Ex Parte 5949331 et al

Board of Patent Appeals and Interferences

Sep 1, 2010

90007520 (B.P.A.I. Sep. 1, 2010)

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.
90/007,520 04/22/2005 5949331 Q85997 9134
7590 09/02/2010
Frederick S. Burkhart
VAN DYKE GARDNER LINN & BURKHART
Post Office Box 888695
Grand Rapids, MI 49588
EXAMINER
FOSTER, ROLAND G
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
09/02/2010 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DONNELLY CORPORATION1
Appellant and Patent Owner
____________

Appeal 2009-014326
Reexamination Control 90/007,520
Patent 5,949,331
Technology Center 3900
____________

Before HOWARD B. BLANKENSHIP, SCOTT R. BOALICK, and
KEVIN F. TURNER, Administrative Patent Judges.

TURNER, Administrative Patent Judge

DECISION ON APPEAL2

1 DONNELLY CORPORATION is the Patent Owner and the real party in
interest (App. Br. 1).
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
shown on the PTOL-90A cover letter attached to this decision.
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Donnelly Corporation appeals under 35 U.S.C. §§ 134(b) and 306
from a final rejection of claims 1-134. We have jurisdiction under 35 U.S.C.
§§ 134(b) and 306.
We heard oral arguments on November 18, 2009, hearing from both
representatives of Appellant and the Examiner, a written transcript of which
is included in the record.
We AFFIRM-IN-PART.

STATEMENT OF THE CASE
This proceeding arose from a request for ex parte reexamination filed
by a Third Party Requester on April 22, 2005 of United States Patent
5,949,331 (issued September 7, 1999) to Kenneth Schofield, et al.
[hereinafter the ′331 Patent] based on United States Patent Application
08/935,336 (filed September 22, 1997). The patent application for the
instant patent was a continuation of U.S. Patent Application 08/445,527
(filed May 22, 1995; now U.S. Patent No. 5,670,935), which was a
continuation-in-part of U.S. Patent Application 08/023,918 (filed February
26, 1993; now U.S. Patent No. 5,550,677).
A related patent, United States Patent 6,222,447 B1, is based on a
continuation of the application of the ′331 Patent, and is also the subject of a
request for ex parte reexamination (Reexamination Control 90/007,519), and
is also presently being appealed (Appeal 2009-014594). That appeal is
being concurrently decided with the instant appeal.
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Patentee’s invention relates to rearview vision systems for vehicles
which provide a driver with scenic information in the direction rearward of
the vehicle (Spec. col. 1, ll. 13-19).
Claims 1-134 are listed in the issued patent. Claims 3, 10, 20, and
122, which we deem to be representative, read as follows:
3. A vehicular [The] rearview vision system [of
claim 2], comprising:
at least one image capture device positioned on
the vehicle and adapted to capturing images of objects;
a display system which displays an image which
comprises a rearward facing view of objects captured by
said at least one image capture device;
wherein said display system enhances the
displayed image by including an image enhancement
comprising a visual prompt perspectively related to
objects in the image displayed and which visually
informs the driver of what is occurring in the area
surrounding the vehicle including relative position of
objects behind vehicle; and
wherein said image enhancement comprises a
graphic overlay superimposed on the displayed image
indicating distances of objects from the vehicle and
wherein said graphic overlay comprises at least one
horizontal mark superimposed on the displayed image.

10. A vehicular [The] rearview vision system [of
claim 1], comprising:
at least one image capture device positioned on
the vehicle and adapted to capturing images of objects;
a display system which displays an image which
comprises a rearward facing view of objects captured by
said at least one image capture device;
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wherein said display system enhances the
displayed image by including an image enhancement
comprising a visual prompt perspectively related to
objects in the image displayed and which visually
informs the driver of what is occurring in the area
surrounding the vehicle including relative position of
objects behind vehicle; and
wherein said image is enhanced by a graphic
overlay superimposed on the displayed image including
indicia of the anticipated travel of the vehicle.

20. A vehicular rearview vision system,
comprising:
at least one image capture device positioned on
the vehicle and directed rearwardly with respect to the
direction of travel of the vehicle; and
a display system which displays an image from
said at least one image capture device;
wherein said display system enhances the
displayed image by visually highlighting hazards in the
area surrounding the vehicle, wherein said visually
highlighting hazards comprises modifying the displayed
images which include said hazards.

