Ex Parte Rykowski et al

Board of Patent Appeals and Interferences

Sep 17, 2010

10653559 (B.P.A.I. Sep. 17, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte RONALD F. RYKOWSKI and
JEFFERY SCOTT HARRIS
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Appeal 2009-004176
Application 10/653,559
Technology Center 2600
_________________

Before JOSEPH F. RUGGIERO, MARC S. HOFF, and
THOMAS S. HAHN, Administrative Patent Judges.

HAHN, Administrative Patent Judge.

DECISION ON APPEAL1

Appellants invoke our review under 35 U.S.C. § 134(a) from the
Examiner’s final rejection of claims 1-4, 7-13, 16-26, 29, and 30.2 We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.

1 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”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

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STATEMENT OF THE CASE3
Appellants claim an apparatus and method for calibrating a visual
display having an array of pixels and corresponding subpixels by
determining chromaticity and luminance values for registered subpixels.
Determined chromaticity and luminance values are converted to measured
tristimulus values, and target chromaticity and luminance values for a given
color are converted to target tristimulus values. Differences between
measured and target tristimulus values are determined to calculate correction
factors for each registered subpixel.4 Claim 1 is illustrative:

1. A method for calibrating a visual display, the method comprising:
(a) analyzing a visual display module, the module comprising an array
of pixels and corresponding subpixels;
(b) locating and registering multiple subpixels of the visual display
module;

2 This appeal is related to commonly owned Appeal No.: 2009-003868
(Application: 10/455,146). We do not concur with the Appellants’ nor the
Examiner’s statements that there is no related appeal “hav[ing] a bearing on
the Board’s decision in this appeal” (Br. 2; Ans. 3). The submitted
arguments for both this appeal and also Appeal No.: 2009-003868 are
directed to the same cited art to address substantively similar bases for
rejections. We further find the Examiner’s discussions in both of the
Examiner’s Answers “Response to Argument” sections are substantively the
same for the two appeals. See 37 C.F.R. § 41.37 (c)(1)(ii).
3 Throughout this opinion we refer for their respective details to the
Specification filed Sep. 2, 2003, Appeal Brief filed Mar. 30, 2008, and
Examiner’s Answer mailed May 16, 2008.
4 See generally Spec. ¶¶ [0002], [0028], [0034], [0035], and [0037]-[0048];
Figs. 1-4, and 7.
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(c) determining a chromaticity value and a luminance value for each
registered subpixel;
(d) converting the chromaticity and luminance value for each
registered subpixel value to measured tristimulus values;
(e) converting a target chromaticity value and a target luminance
value for a given color to target tristimulus values;
(f) calculating correction factors for each registered subpixel based on
a difference between the measured tristimulus values and the target
tristimulus values; and
(g) sending the correction factors to the visual display module.
REJECTIONS5
The Examiner relies on the following prior art to show
unpatentability:6
Watanabe US 4,825,201 Apr. 25, 1989
McManus US 5,479,186 Dec. 26, 1995
Greene US 6,243,059 B1 June 5, 2001
Mendelson US 6,559,826 B1 May 6, 2003
Cottone US 6,677,958 B2 Jan. 13, 2004
Ott US 2004/0066515 A1 Apr. 8, 2004
Hsu US 2004/0179208 A1 Sep. 16, 2004

