Ex Parte Nachman et alDownload PDFPatent Trial and Appeal BoardMar 8, 201812240904 (P.T.A.B. Mar. 8, 2018) Copy Citation 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. 12/240,904 09/29/2008 Lama Nachman P27563 6221 88032 7590 03/12/2018 TnrHanTPT aw T T C EXAMINER 12501 Prosperity Drive, Suite 401 Silver Spring, MD 20904 KHOO, STACY ART UNIT PAPER NUMBER 2623 NOTIFICATION DATE DELIVERY MODE 03/12/2018 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): info@jordaniplaw.com admin @jordaniplaw.com inteldocs_docketing @ cpaglobal. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LAMA NACHMAN, RAHUL C. SHAH, and JONATHAN J. HUANG Appeal 2017-009805 Application 12/240,904 Technology Center 2600 Before JOHN A. JEFFERY, BRUCE R. WINSOR, and JUSTIN BUSCH, Administrative Patent Judges. WINSOR, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellants1 appeal from the Examiner’s decision to reject claims 44-68, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). Claims 1-43 were cancelled. We affirm and designate our affirmance of the rejection of claims 44- 68 as a new ground of rejection under 37 C.F.R. § 41.50(b) (2016). 1 Appellants identify the real party in interest as Intel Corporation. App. Br. 3. Appeal 2017-009805 Application 12/240,904 STATEMENT OF THE CASE Appellants’ disclosed invention “monitors typing errors made by a user of the keyboard and dynamically changes the layout of the keyboard for reducing such errors.” Spec. ^ 12. Claims 44 and 52, which are illustrative, read as follows: 44. A method, comprising: receiving inputs typed by a user of a dynamically customizable keyboard during an operating condition of the user, wherein the dynamically customizable keyboard is a component of a handheld computing device; analyzing the inputs to identify typing errors made by the user by monitoring dictionary replacement of words typed by the user, manual block replacement of letters typed by the user, and a single letter replacement typed by the user; and reducing the identified typing errors by customizing a layout of the keyboard with respect to the handheld computing device, wherein the customized layout of the keyboard corresponds to the operating condition of the user, wherein two or more of the typing errors are associated with time stamps to facilitate aging of the typing errors. 52. A method, comprising: receiving inputs typed by a user of a handheld dynamically customizable keyboard device, wherein the inputs correspond to a plurality of operating conditions of the user; analyzing the inputs to identify typing errors made by the user by monitoring dictionary replacement of words typed by the user, manual block replacement of letters typed by the user, and a single letter replacement typed by the user, for each of the plurality of operating conditions for a user with respect to the handheld dynamically customizable keyboard device, wherein two or more of the typing errors are associated with time stamps to facilitate aging of the typing errors; 2 Appeal 2017-009805 Application 12/240,904 generating a plurality of layouts of the keyboard of the handheld dynamically customizable keyboard device which correspond to the operating conditions and which are based upon the typing errors made by the user during the plurality of operating conditions, respectively; storing the plurality of layouts of the dynamically customizable keyboard; selecting an optimal layout from the stored plurality of layouts based upon a current operating condition; and applying the selected optimal layout to the dynamically customizable keyboard. The Examiner relies on the following prior art in rejecting the claims: He Suraqui Bednyak Bates et al. Hagiwara Hsu et al. Swoboda Mantyjarvi et al. Higgins et al. US 2003/0048205 Al US 2004/0104896 Al US 2004/0222638 Al US 6,889,361 B1 US 2005/0206730 Al US 2006/0077179 A1 US 2007/0036603 Al US 7,194,239 B2 US 2007/0067373 Al Mar. 13, 2003 June 3, 2004 Nov. 11,2004 May 3, 2005 Sept. 22, 2005 Apr. 13,2006 Feb. 15,2007 Mar. 20, 2007 Mar. 22, 2007 Claims 44^17 and 59-62 stand rejected under 35 U.S.C. § 103(a)2 as being unpatentable over Mantyjarvi, Bates, Hagiwara, and Higgins. See Final Act. 2-6, 18-22. Claims 48, 50, 51, 63, 65, and 66 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Mantyjarvi, Bates, Hagiwara, Higgins, and He. See Final Act. 6-8, 22-23. 2 All rejections are under the provisions of 35 U.S.C. in effect before the effective date of the Feahy-Smith America Invents Act of 2011 (“pre-AIA”). See, e.g., Final Act. 2. 