Fitbit, Inc.

Patent Trials and Appeals Board

Mar 10, 2022

2021000915 (P.T.A.B. Mar. 10, 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. 15/973,475 05/07/2018 Nicholas MYERS GGLF-21400CON18 7899 100462 7590 03/10/2022 Dority & Manning P.A. and Google LLC Post Office Box 1449 Greenville, SC 29602 EXAMINER AU, SCOTT D ART UNIT PAPER NUMBER 2624 NOTIFICATION DATE DELIVERY MODE 03/10/2022 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): usdocketing@dority-manning.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte NICHOLAS MYERS, CHRISTINE BRUMBACK, TIMOTHY ROBERTS, JAMES PARK, DAVE KNIGHT, SHELTEN YUEN, and JAYSON MESSENGER ____________ Appeal 2021-000915 Application 15/973,475 Technology Center 2600 ____________ Before JOSEPH L. DIXON, JOHN A. JEFFERY, and LARRY J. HUME, Administrative Patent Judges. JEFFERY, Administrative Patent Judge. DECISION ON APPEAL Under 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 2-21. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE and enter new grounds of rejection. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Fitbit, Inc., a subsidiary of Google LLC, which is a subsidiary of XXVI Holdings Inc. Supplemental Appeal Brief filed Jan. 27, 2021, at 3. Appeal 2021-000915 Application 15/973,475 2 STATEMENT OF THE CASE Appellant’s invention enables users to navigate metrics displayed on a device’s screen in a scroll order responsive to sensed physical contact with the device. See generally Abstract. Claim 2 is illustrative: 2. A method, comprising: receiving sensor data from one or more motion sensors of a device having a screen; determining that first sensor data of the sensor data corresponds to a first physical contact with the device; determining, based at least on the first sensor data, that the first physical contact qualifies as a first type of input; causing, in response to determining that the first physical contact qualifies as the first type of input, the screen of the device to display a first metric maintained by the device; determining, based at least on second sensor data of the sensor data that corresponds to a second physical contact with the device and that is received subsequent to the first physical contact, that the second physical contact qualifies as a second type of input; and causing, in response to determining that the second physical contact qualifies as the second type of input, the screen of the device to display a second metric maintained by the device, wherein the second metric replaces the first metric on the screen of the device. Appeal 2021-000915 Application 15/973,475 3 THE REJECTIONS The Examiner rejected claims 2-10, 12, 14-19, and 21 under 35 U.S.C. § 103 as unpatentable over Powch (US 2012/0015779 A1; published Jan. 19, 2012) and Fattah (US 2009/0085865 A1; published Apr. 2, 2009). Ans. 3-10.2 The Examiner rejected claims 11 and 13 under 35 U.S.C. § 103 as unpatentable over Powch, Fattah, and Mault (2001/0049470 A1; published Dec. 6, 2001). Ans. 10-11. The Examiner rejected claim 20 under 35 U.S.C. § 103 as unpatentable over Powch, Fattah, and Nasiri (US 2009/0184849 A1; published July 23, 2009). Ans. 11-12. PROCEDURAL MATTER Before addressing the merits of this appeal, we first address a procedural matter involving Appellant’s briefs. On June 27, 2020, Appellant filed an Appeal Brief. After the Examiner’s Answer mailed on September 22, 2020, Appellant filed a Reply Brief on November 17, 2020. On January 27, 2021, however, Appellant filed a Supplemental Appeal Brief which, according to its accompanying transmittal letter, updates the Appeal Brief’s Real Party In Interest section. Although we acknowledge this notice of the change to the real party in interest, such a notice is not a license to amend the Appeal Brief, let alone supplement or replace the Appeal Brief (or Reply Brief) as was apparently intended here. We emphasize this point because jurisdiction in this 2 Throughout this opinion, we refer to (1) the Appeal Brief filed June 27, 2020 (“Appeal Br.”); (2) the Examiner’s Answer mailed September 22, 2020 (“Ans.”); and (3) the Reply Brief filed November 17, 2020 (“Reply Br.”). Appeal 2021-000915 Application 15/973,475 4 proceeding passed to the Board when the Reply Brief was filed on November 17, 2020. See 37 C.F.R. § 41.35(a) (“Jurisdiction over the [appeal] proceeding passes to the Board upon filing of a reply brief . . . or the expiration of the time to which to file such a reply brief, whichever is earlier.”). Therefore, any amendments filed on or after the Reply Brief’s filing date-including post-Reply Brief supplements to the Appeal Brief as were filed here-are not considered, much less entered, unless the Board remands the case to the Examiner for that purpose-a remand that did not happen here. See Manual of Patent Examining Procedure (MPEP) § 1210(I) (9th ed. rev. 10.2019 June 2020) (“Any amendment or other paper relating to the appeal filed [after jurisdiction passes from the Technology Centers to the Board], but prior to the decision of the Board, may be considered by the examiner only in the event the case is remanded for that purpose.”) (emphasis added). That is, on appeal, Appellant is entitled to file a single Reply Brief: no amendments or evidence filed either concurrently with, or after, the Reply Brief are considered unless the case is remanded to the Examiner to consider and enter such amendments or evidence. See 37 C.F.R. § 41.41(a) (“Appellant may file only a single reply brief to an examiner’s answer. . . .”) (emphasis added); see also 37 C.F.R. § 41.41(b)(1) (“A reply brief shall not include any new or non-admitted amendment, or any new or non-admitted affidavit or other Evidence.”); MPEP § 1210(I). Therefore, because Appellant’s Supplemental Appeal Brief was filed after the Reply Brief, and was not entered in accordance with the above procedure, we do not consider it here. Although we acknowledge the Appeal 2021-000915 Application 15/973,475 5 change in the real party in interest in connection with the Supplemental Appeal Brief, we otherwise refer solely to Appellant’s Appeal Brief filed on June 27, 2020 and Reply Brief filed on November 17, 2020 in connection with Appellant’s briefing on appeal. THE OBVIOUSNESS REJECTION OVER POWCH AND FATTAH Regarding independent claim 1, the Examiner finds that Powch discloses (1) receiving sensor data from one or more motion sensors of a device with a screen; (2) determining that first sensor data corresponds to a first physical contact with the device; and (3) responsive to an input, causing the device’s screen to display a first metric maintained by the device. Ans. 3-4. Although the Examiner acknowledges that Powch does not (1) determine that the first physical contact qualifies as a first type of input; (2) determine that a second physical contact qualifies as a second type of input based on second sensor data corresponding to a second physical contact with the device and received after the first physical contact; and (3) responsive this determination, cause the screen to display a second display that replaces the first display on the screen, the Examiner cites Fattah for teaching these features in concluding that the claim would have been obvious. Ans. 5-6. Appellant argues that Powch does not determine sensor data corresponding to physical contact consistent with the Specification’s usage of the term “contact” that refers to tapping, sliding, rubbing, and gestures. Appeal Br. 10-11. These contact-based inputs are said to be distinguished in the Specification from “noncontact input” that includes Powch’s keyboard, scroll ball, and touchscreen inputs. Appeal Br. 11. Appellant adds that Powch does not display metrics as claimed, but rather workout listings and associated icons. Appeal Br. 12-13; Reply Br. 5. Appeal 2021-000915 Application 15/973,475 6 Appellant also argues that the Examiner’s reliance on Fattah is also misplaced because Fattah’s system that allows users to navigate through menus by moving a cursor or selecting menu options responsive to identified taps is not shown to display metrics, much less replace one displayed metric with another as claimed. Appeal Br. 14-15; Reply Br. 5-6. Appellant adds that the Examiner’s rationale to modify Powch in light of Fattah, namely to allow the device to tap in relatively quick succession to improve interaction speed, is deficient and based on a vague, illogical-and indeed false- statement in Fattah. Appeal Br. 15-18; Reply Br. 6. ISSUE Under § 103, has the Examiner erred in rejecting claim 2 by finding that Powch and Fattah collectively would have taught or suggested (1) receiving sensor data from one or more motion sensors of a device with a screen; (2) determining that first sensor data corresponds to a first physical contact with the device; and (3) responsive to determining that the first physical contact qualifies as a first type of input, causing the device’s screen to display a first metric maintained by the device? ANALYSIS As noted above, claim 2 recites, in pertinent part, determining that first received sensor data corresponds to a first physical contact with a device having a screen. According to the Specification, user interface 114, shown in Figure 1A, provides a way to communicate with activity tracking device 100 responsive to user interaction 104 that can be in the form of (1) physical contact (e.g., without limitation, tapping, sliding, rubbing, multiple taps, gestures, etc.); or (2) “noncontact input” via proximity sensors, button Appeal 2021-000915 Application 15/973,475 7 presses, touch sensitive screen inputs, graphical user interface inputs, voice inputs, sound inputs, etc. Spec. ¶¶ 48-49. Notably, not only are both these types of inputs characterized with open-ended and non-limiting lists of examples as emphasized above, at least some of the “noncontact input” examples actually involve physical contact-including the user touching a touch-sensitive screen. See id. Indeed, given this somewhat ambiguous description, it is difficult to distinguish between a user (1) touching a touch-sensitive screen to constitute “noncontact input,” and (2) a user tapping that screen to constitute input based on physical contact under this description-the latter input type that is said to differ from “noncontact input” that, according to Appellant, excludes “conventional” input means despite involving a physical touch. See Appeal Br. 11. To the extent Appellant contends there is a clear distinction between a user touching a touch-sensitive screen and tapping that screen such that these actions are different types of inputs, namely physical contact inputs and “noncontact input,” respectively, consistent with their description in the Specification’s paragraphs 48 and 