122. A vehicular rearview vision system, said
rearview vision system comprising:
at least one image capture device positioned on
the vehicle and adapted to capturing images of objects;
a display system comprising a video display
screen which displays an image which comprises a
rearward facing view of objects captures by said at least
one image capture device;
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wherein said video display screen displays an
image that is viewable by an operator of the vehicle
when the operator is looking forward and generally
toward the windshield of the vehicle, wherein said video
display screen displays in reverse the image captured by
said image capture device; and
wherein said display system enhances the
displayed image by including an image enhancement
comprising a visual prompt prespectively related to
objects in the image displayed and which visually
informs the driver of what is occurring in the area
surrounding the vehicle including relative position of
objects behind the vehicle.

The prior art references relied upon by the Examiner in rejecting the
claims are:
Suzuki [“JP ′139”] JP 59-114139 Jul. 2, 1984
Nimura [“JP ′700”] JP 64-14700 Jan. 18, 1989
Tatsuhiko [“JP ′318”] JP 06-227318 Aug. 16, 1994

G. Wang et al., CMOS Video Cameras, Proceedings of Euro ASIC ′91, 100-
103 (May 27-31, 1991).

The Examiner rejected the claims on the following bases:
1) claims 1-10, 20, 81-84, 111-115, and 122-129 under 35 U.S.C.
§ 102(b) as being anticipated by JP ′139 (Ans. 5-11);
2) claims 12, 13, 15-17, 21-30, 32-34, 36-44, 46-49, and 51-62 under
35 U.S.C. § 103(a) as being unpatentable over JP ′139 and JP ′318 (Ans. 11-
18);
3) claims 11 and 85-92 under 35 U.S.C. § 103(a) as being
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unpatentable over JP ′139 and JP ′700 (Ans. 18-20); and
4) claims 14, 18, 19, 31, 35, 45, 50, 63-80, 93-110, 116-121, and 130-
134 under 35 U.S.C. § 103(a) as being unpatentable over JP ′139 and Wang
(Ans. 21-27).

ISSUES
Appellant contends that JP ′139 fails to disclose a display system
which displays a reversed image, or which applies a graphic overlay
including at least one horizontal mark, or which visually highlights
hazardous objects in the area surrounding the vehicle (Reply Br. 15-16).
With respect to the obviousness rejections, Appellant argues that JP ′139, JP
′318, JP ′700, and Wang, taken together or apart, fail to teach or suggest
displaying a graphic overlay only when the gear actuator is in the reverse
position, utilizing a generic CMOS device in a vehicular rearview vision
system, or displaying an image from two or more image capture devices in a
manner that approximates a substantially seamless panoramic view (Reply
Br. 16-17). Appellant also argues that there is “overwhelming evidence of
non-obviousness of the claimed invention,” and stipulates to such evidence
(Reply Br. 17-20).
The Examiner finds that JP ′139 discloses that “markers” are
displayed as aligned horizontally across the display screen, that Appellant’s
claims do not require the highlighting of hazards argued by Appellant, and
that the display provided to the driver presents an image thereto as if the
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driver were looking backward, i.e., reversed (Ans. 28-34). The Examiner
also argues the references provide for a panoramic view that meets the claim
limitations, that JP ′700 provides for detection of the reverse gear, and that
the suggestion to combine JP ′139 and Wang comes from Wang itself (Ans.
34-45).
Only those arguments actually made by Appellant have been
considered in this decision. Arguments which Appellant could have made
but chose not to make in the Brief have not been considered and are deemed
to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).
Thus, the issues arising from the respective positions of Appellant and
the Examiner are:
1) Did the Examiner err in determining that JP ′139 discloses all of the
elements of claims 1-10, 20, 81-84, 111-115, and 122-129 under 35 U.S.C.
§ 102(b)?
2) Did the Examiner err in determining that JP ′139 and JP ′318 teach
or suggest all of the elements of claims 12, 13, 15-17, 21-30, 32-34, 36-44,
46-49, and 51-62 under 35 U.S.C. § 103(a)?
3) Did the Examiner err in determining that JP ′139 and JP ′700 teach
or suggest all of the elements of claims 11 and 85-92 under 35 U.S.C. §
103(a)?
4) Did the Examiner err in determining that JP ′139 and Wang teach
or suggest all of the elements of claims 14, 18, 19, 31, 35, 45, 50, 63-80, 93-
110, 116-121, and 130-134 under 35 U.S.C. § 103(a)?
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FINDINGS OF FACT
1. The Specification of the ′331 Patent details that the system
includes image capture devices (14) positioned on the vehicle to
capture images of objects and a display system (20) which displays
rearward facing view of objects captured by the image capture
devices (Spec. col. 3, ll. 51-67, col. 4, ll. 1-15; Fig. 2, elements 14,
20).
2. The Specification of the ′331 Patent discloses that the display
system enhances the displayed image by including an image
enhancement that relates to objects in the image displayed and
which informs the driver of relative positions of the displayed
objects behind the vehicle (Spec. col. 10, ll. 18-67).
3. In one embodiment, the image enhancement comprises horizontal
marks superimposed on the displayed image (Spec. col. 10, ll. 56-
63; Fig. 6).
Figure 6 of the ′331 Patent is reproduced below:

Figure 6 depicts image enhancement according to one embodiment
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4. JP ′139 is directed to a rearward view monitoring system for a
vehicle which has a television camera that monitors the rear of the
vehicle and a monitor that shows an image taken by the television
camera (JP ′139, English translation, p. 1).
5. The monitoring system of JP ′139 in one embodiment displays a
plurality of dots on the display image in response to a detection of
an object rearward of the vehicle by sensors (JP ′139, English
translation, p. 4-5; Fig. 6). The markers are generated and
dynamically change in response to movement and distance sensors
(id.).
Figure 6 of JP ′139 is reproduced below:

Figure 6 depicts image enhancement according to one embodiment
6. JP ′139 also details that markers can be superimposed based on
detected distances and can change color when the obstacle
approaches the vehicle over a predetermined distance (JP ′139,
English translation, p. 3-4; Fig. 5).
7. JP ′318 is directed to rearview monitoring apparatus of a vehicle
having a display that presents the driver with two or more display
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areas, with each area associated with a respective rearward facing
camera (JP ′318, English translation, ¶ [0016]; Fig. 3).
Figure 3 of JP ′318 is reproduced below:

Figure 3 depicts a display having two display areas
8. JP ′700 is directed to a device for displaying the anticipated path of
a vehicle, which displays that path based on images from the rear
or side rear fields of vision when the vehicle backs up (JP ′700,
English translations, pp. 2-3). The system also uses a steering
sensor that detects the steering angle to determine the anticipated
path and superimpose it on the captured image (id.).
9. Wang is directed to a single chip CMOS video camera, which has
a photodiode array along with all of the necessary sensing,
addressing, and amplifying circuitry (Wang Abs.)

PRINCIPLES OF LAW
Anticipation is established when a single prior art reference discloses,
expressly or under the principles of inherency, each and every limitation of
the claimed invention. Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342,
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1347 (Fed. Cir. 1999); In re Paulsen, 30 F.3d 1475, 1478-79
(Fed. Cir. 1994).
To serve as an anticipation when the reference is silent about
the asserted inherent characteristic, such gap in the reference
may be filled with recourse to extrinsic evidence. Such
evidence must make clear that the missing descriptive matter is
necessarily present in the thing described in the reference, and
that it would be so recognized by persons of ordinary skill.
Continental Can Co. USA v. Monsanto Co., 948 F.2d 1264, 1268 (Fed. Cir.
1991).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007).
During examination of a patent application, a claim is given its
broadest reasonable construction consistent with the specification. In re
Prater, 415 F.2d 1393, 1404-05 (CCPA 1969). "[T]he words of a claim 'are
generally given their ordinary and customary meaning.'" Phillips v. AWH
Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (internal citations
omitted). The "ordinary and customary meaning of a claim term is the
meaning that the term would have to a person of ordinary skill in the art in
question at the time of the invention, i.e., as of the effective filing date of the
patent application." Id. at 1313.
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ANALYSIS
Anticipation by JP ′139 under 35 U.S.C. § 102(b)
Claims 1 and 2
With respect to claims 1 and 2, Appellant does not argue the subject
matter of these claims. In fact, Appellant’s counsel at Oral Hearing
provided that “we’ve said on the record we intend to cancel, I think, 1 and 2,
just to ease the discussion” (Oral Hearing Transcript 5; App Br. 21). If an
appellant fails to present arguments on a particular issue – or, more broadly,
on a particular rejection – the Board will not, as a general matter, unilaterally
review those uncontested aspects of the rejection. See, e.g., Hyatt v. Dudas,
551 F.3d 1307, 1313-14 (Fed. Cir. 2008) (the Board may treat arguments
appellant failed to make for a given ground of rejection as waived). As
such, we do not find that the Examiner erred in rejecting claims 1 and 2 over
JP ′139.

