Ex Parte Nachman et al

Patent Trial and Appeal Board

Mar 8, 2018

12240904 (P.T.A.B. Mar. 8, 2018)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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P.O.Box 1450
Alexandria, Virginia 22313-1450
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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):
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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.
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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;
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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.
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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?
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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?
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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.
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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.
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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.”
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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).
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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’
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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
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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
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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
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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)
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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
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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).
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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.
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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)
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