49, such a subtle distinction-if it exists at all-is frankly difficult to envision. Nevertheless, to the extent a screen tap differs from a screen touch in terms of impact force, duration, or some other parameter, such a distinction has not been articulated on this record, much less specified with particularity to clarify the distinction, if any, between these two screen-touch-based inputs despite their different classifications. Therefore, to the extent Appellant contends that Powch’s touch screen that an athlete uses to interact directly with what is displayed as noted in paragraphs 144 and 177 somehow is not an input that corresponds to Appeal 2021-000915 Application 15/973,475 8 physical contact with the device as claimed (see Appeal Br. 11), we disagree. But we cannot say-nor has the Examiner shown-that the sensor data received in connection with Powch’s capacitive or resistive touch screen is from a motion sensor as claimed. Notably, neither the Examiner’s rejection nor the Examiner’s response to arguments in the Answer identifies a motion sensor in Powch, much less one that provides contact-based sensor data as claimed. See Ans. 3-6. To the extent the Examiner finds that Powch’s touch screen somehow uses a motion sensor in connection with physical-contact-based input, or that using such a sensor connection with this input would have been an obvious variation, no such findings or conclusions have been articulated on this record. Nor will we speculate in that regard here in the first instance on appeal. Nor does Examiner acknowledge Appellant’s challenge in this regard, including Appellant’s arguments regarding the accelerometer-based motion sensor described in Powch’s paragraphs 397 to 406 that, unlike the motion sensor of the claimed invention, is used to determine the wearer’s speed or movement changes in connection with a monitored activity-not physical- contact-based input. See Appeal Br. 11-12; Ans. 12-15. Instead, in responding to Appellant’s arguments, the Examiner merely repeats the findings in the rejection and summarily concludes that the cited references teach the disputed limitations. See Ans. 12-14. Such repetition, with no further analysis or explanation, hardly suffices to respond persuasively to Appellant’s specific arguments in this regard, particularly where, as here, the Examiner does not squarely address-much less Appeal 2021-000915 Application 15/973,475 9 persuasively rebut-those arguments. The Examiner’s rejection is, therefore, erroneous for that reason alone. The Examiner’s reliance on Powch is also problematic for another reason. In the rejection, the Examiner finds that Powch’s system causes the device’s screen, shown in Figure 22B, to display a first metric maintained by the device responsive to an input. Ans. 4. According to the Examiner, Powch’s Figure 22B “is in metric form”-a vague characterization repeated in the Answer’s response to arguments section without further explanation or clarification. See Ans. 4, 13. But as Appellant indicates (Appeal Br. 12-13; Reply Br. 5), Powch’s displayed workout listings and associated icon-based indicators 1102 are not metrics. Although the Specification does not define the term “metrics,” it nevertheless explains that some motions will produce and quantify various types of metrics, such as step count, stairs climbed, distance traveled, very active minutes, calories burned, etc. Spec. ¶ 56. Although this description with its non-limiting examples informs our understanding of the recited “metrics,” the term’s interpretation is not limited to that particular description; nor will we import that description into the claim. See Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc) (“[A]lthough the specification often describes very specific embodiments of the invention, we have repeatedly warned against confining the claims to those embodiments. . . . [C]laims may embrace different subject matter than is illustrated in the specific embodiments in the specification.”) (citations and internal quotation marks omitted). We, therefore, construe the term “metric” with its plain meaning consistent with its usage in the Specification. The term “metrics” is defined, Appeal 2021-000915 Application 15/973,475 10 in pertinent part, as “the theory of measurement.” THE WORDSWORTH CONCISE ENGLISH DICTIONARY 606 (G.W. Davidson et al. eds. 1994). That same dictionary also defines the adjective form of “metric” as “quantitative,” and the related term “metrical” as “pertaining to measurement.” Id. Given these definitions, and consistent with its usage in the Specification, we therefore construe the term “metric” under its broadest reasonable interpretation as a displayable quantity or representation that pertains to measurement. Given this interpretation, we fail to see-nor has the Examiner shown-how the displayed available plan and custom workouts and associated indicators 1102 reasonably constitute “metrics,” namely displayable quantities or representations that pertain to measurement. Although Powch’s paragraph 189 notes that indicators 1102 indicate that a particular workout is to be performed today-one particular day of a seven- day week or 365-day year-to suggest that this temporal indication somehow pertains to measurement to be a “metric,” such an interpretation strains reasonable limits on this record given the term’s plain meaning. The