Ex Parte 6222447 et al

Board of Patent Appeals and Interferences

Sep 1, 2010

90007519 (B.P.A.I. Sep. 1, 2010)

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.
90/007,519 04/22/2005 6222447 Q85998 9033
7590 09/02/2010
Frederick S. Burkhart
VAN DYKE GARDNER LINN & BURKHART LLP
Post Office Box 888695
Grand Rapids, MI 49588
EXAMINER
FOSTER, ROLAND G
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
09/02/2010 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DONNELLY CORPORATION1
Appellant and Patent Owner
____________

Appeal 2009-014594
Reexamination Control 90/007,519
Patent 6,222,447 B1
Technology Center 3900
____________

Before HOWARD B. BLANKENSHIP, SCOTT R. BOALICK, and
KEVIN F. TURNER, Administrative Patent Judges.

TURNER, Administrative Patent Judge

DECISION ON APPEAL2

1 DONNELLY CORPORATION is the Patent Owner and the real party in
interest (App. Br. 1).
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
shown on the PTOL-90A cover letter attached to this decision.
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2
Donnelly Corporation appeals under 35 U.S.C. §§ 134(b) and 306
from a final rejection of claims 1-175. We have jurisdiction under 35 U.S.C.
§§ 134(b) and 306.
We heard oral arguments on November 18, 2009, hearing from both a
representative of Appellant and the Examiner, a written transcript of which
is included in the record.
We AFFIRM-IN-PART.

STATEMENT OF THE CASE
This proceeding arose from a request for ex parte reexamination filed
by a Third Party Requester on April 22, 2005 of United States Patent
6,222,447 B1 (issued April 24, 2001) to Kenneth Schofield, et al.
[hereinafter the ′447 Patent] based on United States Patent Application
09/313,139 (filed May 17, 1999). The patent application for the instant
patent was a continuation of U.S. Patent Application 08/935,336 (filed
September 22, 1997; now U.S. Patent No. 5,949,331), which was a
continuation of U.S. Patent Application 08/445,527 (filed May 22, 1995;
now U.S. Patent No. 5,670,935), which was a continuation-in-part of U.S.
Patent Application 08/023,918 (filed February 26, 1993; now U.S. Patent
No. 5,550,677).
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A related patent, United States Patent 5,949,331, is the parent
application for the application of the ′447 Patent, and is also the subject of a
request for ex parte reexamination (Reexamination Control 90/007,520), and
is also presently being appealed (Appeal 2009-014326). That appeal is
being concurrently decided with the instant appeal.
Patentee’s invention relates to rearview vision systems for vehicles
which provide a driver with scenic information in the direction rearward of
the vehicle (Spec. col. 1, ll. 16-22).
Claims 1-175 are listed in the issued patent. Claims 1, 4, 82, and 167,
which we deem to be representative, read as follows:
1. A rearview vision system for a vehicle having a
gear actuator, comprising:
an image capture device mounted at the rear of the
vehicle and having a field of view directed rearwardly of
the vehicle;
a display system viewable by a driver of the
vehicle which displays a rearward image output of said
image capture device;
a graphic overlayer superimposed on said
rearward image when the gear actuator of the vehicle
selects a reverse gear; and
wherein said graphic overlayer includes indicia of
the anticipated path of travel of the vehicle.

4. A [The] rearview vision system [of claim 1] for
a vehicle having a gear actuator, comprising:
an image capture device mounted at the rear of the
vehicle and having a field of view directed rearwardly of
the vehicle;
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a display system viewable by a driver of the
vehicle which displays a rearward image output of said
image capture device;
a graphic overlayer superimposed on said
rearward image when the gear actuator of the vehicle
selects a reverse gear;
wherein said graphic overlayer includes indicia of
the anticipated path of travel of the vehicle; and
wherein said graphic overlayer is not
superimposed on said rearward image when the gear
actuator of the vehicle does not select a reverse gear.

82. A rearview vision system for a vehicle having
a gear actuator, comprising:
an image capture device mounted at the rear of the
vehicle and having a field of view directed rearwards of
the vehicle;
a display system viewable by a driver of the
vehicle;
said image capture device utilizing a wide angle
optical system comprising non-symmetrical optics in
order to provide a wide angle view of an area rearwards
of the vehicle; and
wherein said display system displays a rearward
image output of said image capture device when the gear
actuator of the vehicle selects a reverse gear to operate
the vehicle in reverse.

