Ex Parte Wroblewski

Patent Trial and Appeal BoardMar 31, 2016

12134486 (P.T.A.B. Mar. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/134,486 06/06/2008 Frank J. Wroblewski 113648 7590 04/04/2016 Patent Portfolio Builders, PLLC P.O. Box 7999 Fredericksburg, VA 22404-7999 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 0320-066.CONT 1750 EXAMINER AL VESTEFFER, STEPHEN D ART UNIT PAPER NUMBER 2171 NOTIFICATION DATE DELIVERY MODE 04/04/2016 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): Emily@ppblaw.com Tina@ppblaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FRANK J. WROBLEWSKI Appeal2013-002909 Application 12/134,486 Technology Center 2100 Before JAMES R. HUGHES, LINZY T. McCARTNEY, and JOYCE CRAIG, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. Â§ 134(a) of the Examiner's final decision rejecting claims 19-31and33-37. Claims 1-18 and 32 have been canceled. (App. Br. 2.) 1 We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 We refer to Appellant's Specification ("Spec."), filed June 6, 2008 (claiming benefit of US 60/641,421, filed Jan. 5, 2005); Appeal Brief ("App. Br.") filed June 19, 2012; andReplyBrief("ReplyBr.") filed Dec. 17, 2012. We also refer to the Examiner's Answer ("Ans.") mailed Oct. 26, 2012, and Final Office Action (Final Rejection) ("Final Act.") mailed Nov. 10, 2011. Appeal2013-002909 Application 12/134,486 Appellant's Invention The invention at issue on appeal concerns user interfaces displayed on a display screen including multiple user interface items (icons) each being the same size and a group of geometric layout rules governing the layout of the user interface items such that each of the user interface items is offset from a center point and also a non-diagonal line of symmetry the pre- determined layout space. (Spec. i-fi-12, 11-12; Abstract.) Representative Claim Independent claim 19, reproduced below with the key disputed limitations emphasized, further illustrates the invention: 19. A user interface displayed on a screen comprising: a plurality of user interface items having a same size displayed on said user interface; and a group of geometrical layout rules for laying out said number of user interface items within a pre-determined layout space such that each of the plurality of items is offset from a center point and a non-diagonal line of symmetry of said pre- determined layout space, wherein said rules include scaling instructions such that said number of user interface items plus one additional user interface item of said same size item will not fit within said pre-determined layout space for a single group. Rejections on Appeal 1. The Examiner rejects claims 19, 20, 29, and 30 under 35 U.S.C. Â§ 102(b) as being anticipated by Gerken (US 5,615,346, issued Mar. 25, 1997). 2. The Examiner rejects claims 21, 22, and 24 under 35 U.S.C. Â§ 103(a) as being unpatentable over Gerken and Narayen (US 6,035,323, issued Mar. 7, 2000). 2 Appeal2013-002909 Application 12/134,486 3. The Examiner rejects claims 23, 31, 33, and 34 under 35 U.S.C. Â§ 103(a) as being unpatentable over Gerken and Drucker (US 2004/0215657 Al, published Oct. 28, 2004). 4. The Examiner rejects claims 25 and 28 under 35 U.S.C. Â§ 103(a) as being unpatentable over Gerken and Suzuki (US 2001/0035875 Al, published Nov. 1, 2001). 5. The Examiner rejects claim 26 under 35 U.S.C. Â§ 103(a) as being unpatentable over Gerken and Goldschmidt Iki (US 6,295,646 Bl, issued Sept. 25, 2001 ). 6. The Examiner rejects claim 27 under 35 U.S.C. Â§ 103(a) as being unpatentable over Gerken and Levin (US 6,434,556 B 1, issued Aug. 13, 2002). 7. The Examiner rejects claims 35-37 under 35 U.S.C. Â§ 103(a) as being unpatentable over Gerken and True (US 2004/0073922 Al, published Apr. 15, 2004). ISSUES Based upon our review of the administrative record, Appellant's contentions, and the Examiner's findings and conclusions, the pivotal issues before us follow: 1. Does the Examiner err in finding that Gerken discloses "a group of geometrical layout rules for laying out said number of user interface items within a pre-determined layout space such that each of the plurality of items is offset from a center point and a non-diagonal line of symmetry of said pre-determined layout space" as recited in Appellant's claim 19? 3 Appeal2013-002909 Application 12/134,486 2. Does the Examiner err in concluding that Gerken in combination with the cited secondary references (Narayen Drucker, Suzuki, Goldschmidt, Levin, and True) collectively would have taught or suggested the features of Appellant's claims 21-28, 31, and 33-37? ANALYSIS The Â§ 102 Rejection Appellant does not separately argue dependent claims 20, 29, and 30. (App. Br. 22.) Accordingly, we select independent claim 19 as representative of Appellant's arguments and grouping with respect to claims 19, 20, 29, and 30. 