Ex Parte Overbeck et al

Patent Trial and Appeal Board

Mar 12, 2018

13827964 (P.T.A.B. Mar. 12, 2018)

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.
13/827,964 03/14/2013 Ryan Styles Overbeck GGL-235 7196
100462 7590
Dority & Manning P.A. and Google LLC
Post Office Box 1449
Greenville, SC 29602
EXAMINER
BUTTRAM, ALAN T
ART UNIT PAPER NUMBER
2613
NOTIFICATION DATE DELIVERY MODE
03/14/2018 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):
u sdocketing @ dority-manning .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RYAN STYLES OVERBECK and
JANNE KONTKANEN
Appeal 2016-007681
Application 13/827,9641
Technology Center 2600
Before JEFFREY S. SMITH, MICHAEL J. STRAUSS, and
IRVIN E. BRANCH, Administrative Patent Judges.
BRANCH, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-20, which are all of the claims pending in the application. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART and enter NEW GROUNDS OF
REJECTION UNDER 37 C.F.R. § 41.50(b).
Technology
The application relates to rendering vector data in conjunction with a
three-dimensional model. Spec. Abstract.
1 According to Appellants, the real party in interest is Google Inc. App. Br.
3.
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Application 13/827,964
Illustrative Claim
Claim 1 is illustrative and reproduced below with the limitations at
issue emphasized:
1. A computer-implemented method for rendering vector
data in conjunction with a three-dimensional model, comprising:
presenting, by one or more computing devices, a viewport
in a user interface on a display device;
rendering, by the one or more computing devices, the
three-dimensional model in the viewport, the three-dimensional
model comprising terrain geometry providing a representation of
terrain of a geographic area;
rendering, by the one or more computing devices, a
transparent draping layer overlaying the three-dimensional
model with a depth offset relative to the terrain geometry, and
texture mapping, by the one or more computing devices,
the vector data to the transparent draping layer such that the
vector data appears to be located along a surface of the three-
dimensional model in the viewport.
Rejections
Claims 1, 2, 4-6, 13, and 15-19 stand rejected under pre-AIA 35
U.S.C. § 103(a) as unpatentable over the combination of Ben-David
(US 2013/0009950 Al; publ. Jan. 10, 2013), Rashpal Kor & G.R. Panesar,
Terrain Rendering Based On GeoMipMapping Algorithm Using OpenGL,
Int’l Conf. Comp. Graphics and Virtual Reality, 231-36 (CGVR) (2009)
(hereinafter “Kor”), and Turner (US 2011/0158504 Al; publ. June 30,
2011). Final Act. 3-7.
Claim 3 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over the combination of Ben-David, Kor, Turner, and Nigam
(US 2014/0232734 Al; publ. Aug. 21, 2014). Final Act. 7-8.
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Claims 7, 8, and 14 stand rejected under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over the combination of Ben-David, Kor, Turner, and
Hernandez Esteban (US 2013/0083015 Al; publ. Apr. 4, 2013) (hereinafter
“Hernandez”). Final Act. 8-11.
Claim 9 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over the combination of Ben-David, Kor, Turner, Hernandez,
and Corbetta (US 2003/0112237 Al; publ. June 19, 2003). Final Act. 11-
13.
Claim 10 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over the combination of Ben-David, Kor, Turner, Hernandez,
Corbetta, and Rouet (US 2014/0218390 Al; publ. Aug. 7, 2014). Final Act.
13-15.
Claims 11 and 20 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Ben-David, Kor, Turner,
Hernandez, Corbetta, Rouet, and Baldwin (US 7,505,036 Bl; iss. Mar. 17,
2009). Final Act. 15-16.
Claim 12 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over the combination of Ben-David, Kor, Turner, and Moore
(US 2002/0145615 Al; publ. Oct. 10, 2002). Final Act. 16-17.
ANAFYSIS
Claim 1
Claim 1 recites, in pertinent part, “rendering, by the one or more
computing devices, a transparent draping layer overlaying the three-
dimensional model with a depth offset relative to the terrain geometry.”
Appellants argue error in the Examiner’s rejection of claim 1 because
Kor does not disclose a “transparent draping layer overlaying the three-
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dimensional model,” as the Examiner finds (Final Act. 4-5 (citing Kor
Abstract), Turner does not disclose “a depth offset relative to the terrain
geometry,” as the Examiner finds {id. at 5), and the Examiner’s rejection is
based on improper hindsight analysis because of the “complete lack of
disclosure in the cited art to a ‘transparent draping layer’ and ‘a depth offset
relative to terrain geometry.’” App. Br. 8-10. See Reply Br. 2-5.
The Examiner finds—and Appellants do not dispute—that Kor
discloses a textured draping layer. Final Act. 4-5 (citing Kor Abstract). The
Examiner finds Kor’s disclosure of draping a textured 2D layer that shows,
for example, grass and snow, over 3D terrain includes transparent areas
“inherently.” Ans. 17.
We do not agree that transparent areas are “necessarily” present in
Kor’s 2D textured layer, as Appellants argue persuasively. See Reply Br. 2-
4. Instead, we find that such a minor modification would have been within
the skill of the ordinarily skill artisan at the time of Appellants’ invention
and therefore obvious.
The mere existence of differences between the prior art and the claim
does not establish non-obviousness. See Dann v. Johnston, 425 U.S. 219,
230 (1976). Instead, the relevant question is “whether the difference
between the prior art and the subject matter in question is a [difference]
sufficient to render the claimed subject matter unobvious to one skilled in
the applicable art.” Dann, 425 U.S. at 228 (internal quotations and citations
