ELBIT SYSTEMS OF AMERICA, LLC

Patent Trials and Appeals Board

Dec 18, 2020

2020000046 (P.T.A.B. Dec. 18, 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.
14/358,634 05/15/2014 Michael M. Tilleman 2617071.12402 1026
29188 7590 12/18/2020
K&L Gates LLP - Austin
2801 Via Fortuna
Suite 350
Austin, TX 78746
EXAMINER
LAMB II, CHRISTOPHER A
ART UNIT PAPER NUMBER
2882
NOTIFICATION DATE DELIVERY MODE
12/18/2020 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):
uspatentmail@klgates.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL M. TILLEMAN and JON R. LYFORD
Appeal 2020-000046
Application 14/358,634
Technology Center 2800
Before TERRY J. OWENS, CATHERINE Q. TIMM, and
JAMES C. HOUSEL, Administrative Patent Judges.
TIMM, 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, 7, 9–15, 17, 19, and 20. See Non-
Final Act. 1. 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 Elbit Systems of
America, LLC. Appeal Br. 3.
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Application 14/358,634
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CLAIMED SUBJECT MATTER
The claims are directed to a display system and a method for
streaming multiple images from a single projector. See, e.g., claims 1, 13,
and 20. Claim 1, reproduced below with the limitation most at issue
highlighted, is illustrative of the claimed system:
1. A display system comprising:
a projector system configured to create a plurality of
image streams, comprising:
an illumination source configured to emit
electromagnetic radiation within a predetermined spectral band;
an image generator configured to ascribe image
characteristics to the radiation to create a plurality of image
streams intended for multiple targets and to interleave or
multiplex the image streams into a single beam and transmit the
interleaved or multiplexed image streams simultaneously; and
an image separation module configured to direct the
image streams in a plurality of directions; and
a plurality of combiners, each corresponding to one of
the directions of the image streams and configured to reflect at
least a portion of the image stream received at that combiner.
Appeal Br. 21 (Claims Appendix) (emphasis added).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Robinson US 2009/0027772 A1 Jan. 29, 2009
Nakanishi US 2010/0033791 A1 Feb. 11, 2010
Dominici US 2011/0007399 A1 Jan. 13, 2011
Schon US 2014/0098425 A1 Apr. 10, 2014

