AUDI AG

Patent Trials and Appeals Board

Feb 1, 2022

2022001093 (P.T.A.B. Feb. 1, 2022)

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. 16/478,774 07/17/2019 Marcus KUEHNE 2319.1296 1033 21171 7590 02/01/2022 STAAS & HALSEY LLP SUITE 700 1201 NEW YORK AVENUE, N.W. WASHINGTON, DC 20005 EXAMINER ELBINGER, STEVEN Z ART UNIT PAPER NUMBER 2613 NOTIFICATION DATE DELIVERY MODE 02/01/2022 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@s-n-h.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MARCUS KUEHNE, THOMAS ZUCHTRIEGEL and DANIEL PROFENDINER ___________ Appeal 2022-001093 Application 16/478,774 Technology Center 2600 ____________ Before CARL W. WHITEHEAD JR., MINN CHUNG and PHILLIP A. BENNETT, Administrative Patent Judges. WHITEHEAD JR., Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Appellant2 is appealing the final rejection of claims 10, 13-21 and 27-32 under 35 U.S.C. § 134(a). See Appeal Brief 6. Claims 10 and 21 are independent. We have jurisdiction under 35 U.S.C. § 6(b). 1 Rather than reiterate Appellant’s arguments and the Examiner’s determinations, we refer to the Appeal Brief (filed August 11, 2021), the Reply Brief (filed December 8, 2021), the Final Action (mailed April 28, 2021) and the Answer (mailed November 16, 2021), for the respective details. 2 Appellant refers to “applicant” as defined in 37 C.F.R. 1.42(a). (“The word ‘applicant’ when used in this title refers to the inventor or all of the joint Appeal 2022-001093 Application 16/478,774 2 We affirm. Introduction According to Appellant: [W]hen using virtual reality glasses vehicle occupants who have put on such virtual reality glasses may become nauseous. This frequently happens when the displayed virtual contents differ from what the sensory organs of the wearer of the virtual reality glasses supply in terms of information about the spatial location and movement of his body. The greater this deviation, the more probable it usually is that a wearer of such virtual reality glasses will feel nauseous. Respective individual sensitivities also play a role here. The same can basically also occur, albeit in an attenuated form, when wearing augmented reality glasses. Specification ¶7. The claimed invention “provides a solution which permits vehicle occupants to have particularly realistic contents displayed to them by a visual output unit which can be worn on the head, without them becoming nauseous at the time.” Specification ¶8. Representative Claim3 (disputed limitations emphasized) 10. An entertainment system for a motor vehicle communicating with a server via wireless communications, comprising: inventors, or to the person applying for a patent as provided in §§ 1.43, 1.45, or 1.46.”). Appellant identifies Audi AG as the real party in interest. Appeal Brief 1. 3 Appellant does not argue independent claims 1 or 16 individually. See Appeal Brief 4. Accordingly, we select independent claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv) (“When multiple claims subject to the same ground of rejection are argued as a group or subgroup by appellant, the Board may select a single claim from the group or subgroup Appeal 2022-001093 Application 16/478,774 3 at least one visual output unit configured to be worn on a head of a user and to display virtual elements from a prescribed virtual observation position; a communication unit acquiring personal preferences of the user from the server via the wireless communications; and a control device configured to evaluate first sensor data characterizing at least one of a movement and a spatial location of the motor vehicle and second sensor data characterizing an energy level of the user of the virtual output unit, and to actuate the at least one visual output unit so that at least some of the virtual elements are displayed by the visual output device in accordance with the energy level of the user, the personal preferences of the user, and at least one of movement relative to the virtual observation position in accordance with the