Huawei Technologies Co., Ltd.

Patent Trials and Appeals BoardMay 13, 2021

2020001056 (P.T.A.B. May. 13, 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. 15/541,297 06/30/2017 Xiaojuan LI HW729182 6877 77399 7590 05/13/2021 Leydig, Voit & Mayer, Ltd (for Huawei Technologies Co., Ltd) Two Prudential Plaza Suite 4900 180 North Stetson Avenue Chicago, IL 60601 EXAMINER DUONG, HIEN LUONGVAN ART UNIT PAPER NUMBER 2175 NOTIFICATION DATE DELIVERY MODE 05/13/2021 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): Chgpatent@leydig.com hwpatent@leydig.com uspatent@huawei.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte XIAOJUAN LI, WENMEI GAO, YAHUI WANG, CHAO QIN, and KAI QIAN Appeal 2020-001056 Application 15/541,297 Technology Center 2100 Before JOSEPH L. DIXON, JAMES R. HUGHES, and JAMES W. DEJMEK, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 175–180, 182–184 and 195–205. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2018). Appellant identifies the real party in interest as Huawei Technologies Co., Ltd. Appeal Br. 3. Appeal 2020-001056 Application 15/541,297 2 CLAIMED SUBJECT MATTER The claims are directed to a device, method, and graphic user interface used to automatically move application interface elements. Claims 175 and 204, reproduced below, are illustrative of the claimed subject matter: 175. A portable electronic device, comprising: a display, wherein the display comprises a touch-sensitive surface; one or more processors; a memory; multiple applications; and one or more programs, wherein the one or more programs are stored in the memory and are configured to be executed by the one or more processors, and the one or more programs comprise an instruction used for executing a method, the method comprising: displaying a first interface element (IE) corresponding to a first application, a second IE corresponding to a second application, a third IE corresponding to a third application, and a fourth IE corresponding to a fourth application in the display, wherein the first IE and the second IE are displayed as being selected for a user, the third IE and the fourth IE are displayed as being unselected for the user; detecting a tap gesture on the third IE; in response to the tap gesture, displaying the third IE as being selected for the user; displaying a folder, wherein a fifth interface element (IE) corresponding to a fifth application is displayed in the folder; detecting a touch and hold gesture in the folder ; and in response to the touch and hold gesture, automatically gathering the first IE, the second IE and the third IE into the folder. 204. A method, applied to a portable electronic device comprising a display with a touch-sensitive surface, the method comprising: Appeal 2020-001056 Application 15/541,297 3 displaying a first interface element (IE) corresponding to a first application, a second IE corresponding to a second application, a third IE corresponding to a third application, and a fourth IE corresponding to a fourth application in the display, wherein the first IE and the second IE are displayed as being selected for a user, the third IE and the fourth IE are displayed as being unselected for the user; detecting a first gesture on the third IE; in response to the first gesture, displaying the third IE as being selected for the user; displaying a folder, wherein a fifth interface element (IE) corresponding to a fifth application is displayed in the folder; detecting a second gesture in the folder; and in response to the second gesture, automatically gathering the first IE, the second IE and the third IE into the folder. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Lee US 2013/0024821 A1 Jan. 24, 2013 Bernstein US 2015/0067602 A1 Mar. 5, 2015 REJECTIONS Claims 175–180, 182–184, 195–203 and 205 are rejected under 35 U.S.C. § 103 as being unpatentable over Bernstein and Lee. Final Act. 3. Claim 204 is rejected under 35 U.S.C. § 102(a) as anticipated by or, in the alternative, under 35 U.S.C. § 103 as obvious over Bernstein. Final Act. 8. Appeal 2020-001056 Application 15/541,297 4 OPINION § 102(a)/§ 103 At the outset we note that Appellant does not set forth separate arguments for patentability of independent claim 204. Rather than pro forma sustaining the anticipation rejection, we evaluate the Examiner’s rejection to see if the Examiner has facially proffered an element for element mapping of the claimed invention to the Bernstein reference. From our review of the Examiner’s stated anticipation rejection, the Examiner does not proffer a disclosure for a selection of a third thumbnail in the Bernstein reference. See Final Act. 9. The Examiner rejects