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Application 14/358,634
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REJECTIONS
A. Claims 1, 4, 5, 7, 9, 10, 13, 15, 17, and 19 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Robinson. Non-Final
Act. 2.
B. Claims 2, 3, and 14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robinson in view of Nakanishi. Non-Final Act.
7.
C. Claims 11 and 20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robinson in view of Dominici. Non-Final Act.
9, 11.
D. Claim 12 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robinson in view of Schon. Non-Final Act. 10.
OPINION
A. The Rejection of Claims 1, 4, 5, 7, 9, 10, 13, 15, 17, and 19 over Robinson
In addressing the Examiner’s rejection of claims 1, 4, 5, 7, 9, 10, 13,
15, 17, and 19 as obvious over Robinson, Appellant focuses on the rejection
of claims 1 and 10. Appeal Br. 8–13. Appellant groups claims 4, 5, 7, 9, 13,
15, 17, and 19 with claim 1. Appeal Br. 8. We, however, treat claims 13 and
15 as a separate group because the issue arising for claim 1 does not apply to
claims 13 and 15. We discuss each representative claim below.
Claim 1
Claim 1 is directed to a display system including a projector system
and a plurality of combiners. The Examiner finds that Robinson’s
polarization dependent reflecting plates 602 depicted in Figure 6 are the
required combiners. Sept. 8, 2017 Non-Final Act. 3; June 22, 2018 Advisory
Act. 2; Ans. 6. Appellant disagrees. Appeal Br. 8–13; Reply Br. 2–5.
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Application 14/358,634
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The issue arising on appeal is: Has Appellant identified a reversible
error in the Examiner’s finding that Robinson’s reflecting plates 602 are
“combiners” as that term is used in claim 1?
After considering the evidence of record, we determine that Appellant
has not identified such an error.
Appellant contends that “combiners, as recited in claim 1, are optical
devices that have an understood meaning in the art.” Appeal Br. 8. But
Appellant does not present us with evidence of that understood meaning.
Instead, Appellant argues that Robinson does not have the required combiner
and asks us to consult paragraph 17 of the Specification to divine the
meaning of “combiner” as understood by the ordinary artisan. Appeal Br. 8–
10. The Examiner also looks to paragraph 17. Ans. 6.
After considering paragraph 17 as well as other portions of the
Specification and prior art of record, we determine that those of ordinary
skill in the art of heads up displays and head mounted displays would
understand a combiner to be a semi-transparent mirror. According to
paragraph 17 of the Specification, optically powered, partially reflective
mirrors are known in the art to be “combiners.” Spec. ¶ 17. Dominici and
Schon, prior art references the Examiner applies to reject other claims, also
provide evidence that, in terms of structure, a combiner is a semi-transparent
mirror. Dominici ¶ 3 (“a semi-transparent combiner mirror of the head-up
display”); Schon ¶ 4 (“a semi-transparent optical element, also called a
combiner”). Combiners can be flat plates with no optical power or curved
plates that have a certain optical power. Dominici ¶ 4.
There is no real dispute that Robinson’s reflective plates 602 are semi-
transparent mirrors. Appeal Br. 11–13; Reply Br. 2–5. We are cognizant that
Robinson’s plates 602 do not reflect light directly toward the viewer’s eye in
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the manner Appellant describes in the Specification and drawings.
Robinson’s semi-transparent mirrors (plates 602) reflect light to the
reflecting eye pieces 604 and it is reflecting eye pieces 604 that deliver the
light image to the eye of the viewer. Compare Robinson ¶ 40, and Fig. 6,
with Spec. ¶ 30, and Fig. 1. Although that is true, claim 1 does not require
the orientation described in the Specification. The combiner of claim 1 need
only be “corresponding to one of the directions of the image streams,” which
we interpret as requiring one combiner for each image stream, and
“configured to reflect at least a portion of the image stream received at that
combiner,” which we interpret as requiring a structure that can reflect the