37 C.F.R. Â§ 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. 3-5; see Ans. 3), and (2) the reasons set forth by the Examiner in the Examiner's Answer (Ans. 4--6) in response to Appellant's Appeal Brief. \Ve concur with the findings and conclusions reached by the Examiner, and we provide the following for emphasis. Appellant contends that Gerken does not disclose the disputed features of representative claim 19, namely, "a group of geometrical layout rules for laying out said number of user interface items within a pre- determined layout space such that each of the plurality of items is offset from a center point and a non-diagonal line of symmetry of said pre- determined layout space" (claim 19). (See App. Br. 19-22; Reply Br. 2-5.) Specifically, Appellant contends that Gerken "does not disclose or suggest any such type of geometrical layout rules" and "the items [in Gerken] are always laid out in the same manner: along a line from left to right within the 4 Appeal2013-002909 Application 12/134,486 space of the piano bar 42." (App. Br. 20.) Appellant further contends that a "single dimensional instruction set does not comprise 'a group of geometrical layout rules' as set forth in claim 19!" (App. Br. 21.) And that, in the case of an odd number of items (such as three keys), "the center key would not be offset from the center point of piano bar 42 and would not be offset from either of the two non-diagonal lines of symmetry of piano bar 42." (App. Br. 21-22.) We find Appellant's contentions unpersuasive of Examiner error. As explained by the Examiner, Gerken describes layout rules in that "Gerken teaches changing the piano bar when the number of 'keys' in the piano bar changes." (Ans. 4.) Such a change requires some process (rules) for implementing the change. To the extent Appellant argues there must be an explicit disclosure of "layout rules" (see App. Br. 20-22; Reply Br. 2-5), Â§ 102 does not require such an explicit disclosure. There is no ipsissimis verbis test for determining whether a reference discloses a claim element, i.e., identity of terminology is not required. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). Further, Appellant does not disclose or define any such rules in claim 19 or Appellant's Specification. Appellant merely provides examples of the user interface when such rules are applied. (See Spec. iii! 54---62; Figs. 14a-15m.) Gerken describes the functionality of applying a group of layout rules - changing the piano bar when the number of 'keys' in the piano bar changes and sizing keys (control elements) such that they are equally sized and spaced. (See Gerken col. 6. 11. 41-59; Fig. 2; Ans. 6.) In Gerken's Figure 2, the piano bar is shown as displaying four keys of equal size and spaced apart equally. Such a layout meets Appellant's claim limitation (having symmetry about a central point and non-diagonal line). 5 Appeal2013-002909 Application 12/134,486 As further explained by the Examiner, "claim 19 does not specify any limitation that differing numbers of items must be laid out in different shapes using different groups of geometrical layout rules, as alleged by Appellant's arguments." (Ans. 4.) Appellant's arguments are not commensurate with the features recited in claim 19. Thus, Appellant does not persuade us of error in the Examiner's anticipation rejection of representative independent claim 19. Accordingly, we affirm the Examiner's anticipation rejection of representative claim 19 and dependent claims 20, 29, and 30, not separately argued with particularity (supra). TheÂ§ 103 Rejection of Claims 21, 22, and 24 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. 5-7; see Ans. 3), and (2) the reasons set forth by the Examiner in the Examiner's Answer (Ans. 6--8) in response to Appellant's Appeal Brief. \Ve concur with the findings and conclusions reached by the Examiner, and we provide the following for emphasis. Appellant contends that Gerken and Narayen do not teach the disputed features of claim 21, namely that the "geometrical layout rules selectively place said one item to either a right portion or a left portion from a center point," or claim 22, namely that the "said geometrical layout rules place said two items side by side with their respective center points on a diagonal within said predetermined layout space for said single group." (See App. Br. 22-24; Reply Br. 5-8.) Specifically, Appellant contends, with respect to claim 21, that Gerken and Narayen teach against one another and that it would not have 6 Appeal2013-002909 