Examiner’s reliance on Powch is therefore erroneous on this record. Although we find that Fattah at least suggests many of the recited limitation of claim 2 as noted in our new ground of rejection below, the Examiner has not shown that Fattah cures Powch’s deficiencies noted above in connection with the Examiner’s obviousness rejection. In short, the Examiner’s obviousness rejection, while relying on a reference that, when considered in light of other prior art, renders the claims obvious for the reasons noted below, is nonetheless untenable on this record given its problematic articulation and the Examiner’s failure to respond Appeal 2021-000915 Application 15/973,475 11 adequately to Appellant’s specific challenges to the Examiner’s erroneous findings and conclusions in connection with the rejection. Therefore, we are persuaded that the Examiner erred in rejecting (1) independent claim 2; (2) independent claims 12 and 21 that recite commensurate limitations; and (3) dependent claims 3-10 and 14-19 for similar reasons. Because this issue is dispositive regarding our reversing the Examiner’s rejection of these claims, we need not address Appellant’s other associated arguments. THE OTHER OBVIOUSNESS REJECTIONS Because the Examiner has not shown that the additional cited prior art cures the foregoing deficiencies regarding the rejection of the independent claims, we do not sustain the obviousness rejections of dependent claims 11, 13, and 20 (Ans. 10-12) for similar reasons. NEW GROUND OF REJECTION OVER FATTAH AND BRUMM We newly reject claims 2-8, 11-14, and 16-21 under 35 U.S.C. § 103(a) as obvious over Fattah and John Brumm, Crunching the Numbers. SCUBA DIVING (Oct. 2006), available at https://www.scubadiving.com/gear/ accessories/crunching-numbers (“Brumm”).3 Fattah discloses a microcontroller 25 that receives sensor data from one or more motion sensors, namely accelerometer 24, of a device 20 having a screen associated with display 30. See Fattah ¶¶ 18, 20. Fattah’s system also determines that first sensor data, namely data corresponding to certain x, y, and z accelerometer signals, corresponds to a first physical contact with 3 Although the Brumm reference is an unpaginated web page, page numbers are nonetheless added for ease of reference. Appeal 2021-000915 Application 15/973,475 12 the device, namely a tap in a particular direction and/or a particular tap sequence. See Fattah ¶¶ 25-26, 47-49; see also id. ¶¶ 28-42 (detailing directional tap detection techniques using accelerometer signals). Fattah’s system also determines, based on at least the first sensor data, that the first physical contact qualifies as a first type of input, namely a tap in a certain direction. See Fattah ¶ 18 (noting that the microcontroller (1) receives signals from the acceleration sensor responsive to user interaction in the form of a tap, and (2) determines the tap’s type); see also id. ¶¶ 25-26. Fattah’s system also causes, responsive to determining that the first physical contact qualifies as a first type of input, namely a tap in a certain direction and/or a certain tap sequence, the device’s screen to display first content, such as the menu screen in Figure 7 with the term “Options” highlighted on that menu. See Fattah ¶ 49 (noting that the menu of Figure 7 is displayed after “waking up” the device from a low-power state by, for example, tapping the device with three or five consecutive taps in the -Y direction). Fattah’s system also determines, based at least on second sensor data (data corresponding to certain x, y, and z accelerometer signals) of the sensor data corresponding to a second physical contact with the device (taps in a certain direction and/or a particular tap sequence) and that is received after the first physical contact, that the second physical contact qualifies as a second type of input, namely a tap in a certain direction and/or a particular tap sequence. See Fattah ¶¶ 25-26 (noting that the user can transition from the standard mode to menu mode with a specific tap sequence); see also id. ¶ 50 (noting that (1) when the user taps the device in the -Y direction, the Appeal 2021-000915 Application 15/973,475 13 cursor moves from the menu item in Figure 7 to the menu item shown in Figure 8, and (2) if user now taps the device in the +Y direction, the cursor then moves back up to the position shown in Figure 7). Fattah’s system also causes, responsive to determining that the second physical contact qualifies as a second type of input, namely a tap in a certain direction, the device’s screen to display second content maintained by the device, such as the menu screen in Figure 8 with the term “Dive Log” highlighted on that menu, where the second content replaces the first content on the device’s screen, at least with respect to the screens’ respective highlighted areas. See Fattah ¶ 50 (noting that when the user taps the device in the -Y direction, the cursor moves from the menu item in Figure 7 to the menu item shown in Figure 8). That is, responsive to a second type of input, namely a tap in a certain direction, the content displayed on the device’s screen in Fattah’s Figure 8 replaces the content displayed on the screen in Figure 7, at least with respect to the screens’ respective highlighted areas. See Fattah ¶ 50. Fattah further teaches replacing displayed content by selecting the