Ex Parte Karman et al

Patent Trial and Appeal Board

Feb 27, 2014

10574140 (P.T.A.B. Feb. 27, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte GERARDUS P. KARMAN
and VOLKER SCHOELLMANN
____________________

Appeal 2011-008369
Application 10/574,140
Technology Center 2600
____________________

Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-22 and 24-35. We have jurisdiction under 35 U.S.C. § 6(b). The
Examiner has withdrawn the rejection of claims 18 and 31, which are
indicated as now objected to as being dependent upon a rejected base claim,
but would be allowable if rewritten in independent form including all the
limitations of the base claim and any intervening claims. (Ans. 19).1 Claims
23 and 36 have been cancelled.
We affirm.
The claims are directed to optimising brightness control in a three
dimensional image display device. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A display device for displaying a three dimensional image
such that different views are displayed according to different
viewing angles, the display device including:

a display panel having a plurality of separately addressable
pixels for displaying said image, the pixels being grouped such
that different pixels in a group correspond to different views of
the image as a function of an angle with respect to a first axis,
each pixel in a group being positioned relative to a respective
discrete light source;

a display driver for controlling an optical characteristic of
each pixel to generate an image according to received image
data; and

an intensity compensation device for further controlling light
transmission characteristics of pixels within a group to
compensate for an angular size of view, of the respective light

1 Note that these two claims are still rejected under nonstatutory
obviousness-type double patenting.
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source, via said pixels in a second axis of the display panel,
wherein the second axis is transverse to the first axis.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Akamatsu US 6,172,807 B1 Jan. 9, 2001
Balogh US 2001/0028356 A1 Oct. 11, 2001
Mochizuki US 6,386,720 B1 May 14, 2002
Sawabe US 7,113,159 B2 Sep. 26, 2006

REJECTIONS
The Examiner made the following rejections:
Claims 1-13, 22, 24-26, and 35 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Balogh in view of Sawabe.
Claims 14-17 and 27-30 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Balogh in view of Sawabe as applied to claims 1
and 22 above, and further in view of Akamatsu.
Claims 19-21 and 32-34 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Balogh in view of Sawabe as applied to claims 1
and 22 above, and further in view of Mochizuki.
Claims 1-22 and 24-35 are provisionally rejected on the ground of
nonstatutory obviousness-type double patenting as being unpatentable over
claims 1-18 and 20-27 of co-pending Application No. 10/574,142.

Appellants seek our review of the all the rejections in the final
rejection. (Notice of Appeal).
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ANALYSIS
Obviousness-Type Double Patenting
Appellants do not respond to the Examiner’s obviousness-type double
patenting rejection, but merely state “[t]he Applicants have acknowledged
this provisional rejection and will address the rejection if the claims of the
applications are deemed allowable and remain subject of a non-provisional
double patenting rejection.” (App. Br. 4, n.1 (emphasis omitted)). Since
Appellants have not substantively responded to the rejection, but appealed
all rejections in the final, we pro forma affirm the Examiner’s rejection of
claims 1-22 and 24-35.
Obviousness
With respect to claims 1-13, 22, 24-26, and 35, Appellants argue the
claims as a group. (App. Br. 4). Therefore, we select independent claim 1
as the representative claim for the grouping. Appellants contend that neither
Balogh nor Sawabe discloses or suggests “an intensity compensation device
for further controlling light transmission characteristics of pixels within a
group to compensate for an angular size of view, of the respective light
source, via said pixels,” as recited in claim 1. (App. Br. 5). The Examiner
has relied upon the Sawabe reference to teach and suggest the intensity
compensation device. (Ans. 5). Appellants contend that independent claim
1 is directed to a “‘display device for displaying a three dimensional image’”
and the grouping of pixels is related to three-dimensional image that will be
displayed by the display device. (App. Br. 5). Appellants contend this is not
the case for the two dimensional display such as described by the Sawabe
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reference. Appellants provide a detailed description of the three-
dimensional displays and two dimensional displays. (App. Br. 5-6).
The Examiner maintains that claim 1 only sets forth three-dimensional
display in the preamble and the body of the claim sets forth no meaningful
limitations thereto. (Ans. 19). We agree with the Examiner. We note that
Appellants did not file a Reply Brief to respond to the Examiner’s detailed
responsive arguments. Furthermore, we find the “image” is directed to
nonfunctional descriptive material which does not structurally distinguish
the claimed “display device” including a “display panel,” “display driver,”
and “intensity compensation device.”
The informational content of non-functional descriptive material is
not entitled to weight in the patentability analysis. See In re Lowry, 32 F.3d
1579, 1583 (Fed. Cir. 1994) (“Lowry does not claim merely the information
content of a memory. . . . Nor does he seek to patent the content of
information resident in a database.”). See also Ex parte Nehls, 88 USPQ2d
1883, 1887-90 (BPAI 2008) (precedential); Ex parte Curry, 84 USPQ2d
1272 (BPAI 2005) (informative), aff’d, No. 2006-1003 (Fed. Cir. June 12,
2006) (Rule 36); Ex parte Mathias, 84 USPQ2d 1276 (BPAI 2005)
(informative), aff’d, 191 Fed. Appx. 959 (Fed. Cir. 2006).
Appellants merely set forth the label “three-dimensional image” in the
preamble, but identify no structural limitations with which to differentiate
the claimed display device.
Appellants further contend that the Sawabe reference is a binary
adjustment for a two-dimensional display and that both viewers will see the
same pixels as the viewer at narrow viewing angles and wide viewing angles
(App. Br. 6).
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Appellants further contend:
because “the pixels [are] grouped such that different pixels in a
group correspond to different views of the image as a function
of an angle. That is, viewers at different viewing angles are not
seeing the same pixels, they are seeing the pixels that
correspond to the viewing angle at which they are viewing the
display. A viewer at a first angle sees a “different view[] of the
image” than a viewer at a second angle.

(App. Br. 6 (alteration in original)). The Examiner maintains that
Appellants’ argument is not commensurate in scope with the express
language of independent claim 1 and does not specify beyond what is taught
by the Sawabe reference. (Ans. 20). The Examiner maintains:
the correction of Sawabe would be improper if applied to all the
pixels in the group, but the claim language merely discusses
controlling the pixels within a group, rather than individually
controlling a correction factor to be applied to each pixel.
Generally, Appellant appears to be arguing that Sawabe fails to
teach individually correcting pixel values for a three-
dimensional display which projects the image from each pixel
in a different direction, but the claim language does not reflect
these arguments.

(Ans. 20). We agree with the Examiner and further find Appellants’
argument does not show any structural difference in the claimed display
device. Appellants further repeat the language of independent claim 1 and
maintain “neither Balogh nor Sawabe, either alone or in combination, teach
or suggest” the claimed limitation. (App. Br. 7). Merely reciting the
language of the claim is insufficient. See 37 C.F.R. § 41.37(c)(vii) (“A
statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim.”). Merely
alleging that the references fail to support the rejection is insufficient to
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persuade us of Examiner error. Attorney arguments and conclusory
statements that are unsupported by factual evidence are entitled to little
probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see
also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); and Ex parte
Belinne, No. 2009-004693, slip op. at 7-8 (BPAI Aug. 10, 2009)
(informative), available at
http://www.uspto.gov/web/offices/dcom/bpai/its/fd09004693.pdf.
Therefore, Appellants have not shown error in the Examiner’s
conclusion of obviousness and we sustain the rejection of representative
independent claim 1, and dependent claims 2-13 not argued separately.
With respect to independent claim 22, Appellants advance the same
arguments as with independent claim 1. (App. Br. 7-8). Since we found in
those arguments unpersuasive with respect to independent claim 1, we
similarly find them unpersuasive with respect to independent claim 22, and
dependent claims 24-26 and 35 not argued separately.
With respect to claims 14-17 and 27-30, Appellants repeat the
language of the claim and maintain that the Akamatsu reference does not
remedy the deficiency in the combination of Balogh and Sawabe as applied
to claims 1 and 22. We find Appellants’ arguments unpersuasive of error in
the Examiner’s conclusion of obviousness of representative claim 14.
With respect to claims 19-21 and 32-34, Appellants repeat the
language of the claim and maintain that the Mochizuki reference does not
remedy the deficiency in the combination of Balogh and Sawabe as applied
to claims 1 and 22. We find Appellants’ arguments unpersuasive of error in
the Examiner’s conclusion of obviousness of representative claim 19.

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CONCLUSIONS OF LAW
The Examiner did not err in rejecting claims 1-22 and 24-35 based
upon nonstatutory obviousness-type double patenting.
The Examiner did not err in rejecting claims 1-17, 19-22, 24-30, and
32-35 based upon obviousness.

DECISION
For the above reasons, the Examiner’s rejections of claims 1-22 and
24-35 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).

AFFIRMED

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