Verifone, Inc.

Patent Trials and Appeals Board

Dec 17, 2021

2020006778 (P.T.A.B. Dec. 17, 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.
15/663,206 07/28/2017 Imran A. Hajimusa VFI-5002-US1 3487
23469 7590 12/17/2021
Bond, Schoeneck & King PLLC
200 Delaware Avenue
Suite 900
Buffalo, NY 14202
EXAMINER
MISTRY, RAM A
ART UNIT PAPER NUMBER
2691
NOTIFICATION DATE DELIVERY MODE
12/17/2021 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):
bskpto@bsk.com
jpoczek@bsk.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IMRAN A. HAJIMUSA, GLEN ROBSON, and
DAVEY FAORO
Appeal 2020-006778
Application 15/663,206
Technology Center 2600
Before JASON V. MORGAN, DAVID J. CUTITTA II, and
SCOTT RAEVSKY, Administrative Patent Judges.
RAEVSKY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1, 3, 13, 14, 16, 21–26, 31, and 32, all the pending
claims. 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. Appellant identifies the real party in interest as VeriFone, Inc.
Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The claims relate to authentication code entry in touch-sensitive
screen enabled devices. Spec., Abstr. Claim 1, reproduced below, is
illustrative of the claimed subject matter (with relevant limitation(s)
emphasized):
1. A method for entering data to a data entry device
comprising at least one computer processor, a memory, and a
touch-sensitive screen, comprising:
the touch-sensitive screen providing an input interface
comprising a plurality of virtual keys;
the touch-sensitive screen sensing a first touch contacting
the touch-sensitive screen;
the at least one computer processor causing first audible
feedback to be provided when the touch-sensitive screen senses
the first touch contacting a first virtual key of the plurality of
virtual keys, wherein the first audible feedback comprises all
audible feedback provided when the touch-sensitive screen
senses the first touch contacting the first virtual key;
after contacting the first virtual key and while the first
touch is in contact with the touch-sensitive screen, the at least
one computer processor causing second audible feedback to be
provided when the touch-sensitive screen senses the first touch
contacting a second virtual key of the plurality of virtual keys,
wherein the second audible feedback comprises all audible
feedback provided when the touch-sensitive screen senses the
first touch contacting the second virtual key, and the first
audible feedback and the second audible feedback are the same;
the touch-sensitive screen sensing a release of the first
touch and a location of the first touch at the time of release;
the at least one computer processor determining a
corresponding virtual key based on the location of the first
touch at the time of release;
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the touch-sensitive screen receiving an entry gesture
comprising a plurality of taps, wherein the entry gesture is
received at any location on the touch-sensitive screen; and
the at least one computer processor identifying the
corresponding virtual key as a value in an authentication code
following the receipt of the entry gesture.
REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
King US 2009/0295753 A1 Dec. 3, 2009
Dale US 2011/0307833 A1 Dec. 15, 2011
Parker US 2014/0062885 A1 Mar. 6, 2014
Pelissier US 2014/0282228 A1 Sept. 18, 2014
Kandekar US 2014/0310805 A1 Oct. 16, 2014
Lozinski WO 2012/170745 A2 Dec. 13, 2012
REJECTIONS
The Examiner makes the following rejections:
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1, 3, 13, 14, 16, 21,
25, 26
103 Kandekar, Dale, Lozinski
22 103 Kandekar, Dale, Lozinski, Pelissier
23, 24 103 Kandekar, Dale, Lozinski, King
31, 32 103 Kandekar, Dale, Lozinski, Parker
ANALYSIS
Independent Claims 1 and 14
Appellant raises several arguments for independent claim 1. Appeal
Br. 11–15; Reply Br. 1–5. Appellant first contends that the proposed
combination of Kandekar, Dale, and Lozinski is improper because Lozinski
is non-analogous art. Appeal Br. 11–13; Reply Br. 1–2. Appellant contends
that in Lozinski, when a touchscreen key is released, the key is spoken,
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which “would compromise the user’s authentication code.” Appeal Br. 12
(citing Lozinski ¶ 48). This is “contrary to the problem with which the
application was concerned,” according to Appellant. Id. Appellant frames
the application’s problem as “secure entry of an authentication code on a
touch-sensitive screen by a visually impaired individual.” Id.
The Examiner finds that it would have been obvious to use Lozinski’s
audible feedback with Kandekar’s input device “because the combination
would assist a visually impaired user in determining when a finger has
crossed into the boundary of a key.” Final Act. 5. In the Answer, the
Examiner agrees that “the teachings of Lozinski might be contrary to the
problem with which the application was concerned.” Ans. 10. But the
Examiner finds that, regardless, “[t]he relevant portion of the claims only
requires the first and second audible feedbacks be the same, which is readily
taught by the cited portion of Lozinski.” Id. In the Reply, Appellant
reasserts that Lozinski is not “reasonably pertinent” to the application’s
problem. Reply Br. 1–2. Appellant also argues that Lozinski’s feedback
upon key release is not the same because “a beep followed by a spoken ‘one’
is not the same as a beep followed by a spoken ‘three.’” Id. at 2.