independent claim 204 based upon anticipation or in the alternative obviousness over the Bernstein reference. The Examiner determines that Bernstein anticipates, or, alternatively, renders obvious independent claim 204. In particular, the Examiner finds Figures 8V and 8W of Bernstein disclose adding two selected thumbnails (TN 17402-1, TN 17402-2) to the open “Docs” folder. Final Act. 9. Although Figure 8V only illustrates the selection of two thumbnails, the Examiner explains it would have been “obvious to one of ordinary skill in the art that a third thumbnail such as 17402-3 [could] be selected.” Final Act. 9; see also Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1330-31 (Fed. Cir. 2009) (repeating known steps in a method claims is obvious). The Examiner does not make any express findings that either the Figures 8V or 8W or any other disclosure in the Bernstein reference discloses selecting the third thumbnail. Appeal 2020-001056 Application 15/541,297 5 “[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). “[A]nticipation is a question of fact.” In re Hyatt, 211 F.3d 1367, 1371–72 (Fed. Cir. 2000), (citing Bischoff v. Wethered, 76 U.S. 814–15 (1869); In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997)). [U]nless a reference discloses within the four corners of the document not only all of the limitations claimed but also all of the limitations arranged or combined in the same way as recited in the claim, it cannot be said to prove prior invention of the thing claimed and, thus, cannot anticipate under 35 U.S.C. § 102. Net MoneyIn, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008). Thus, it is not enough in an anticipation rejection that the prior art reference discloses part of the claimed invention, which an ordinary artisan might supplement to make the whole, or that it includes multiple, distinct teachings that the artisan might somehow combine to achieve the claimed invention. Net MoneyIn, Inc., 545 F.3d at 1371. Because the Examiner has not shown that every element is disclosed within the Bernstein reference, we cannot sustain the Examiner’s anticipation rejection of independent claim 204. However, because Appellant has not separately argued independent claim 204 with regards to the obviousness rejection, we group this claim below as falling for the same reasons with representative independent claim 175, discussed below. Appeal 2020-001056 Application 15/541,297 6 § 103 With respect to independent claims 175 and 204, along with dependent claims 176–180, 182–184, 195–203 and 205, Appellant argues the claims collectively and does not set forth separate arguments for patentability. Appeal Br. 6–12.Therefore, claims 176–180, 182–184, 195– 205 will stand or fall with representative independent claim 175. See 37 C.F.R. § 41.37(c)(1)(iv). Arguments which Appellant could have made but did not make in the Brief are deemed to be forfeited/waived. See 37 C.F.R. § 41.37(c)(1)(iv). We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. 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)) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). After considering the argued claims and each of Appellant’s arguments, we are not persuaded of reversible error in the appealed rejections. Appellant merely summarizes the claim language and makes a naked assertion that the prior art does not teach the limitation. That is insufficient to raise an argument that the Examiner erred. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (Rule § 41.37 requires “more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”); see also 37 C.F.R. § 41.37(c)(1)(iv) (“A statement which merely points out what a claim recites will not be considered an argument for Appeal 2020-001056 Application 15/541,297 7 separate patentability of the claim.”). Because Appellant has not identified any specific errors in the Examiner’s findings, “the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection.” Frye, 94 USPQ2d at 1075. Arguments must be commensurate in scope with the actual claim language. In re Self, 671 F.2d 1344, 1348 (CCPA 1982); see In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (“[The] proffered facts . . . are not commensurate with the claim scope and are therefore unpersuasive.”). Appellant’s argues that the combination of the Bernstein and Lee references fails to disclose each and every element of the rejected claims. Appeal Br. 7. Although Appellant notes that “[t]he Final Office Action asserts that Bernstein discloses all [the elements recited in independent claim 175] except for a touch and hold gesture” (Appeal Br. 8), Appellant argues that Bernstein fails to teach or suggest the claimed “detecting a touch and hold gesture in the folder; and in response to the touch and hold gesture, automatically gathering the first IE, the second IE and the third IE into the folder” as required by claim 175. Appeal Br. 8 (emphases added). Appellant’s argument is unpersuasive because Appellant acknowledged that Bernstein was not relied upon to teach the touch and hold claim limitation, and Appellant is arguing the references individually rather than as relied upon by the Examiner in the grounds of the rejection. Appellant further argues that “in Bernstein, in response to detecting liftoff of contact, the two thumbnails which are now right over the representation of the docs folder are added to the contents of the opened ‘docs’ folder. See also para. [0249] of Bernstein” Appeal Br. 9. Appellant Appeal 2020-001056 Application 15/541,297 8 also argues that there “is no disclosure or suggestion whatsoever, by Bernstein, that in response to a deep press input,” the device “would drop thumbnails from the cursor instead of showing an open folder with thumbnails still sticking to the cursor; and that in response to detecting liftoff of contact in an open folder, any thumbnail outside of the open folder would be automatically gathered into the open folder.” Appeal Br. 9. The Examiner finds that Appellant is arguing the references individually. Ans. 3–4. The Examiner further finds that the Bernstein reference teaches selection of two thumbnails and it would be obvious to one of ordinary skill in the art that a third thumbnail can also be selected. Ans. 4; Final Act. 3. The Examiner finds that by adding the two thumbnails (and a third thumbnail) to the folder in response to the detection of the liftoff contact, Bernstein teaches or suggests the claim feature of “automatically gather the first IE, the second IE and the third IE into the folder” and that the Lee reference teaches and suggests a touch and hold gesture. Ans. 4. The Examiner also finds that Bernstein and Lee are both directed toward data processing on a touch screen, and one of ordinary skill would have utilized the touch and hold gesture of Lee to gather the first, second and third IE as taught by Bernstein to achieve that claimed invention and yield predictable results. Ans. 4. The Examiner also finds that one of ordinary skill would have been motivated to make such combination to improve the device flexibility. Ans. 4–5. We note that Appellant’s argument is not commensurate in scope with the language of independent claim 175 because “any” thumbnail/interface element (IE) as argued by Appellant is not recited in the disputed limitation, but only selected thumbnails/IE’s (the first, second, and third IEs). Appeal 2020-001056 Application 15/541,297 9 Additionally, the Examiner relied upon the Lee reference for the deep press input rather than the Bernstein reference. Appellant then argues that Bernstein does not teach or suggest the totality of the claimed method steps of claim 175 (“the first IE and the second IE are displayed as being selected for a user, the third IE and the fourth IE are displayed as being unselected for the user . . . detecting a touch and hold gesture in the folder; and in response to the touch and hold gesture, automatically gathering the first IE, the second IE and the third IE into the folder.”). Appeal Br. 9–10. We find Appellant’s argument to be a general argument for patentability, which is unpersuasive. Appellant’s arguments are conclusory assertions without supporting explanation or analysis particularly pointing out errors in the Examiner’s reasoning fall well short of persuasively rebutting the Examiner’s prima facie case of obviousness. See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Appellant has not presented substantive arguments and supporting evidence persuasive of Examiner error. See Lovin, 652 F.3d at 1357 (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”) Attorney arguments and conclusory statements that are unsupported by factual evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); Ex parte Belinne, No. 2009-004693, 2009 WL 2477843, at *3–4 (BPAI Aug. 10, 2009) (informative), available at Appeal 2020-001056 Application 15/541,297 10 https://www.uspto.gov/sites/default/files/ip/boards/bpai/decisions/inform/fd0 9004693.pdf. We also note that the language of independent claim 175 is directed to a “device” with multiple interface elements (IE) where some are selected, some are non-selected, and some are in a folder. We agree with the Examiner that the Bernstein reference teaches and suggests thumbnails that are associated with applications where some of the thumbnails are selected and some are