image stream. The orientation of that reflective structure or its location is not
limited by claim 1.
In fact, claim 1 does not even affirmatively tie the location of the
combiners relative to the projector. “A claim must be read in accordance
with the precepts of English grammar.” In re Hyatt, 708 F.2d 712, 714 (Fed.
Cir. 1983). The clauses following “a plurality of combiners” modify the
combiner structure only. “Modifiers should be placed next to the words they
modify.” HTC Corp. v. IPCom GmbH & Co., KG, 667 F.3d 1270, 1274–75
(Fed. Cir. 2012).
Appellant is free to more affirmatively claim the positional
relationships between the projector system and combiners, including the
orientation and structure of the reflective structure, during prosecution. We
do not read those relative positional limitations into claim 1. “[T]he PTO
must give claims their broadest reasonable construction consistent with the
specification . . . . Therefore, we look to the specification to see if it provides
a definition for claim terms, but otherwise apply a broad interpretation.” In
re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007).
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“[A]s applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” Id.
Appellant contends that claim 10 somehow limits the interpretation of
“combiner” in claim 1. We disagree. To be sure, claim 10 further limits the
structure of the inner and outer surfaces of the combiner of claim 1. But to
read those limitations into claim 1 would render claim 10 improperly
dependent under 35 U.S.C. § 112, fourth paragraph as claim 10 would not
further limit claim 1.
Even if we were to read claim 1 more narrowly to require the
combiner to function in the manner required by the Specification, i.e., to
itself reflect the projected image onto the eye or eye-motion box, rather than
reflect the projected image onto a separate structure before reflecting the
light image toward the eye, we would not be convinced of a patentable
distinction. This is because Robinson teaches that plates 602 reflect the
image onto reflective eyepieces 604, which can also be interpreted as
combiners or part of the combiners. Robinson Fig. 6; ¶ 35. Robinson teaches
making reflecting elements 504, which are analogous to reflecting elements
604, semi-transparent to avoid immersion. Robinson ¶ 35. This suggests to
the ordinary artisan using semi-transparent reflecting elements 604 in the
Figure 6 embodiment when desiring to avoid immersion.
Appellant has not identified a reversible error in the Examiner’s
finding that Robinson teaches or suggests a display system with the plurality
of combiners required by claim 1.
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Application 14/358,634
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Claim 10
Claim 10 depends from claim 1 and further requires “the combiners
comprise an inner surface configured to reflect a finite spectral band of the
image stream and an outer surface configured to transmit visible light with
substantially no deviation from an incident angle of the visible light on the
outer surface.”
The Examiner finds Robinson’s plates 602 have the required inner and
outer surfaces. Non-Final Act. 6, citing Robinson Fig. 6; ¶ 40.
Appellant contends that the Examiner’s interpretation of “combiner”
“ignores, at least the outer surface configured to transmit visible light. All
words in a claim must be considered.” Appeal Br. 11. But Appellant
overlooks the fact that both surfaces of Robinson’s plate 602 transmit light.
See Figure 6 (arrows showing the light reaching the eyes). Thus, Robinson’s
plates 602 have an inner surface reflecting light to eye piece 604 and inner
and outer surfaces that transmit visible light. Although we agree with
Appellant that the inner and outer surfaces claimed are opposing sides,
Reply Br. 6, Robinson’s plate 602 has such opposing sides. The surface
opposite the reflecting surface is the outer surface of claim 10 and it
transmits light.
We note that eye piece 604 has an outer surface that transmits light
when made semi-transparent to avoid immersion.
Appellant has not identified a reversible error in the Examiner’s
rejection of claim 10.
Claims 13 and 15
Claims 13 and 15 do not require a combiner. Thus, Appellant has not
identified a reversible error in the Examiner’s rejection of those claims.

