Ex Parte Tran

Patent Trial and Appeal Board

Mar 31, 2014

11230237 (P.T.A.B. Mar. 31, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte BAO O. TRAN
________________

Appeal 2011-006001
Application 11/230,237
Technology Center 2600
________________

Before MARC S. HOFF, DENISE M. POTHIER, and
ANDREW J. DILLON,
Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-20. App. Br. 2.
We have jurisdiction under 35 U.S.C. § 6(b). We review the appealed
rejections for error based upon the issues identified by Appellant, and in
light of the arguments and evidence produced thereon. Cf. Ex parte Frye, 94
USPQ2d 1072, 1075 (BPAI 2010) (precedential) (citing In re Oetiker, 977
F.2d 1443, 1445) (Fed. Cir. 1992)).
Appeal 2011-006001
Application 11/230,237

2

We affirm.
Invention
Appellant’s invention relates to three-dimensional (3D) rendering.
See Spec. 1:5. Claim 1 is reproduced below with emphasis added:
1. An apparatus for displaying three-dimensional images,
comprising:
one or more cameras to capture one or more views of a
scene and one or more registration marks;
a network to transmit each view in a separate data stream
to a remote location;
a processor to receive each data stream at the remote
location and generate from the data streams a plurality of
images corresponding to the plurality of views; and
a display device coupled to the processor, the display
device having one or more angularly separated display planes
aligned based on the registration marks, each display plane
rendering an image generated by the processor.

The Examiner relies on the following as evidence of unpatentability:
Yoon U.S. 2003/0122925 A1 July, 3, 2003
Ortiz U.S. 2004/0032495 A1 Feb. 19, 2004
Mueller U.S. 2005/0180623 A1 Aug. 18, 2005

The Rejections
Claims 1-201 are rejected under 35 U.S.C. § 112, first paragraph as
failing to comply with the enablement requirement. Ans. 4.
Claims 1, 2, and 10-12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Yoon and Mueller. Ans. 5-6, 8-9.

1Although the heading of this rejection addresses only claims 1 and 11, the
body of the rejection includes dependent claims 2-10 and 12-20. See Ans. 4.
Appeal 2011-006001
Application 11/230,237

3

Claims 3-5, 8, 9, 13-15, and 202 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Yoon, Mueller, and Official Notice. Ans. 6-9.
Claims 7, 18, and 19 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Yoon, Mueller, and Ortiz. Ans. 9-12.
Claims 6, 16, and 17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Yoon, Mueller, Ortiz, and Official Notice. Ans. 9-11.

THE 35 U.S.C. § 112 FIRST PARAGRAPH REJECTION
Regarding representative independent claim 1, the Examiner finds the
limitation “the display device having one or more angularly separated
display planes” is not enabled, because is not clear how one can have one
display plane angularly separated. See Ans. 4, 13. In particular, the
Examiner finds the Specification “is silent on how one plane can be
angularly separated” and thus does not enable one skilled in the art on how
to make and use the claimed invention. See Ans. 4.
Appellant asserts the claim language is clear and enabling to one
skilled in the art. Appellant argues the display device, as claimed, can have
one display plane, in which case there is no angular separation with another
display plane. See App. Br. 4.

ISSUE
Under § 112, first paragraph, has the Examiner erred in concluding
independent claim 1 are not enabled for the recited phrase “the display
device having one or more angularly separated display planes?”

2 Although captioned under the rejection based on Yoon and Mueller, the
Examiner relies on Official Notice to reject these claims.
Appeal 2011-006001
Application 11/230,237

4

ANALYSIS
Based on the record, we find that the Specification fails to teach those
skilled in the art how to make and use the full scope of the claimed invention
without undue experimentation. See In re Wright, 999 F.2d 1557, 1561
(Fed. Cir. 1993). We begin by construing the disputed limitation in
independent claim 1, which calls for “[a] display device having one or more
angularly separated display planes[.]” We find that the full scope of claim 1
includes (1) one angularly separated display plane – not one display plane
with no angular separation – or (2) more than one angularly separated
display plane.
We turn to the Specification for a discussion of how to make and use
the full scope of the claimed invention. The Specification teaches an
embodiment where “layers 60 are angularly interspersed in a screen. Each
reflective layer 60 is angularly separated from its neighbor[.]” Spec. 10:3-5;
Fig. 3. Thus, the Specification discusses how to make and use a display
device having more than one angularly separated display plane. However,
the Specification fails to discuss any embodiment of a display device having
one angularly separated display plane. See generally Spec. We further
agree with the Examiner that it is unclear how a single display plane can be
angularly separated. See Ans. 4, 13. In a single display plane embodiment,
we also find the disclosure fails to discuss how one would align itself “based
on the registration marks,” as recited. Thus, without undue experimentation,
we agree that one of ordinary skill in the art would not know how to make or
use the full scope of the claimed invention.
For the foregoing reasons, Appellant has not persuaded us of error in
the 35 U.S.C. § 112 first paragraph rejection of independent claim 1, claim
Appeal 2011-006001
Application 11/230,237