Appellant’s argument is unpersuasive because it does not consider the
full test for analogous art. Despite acknowledging that this test has two
parts, Appellant does not address the first part of the test: that “the reference
is from the same field of endeavor as the claimed invention (even if it
addresses a different problem).” See Appeal Br. 11–12 (quoting In re Bigio,
381 F.3d 1320, 1325 (Fed. Cir. 2004)). Appellant only addresses the second
part of the test, which is that “the reference is reasonably pertinent to the
problem faced by the inventor (even if it is not in the same field of endeavor
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as the claimed invention).” Id. (quoting same). Prior art is analogous if it
meets either prong of the two-part test. Bigio, 381 F.3d at 1325. As
Appellant ignores the first prong (same field of endeavor) with respect to
whether Lozinski is analogous art, Appellant does not persuade us of
Examiner error.
We also find Appellant’s argument that Lozinski’s feedback is not the
same to be an untimely Reply argument. See Reply Br. 2. Appellant has not
explained why it did not raise this argument in its Appeal Brief, even though
the Final Office Action addresses Lozinski. So we do not consider this
untimely argument. See 37 C.F.R. § 41.41(b)(2); see also In re Hyatt, 211
F.3d 1367, 1373 (Fed. Cir. 2000) (argument not first raised in Appeal Brief
is waived); Ex parte Nakashima, 2010 WL 191183, at *3–*6 (BPAI 2010)
(new Reply arguments not timely presented in the principal Brief will not be
considered, absent a showing of good cause).
Appellant next contends that the combination of Kandekar, Dale, and
Lozinski fails to teach or suggest “the at least one computer processor
determining a corresponding virtual key based on the location of the first
touch at the time of release,” as recited in claim 1. Appeal Br. 13–15; Reply
Br. 2–5. For this limitation, the Examiner applies Figure 5 of Kandekar,
finding that “[t]he corresponding character is input in the password field
above”). Final Act. 3. Figure 5 of Kandekar is reproduced below:
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Figure 5 depicts a use case of a user performing password input via gesture
on a mobile device. Kandekar ¶ 75. Figure 5 also depicts entry of a
username and password, with part of such entry including the user making
gesture 504 with the user’s finger on the mobile device’s touch screen, the
gesture partially being made over virtual keyboard area 218. See id.
Appellant contends that in Kandekar Figure 5, a user enters a gesture
on the virtual keyboard, but the value of the virtual keys are not entered.
Appeal Br. 14. Instead, Appellant contends, the effect of the gesture is
entered in the password area. Id. Appellant further contends that if
Kandekar disclosed the disputed limitation, “Kandekar would enter the letter
‘F’ because that is the ‘corresponding virtual key based on the location of
the first touch at the time of release’ shown in Figure 5.” Id. But instead,
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Appellant contends, the user in Kandekar performs a “cross” gesture
(element 502) as a shortcut, which changes the case of the letter “d” and
appends a certain string (“v$v”). Id. at 14–15.
The Examiner responds that the rejection “never referenced the
‘cross’ gesture shown in Fig. 5.” Ans. 11. Instead, the Examiner asserts,
the rejection utilizes Fig. 5 of Kandekar to show a keyboard on
which the user can perform a press and release, corresponding
to the [disputed limitation]. Fig. 5 of Kandekar shows
previously entered values for the “Username” and “Password”
that were entered by making touch entries on the shown
keyboard, where the release of the user’s finger was sensed and
location of the release was determined, readily reading on the
claim language.
Id. at 12. Appellant responds that “what the Examiner relies on Figure 5 to
disclose—‘a keyboard on which the user can perform a press and release’—
is not what is disclosed by Figure 5.” Reply Br. 3. Instead, Appellant
argues, “Figure 5 . . . discloses that gestures may be entered even if entered
over the keys of a virtual keyboard.” Id. at 4. Appellant also contends that
modifying Kandekar to meet the claim limitation would render it unsuitable
for its intended purpose because the letter “F” (in Figure 5) would be entered
instead of the shortcut resulting from the cross gesture. Id. at 4–5.
Appellant does not persuade us of Examiner error because Appellant
reads Kandekar selectively. In the section of Kandekar addressing Figure 5,
Kandekar teaches that “[g]estures may be used in conjunction with, rather
than instead of, normal keyboard input.” Kandekar ¶ 74. Kandekar further
notes “that the normal keyboard input may also be via touch inputs in the
case where the keyboard is a virtual keyboard.” Id. These normal inputs
can include “one or more separate inputs to select individual keys of the
keyboard.” Id. That Figure 5 includes both keyboard input and a gesture
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input is precisely the Examiner’s point, and we agree. See Ans. 11–12. In
Kandekar’s Figure 5, the result of making the gesture input (“Dv$v”)
follows the hidden characters (“••••••”), which one of ordinary skill would
have understood to represent keyboard input.2
Thus, we sustain the Examiner’s rejection of claim 1 and similar claim
14, which Appellant does not argue separately.