167. A rearview vision system for a vehicle
having a gear actuator, said rearview vision system
comprising:
an image capture device mounted at the rear of the
vehicle and having a field of view directed rearwardly of
the vehicle;
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a display system viewable by a driver of the
vehicle which displays a rearward image output of said
image capture device;
a graphic overlay superimposed on said rearward
image in response to the operator of the equipped vehicle
placing the gear actuator device in the reverse gear
position;
wherein said graphic overlayer includes indicia of
the anticipated path of travel of the vehicle; and
wherein said graphic overlay comprises a plurality
of horizontal liner marks superimposed on the displayed
image.

The prior art references relied upon by the Examiner in rejecting the
claims are:
Suzuki [“JP ′139”] JP 59-114139 Jul. 2, 1984
Nimura [“JP ′700”] JP 64-14700 Jan. 18, 1989
Takeshi [“JP ′657”] JP 05-77657 Mar. 30, 1993

G. Wang et al., CMOS Video Cameras, Proceedings of Euro ASIC ′91, 100-
103 (May 27-31, 1991).

The Examiner rejected the claims on the following bases:
1) claims 1-9, 15-18, 28-40, 46-49, 59-67, 82-87, 102-104, 1063, 115-
127, 152-157, and 167-171 under 35 U.S.C. § 102(b) as being anticipated by
JP ′700 (Ans. 8-18);

3 We note that claim 107 was also rejected on this basis in the Final Office
Action (Final O.A. p. 6), but indicated as being rejected over JP ′700 and
Wang in the Answer (Ans. 19). Given the subject matter of claim 107, we
find that the latter rejection is more proper, but we find that this has no
impact on the ultimate disposition of the rejections.
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2) claims 13, 14, 44, 45, 71, 72, 91, 92, 105, 107-112, 114, 128-132,
134-138, 140, 149, 158, 1614, and 163-166 under 35 U.S.C. § 103(a) as
being unpatentable over JP ′700 and Wang (Ans. 19-23);
3) claims 10-12, 19-22, 41-43, 50-53, 68-70, 73-76, 88-90, 93-96,
113, 133, 139, 141-148, 150, 151, 159, 160, 162, and 172-175 under 35
U.S.C. § 103(a) as being unpatentable over JP ′700, JP ′139, and Wang (Ans.
23-30); and
4) claims 23-27, 54-58, 77-81, and 97-101 under 35 U.S.C. § 103(a)
as being unpatentable over JP ′700 and JP ′657 (Ans. 30-31).5

ISSUES
Appellant contends that JP ′700 fails to disclose a display system
which utilizes a wide angle optical system to provide a wide angle view of
an area rearward of the vehicle with non-symmetrical optics, having a
graphic overlay displayed when the gear actuator is in the reverse gear
position, or not superimposing that overlay when not in reverse (Reply Br.
25-26). With respect to the obviousness rejections, Appellant argues that JP
′700, Wang, JP ′139, and JP ′657, taken together or apart, fail to teach or

4 We note that claim 161 depends from claim 159, where claim 159 is
rejected under a later, different basis. The rejection of claim 161 is
presumptively improper, but we find that this has no impact on the ultimate
disposition of the rejections.
5 The Answer also makes a finding of “Lack of Entitlement to the Benefit of
a Filing Date in an Earlier Patent” (Ans. 5-8), where the Examiner’s analysis
was not disputed (Oral Hearing Transcript 15).
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suggest a display system that displays a reversed image, horizontal marks
showing anticipated path, or utilizing a generic CMOS device in a vehicular
rearview vision system (Reply Br. 26-27). Appellant also argues that there
is “overwhelming evidence of non-obviousness of the claimed invention,”
and stipulates to such evidence (Reply Br. 27-30).
The Examiner finds that JP ′700 provides for detection of the reverse
gear, and that the claims recite “when” the reverse gear is selected which
does not necessarily mean “upon” selection of that gear (Ans. 31-37). The
Examiner also finds that non-symmetrical optics can be non-symmetric
about any axis, including depth (Ans.39-40), and that the suggestion to
combine JP ′139 and Wang comes from Wang itself (Ans. 47-48).
Only those arguments actually made by Appellant have been
considered in this decision. Arguments which Appellant could have made
but chose not to make in the Brief have not been considered and are deemed
to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).
Thus, the issues arising from the respective positions of Appellant and
the Examiner are:
1) Did the Examiner err in determining that JP ′700 anticipates claims
1-9, 15-18, 28-40, 46-49, 59-67, 82-87, 102-104, 106, 115-127, 152-157,
and 167-171 under 35 U.S.C. § 102(b)?
2) Did the Examiner err in determining that JP ′700 and Wang render
obvious claims 13, 14, 44, 45, 71, 72, 91, 92, 105, 107-122, 114, 128-132,
134-138, 140, 149, 158, 161, and 163-166 under 35 U.S.C. § 103(a)?
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3) Did the Examiner err in determining that JP ′700, JP ′139, and
Wang render obvious claims 10-12, 19-22, 41-43, 50-53, 68-70, 73-76, 88-
90, 93-96, 113, 133, 139, 141-148, 150, 151, 159, 160, 162, and 172-175
under 35 U.S.C. § 103(a)?
4) Did the Examiner err in determining that JP ′700 and JP ′657 render
obvious claims 23-27, 54-58, 77-81, and 97-101 under 35 U.S.C. § 103(a)?