5

11, which includes a similar limitation to claim 1, and dependent claims 2-
10 and 12-20 not separately argued with particularity.

OBVIOUSNESS REJECTION OVER AND YOON AND MUELLER
Regarding representative independent claim 1, the Examiner finds that
Yoon teaches most of the limitations of claim 1 and relies on Mueller
specifically to teach using cameras to capture registration marks. Ans. 5-6.
Appellant argues that Yoon and Mueller fail to teach the display
device with registration marks, the display device having angularly
separated display planes aligned based on the registration marks, each
display plane rendering an image generated by the processor. App. Br. 4.
Appellant mainly asserts that Yoon fails to teach a single device display
having angularly separated display planes. App. Br. 4-6. Appellant
additionally contends that Mueller fails to register marks on one display
device having more than one display plane. App. Br. 7.

ISSUE
Under § 103, has the Examiner erred in rejecting independent claim 1
by finding that Yoon and Mueller collectively teaches a display device
having one or more than one angularly separated planes aligned based on the
registration marks?

ANALYSIS
Claims 1 and 11
Based on the record, we find no error in the Examiner’s rejection of
claim 1. Appellant states, “[a]s abundantly discussed, the angular separation
Appeal 2011-006001
Application 11/230,237

6

is for one display device with a plurality of display planes and these
wordings are recited in the claims.” App. Br. 6 (emphasis in original).
Appellant contends that “[a]lthough Yoon may have angular separation,
Yoon does project on one display device, but relies on sequential projections
or alternatively separate display devices, one for each eye.” App. Br. 6.
Appellant argues that Yoon fails to show the registration of the different
display planes on the same display device and that Mueller does not perform
registration on one display device with a plurality of display planes. App.
Br. 7. We are not persuaded.
Appellant’s argument directed to a single display device with a
plurality of display planes is not commensurate in scope with claim 1. See
App. Br. 4-6. The limitation “a display device . . ., the display device having
one or more angularly separated display planes aligned based on the
registration marks” in an open-ended claim that can include one or more
display devices. See KCJ Corp., v. Kinetic Concepts, Inc., 223 F.3d 1351,
1356 (Fed. Cir. 2000). As such, the display shown in Yoon’s Figure 54
reads on the broad language of claim 1. Specifically, Yoon teaches a display
device consisting of devices 5480 and 5490, yielding one display plane
angularly separated from the other display plane. See Ans. 5-6, 13-14 (citing
Yoon ¶ 297; Figs. 54, 56).
We further agree with the Examiner that Yoon teaches an embodiment
of a display device having a single display plane, which also maps to claim 1
as understood by Appellant. See Ans. 14 (stating “[a]ssuming that there can
be one angularly separated display planes, Examiner respectfully asserts that
Yoon clearly teaches one display plane as shown in Fig. 54” (emphasis
omitted)); see also App. Br. 4 (stating “[t]he display device can have one
Appeal 2011-006001
Application 11/230,237