highlighted “Options” menu item in Figure 7, where this selection displays the “Options” sub-menu in Figure 9. See Fattah ¶ 50 (noting that if a user taps the device in the +X or -X direction, the active menu item is selected causing the device to enter a related sub-menu, such as the “Options” sub- menu in Figure 9). That is, responsive to a second type of input, namely a tap in a certain direction, the content displayed on the device’s screen in Fattah’s Figure 9, namely the displayed sub-menu, replaces the content displayed on the device’s screen in Figure 7. See Fattah ¶ 50. Appeal 2021-000915 Application 15/973,475 14 Although this particular content that is replaced in Fattah pertains to menus displayed on a screen, Fattah nonetheless teaches displaying metric- based content responsive to determining that the user’s physical contact with the device qualifies as a particular type of input, namely a tap in a certain direction. In Fattah’s paragraph 47, upon detecting a tap in a certain direction, the microcontroller (1) reads pressure information from a pressure sensor; (2) calculates a diver’s depth; (3) calculates dive time; and (4) displays the depth and dive time on display 30 visible to the user. That is, Fattah’s system causes the device’s screen to display metrics, namely depth and dive time, maintained by the device responsive to detecting a tap in a certain direction. See Fattah ¶ 47. Notably, both depth and dive time are “metrics,” namely displayable quantities or representations that pertain to measurement, consistent with our interpretation of the term noted previously. Despite indicating that depth and dive are displayed on display 30 in paragraph 47, Fattah does not say whether these two metrics are displayed together on one screen or, alternatively, displayed on different screens. Nor does Fattah show these displayed metrics in the figures, unlike the displayed content in the exemplary screen shots in Figures 7 to 9. See Fattah ¶ 14 (noting that the screen shots in Figures 7 to 9 are exemplary). Nor does Fattah say whether the metrics listed in paragraph 17 that the device monitors in combination, namely (1) depth; (2) time underwater; (3) distance traveled; (4) current position; (5) water temperature; (6) communication information4; (7) directional heading; (8) acoustic or visual 4 Although Fattah does not further specify this “communication information,” the term nonetheless encompasses associated metrics, such as Appeal 2021-000915 Application 15/973,475 15 alarms5; and (9) “other information”6 are displayed together on one screen or, alternatively, displayed on different screens. Nevertheless, it is clear from Fattah’s paragraph 47 that two metrics, namely depth and dive time, are displayed responsive to detecting a tap in a certain direction. Given the display of at least these two metrics, and assuming, without deciding, that they are displayed together on a single screen, displaying them on separate screens would have been at least an obvious variation to ordinarily skilled artisans, namely those having an electrical engineering degree and several years of related industry experience as evidenced by the cited references’ technical subject matter. See In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995). First, because Fattah’s device can be worn on the user’s wrist, the device’s screen is relatively small-indeed considerably smaller than that of its surrounding housing 34 as shown in Fattah’s Figures 2, 3, and 7 to 9. See signal strength or level, noise level, etc. See Steven M. Kaplan, WILEY ELECTRICAL & ELECTRONICS ENGINEERING DICTIONARY 708 (2004) (defining “signal level” as “[t]he strength of a signal at a given point or moment, relative to a reference such as a baseline.”); see also id. (defining the term “signal meter” as “[a]n instrument or device which measures and indicates signal levels”) (bolding omitted); id. at 508 (defining “noise level” as “[t]he amplitude, degree, or intensity of a noise signal”); id. at 509 (defining “noise meter” as “[a]n instrument which measures noise levels”) (bolding omitted). 5 Although Fattah does not further specify these alarms, they nonetheless are “metrics” consistent with Appellant’s usage of the term. See Spec. ¶ 80 (referring to “alarm metric” 322 in Figure 3E). 6 Although Fattah does not further specify this “other information,” it nonetheless encompasses a wide variety of information of interest to a diver, including associated metrics. These metrics could include, for example, the amount of air available to the diver, the estimated time the diver can remain underwater given the amount of available air, pressure measurements, etc. Appeal 2021-000915 Application 15/973,475 16 Fattah ¶¶ 23, 25. Although it is plausible that the two displayed metrics in Fattah’s paragraph 47 are shown together on the same screen, particularly given the six different items of content displayed on the same screen in Figures 7 to 9, displaying each metric on a different screen would, among other things, enable each metric to be displayed larger and, therefore, seen more easily-a useful function given the device’s small screen. Such a feature would be particularly useful when displaying the nine different metrics that are monitored in combination in Fattah’s paragraph 17. That Brumm notes on page 7 that divers have complained that displaying too many numbers on a dive computer screen was confusing to them only underscores that displaying fewer metrics on a given screen in Fattah would have been at least an obvious variation. Doing so would not only enable metrics to be displayed larger, but also reduce the number of simultaneously displayed metrics, thus reducing confusion, at least to some divers. See Brumm at 7 (noting that divers complained about too many numbers creating a confusing screen on a dive computer); see also id. (quoting one diver as saying “I look at this display and think, ‘where the heck am I?’ I’ve got nine numbers to deal with here.’”); see also id. (quoting another diver who said about the same product that “I can’t tell which number is which. How deep am I? Is it the large number or the teensy number? I can’t tell.”). Displaying dive-related metrics on different screens, however, ensures that each screen is uncluttered and easy to read. See Brumm at 8; see also id. at 14 (describing a dive computer with “large uncluttered screens with big bold data digits that are easy to read under water”). To illustrate this point, Brumm explains that the GENESIS React Pro dive computer has three data screens in dive mode, namely (1) a main Appeal 2021-000915 Application 15/973,475 17 screen; (3) a first alternate screen; and (3) a second alternate screen. Id. Notably, each screen displays different metrics. Id. The main screen displays dive time remaining and current depth. Id. The first alternate screen displays bottom time, maximum depth, and oxygen data. Id. The second alternate screen, however, displays different metrics, including water temperature and nitrox data. Id. To be sure, Brumm acknowledges that a disadvantage of this multi- screen metrics display is that the user must switch screens more than they would like to access basic dive data. Id. Nevertheless, “[i]n spite of this screen shuffle, test divers felt it was easy to follow the data trail.” Id. Given thus multi-screen metrics display functionality, it would have been obvious to ordinarily skilled artisans to display at least some of the metrics that Fattah’s device monitors in combination, including those in Fattah’s paragraphs 17 and 47, on different screens to ensure that each screen is uncluttered and easy to read. Notably, switching between screens to display different metrics as Brumm describes effectively replaces one metric with another on the screen. See Brumm at 8; see also id. at 9 (“In dive mode there are two screens: the main screen shows NDLs [no-decompression limits] and current depth; push the button and you get bottom time and max depth.”). Thus, displaying Fattah’s metrics in paragraphs 17 and 47, at least some of which are displayed responsive to detecting a tap in a certain direction as noted in Fattah’s paragraph 47, on different screens as taught by Brumm would effectively replace one metric with another on the screen responsive to a tap in a certain direction. Appeal 2021-000915 Application 15/973,475 18 Therefore, in light of Brumm, and given Fattah’s displaying different screens responsive to detecting particular types of input corresponding to physical contact with the device, namely a tap in a particular direction and/or a particular tap sequence, it would have been obvious to ordinarily skilled artisans to cause, responsive to determining that the second physical contact qualifies as a second type of input, namely a tap in a certain direction and/or tap sequence, the second metric to replace the first metric on Fattah’s device screen, as claimed. Doing so would enable Fattah’s metrics to be displayed on different screens. This multi-screen display would not only enable the metrics to be displayed larger, but also ensure they are displayed on screens that are uncluttered and easy to read, thus avoiding confusion. See Brumm at 7 (noting divers’ complaints that too many numbers on a screen caused confusion); see also id. at 14 (describing a dive computer with “large uncluttered screens with big bold data digits that are easy to read under water”). Therefore, for the above reasons, we reject independent claim 2, and independent claims 12 and 21 that recite commensurate limitations, as obvious over the combination of Fattah and Brumm. Regarding claim 3, Fattah at least suggests the recited motion-profile- based determination of whether one or more sensor data portions qualify as an input to be used to control (1) the device or (2) activity data to be used to update one of the metrics maintained by the device. Even assuming, without deciding, that the values of Fattah’s depth and dive time metrics are updated based solely on pressure sensor data as Appellant seems to suggest (see Appeal Br. 20; Reply Br. 7), the display of those metrics would nonetheless be updated based on the sensor data’s motion profile, namely that associated Appeal 2021-000915 Application 15/973,475 19 with the accelerometer, responsive to the user tapping the device in different directions as noted previously. Appellant’s arguments are, therefore, unavailing and not commensurate with the scope of the claim. Regarding claim 4, displaying only one metric at a time as claimed in Fattah would have been an obvious variation to ordinarily skilled artisans for the reasons noted previously in connection with claim 2. Regarding claim 5, causing the screen to transition from