3 Appeal 2017-009805 Application 12/240,904 Claims 49 and 64 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Mantyjarvi, Bates, Hagiwara, Higgins, and either one of Bednyak or Swoboda. See Final Act. 8-9, 23-25. Claims 52-58 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Mantyjarvi, Hsu, Higgins, Bates, and Hagiwara. See Final Act. 9-18. Claims 67 and 68 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Mantyjarvi, Higgins, Suraqui, and Hagiwara. See Final Act. 25-28. Rather than repeat the arguments here, we refer to the Briefs (“App. Br.” filed Dec. 27, 2016; “Reply Br.” filed July 10, 2017) for the positions of Appellants; the Final Office Action (“Final Act.” mailed July 28, 2016), and Examiner’s Answer (“Ans.” mailed May 9, 2017) for the reasoning, findings, and conclusions of the Examiner; and the Specification (“Spec.” filed Sept. 29, 2008). Only those arguments actually made by Appellants have been considered in this decision. Arguments that Appellants did not make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). ISSUES The issues presented by Appellants’ arguments are as follows: Does the Examiner err in finding Bates, Hagiwara, Higgins, and Suraqui constitute analogous art with regard to Appellants’ claimed invention? 4 Appeal 2017-009805 Application 12/240,904 Does the Examiner err in finding the combination of Mantyjarvi, Bates, Hagiwara, and Higgins teaches or suggests dynamically customizing a keyboard based on an operating condition of a user, as recited in claim 44? Does the Examiner err in finding Higgins teaches or suggests two or more typing errors are associated with time stamps “to facilitate aging of the typing errors,” as recited in claim 44? Is the Examiner’s reason to combine the teachings of Mantyjarvi, Bates, Hagiwara, and Higgins to reject claim 44 supported by articulated reasoning with some rational underpinning to justify the Examiner’s obviousness conclusion? This issue turns on whether Mantyjarvi teaches away from dynamically customizing a keyboard, and whether the Examiner improperly engaged in impermissible hindsight reconstruction. Does the Examiner err in finding the combination of Mantyjarvi, Bates, Hagiwara, Higgins, and He teaches or suggests the various specific operating conditions recited in claims 48, 50, 51, 63, 65, and 66? Does the Examiner err in finding the combination of Mantyjarvi, Bates, Hagiwara, Higgins, and either one of Bednyak or Swoboda teaches or suggests “the operating condition comprises use of the keyboard while the user is stationary,” as recited in claim 49? Does the Examiner err in finding Hsu teaches or suggests dynamically customizing a keyboard based on an operating condition of a user of a keyboard, as recited in claim 52? Does the Examiner err in finding Suraqui teaches or suggests changing a keyboard layout as recited in claim 67? 5 Appeal 2017-009805 Application 12/240,904 ANALYSIS Analogous Art We find unavailing Appellants’ contentions that Bates, Hagiwara, Higgins, and Suraqui are not analogous art with regard to Appellants’ claimed invention. App. Br. 11-13, 18. “The identification of analogous prior art is a factual question.” In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004) (citing In re GPAC, 57 F.3d 1573, 1577 (Fed. Cir. 1995)). In an obviousness analysis, [t]wo separate tests define the scope of analogous prior art: (1) whether the art is from the same field of endeavor, regardless of the problem addressed and, (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved. In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011) (quoting Bigio, 381 F.3d at 1325). We agree with Appellants that the field of the claimed subject matter encompasses “keyboard layout” (App. Br. 11), “dynamically customizable keyboards” {id. at 13), and “dynamically configurable keyboards” (id. at 18). Moreover, we agree with Appellants that the problems faced by the inventors include “minimiz[ing] input errors by the user” (id. at 11), “analyzing typing errors” (id. at 13), and “solving the problem of keystroke mistakes made by a user due to a keyboard configuration” (id. at 18). Assuming, arguendo, that Bates and the claimed subject matter are not within the same field of endeavor, we agree with the Examiner’s findings that Bates is analogous art with regard to Appellants’ invention because Bates is reasonably pertinent to the problem faced by Appellants. 6 Appeal 2017-009805 Application 12/240,904 See Ans. 4. Contrary to Appellants’ argument (App. Br. 11-12), we find a reference that teaches a technique to provide spell checking assistance would have logically commended itself to a skilled person faced with the problems in the field of analyzing and minimizing keyboard input errors by a user. See Klein, 647 F.3d at 1348. Hagiwara, directed to providing an improved virtual keyboard by adjusting key sizes (Hagiwara 11-12), clearly falls within the field of endeavor of the claimed invention. Appellants’ arguments that Hagiwara’s projected virtual keyboard (1) is not a handheld computing device’s keyboard, and (2) does not analyze dictionary replacement of words and block replacement of letters (App. Br. 12) are not germane to the limited purpose for which Hagiwara was cited, namely for teaching a single letter replacement typed by a user. We find Higgins is analogous art with regard to Appellants’ invention because Higgins is reasonably pertinent to the problem faced by Appellants. Ans. 5-6. Contrary to Appellants’ argument (App. Br. 12-13), we find a reference that teaches logged data, including user input such as typos on a keyboard, would have logically commended itself to a skilled person faced with the problem of analyzing and minimizing keyboard input errors by a user. See Klein, 647 F.3d at 1348. Appellants assert “Suraqui relates to predictive text produced by a ‘bi- dimensional’ word input pattern and includes a dictionary database” (App. Br. 18), but argues “Suraqui is not directed, however, to dynamically configurable keyboards, or to solving the problem of keystroke mistakes made by a user due to the keyboard configuration,” id. We disagree with Appellants’ conclusion. 7 Appeal 2017-009805 Application 12/240,904 Suraqui is directed to a virtual keyboard having a spell checker that provides spelling assistance to a user. See Suraqui ^ 61; Figs. 2A-2B. Assuming, arguendo, that Suraqui and the claimed subject matter are not within the same field of endeavor, we find that Suraqui is analogous art with regard to Appellants’ invention because Suraqui is reasonably pertinent to the problem faced by Appellants. Contrary to Appellants’ argument (App. Br. 18-19), we find a reference that teaches a technique to provide spell checking assistance would have logically commended itself to a skilled person faced with the problems in the field of analyzing and minimizing keyboard input errors by a user. See Klein, 647 F.3d at 1348. Claims 44^17 and 59-62 Dynamically Customizing a Keyboard Appellants contend neither Bates nor Mantyjarvi discloses dynamically customizing a keyboard. App. Br. 11. In particular, Appellants argue Mantyjarvi’s keyboard layout that only changes for a new user or upon user request is not dynamically customizing a keyboard. Id. at 11, 13 (citing Mantyjarvi col. 6,11. 56-60). We are unpersuaded of error because Appellants’ contention is not commensurate with the scope of the claim. Contrary to Appellants’ argument, claim 44 does not recite that customizing a layout of a “dynamically customizable keyboard” must occur instantaneously or without user request. Claim 44 recites “reducing the identified typing errors by customizing a layout of the keyboard with respect to the handheld computing device, wherein the customized layout of the keyboard corresponds to the operating condition of the user.” 8 Appeal 2017-009805 Application 12/240,904 The term “dynamically” is not defined in Appellants’ Specification so as to limit its interpretation. See Spec. 12, 21. The plain meaning of “dynamic” is “marked by usu[ally] continuous and productive activity or change.” Merriam-Webster’s Collegiate Dictionary 361 (adj. def. 2a) (10th ed. 1993). Mantyjarvi, by disclosing that “keyboard appearance is not necessarily re-determined constantly” (Mantyjarvi col. 6,11. 56-60 (emphasis added)), at least suggests that the keyboard appearance may be re determined constantly. Moreover, Mantyjarvi’s determined shape of a single key on the keyboard is “changed adaptively” within set limits. Id. at col. 4,11. 51-54. Thus, Mantyjarvi at least suggests a keyboard’s customization that is marked by continuous and productive activity or change, and thus dynamic. During an Operating Condition of the User We disagree with Appellants’ assertion that the Examiner acknowledges the combination of Mantyjarvi, Bates, Hagiwara, and Higgins does not teach or suggest “dynamically customizing a keyboard based, in part, on the operating condition of the user [appearing] in each of the independent claims” because the Examiner acknowledges the combination does not teach or suggest the various operation conditions of the user as recited in claims 48, 50, 51, 63, 65, and 66. App. Br. 14. A user’s “operating condition” is not defined in Appellants’ Specification so as to limit its interpretation. To be sure, the Specification describes “[ejxamples of the operating conditions include, but are not limited to, use of the keyboard while the user is walking, use of the keyboard while the user is stationary, operating the keyboard using single hand and operating the keyboard using both hands.” Spec. ^ 20 (emphasis added). 