Claims 3-9, 81-84, 111-115, and 123-129
Appellant contends that JP ′139 fails to disclose a display system
which applies a graphic overlay including at least one horizontal mark
because JP ′139 discloses the use of dots (App. Br. 21). Appellant also
argues that at least one horizontal mark is not the same as a plurality of dots
which change their spacing in response to vehicle speed (App. Br. 22).
Appellant makes these arguments with respect to claim 3. Appellant further
argues that claims 5, 81, 111, and 123, and claims dependent thereon, are not
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anticipated by JP ′139 for the same reasons discussed with respect to claim 3
(App. 23-27, 30-31).
The Examiner finds that “JP ′139 discloses that ‘markers’ are
displayed as aligned horizontally across the display screen (Figs. 5, 6, and
page 6 of the translation), thus reading on the claimed ‘horizontal mark’ as
broadly recited” (Ans. 28). The Examiner also finds that the individual
marks, in JP ′139, when displayed would include multiple pixels, and would
include multiple, horizontal lines of pixels (id.). The Examiner also posits
that “horizontal lines that change spacing in response to sensed vehicle
speed and path [are] structurally equivalent to displaying markers in the
form of dots” that do the same, and that Appellant has not shown horizontal
lines and dots would result in materially different characteristics (Ans. 29).
Appellant responds that a dot is not a short horizontal mark, which is
self-evident, and argues that “a dot cannot be horizontal” (Reply Br. 2).
Appellant also points to portions of the Specification which support
Appellant’s distinction and argues that dots and short horizontal lines
provide different benefits and attributes (Reply Br. 3). Appellant also takes
issue with the Examiner’s finding that multiple pixels making up a dot
provide a horizontal mark (Reply Br. 4). We agree with Appellant.
We find that the dots disclosed by JP ′139 (FF 5) are not the same as
the horizontal marks recited in claim 3. We find that the Specification
provides sufficient support for the horizontal marks (FF 3) and that they are
distinguishable from the dots provided in JP ′139. Even if the dots are
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aligned horizontally across the display screen, we concur with Appellant that
a driver would appreciate them differently, and we agree that they can
provide different information to the driver. As such, we find that they can
have materially different characteristics, and need not be found to be
structurally equivalent. Thus, we find that JP ′139 fails to teach a rearview
vision system with a graphic overlay comprising at least one horizontal mark
superimposed on the displayed image.
In addition, while the Examiner is correct that dots provided in JP
′139 would have a horizontal component due to their representation by
multiple pixels, such a horizontal aspect would not be perceived by the
viewer of the display system, upon which the dots would be superimposed.
See Continental Can Co. USA, 948 F.2d at 1268 (Missing descriptive matter
must recognizable by persons of ordinary skill). Additionally, while the uses
and purposes of the systems recited in claim 3 and JP ′139 may be similar,
that does not support the claim that JP ′139 anticipates claim 3. “The
identical invention must be shown in as complete detail as is contained in the
. . . claim.” Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236 (Fed. Cir.
1989).
As such, we find that the Examiner erred in finding claim 3
anticipated by JP ′139. Similarly, we find that the anticipation rejection of
claims 4-9, 81-84, 111-115, and 123-129 is also in error because those
claims recite similar subject matter.

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Claim 10
With respect to claim 10, Appellant does not appear to argue the
subject matter of this claim specifically, and merely arguing that claim 10,
along with others, are not taught JP ′139 (App. Br. 35). If an appellant fails
to present arguments on a particular issue – or, more broadly, on a particular
rejection – the Board will not, as a general matter, unilaterally review those
uncontested aspects of the rejection. See, e.g., Hyatt v. Dudas, 551 F.3d at
1313-14 (Fed. Cir. 2008) (the Board may treat arguments appellant failed to
make for a given ground of rejection as waived). As such, we do not find
that the Examiner erred in rejecting claim 10 as being anticipated by JP ′139.

Claim 20
Appellant argues that there is nothing in JP ′139 that discloses that the
displayed image is in any way modified in order to highlight a hazard (App.
Br. 27-29; Reply Br. 6-7). In contrast, Appellant argues that JP ′139 alters
the dots which are superimposed on the display (id.). The Examiner finds
that Appellant’s arguments are directed to unclaimed features, and finds that
claim 20 may include modifying the overall image that contains the hazard,
not specifically highlighting the particular object as argued by Appellant
(Ans. 31). We agree with the Examiner.
Claim 20 recites, in part, “wherein said visually highlighting hazards
comprises modifying the displayed images which include said hazards.” We
find that Examiner is correct that perhaps JP ′139 fails to visually highlight
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hazards in the manner disclosed in the instant Specification, however, JP
′139 certainly modifies the displayed images which include hazards (FF 6).
Appellant has acknowledged the same by providing that the superimposed
dots are altered (App. Br. 28). The modification of the displayed images can
highlight potential hazards by, for example, showing how close objects in
the display are. As such, we find that JP ′139 meets the limitations of claim
20 and the Examiner did not err in rejecting claim 20.

