Ex Parte Wilson et alDownload PDFPatent Trial and Appeal BoardJan 26, 201812819238 (P.T.A.B. Jan. 26, 2018) 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. 12/819,238 06/21/2010 Andrew D. Wilson 329346-US-NP 9658 69316 7590 01/30/2018 MICROSOFT CORPORATION ONE MICROSOFT WAY REDMOND, WA 98052 EXAMINER AN, SHAWN S ART UNIT PAPER NUMBER 2483 NOTIFICATION DATE DELIVERY MODE 01/30/2018 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): u sdocket @ micro soft .com chriochs @microsoft.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANDREW D. WILSON and STEVEN BATHICHE Appeal 2017-003751 Application 12/819,238 Technology Center 2400 Before ALLEN R. MacDONALD, JOSEPH P. LENTIVECH, and MICHAEL J. ENGLE, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL Appeal 2017-003751 Application 12/819,238 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-9, 32-38, and 43^15. Claim 39 is objected to as dependent upon a rejected base claim but allowable if rewritten in independent form. Final Act. 11. Claims 10-31 and 40^12 have been cancelled. App. Br. 14-15. We have jurisdiction over the rejected claims under 35 U.S.C. § 6(b). Representative Claim Representative claim 1 under appeal reads as follows (emphasis and formatting added): 1. A multi-view display comprising: multiple light sources configured to generate light; a parallax barrier or lenslet configured to direct the light to different directions depending on which of the multiple light sources are illuminated; and a scheduling algorithm configured to direct the light to different viewing angles by selectively illuminating different light sources behind the parallax barrier or lenslet in different time slices, wherein the different viewing angles correspond to different views, wherein the different views include a first view that is directed to a first viewing angle by illuminating a first light source behind the parallax barrier or lenslet during a first time slice and a second view that is directed to a second viewing angle by illuminating a second light source behind the parallax barrier or lenslet during a second time slice, wherein the first viewing angle is different than the second viewing angle. 2 Appeal 2017-003751 Application 12/819,238 Rejections on Appeal The Examiner rejects claims 1, 2, 5-8, 32, and 43^45 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Huang et al. (US 2008/0316378 Al; published Dec. 25, 2008), Ju et al. (US 2010/0164861 Al; published July 1, 2010), and Appellants’ Admitted Prior Art (“AAPA”). The Examiner rejects claim 38 under 35 U.S.C. § 103(a) as being unpatentable over Huang, Ju, AAPA, Mather et al (US 8,144,079 B2; issued Mar. 27, 2012), and Haskell et al (US 6,055,012; issued April 25, 2000). The Examiner rejects claims 3, 4, 9, and 32-37 under 35 U.S.C. § 103(a) as being unpatentable over Huang, Ju, and AAPA in various combinations with other references. Issue on Appeal Did the Examiner err in rejecting claims 1 and 44 as being obvious? ANALYSIS1 We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. Claim 1 The Examiner finds as to claim 1: Huang et al discloses a multi-view display/method comprising: a scheduling algorithm configured to direct the light to different viewing angles by selectively (sequentially) 1 The contentions we discuss are determinative as to all the rejections on appeal. Therefore, Appellants’ other contentions are not discussed in detail herein. 3 Appeal 2017-003751 Application 12/819,238 illuminating different light sources behind the parallax barrier or lenslet in different time slices (sequential inherently implies different time slice), wherein the different viewing angles correspond to different (multiple) views (paras. [0030], [0031], [0034-0035], [0051-0056]). Final Act. 3 (emphasis omitted). Appellants contend that the Examiner erred in rejecting claim 1 under 35U.S.C. § 103(a) because: The Final Office Action alleges that Huang’s sequential generation of light implies different “time slices” (Final Office Action at page 3). However, . . . Huang does not show using different light sources in different time slices. Rather, in the portions of Huang relied upon by the Examiner (Final Office Action at page 3), each light source is illuminated during all time slices, as discussed more below. App. Br. 7-8 (emphasis omitted). In the Answer, the Examiner responds by repeating the finding: Huang et al discloses a multi-view display/method comprising: a scheduling algorithm configured to direct the light to different viewing angles (different viewing positions) by selectively (sequentially) illuminating different light sources (red, green, and blue) behind the parallax barrier or lenslet in different time slices/instants (sequentially illuminating inherently implies different time slices), wherein the different viewing angles correspond to different (multiple) views (Figs. 3B and 7; paras. [0030], [0031], [0034-0035], [0051-0056]). Ans. 16 (emphasis omitted). As articulated by the Federal Circuit, the Examiner’s burden of proving non-patentability is by a preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (“preponderance of the evidence is the standard that must be met by the PTO in making rejections”). 