not selected and some are in a folder as evidenced in Figures 8V and 8W. Appellant further argues that the references “conflict” and the process of selecting the thumbnails using a gesture by a user is done differently than disclosed by the Bernstein reference and differently than disclosed by the Lee reference. Appeal Br. 10–12. We disagree with Appellant and note that the Bernstein reference discloses multiple different gestures and the disclosure of the Bernstein reference is exemplary. We also note that Bernstein discloses—in paragraphs 16, 41, 68, 81, 151, 183, 190 and other paragraphs—multiple different types of gestures and detection of gestures for detecting user desired functionality. As a result, we find that the Bernstein reference at least suggests the well-known use of various gestures to receive user inputs to perform various functions. Additionally, the Examiner has shown that the Bernstein reference discloses the ability to select multiple thumbnails at various times where the differing number of thumbnails are selected (beginning with zero up to two thumbnails) as shown in Figure 8V and that additional unselected thumbnails 17042-3 and 17042-4 are additionally available to be selected by Appeal 2020-001056 Application 15/541,297 11 the user. See Final Act. 4. As the Examiner finds in the statement of the rejection, “[s]ince you user selects two thumbnails, it is obvious to one of ordinary skill in the art that a third thumbnail such as 17402-3 can also be selected.” Final Act. 4. In the statement of the rejection, the Examiner additionally finds that “Bernstein Fig. 8W and par [00249] teach[] docs folder already contains thumbnails 17402-4–17402-5).” Final Act. 4. The Examiner only relies upon the Lee reference to teach and suggest a touch and hold function as a means/gesture to provide user input rather than a drag and drop input gesture and that the combined teachings of Bernstein and Lee according to known methods would “achieve the claimed invention and yield predictable results.” Final Act. 4. We agree with the Examiner that the substitution of the well-known touch and hold gesture would be an obvious and alternative variation of known input means/gestures for the drag and drop of the exemplary embodiment of the Bernstein disclosure. Further, Appellant does not file a reply brief in response to the Examiner’s additional findings and clarifications in the Examiner’s Answer. See Ans. 3–6. For example, in the Answer, the Examiner additionally finds that Appellant’s arguments focus on the teachings of Lee while ignoring the combined teachings of Bernstein with Lee and that Appellant is attacking the references individually. Ans. 5. The Examiner further explains that Bernstein as shown in par [0249], the gathering of the thumbnails into the folder happens when the contact is over the folder and liftoff is detected. Bernstein clearly teaches a gesture to gather plurality of thumbnails into folder by positioning the cursor over the folder then liftoff the contact. Lee on the other hand discloses a touch and hold gesture as shown in Lee par [0018]. Since Bernstein already discloses a gesture applied in the folder, the Appeal 2020-001056 Application 15/541,297 12 proposed combination of Bernstein and Lee would result in user press and hold over the folder to gather plurality of thumbnails into the folder, thus achieve the claimed invention. The examiner respectfully submits the proposed combination of Bernstein and Lee therefore poses no conflict. Ans. 5–6. Here, the Examiner provides a line of reasoning why the teachings of each of the references does not cause a conflict to the combination, as argued by Appellant. We agree with the Examiner that each of the different gestures were well-known at the time of the invention, as evidenced by the various paragraphs listed above in the Bernstein reference. Additionally, we note that Appellant’s Specification also discloses multiple embodiments and sequences of selections to perform the automatic gathering function. See generally Spec., Figs. 5A–5G. Appellant does not identify any specific differentiation between any of the types of input gestures and states: The contact/movement module 130 may detect a gesture input of the user. Different gestures on the touch-sensitive surface have different contact patterns. Therefore, a gesture may be detected by detecting a specific contact pattern. For example, detecting a single-finger tap gesture includes: detecting a finger press event, 5 and then detecting a finger raising (lift-up) event at the same location as the finger press event (or at basically the same location) (for example, at a location of