Claim 122
Appellant argues that JP ′139 cannot anticipate claim 122 because it
does not disclose a reverse image display of the captured images (App. Br.
31-34; Reply Br. 7-10). Appellant argues that this limitation in claim 122
means that when a driver, facing forward, observes the reversed image
display, the driver will interpret the displayed image as if it were a reflection
of the scene in a vehicular mirror (id.). The Examiner finds that Appellant’s
arguments are directed to features not found in the claim language and JP
′139 provides an image displayed on the screen which has been reversed
from the captured image, per Fig. 1 of JP ′139 (Ans. 33). Appellant
responds that Fig. 1 of JP ′139 fails to show an image displayed on a screen
that has been reversed from the captured image (Reply Br. 8). We agree
with Appellant.
Claim 122 recites, in part, “wherein said video display screen displays
in reverse the image captured by said image capture device,” and we do not
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find JP ′139 to specify the same. Fig. 1 of JP ′139 of shows the CTV camera
(1) and a monitor television (2) serving as a display for the driver, but the
disclosure of JP ′139 does not specify that the captured image is reversed. It
could be reversed, as the Examiner suggests, so that the displayed backward
track is presented as a mirror image to the driver (Ans. 33), but we find this
to be speculative. As discussed at the Oral Hearing, alternate systems
provide the driver with a direct, i.e. non-reversed, view, such as on a bus
(Oral Hearing Transcript 31), such that we cannot say that the image
presented to the driver in JP ′139 must necessarily be reversed. As such, we
find that JP ′139 fails to teach all of the elements of claim 122 and the
Examiner erred in rejecting claim 122.

Obviousness over JP ′139 and JP ′318 under 35 U.S.C. § 103(a)
Evidence of Non-obviousness Based on Secondary Considerations
With respect to all of the obviousness rejections, Appellant has argued
that there is much evidence of non-obviousness based on secondary
considerations (App. Br. 22-23, 27, 29, 45-46, 53; Reply Br. 17-20). Rather
than deal with the evidence in a piecemeal fashion, we address this evidence
here with respect to all of the obviousness rejections.
Appellant has provided evidence of commercial success and long felt
but unsolved need (App. Br. Evidence Appx., Exhibit B, pp. 22-23). The
evidence of commercial success could well be true but Appellant has
provided no corroborating evidence of such success, such as sales and/or
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licensing information. While Appellant indicates license access to the ′331
Patent, there is nothing specific presented. With respect to the long felt
need, we do not doubt that avoiding backing over children or objects from a
standing start is important, but nothing is provided that shows that the ′331
Patent meets such need. We are not convinced that other systems, such as
those disclosed in JP ′139, JP ′700 or JP ′318 could not satisfy such need.
Additionally, Appellant argues that there was evidence of failure by
others, namely JP ′700 required detections of reverse travel and JP ′139
operated in response to a sensor (App. Br. Evidence Appx., Exhibit B, p.
22). However, as discussed supra, these aspects of the appealed claims we
find to not be taught by JP ′139; these aspects are not found in the claims
that we affirm the rejection of below. With respect to skepticism of experts
(id.), Appellant argues that despite the evidence of record having been filed
long ago, the vehicle systems with graphic overlays have only recently
begun to proliferate. This does not show, however, that other factors, such
as high cost, could not account for their slow adoption. In addition, we do
not find that Appellant has provided any evidence of copying that is not
based on conjecture (Reply Br. 19-20); i.e., independent development or
without knowledge of the ′331 Patent.
As such, we do not find that the evidence of non-obviousness based
on secondary considerations rises to a level necessary to refute any of the
obviousness rejections on that basis. Thus, we consider the propriety of the
obviousness rejections in terms of whether the prior art of record teaches or
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suggests the subject matter of the rejected claims.