5 A rejection of claim 30 under § 112, first paragraph, (Final Action, mailed
July 24, 2007, ¶ 2) is withdrawn (Ans. 16).
6 Effective filing dates for these documents precede Appellants’ earliest
effective filing date and are not at issue.
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The Examiner, under 35 U.S.C. § 103(a), rejected:
1. Claims 1, 3, 4, 10, 12, 13, 16, and 29 as unpatentable over Greene and
Cottone (Ans. 5-8);
2. Claims 2 and 11 as unpatentable over Greene, Cottone, and
Mendelson (Ans. 9);
3. Claims 8, 9, 20, 21, and 22 as unpatentable over Greene, Cottone, and
Ott (Ans. 9-11);
4. Claims 23 and 24 as unpatentable over Greene, Cottone, Ott, and Hsu
(Ans. 11, 12);
5. Claims 7, 17, 18, and 19 as unpatentable over Greene, Cottone, and
Watanabe (Ans. 12, 13);7
6. Claim 30 as unpatentable over Greene, Cottone, Watanabe, and
McManus (Ans. 13-14); and
7. Claims 25 and 26 as unpatentable over Greene, Cottone, Ott, and
Watanabe (Ans. 14, 15).
ISSUE
The dispositive issue, based on the Examiner’s findings and
conclusions and the Appellants’ contentions, is whether the Examiner, under
§ 103(a), erred in combining Greene and Cottone to teach or suggest
converting measured subpixel chromaticity and luminance values to
measured tristimulus values, and converting target chromaticity and
luminance values for a given color to target tristimulus values as recited
claim 1.

