Ex Parte Schmeder et al

Patent Trial and Appeal Board

Feb 28, 2019

14014991 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/014,991 08/30/2013
90323 7590 03/04/2019
Innovation Counsel LLP
2890 Zanker Road
Suite 200
San Jose, CA 95134
FIRST NAMED INVENTOR
Andrew W. Schmeder
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
ENCH00002 US 2685
EXAMINER
PICHLER, MARIN
ART UNIT PAPER NUMBER
2872
NOTIFICATION DATE DELIVERY MODE
03/04/2019 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):
ptomail@innovationcounsel.com
docket@innovationcounsel.com
admin@innovationcounsel.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW W. SCHMEDER
and DONALD M. MCPHERSON
Appeal2018-003581
Application 14/014,991
Technology Center 2800
Before JEFFREY B. ROBERTSON, GEORGE C. BEST,
and MICHAEL G. McMANUS, Administrative Patent Judges.
McMANUS, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1-3, 13-18, 25, 26, 33, 34, 37,
41, and 43-52 of Application 14/014,991 under 35 U.S.C. §§ 102 and 103.
Final Act. (Sept. 9, 2016) 3-15. Appellant 1 seeks reversal of these rejections
pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b).
For the reasons set forth below, we REVERSE.
1 The Appellant is the Applicant, EnChroma, Inc., which is also identified as
the real party in interest. Appeal Br. 2.
Appeal2018-003581
Application 14/014,991
BACKGROUND
The present application generally relates to optical filters. Spec. ,r 2.
More particularly, it relates to optical filters that regulate and/or enhance
chromatic and luminous aspects of the color appearance of light. Id. Such
optical filters may be useful in applications such as ophthalmic lenses and
radiation-protective eyewear. Id.
Certain filters enhance the discrimination between red and green
colors "by increasing the apparent chromatic purity of red and green colors."
Id. ,r 14. This may increase red-green color discrimination for an observer
with red-green color vision deficiency. Id. ,r 67. The Specification teaches
that, "[u]nless otherwise constrained, filters that are designed to increase
red-green color discrimination may tend to lower the transmission of yellow
light, which may cause a yellow traffic signal to appear darker and more
similar to red ( e.g., orange or reddish)." Id. ,r 328. The Specification further
teaches that, "[t]o avoid this and similar potential problems, filters that are to
be incorporated in general purpose eyewear such as sunglasses, for example,
may be configured so that the resulting eyewear provide a regulated
appearance of certain colors, in particular those of average daylight and
traffic signal lights." Id.
This configuration is shown graphically in Figure 15B, reproduced
below.
2
Appeal2018-003581
Application 14/014,991
0~·111'' LLL J r ..... ; TT :' ~ .. / ... ·. r :LI
~ ~:: . .i. .......... :.11 t 1\ .. ···················\ AL ...... \ ; I i ::: 1·············,·······1······················.····················1·······.·······,· ····················1····1·1··············· ··,··························1
ro: .~
, t ! . \" i i
: ~ I ~ L ....... · ..... ·... . . J . \ . /·I'.. -. l I I
. LJ···c·····~····:·········· , ..... c ..... c .... :···· :···· ...... c .... r·····•····· •···· :··········r····:··········;···········c···\t " ;J
0.
400 430 460 490 520 550 580 6c10 640 670 700
Nanometers \1Vavelength
Figure 15B depicts the light transmittance properties of filters 1503 ( dashed
line) and 1504 (solid line). Filter 1504 "is a four pass-band filter in which
the fourth pass-band [ at approximately 610 nm] has been added to satisfy a
yellow traffic light constraint." Id. ,r 332. Figure 15B depicts filter 1503
where a "shoulder" has been substituted for the fourth pass-band. Id. The
Specification teaches that "it may be preferable to convert this additional
pass-band [of filter 1504] into a band shoulder on the short-wavelength side
of the long wavelength pass-band .... since the resulting filter may provide
a more stable appearance of the yellow light (in particular for narrow-band
yellow lights) with respect to change in angle of incidence." Id.
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below:
1. A multi-band optical filter for affecting color vision, the
filter comprising:
a plurality of pass-bands and stop-bands partitioning the
visible spectrum, including,
3
Appeal2018-003581
Application 14/014,991
three or more pass-bands interleaved with two or more
stop-bands, wherein
each pass-band has a center, a width, a lower band
boundary equal to the center minus half the width, an upper
band boundary equal to the center plus half the width, and a
mean transmittance,
each stop-band has a center, a width, a lower band
boundary equal to the center minus half the width, an upper
band boundary equal to the center plus half the width, and a
mean transmittance,
the lower band boundary of each interleaved stop-band is
the same as the upper band boundary of an adjacent pass-band,
the upper band boundary of each interleaved stop-band is
the same as the lower band boundary of an adjacent pass-band,
each pass-band is located between 400 nanometers and
700 nanometers and each pass-band width is between 10 and
110 nanometers,
each stop-band is located between 410 nanometers and
690 nanometers and each of the interleaved stop-bands has a
width between 10 and 80 nanometers and each of the
interleaved stop-bands has a mean transmittance that is less
than one half of the mean transmittance of an adjacent pass-
band, and
the spectral transmittance of a shoulder on the short
wavelength side of the longest wavelength pass-band between
580 nanometers and 610 nanometers is at least one fifth of the
luminous transmittance of the filter.
Appeal Br. 8 (Claims App.).
4
Appeal2018-003581