FINDINGS OF FACT
1. The Specification of the ′447 Patent details that the system
includes image capture devices (14) positioned on the vehicle to
capture images of objects and a display system (20) which displays
rearward facing view of objects captured by the image capture
device (Spec. col. 3, ll. 51-67, col. 4, ll. 1-15; Fig. 2, elements 14,
20).
2. The Specification of the ′447 Patent discloses that the display
system enhances the displayed image by including an image
enhancement that relates to objects in the image displayed and
which informs the driver of relative positions of the displayed
objects behind the vehicle (Spec. col. 10, ll. 18-67).
3. JP ′700 is directed to a device for displaying the anticipated path of
a vehicle, which displays that path based on images from the rear
or side rear fields of vision when the vehicle backs up (JP ′700,
English translations, pp. 1-2; Figs. 1-4). The system also uses a
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steering sensor that detects the steering angle to determine the
anticipated path and superimpose it on the captured image (id.).
4. JP ′700 details that the predicted path of travel is superimposed
with indicia on the rearward image when reverse travel is detected
by a detector (JP ′700, English translations, p. 3). Those indicia
can change size as a function of distance away from the vehicle
(id.).
5. Wang is directed to a single chip CMOS video camera, which has
a photodiode array along with all of the necessary sensing,
addressing, and amplifying circuitry (Wang Abs.)
6. JP ′139 is directed to a rearward view monitoring system for a
vehicle which has a television camera that monitors the rear of the
vehicle and a monitor that shows an image taken by the television
camera (JP ′139, English translation, p. 1).
7. The monitoring system of JP ′139 in one embodiment displays a
plurality of dots on the display image in response to a detection of
an object rearward of the vehicle by sensors (JP ′139, English
translation, p. 4-5; Fig. 6). The markers are generated and
dynamically change in response to movement and distance sensors
(id.).
8. JP ′657 is directed to a display apparatus for a vehicle using an off
axis type reflection type hologram disposed at generally the same
angle of inclination as a windshield (JP ′657 ¶¶ [0016] – [0019];
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Fig. 3). The display may be folded toward the ceiling of the
vehicle when not in use (id.).

PRINCIPLES OF LAW
Anticipation is established when a single prior art reference discloses,
expressly or under the principles of inherency, each and every limitation of
the claimed invention. Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342,
1347 (Fed. Cir. 1999); In re Paulsen, 30 F.3d 1475, 1478-79
(Fed. Cir. 1994).
To serve as an anticipation when the reference is silent about
the asserted inherent characteristic, such gap in the reference
may be filled with recourse to extrinsic evidence. Such
evidence must make clear that the missing descriptive matter is
necessarily present in the thing described in the reference, and
that it would be so recognized by persons of ordinary skill.
Continental Can Co. USA v. Monsanto Co., 948 F.2d 1264, 1268 (Fed. Cir.
1991).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007).
During examination of a patent application, a claim is given its
broadest reasonable construction consistent with the specification. In re
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Prater, 415 F.2d 1393, 1404-05 (CCPA 1969). "[T]he words of a claim 'are
generally given their ordinary and customary meaning.'" Phillips v. AWH
Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (internal citations
omitted). The "ordinary and customary meaning of a claim term is the
meaning that the term would have to a person of ordinary skill in the art in
question at the time of the invention, i.e., as of the effective filing date of the
patent application." Id. at 1313.