7 The statement of rejection (Ans. 12) lists claim 31. No claim 31 is pending
and no claim 31 is addressed in the statement of reasons (id.). Accordingly,
we consider the listing of claim 31 in the statement of rejection to be a
harmless typographical error.
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ANALYSIS
Claims 1, 3, 4, 10, 12, 13, 16, and 29
Appellants premise their patentability arguments for these
claims on limitations recited in claim 1 (Br. 12-20). In part,
Appellants assert that the Examiner failed to provide an “apparent
rational reason” for combining Greene and Cottone to teach or suggest
converting chromaticity and luminance values into measured and
target tristimulus values as recited in steps (d) and (e) of claim 1 (Br.
17, 18).
The Examiner acknowledges that Greene does not teach
converting chromaticity and luminance values into tristimulus values
as recited in steps (d) and (e) of claim 1 (Final Action, p. 3). The
Examiner finds Cottone, though, teaches that:
the conversion between the CIE chromaticity coordinates (x, y) and
luminance value Y into the CIE tristimulus value (XYZ) is well
known in the art (Cottone---Col. 5, lines 9-15 and 50-52). At the time
the invention was made, it would have been obvious to a person of
ordinary skill in the art to convert the chromaticity and luminance
values into tristimulus values as taught by Cottone et al. in the method
for calibrating a visual display taught by Greene et al. so as to increase
the precision of color/brightness values. Furthermore it is well known
that color can be represented in different formats and any known
method of defining color/brightness will perform equally well at
helping calibrate a display.
(Final Action, pp. 3, 4).
Quoting the Examiner’s above discussion directed to combining
Greene and Cottone, Appellants argue that “the Examiner has failed to
provide any articulated reasoning as to why it would have been obvious to
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increase the precision of color/brightness values of Greene according to the
combined method of Cottone” (Br. 18). Disputing such arguments, the
Examiner states that:
The reason provided for combining Greene with Cottone (i.e. to
increase the precision of color/brightness values) is a valid motivation.
Furthermore, the conversion of chromaticity and luminance values to
tristimulus values is simply a conversion, like converting radians to
degrees. Lastly, tristimulus values are more precise because the
values are in one format as opposed to two (i.e. one luminance value
and two chromaticity values).
(Ans. 22.) We find the Examiner’s remaining discussion (see Ans. 22, 23)
to be conclusory statements.
On this record, we are persuaded by Appellants’ arguments. Turning
to the Examiner’s reasoning, we find alternative rationale asserted, namely,
(i) “conversion of chromaticity and luminance values to tristimulus values is
simply a conversion, like converting radians to degrees;” or (ii) “tristimulus
values are more precise because the values are in one format as opposed to
two . . .” (Ans. 22).
Concerning the first rationale, Appellants assert that “the Examiner
simply alleges that any method of defining color/brightness will perform
equally well, without any explanation of how or why this may be the case”
(Br. 18). We also do not find that the Examiner has addressed or provided
an explanation for how or why conversion to tristimulus values performs
equally well as chromaticity and luminance values or another value
conversion. Concerning the other rationale, i.e., precision of tristimulus
values, the Examiner asserts that “tristimulus values are more precise
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because the values are in one format as opposed to two (i.e. one luminance
value and two chromaticity values)” (Ans. 22). Again, we do not find that
the Examiner has provided reasoning with rational underpinning to support
the conclusion that conversion to tristimulus values increases precision for
color/brightness values.
Our reviewing court has stated that an Examiner’s articulated
reasoning for a rejection under § 103(a) must posses a rational underpinning
to support the legal conclusion of obviousness. In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006). Concordantly, the Supreme Court has stated that
“‘rejections on obviousness grounds cannot be sustained by mere conclusory
statements; instead, there must be some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.’” KSR
Int’l Co. v. Teleflex Inc. 550 U.S. 398, 418 (2007) (quoting Kahn, 441 F.3d
at 988).
Based on the record, we find the Examiner erred in modifying Greene
with Cottone because we do not find articulated reasoning possessing a
rational underpinning to support the combination. In particular, we do not
find that the Examiner articulated reasoning for how or why the Cottone
conversion to tristimulus values (i) performs equally well as chromaticity
and luminance values; or (ii) alternatively increases precision.
For the above reasons, we will reverse the Examiner’s rejection
of independent claim 1 and also will reverse the rejection of
independent claim 10 that substantively recites the same disputed
limitations (Br. 20). Further, for the same reasons, we will reverse the
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rejection of the claims in this group that are dependent from these
independent claims.
Claims 8, 9, and 20-22
I
Appellants argue that dependent claims 8, 9, 20, and 21 are
patentable because their base independent claims 1 and 10 are
patentable (Br. 21). These dependent claims are rejected under §
103(a) as unpatentable over Greene, Cottone, and Ott (Ans. 9-11).
Appellants contend that Ott fails to cure the asserted Greene and
Cottone deficiencies (Br. 21). On reviewing Ott, we find that the
Greene and Cottone deficiencies are not cured. The Examiner
continues reliance on Greene and Cottone as not being deficient for
the disputed base independent claim limitations (Ans. 25, 26).
For the reasons discussed supra, we will also reverse the
rejection of these dependent claims 8, 9, 20, and 21.
II
Appellants argue that independent claim 22 is patentable
because the cited references, either alone or in combination, fail to
disclose or suggest recited limitations that are similar to the disputed
limitations of claim 1 (Br. 21). The Examiner continues reliance on
Greene and Cottone as not being deficient (Ans. 25, 26). For the
reasons discussed supra, we will also reverse the rejection of claim
22.
Claims 2, 7, 11, 17-19, 23, and 24-26
Appellants argue that these dependent claims are patentable
because their base independent claims 1, 10, and 22 are patentable
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(Br. 20-23). These claims are rejected under § 103(a) as unpatentable
over Greene, Cottone, and various combinations with Mendelson, Ott,
Hsu, and Watanabe (Ans. 9 and 11-15). Appellants contend that the
further references fail to cure the asserted Greene and Cottone
deficiencies (Br. 22, 23). (Appellants do not separately argue the
patentability of dependent claims 25 and 26, but list these claims in
the Conclusion (Br. 24) as being patentable for the prior asserted
reasons.) On reviewing the additional references, we find that the
Greene and Cottone deficiencies are not cured. The Examiner
continues reliance on Greene and Cottone as not being deficient for
the disputed base independent claim limitations (Ans. 25, 26).
For the reasons discussed supra, we will also reverse the
rejections of these dependent claims 2, 7, 11, 17-19, 23, and 24-26.
Claim 30
This is an independent claim rejected under § 103(a) as
unpatentable over Greene, Cottone, Watanabe, and McManus (Ans.
13, 14). Appellants argue that the claim is patentable because the
cited references, either alone or in combination, fail to disclose or
suggest limitations that are similar to the disputed claim 1 limitations
(Br. 23). The Examiner continues reliance on Greene and Cottone as
not being deficient for the claim 1 disputed limitations (Ans. 25, 26).
For the reasons discussed supra, we will also reverse the
rejection of claim 30.

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ORDER
The Examiner’s decision rejecting claims 1-4, 7-13, 16-26, 29, and 30
is reversed.
REVERSED

KIS

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