. 5). See Final Act. 3—7; Ans. 2—8
(citing Gutowitz, col. 32,1. 51—col. 33,1. 2). That is, Gutowitz was cited
for the limited purpose of teaching or suggesting the selection of an object or
changing a user input mode utilizing a double-tap touch input. See
Gutowitz, col. 32,11. 65—66). The Examiner further finds it was known to
select one of a plurality of files and include the selected file with multiple
files to be aggregated (grouped together) using single and/or double tapping
— “Daughtery teaches . . . detecting gesturing upon a representation of a
first one of a plurality of files . . . [which] is included in the plurality of files
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to be aggregated” (Final Act. 5). See Final Act. 3—7; Ans. 2—8 (citing
Daughtery, Abstract and 111). That is, Daughtery was cited for the limited
purpose of teaching or suggesting that an initially selected file (the first one
of the plurality of files) is included in the plurality of files to be aggregated.
We agree with the Examiner and find a preponderance of the evidence
demonstrates that the combination of Krishnaraj, Gutowitz, and Daughtery
would have taught or at least suggested the disputed features of Appellants’
claim 1. Appellants do not directly dispute the Examiner’s findings with
respect to the teachings of the individual prior art references as they apply to
the proffered combination. Instead, Appellants argue each of the references
individually, contend that the bodily incorporation of the references would
alter the operation of thereof, and do not address the specific arguments set
out by the Examiner. Compare Final Act. 3—7; Ans. 2—8 with App. Br. 4—
13; Reply Br. 2—5. The Krishnaraj, Gutowitz, and Daughtery references
cited by the Examiner must be read, not in isolation, but for what each fairly
teaches in combination with the prior art as a whole. See In re Merck & Co.,
Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (one cannot show non­
obviousness by attacking references individually where the rejections are
based on combinations of references).
We find Appellants’ arguments do not take into account what the
combination of Krishnaraj, Gutowitz, and Daughtery would have suggested
to one of ordinary skill in the art —
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.
In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted).
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We find that it would have been well within the level of skill of one
skilled in the art to combine the known techniques (supra) of selecting or
entering a multi-select mode utilizing a touch input on a touch-screen
interface of a mobile device as taught by Krishnaraj, where the user input is
a double-tap touch input as taught by Gutowitz, and an initially selected file
is included in the plurality of files to be aggregated as indicated by
subsequent user inputs as taught by Daughtery. See KSR Int 7 Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007) (“[I]f a technique has been used to improve
one device, and a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill” (citations
omitted)). We are not persuaded that combining the respective familiar
elements of the cited references in the manner proffered by the Examiner
would have been “uniquely challenging or difficult for one of ordinary skill
in the art” at the time of Appellants’ invention. Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citingKSR, 550
U.S. at 418).
Thus, Appellants do not persuade us of error in the Examiner’s
obviousness rejection of representative independent claim 1. For these same
reasons, Appellants do not persuade us of error in the Examiner’s
obviousness rejection of independent claim 14, or dependent claims 2, 3, 6,
12, 15, and 16, not separately argued with particularity (supra).
Accordingly, we affirm the Examiner’s obviousness rejections of claims 1—
3,6, 12, and 14—16.
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The 35 U.S.C. § 103 Rejection of Claims 20, 24 and 26
The Examiner rejects dependent claims 20, 24, and 26 as obvious in
view of Krishnaraj, Gutowitz, Daughtery, and Boda. Final Act. 9—12;
Ans. 8—11 (citing Boda 175 to demonstrate “double-tapping a representation
of a file to turn off the multi-select mode” (id.)) Appellants provide nominal
additional arguments with respect to claims 20 and 24, as well as Boda. See
App. Br. 14—16. Specifically, Appellants contend “Boda does not mention a
[sic] a multi-select mode, much less the very specific way to turn off the
multi-select mode by double-tapping a representation of a file.” App.
Br. 15. As with claim 1 (supra), we agree with the Examiner and find
Appellants’ contentions unpersuasive of Examiner error because Appellants
do not directly dispute the Examiner’s findings with respect to the teachings
of Boda as they apply to the proffered combination of Krishnaraj, Gutowitz,
Daughtery, and Boda.
For all these reasons, we find a preponderance of the evidence
demonstrates that the combination of Krishnaraj, Gutowitz, Daughtery, and
Boda would have taught or at least suggested the disputed features of
Appellants’ claims 20, 24, and 26. Accordingly, we affirm the Examiner’s
obviousness rejections of claims 20, 24, and 26.
CONCLUSION
Appellants have not shown the Examiner erred in rejecting
claims 1—3, 6, 12, 14—16, 20, 24, and 26 under 35 U.S.C. § 103(a).
DECISION
We affirm the Examiner’s rejection of claims 1—3, 6, 12, 14—16, 20,
24, and 26.
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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)(l)(iv).
AFFIRMED
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