4 Appeal 2017-003751 Application 12/819,238 “A rejection based on section 103 clearly must rest on a factual basis[.]” In re Warner, 379 F.2d 1011,1017 (CCPA 1967). “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not. . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” Id. Here, the Examiner’s analysis fails to meet this standard because it does not adequately explain why the Examiner’s finding of fact that “Huang et al discloses . . . (sequentially) illuminating different light sources behind the parallax barrier or lenslet in different time slices (sequential inherently implies different time slice)” (Final Act. 3, emphasis omitted) by itself supports the Examiner’s conclusion that this renders obvious the claim 1 limitation of “selectively illuminating different light sources behind the parallax barrier or lenslet in different time slices” (emphasis added). The Examiner’s response to Appellants’ “during all time slices” argument merely repeats the finding without providing any further insight as to the Examiner’s reasoning why Huang’s “sequentially” teaches or renders obvious the particular claimed “selectively.” For example, Appellants argue each pixel “is active at all times in Huang and merely the color . . . changes across Huang’s time slices.” App. Br. 8. The Examiner treats each color as the claimed “light source,” see Ans. 16 (“different light sources (red, green, and blue)”), whereas Appellants contend each pixel is illuminated by a single light source that merely changes color. See App. Br. 8; Huang 30 (“The light source 102, such as a sequential backlight module 202, sequentially generates the light of the colors. . . . The red, green and blue light rays are sequentially transmitted through the pixels”). The Examiner has not addressed sufficiently why multiple colors from a single light source 5 Appeal 2017-003751 Application 12/819,238 teaches or suggests the claimed “different light sources.” Appellants clearly did not agree with the Final Office Action, as evidenced by the subsequent appeal, so an Answer merely repeating the Final Office Action without further discussion fails to clarify the Examiner’s position for either Appellants or the Board. We conclude, consistent with Appellants’ argument, there is ultimately insufficient articulated reasoning to support the Examiner’s final conclusion that claim 1 would have been obvious to one of ordinary skill in the art at the time of Appellants’ invention. Appellants ’ Other Arguments Appellants present numerous additional arguments, which Appellants have labelled as i, iii, iv, vi, and vii. We find all these additional arguments unpersuasive. Arguments i and vii fail because these arguments do not address the actual reasoning of the Examiner’s rejections. Instead Appellants attack the references singly for lacking teachings that the Examiner relied on a combination of references to show. That is, Appellants attack one reference for lacking a teaching when the Examiner relied on another reference for that teaching. It is well established that one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413 (CCPA 1981); In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986). This form of argument is inherently unpersuasive to show examiner error. Our reviewing court requires that references must be read, not in isolation, but for what they 6 Appeal 2017-003751 Application 12/819,238 fairly teach in combination with the prior art as a whole. Merck, 800 F.2d at 1097 (Fed. Cir. 1986). Arguments iii, iv, and vi fail because these arguments are directed to intended uses of the claimed apparatus. The manner of operating a device does not differentiate an apparatus claim from the prior art. “[AJpparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990); see also MPEP § 2114 (II). CONCLUSIONS (1) Appellants have established that the Examiner erred in rejecting claims 1-9, 32-38, and 43-45 as being unpatentable under 35 U.S.C. § 103(a). (2) On this record, claims 1-9, 32-38, and 43-45 have not been shown to be unpatentable. DECISION The Examiner’s rejections of claims 1-9, 32-38, and 43^15 are reversed. REVERSED 7 Copy with citationCopy as parenthetical citation