APPLE INC.

Patent Trials and Appeals Board

Dec 30, 2020

2019003768 (P.T.A.B. Dec. 30, 2020)

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.
15/164,489 05/25/2016 Walter NISTICO 27753-50141C1 4190
149399 7590 12/30/2020
F&P, LLP-Arlen Team
2712 Augustine Drive
Suite 240
Santa Clara, CA 95054
EXAMINER
JOHNSON, GERALD
ART UNIT PAPER NUMBER
2627
NOTIFICATION DATE DELIVERY MODE
12/30/2020 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):
mail@fernando-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WALTER NISTICO, JAN HOFFMANN, and
EBERHARD SCHMIDT
Appeal 2019-003768
Application 15/164,489
Technology Center 2600
Before ERIC S. FRAHM, LARRY J. HUME, and
JULIET MITCHELL DIRBA, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1, 4, and 6–32, which are all claims
pending in the application. Appellant has canceled claims 2, 3, 5, 33, and
34. See Appeal Br. 6 et seq. (Claims App,). We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Apple, Inc. Appeal
Br. 1.
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STATEMENT OF THE CASE2
The claims are directed to a head mounted system and method to
compute and render a stream of digital images using a head mounted
display. See Spec. (Title). In particular, Appellant’s disclosed embodiments
and claimed invention relate to:
a head mounted system comprising a binocular eye
tracking system comprising at least a first camera arranged for
acquiring a user's left eye, at least a second camera arranged for
acquiring a user's right eye. The head mounted system further
comprises a head mounted display comprising first displaying
means for presenting an image to a user's left eye and second
displaying means for presenting an image to a user's right eye.
The head mounted system further comprises a processing unit
designed to process images from the eye tracking system and
calculate at least a 3D position of the left and the right eye and
an orientation vector of the left and the right eye.
Spec. 1:15–22.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
Appeal (emphasis added to contested prior-art limitations):
1. A head mounted system comprising:
a binocular eye tracking system comprising a first camera
to acquire an image of a user's left eye and a second camera to
acquire an image of a user's right eye;

2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
Nov. 13, 2018); Reply Brief (“Reply Br.,” filed Apr, 13, 2019); Examiner’s
Answer (“Ans.,” mailed Feb. 14, 2019); Final Office Action (“Final Act.,”
mailed May 14, 2018); and the original Specification (“Spec.,” filed
May 25, 2016) (claiming benefit of PCT/EP2013/068113 filed
Sept. 2, 2013).
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Application 15/164,489

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a head mounted display system to present an image to the
user; and
a processing unit to process images from the binocular
eye tracking system and calculate at least a 3D position of the
user's left eye and the user's right eye with respect to the head
mounted system and an orientation vector of the user's left eye
and the user's right eye at the 3D position of the user's left eye
and the user's right eye;
wherein the processing unit is further to compute and
render a stream of digital images to be projected onto the user's
left eye and the user's right eye via the head mounted display
system based on the 3D position of the user's left eye and the
user's right eye and the orientation vector of the user's left eye
and the user's right eye.
REFERENCES
The prior art relied upon by the Examiner as evidence is:
Name Reference Date
Abbott, III et al. (“Abbott”) US 2002/0044152 A1 Apr. 18, 2002
Takahashi US 2007 /0184422 A1 Aug. 9, 2007
Albocher et al. (“Albocher”) US 2011/0117530 A1 May 19, 2011
Raffle et al. (“Raffle”) US 2013/0088413 A1 Apr. 11, 2013
Poulos et al. (“Poulos”) US 2013/0342572 A1 Dec. 26, 2013
Smyth US 8,824,779 B1 Sept. 2, 2014
REJECTIONS
R1. Claims 1, 4, 6, 17, 21, 22, 24–26, 31, and 32 are rejected under
pre-AIA 35 U.S.C. § 102(e) as being anticipated by Poulos. Final Act. 5.
R2. Claims 7–16, and 23 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Poulos in view of Smyth. Final Act. 10.
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R3. Claim 18 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Poulos in view Albocher. Final Act. 15.
R4. Claims 19 and 20 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Poulos in view of Takahashi. Final Act.
16.
R5. Claims 27–29 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Poulos in view of Raffle. Final Act. 18.
R6. Claim 30 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over the combination of Poulos and Raffle in view of Abbott.
Final Act. 21.
CLAIM GROUPING
Based on Appellant’s arguments (Appeal Br. 3–5) and our discretion
under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of anticipation
Rejection R1 of claims 1, 4, 6, 17, 21, 22, 24–26, 31, and 32 on the basis of
representative claim 1.
Remaining claims 7–16, 18–20, 23, and 27–30 in Rejections R2
through R6, not argued separately, stand or fall with independent claim 1
from which they depend.3