an icon). For another example, detecting a finger sweep gesture on the touch-sensitive surface includes: detecting a finger press event, and then detecting one or more finger drag events, and then detecting a finger raising (lift-up) event. Spec. ¶ 93. Appellant’s Specification further discloses: In this specification, unless otherwise specified, a user gesture mentioned is flexible, and may be a tap, a double-tap, Appeal 2020-001056 Application 15/541,297 13 circling, line drawing, a single-finger touch, a multi-finger touch, or the like. A person of ordinary skill in the art can understand that selection of a specific gesture is flexible, provided that a basically same effect is achieved. In this specification, unless otherwise specified, a location or an area of a user gesture actuated on the touch-sensitive surface is also flexible, and may be an area of an application interface element displayed on the screen or a nearby area, a blank area in which no application interface element is displayed on the screen, an area that is set by a function displayed on the screen, or the like. A person of ordinary skill in the art can understand that a specific location or area in which a gesture is actuated on the touch-sensitive surface is flexibly settable, provided that a basically same effect is achieved. The following gives an unrestrictive discussion by using a single-finger press application icon 501A of a user as an example. Spec. ¶¶ 161–162 (emphases added). As a result, we agree with the Examiner that the Bernstein reference discloses a “device” that teaches and suggests the use of various input gestures to gather selected thumbnails into a folder that contains at least one thumbnail and the number of selected thumbnails is an obvious variant of the user in the selection process using the device. Although Appellant argues the different designation of interface elements as selected and unselected, we note that this designation is at various points in time in a process rather than addressing the limitations of the claimed “device” recited in the language of independent claim 175, which has the ability to perform the recited steps. Additionally, we note that the different interface elements are nonfunctional descriptive materials that do not limit the functionality of the claimed “device.” Appeal 2020-001056 Application 15/541,297 14 The interface elements constitute non-functional descriptive material, which “does not lend patentability to an otherwise unpatentable computer- implemented product or process.” Ex parte Nehls, 88 USPQ2d 1883, 1889 (BPAI 2008) (precedential). See Ex parte Curry, 84 USPQ2d 1272, 1274 (BPAI 2005) (informative) (Fed. Cir. Appeal No. 2006-1003), aff’d, No. 06- 1003 (Fed. Cir. 2006) (Rule 36) (“wellness-related” data in databases and communicated on distributed network did not functionally change either the data storage system or the communication system used in the claimed method). See also In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004); Nehls, 88 USPQ2d at 1887–90 (discussing non-functional descriptive material). Similarly, “[a]n[ ]intended use or purpose usually will not limit the scope of the claim because such statements usually do no more than define a context in which the invention operates.” Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). Accordingly, we need not attribute any distinguishing character to the asserted claim features. Consequently, Appellant’s argument does not show error in the Examiner’s conclusion of obviousness of independent claim 175.2 Therefore, Appellant’s arguments are unpersuasive to show error in the Examiner’s factual findings or conclusion of obviousness of representative independent claim 175. Because Appellant does not set forth separate arguments for patentability of any of the additional claims, we 2 Additionally, we note that Figures 1A, 1B, 2, and 3 in the Bernstein reference are remarkably similar to Appellant’s corresponding Figures, which disclose the claimed “device” recited in independent claim 175. Appeal 2020-001056 Application 15/541,297 15 group claims 176–180, 182–184 and 195–205 as falling with representative independent claim 175. CONCLUSION The Examiner’s decision rejecting claim 204 based upon anticipation is REVERSED, and the Examiner’s decision rejecting claims 175–180, 182– 184 and 195–205 based upon obviousness is AFFIRMED. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 175–180, 182–184, 195–203, 205 103 Bernstein, Lee 175–180, 182–184, 195–203, 205 204 102 Bernstein 204 204 103 Bernstein 204 Overall Outcome 175–180, 182–184, 195–205 RESPONSE 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