9 Appeal 2017-009805 Application 12/240,904 The plain meaning of “condition” is “a state of being,” Merriam- Webster’s Collegiate Dictionary 240 (n. def. 4a); and “operate” is “to perform a function,” id. at 814 (vb. def. 1). Therefore, under its broadest reasonable interpretation, user’s “operating condition” encompasses the user’s general state of being while performing typing. The Examiner finds, and we agree, that Mantyjarvi discloses receiving inputs typed by a user of a dynamically customizable keyboard during an operating condition of the user, as recited in claim 44. Final Act. 2-3 (citing Mantyjarvi col. 2,11. 29^45; col. 3,1. 59-col. 4,1. 10; col. 4,11. 47-54; col. 5, 11. 3-9; col. 6,11. 20-35, 48-51). Mantyjarvi’s dynamically customizable keyboard, receiving inputs typed by a user, at least suggests a user’s general state of being while typing. Thus, Mantyjarvi at least suggests dynamically customizing a keyboard during a user’s general state of being while performing typing (the claimed “operating condition of the user”). Facilitate Aging of Typing Errors We find unavailing Appellants’ contention that Higgins’ logged and time-stamped data is not used “to facilitate aging of the typing errors,” as recited in claim 44. App. Br. 12 (emphasis added) (citing Higgins ^241). We emphasize “to” here, for this term, contrary to Appellants’ arguments (Reply Br. 5-6), merely indicates an intended use of the time-stamped data. As such, the recited intended use limits the time stamps to those that are capable of enabling facilitating the aging of typing errors. Turning to the rejection, the Examiner maps (1) the recited dynamically customizable keyboard that identifies typing errors to Mantyjarvi’s keyboard (Final Act. 3 (citing Mantyjarvi col. 3,11. 42-50, 59- 65)), and (2) the recited time stamp association of typing errors to Higgins’ 10 Appeal 2017-009805 Application 12/240,904 logger (id. at 4-5 (citing Higgins TJ 241)). Thus, so long as Mantyjarvi’s keyboard using Higgins’ functionality is capable of performing this intended function, namely facilitating the aging of typing errors, Mantyjarvi’s keyboard using Higgins’ functionality fully meets this limitation. Since Appellants have not shown that Mantyjarvi’s keyboard using Higgins’ functionality is incapable of facilitating aging of the typing errors, we see no error in the Examiner’s reliance on Higgins for teaching this limitation. Ans. 18. Teaching Away Appellants’ contention that Mantyjarvi teaches away from dynamically customizing a keyboard by monitoring (1) dictionary replacement of words and (2) manual block replacement of letters typed by the user because Mantyjarvi’s “keyboard appearance is not necessarily re determined constantly but e.g. . . . when a device recognizes a new user” (Mantyjarvi col. 6,11. 56-60) is unavailing. App. Br. 13. To teach away, a reference must actually “criticize, discredit, or otherwise discourage” investigation into the claimed solution. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). As discussed above, Mantyjarviat at least suggests dynamic keyboard customization. Thus, we see nothing in this passage that would lead a skilled artisan away from combining the teachings of Mantyjarvi with those of Bates, Hagiwara, and Higgins. See Ans. 7-8. Hindsight We find unavailing Appellants’ contentions that the Examiner’s reason to combine the references is based on impermissible hindsight and allegedly does not flow from teachings in the art or knowledge of ordinarily skilled artisans. App. Br. 11, 13, 16; Reply Br. 5. “Any judgment on 11 Appeal 2017-009805 Application 12/240,904 obviousness is in a sense necessarily a reconstruction based on hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made and does not include knowledge gleaned only from applicant’s disclosure, such a reconstruction is proper.” In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971) (emphasis added). Appellants argue that because Mantyjarvi’s keyboard configuration only changes for a new user or when requested by a user, one of ordinary skill would not have looked to Bates’ conventional spell checker program without an exercise of impermissible hindsight. App. Br. 11, 16; Reply Br. 5. But, as discussed above, Mantyjarvi’s keyboard’s customization may be dynamic, and based on an operating condition of a user. The Examiner finds, and we agree, Mantyjarvi’s dynamically customizable keyboard analyzes inputs to identify typing errors made by a user. Final Act. 3 (citing Mantyjarvi col. 3,11. 42-50, 59-65). The Examiner further finds, and we agree, Hagiwara teaches a single letter replacement typed by a user—a typing error. Id. at 4 (citing Hagiwara 64-66, 73). To be sure, Hagiwara determines whether a keyboard’s “taken-in data” includes a correction key (e.g., a “Delete” key or “Backspace” key”), and if so, whether an input of an adjacent key to a key input is present. Hagiwara ^ 66; Fig. 5. “The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSRIntI Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person of ordinary skill can implement a predictable variation, ... § 103 likely bars its patentability.” Id. at 417. We find it would have been obvious to one of ordinary skill in the art for the identification of a user’s typing errors as 12 Appeal 2017-009805 Application 12/240,904 taught or suggested by Mantyjarvi to include Hagiwara’s single letter replacements typed by the user “to monitor a typing error at normal key input and analyze a typing habit even though which type of the key layout is most suitable for the operator is not known at first.” Hagiwara ^ 41. The Examiner further finds, and we agree, Bates teaches monitoring dictionary replacement of words typed by a user and manual block replacement of letters typed by the user—spelling errors based on typing errors. Final Act. 3 (citing Bates col. 1,11. 12-23; col. 3,11. 59-60; col. 4, 11. 31—41; col. 5,11. 2-14). We also find no error in the Examiner’s reason to combine Bates (Final Act. 7; Ans. 24)—proposed enhancements to the combination of Mantyjarvi and Hagiwara that, as noted above, predictably use prior art elements according to their established functions to yield a predictable result. See KSR, 550 U.S. at 417. On this record, then, we conclude it would have been obvious to one of ordinary skill in the art at the time the invention was made for Bates’ spelling error monitoring to be incorporated with the combination of Mantyjarvi and Hagiwara to “[provide] an analysis of a user’s spelling abilities.” Bates col. 2,11. 56-57. Lastly, contrary to Appellants’ arguments (App. Br. 13), we find the Examiner has set forth articulated reasoning with rational underpinning to combine Higgins with the combination of Mantyjarvi, Hagiwara, and Bates (see Final Act. 5). Summary Appellants do not persuade us of error in the rejection of claim 44. Accordingly, we sustain the rejection of (1) claim 44; (2) independent claim 59, which is argued relying on the arguments made for claim 44 (see App. Br. 11-13); and (3) claims 45^47 and 60-62, which depend from claims 44 13 Appeal 2017-009805 Application 12/240,904 and 59 respectively, and were not separately argued with particularity (see id.). Claims 48, 50, 51, 63, 65, and 66 We sustain the Examiner’s obviousness rejection of claims 48, 50, 51, 63, 65, and 66 that rely on the teachings or suggestions of He. Final Act. 6- 8, 22-23. Contrary to Appellants’ assertion (App. Br. 14), the Examiner finds, and we agree as discussed above, that Mantyjarvi at least suggests a dynamically customizable keyboard during an operating condition of a user. Appellants’ argument that He does not teach or suggest “factoring] in usage conditions in determining how to dynamically customize a keyboard” (App. Br. 14; Reply Br. 6) is not germane to the limited purpose for which He was cited, namely for an operating condition comprising operating the keyboard (1) while a user is walking, as recited in claims 48 and 63; (2) using one hand, as recited in claims 50 and 65; and (3) using two hands, as recited in claims 51 and 66. Accordingly, we sustain the Examiner’s rejection of claims 48, 50, 51, 63, 65, and 66. Claims 49 and 64 We sustain the Examiner’s obviousness rejections of claims 49 and 64 that rely on the teachings or suggestions of Bednyak. Final Act. 8. Contrary to Appellants’ assertion (App. Br. 14-15), the Examiner finds, and we agree as discussed above, that Mantyjarvi at least suggests a dynamically customizable keyboard during an operating condition of a user. Appellants’ argument that Bednyak does