Liu, Yi-Wei et al.

Patent Trials and Appeals Board

Jan 2, 2020

15097137 - (D) (P.T.A.B. Jan. 2, 2020)

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.
15/097,137 04/12/2016 Yi-Wei Liu 573079 9885
71203 7590 01/02/2020
Curtis A. Vock
LATHROP GAGE LLP
2440 Junction Place
Suite 300
Boulder, CO 80301
EXAMINER
FLORES, ROBERTO W
ART UNIT PAPER NUMBER
2621
NOTIFICATION DATE DELIVERY MODE
01/02/2020 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):
docketing@ovt.com
patent@lathropgage.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte YI-WEI LIU, JAU-JAN DENG, and REGIS FAN
____________

Appeal 2019-001446
Application 15/097,137
Technology Center 2600
____________

Before JOHN A. EVANS, JOHN P. PINKERTON, and
MICHAEL M. BARRY, Administrative Patent Judges.

BARRY, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–11 and 23–26. Claims 12–22 are
withdrawn from consideration. Final Act. 1. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.

1 We use “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42.
Appellant identifies the real party in interest as OmniVision Technologies,
Inc. Appeal Br. 4.
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Introduction
Appellant describes the invention as relating to “a near-eye display
device for mounting in field of view of an eye of a user . . . with coaxial eye
tracking functionality.” Spec. ¶ 3. In a disclosed embodiment, three non–
coplanar beams of infrared light, visible display light, and ambient light may
be propagated coaxially from the device to a user’s eye. Id. ¶ 56. Using light
reflected back towards the device by the user’s eye, a camera may capture an
image of the user’s eye and determine the eye’s gaze direction for
biometrically identifying or assessing health related parameters of the user.
See id. ¶¶ 51, 56, 124, 126, 128, 130.
Independent claim 1 is illustrative:
1. A near-eye display device, with coaxial eye tracking, for
mounting in field of view of an eye of a user, comprising:
a display unit for displaying a display image;
a viewing unit for presenting the display image to the eye,
based upon visible display light received from the display unit, and
transmitting ambient light from an ambient scene toward the eye; and
an eye imaging unit including an illumination module for
generating at least three infrared light beams propagating along at
least three different, non-coplanar directions, respectively,
a beamsplitter interface, disposed between the display unit and
the viewing unit, for merging at least a portion of each of the infrared
light beams with the visible light to direct each portion toward the eye
via the viewing unit, and
a camera for imaging, via the viewing unit and the beamsplitter
interface, pupil of the eye and reflections of the infrared light beams
incident on the eye, to form one or more images indicative of gaze
direction of the eye.
Appeal Br. 24 (Claims App.).
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References
Name Reference Date
Border et al.
(Border)
US 2015/0301593 A1 Oct. 22, 2015
Sugiyama et al.
(Sugiyama)
US 2010/0060551 A1 Mar. 11, 2010
Robbins et al.
(Robbins)
US 2016/0085300 A1 Mar. 24, 2016
Raffle et al.
(Raffle)
US 8,971,570 B1 Mar. 3, 2015
Miao US 9,116,337 B1 Aug. 25, 2015
Ferren US 2012/0075452 A1 Mar. 29, 2012
Miao et al.
(Miao2)
US 2013/0016292 A1 Jan. 17, 2013
Rejections2
The Examiner rejected claims 1, 8, 10, and 24 under 35 U.S.C.
§ 102(a)(2) as anticipated by Border. Final Act. 3–6.
The Examiner rejected claims 2, 5, and 11 under 35 U.S.C. § 103 as
unpatentable over Border and Sugiyama. Id. at 6–9.
The Examiner rejected claims 3 and 4 under 35 U.S.C. § 103 as
unpatentable over Border, Sugiyama, and Robbins. Id. at 9–10.
The Examiner rejected claim 6 under 35 U.S.C. § 103 as unpatentable
over Border, Sugiyama, and Raffle. Id. at 10–11.
The Examiner rejected claim 7 under 35 U.S.C. § 103 as unpatentable
over Border and Miao. Id. at 11–12.

2 In the Final Office Action prior to this Appeal, the Examiner rejected claim
24 under 35 U.S.C. § 112(a). Final Act. 2. After Appellant filed the Appeal
Brief on September 21, 2019, the Examiner withdrew that rejection in the
Examiner’s Answer mailed October 26, 2018 (Ans.). See Ans. 3.

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The Examiner rejected claim 9 under 35 U.S.C. § 103 as unpatentable
over Border and Ferren. Id. at 12–13.
The Examiner rejected claim 23 under 35 U.S.C. § 103 as
unpatentable over Border. Id. at 13–14.
The Examiner rejected claims 25 and 26 under 35 U.S.C. § 103 as
unpatentable over Border and Miao2. Id. at 14–15.