movement of the motor vehicle and arrangement of at least some of the virtual elements relative to the virtual observation position in accordance with the spatial location of the motor vehicle. and may decide the appeal as to the ground of rejection with respect to the group or subgroup on the basis of the selected claim alone.”). Appeal 2022-001093 Application 16/478,774 4 References Name4 Reference Date Kameyama US 2007/0192038 A1 August 16, 2007 Szczerba US 2010/0253526 A1 October 7, 2010 Caskey US 2014/0119563 A1 May 1, 2014 Harrell Jr. US 2015/0286276 A1 October 8, 2015 Mullins US 2016/0374616 A1 December 29, 2016 Mack US 2017/0015260 A1 January 19, 2017 Wang ‘235 US 2017/0064235 A1 March 2, 2017 Anderson US 2017/0136842 A1 May 18, 2017 Dange US 2017/0186232 A1 June 29, 2017 Eatedali US 2017/0236328 A1 August 17, 2017 Wang ‘034 US 2017/0330034 A1 November 16, 2017 Rejections on Appeal Claims 10 and 16 stand rejected under 35 U.S.C. § 103 as being unpatentable over Eatedali, Wang ‘034 and Szczerba. Final Action 3-7. Claims 13 and 18 stand rejected under 35 U.S.C. § 103 as being unpatentable over Eatedali, Wang ‘034, Szczerba, Anderson and Mullins. Final Action 7-9. Claim 14 stands rejected under 35 U.S.C. § 103 as being unpatentable over Eatedali, Wang ‘034, Szczerba and Anderson. Final Action 9-10. Claim 19 stands rejected under 35 U.S.C. § 103 as being unpatentable over Eatedali, Wang ‘034, Szczerba, Anderson and Wang ‘235. Final Action 10-11. Claims 15 and 20 stand rejected under 35 U.S.C. § 103 as being unpatentable over Eatedali, Wang ‘034, Szczerba, Anderson and Mack. Final Action 12-13. 4 All reference citations are to the first named inventor only. Appeal 2022-001093 Application 16/478,774 5 Claims 17, 27 and 29 stand rejected under 35 U.S.C. § 103 as being unpatentable over Eatedali, Wang ‘034, Szczerba, Kameyama and Caskey. Final Action 14-17. Claims 21 and 32 stand rejected under 35 U.S.C. § 103 as being unpatentable over Eatedali, Szczerba, Caskey and Kameyama. Final Action 17-18. Claim 28 stands rejected under 35 U.S.C. § 103 as being unpatentable over Eatedali, Szczerba, Caskey, Kameyama, Wang ‘034 and Harrell Jr. Final Action 18-19. Claim 30 stands rejected under 35 U.S.C. § 103 as being unpatentable over Eatedali, Wang ‘034, Szczerba and Dange. Final Action 19-29. Claim 31 stands rejected under 35 U.S.C. § 103 as being unpatentable over Eatedali, Wang ‘034, Szczerba and Caskey. Final Action 21. ANALYSIS Appellant contends: The reason given for combining Szczerba et al. with Eatedali et al. and Wang '034, “Szczerba’s system selects a graphic in a manner to attract attention of the operator” is completely irrelevant to [Eatedali’s] AR/VR [augmented reality/virtual reality] system used by “a passenger of a vehicle” and thus is not a reason for modifying the systems disclosed by Eatedali et al. and Wang ‘034. Appeal Brief 4. Appellant’s arguments are not persuasive of Examiner’s error. Appellant does not explain why Szczerba’s system is completely irrelevant to Eatedali’s AR/VR system, as such, the arguments are without supporting evidence and are therefore conclusory and unpersuasive. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (attorney argument is not the kind of factual evidence required to rebut a prima facie case of obviousness); In re Pearson, 494 F.2d Appeal 2022-001093 Application 16/478,774 6 1399, 1405 (CCPA 1974) (“Attorney’s argument in a brief cannot take the place of evidence”). Appellant further contends: The only reasons provided in the April 28, 2021 Office Action for combining Eatedali et al., Wang ‘034 and Szczerba et al., were that “with Wang’s system, the rendered AVR [augmented virtual reality] content is then streamed to the autonomous vehicle, for example, from a cloud server over a network, to be presented therein in a virtual reality manner” (page 5, lines 17-19 and “Szczerba’s system selects a graphic in a manner to attract attention of the operator” (page 6, lines 17-18). These are not reasons to combine the