GREGORY PICCIONELLI

Patent Trials and Appeals BoardOct 25, 2021

2021000779 (P.T.A.B. Oct. 25, 2021)

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. 15/230,100 08/05/2016 GREGORY A. PICCIONELLI GAP15003USU 4344 147182 7590 10/25/2021 Gregory B. Gulliver 1862 E. Belvidere Rd. Unit 117 Grayslake, IL 60030 EXAMINER FLETCHER, MARLON T ART UNIT PAPER NUMBER 2837 NOTIFICATION DATE DELIVERY MODE 10/25/2021 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): USPTO@dockettrak.com docketing@addyhart.com gbgulliver65@gmail.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GREGORY A. PICCIONELLI Appeal 2021-000779 Application 15/230,100 Technology Center 2800 Before CHRISTOPHER C. KENNEDY, JENNIFER R. GUPTA, and SHELDON M. MCGEE, Administrative Patent Judges. MCGEE, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–22. We have jurisdiction. 35 U.S.C. § 6(b). We affirm. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Gregory A. Piccionelli. Appeal Br. 1. Appeal 2021-000779 Application 15/230,100 2 BACKGROUND The subject matter on appeal is directed to controllers comprising a flexible screen, where the controller is adapted to be worn on a finger. Independent claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A wearable controller, comprising: a power supply; a transmitter coupled to the power supply; a sensor; a flexible screen; and a processor coupled to the power supply, the flexible screen, and the transmitter associated with a housing where the housing is adapted to be worn on a finger and a signal be generated in response to the sensor that is associated with the screen. Appeal Br. 11 (Claims Appendix). STATEMENT OF THE CASE The Examiner rejects claims 1–5, 7–12, 14–18, and 20–22 under pre- AIA 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Baum2 and Shai.3 Final Act. 2–4. The Examiner rejects claims 6, 13, and 19 under this same statute, additionally relying on the disclosure of Avitabile.4 Id. at 4. With respect to claim 1, the Examiner undisputedly finds that Baum discloses all elements of the claimed wearable controller except for a flexible screen that can be worn on a finger. Final Act. 3. To address this 2 US 2007/0175322 A1, published August 2, 2007. 3 US 2011/0007035 A1, published January 13, 2011. 4 US 2015/0027297 A1, published January 29, 2015. Appeal 2021-000779 Application 15/230,100 3 difference, the Examiner turns to Shai, which the Examiner finds a wearable controller having, inter alia, an LCD screen adapted to be worn on a finger. Id. The Examiner finds that “LCD is known to be flexible and made from a flexible material,” taking Official Notice of that fact, as well as the fact that flexible screens are well known in the art. Id. The Examiner also finds that Shai “inherently provide[s] a flexible display since the rings are rounded and the displays are provided in a rounded formation as part of the ring.” Adv. Act. 2. The Examiner determines that it would have been obvious combine the teachings of Baum and Shai because doing so would “allow the user to access visual information on the wearable device.” Final Act. 3. OPINION We review the appealed rejection for reversible error based on the arguments and evidence presented by Appellant. 37 C.F.R. § 41.37(c)(1)(iv); Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the Examiner had failed to make a prima facie case, “it has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections”). Upon consideration of Appellant’s assertions in light of the evidence in the appeal record, we determine that Appellant has identified no such error. We therefore affirm the obviousness rejections of claims 1–22 for the reasons well-expressed by the Examiner. Final Act. 2–5; Ans. 3–6. We add the following for emphasis. Without pointing us to a concrete definition of what is deemed “flexible” within the scope of the claim, Appellant “disagrees” with the Examiner’s finding that LCD screens such as those disclosed by Shai were Appeal 2021-000779 Application 15/230,100 4 known in the prior art to be flexible. Appeal Br. 8–9. That assertion lacks persuasive merit for several reasons. First, it fails to meaningfully address the Examiner’s reliance on Official Notice to establish a finding that curved LCD screens are flexible screens. See MPEP 2144.03C (explaining that an adequate traversal of an officially noticed fact “must specifically point out the supposed errors in the examiner’s action, which would include stating why the noticed fact is not considered to be common knowledge or well-known in the art.” (emphases added)). In other words, Appellant has failed to provide any specific argument pointing out error in the Examiner’s Official Notice that LCD screens are flexible because “[t]he displays are normally flat without any bend [and the] displays in the references are bent in a circular form in the same manner as the ring [which] provides a flexible display.” Adv. Act. 2. Also, Appellant fails to address the Examiner’s Official Notice of the broader fact that “flexible screens including flexible LCD [are] well known in the art.” Final Act. 3. Furthermore, Appellant fails to address the Examiner’s inherency finding with any degree of specificity. Adv. Act. 2. Instead, Appellant makes a bare assertion of hindsight before block- quoting portions of the Final Office Action, the Advisory Action, and the Shai publication, and then asserting that “[n]o curved LED is depicted” in certain Shai embodiments. Appeal Br. 8–9. As found by the Examiner, however, Shai’s Figures 10A–10C and 34B depict curved LEDs. Ans. 5 (citing Shai ¶¶ 200, 293). Significantly, Appellant filed no Reply Brief contesting those findings. We additionally observe that the flexible screen of claim 1 is not limited to the LCD screens disclosed by Shai, and that the Examiner correctly and undisputedly finds that the Specification admits flexible OLED Appeal 2021-000779 Application 15/230,100 5 screens were, in fact, known in the prior art at the time of the invention. Spec. ¶ 41; Ans. 5. See Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1570 (“A statement in a patent that something is in the prior art is binding on the applicant and patentee for determinations of anticipation and obviousness.” (citing In re Nomiya, 509 F.2d 566, 571 n.5 (CCPA 1975)). For these reasons, a preponderance of evidence supports the Examiner’s finding that flexible screens were known in the prior art at the time of the invention on appeal. CONCLUSION The Examiner’s rejections are sustained. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s) / Basis Affirmed Reversed 1–5, 7–12, 14–18, 20– 22 103(a) Baum, Shai 1–5, 7–12, 14–18, 20– 22 6, 13, 19 103(a) Baum, Shai, Avitabile 6, 13, 19 Overall Outcome 1–22 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED