Ex Parte Gusler et al

Board of Patent Appeals and Interferences

Jul 27, 2012

11466245 (B.P.A.I. Jul. 27, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CARL PHILLIP GUSLER, RICK ALLEN HAMILTON II,
BRIAN MARSHALL O’CONNELL, and KEITH RAYMOND WALKER
____________

Appeal 2010-000281
Application 11/466,245
Technology Center 2600
____________

Before CARLA M. KRIVAK., CARL W. WHITEHEAD, JR. and
JAMES R. HUGHES, Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-000281
Application 11/466,245

2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1, 5, 6 and 8-21. Appeal Brief 2. We have jurisdiction under 35
U.S.C. § 6(b) (2002). We affirm.

Introduction
The invention is directed to a method and system for changing visual
characteristics of a presentation displayed on a display screen. Appeal Brief
3.

Exemplary Claim
Exemplary independent claim 1 under appeal reads as follows:
1. A method for changing visual characteristics of a presentation displayed
on a display screen of a display device in response to a position of a viewer
relative to said display screen, said method comprising:

determining a viewer distance at which said viewer is positioned in front of
said display screen;

determining a viewer angle of sight between said viewer and said display
screen;

changing said visual characteristics of said presentation in response to said
position of said viewer relative to said display screen whereby size and
viewable content of text or images of a display screen presentation are
modified in response to both said viewer distance and said viewer angle of
sight.

Appeal 2010-000281
Application 11/466,245

3
Rejections on Appeal
Claims 1, 5, 6, 8-12, 18, 20 and 21 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Lee (U.S. Patent Application
Publication Number 2003/0234799 A1; published December 25, 2003) and
Hu (U.S. Patent Application Publication Number 2004/0240708 A1;
published December 2, 2004). Answer 4-10.
Claims 13-17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lee, Hu and Breed (U.S. Patent Application Publication
Number 2008/0046150 A1; published February 21, 2008). Answer 10-13.
Claims 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lee, Hu and Gutta (U.S. Patent Number 6,931,596 B2;
published August 16, 2005). Answer 13-14.

Issue on Appeal
The dispositive issue is: Do Lee and Hu, either alone or in
combination, disclose a method for changing the visual characteristics of a
presentation displayed on a display screen “whereby size and viewable
content of text or images of a display screen presentation are modified in
response to both said viewer distance and said viewer angle of sight,” as
recited in claim 1.

ANALYSIS
Claims 1, 5, 6, 8-12, 18, 20 and 21
Appellants argue that “Lee does not disclose or suggest determining
or using a viewer direction or angle of sight for any reason whatsoever.”
Appeal Brief 16. Appellants’ contentions echo the Examiner’s findings in
Appeal 2010-000281
Application 11/466,245

4
that the Examiner finds, “Lee does not disclose ʻdetermining a viewer angle
of sight between said viewer and said display screenʼ and modifying the
ʻviewable content of text or images of a display screen presentationʼ in
response to the viewer angle of sight.” Answer 4.
The Examiner relies upon Hu to address Lee’s deficiencies:

Hu, however, teaches a method to provide interaction
between a computer system with a display and a user by
assessing the pose of the user and determining which area
of the display is in the user attention, see par. [0007],
whereby an application among different applications that
are simultaneously displayed in a desktop system is
selected, see par. [0047], and detecting the angle of the
pose, see par. [0014], using a camera, that is, a sensor, see
par. [0044].

Answer 4-5.
Appellants argue that Hu is insufficient in addressing Lee’s deficiencies:
However, Hu does not disclose or suggest using a viewer's
angle of sight (between the viewer and the display screen)
to make viewable content of a screen presentation in
which a portion of the presentation is otherwise "off-
screen" and therefore un-viewable because of the
enlargement of the displayed elements of the presentation.
This novel use of the viewer angle between the viewer's
head and the display screen to enable a viewer to see
otherwise "off-screen" content is included in claim 1 as
herein amended, but is nowhere to be found or suggested
in any of the applied references including Lee and/or Hu
and/or even a hypothetical combination of Lee and Hu.

Appeal Brief 16-17.

Appeal 2010-000281
Application 11/466,245

5
The Examiner contends, “[T]here is no limitation within the claims
that expresses that modifying the display in terms of viewer distance and
viewer's angle of sight adapts the display such that elements that were off-
screen will be viewable depending on the angle of sight.” Answer 15. We
agree the claims are silent in regard to “off-screen” content and we do not
find Appellants’ arguments to be persuasive because they are not
commensurate with the scope of the claims. Further, we agree with the
Examiner that Hu teaches determining a viewer angle (angle of the viewer’s
head pose). Answer 4 (citing Hu ¶ [0014]).
Appellants also argue that the references teach away from the
combination of Hu and Lee because, “Hu's tilt of the head would not cause
any display change in the Lee system since the head remains the same
distance away from the display screen.” Appeal Brief 17. “Further, Lee's
head movement to vary the size of images on the display screen would not
operate in Hu's system to switch active windows if there is no head tilt
detected.” Id.
The Examiner finds:
Hu explicitly teaches assessing the head pose of a user in
order to track the user's attention area based on an
estimated head pose, literally "the region of the display
or graphical user interface that the user is looking
towards can be automatically selected without requiring
the user to provide further inputs" (par. [0007]), and the
system tracks the user's head, such that "final yaw and tilt
angle" results are provided to a mouse interface or the like
to select documents (par. [0008]), and that when the user
turns his/her head to view a different selectable region of
the computer display, the computer device will switch the
user input focus to the region viewed (par. [0009]). It is
therefore quite clear that Hu detects the angle of sight of
Appeal 2010-000281
Application 11/466,245

6
the viewer with respect to the display device, and not mere
head poses as the appellant characterizes.

Answer 15-16.
We agree with the Examiner’s findings because, contrary to
Appellants argument, nothing in Hu would have discouraged a person
skilled in the art from making such a modification to Lee’s invention. See In
re ICON Health & Fitness, Inc., 496 F.3d 1374, 1381 (Fed. Cir. 2007) (“A
reference may be said to teach away when a person of ordinary skill, upon
reading the reference, would be discouraged from following the path set out
in the reference, or would be led in a direction divergent from the path that
was taken by the applicant.” (citation omitted)). Attorney “argument . . .
cannot take the place of evidence.” In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974). See, e.g., In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997)
(attorney arguments or conclusory statements are insufficient to rebut a
prima facie case).
Therefore we sustain the Examiner’s obviousness rejection of claims
1, 5, 6, 8-12, 18, 20 and 21.

Claims 13-17
Appellants argue that the addition of Breed does not address the noted
deficiencies of the “forced” combination of Lee and Hu. Appeal Brief
18. Appellants also argue that Breed is non-analogous art because “his
‘system for sensing vehicle impact’ can not be used to suggest the use of
infrared sensing of a viewer’s head relative to a display screen.” Id.

Appeal 2010-000281
Application 11/466,245

7
The Examiner finds:
Although Breed uses an individual's distance from a
device for purposes different than those in Lee, both Lee
and Breed disclose systems that require using sensors in
order to estimate a distance from a device to a human
being, and use this information for further processing.
Moreover, the Examiner notes that the combination of two
references that are not in a related art is justified if both
references are concerned with solving a common problem.
As discussed above, both Breed and Lee need to solve the
issue of detecting the distance from an individual to their
respective devices and do so in the same way.

Answer 18.
As stated in In re Kahn, 441 F.3d 977 (Fed. Cir. 2006), “[t]he
analogous-art test requires that the Board show that a reference is either in
the field of the applicant's endeavor or is reasonably pertinent to the problem
with which the inventor was concerned in order to rely on that reference as a
basis for rejection.” Id. at 986-87 (citing Oetiker, 977 F.2d 1443, 1447 (Fed.
Cir. 1992)). Also, Appellants have indicated, “[A]s expressed by the
applicant in the specification, any of many available distance measuring
systems may be used as the distance measuring component of the claimed
combination.” Appeal Brief 18-19. Breed discloses a system that uses a
specific type of sensor to detect or estimate distance. We agree with the
Examiner findings and sustain the Examiner’s rejection of claims 13-17.

Claim 19
Appellants argue:
Gutta discloses rotating a display device but does not teach
or suggest changing the visual characteristics of a
Appeal 2010-000281
Application 11/466,245

8
displayed presentation to a group of viewers and [sic]
disclosed and claimed by the applicant. Thus, even a
hypothetical combination of Lee, Hu and Gutta, fails to
even suggest the combination recited in claim 19 including
the limitations contained in claim 1 from which claim 19
depends.

Appeal Brief 20.
We agree with Appellants that Gutta does not disclose changing the
visual characteristics of a displayed presentation to a group of viewers.
However it is respectfully noted that the Examiner only relied upon Gutta to
disclose “adjusting the position of a display based on the detected position of
a group of viewers.” See Answer 13. We agree with the Examiner findings
and we sustain the Examiner’s rejection of claim 19.

DECISION
The rejections of claims 1, 5, 6, and 8-21 are affirmed.
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). See 37
C.F.R. § 41.50(f).

AFFIRMED

pgc