ELWHA LLC

Patent Trials and Appeals Board

Dec 23, 2021

2020003393 (P.T.A.B. Dec. 23, 2021)

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.
13/841,443 03/15/2013 Gene Fein SE2-1388-US 4863
80118 7590 12/23/2021
Constellation Law Group, PLLC
P.O. Box 580
Tracyton, WA 98393
EXAMINER
MARTELLO, EDWARD
ART UNIT PAPER NUMBER
2613
NOTIFICATION DATE DELIVERY MODE
12/23/2021 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):
ISFDocketInbox@intven.com
Tyler@constellationlaw.com
admin@constellationlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte GENE FEIN, ROYCE A. LEVIEN, RICHARD T. LORD,
ROBERT W. LORD, MARK A. MALAMUD, JOHN D. RINALDO JR.,
and CLARENCE T. TEGREENE
________________

Appeal 2020-003393
Application 13/841,443
Technology Center 2600
________________

Before JUSTIN BUSCH, JASON J. CHUNG, and
PHILLIP A. BENNETT, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 1, 5, 6, 12, 13, 15, 16, 31, 35, 37, 46–48, 52, 53, 56, 67, 69, and
72–75.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, Elwha LLC is the real party in
interest. Appeal Br. 4.
2 Claims 2–4, 7–11, 14, 17–30, 32–34, 36, 38–45, 49–51, 54, 55, 57–66, 68,
70, and 71 are cancelled. Appeal Br. 25–31; Final Act. 5.
Appeal 2020-003393
Application 13/841,443

2
INVENTION
The invention relates to data capture, data handling, and data display
techniques. Spec. ¶ 1. Claim 1 is illustrative of the invention and is
reproduced below:
1. Augmented reality eyewear comprising:
a camera configured to capture an image of a real-world
field of view of the augmented reality eyewear;
a display configured to output one or more augmented
reality representations;
circuitry configured for filtering one or more real-world
selectable aspects according to one or more parameters;
circuitry configured for maintaining at a position on the
display an augmented reality representation of an individual that
is in the real-world field of view of the augmented reality
eyewear, the position corresponding to a location of the
individual when a user gesture aligns with the individual;
circuitry configured for recognizing the individual; and
circuitry configured for tagging the augmented reality
representation of the individual with information related to the
individual.
Appeal Br. 25 (Claims Appendix) (emphases added).

REJECTIONS
The Examiner rejects claims 1, 5, 6, 16, 31, 35, 37, 67, 69, and 72–75
under 35 U.S.C. § 103(a) as being unpatentable over the combination of
Haddick (US 2012/0249797 A1; published Oct. 4, 2012), Davis (US
2009/0265105 A1; published Oct. 22, 2009), and Rhoads (US 2011/0098056
A1; published Apr. 28, 2011). Final Act. 5–20.
The Examiner rejects claims 12, 13, and 15 under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Haddick, Davis, Rhoads, and
Appeal 2020-003393
Application 13/841,443

3
Nurminen (US 2009/0049004 A1; published Feb. 19, 2009). Final Act.
21–24.
The Examiner rejects claim 52 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Haddick, Davis, Rhoads, and Au (US
7,801,328 B2; issued Sept. 21, 2010). Final Act. 24–25.
The Examiner rejects claim 53 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Haddick, Davis, Rhoads, and Wright,
Jr. (US 2011/0310087 A1; published Dec. 22, 2011). Final Act. 25–26.
The Examiner rejects claim 56 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Haddick, Davis, Rhoads, and Park (US
2009/0262206 A1; published Oct. 22, 2009). Final Act. 27–28.
The Examiner rejects claims 46 and 47 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Haddick, Davis, Rhoads, and
Vertegaal (US 2013/0188032 A1; filed Sept. 14, 2012). Final Act. 28–30.
The Examiner rejects claim 48 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Haddick, Davis, Rhoads, Vertegaal,
and Mercay (US 8,633,970 B1; filed Aug. 30, 2012). Final Act. 30–31.
ANALYSIS
The Examiner finds Haddick teaches augmented reality eyewear
comprising: a camera configured to capture an image of a real-world field
of view of the augmented reality eyewear; a display configured to output one
or more augmented reality representations; and circuitry configured for
recognizing the individual; and circuitry configured for tagging the
augmented reality representation of the individual with the information
related to the individual; the Examiner determines Haddick’s principle of
operation is not opposite of the claim recitations. Ans. 7–8 (citing Haddick
Appeal 2020-003393
Application 13/841,443

