Verifone, Inc.Download PDFPatent Trials and Appeals BoardDec 17, 20212020006778 (P.T.A.B. Dec. 17, 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. 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. Appeal 2020-006778 Application 15/663,206 2 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; Appeal 2020-006778 Application 15/663,206 3 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, Appeal 2020-006778 Application 15/663,206 4 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 Appeal 2020-006778 Application 15/663,206 5 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: Appeal 2020-006778 Application 15/663,206 6 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, Appeal 2020-006778 Application 15/663,206 7 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$v”). Id. at 14–15. The Examiner responds that the rejection “never referenced the ‘cross’ gesture shown in Fig. 5.” Ans. 11. Instead, the Examiner asserts, the rejection utilizes Fig. 5 of Kandekar to show a keyboard on which the user can perform a press and release, corresponding to the [disputed limitation]. Fig. 5 of Kandekar shows previously entered values for the “Username” and “Password” that were entered by making touch entries on the shown keyboard, where the release of the user’s finger was sensed and location of the release was determined, readily reading on the claim language. Id. at 12. Appellant responds that “what the Examiner relies on Figure 5 to disclose—‘a keyboard on which the user can perform a press and release’— is not what is disclosed by Figure 5.” Reply Br. 3. Instead, Appellant argues, “Figure 5 . . . discloses that gestures may be entered even if entered over the keys of a virtual keyboard.” Id. at 4. Appellant also contends that modifying Kandekar to meet the claim limitation would render it unsuitable for its intended purpose because the letter “F” (in Figure 5) would be entered instead of the shortcut resulting from the cross gesture. Id. at 4–5. Appellant does not persuade us of Examiner error because Appellant reads Kandekar selectively. In the section of Kandekar addressing Figure 5, Kandekar teaches that “[g]estures may be used in conjunction with, rather than instead of, normal keyboard input.” Kandekar ¶ 74. Kandekar further notes “that the normal keyboard input may also be via touch inputs in the case where the keyboard is a virtual keyboard.” Id. These normal inputs can include “one or more separate inputs to select individual keys of the keyboard.” Id. That Figure 5 includes both keyboard input and a gesture Appeal 2020-006778 Application 15/663,206 8 input is precisely the Examiner’s point, and we agree. See Ans. 11–12. In Kandekar’s Figure 5, the result of making the gesture input (“Dv$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.”). Appeal 2020-006778 Application 15/663,206 9 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 Appeal 2020-006778 Application 15/663,206 10 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). Appeal 2020-006778 Application 15/663,206 11 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 Copy with citationCopy as parenthetical citation