Polycom, Inc.Download PDFPatent Trials and Appeals BoardDec 2, 20212020004974 (P.T.A.B. Dec. 2, 2021) Copy Citation 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. 14/871,012 09/30/2015 Konstantin Pirogov 199-1215US 1060 11422 7590 12/02/2021 Keith Lutsch PC - Poly 801 Travis Street, Suite 1610 Houston, TX 77002 EXAMINER HARRIS, DOROTHY H ART UNIT PAPER NUMBER 2625 NOTIFICATION DATE DELIVERY MODE 12/02/2021 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): eofficeaction@appcoll.com patents@keithlutschpc.com polyip@dennemeyer.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KONSTANTIN PIROGOV and SIMON MORET ___________ Appeal 2020-004974 Application 14/871,012 Technology Center 2600 ____________ Before CAROLYN D. THOMAS, CARL W. WHITEHEAD JR., and MICHAEL J. STRAUSS, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 3–7, 9–13, 15–19, and 22–32, all of the pending claims. Final Act. 1.2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Plantronics, Inc. Appeal Br. 3. 2 In this Decision, we refer to Appellant’s Appeal Brief (“Appeal Br.,” filed March 3, 2020) and Reply Brief (“Reply Br.,” filed June 17, 2020); the Final Office Action (“Final Act.,” mailed September 10, 2019) and the Examiner’s Answer (“Ans.,” mailed April 17, 2020); and the Specification (“Spec.,” filed September 30, 2015 as amended January 9, 2019). Rather than repeat the Examiner’s findings and Appellant’s contentions in their entirety, we refer to these documents. Appeal 2020-004974 Application 14/871,012 2 STATEMENT OF THE CASE The claims relate to “a touch-sensitive device configured to recognize a multi-finger touch.” Spec. ¶ 7. As noted above, claims 1, 3–7, 9–13, 15– 19, and 22–32 are pending. Claims 1, 7, 13, and 19 are independent. Appeal Br. 27 (claim 1), 28 (claim 7), 29 (claim 13), 30–31 (claim 19) (Claims App.). Claims 3–6, 25, and 29 depend directly or indirectly from claim 1, claims 9–12, 26, and 30 depend directly or indirectly from claim 7, claims 15–18, 27, and 31 depend directly or indirectly from claim 13, and claims 22–24, 28, and 32 depend directly or indirectly from claim 19. Id. at 27–33. Claim 1, reproduced below with a disputed limitation emphasized, is illustrative. 1. A touch-sensitive device, comprising: memory that stores a plurality of computer programs and an operating system enabling at least one of the plurality of computer programs to run in the foreground of the touch- sensitive device; a touch-sensitive input including a plurality of touch- sensitive regions, the plurality of touch-sensitive regions including three predetermined touch-sensitive regions, wherein the touch-sensitive device does not display the boundaries of the touch-sensitive regions; and a processor that performs a function in response to a simultaneous touch of the predetermined touch-sensitive regions regardless of the computer program running in the foreground. Id. at 27 (emphasis added). Each of independent claims 7, 13, and 19 recites limitations corresponding to the disputed limitations of claim 1. Id. at 28– 31. Appeal 2020-004974 Application 14/871,012 3 REFERENCES AND REJECTIONS The Examiner relies upon the following references: Name3 Reference Pub. Date Tsern US 2009/0199130 A1 Aug. 6, 2009 Lim US 2010/0110025 A1 May 6, 2010 Ayanam US 2014/0282045 A1 Sept. 18, 2014 Kies US 2014/0282272 A1 Sept. 18, 2014 Khoury US 2016/0343350 A1 Nov. 24, 2016 The Examiner rejects:4 a. claims 1, 3–5, 7, 9–11, 13, 15–17, 19, 22, 23, and 25–32 under 35 U.S.C. § 103 as obvious over the combined teachings of Tsern, Lim, Ayanam, and Kies (Final Act. 5–23); and b. claims 6, 12, 18, and 24 under 35 U.S.C. § 103 as obvious over the combined teachings of Tsern, Lim, Ayanam, Kies, and Khoury (id. at 24–25). We review the appealed rejections for error based upon the issues identified by Appellant, and in light of the contentions and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). The Examiner and Appellant focus their findings and 3 All reference citations are to the first named inventor only. 4 The Examiner objects to claims 1, 5, 7, 13, 19, and 29–32 for various formal reasons. Final Act. 3–4. Although Appellant contends the objections are improper (Appeal Br. 10–15), the Examiner correctly notes that objections are not appealable but, instead, are reviewable by filing a petition with the Director. Ans. 3 (citing MPEP § 706.01). Accordingly, the objections are not before us and we do not substantively address them or Appellant’s arguments in connection therewith. Appeal 2020-004974 Application 14/871,012 4 contentions on claim 1 (see Appeal Br. 20–26; Ans. 3–8); so do we. Arguments not made are forfeited.5 Unless otherwise indicated, we adopt the Examiner’s findings in the Final Office Action and the Answer as our own and add any additional findings of fact for emphasis. We address the rejections below. ANALYSIS As noted above, the Examiner rejects claim 1 as obvious over the combined teachings of Tsern, Lim, Ayanam, and Kies. Final Act. 5–10. In particular, the Examiner finds Tsern’s disclosure of a wristwatch having an interactive multi-touch display teaches or suggests the majority of the limitations recited