Application 12/134,486 been obvious to place objects "from the left to the right (as shown by Narayen et al) in the invention of Gerkin" [sic] (App. Br. 22-23; see Reply Br. 6). We find Appellant's contentions unavailing of Examiner error. As with claim 19 (discussed supra) Appellant's arguments are not commensurate with the features recited in claim 21. Claim 21 only requires that the item be placed right or left of center. As explained by the Examiner, Gerken does not require that the keys must have the same size, shape, and spacing. But may instead be placed anywhere. (Ans. 6.) Narayen describes placing a single item to the left of center. (Final Act. 6; Ans. 7 (citing Narayen Fig. 14B).) Therefore, we agree with the Examiner that Gerken teaches dynamically adjusting a user interface based on a number of interface items, Narayen teaches how one such item might be placed (left of center), and that the combination would have at least suggested placing a key to the left of center. (See Ans. 6-7.) Appellant further contends, with respect to claim 22 (and claim 24), that Gerken and Narayen teach against one another and that "[a]ny change from this horizontal linear arrangement, such as placing the items on a diagonal (claim 22) or on the circumference of a circle (claim 24) would fundamentally alter the teachings of the Gerken reference" (App. Br. 24; see App. 23-24; Reply Br. 7-8). We find Appellant's contentions unavailing of Examiner error. As explained with respect to claim 21 (supra) Gerken does not require that the keys must have the same size, shape, and spacing, or that they must be in a horizontal line. (Ans. 6.) Narayen describes placing items diagonally. (Final Act. 6; Ans. 7-8 (citing Narayen Fig. 14D; col. 15, 11. 50-57).) 7 Appeal2013-002909 Application 12/134,486 Therefore, we agree with the Examiner that Gerken teaches dynamically adjusting a user interface based on a number of interface items, Narayen teaches how to place two such items (diagonally), and that the combination would have at least suggested placing keys diagonally. (See Ans. 6-8.) Thus, Appellant does not persuade us of error in the Examiner's obviousness rejection of dependent claims 21, 22, and 24. Accordingly, we affirm the Examiner's obviousness rejection of dependent cl claims 21, 22, and 24. TheÂ§ 103 Rejection of Claims 23, 25-28, 31, and 33-37 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. 7-12; see Ans. 3), and (2) the reasons set forth by the Examiner in the Examiner's Answer (Ans. 8-11) in response to Appellant's Appeal Brief. We concur with the findings and conclusions reached by the Examiner, and we provide the following for emphasis. With respect to claims 23, 31, 33, and 34 (rejection# 3), claims 25 and 28 (rejection# 4), 26 (rejection# 5), 27 (rejection# 6), and claims 35- 37 (rejection# 7), as with claims 21, 22, and 24 (discussed supra), Appellant contends that one of ordinary skill in the art would not have combined the primary reference, Gerken, with the secondary references cited by the Examiner (Drucker, Suzuki, Goldschmidt, Levin, and True) as proposed by the Examiner and that Gerken teaches against the secondary references cited by the Examiner. (See App. Br. 24--32; Reply Br. 7-9.) We find Appellant's contentions unavailing of Examiner error. As explained with respect to claims 21, 22, and 24 (supra) Gerken does not require that the keys must have the same size, shape, and spacing, or that 8 Appeal2013-002909 Application 12/134,486 they must be in a horizontal line. (Ans. 6.) Beyond these general allegations against Gerken (supra), Appellant does not explain how or why the Examiner's rationale for combining the references (see Final Act. 7-12; Ans. 8-11) is deficient. (See App. Br. 24--32; Reply Br. 7-9.) We find the Examiner has provided a rationale with at least "some rational underpinning to support the legal conclusion of obviousness." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006)). Further, Appellant's arguments do not take into account what the combination of Gerken with Drucker, Suzuki, Goldschmidt, Levin, and True 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). Thus, Appellant does not persuade us of error in the Examiner's obviousness rejections of claims 23, 25-28, 31, and 33-37. CONCLUSIONS Appellant has not shown that the Examiner erred in rejecting claims 19, 20, 29, and 30 under 35 U.S.C. Â§ 102(b). Appellant has not shown that the Examiner erred in rejecting claims 21-28, 31, and 33-37 under 35 U.S.C. Â§ 103(a). DECISION We affirm the Examiner's rejections of claims 19-31 and 33-37. 9 Appeal2013-002909 Application 12/134,486 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 10