4
¶¶ 137, 150–154, 247, 280, 442, 443, 459, 460, 511, 523–528, 536, 655,
656, 860, Figs. 1, 2, 6, 21, 22, 106); Final Act. 5–6 (citing Haddick ¶¶ 137,
150–154, 247, 280, 442, 443, 459, 460, 511, 523–528, 536, 655, 656, 860,
Figs. 1, 2, 6, 21, 22, 106). The Examiner finds Rhoads teaches choosing a
blob representation, updating images of the blob in a buffer, and tapping on
a bauble to bring up a person’s name and social profile, which the Examiner
maps to the limitation “maintaining at a position on the display an
augmented reality representation of an individual . . . the position
corresponding to a location of the individual when a user gesture aligns with
the individual” recited in claim 1. Ans. 8 (citing Rhoads ¶¶ 500–502, 542–
547, 674, 719, 720, Figs. 8, 19); Final Act. 6–7 (citing Rhoads ¶¶ 500–502,
542–547, 674, 719, 720, Figs. 8, 19). The Examiner finds that a person
having ordinary skill in the art at the time of the invention (hereinafter
“PHOSITA”) would have combined Haddick, Davis, and Rhoads to adapt
input data to more targeted information and permitting a wearer of an
eyepiece to interact with the desired image even if an individual within a
field of view moves out of the field of view. Final Act. 7.
Appellant argues the principle of operation of Haddick is the opposite
of the limitation “maintaining at a position on the display an augmented
reality representation of an individual . . . the position corresponding to a
location of the individual when a user gesture aligns with the individual”
because Haddick merely teaches that an augmented reality representation is
maintained at a position relative to something fixed in the real world and
Haddick’s eyepiece may be able to track an individual without the user
needing to show a physical motion to indicate that tracking is taking place.
Appeal Br. 12–13 (citing Haddick ¶¶ 384, 478, 498, 543). In addition,
Appeal 2020-003393
Application 13/841,443

5
Appellant argues the principle operation of Rhoads teaches displaying
baubles automatically and the user making a gesture to make a selection
after the bauble is already displayed, which is the opposite of the limitation
“maintaining at a position on the display an augmented reality representation
of an individual . . . the position corresponding to a location of the individual
when a user gesture aligns with the individual” recited in claim 1. Appeal
Br. 14–15 (citing Rhoads ¶¶ 7, 70, 114, 238). Appellant argues that a
PHOSITA would not combine Haddick, Davis, and Rhoads in the manner
proposed by the Examiner because the proposed combination renders
Rhoads unsuitable for its intended purpose because of Rhoads’s requirement
that the system acts autonomously to fulfill inferred or anticipated user
desires. Appeal Br. 16–17 (citing Rhoads ¶¶ 7, 63–65, 114, 238). Appellant
argues Rhoads fails to teach the limitation “maintaining at a position on the
display an augmented reality representation of an individual . . . the position
corresponding to a location of the individual when a user gesture aligns with
the individual” because Rhoads teaches displaying baubles automatically
and the user making a gesture to make a selection after the bauble is already
displayed. Appeal Br. 17–18 (citing Rhoads ¶¶ 7, 24, 69, 114, 238). We
disagree with Appellant.
Appellant appears to argue embodiments of Haddick that are not
relied upon by the Examiner. Compare Appeal Br. 12–13 (citing Haddick
¶¶ 384, 478, 498, 543), with Ans. 7–8 (citing Haddick ¶¶ 137, 150–154, 247,
280, 442, 443, 459, 460, 511, 523–528, 536, 655, 656, 860, Figs. 1, 2, 6, 21,
22, 106); Final Act. 5–6 (citing Haddick ¶¶ 137, 150–154, 247, 280, 442,
443, 459, 460, 511, 523–528, 536, 655, 656, 860, Figs. 1, 2, 6, 21, 22, 106).
In addition, the cited portions of Haddick relied upon by the Examiner teach
Appeal 2020-003393
Application 13/841,443