omitted). Indeed, the Supreme Court made clear that when considering
obviousness, “[o]ften, it will be necessary for a court to look to . . . the
background knowledge possessed by a person having ordinary skill in the
art, . . . [and] the analysis need not seek out precise teachings directed to the
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specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Further, one cannot show non-obviousness by attacking references
individually when the rejection is based on a combination of references. See
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re
Keller, 642 F.2d 413, 425 (CCPA 1981).
Here, painting a layer to be “transparent,” over a layer painted, for
example, white, for snow, would have been a simple modification for an
ordinarily skilled artisan in the field of multidimensional graphics rendering
in view of the combined teachings of the cited references. Other references
cited in the record before us show that implementing this function was
within the background knowledge of one of ordinary skill. See generally,
e.g., Baldwin and Moore (cited in the rejections of claims 11, 12, and 20).
Accordingly, we are not persuaded that claim 1 is patentable over the cited
references.2
We otherwise rely on the Examiner’s findings and conclusion that
claim 1 is obvious (Final Act. 3-5), and the Examiner’s response to
Appellants’ arguments (Ans. 17-18; App. Br. 9-10; Reply Br. 4-5). In
particular, we are not persuaded the references lack the claimed “depth
offset relative to the terrain geometry” (App. Br. 9-10; Reply Br. 4-5),
because we agree with the Examiner that relativeness of offsets among
layers is inherent in layers placed relative to a coordinate system (Ans. 19).
We also are not persuaded that the Examiner’s reasoning in rejecting claim 1
2 We designate our affirmance a new ground of rejection, which we address
infra. 37 C.F.R. § 41.50(b).
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relies on improper hindsight (App. Br. 10) because that argument is based on
a premise with which we do not agree, namely the prior art completely
lacking the disclosure of the limitations we just addressed. Id.
Accordingly, we sustain the rejection of claim 1.
Claim 9
Appellants argue error in the rejection of claim 9 because “[njothing
in Corbetta teaches or suggests rendering ‘building geometry’ or ‘terrain
geometry,’ let alone with a ‘first stencil value’ and a ‘second stencil value,”’
as in claim 9. App. Br. 13-14. In response, the Examiner finds as follows:
Even though Corbetta does not explicitly teach a second stencil
value, it is obvious to one skilled that each object could have
separate stencil values and be rendered as such (Corbetta: para.
44 and 145). The whole purpose of stencil masks is to limit the
area of rendering so one object does not occlude another.
Therefore, each object could have its own stencil mask.
Ans. 18. On this record, although terse, we find the Examiner’s additional
unrebutted findings sufficient to rebut Appellants’ limited explanation as to
why Corbetta is deficient with respect to the argued limitations.
Accordingly, we sustain the rejection of claim 9.
Claim 10
Appellants’ arguments persuade us to a different conclusion regarding
claim 10. Claim 10 recites, in pertinent part, clearing a depth buffer “with
depth write and depth test off.” The Examiner does not dispute that Rouet
lacks depth write and depth test (Final Act. 14 (“there is no mention of a
depth write or depth test”)) but instead finds “it would be inherent for them
to be ‘off” (id.) and “having the depth write or depth test non-existent is the
same end result of having them turned off and is therefore analogous.” Ans.
18.
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Appellants’ arguments persuade us the Examiner has erred in
rejecting claim 10. App. Br. 14-16.
Thus, we do not sustain the rejection of claim 10.
Summary
We affirm the rejection of claim 1 and of claims 15 and 19, which
Appellants argue on the same basis, and of claims 2, 4-6, 13, and 16-19,
which Appellants do not argue with particularity, relying instead on
allowability of the independent claims from which they depend. See App.
Br. 10-11. We designate our affirmance of the rejection of claims 1, 2, 4-6,
13, and 15-19 a new ground of rejection. 37 C.F.R. § 41.50(b). We also
affirm the rejection of claim 9 and designate our affirmance a new ground
because of its dependency from claim 1. We also affirm the rejections of
claims 3,7, 8, 12, and 14, which Appellants do not argue with particularity,
relying instead on allowability of the claims from which they depend, adding
that Nigam, Hernandez, and Moore fail to cure deficiencies we do not find.
Id. at 12, 17. We designate our affirmance a new ground in view of the
dependency of these claims from claims 1 and 15.
We reverse the rejection of claim 10, the rejection of claim 11 because
it depends from claim 10, and of claim 20 for the same reason as claim 10.
DECISION
For the reasons above, we affirm the Examiner’s decision rejecting
claims 1-9 and 12-19, designating our affirmance a new ground of rejection,
and we reverse the rejections of claims 10, 11, and 20.
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TIME TO RESPOND
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). Section 41.50(b) provides that “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.” Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be
reheard under §41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01 (9th
Ed., Rev.08.2017, Jan. 2018).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
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AFFIRMED-IN-PART: 37 C.F.R. § 41.50(Vt
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