Claims 12, 13, 15-17, 28-30, 32-34, 43, 44, 46-49, 53, and 62
With respect to claims 12, 13, 15-17, 28-30, 32-34, 43, 44, 46-49, 53,
and 62, Appellant argues that the rejection of these claims is improper
because JP ′139 and JP ′318 fail to teach or suggest all of the elements of
those claims. Appellant specifically argues the subject matter of claim 53
being common to claims in this group, and we select claim 53 as
representative as well.
With respect to claim 53, Appellant argues that JP ′318 fails to
disclose a display system that displays an image from the image capture
devices in a manner that approximates a substantially seamless panoramic
view because JP ′318 teaches that the images are kept distinct and spaced
apart (App. Br. 35-36). Appellant also argues that JP ′318 teaches away
from the subject matter of claim 53 because it teaches that the size and
position of the display areas are changeable (id.). The Examiner finds that
JP ′318 provides for a panoramic view that meets the limitations of claim 53
because JP ′318 provides the driver with opposite lateral side views in a
single display (Ans. 34-35). We agree with the Examiner.
While we agree with Appellant that JP ′318 does provide for resizing
of the display areas, JP ′318 also provides embodiments, such as Fig. 10, that
provide the display areas arranged so as to provide an apparent panoramic
view. Further, we agree with the Examiner that the language of claim 53,
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namely, “wherein said display system displays an image synthesized from
outputs of said image capture devices which approximates a substantially
seamless panoramic view,” does not require a seamless panoramic view, but
approximates view substantially like that. Given the claim limitations of
claim 53, we cannot say that JP ′318 (FF 7) would not suggest to one of
ordinary skill in the art to provide display images which approximates a
substantially seamless panoramic view.
Appellant also argues that the disclosure of JP ′318 teaches away from
the subject matter of claim 53, but we do not find the alternatives discussed
therein to rise to the level of negative teachings. “[T]he prior art’s mere
disclosure of more than one alternative does not constitute a teaching away
from any of these alternatives because such disclosure does not criticize,
discredit, or otherwise discourage the solution claimed . . ..” In re Fulton,
391 F.3d 1195, 1201 (Fed. Cir. 2004). Thus, we do not find that the
Examiner erred in rejecting claim 53, or claims 12, 13, 15-17, 28-30, 32-34,
43, 44, 46-49, and 62, as being obvious over JP ′139 and JP ′318.
Additionally, with respect to claims 28-30 and 32-34, Appellant
argues that the rejection of these claims is also improper for the same
reasons provided against the rejection of claims 20 (App. Br. 38). Because
we do not find Appellant’s arguments with respect to claim 20 to be
compelling, we do not find that the Examiner erred in rejecting claims 28-30
and 32-34 on this basis either.

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Claims 21-27, 37, 51, and 52
With respect to claims 21-27, 37, 51, and 52, Appellant does not
appear to argue the subject matter of these claims specifically, and merely
argues that those claims, along with others, are not taught or suggested by
the combination of JP ′139 and JP ′318. If an appellant fails to present
arguments on a particular issue – or, more broadly, on a particular rejection
– the Board will not, as a general matter, unilaterally review those
uncontested aspects of the rejection. See, e.g., Hyatt v. Dudas, 551 F.3d at
1313-14 (the Board may treat arguments appellant failed to make for a given
ground of rejection as waived). As such, we do not find that the Examiner
erred in rejecting claims 21-27, 37, 51, and 52 over JP ′139 and JP ′318.

Claims 36, 39-42, and 54
With respect to claims 36, 39-42, and 54, Appellant does not appear to
argue the subject matter of these claims specifically, merely arguing that
those claims, along with others, are not taught or suggested by JP ′139 and
JP ′318 (App. Br. 39). If an appellant fails to present arguments on a
particular issue – or, more broadly, on a particular rejection – the Board will
not, as a general matter, unilaterally review those uncontested aspects of the
rejection. See, e.g., Hyatt v. Dudas, 551 F.3d at 1313-14 (the Board may
treat arguments appellant failed to make for a given ground of rejection as
waived). As such, we do not find that the Examiner erred in rejecting claims
36, 39-42, and 54 as being obvious over JP ′139 and JP ′318.
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Claims 38, and 55-61
With respect to claims 38 and 55-61, Appellant argues that claims 38
and 55 are not obvious over the combination of JP ′139 and JP ′318 for at
least the reasons set forth with respect to claims 3 and 5 (App. Br. 36, 39).
We agree based on our discussion of claims 3 and 5 supra, given that claims
38 and 55 contain similar subject matter, namely the graphic overlay
comprising at least one horizontal mark. The Examiner relies solely on the
findings made with respect to the rejection of claims 3 and 5 (Ans. 36).
Claims 56-61 are not obvious over JP ′139 and JP ′318 in view of their
ultimate dependence on claim 55. Thus we find that the Examiner erred in
rejecting claims 38 and 55-61 over JP ′139 and JP ′318.

