WAYFAIR LLC

Patent Trials and Appeals Board

Jan 25, 2022

2020006046 (P.T.A.B. Jan. 25, 2022)

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. 15/077,573 03/22/2016 Vasileios J. GIANOUKOS 107525-5001-US 1496 28977 7590 01/25/2022 MORGAN, LEWIS & BOCKIUS LLP (PH) 1701 MARKET STREET PHILADELPHIA, PA 19103-2921 EXAMINER GENACK, MATTHEW W ART UNIT PAPER NUMBER 2645 NOTIFICATION DATE DELIVERY MODE 01/25/2022 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): judith.troilo@morganlewis.com phpatentcorrespondence@morganlewis.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte VASILEIOS J. GIANOUKOS, CARL E. NEHME, and NICHOLAS J. LIZOTTE Appeal 2020-006046 Application 15/077,573 Technology Center 2600 Before MINN CHUNG, CHRISTA P. ZADO, and DAVID J. CUTITTA II, Administrative Patent Judges. CUTITTA, 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 1-5, 8-14, 16-19, and 21-23, all of the claims under consideration.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(a). Appellant identifies the real party in interest as WAYFAIR LLC. Appeal Brief filed April 27, 2020 (“Appeal Br.”) at 2. 2 Claims 6, 7, 15, and 20 are cancelled. Appeal Br. 2. Appeal 2020-006046 Application 15/077,573 2 CLAIMED SUBJECT MATTER Summary Appellant’s claimed subject matter “relates generally to sharing media information over a communication network using mobile devices.” Spec. ¶ 2.3 In particular, the “media sharing mechanism allows a mobile device to display incoming media information as a full-screen (or a non-full screen) notification that is temporarily overlaid on the lock screen as the information arrives on the mobile device.” Id. ¶ 60. According to Appellant, “[t]he notification can appear above the lock screen when there is media information waiting for a user. This allows users to interact with the media information above the lock screen directly, instead of separately initiating a media application to view the media information.” Id. Exemplary Claim Claims 1, 9, and 18 are independent. Claim 1, reproduced below with limitations at issue italicized, exemplifies the claimed subject matter: 1. A method for providing media information at a mobile device, the method comprising: receiving, at a lock screen listener module of a mobile device, a notification from a receiver, indicating that media information has been received from a communications network; in response to receiving the notification, instructing, by the lock screen listener module, a lock screen display module to display the received media information above a lock screen on a display of the mobile device; 3 In addition to the Appeal Brief noted above, we refer to: (1) the originally filed Specification filed March 22, 2016 (“Spec.”); (2) the Non-Final Office Action mailed September 23, 2019 (“Non-Final Act.”); and (3) the Examiner’s Answer mailed June 22, 2020 (“Ans.”); and (4) the Reply Brief filed August 24, 2020 (“Reply Br.”). Appeal 2020-006046 Application 15/077,573 3 providing interactive tools above the lock screen for editing the received media information displayed above the lock screen, wherein editing the received media information includes directly modifying, by a user of the mobile device, the received media information displayed above the lock screen with at least one of the interactive tools; and sending the edited media information, above the lock screen, to another mobile device over the communications network. Appeal Br. 22 (Claims Appendix). REFERENCES The Examiner relies on the following prior art references:4 Name Reference Date Nieminen- Sundell US 2005/0181827 A1 Aug. 18, 2005 Bandyopadhyay US 2012/0009896 A1 Jan. 12, 2012 Simmons US 2012/0063736 A1 Mar. 15, 2012 Garcia US 2013/0095857 A1 Apr. 18, 2013 Kwon US 2014/0273967 A1 Sept. 8, 2014 Lee US 2015/0126155 A1 May 7, 2015 Barneson US 2015/0230050 A1 Aug. 13, 2015 REJECTIONS The Examiner rejects the claims as shown below: Claim(s) Rejected 35 U.S.C. § References Non-Final Act. 1, 4 103 Garcia, Bandyopadhyay, Lee 4 9, 12, 14, 18 103 Garcia, Bandyopadhyay 8 4 All citations to the references use the first-named inventor or author only. Appeal 2020-006046 Application 15/077,573 4 Claim(s) Rejected 35 U.S.C. § References Non-Final Act. 2, 3 103 Garcia, Bandyopadhyay, Lee, Nieminen-Sundell 14 5 103 Garcia, Bandyopadhyay, Lee, Barneson 16 8 103 Garcia, Bandyopadhyay, Lee, Simmons 17 10, 11, 19 103 Garcia, Bandyopadhyay, Nieminen-Sundell 17 13 103 Garcia, Bandyopadhyay, Barneson 20 16, 17 103 Garcia, Bandyopadhyay, Simmons 21 21 103 Garcia, Bandyopadhyay, Lee, Kwon 22 22, 23 103 Garcia, Bandyopadhyay, Kwon 24 OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of Appellant’s arguments and evidence. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2019). Appellant does not persuade us that the Examiner errs, and we adopt as our own the findings and reasons set forth by the Examiner to the extent Appeal 2020-006046 Application 15/077,573 5 consistent with our analysis herein. Non-Final Act. 2-26; Ans. 3-11. We add the following primarily for emphasis. Obviousness Rejection of Exemplary Claim 1 Claim 1 recites “providing interactive tools above the lock screen for editing the received media information displayed above the lock screen, wherein editing the received media information includes directly modifying, by a user of the mobile device, the received media information displayed above the lock screen with at least one of the interactive tools.” Appeal Br. 22. Appellant argues that “the zoom-in and zoom-out controls of Bandyopadhyay [fails to] disclose, teach or suggest editing media information displayed above the lock screen, as claimed, where editing the received media information includes directly modifying, by a user of the mobile device, the received media information displayed above the lock screen.” Appeal Br. 7. We are not persuaded by Appellant’s argument. The Examiner determines, and we agree, that “Claim 1 does not contain any requirement that a change is made to the image file. Rather, claim 1 merely requires that the image being displayed above the lock screen undergo a modification.” Ans. 8. As the Examiner notes, the claim recites “editing the received media information displayed above the lock screen.” Id. (original emphasis omitted) (emphasis added). The Examiner finds that Bandyopadhyay’s zoom feature discloses editing received media information that is displayed above the lock screen, explaining that “zooming in and zooming out operations modify the image being displayed, in that the pixel content of the image is changing when zooming in and zooming out.” Id. (citing Appeal 2020-006046 Application 15/077,573 6 Bandyopadhyay, Fig. 3A). Appellant, in turn, fails to persuasively rebut the Examiner’s finding that Bandyopadhyay’s zoom operations modify the image being displayed. Moreover, we note that Appellant cites the discussion of lock screen interaction module 220 in the Specification to provide support for the limitation at issue. Appeal Br. 2 (citing Spec. ¶ 79). The cited paragraph describes that “the lock screen interaction module may provide the user with different tools by which to react to the incoming media information.” Spec. ¶ 79. The Specification further explains that “the lock screen interaction module 220 can cause the lock screen display to respond to the user’s input,” which can include an input causing format modification of the image including a zoom. Id. ¶ 78. Accordingly, in view of Appellant’s cited portion of the Specification, Appellant also fails to demonstrate error in the Examiner’s finding that Bandyopadhyay’s zoom operations performed above the lock screen teach or suggest “directly modifying, by a user of the mobile device, the received media information displayed above the lock screen,” as recited in claim 1. Next, Appellant argues for the first time that “claim 1 does not ‘merely’ require that the media information being displayed above the lock screen undergo a modification” but “[r]ather, claim 1 also requires sending the edited media information, above the lock screen, to another mobile device.” Reply Br. 7. According to Appellant, even if Bandyopadhyay’s zoom “functions may change how an image is viewed on the current mobile device, there is no teaching or suggestion by Bandyopadhyay that the zoomed view can be retained, let alone is capable of being sent to another mobile device above the lock screen.” Id. Appeal 2020-006046 Application 15/077,573 7 This argument is untimely. “Any argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner’s answer, . . . will not be considered by the Board for purposes of the present appeal, unless good cause is shown.” 37 C.F.R. § 41.41(b)(2). Here, Appellant raises this argument for the first time in the Reply Brief and Appellant has not shown that the argument is responsive to any particular finding or reasoning raised in the Answer. We, therefore, consider the argument waived because the Examiner has not been provided a chance to respond and Appellant has provided no such showing of good cause. Nevertheless, had we considered this improperly raised argument, it would not have altered our decision, because the Examiner relies on Lee rather than Bandyopadhyay to suggest “sending edited media information,” as discussed below, and therefore the argument is not responsive to the rejection. Ans. 9. See Nat’l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1336-37 (Fed. Cir. 2004) (rejecting