ANALYSIS
Anticipation by JP ′700 under 35 U.S.C. § 102(b)
Claims 1-3, 5-9, 15-18, 28-31, 103 and 104
Appellant argues that JP ′700 displays a predicted path of a vehicle
during reverse travel and in response to movement of the vehicle in the
reverse direction, whereas in claim 1, for example, the graphic overlay is
superimposed when the gear selector is in the “R” position (App. Br. 19).
Appellant argues that the system of JP ′700 detects reverse travel very
differently and does not rely on the gear actuator position (App. Br. 19-20).
The Examiner finds that JP ′700 provides for detection of the reverse
gear, where the reverse travel detection switch of JP ′700 determines reverse
gear (Ans. 33). The Examiner also finds that the claims recite “when” the
reverse gear is selected which does not necessarily mean “upon” selection of
that gear (Ans. 34-35). In other words, the Examiner finds that claim 1 only
requires that the graphic overlay be superimposed during the time the
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reverse gear is selected, and claim 1 does not recite a causal relationship
between the gear actuator and the graphic overlay (id.). Appellant disagrees
with this latter position, but refers to the subject matter of claim 4 to refute
the Examiner’s interpretation (Reply Br. 6). We generally agree with the
Examiner.
We find that claim 1 does not necessarily require a causal relationship
between graphic overlay and the gear actuator position. Thus, according to
claim 1, the graphic overlay is superimposed when the gear actuator is in the
reverse gear position, and may be superimposed during any other gear
position. The use of “comprising” language buttresses this interpretation, as
well as the subject matter of claim 4. Claim 4 specifically recites that the
graphic is not displayed in other gear positions, and this points out that claim
1 covers embodiments where the graphic overlay is always displayed.
We assume that given Appellant’s acknowledgement of the
conventional use of a gear selector to cause a reversing light to illuminate
(App. Br. 21), Appellant would also acknowledge that the vehicle in JP ′700
would have a gear actuator. Given that the vehicle in JP ′700 is capable of
reverse motion, we find the presence of a gear actuator to be inherent.
During some of the operation of the system of the vehicle in JP ′700, when it
detects reverse travel, and displays its indicia, the gear actuator would be in
the reverse gear position. As such, we find that claim 1 reads upon the
system disclosed in JP ′700 and we find no error in the Examiner’s rejection
of claim 1.
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Independent claims 5, 6, 103, and 104 have similar recitations found
in claim 1 and discussed supra. Appellant’s arguments with respect to these
independent claims rely on those made against the rejection of claim 1 (App.
Br. 26-30, 38-39), which we do not find to be compelling. Additionally,
with respect to claims 5 and 103, Appellant argues that JP ′700 provides
frames aligned as intervals along the predicted locus to present a perspective
feeling, which is not the same as a distance determination (App. Br. 30, 38).
The Examiner finds that JP ′700 provides indicia which change size as a
function of distance (Ans. 38; FF 4), thus providing indications of distance.
We concur with the Examiner and the Examiner’s analysis on this basis.
Appellants have not separately addressed the subject matter of claims
2, 3, 8, 9, 15-18, and 28-31, and we therefore find that the Examiner did not
err in rejecting claims 1-3, 5-9, 15-18, 28-31, 103, and 104 as being
anticipated by JP ′700.

Claims 115-119 and 167-171
In contradistinction to the recitations of claim 1 discussed above,
independent claims 115 and 167 recite, in part, “a graphic overlay
superimposed on said rearward image in response to the operator of the
equipped vehicle placing the gear actuator device in the reverse gear
position” (emphasis added). The Examiner’s rejection and response to
argument does not appear to appreciate the distinction (Ans. 13-14, 43, 46-
47).
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While there are dueling translations of the JP ′700 reference, we find
that JP ′700 clearly provides for detection of reverse travel, and not detection
of the position of the gear actuator (FF 4). We do not find that JP ′700
discloses that the graphic overlay is superimposed in response to the gear
actuator being placed in the reverse gear position. Additionally, we also
agree with Appellant that the vehicle’s gear actuator and the gear selector
device are understood in the context of the Specification to be a stalk or stick
or shifter that the driver can manually move to various positions (Reply Br.
2). We also agree that this is not the same as a reverse gear in a
transmission, although colloquially they can be synonyms in some instances.
As such, we find that JP ′700 fails to teach all of the elements of claims 115
and 167. Thus, we find the Examiner erred in rejecting claims 115-119 and
167-171 as being anticipated by JP ′700.