7

display plane, in which case there is no angular separation with another
display plane.”) That is, Yoon teaches a single display device having one
display plane (e.g., 5480 or 5490). See Yoon, Fig. 54. This claimed
embodiment would also not require alignment of registration marks, because
there is a single display plane. Moreover, Appellant admits that Yoon
teaches a convention display having sequential projections (e.g., angularly
separated display planes) (see App. Br. 6; see Yoon, claim 19), and claim 1
does not require the projections be simultaneously displayed.
Appellant further contends that Mueller does not perform registration
on one display device with a plurality of planes. App. Br. 7. This argument
fails to consider the collective teachings and attacks Mueller individually.
See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Mueller
is relied upon to teach a camera that captures registration marks. See Ans. 6
(citing Mueller ¶ 123). Specifically, the location and orientation of a camera
is determined through the use of calibration objects placed at known
locations. Mueller ¶ 123. When combining Mueller with Yoon, the
collective teachings predictably yield no more than a display device having
angularly separated display planes aligned based on registration marks. See
Ans. 6. Moreover, contrary Appellant’s contention (App. Br. 7), we
disagree that Mueller does relate to creating 3D images. See Mueller, Abst.
Appellant further argues the “proposed combination [of Mueller with
Yoon] would not work for the claimed single display with embedeed [sic]
angularly separated display planes.” App. Br. 7. Also, Appellant argues,
“the Examiner has not pointed to evidence in Yoon or Mueller, or how
knowledge of those skilled in the art, provides a suggestion or motivation to
modify the reference teaching so as to produce the claimed invention of
Appeal 2011-006001
Application 11/230,237

8

claims 1 and 11.” App. Br. 10. We are not persuaded, because as stated
above, the claims do not require a single display device. Also, the Examiner
provides a reason with a rational underpinning for combining Mueller with
Yoon. Ans. 6 (citing Mueller ¶ 123). That is, the Examiner finds that the
combination would have provided optimal image data for color mapping and
would have predictably yielded no more than a display device having
angularly separated display planes aligned based on the registration marks as
recited. See id. We further find insufficient evidence that such a
combination as proposed would render Yoon or Mueller inoperable for its
intended purpose. App. Br. 9.
Lastly, we note that Appellant presents several arguments that are not
commensurate in scope with claims. For example, the claimed invention
does not recite that the viewing angles are projected so that a moving viewer
can see 3D depth as the viewer moves around (App. Br. 8) or projecting
three or more views on the same screen (App. Br. 9).
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of independent claims 1 and 11, not separately argued with
particularity.
Claims 2 and 12
Regarding dependent claim 2, the Examiner finds that Mueller
discloses a liquid crystal display (LCD) layer and that collectively Yoon and
Mueller teach the recitations in claim 2. See Ans. 6 (citing Mueller ¶ 308).
As best understood, Appellant admits Mueller teaches a display device with
a LCD layer but contends that Mueller fails to show angularly separated
LCD display planes aligned based on the registration marks. App. Br. 10.
We are not persuaded.
Appeal 2011-006001
Application 11/230,237

9

The Examiner cites to the combination of Yoon and Mueller to teach
the limitations in claim 2. See Ans. 6. Thus, Appellant’s attack on Mueller
individually does not show nonobviousness. See Merck, 800 F.2d at 1097.
Also, although the Examiner states Mueller discusses LCD layers (see Ans.
6), we presume this was a typographical error intended to refer to Yoon
given that Mueller does not include paragraph 308. See Yoon ¶ 308. We
refer to our previous discussion of claim 1 regarding the proposed
combination predictably yielding angularly separate display planes aligned
based on registration marks.
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of claims 2 and 12, not separately argued with particularity.
Claim 10
Dependent claim 10 depends from claim 1 and recites a motor for
moving each camera. The Examiner rejected dependent claim 10 based on
Yoon and Mueller, and in particular, Yoon teaches moving a camera. See
Ans. 8 (citing Yoon ¶ 296, Fig. 54). Appellant argues that the Examiner
erred by not supporting this rejection and relying on Official Notice. App.
Br. 13-14. Appellant is incorrect. As indicated, the Examiner relies upon
Yoon to teach the limitation of claim 10 and not Official Notice. Appellant
has not persuaded us of error in the rejection of dependent claim 10.

OBVIOUSNESS REJECTION OVER AND YOON, MUELLER,
AND OFFICIAL NOTICE

Claims 3, 4, 8, 9, 13, and 14
For claims 3-5, 8, and 13-15, Appellant argues the Examiner’s taking
of Official Notice without support is erroneous. App. Br. 9-13. Although
Appeal 2011-006001
Application 11/230,237