Application 14/014,991
REJECTIONS
The Examiner maintains the following rejections:
1. Claims 1-3, 13, 15, 17, 25, 37, 43, 44, and 51 are rejected under 35
U.S.C. § I02(b) (pre-AIA) as anticipated by Thornton. 2 Final Act.
3-9.
2. Claim 52 is rejected under 35 U.S.C. § 102(b) as anticipated by or,
in the alternative, under 35 U.S.C. § I03(a) (pre-AIA) as obvious
over, Thornton. Id. at 9-10.
3. Claims 14, 16, 18, 26, 46, 47, 49, and 50 are rejected under 35
U.S.C. § I03(a) (pre-AIA) as obvious over Thornton in view of
Larson. 3 Id. at 10-11.
4. Claims 33 and 41 are rejected under 35 U.S.C. § I03(a) (pre-AIA)
as obvious over Thornton in view ofFarwig. 4 Id. at 11-13.
5. Claim 34 is rejected under 35 U.S.C. § I03(a) (pre-AIA) as
obvious over Thornton in view of Farwig and further in view of
Larson. Id. at 13-14.
6. Claim 45 is rejected under 35 U.S.C. § I03(a) (pre-AIA) as
obvious over Thornton in view of Aiiso. 5 Id. at 14.
7. Claim 48 is rejected under 35 U.S.C. § I03(a) (pre-AIA) as
obvious over Thornton in view ofMertz. 6 Id. at 15.
2 US 4,826,286, issued May 2, 1989 ("Thornton").
3 US 2002/0126256 Al, published Sep. 12, 2002 ("Larson").
4 US 8,210,678 Bl, issued July 3, 2012 ("Farwig").
5 US 7,506,977 Bl, issued Mar. 24, 2009 ("Aiiso").
6 US 2006/0146275 Al, published July 6, 2006 ("Mertz").
5
Appeal2018-003581
Application 14/014,991
DISCUSSION
Appellant argues that the Examiner erred in rejecting claim 1. Appeal
Br. 3---6. Appellant further argues that the rejections of all other claims at
issue are predicated upon the Examiner's findings relating to claim 1 and
that such rejections should be reversed for the same reasons. Id. at 6.
Accordingly, the rejections of claims 2-3, 13, 15, 17, 25, 37, 43--44, 51, and
52 will stand or fall with the rejection of claim 1. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
Claim 1 requires an optical filter where "the spectral transmittance of
a shoulder on the short wavelength side of the longest wavelength pass-
band between 5 80 nanometers and 610 nanometers is at least one fifth of the
luminous transmittance of the filter." Appeal Br. 8 (Claims App.) (emphasis
added). The Examiner found that this limitation is taught by Thornton.
Final Act. 5. Specifically, the Examiner cites Figures 9 and 10 of Thornton
as teaching a shoulder. Figures 9 and 10 of Thornton are reproduced below.
6
Appeal2018-003581
Application 14/014,991
Figure 9 of Thornton (left) is described as "the transmission curve of a filter
typical of the present invention." Thornton, 2:19-20. Figure 10 of Thornton
(right) is taught to be "the transmission curve of a filter designed for divers."
Id. at 2:21-22.
The crux of the present appeal concerns the meaning of the term
"shoulder" as used in claim 1. During examination, claim terms must be
given their broadest reasonable construction consistent with the
Specification. In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007). The Specification teaches as follows regarding the term
"shoulder":
In some variations, one or more of the pass-hands may have an
irregular shape (i.e., not rectangular and not Gaussian). For
example the pass-band may have a bimodal distribution, or may
have a shoulder on one or more sides of the pass-hand, or may
be described as a skewed distribution.
Spec. ,r 11 ( emphasis added).
as will be shown in further description along with Figure 15A
and 15B the split pass-band may be more preferably forced into
a single passband with an irregular shape, such as having a
shoulder in place of the split sub-band on the short wavelength
side.
Id. ,r 330 ( emphasis added).
Substituting the shoulder for the fourth pass-band may be
accomplished, for example, by increasing the minimum
spectral transmittance constraint in the desired region as
shown, for example, by graph 1502 in Figure 15A.
Id. ,r 332 ( emphasis added).
In further examples passbands may have an irregular shape (i.e.,
not rectangular and not Gaussian), with a configuration that is
essentially a bimodal distribution where the two modes are
7
Appeal2018-003581
Application 14/014,991
at least partially overlapping, or may have a shoulder on one
or more sides of the pass-band.
Id. ,r 333 ( emphasis added).
In a further example, the long wavelength pass-band may be
characterized by a bimodal distribution having first mode at
about 620 nanometers and second mode at about 650
nanometers, or may have a skewed distribution, a shoulder
(typically on the short wavelength side) or other irregular (i.e.
non-Gaussian) distribution.
Id. ,r 338 (emphasis added).
Thus, construing the term "shoulder" in view of the Specification, we
determine it to mean, in a graph showing transmittance on the y-axis and
wavelength on the x-axis, a portion of an irregularly shaped pass-band
having an increased minimum spectral transmittance relative to a
corresponding Gaussian pass-band. A shoulder differs from a bimodal
distribution (where two pass-bands are partially overlapping). Id. ,r,r 333,
338.
Figure 9 of Thornton shows three Gaussian pass-bands. Figure 10 of
Thornton shows one nonoverlapping and two partially overlapping
(bimodal) pass-bands. Accordingly, the Examiner has not shown that
Thornton teaches a filter having a shoulder on the short wavelength side of
the longest wavelength pass-band. In view of the foregoing, Appellant has
shown error in the rejection of claim 1.
As all claims at issue depend from claim 1, and the Examiner relies
upon Thornton as teaching the "shoulder" limitation with regard to all such
claims, we determine that all rejections are reversed.
8
Appeal2018-003581
Application 14/014,991
CONCLUSION
The rejections of claims 1-3, 13-18, 25, 26, 33, 34, 37, 41, and 43-52
are reversed.
REVERSED
9