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B. The Rejection of Claims 2, 3, and 14 as unpatentable over Robinson in
view of Nakanishi
In arguing against the rejection of claims 2, 3, and 14 over Robinson
in view of Nakanishi, Appellant states claim 2 is representative. Appeal
Br. 13–14. We select claim 2 as representative for resolving the issue on
appeal.
Claim 2 depends from claim 1 and further limits the image separation
module. Specifically, claim 2 requires the image separation module
comprise “a switching mirror configured to move between a plurality of rest
positions and to direct the image streams in a respective particular direction
based on the rest position.”
The Examiner acknowledges that Robinson does not expressly
disclose such a switching mirror and turns to Nakanishi’s teaching of an
optical deflector 807, which the Examiner finds is a switching mirror. Non-
Final Act. 7–8. Appellant takes issue with the Examiner’s finding of a
suggestion to make the combination. Appeal Br. 14. According to Appellant,
the ordinary artisan would not have modified Robinson’s polarizing beam
splitter (PBS) with Nakanishi’s optical deflector 807 because Robinson’s
polarizing beam splitter is a passive device that does not switch at all.
Appeal Br. 14, citing Robinson ¶ 26, ll. 24–26 (describing operation of a
PBS).
The problem with Appellant’s argument is that Robinson’s polarizing
beam splitter and Nakanishi’s optical deflector perform the same splitting
function whether it is done actively or passively. Robinson’s polarizing
beam splitter (PBS) 108, depicted in Figure 1a and 1b, “directs the light to
form two near-identical optical imaging outputs corresponding to left-eye
and right-eye images.” Robinson ¶ 26. Nakanishi’s optical deflector 807,
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Application 14/358,634
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depicted in Figure 8, switches the direction of light beam 806 “between two
directions for the left and right eyes and generates a left-eye light beam 205L
and right-eye light beam 205R.” Nakanishi ¶ 94. Given that Robinson’s
polarizing beam splitter and Nakanishi’s optical deflector perform the same
function, it would have been obvious to substitute one for the other. When a
claim is to a combination that “‘simply arranges old elements with each
performing the same function it had been known to perform’ and yields no
more than one would expect from such an arrangement, the combination is
obvious.” KSR, 550 U.S. 398, 417 (2007), quoting Sakraida v. AG Pro, Inc.,
425 U.S. 273, 282 (1976).
C. The Rejection of claims 11 and 20 over Robinson in view of Dominici
Claims 11 and 20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robinson in view of Dominici. Non-Final Act. 9.
Claims 11 and 20 require each combiner be “configured to direct
collimated rays to an associated eye-motion box.”
The Examiner acknowledges that Robinson’s reflecting plate 602 is
not configured as required and relies on Dominici to support the obviousness
of using a combiner that directs collimated rays to the eye. Non-Final
Act. 10. The Examiner finds Dominici provides a suggestion for configuring
the combiner to collimate to “allow for the viewer to view the information
from an imager and the landscape of the outside environment at the same
time without having to adjust visually.” Id.
Appellant first contends there is no combiner in Robinson. Appeal Br.
15. The argument is unpersuasive for the reasons we’ve already discussed.
Appellant further contends the Examiner’s finding of a reason to
combine lacks articulated reasoning with some rationale underpinning.
Appeal Br. 15. According to Appellant, “there is no outside environment in
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Robinson; the only images presented to the viewer are from an image
forming panel which is transmitted through an imaging and light directing
subsystem to the viewer’s eyes.” Id., citing Robinson ¶ 40; Fig. 6.
In response, the Examiner finds that Robinson “details that the
reflective eyepiece 504, which is identical to reflective eyepiece 604, can be
made semi-transparent and polarization sensitive, thereby indicating that an
outside environment is in fact present in Robinson.” Ans. 12. Robinson
supports the Examiner’s finding. Robinson ¶ 35 (“the second reflective optic
504 can be made semi-transparent and polarization sensitive to avoid
immersion whilst maximizing display intensity.”).
D. The Rejection of claim 12 over Robinson in view of Schon
Claim 12 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Robinson in view of Schon. Non-Final Act. 10.
Claim 12 depends from claim 1 and further requires at least one
combiner comprise
a first concave surface and a second convex surface, wherein
the first concave surface is configured to reflect and collimate at
least a portion of the image stream and the combiner is
configured to transmit visible light with substantially no
deviation from an incident angle of the visible light on the
second convex surface.
The Examiner acknowledges that Robinson does not teach the
concave and convex surfaces required by claim 12. Non-Final Act. 10. The
Examiner finds Schon’s semi-transparent combiner mirror 70, with coating
72, has the necessary concave and convex surfaces. Non-Final Act. 11.
Appellant contends that Robinson would be rendered unsatisfactory
for its intended purpose if modified by Schon because there is no outside
environment in Robinson. This argument is unpersuasive because, as pointed
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out by the Examiner, Robinson suggests that “the reflective eyepiece 504,
which is identical to reflective eyepiece 604, can be made semi-transparent
and polarization sensitive, thereby indicating that an outside environment is
in fact present in Robinson.” Ans. 12.
Appellant further contends that modifying Robinson’s display system
with the convex and concave surfaces of Schon would alter the imaging
properties of Robinson’s Figure 6 system. Appeal Br. 16–17. According to
Appellant,
Referring to Figure 6 of Robinson, for example, if the alleged
convex surface is oriented toward the refractive optics, the light
beam would not be folded toward the reflective eyepiece (604)
as it is transmissive. Conversely, if the alleged reflective
concave surface is oriented toward the refractive optics, a
person of ordinary skill in the art would recognize that
additional catoptric power is introduced into the light path.
Appeal Br. 16 (bolding omitted).
Appellant’s argument ignores the skill of the ordinary artisan and the
disclosure in Robinson that “[e]ach of these reflective optic elements [502
and 504 in Figures 5a–5d] can be curved to form part of the imaging system,
although cost favors only the second reflective optic 504 being curved.”
Robinson ¶ 34. We agree with the Examiner that “[o]ne of ordinary skill in
the art would clearly recognize that this paragraph is indicating that
replacing a planar partially reflective mirror with a curved partially
reflecting mirror is not only obvious but within the scope of the invention of
Robinson.” Ans. 13.
CONCLUSION
The Examiner’s decision to reject claims 1–5, 7, 9–15, 17, 19, and 20
is AFFIRMED.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 5, 7, 9,
10, 13, 15,
17, 19
103(a) Robinson 1, 4, 5, 7, 9,
10, 13, 15,
17, 19

2, 3, 14 103(a) Robinson,
Nakanishi
2, 3, 14
11, 20 103(a) Robinson,
Dominici
11, 20
12 103(a) Robinson, Schon 12
Overall
Outcome
1–5, 7, 9–
15, 17, 19,
20

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