in claim 1. Id. at 5–7 (citing Tsern ¶¶ 13–20, 35; Figs. 1– 4). The Examiner finds, however, “Tsern does not appear to explicitly disclose simultaneous touch of three predetermined regions [or disclose] programs running in the foreground,” as recited in claim 1. Id. at 7 (emphasis omitted). Nevertheless, the Examiner finds Lim and Ayanam teach simultaneous touching of three predetermined regions (id. at 8–10) and Kies teaches a foreground application (id. at 7–8). In particular, the Examiner finds (i) Lim’s disclosure of opening a task manager by pressing downward with three fingers at once (id. at 8 (citing Lim ¶¶ 73–86)) taken together with 5 See In re Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020) (“We interpret the Patent Office to be arguing that Google’s failure to raise its lexicography arguments, inadvertent or not, compels a finding of forfeiture.”); 37 C.F.R. § 41.37(c)(1)(iv) (2018) (“Except as provided for in §§ 41.41, 41.47 and 41.52, any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal.”). Appeal 2020-004974 Application 14/871,012 5 (ii) Ayanam’s disclosure of a determination by a gesture command submodule of a predetermined set of multi-touch characteristics including location (id. at 8–9 (citing Ayanam ¶ 72)) combine to teach or suggest the disputed limitation of responding to a simultaneous touch of three predetermined touch-sensitive regions (id. at 9–10). The Examiner applies Kies’s disclosure of a foreground application providing a user display while another application runs in the background for teaching the disputed limitation of a program running in the foreground. Id. at 7–8 (citing Kies ¶¶ 92–93). The Examiner finds motivation existed to combine the references’ teachings. Id. at 8–9. Appellant argues the combination of Tsern, Kies, Lim, and Ayanam fails to teach “a device that performs a function (regardless of the computer program running in the foreground) in response to a user touching three predetermined touch-sensitive regions.” Appeal Br. 20–21 (footnote omitted). According to Appellant, Tsern describes universal contact gestures using one or two fingers, none of which “involve the simultaneous touch of three predetermined touch-sensitive regions as recited in claim 1.” Id. at 21 (emphasis omitted). Appellant contends the addition of Lim fails to cure the noted deficiency. Appellant argues Lim’s disclosure of global gestures, including opening a task manager “by pressing ‘three fingers at once’ or ‘bringing three spread fingers together[,]’ . . . can be performed anywhere on [Lim’s] touchpad, rather than [at] ‘three predetermined touch- sensitive regions’ as recited in claim 1.” Id. (citing Lim ¶¶ 71–72). Addressing the Ayanam reference, Appellant contends Ayanam discloses gestures using a single touch, not the simultaneous touch of three predetermined touch-sensitive regions. Id. at 22. Appeal 2020-004974 Application 14/871,012 6 The Examiner responds, finding Lim’s disclosure of a High Dimensional Touchpad (HDTP) that can distinguish global commands using complex gestures including “three-finger posture or complex three-finger movement” (Lim ¶ 73) and the simultaneous pressing of three fingers to open a task manager (Lim ¶ 76) teaches the disputed three touch-sensitive regions. Ans. 6. The Examiner finds Ayanam’s disclosure of a gesture command submodule that determines values of a predetermined set of multi- touch characteristics, including locations, teaches or suggests predetermined touch-sensitive regions, i.e., specific touch locations and provides the following explanation. Therefore by incorporating Lim’s teaching to have a three fingers at once gesture assigned to a global command, combined with Ayanam’s teaching that multitouch characteristics, such as locations of the multitouch input data characteristics are compared with values of the characteristics defined in record entries, so as to then select a record entry and accordingly a mapped command, with Tsern’s invention having universal contact gesture mapped to a function in all operational modes would have been a straight-forward combination of known gestures, used to invoke known functions, being compared using known techniques to determined which mapped command corresponds to the user’s input gesture. Therefore as best understood by the Office the results of the combined teachings of the prior art would result in fairly teaching or suggesting the claimed features using known techniques with predictable results. Id. at 7–8 (emphasis omitted). Appellant replies, arguing Ayanam’s “[touch] locations are relative to each other or to the previous location (for trajectory) and are not predetermined touch sensitive regions on a touch-sensitive input as claimed.” Reply Br. 2–3. Appeal 2020-004974 Application 14/871,012 7 Appellant’s contentions are unpersuasive of reversible Examiner error. During examination, pending claims are given their broadest reasonable interpretation consistent with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable interpretation standard, claim terms are given their ordinary and customary meaning as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). However, although