three references, they are merely descriptions of features of Wang ‘034 and Szczerba et al., respectively. [T]he Office Action failed to provide any reason why a person of ordinary skill in the art would combine these references in the manner required by claims 10 and 21. Therefore, all of the claims patentably distinguish over the cited prior art. Appeal Brief 5 (emphasis added). Appellant’s arguments are not persuasive of Examiner error. The Examiner does not merely provide descriptions of Wang ‘034 and Szczerba’s features as Appellant contends. See Geisler, 116 F.3d at 1470. Further, the Examiner provides an explanation and/or reasons why the references would be combined. See Final Action 5-6. As the Supreme Court observed in KSR Int’l. v.Teleflex Inc., 550 U.S. 398, 418 (2007): Often, it will be necessary for a court to look to interrelated teachings of multiple patents; the effects of demands known to the design community or present in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue. To facilitate review, this analysis should be made explicit. See In re Kahn, 441 F.3d 977, 988 (C.A.Fed.2006) (“[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must Appeal 2022-001093 Application 16/478,774 7 be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness”). Here, the Examiner satisfies Kahn’s obviousness test by explicitly showing some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness by determining: [I]t would have been obvious to one with ordinary skill in the art before the effective filing date of the invention, to combine Eatedali’s system for motion synchronized AR or VR entertainment with Wang’s system for providing augmented virtual reality content in autonomous vehicles because with Wang’s system, the rendered AVR content is then streamed to the autonomous vehicle, for example, from a cloud server over a network, to be presented therein in a virtual reality manner. Final Action 5 (citing Wang ‘034 ¶32). [I]t would have been obvious to one with ordinary skill in the art before the effective filing date of the invention, to combine Eatedali’s system for motion synchronized AR or VR entertainment, Wang’s system for providing augmented virtual reality content in autonomous vehicles with Szczerba’s system for driver drowsy alert because Szczerba’s system selects a graphic in a manner to attract attention of the operator. Graphics sufficient to attract the attention of the operator can flash and/or pulsate. Final Action 6 (citing Szczerba ¶199). Further, “As our precedents make clear, however, the analysis need not seek out precise teachings directed to the 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.” KSR, 550 U.S. at 418. Accordingly, we sustain the Examiner’s obviousness rejection of independent claims 10 and 21, as well as, dependent claims 13-20 and 27- 32, not argued with distinction. See Appeal Brief 5 (“The rejections of the dependent claims (relying on eight more references in nine more Appeal 2022-001093 Application 16/478,774 8 combinations) similarly lack reasons to combine the references in the manner required to meet the claims as a whole, as opposed to a list of elements that have been found in the prior art.”). CONCLUSION Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 10, 16 103 Eatedali, Wang ‘034, Szczerba 10, 16 13, 18 103 Eatedali, Wang ‘034, Szczerba, Anderson, Mullins 13, 18 14 103 Eatedali, Wang ‘034, Szczerba, Anderson 14 19 103 Eatedali, Wang ‘034, Szczerba, Anderson, Wang ‘235 19 15, 20 103 Eatedali, Wang ‘034, Szczerba, Anderson, Mack 15, 20 17, 27, 29 103 Eatedali, Wang ‘034, Szczerba, Kameyama, Caskey 17, 27, 29 21, 32 103 Eatedali, Szczerba, Caskey, Kameyama 21, 32 28 103 Eatedali, Szczerba, Caskey, Kameyama, Wang ‘034, Harrell 28 30 103 Eatedali, Wang ‘034, Szczerba, Dange 30 31 103 Eatedali, Wang ‘034, Szczerba, Caskey 31 Appeal 2022-001093 Application 16/478,774 9 Overall Outcome: 10, 13−21, 27−32 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). See 37 C.F.R. § 1.136(a)(1)(v). AFFIRMED