argument directed at the wrong reference). Claim 1 further recites “sending the edited media information, above the lock screen, to another mobile device over the communications network.” Appeal Br. 22. Appellant argues “Lee does not teach sending edited media information above a locked screen.” Appeal Br. 12. According to Appellant, “Lee describes a method for constructing a so-called ‘lock screen message’ that is transmitted from a user’s transmission electronic device to the lock screen of a reception electronic device. Lee does not, however, disclose that the lock screen message is sent from above the lock screen.” Id. Appeal 2020-006046 Application 15/077,573 8 We are not persuaded by Appellant’s argument. The Examiner finds, and we agree, that Lee discloses entering a lock screen message transmission mode, provided above the lock screen of the user’s mobile device, in response to the user’s request, and “captures or selects content such as an image or a video taken by the user, or an image or video received via a network, and said user adds text and other information to that content, whereby the completed lock screen, with the modified content, is transmitted to another mobile device.” Non-Final Act. 7 (citing Lee ¶¶ 79-84 and Figs. 7, 8). In response to Appellant’s argument that Lee does not disclose that the lock screen message is sent from above the lock screen of the user’s transmission electronic device, the Examiner points out that Lee’s disclosure of a lock screen message in which a device transmits content, teaches or suggests sending the edited media information above the lock screen: Accordingly, an aspect of the present disclosure is to provide a method for displaying a lock screen and an electronic device thereof, in which a transmission electronic device transmits by a lock screen message various types of contents such as an image, a video, a text, and the like, through a network, and, when time for displaying a lock screen arrives, a reception electronic device displays, as the lock screen, the contents within the lock screen message.” Ans. 10 (citing Lee ¶ 8) (italics added). Appellant responds that “[t]he ‘lock screen’ discussed in Lee at ¶ 0008 clearly refers to the lock screen of the reception electronic device” because “[t]here is no discussion in the cited passage of the lock screen of the transmission electronic device, let alone any disclosure or teaching that Appeal 2020-006046 Application 15/077,573 9 the transmission electronic device transmits the lock screen message when the transmission electronic device is above a lock screen.” Reply Br. 8. This argument is unpersuasive because we find Lee’s disclosure of “a method for displaying a lock screen and an electronic device thereof, in which a transmission electronic device transmits by a lock screen message various types of contents” teaches sending the edited media information above the lock screen of the transmission electronic device. Ans. 10. Appellant next disputes the Examiner’s rationale for combining Bandyopadhyay’s teachings with those of Garcia’s. Appeal Br. 7. The Examiner relies on the combined teachings of Bandyopadhyay and Garcia to teach or suggest “providing interactive tools above the lock screen for editing the received media information displayed above the lock screen,” as recited in claim 1. Non-Final Act. 4-7. The Examiner determines that sufficient motivation existed to combine the teachings of the references. Id. at 6-7. In particular, the Examiner determines that in combining Bandyopadhyay’s teachings with those of Garcia’s: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Garcia with Bandyopadhyay by providing interactive tools above the lock screen for editing the received media information displayed above the lock screen . . . in order to improve the user experience by allowing the user to quickly access images. Non-Final Act. 11 (citing Bandyopadhyay ¶ 3). The Examiner further determines that “the image-capture functionality referenced in paragraph [0003] of Bandyopadhyay, which is the source of the rationale for modifying Garcia with Bandyopadhyay, encompasses the camera roll function that Appeal 2020-006046 Application 15/077,573 10 Bandyopadhyay describes in paragraphs [0010] and [0101]” and that camera roll function provides one example of allowing the user to quickly access images. Ans. 6. The Examiner adds that Bandyopadhyay “outlines functions that are available and that are not available in the ‘above-lock camera post- capture mode’, with the camera roll function, whereby the user views previously taken photos, being an available function in the ‘above-lock camera post-capture mode.’” Id. (citing Bandyopadhyay ¶ 101). Appellant argues the “Examiner