3 “Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv).
In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. To the extent Appellant has not
advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv).
We disagree with Appellant’s arguments with respect to claims 1, 4,
and 6–32 and, unless otherwise noted, we incorporate by reference herein
and adopt as our own: (1) the findings and reasons set forth by the Examiner
in the action from which this appeal is taken, and (2) the reasons and
rebuttals set forth in the Examiner’s Answer in response to Appellant’s
arguments. We highlight and address specific findings and arguments
regarding claim 1 for emphasis as follows.
1. § 102(e) Rejection R1 of Claims 1, 4, 6, 17, 21, 22, 24–26, 31, and 32
Issue 1
Appellant argues (Appeal Br. 3–5; Reply Br.2–3) the Examiner’s
rejection of claim 1 under 35 U.S.C. § 102(e) as being anticipated by Poulos
is in error. These contentions present us with the following issue:
Did the Examiner err in finding the cited prior discloses a head
mounted system that includes “a processing unit to,” inter alia, “calculate at
least a 3D position of the user's left eye and the user's right eye with respect
to the head mounted system and an orientation vector of the user's left eye
and the user's right eye at the 3D position of the user's left eye and the user's
right eye,” as recited in claim 1?
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Principles of Law
Anticipation of a claim under 35 U.S.C. § 102 occurs when each
claimed element and the claimed arrangement or combination of those
elements is disclosed, inherently or expressly, by a single prior art reference.
Therasense, Inc. v. Becton, Dickinson & Co., 593 F.3d 1325, 1332 (Fed. Cir.
2010). A reference inherently discloses an element of a claim “if that
missing characteristic is necessarily present, or inherent, in the single
anticipating reference.” Schering Corp. v. Geneva Pharms., 339 F.3d 1373,
1377 (Fed. Cir. 2003) (citation omitted) (emphasis added). “Inherency,
however, may not be established by probabilities or possibilities. The mere
fact that a certain thing may result from a given set of circumstances is not
sufficient.” Therasense, 593 F.3d at 1332 (citing Cont’l Can Co. USA, Inc.
v. Monsanto Co., 948 F.2d 1264, 1269 (Fed. Cir. 1991)).
Analysis
The Examiner finds Poulos discloses the disputed limitation in
paragraphs 33, 34, 123, and 126. Final Act. 4. In particular, the Examiner
finds (Final Act. 2) the eye tracking assembly of Poulos is responsible for
identifying a position of the user’s eyes with respect to the head mounted
system using the “face unit vector” (Poulos ¶ 126) that
may be determined by defining a plane of the user’s face from a
skeletal model, and taking a vector perpendicular to that plane.
This plane may be identified by determining a position of a
user’s eyes. A skeletal model is known in the art to be a 3D
model and Poulos eye vectors are registered to this 3D model;
therefore, Poulos teachings correlates eye vectors to a 3D
position and thus the claim limitation of calculating a “30
position of the user’s left eye and the user’s right eye with
respect to the head mounted system.”
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Final Act. 3.
Thus, under the Examiner’s analysis, the face unit vector is used in
conjunction with a skeletal model in which Poulos’ eye vectors are
registered to allow correlation of the eye vectors to a 3D position, and thus
meets the limitation of calculating a “3D position of the user’s left eye and
the user’s right eye with respect to the head mounted system,” as claimed.
Appellant contends “Poulos does not disclose determining the 3D
position of the user’s eyes in relation to the head mounted system in addition
to their orientation at their respective positions” (Appeal Br. 4) because
“Poulos refers to the orientation (as used in the present specification and
claims) of the user’s eyes ‘within the eye socket,’ not the ‘3D position of the
user’s left eye and the user’s right eye with respect to the head mounted
system’” as recited in claim 1.” Id. (citing Poulos ¶ 48]). “Further, the
‘position of the user’s eyes’ as disclosed by Poulos . . . cannot be considered
a ‘3D position of the user’s left eye and the user’s right eye’ as recited in the
claims, because only 2 components are determined: left/right deviation and
up/down deviation.” Appeal Br. 4–5.
We are not persuaded by Appellant’s argument because we find, in
agreement with the Examiner, that Poulos discloses determining the position
of the user’s eyes in a 3D skeletal model using the face unit vector as taught
by Poulos.
In step 700, the calibrated image data for the scene is analyzed
at the hub to determine both the user head position and a face
unit vector looking straight out from a user's face. The head
position may be identified in the skeletal model. The face unit
vector may be determined by defining a plane of the user’s face
from the skeletal model, and taking a vector perpendicular to
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that plane. This plane may be identified by determining a
position of a user's eyes, nose, mouth, ears or other facial
features.
Poulos ¶ 123 (emphasis added).
Thus, we agree with the Examiner’s finding that Poulos discloses the
contested limitation “a processing unit to . . . calculate at least a 3D position
of the user's left eye and the user's right eye with respect to the head
mounted system and an orientation vector of the user's left eye and the user's
right eye at the 3D position of the user's left eye and the user's right eye,” as
recited in claim 1.
Based upon the findings above, on this record, we are not persuaded
of error in the Examiner’s reliance on the cited prior art to disclose the
disputed limitation of claim 1, nor do we find error in the Examiner’s
resulting finding of anticipation. Therefore, we sustain the Examiner’s
anticipation rejection of independent claim 1, and grouped claims 4, 6, 17,
21, 22, 24–26, 31, and 32, which fall therewith. See Claim Grouping, supra.
4. Rejections R2–R6 of Claims 7–16, 18–20, 23, 27–30
In view of the lack of any substantive or separate arguments directed
to obviousness Rejections R2 through R6 of claims 7–16, 18–20, 23, and
27–30 under § 103 (see Appeal Br. 5), we sustain the Examiner’s rejection
of these claims. Arguments not made are forfeited.4