Obviousness over JP ′139 and JP ′700 under 35 U.S.C. § 103(a)
Claims 11 and 86
With respect to claims 11 and 86, Appellant argues that JP ′700 fails
to teach or suggest that the graphic overlay be displayed when the gear
selector is moved by the operator into its reverse gear, and that both JP ′139
and JP ′700 are responsive to motion and not gear position (App. Br. 40-46,
48). The Examiner finds that JP ′700 explicitly teaches that when the
reverse gear is detected by the reverse detection switch, the graphic overlay
is displayed (Ans. 37), and the Examiner also interprets the limitation of
“when” as disabling the overlay at or during the time that the reverse gear is
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actually disengaged (Ans. 39). Appellant responds that the recitation of the
“gear actuator” or “gear selector device” in the claims is different than a
reverse gear found in the transmission of a vehicle and can be understood in
the context of the Specification of the ′331 Patent (Reply Br. 10-15). We
generally agree with Appellant.
We agree that the vehicle’s gear actuator and the gear selector device
are understood in the context of the Specification to be a stalk or stick or
shifter that the driver can manually move to various positions (Reply Br.
11). We also agree that this is not the same as a reverse gear in a
transmission, although colloquially they can be synonyms in some instances.
Additionally, while there are dueling translations of the JP ′700 reference,
we find that JP ′700 clearly provides for detection of reverse travel, and not
detection of the position of the gear actuator (FF 8). While many times the
different detections, i.e., of gear selector position and actual travel, can
provide the same result, they are different and can provide different results
(for example, if the actuator is in “R,” but no motion has yet occurred).
In addition, claims 11 and 86 recite, in part, subject matter that
indicates that the graphic overlay is disabled when the gear actuator is not in
reverse gear. The Examiner finds that JP ′700 “teaches by contraposition
that if the graphic overlay is not displayed, then the reverse gear is not
detected by the reverse detection switch” (Ans. 19). We find, however, that
the recitations of claims 11 and 86 buttress Appellant’s argument and
undercut the Examiner’s finding of “when” in those claims does not create a
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causal connection. While the Examiner interprets “when” to mean only
happening at the same time, and thus not “upon” selection of the reverse
gear (Ans. 39-40), the latter recitations of claims 11 and 86 require disabling
the graphic overlay based on a specific occurrence.
As such, we find that both JP ′139 and JP ′700 teach specific means of
travel detection, other than gear actuator position (FF 4, 8), and one of
ordinary skill in the art would have been motivated to utilize those
methodologies. Thus, we find that JP ′139 and JP ′700 fail to teach or
suggest all of the elements of claims 11 and 86 and that the Examiner erred
in the rejection of those claims.

Claims 85, and 87-92
With respect to claims 85, and 87-92, Appellant argues that
independent claims 85, 87, 88, and 92 are not obvious over the combination
of JP ′139 and JP ′700 for at least the reasons set forth with respect to claims
3 and 11 (App. Br. 46-51). We agree based on our discussion of claims 3
and 11 supra, given that independent claims 85, 87, 88, and 92 contain
similar subject matter, namely the graphic overlay comprising at least one
horizontal mark. The Examiner relies solely on the findings made in the
rejection of claims 3, 5, and 11 with respect to the use of horizontal marks
(Ans. 42-44). Dependent claims 89-91 are not obvious over JP ′139 and JP
′700 in view of their dependencies. Thus we find that the Examiner erred in
rejecting claims 85, and 87-92 over JP ′139 and JP ′700.
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Obviousness over JP ′139 and Wang under 35 U.S.C. § 103(a)
Claims 14, 18, 19, 31, 35, 45, 50, 63, 64, 67, 72, 78, 116, 117, 119, and 121
With respect to claims 14, 18, 19, 31, 35, 45, 50, 63, 64, 67, 72, 78,
116, 117, 119, and 121, Appellant argues that there is no disclosure in JP
′139 of a pixilated CMOS imaging array and Wang fails to suggest the
particular use claimed in Appellant’s claims (App. Br. 52-55). Appellant
also argues that the “mere existence of CMOS cameras as an emerging
technology in the early ‘90s” does not render the cited claims obvious and
that Wang is cumulative over the prior art applied in the original
examination of the application for the ′331 Patent (App. Br. 52, 54). The
Examiner finds that Wang provides that a CMOS video camera is a high-
quality image sensor that can be implemented entirely in commodity ASIC
CMOS technology (Ans. 44-45). We agree with the Examiner.
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR, 550 U.S. at 415-16. The Court also affirmed that “when a patent
claims a structure already known in the prior art that is altered by the mere
substitution of one element for another known in the field, the combination
must do more than yield a predictable result.” Id. at 416 (citing United
States v. Adams, 383 U.S. 39, 50-51 (1966)). In the instant case, Wang’s
failure to disclose the use of the CMOS camera in vehicular applications is
not fatal to the rejection, and neither is the failure of JP ′139 to conceive of
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the use of a pixilated CMOS imaging array. The use of the camera from
Wang (FF 9) would be the substitution of one known element for another
from the prior art. We also take no issue with the fact that Wang may be
cumulative with other art cited in the original prosecution because that
original prosecution did not have JP ′139 before it, and it is the combination
of JP ′139 and Wang that we are concerned with in the instant rejection. As
such, we do not find Appellant’s arguments to be compelling and we do not
find that the Examiner erred in rejecting claims 14, 18, 19, 31, 35, 45, 50,
63, 64, 67, 72, 78, 116, 117, 119, and 121 as being obvious over JP ′139 and
Wang.