displaying the first metric to the second metric in a specific direction in Fattah would have been at least an obvious variation to ordinarily skilled artisans for the reasons noted previously. Moreover, the particular screen transition direction in Fattah depends on the particular order of a user’s taps in a certain direction-a particular sequence that depends on the user’s preferences and, therefore, would have been an obvious variation. Regarding claims 6 and 13, Fattah at least suggests a smartwatch and wrist-attachable structure, particularly given the device’s (1) wrist-mounted configuration that resembles a watch as shown in Figures 1 and 7 to 9; (2) “smart” electronic capabilities provided via microprocessor 22 and microcontroller 26; and (3) ability to display time. See Fattah ¶¶ 17-20, 25, 34-35, 47; Figs. 1, 7, 9. Regarding claim 7, Brumm at least suggests arranging displayed metrics in scroll order, where the display of one set of metrics immediately follows the display of another. See Brumm at 9 (“In dive mode there are two screens: the main screen shows NDLs [no-decompression limits] and current depth; push the button and you get bottom time and max depth.”) (emphasis added). Appeal 2021-000915 Application 15/973,475 20 That is, displaying bottom time and maximum depth on one screen immediately after displaying NDLs and current depth on another screen in Brumm effectively arranges the respective sets of metrics in scroll order, where the display of one set of metrics immediately follows the other. Because these two sets of metrics are displayed on two different screens, respectively, by pressing a button as Brumm explains on page 9, their display is effectively toggled responsive to user input, thus establishing a scroll order. Therefore, arranging Fattah’s first and second metrics in a scroll order, where the second metric immediately follows the first metric in that order as suggested by Brumm, would have been obvious to ordinarily skilled artisans to establish a predictable metric display sequence. In addition to this scroll order that Brumm describes in connection with the GENESIS Resource Pro on page 9, Brumm on page 8 labels the GENESIS React Pro’s three data screens as a main screen, first alternate screen, and second alternate screen, respectively. This labeling, which suggests their relative order (i.e., main, first alternate, and second alternate), at least suggests displaying these screens in that particular order (i.e., display the metrics on the main screen first, then the first alternate screen and its metrics, then the second alternate screen and its metrics, then return to the main screen) would have been at least an obvious variation to ordinarily skilled artisans. This additional teaching further suggests displaying the metrics in the recited scroll order, or that doing so would have been at least an obvious variation to ordinarily skilled artisans. Regarding claim 8, Fattah and Brumm collectively at least suggest for each subsequent physical contact that produces sensor data that qualifies as Appeal 2021-000915 Application 15/973,475 21 the second type of input to the device, causing a next metric in the scroll order to be displayed on the screen. See Brumm at 9 (“In dive mode there are two screens: the main screen shows NDLs [no-decompression limits] and current depth; push the button and you get bottom time and max depth.”) (emphasis added). That is, displaying bottom time and maximum depth on one screen immediately after displaying NDLs and current depth on another screen in Brumm effectively arranges the respective sets of metrics in scroll order, where the display of one set of metrics immediately follows the other. Because these two sets of metrics are displayed on two different screens, respectively, by pressing a button as Brumm explains on page 9, their display is effectively toggled responsive to user input, thus establishing a scroll order. Therefore, when this functionality is considered in light of Fattah, who, as noted previously, teaches determining whether sensor data associated with physical contact qualifies as a second type of input, namely a tap in a certain direction and/or a particular tap sequence, causing a next metric to be displayed in the scroll order responsive to that second type of input would have been obvious to ordinarily skilled artisans to establish a predictable metric display sequence responsive to a tap in a certain direction and/or a particular tap sequence. Regarding claims 11 and 16, Fattah at least suggests the recited metrics, including recited time and activity metrics in claim 11. In paragraph 17, for example, Fattah lists various metrics that the device can monitor in combination, including (1) time underwater, and (2) distance traveled. The first metric is a time metric, namely time underwater. The Appeal 2021-000915 Application 15/973,475 22 second metric, distance traveled, is not only one of the metrics recited in claim 16, but it also at least suggests its indication of associated activity data, namely data associated with the diver traveling underwater, that is captured over time to determine distance traveled during a given time period. That Fattah’s metrics listed in paragraph 17 are not limited to those specifically listed, but can include, quite broadly, “other information” only underscores that the recited