4 Appellant merely “requests reversal of the rejection of the dependent
claims which are allowable by virtue of their dependence.” Appeal Br. 5.
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REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 2–3) not in response to a shift in the Examiner’s position in
the Answer, arguments raised in a Reply Brief that were not raised in the
Appeal Brief or are not responsive to arguments raised in the Examiner’s
Answer will not be considered except for good cause (see 37 C.F.R.
§ 41.41(b)(2)), which Appellant has not shown.
CONCLUSIONS
(1) Appellant has not persuasively shown the Examiner erred with
respect to anticipation Rejection R1 of claims 1, 4, 6, 17, 21, 22, 24–26, 31,
and 32 under 35 U.S.C. § 102(e), and we sustain the rejection.
(2) Appellant has not persuasively shown the Examiner erred with
respect to obviousness Rejections R2 through R6 of claims 7–16, 18–20, 23,
and 27–30 under 35 U.S.C. § 103 over the cited prior art combinations of
record, and we sustain the rejections.

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DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Basis /
References Affirmed Reversed
1, 4, 6, 17,
21, 22, 24–
26, 31, 32
102(e) Anticipation Poulos
1, 4, 6, 17,
21, 22, 24–
26, 31, 32

7–16, 23 103(a)
Obviousness
Poulos,
Smyth
7–16, 23
18 103(a)
Obviousness
Poulos,
Albocher
18
19, 20 103(a)
Obviousness
Poulos,
Takahashi
19, 20
27–29 103(a)
Obviousness
Poulos,
Raffle
27–29
30 103(a)
Obviousness
Poulos,
Raffle,
Abbott
30
Overall
Outcome 1, 4, 6–32
FINALITY AND RESPONSE
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). See 37
C.F.R. § 41.50(f).
AFFIRMED