Claims 4, 32-40, 46-49, 59-67, 102, 106, 120-127 and 152-157
Appellant argues that JP ′700 fails to disclose a display system which
has a graphic overlay displayed when the gear actuator is in the reverse gear
position, and not superimposing that overlay when not in reverse (App. Br.
26-29). The Examiner finds that JP ′700 “teaches by contraposition that if
the graphic overlay is not displayed, then the reverse gear is not detected by
the reverse detection switch” (Ans. 10-11). We agree with Appellant.
Claim 4 recites, in part, that “said graphic overlayer is not
superimposed on said rearward image when the gear actuator of the vehicle
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does not select a reverse gear,” in addition to supplying the graphic overlay
when the gear actuator is in the reverse gear position. We find that the
recitation of both conditions in claim 4 creates a graphic overlay that is
superimposed based on the gear position of the gear actuator. In other
words, the graphic overlay must be enabled or disabled according to the gear
position, analogous to the recitations of claims 115 and 167, discussed
supra. Similarly, we do not find that JP ′700 discloses that the graphic
overlay is superimposed in response to the gear actuator being placed in the
reverse gear position.
Independent claims 32, 63, 102, 106, 120, 125, and 152 recite similar
subject matter as recited in claim 4 and we similarly find that JP ′700 fails to
teach all of the elements of those claims, and claims dependent thereon.
Thus, we find the Examiner erred in rejecting claims 4, 32-40, 46-49, 59-67,
102, 106, 120-127 and 152-157 as being anticipated by JP ′700.

Claims 82-87
With respect to independent claim 82, Appellant argues that JP ′700
fails to disclose a display system which utilizes a wide angle optical system
to provide a wide angle view of an area rearward of the vehicle with non-
symmetrical optics (App. Br. 32-36). Appellant argues that non-
symmetrical optics provide a wide angle of view at a lower portion of the
field of view and the fisheye lens of JP ′700 is not non-symmetric and would
result in a highly distorted image (App. Br. 33-35). The Examiner finds that
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non-symmetrical optics can be non-symmetric about any axis, including
depth (Ans. 39-40). We agree with Appellant.
Interpreting the claim term “non-symmetrical optics,” we turn to the
Specification of the ′447 Patent, namely column 12, lines 1-5, where such
optics “provide a wide angle view at a lower portion of the field of view.”
As such, we find that the use of “non-symmetric optics” in claim 82 seeks to
employ the traditional definition of non-symmetric optics, i.e. non
symmetric about a central image axis. While the Examiner is correct that a
fisheye lens is non-symmetric when considered along that central image
axis, it is symmetric about that same axis, as pointed out by Appellant (App.
Br. 33-34). As such, we do not find that JP ′700 discloses the use of non-
symmetric optics.
In addition, as acknowledged by the Examiner at Oral Hearing, under
the Examiner’s definition, almost every single lens would be considered to
be non-symmetric because it has distortion at some point. The problem with
the definition would be that it would remove the term “non-symmetric” from
the term “optics” because all optics could be considered non-symmetric. As
such, we cannot agree with the Examiner that JP ′700 discloses the use of
non-symmetric optics and we find that the Examiner erred in rejecting
claims 82-87 as being anticipated by JP ′700.