we interpret claim limitations consistent with the specification, we do not import limitations from the specification into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)). During examination, when claims can be readily amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed. Zletz, 893 F.2d at 321. Construing claims broadly during prosecution is not unfair to the applicant because the applicant has the opportunity to amend the claims to obtain more precise claim coverage. Am. Acad. of Sci. Tech Ctr., 367 F.3d at 1364. Appellant directs attention to paragraph 33 of the Specification in support of the recited plurality of touch sensitive regions including three predetermined touch-sensitive regions. Appeal Br. 4 (Summary of Claimed Subject Matter). We do not find any reference to, much less a definition for, a predetermined touch-sensitive region in the cited portion, nor any other portion of the Specification. However, as noted by Appellant, pending dependent claims 29–32 recite wherein the predetermined touch-sensitive regions include the bottom-left, the bottom-center, and the top-right of the touch-sensitive input. Reply Br. 1. As found by the Examiner, Tsern Appeal 2020-004974 Application 14/871,012 8 discloses a touch display having corresponding regions wherein, for example, [t]he corner to corner swipe further comprises at least one of a single contact starting at the top right corner of the display and moving diagonally down to the bottom left comer of the display and a single contact starting at the top left corner of the display and moving diagonally down to the bottom right comer of the display. Tsern ¶ 17. Thus, Tsern’s display locations precisely correspond to Appellant’s regions of the dependent claims. Therefore, Tsern’s description of a touch-sensitive display having corner regions teaches or suggests the predetermined touch-sensitive regions of claim 1. Furthermore we are unpersuaded by Appellant’s argument that Ayanam’s “locations are relative to each other or to the previous location (for trajectory) and are not predetermined touch sensitive regions on a touch- sensitive input as claimed.” Reply Br. 2–3. In particular, Appellant fails to explain why a disclosure of a location, that is determined in response to an initial finger touch, is not predetermined at the time the second touch occurs, or otherwise provide persuasive evidence that a location relative to a previous location does not at least suggest a predetermined location or region. Moreover, claim 1 does not attribute any functionality distinguishing regions from each other except by location. For example, there is no requirement that the processor performs different functions in response to the simultaneous touching of different combinations of predetermined touch- sensitive regions. Thus, absent any difference in functionalities, disclosure by the applied prior art of a single touch-sensitive region renders obvious multiple touch-sensitive regions. “It is well settled that the mere duplication Appeal 2020-004974 Application 14/871,012 9 of parts has no patentable significance unless a new and unexpected result is produced.” In re Harza, 274 F.2d 669, 774 (CCPA 1960). Appellant does not identify any new or unexpected result that would occur due to the use of a plurality of touch-sensitive regions. Thus, for the reasons discussed above, the Examiner did not err in finding the combination of Tsern, Lim, Ayanam, and Kies teaches or suggests a function in response to a simultaneous touch of the predetermined touch-sensitive regions. Accordingly, we sustain the Examiner’s rejection of claim 1 as obvious over the combined teachings of Tsern, Lim, Ayanam, and Kies. Further, Appellant does not challenge the obviousness rejections of independent claims 7, 13, 19 or of dependent claims 3–6, 9–12, 15–18, and 22–28. See Appeal Br. 23. Thus, we also sustain the rejections of those claims. We are also unpersuaded the Examiner errs in rejecting dependent claims 29–32. Appeal Br. 24–26. As explained above, Tsern’s paragraph 17 discloses in haec verba the corner locations recited by these claims. Accordingly, we further sustain the Examiner’s rejection of claims 29–32. DECISION 1. The Examiner does not err in rejecting: a. claims 1, 3–5, 7, 9–11, 13, 15–17, 19, 22, 23, and 25–32 under 35 U.S.C. § 103 as obvious over the combined teachings of Tsern, Lim, Ayanam, and Kies; and b. claims 6, 12, 18, and 24 under 35 U.S.C. § 103 as obvious over the combined teachings of Tsern, Lim, Ayanam, Kies, and Khoury. Appeal 2020-004974 Application 14/871,012 10 2. Thus, on this record, claims 1, 3–7, 9–13, 15–19, and 22–32 are not patentable. CONCLUSION We affirm the Examiner’s rejections of claims 1, 3–7, 9–13, 15–19, and 22–32. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–5, 7, 9– 11, 13, 15–17, 19, 22, 23, 25– 32 103 Tsern, Lim, Ayanam, Kies 1, 3–5, 7, 9– 11, 13, 15– 17, 19, 22, 23, 25–32 6, 12, 18, 24 103 Tsern, Lim, Ayanam, Kies, Khoury 6, 12, 18, 24 Overall Outcome 1, 3–7, 9–13, 15–19, 22–32 TIME PERIOD FOR 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 Copy with citationCopy as parenthetical citation