Dependent Claims
For the dependent claims, Appellant raises arguments only for claims
31 and 32. Appeal Br. 16–20. Appellant raises three arguments for these
claims. Id. First, Appellant contends that the references are combined using
impermissible hindsight. Id. at 16–18. Second, Appellant argues that Parker
teaches away from the use of virtual keys. Id. at 18. And third, Appellant
contends that the proposed combination fails to disclose the claimed virtual
key arrangement. Id. at 18–20. We address each in turn.
Regarding hindsight, Appellant contends that Parker does not disclose
a touch-sensitive screen nor virtual keys. Id. at 16. There is no reason,
Appellant argues, “other than the knowledge gleaned from Appellant’s
specification, to modify Kandekar’s virtual key arrangement based on the

2 We further take judicial notice of the fact that, by this application’s filing
date (July 28, 2017), one of ordinary skill in the art would have recognized
that touchscreens were equipped with at least one processor that could
determine a corresponding virtual key based on the location of a touch at the
time of release. See In re Ahlert, 424 F.2d 1088, 1091 (CCPA 1970)
(explaining that “the Patent Office appellate tribunals, where it is found
necessary, may take notice of facts beyond the record which, while not
generally notorious, are capable of such instant and unquestionable
demonstration to defy dispute.”).
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positioning of key indicators—not even keys—on what amounts to a form of
keyboard.” Id. at 17. Appellant therefore concludes that the rejection must
have been based on hindsight. Id.
The Examiner finds, and we agree, that
It would have been obvious to one skilled in the art, at
the time of the invention, to utilize the key arrangement of
Parker with the input device of Kandekar, as modified by Dale
and Lozinski, because it is understood that various keyboard
configurations are possible according to usability requirements
of the user.
Final Act. 8. In the Answer, the Examiner further finds that “Parker is
utilized to teach the claimed arrangement of keys where two subsets of the
keys are arranged [in] parallel rows. Parker need only teach this specific
arrangement of keys, which is one of innumerable arrangements of keys
possible on a touch sensitive screen.” Ans. 13.
Appellant’s argument amounts to contending that because Kandekar
and Parker disclose different things, the rejection must be based on
hindsight. But if that argument were valid, then no obviousness combination
would be possible. Where, as here, the Examiner has articulated a reason
having rational underpinnings for making a proposed combination of prior
art teachings, that articulated reasoning demonstrates that the combination is
not based on hindsight. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
(requiring “some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness”) (cited with approval in KSR
Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 419 (2007)). In any event,
Any judgment on obviousness is in a sense necessarily a
reconstruction based on hindsight reasoning, but so long as it
takes into account only knowledge which was within the level
of ordinary skill in the art at the time the claimed invention was
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made and does not include knowledge gleaned only from
applicant’s disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1394–95 (CCPA 1971).
Appellant’s next argument is that Parker teaches away from the use of
virtual keys. Appeal Br. 18. Appellant cites Parker’s teaching that “in many
conventional systems, users must interface with small virtual keyboards
displayed on a touch screen of the device.” Id. Appellant contends that
Parker teaches away because it criticizes, discredits, or otherwise
discourages the user of virtual keys on touch-sensitive devices. Id. (citing
MPEP § 2142.02).
We disagree. Elsewhere, Parker discloses an embodiment where “the
display 202 may include a touch-screen, such that the user may input data
via the touch-screen of the display 202.” Parker ¶ 92; see also Figs. 8
(smartphone), 9 (touchscreen). Although Parker views virtual keyboards as
“small,” one of ordinary skill in the art would have understood that Parker
contemplates data entry through a touch screen in addition to its physical
key embodiments. Id. ¶¶ 92, 3. Thus, Parker does not teach away from
using virtual keyboards.
Finally, Appellant contends that claims 31 and 32 “require[] that the
keys are virtual keys,” but Parker does not disclose virtual keys. Appeal Br.
19. The Examiner responds that “Parker is utilized to teach the claimed
arrangement of keys,” whereas “the other references in the combination
already establish a device comprising virtual keys.” Ans. 13. In other
words, Appellant impermissibly argues the references individually. We
agree with the Examiner. One cannot show non-obviousness by attacking
references individually, where the rejections are based on combinations of
references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
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We therefore sustain the Examiner’s rejections of claims 31 and 32
and the remaining dependent claims, which Appellant does not argue
separately.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 13, 14,
16, 21, 25,
26
103 Kandekar, Dale,
Lozinski
1, 3, 13, 14,
16, 21, 25,
26

22 103 Kandekar, Dale,
Lozinski, Pelissier
22
23, 24 103 Kandekar, Dale,
Lozinski, King
23, 24
31, 32 103 Kandekar, Dale,
Lozinski, Parker
31, 32
Overall
Outcome
1, 3, 13, 14,
16, 21–26,
31, 32

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