Obviousness over JP ′700 and Wang under 35 U.S.C. § 103(a)
Evidence of Non-obviousness Based on Secondary Considerations
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With respect to all of the obviousness rejections, Appellant has argued
that there is much evidence of non-obviousness based on secondary
considerations (App. Br. 25, 29, 51-52, 66-67; Reply Br. 8-11, 27-30).
Rather than deal with the evidence in a piecemeal fashion, we address this
evidence here with respect to all of the obviousness rejections.
Appellant has provided evidence of commercial success and long felt
but unsolved need (App. Br. Evidence Appx., Exhibit B, pp. 12-15, 20, 22-
23). The evidence of commercial success could well be true but Appellant
has provided no corroborating evidence of such success, such as sales and/or
licensing information. While Appellant indicates license access to the ′447
Patent, there is nothing specific presented. With respect to the long felt
need, we do not doubt that avoiding backing over children or objects from a
standing start is important, but nothing is provided that shows that the ′447
Patent meets such need. We are not convinced that other systems, such as
those disclosed in JP ′700, JP ′139 or JP ′657 could not satisfy such need.
Additionally, Appellant argues that there was evidence of failure by
others, namely JP ′700 required detections of reverse travel and JP ′139
operated in response to a sensor (App. Br. Evidence Appx., Exhibit B, p.
22). However, as discussed supra, these aspects of the appealed claims we
find to not be taught by JP ′700; these aspects are not found in the claims
that we affirm in the rejection of below. With respect to skepticism of
experts (id.), Appellant argues that despite the evidence of record having
been filed long ago, the vehicle systems with graphic overlays have only
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recently begun to proliferate. This does not show, however, that other
factors, such a high cost, could not account for their slow adoption. In
addition, we do not find that Appellant has provided any evidence of
copying that is not based on conjecture; i.e., independent development or
without knowledge of the ′447 Patent (Reply Br. 19-20).
As such, we do not find that the evidence of non-obviousness based
on secondary considerations rises to a level necessary to refute any of the
obviousness rejections on that basis. Thus, we consider the propriety of the
obviousness rejections in terms of whether the prior art of record teaches or
suggests the subject matter of the rejected claims.

Claims 13, 14, and 105
With respect to claims 13, 14, and 105, Appellant argues that there is
no disclosure in JP ′700 of a pixilated CMOS imaging array and Wang fails
to suggest the particular use claimed in Appellant’s claims (App. Br. 50-53,
55-56). Appellant also argues that the “mere existence of CMOS cameras as
an emerging technology in the early ‘90s” does not render the cited claims
obvious and that Wang is cumulative over the prior art applied in the
original examination of the application for the ′447 Patent (App. Br. 51-52).
The Examiner finds that Wang provides that a CMOS video camera is a
high-quality image sensor that can be implemented entirely in commodity
ASIC CMOS technology (Ans. 44-45). We agree with the Examiner.
“The combination of familiar elements according to known methods
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is likely to be obvious when it does no more than yield predictable results.”
KSR, 550 U.S. at 415-16. The Court also affirmed that “when a patent
claims a structure already known in the prior art that is altered by the mere
substitution of one element for another known in the field, the combination
must do more than yield a predictable result.” Id. at 416 (citing United
States v. Adams, 383 U.S. 39, 50-51 (1966)). In the instant case, Wang’s
failure to disclose the use of the CMOS camera in vehicular applications is
not fatal to the rejection, and neither is the failure of JP ′700 to conceive of
the use of a pixilated CMOS imaging array. The use of the camera from
Wang (FF 5) would be the substitution of one known element for another
from the prior art. We also take no issue with the fact that Wang may be
cumulative with other art cited in the original prosecution because that
original prosecution did not have JP ′700 before it, and it is the combination
of JP ′700 and Wang that we are concerned with in the instant rejection. As
such, we do not find Appellant’s arguments to be compelling.
Additionally, with respect to claims 13, 14, and 105, Appellant argues
that the graphic overlay is superimposed when the operator positions the
gear actuator in a reverse gear, similar to the arguments raised with respect
to claim 1 (App. Br. 50-53, 55-56). For the same reasons discussed supra,
we do not find these arguments to be compelling. As such, we do not find
that the Examiner erred in rejecting claims 13, 14, and 105 as being obvious
over JP ′700 and Wang.

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Claims 45, 107-112, 114, 129-132, 134-138, 140, and 149
With respect to 45, 107-112, 114, 129-132, 134-138, 140, and 149,
independent claims 45, 107, 108, 129, 135 and 149, and claims dependent
thereon, recite that the graphic overlay is disabled when the gear actuator of
the vehicle is not in reverse gear, or similar subject matter. Similar to our
finding with respect to claim 4 supra, we do not find that JP ′700 teaches
such subject matter. In addition, we do not find that Wang cures this
deficiency. Thus, for similar reasons, we find that the Examiner erred in
rejecting claims 45, 107-112, 114, 129-132, 134-138, 140, and 149 as being
obvious over JP ′700 and Wang.

