Ex Parte Susewitt et al

Patent Trial and Appeal BoardAug 21, 2014

11975024 (P.T.A.B. Aug. 21, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KEVIN DONALD SUSEWITT, SCOTT REYNOLDS, and RICHARD A. ROMANCHIK ____________ Appeal 2012-005296 Application 11/975,024 Technology Center 2600 ____________ Before ROBERT E. NAPPI, JASON V. MORGAN, and BETH Z. SHAW, Administrative Patent Judges. SHAW, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection of claims 1, 4, 7, 8, 11, 14, 17, 18, 20–26, and 28–32. Claims 2, 3, 5, 6, 9, 10, 12, 13, 15, 16, 19, and 27 are cancelled. We affirm. Appeal 2012-005296 Application 11/975,024 2 INVENTION The invention relates to an image reader with a low battery alert. (Spec. 1:6–7.) Claim 1 is illustrative and is reproduced below: 1. A method of operating an optical reading device for collecting and processing indicia data comprising the steps of: converting light reflected from a target into output signals representative thereof utilizing an image sensor; illuminating the target utilizing an illumination source; directing light from the target to an image sensor utilizing receive optics; decoding information contained in information bearing indicia within the target derived from the output signals utilizing a processor; powering the image sensor, illumination source, processor and a display with a battery, wherein the display provides a graphical user interface (GUI); determining if there has been a change in a battery charge according to at least one parameter for determining if battery charge information should be communicated to an operator on the display; determining whether the battery is charging; communicating the battery charge information to the operator by changing color of at least part of the display if the step of determining determines that there has been a change in the battery charge according to the at least one parameter, but only if the battery is not charging; and housing the processor, image sensor, receive optics, illumination source and display in a common housing for hand held operation. REJECTIONS AT ISSUE The Examiner has rejected claims 1, 4, 7, 8, 11, 14, 17, 18, 20–26, and 28–32 under 35 U.S.C. § 103(a) as unpatentable over Ruppert et al. (US 5,640,002, issued June 17, 1997) (“Ruppert”), Bentz et al. (US 5,354,625, Appeal 2012-005296 Application 11/975,024 3 issued Oct. 11, 1994 ) (“Bentz”), and Proctor et al. (US 5,656,919, issued Aug. 12, 1997) (“Proctor”) (Ans. 5). ISSUES The dispositive issues presented by Appellants’ arguments are: Did the Examiner err in finding the combination of Ruppert, Bentz, and Proctor teaches or suggests “communicating the battery charge information to the operator by changing color of at least part of the display [that provides a graphical user interface] if the step of determining determines that there has been a change in the battery charge according to the at least one parameter, but only if the battery is not charging,” as recited in claim 1 and similarly recited in claims 11 and 20? Did the Examiner err in finding Proctor teaches or suggests changing the color schemes of running programs, as recited in claim 23? Did the Examiner err in finding Proctor teaches or suggests switching the GUI to a second color theme, as recited in claim 25? Did the Examiner err in finding Proctor teaches or suggests at least part of the display comprises a single bar on the GUI which is a first color when the battery is at full charge, a second color when the battery is at half charge and a third color when the battery is at low charge, as recited in claim 26? Appeal 2012-005296 Application 11/975,024 4 ANALYSIS Claims 1, 4, 7, 8, 11, 14, 17, 18, and 20–22 Appellants argue the combination of Ruppert and Proctor would result in a hand held reader with an array of light emitting diodes (LEDs) separate from a display that provides information to an operator other than battery charge information (Ans. 15). Yet, “[t]he 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). The Examiner relies on Ruppert to teach or suggest claimed display providing a graphical user interface (GUI), as recited in claim 1 (Ans. 7 (citing Ruppert, 19:57–20:12)). The Examiner also relies on Ruppert to teach or suggest communicating the battery charge information to the operator (Ans. 7 (citing Ruppert, 25:32–45)). In particular, Ruppert discloses flashing a graphic or displaying a text message to indicate that a battery is almost out of charge. (Ruppert 25:42–45.) The Examiner further relies on Proctor to teach or suggest communicating battery charge information by changing a color on at least part of the display (Ans. 9 (citing Proctor 7:60–67)). Appellants also argue the proposed combination is improper because Proctor is non-analogous