mischaracterizes Bandyopadhyay in order to support the only stated rationale for modifying Garcia with Bandyopadhyay.” Reply Br. 2 (emphasis omitted). According to Appellant, the camera roll function referred to by the Examiner is not available above the lock screen because “Bandyopadhyay discusses the ‘camera roll’ functionality only in connection with a below lock screen mode.” Id. at 4. “At most, the only functions explicitly described in Bandyopadhyay, ¶ 0101 that may be available above the lock screen mode are, ‘functions to zoom in/out of the confirmation image, or view image properties such as the aperture or shutter speed used to capture the current image.’” Reply Br. 3. We agree with the Examiner’s finding that Bandyopadhyay contemplates using the camera roll feature above the lock screen. For example, in Bandyopadhyay’s “state 730, the mobile device is in an above- lock camera post-capture mode.” Bandyopadhyay ¶ 101. In discussing state 730, Bandyopadhyay adds that “[i]n some examples, the mobile device uses a ‘camera roll’ metaphor (e.g., displaying images in a strip similar to a traditional film camera).” Id. Although this discussion later refers to Figure 3B of Bandyopadhyay as an example of the camera roll feature, Appellant’s argument that Figure 3B “explicitly shows the mobile device below the lock Appeal 2020-006046 Application 15/077,573 11 screen” is unpersuasive because in the context of state 730, Bandyopadhyay does not expressly disclose that the camera roll feature may only be used below the lock screen but instead suggests the feature is available above the lock screen in this context. Reply Br. 3. For example, by stating “[i]n some examples, the camera roll ability is disabled in above-lock mode,” Bandyopadhyay implicitly contemplates that in other examples the camera roll ability is enabled in the above-lock mode. Bandyopadhyay ¶ 101. As additional motivation for combining Bandyopadhyay’s teachings with those of Garcia’s, the Examiner finds “Bandyopadhyay’s disclosure of zooming in on an image would allow a user to more quickly distinguish between similar photographs.” Ans. 6. Appellant argues that “nothing in Bandyopadhyay even suggests that the zoom-in tool allows for comparing of photographs.” Reply Br. 6. According to Appellant, “while Bandyopadhyay, ¶ 0101 describes ‘functions to zoom in/out of the confirmation image,’ there is no discussion in Bandyopadhyay of zooming in/out of any other image above the lock screen, nor is there any discussion of comparing the confirmation image to any other image.” Id. Appellant’s argument is unpersuasive. “[O]bviousness is not determined by what the references expressly state but by what they would reasonably suggest to one of ordinary skill in the art.” In re DeLisle, 406 F.2d 1386, 1389 (CCPA 1969). “A person of ordinary skill is also a person of ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Here, we agree with the Examiner a person of ordinary creativity would have appreciated that, in view of Bandyopadhyay’s camera roll, zooming in on an image would allow a user Appeal 2020-006046 Application 15/077,573 12 to more quickly distinguish between similar photographs. Furthermore, Appellant gives no reason why such adaptation would have been “uniquely challenging or difficult for one of ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 419). Accordingly, Appellant does not proffer sufficient evidence or argument to demonstrate error in the Examiner’s rationale for combining the teachings of Garcia and Bandyopadhyay. For the reasons discussed above, Appellant does not persuade us of error in the Examiner’s obviousness rejection of independent claim 1. We, therefore, sustain the Examiner’s rejection of that claim, as well as the rejection of independent claims 9 and 18 and dependent claims 2-5, 8, 10- 14, 16, 17, 19, and 21-23, which Appellant does not argue separately with particularity. Appeal Br. 13-20. CONCLUSION We affirm the Examiner’s decision to reject claims 1-5, 8-14, 16-19, and 21-23 under 35 U.S.C. § 103. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4 103 Garcia, Bandyopadhyay, Lee 1, 4 9, 12, 14, 18 103 Garcia, Bandyopadhyay 9, 12, 14, 18 Appeal 2020-006046 Application 15/077,573 13 2, 3 103 Garcia, Bandyopadhyay, Lee, Nieminen-Sundell 2, 3 5 103 Garcia, Bandyopadhyay, Lee, Barneson 5 8 103 Garcia, Bandyopadhyay, Lee, Simmons 8 10, 11, 19 103 Garcia, Bandyopadhyay, Nieminen-Sundell 10, 11, 19 13 103 Garcia, Bandyopadhyay, Barneson 13 16, 17 103 Garcia, Bandyopadhyay, Simmons 16, 17 21 103 Garcia, Bandyopadhyay, Lee, Kwon 21 22, 23 103 Garcia, Bandyopadhyay, Kwon 22, 23 Overall Outcome 1-5, 8-14, 16-19, 21-23 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