10

the Examiner is permitted to take Official Notice, such a taking of Official
Notice must be of facts not of conclusions and such facts should provide
sufficient support for the conclusions drawn. See Manual of Patent
Examining Procedure (MPEP) § 2144.03; see also In re Ahlert, 424 F.2d
1088, 1091 (CCPA 1970).
In the rejection of claim 3, the Examiner takes Official Notice “that it
would have been obvious to one of ordinary skill in the art at the time the
invention was made to provide a display with a plurality of retro- reflective
layers.” Ans. 7. This finding is simply a conclusion. The Examiner does
not take Official Notice of a fact (e.g., it is well-known or common
knowledge that display devices include retro-reflective layers), such that the
facts provide adequate support for one skilled in the art to conclude that
claim 3 is obvious. The Examiner also does not clarify his position in the
Response to Argument section.
The Examiner makes similar conclusions when addressing claims 4,
8, 13, and 14. See Ans. 6-9. Moreover, claim 9 depends from claim 8. We
therefore are constrained to find the Examiner erred in rejecting claims 3, 4,
8, 9, 13, and 14 as proposed.
Claims 5, 15, and 20
However, for claims 5 and 15, the Examiner did properly take Official
Notice of certain facts. See Ans. 7. In particular, the Examiner takes notice
that 3-D displays projecting an image onto air, mist, or vapor are well-
known and that Yoon’s device can be used with any display type. See id.
As the Examiner indicates, Appellant has not adequately traversed the
Examiner’s findings. See Ans. 16; see also MPEP § 2144.03(C). Similarly,
for claim 20, the Examiner finds that micro-mirror projectors are well-
Appeal 2011-006001
Application 11/230,237

11

known in the art. Ans. 9. This finding also has not been sufficiently
traversed. Based on the record, we therefore do not find the Examiner erred
in rejecting claims 5, 15, and 20.

OBVIOUSNESS REJECTION OVER AND YOON, MUELLER,
AND ORTIZ
Regarding dependent claims 7, 18, and 19, the Examiner finds Yoon
and Mueller teach all the limitations, except for the speakers at a remote
location. Ans. 10-12. The Examiner contends Ortiz teaches projectors with
speakers 30 and additionally relies on a design choice rationale in
concluding that the combination teaches or suggests speakers at a remote of
location as recited. See id.
Appellant argues the rejection provides no supporting evidence that
phased-array of speakers would be obvious. App. Br. 13. We disagree.
Notably, the phased-array of speakers is only recited in dependent claim 19.
Also, the Examiner discusses speakers in the context of Ortiz – not Yoon or
Mueller – and additionally relies upon an obvious design choice rationale,
for which Appellant has not sufficiently challenged. See Ans. 10-12.
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of claims 7, 18, and 19.

OBVIOUSNESS REJECTION OVER AND YOON, MUELLER,
ORTIZ, AND OFFICIAL NOTICE
Concerning dependent claims 6, 16, and 17, the Examiner finds Ortiz
discloses or suggests this limitation, given that there is a speaker to
reproduce sounds associated with video data. Ans. 9 (citing Ortiz, ¶ 0063,
Fig. 4). The Examiner additionally takes Official Notice of the fact that one
Appeal 2011-006001
Application 11/230,237

12

skilled in the art would have recognized that video cameras often use
microphones. See Ans. 10. The Examiner finally provides an explanation
for combining these teachings. See id.
Regarding claim 6, Appellant argues that Yoon and Mueller fail to
teach the recited phased-array of microphones. App. Br. 13. Notably, this
limitation is only found in claim 17. Also, this argument is not consistent
with the Examiner’s rejection, which relies upon what Ortiz teaches – not
Yoon or Mueller – and the finding of what is common knowledge in the art
(e.g., cameras often have microphones). See Ans. 9-10. Additionally, as
discussed above in context of claim 5, Appellant does not traverse the
Examiner’s taking of an officially-noticed fact adequately. See MPEP
§ 2144.03(C).
For claims 16 and 17, the Examiner relies on the similar findings in
concluding the claims are obvious. See Ans. 11-12. For these claims,
Appellant presents the same arguments as claim 6. See App. Br. 13. We are
not persuaded for the above-stated reasons.
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of claims 6, 16, and 17.

CONCLUSION
Appellant has not shown that the Examiner erred in rejecting claims
1-20 under 35 U.S.C. § 112, paragraph 1.
Under § 103, Appellant has not shown that the Examiner erred in
rejecting claims 1, 2, 5-7, 10-12, and 15-20.
Under § 103, Appellant has shown that the Examiner erred in
rejecting claims 3, 4, 8, 9, 13, and 14.
Appeal 2011-006001
Application 11/230,237

13

DECISION
The Examiner's decision rejecting claims 1-20 is 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

kis