The Examiner’s Findings and Appellant’s Contentions
In rejecting claim 1, the Examiner finds Figure 53 of Border discloses
“an illumination module for generating at least three infrared light beams
propagating along at least three different, non-coplanar directions,
respectively” with its infrared light 5357 emitted from illuminating lights
5355. Final Act. 4–5 (citing Border, Fig. 53). The Examiner explains that the
four grey lines representing infrared light 5357 disclose “at least 3 infrared
light beams along non-coplanar directions.” Id. at 4.
Appellant contends, to the contrary, that each illuminating light 5355
emits only a single light beam, with the corresponding lines of infrared light
5357 representing light rays spanning the width of each respective light
beam. Appeal Br. 9, 12–13 (citing Border ¶ 199, Fig. 29). Appellant further
argues that the Examiner’s interpretation contradicts conventional depictions
of single-beam light sources such as a vehicle headlight symbol, which
includes multiple lines representing a single light beam. Id. at 9.
In response, the Examiner asserts that Border discloses the disputed
limitation even if infrared light 5357 are rays because “the Merriam Webster
dictionary” defines a “ray” as “a beam of radiant energy of small cross
section,” which shows that “‘ray’ and ‘beam’ are equivalent and/or
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interchangeable.” Ans. 4. The Examiner further asserts that “Border should
have at least four light beams by using [a] diffraction element to modify the
two light sources 5355 in figure 53 (at least two light beams for each light
source).” Id. at 7–8 (citing Border ¶ 248; Appeal Br. 6).
Our Analysis
Anticipation requires a single prior art reference to disclose each and
every claim element, in complete detail, and as arranged in the claim. Net
MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008);
Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236 (Fed. Cir. 1989).
Border discloses a head-worn computing system (e.g., glasses) that
allow a user to look through the lenses and see the traditional environment as
well as overlaid digital imagery, which together form an augmented reality.
Border ¶ 85. Figure 53 of Border is reproduced below.

Figure 53 of Border shows a display system including an eye imaging
system. Id. ¶ 246. Infrared light 5357 is emitted from illuminating lights
5355 and reflected by the hot mirror of beamsplitter plate 5345 such that the
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light passes into the lower optic module of the head-worn computing system
and illuminates the user’s eye. See id.; Figs. 2, 53.
On the record before us, there is no persuasive evidence that infrared
light 5357 in Figure 53 of Border discloses three infrared light beams that
are non-coplanar. As an initial matter, Border does not specify the form of
infrared light 5357—light beams, light rays, or otherwise. To assume that
infrared light 5357 are light rays and adopt the Examiner’s interpretation of
the term “ray” as a “beam” would be speculative on our part. We decline to
resort to such speculation. See Ex parte Braeken, 54 USPQ2d 1110, 1112
(BPAI 1999). Moreover, the Examiner’s dictionary definition does not
support the assertion that rays are interchangeable or equivalent to beams.
To the contrary, defining a ray as “beam of radiant energy of small cross
section” suggests that each ray is a small cross section of a beam—in other
words, a beam includes a plurality of rays. This supports Appellant’s
position that Figure 53 of Border shows only two infrared light beams, with
infrared light 5357 representing light rays spanning the width of each
respective light beam. Nor does Border’s use of a diffractive device to
modify infrared light 5357 compel a different result. While this may modify
the shape of infrared light 5357 emitted from illumination lights 5355,
resulting in a particular light pattern, there is no evidence that the diffraction
device itself generates infrared light beams. See Border ¶ 248. The alleged
admissions by Appellant about the simultaneous generation of diffracted
beams in the present application (Appeal Br. 6) do not fill the gaps of
Border’s disclosure.
In view of the foregoing, the Examiner has not adequately shown that
Border discloses an illumination module for generating three infrared light
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beams that are non–coplanar. Because these light beams, once generated, are
used in a particular way by the recited “beamsplitter interface” and “camera
for imaging,” the Examiner also has not adequately shown that Border
discloses these claim elements. Accordingly, the Examiner has not
adequately shown that Border discloses each and every claim element, in
complete detail, and as arranged in the claim.
Therefore, we decline to sustain the 35 U.S.C. § 102(a)(2) rejection of
claim 1. We likewise decline to sustain the rejection of dependent claims 8,
10, and 24, for which the Examiner makes no findings to cure the deficiency
in the rejection of independent claim 1. For similar reasons, we also decline
to sustain the Examiner’s § 103 rejections of claims 2–7, 9, 11, 23, 25, and
26, which recite a similar claim limitation for which the Examiner fails to
provide any findings or reasoning that cures the above deficiency. See Final
Act. 7–15.
CONCLUSION
We reverse the Examiner’s 35 U.S.C. § 102(a)(2) rejection of claims
1, 8, 10, and 24.
We reverse the Examiner’s 35 U.S.C. § 103 rejection of claims 2–7, 9,
11, 23, 25, and 26.

In summary:
Claims
Rejected
35
U.S.C. §
Basis Affirmed Reversed
1, 8, 10, 24 102(a)(2) Border 1, 8, 10, 24
2, 5, 11 103 Border, Sugiyama 2, 5, 11
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Application 15/097,137

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Claims
Rejected
35
U.S.C. §
Basis Affirmed Reversed
3, 4 103 Border, Sugiyama,
Robbins
3, 4
6 103 Border Sugiyama,
Raffle
6
7 103 Border, Miao 7
9 103 Border, Ferren 9
23 103 Border 23
25, 26 103 Border, Miao2 25, 26
Overall
Outcome
1–11, 23–26

REVERSED