6
an augmented reality eyepiece, a forward facing camera embedded in the
eyepiece, a display for displaying tagged points of interest (i.e., augmented
reality representations) in the field of view to the wearer, identifying a
person of interest using facial recognition and voice recognition (i.e.,
recognizing the individual), and displaying the person of interest’s social
media accounts with the person of interest (i.e., tagging the augmented
reality representation), which teaches the limitation
augmented reality eyewear comprising: a camera configured to
capture an image of a real-world field of view of the augmented
reality eyewear; a display configured to output one or more
augmented reality representations; [and] circuitry configured for
recognizing the individual; and circuitry configured for tagging
the augmented reality representation of the individual with the
information related to the individual.
See Haddick ¶¶ 137, 150–154, 247, 280, 442, 443, 459, 460, 511, 523–528,
536, 655, 656, 860, Figs. 1, 2, 6, 21, 22, 106 (cited at Ans. 7–8); Haddick
¶¶ 137, 150–154, 247, 280, 442, 443, 459, 460, 511, 523–528, 536, 655,
656, 860, Figs. 1, 2, 6, 21, 22, 106 (cited at Final Act. 5–6). We, therefore,
agree with the Examiner’s determination that Haddick’s principle of
operation is not opposite of the claim recitations. Ans. 7–8.
Furthermore, Appellant appears to argue embodiments of Rhoads that
are not relied upon by the Examiner. Compare Appeal Br. 14–18 (citing
Rhoads ¶¶ 7, 24, 63–65, 69, 70, 114, 238), with Ans. 8 (Rhoads ¶¶ 500–502,
542–547, 674, 719, 720, Figs. 8, 19). The cited portions of Rhoads relied
upon by the Examiner teach choosing a blob representation, updating images
of the blob in a buffer (i.e., maintaining at a position on the display), and
tapping (i.e., when a user gesture aligns with the individual) on a bauble to
bring up a person’s name and social profile (i.e., display an augmented
Appeal 2020-003393
Application 13/841,443

7
reality representation of an individual), which teaches the limitation
“maintaining at a position on the display an augmented reality representation
of an individual . . . the position corresponding to a location of the individual
when a user gesture aligns with the individual” recited in claim 1. Rhoads
¶¶ 500–502, 542–547, 674, 719, 720, Figs. 8, 19 (cited at Ans. 8); Rhoads
¶¶ 500–502, 542–547, 674, 719, 720, Figs. 8, 19 (cited at Final Act. 6–7);
see also Rhoads ¶ 69 (Describing baubles as “augmented reality icons that
are displayed on the screen in association with features of captured
imagery,” which, in light of a person’s name and social profile brought up,
at least suggests the limitation.). We, therefore, agree with the Examiner’s
determination that Rhoads’s principle of operation is not opposite of the
claim recitations and Rhoads teaches the aforementioned limitation in this
paragraph. Ans. 8.
We also agree with the Examiner’s finding that a PHOSITA would
have combined Haddick, Davis, and Rhoads to adapt input data to more
targeted information and permitting a wearer of an eyepiece to interact with
the desired image even if an individual within a field of view moves out of
the field of view. Final Act. 7. We, therefore, find the Examiner has set
forth sufficient “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 In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)).
Appellant does not argue claims 5, 6, 12, 13, 15, 163, 31, 35, 37, 46–

3 In the event of further prosecution, the Examiner should consider claim 16
pursuant to Ex parte Schulhauser, No. 2013-007847, 2016 WL 6277792
(PTAB Apr. 28, 2016) (precedential). Claim 16 is a method claim and
Appeal 2020-003393
Application 13/841,443

8
48, 53, 56, 67, 69, and 72–75 separately with particularity. Appeal Br. 8–23.
Accordingly, we sustain the Examiner’s rejection of: (1) independent claims
1, 6, 16, 31, 35, and 37; and (2) dependent claims 5, 12, 13, 15, 46–48, 53,
56, 67, 69, and 72–75 under 35 U.S.C. § 103(a).
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION

recites “maintaining at a position on a display an augmented reality
representation of an individual that is in the real-world field of view, the
position corresponding to a location of the individual when a user gesture
aligns with the individual” (emphasis added). We note that this emphasized
language is conditional, which means the resulting language “maintaining at
a position on a display an augmented reality representation of an individual
that is in the real-world field of view, the position corresponding to a
location of the individual” need not be given patentable weight. Ex parte
Schulhauser, No. 2013-007847, 2016 WL 6277792. This only applies to the
method claims.
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 5, 6, 16,
31, 35, 37,
67, 69, 72–
75
103(a) Haddick, Davis,
Rhoads
1, 5, 6, 16,
31, 35, 37,
67, 69, 72–
75

12, 13, 15 103(a) Haddick, Davis,
Rhoads, Nurminen
12, 13, 15
52 103(a) Haddick, Davis,
Rhoads, Au
52
Appeal 2020-003393
Application 13/841,443

9
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. § 1.136(a)(1)(iv).

AFFIRMED

53 103(a) Haddick, Davis,
Rhoads, Wright, Jr.
53
56 103(a) Haddick, Davis,
Rhoads, and Park
56
46, 47 103(a) Haddick, Davis,
Rhoads, Vertegaal
46, 47
48 103(a) Haddick, Davis,
Rhoads, Vertegaal,
Mercay
48
Overall
Outcome
1, 5, 6, 12,
13, 15, 16,
31, 35, 37,
46–48, 52,
53, 56, 67,
69, 72–75