Claims 65, 66, 69, 77, and 118
With respect to claims 65, 66, 69, 77, and 118, Appellant argues that
JP ′139 and Wang fail to teach or suggest that “at least a portion of the
circuitry and the array of photo sensing elements being constructed on a
common semiconductor substrate” (App. Br. 55, 58, 61). The Examiner
finds the arguments with respect to the semiconductor substrate to be
“conclusory and thus unpersuasive” (Ans. 45). We agree with the Examiner.
As the Examiner found in the rejection, Wang is directed to a single
chip CMOS device and “thus at least a portion of the circuit and the photo
sensing array are constructed on a single substrate” (Ans. 22; FF 9). Since
we do not find that claims 65, 66, 69, 77, and 118 require more, we do not
find that the Examiner erred in finding that JP ′139 and Wang teaches or
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suggests all of the those elements of those claims.

Claims 68, 79, and 120
With respect to claims 68, 79, and 120, Appellant argues that those
claims are not obvious over the combination of JP ′139 and Wang for at least
the reasons set forth with respect to claim 122 (App. Br. 55-58, 61). We
agree based on our discussion of claim 122 supra, given that claims 68, 73,
79, and 120 similar subject matter, namely a video display screen that
displays in reverse the image captured by the image capture device. Thus
we find that the Examiner erred in rejecting claims 68, 73, 79, and 120 over
JP ′139 and Wang.

Claims 75, 76, and 80
With respect to claims 75, 76, and 80, Appellant argues that those
claims are patentable over the combination of JP ′139 and Wang for at least
the reasons set forth with respect to claims 19, 20, 65, and 70 (App. Br. 57-
58). Based on our discussion of those claims supra, we do not find
Appellant’s argument to be compelling. Thus we find that the Examiner did
not err in rejecting claims 68, 73, 79, and 120 over JP ′139 and Wang.

Claims 70-74 and 93-110
With respect to claims 93-110, Appellant argues that independent
claims 70, 93 and 102 are not obvious over the combination of JP ′139 and
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Wang for at least the reasons set forth with respect to claims 5 and 81 (App.
Br. 58-60). We agree based on our discussion of claims 5 and 81 supra,
given that independent claims 70, 93 and 102 contain similar subject matter.
Dependent claims 71-74, 94-101, and 103-110 are not obvious over JP ′139
and Wang in view of their dependencies. Thus we find that the Examiner
erred in rejecting claims 70-74 and 93-110 over JP ′139 and Wang.

Claims 130-134
With respect to claims 130-134, Appellant argues that claims 130-134
are not obvious over the combination of JP ′139 and Wang for at least the
reasons set forth with respect to claim 122 (App. Br. 54-55, 57). We agree
based on our discussion of claims 122 supra, in view of their dependencies.
Thus we find that the Examiner erred in rejecting claims 130-134 over JP
′139 and Wang.

CONCLUSION
We find that the Examiner did not err in determining that:
a1) claims 1, 2, 10, and 20 were anticipated under 35 U.S.C. § 102(b)
by JP ′139;
a2) claims 12, 13, 15-17, 21-30, 32-34, 36, 37, 39-44, 46-49, 51-54,
and 62 were obvious under 35 U.S.C. § 103(a) over JP ′139 and JP ′318; and
a3) claims 14, 18, 19, 31, 35, 45, 50, 63-67, 69, 75-78, 80, 116-119,
and 121 were obvious under 35 U.S.C. § 103(a) over JP ′139 and Wang.
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We also find that the Examiner erred in determining that:
r1) claims 3-9, 81-84, 111-115, and 122-129 were anticipated under
35 U.S.C. § 102(b) by JP ′139;
r2) claims 38 and 55-61 were obvious under 35 U.S.C. § 103(a) over
JP ′139 and JP ′318;
r3) claims 11 and 85-92 were obvious under 35 U.S.C. § 103(a) over
JP ′139 and JP ′700 (Ans. 18-20); and
r4) claims 68, 70-74, 79, 93-110, 120, and 130-134 were obvious
under 35 U.S.C. § 103(a) over JP ′139 and Wang.

DECISION
The decision of the Examiner to reject claims 1, 2, 10, 12-37, 39-54,
62-67, 69, 75-78, 80, 116-119, and 121 is AFFIRMED, and the decision of
the Examiner to reject claims 3-9, 11, 38, 55-61, 68, 70-74, 79, 81-115, 120,
and 122-134 is REVERSED.

AFFIRMED-IN-PART
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ack

cc:

APPELLANT / PATENT OWNER:
Frederick S. Burkhart
VAN DYKE GARDNER LINN & BURKHART
Post Office Box 888695
Grand Rapids, MI 49588

THIRD PARTY REQUESTER:
William H. Mandir
Sughrue Mion, PLLC
2100 Pennsylvania Avenue, N.W.
Suite 800
Washington, DC 20037