time and activity metrics would have been at least an obvious variation to ordinarily skilled artisans. Also, regarding claim 11, Brumm’s page 8 discloses (1) a time metric, namely dive time remaining; and (2) an activity metric, namely bottom time, which reflects activity data captured over time. Regarding claims 17 and 18, both recited types of input associated with the detected physical contact in Fattah noted previously are the same in one respect in that they are taps, but differ in another respect, namely the direction of those taps. Regarding claim 19, Fattah at least suggests the recited single- and double-tap input. In paragraph 26, for example, the device can transition between operating modes and their respective displays merely tapping the housing in a particular sequence, for example, three taps in one direction. Moreover, as noted in paragraph 49, the user can wake up the device from a low-power state with three or five consecutive taps in a given direction. Given Fattah’s use of tap sequences to effect particular functions, and that any suitable number of taps can be set by the user in paragraph 49, using single and double taps for different inputs as claimed would have been at least an obvious variation to ordinarily skilled artisans. Appeal 2021-000915 Application 15/973,475 23 Regarding claim 20, Fattah at least suggests (1) deactivating the screen after the second physical contact, and (2) responsive to detecting another input to the device after that deactivation, reactivating the screen such that the first metric is displayed again on the screen. As noted in Fattah’s paragraph 48 and Figure 10, when the device is in a low-power or “sleep” mode, it can be “woken up” by merely tapping the device in a particular sequence. The device then powers up to provide a display, such as that shown in Figure 7. Fattah ¶ 48. Although the device is activated from “sleep” mode to display content on a screen responsive to detecting an input to the device, namely a particular number of taps, Fattah does not state explicitly that the device previously entered the “sleep” mode and deactivated its screen after the second physical contact, namely a tap in a certain direction, and its resulting display of a second metric. In other words, Fattah does not state explicitly that, after the user’s second physical contact that resulted in displaying the second metric on the screen, the device entered the “sleep” mode and deactivated the screen. Nevertheless, such functionality would have been obvious, particularly given the understood meaning of “sleep mode” in the art, namely “[a] power management mode that shuts down all unnecessary computer operations after it has received no input or other activity for a specified period of time.” MICROSOFT COMPUTER DICTIONARY 484 (5th ed. 2002). Given (1) this power management function of a “sleep” mode; (2) Fattah’s describing the device’s “sleep” mode as a low-power mode; and (3) Fattah’s device being powered up from this “sleep” mode to provide a display in paragraph 48, it would have been obvious to deactivate Fattah’s Appeal 2021-000915 Application 15/973,475 24 screen after the second physical contact and its resulting second metric display by entering the “sleep” mode to conserve power. It would have also been obvious to later reactivate this screen upon receiving another input as claimed to leave the “sleep” mode and power up the device as noted in Fattah’s paragraphs 48 and 49 and Figure 10 to display the screen only when needed, thus conserving power. For the reasons noted above, we newly reject claims 2-8, 11-14, and 16-21 as obvious over Fattah and Brumm. Although we decline to reject all claims here, no inference should be drawn from our declining to exercise our discretion in that regard. See MPEP § 1213.02 (“[S]ince the exercise of authority under 37 C.F.R. 41.50(b) is discretionary, no inference should be drawn from a failure to exercise that discretion.”). Rather, we merely leave the patentability determination of the remaining claims to the Examiner. ADDITIONAL RELEVANT PRIOR ART In addition to the newly-cited Brumm reference, we also make of record the patent to Lyons, U.S. Patent 7,778,118 B2, entitled Watch Device Having Touch-Bezel User Interface. Although we do not cite Lyons here in a new ground of rejection due to our reliance on other prior art, we nonetheless find Lyons is highly relevant to the claimed invention. Therefore, should prosecution reopen after this decision, the Examiner should also consider the disclosure of Lyons, including that shown in Figure 8 and discussed in column 7, both alone and in conjunction with the other cited prior art, in determining patentability of the claimed invention. Appeal 2021-000915 Application 15/973,475 25 CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s) /Basis Affirmed Reversed New Ground 2-10, 12, 14-19, 21 103 Powch, Fattah 2-10, 12, 14-19, 21 11, 13 103 Powch, Fattah, Mault 11, 13 20 103 Powch, Fattah, Nasiri 20 2-8, 11- 14, 16- 21 103 Fattah, Brumm 2-8, 11- 14, 16-21 Overall Outcome 2-21 2-8, 11- 14, 16-21 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)(1)(iv) (2019). See 37 C.F.R. § 41.50(f) This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to Appeal 2021-000915 Application 15/973,475 26 the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. REVERSED; 37 C.F.R. § 41.50(b)