to Ruppert and Bentz (App. Br. 15). We are not persuaded by this argument because, as the Examiner correctly concludes (Ans. 24), Proctor is reasonably pertinent to the problem with which Appellants were concerned (i.e., how to communicate an indication of a Appeal 2012-005296 Application 11/975,024 5 state-of-charge of a battery to an operator). See In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992). Additionally, we disagree the Examiner relied on improper hindsight reasoning, as the Examiner has provided articulated reasoning having a rational underpinning to support the conclusion that the combination would have been obvious to an artisan of ordinary skill (Ans. 10, 26 (citing Proctor, 1:26–31, 7:52-67, 8:1–4, and Ruppert, 25:42–45)). Appellants do not present arguments or evidence that persuasively shows error in the reasoning provided by the Examiner. Therefore, we sustain the Examiner’s rejection of claims 1, 11, and 20. We also sustain the Examiner’s rejection of claims 4, 7, 8, 14, 17, 18, 21, and 22, which Appellants do not argue separately with persuasive specificity (App. Br. 16). Claims 23, 24, 28, 30, and 31 The Examiner finds Ruppert teaches or suggests changing the color schemes of running programs (Ans. 23), as recited in claim 23, when Ruppert teaches a “color change of the word ‘changes’ displayed at 59 in FIG. 1” (Ruppert, 8:19–20). We agree with the Examiner’s findings. Appellants argue claims 23, 24, 28, 30, and 31 as a group (App. Br. 16–19). Appellants’ arguments directed to the “desktop theme” are not commensurate in scope with the limitations of the claims. Claim 23 does not include a “desktop theme” element, but claim 24 includes “the changing a color comprises applying different desktop themes.” However, Appellants argue “one skilled in the art would not equate or consider changing the color of a word on a display to changing the desktop theme of a running program,” Appeal 2012-005296 Application 11/975,024 6 (App. Br. 19) even though “changing the desktop theme of a running program” is not recited in claims 23, 24, 28, 30, or 31. Accordingly, we sustain the Examiner’s rejection of claims 23, 24, 28, 30, and 31. Claims 25, 29, and 32 We agree with the Examiner’s findings that Proctor teaches or suggests at least a first color GUI theme is set if the battery is charging and stays the first color until a battery parameter value is reached and then switches the GUI to a second color theme, as recited in claim 25 (Ans. 24). We are not persuaded by Appellants’ arguments that the combination of Proctor and Ruppert would result in a hand held reader with an array of LED’s separate from a display that provides information to an operator other than battery charge information (App. Br. 20). We agree with the Examiner’s conclusion the concept of indicating battery charge by using different colors of a display (as taught by Proctor) combined with a GUI and display (as taught by Rupert), and all of the features of the secondary reference need not be bodily incorporated into the primary reference. (See Ans. 28 (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). Accordingly, we sustain the Examiner’s rejection of claims 25, 29, and 32. Claim 26 Appellants contend Proctor “teaches an array that is separate from any parts of the apparatus that are manipulated by an operator, such as available with a GUI” (App. Br. 22). We find Appellants’ arguments directed to claim 26 are not commensurate in scope with the limitations of claim 26, which recites “the at least part of the display comprises a single bar on the Appeal 2012-005296 Application 11/975,024 7 GUI which is a first color when the battery is at full charge, a second color when the battery is at half charge and a third color when the battery is at low charge.” Moreover, we agree with the Examiner the recitations of claim 26 are taught by the combination of Ruppert, Bentz, and Proctor’s Figures 3A– 3F and column 7, line 52 through column 8, line 4 (Ans. 24–25). Accordingly, we sustain the Examiner’s rejection of claim 26. We are not persuaded by Appellants’ remaining arguments. Appellants do not present separate arguments directed to the rejections of the remaining pending claims.1 Therefore, we similarly sustain the Examiner’s rejection of those claims. DECISION The decision of the Examiner to reject claims 1, 4, 7, 8, 11, 14, 17, 18, 20–26, and 28–32 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED msc 1 Although Appellants state at pages 3–4 of the Reply Brief that Appellants previously filed a Request for Oral Hearing along with the fee, Appellants present no evidence of such a filing or fee payment. Accordingly, this decision is on the briefs without an oral hearing. See 37 C.F.R. § 41.47 (2010).