not teach or suggest “customization of a keyboard based on user operating conditions” (App. Br. 14-15; Reply Br. 7) 14 Appeal 2017-009805 Application 12/240,904 is not germane to the limited purpose for which Bednyak was cited, namely for a user’s state of typing, including while a user is stationary. Similarly, we sustain the Examiner’s obviousness rejections of claims 49 and 64 that rely on the teachings or suggestions of Swoboda. Final Act. 8-9. Contrary to Appellants’ assertion (App. Br. 15), the Examiner finds, and we agree as discussed above, that Mantyjarvi at least suggests a dynamically customizable keyboard during an operating condition of a user. Appellants’ argument that Swoboda does not teach or suggest “customization of a keyboard based on user operating conditions” (App. Br. 15; Reply Br. 7) is not germane to the limited purpose for which Swoboda was cited, namely for a user’s state of typing, including while a user is stationary. Accordingly, we sustain the Examiner’s rejections of claims 49 and 64 as being unpatentable over (1) Mantyjarvi, Bates, Hagiwara, Higgins, and Bednyak; or, in the alternative, (2) Mantyjarvi, Bates, Hagiwara, Higgins, and Swoboda. Claims 52-58 We sustain the Examiner’s obviousness rejection of independent claim 52. Final Act. 9-12. We find Appellants’ contentions regarding (1) Bates’ or Mantyjarvi’s failure to teach or suggest dynamically customizing a keyboard (App. Br. 16; Reply Br. 8); (2) Hagiwara and Higgins not being analogous art (App. Br. 17); and (3) “to facilitate aging of the typing errors” (claim 52) is not intended use (Reply Br. 8-9) are unpersuasive of error for the reasons discussed above. Appellants’ argument that Hsu “does not teach or suggest dynamically customizing a keyboard based on the operating condition of the user of the 15 Appeal 2017-009805 Application 12/240,904 keyboard” (App. Br. 16) is not germane to the Examiner’s findings in this regard, which is not based on Hsu, but rather Mantyjarvi as discussed above regarding independent claim 44. Accordingly, Appellants do not persuade us of error in the rejection under § 103 of claim 52. Accordingly, we sustain the rejection of (1) claim 52; (2) independent claim 57, which is argued relying on the arguments made for claim 52 (see App. Br. 15-18); and (3) claims 53-56 and 58, which depend from claims 52 and 57, respectively, and were not separately argued with particularity (see id.). Claims 67 and68 We sustain the Examiner’s obviousness rejection of independent claim 67. Final Act. 25-27. We find Appellants’ contentions regarding (1) Hagiwara and Suraqui not being analogous art (App. Br. 18-19), (2) Mantyjarvi teaching away from dynamically customizing a keyboard (id. at 18), and (3) Higgins’ failure to teach or suggest facilitating aging of typing errors (id. at 18-19) to be unpersuasive of error for the reasons discussed above. In view of the foregoing, we find Appellants’ argument that “[tjherefore, it would not have been obvious to use a dictionary lookup as described in Suraqui to change the keyboard layout as recited in the present claims” (App. Br. 18) to be no more than conclusory attorney argument. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Accordingly, Appellants do not persuade us of error in the rejection under § 103 of claim 67. Accordingly, we sustain the rejection of (1) claim 67; and (2) claim 68 which depends from claim 67, and was not separately argued with particularity (see id. at 18-19). 16 Appeal 2017-009805 Application 12/240,904 DESIGNATION OF NEW GROUNDS OF REJECTION Although the overall thrust of our obviousness analyses is the same as the Examiner’s reasoning, we have provided additional explanations not provided by the Examiner. Accordingly, in the interests of giving Appellants a full and fair opportunity to respond, we designate our affirmance as new grounds of rejection. DECISION The Examiner’s decision to reject claims 44-68 under 35 U.S.C. § 103 is affirmed, and the affirmance is designated as new grounds of rejection within our authority under 37 C.F.R. § 41.50(b). Section 41.50(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 that Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new grounds 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. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. 17 Appeal 2017-009805 Application 12/240,904 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). See 37 C.F.R. §§ 41.50(f), 41.52(b). AFFIRMED 37 C.F.R. § 41.50(b) 18 Copy with citationCopy as parenthetical citation