Claims 163-166
With respect to claims 163-166, independent claim 163, and claims
dependent thereon, recite “a graphic overlay superimposed on said rearward
image in response to the operator of he equipped vehicle placing the gear
selector device in the reverse gear position.” Similar to our finding with
respect to claims 115 and 167 supra, we do not find that JP ′700 teaches
such subject matter. In addition, we do not find that Wang cures this
deficiency. Thus, for similar reasons, we find that the Examiner erred in
rejecting claims 163-166 as being obvious over JP ′700 and Wang.

Claims 44, 71, 72, 91, 92, 128, and 158
With respect to claims 44, 71, 72, 91, 92, 128, and 158, those claims
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depend from independent claims 32, 63, 82, 125, and 152, and Appellant
argues that the former claims are not obvious over the combination of JP
′700 and Wang by virtue of their dependencies (App. Br. 53-55, 58, 62, 64).
We agree based on our discussion of claims 32, 63, 82, 108, 129, 135, and
149 supra. Thus we find that the Examiner erred in rejecting claims 44, 71,
72, 91, 92, 128, and 158 over JP ′700 and Wang.

Obviousness over JP ′700, JP ′139, and Wang under 35 U.S.C. § 103(a)
Claims 10-12 and 19-22
With respect to claims 10-12 and 19-22, Appellant does not appear to
argue the subject matter of these claims specifically, and merely arguing that
those claims, along with others, are not taught or suggested by JP ′700, JP
′139, and Wang (App. Br. 73). If an appellant fails to present arguments on
a particular issue – or, more broadly, on a particular rejection – the Board
will not, as a general matter, unilaterally review those uncontested aspects of
the rejection. See, e.g., Hyatt v. Dudas, 551 F.3d 1307, 1313-14 (Fed. Cir.
2008) (the Board may treat arguments appellant failed to make for a given
ground of rejection as waived). As such, we find that the Examiner erred in
rejecting claims 10-12 and 19-22 as being rendered obvious over by JP ′700,
JP ′139, and Wang.

Claims 141-148 and 159-162
With respect to 141-148 and 159-162, independent claims 141 and
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159, and claims dependent thereon, recite that the graphic overlay is disabled
when the gear actuator of the vehicle is not in reverse gear, or similar subject
matter. Similar to our finding with respect to claim 4 supra, we do not find
that JP ′700 teaches such subject matter. In addition, we do not find that JP
′139 or Wang cures this deficiency. Thus, for similar reasons, we find that
the Examiner erred in rejecting claims 141-148 and 159-162 as being
obvious over JP ′700 and Wang.

Claims 172-175
With respect to claims 172-175, independent claim 172, and claims
dependent thereon, recite “a graphic overlay superimposed on said rearward
image in response to the operator of he equipped vehicle placing the gear
selector device in the reverse gear position.” Similar to our finding with
respect to claims 115 and 167 supra, we do not find that JP ′700 teaches
such subject matter. In addition, we do not find that JP ′139 or Wang cures
this deficiency. Thus, for similar reasons, we find that the Examiner erred in
rejecting claims 172-175 as being obvious over JP ′700, JP ′139, and Wang.

Claims 41-43, 50-53, 68-70, 73-76, 88-90, 93-96, 113, 133, 139, 150, and
151
With respect to claims 41-43, 50-53, 68-70, 73-76, 88-90, 93-96, 113,
133, 139, 150, and 151, those claims depend from independent claims 32,
63, 82, 108, 129, 135, and 149, and Appellant argues that the former claims
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are not obvious over the combination of JP ′700, JP ′139, and Wang by
virtue of their dependencies (App. Br. 65-67, 71, 73). We agree based on
our discussion of claims 32, 63, 82, 108, 129, 135, and 149 supra. Thus we
find that the Examiner erred in rejecting claims 41-43, 50-53, 68-70, 73-76,
88-90, 93-96, 113, 133, 139, 150, and 151 over JP ′700, JP ′139, and Wang.

Obviousness over JP ′700 and JP ′657 under 35 U.S.C. § 103(a)
Claims 23-27
With respect to claims 23-27, Appellant acknowledges that JP ′657
discloses a display in a vehicle disposed where the sun visor is typically
found, but that is not the same as the interior rearview mirror position, i.e., in
the center region of the vehicle (App. Br. 74). Appellant also argues that
these claims should be allowed based on their dependence on claim 1 and
arguments previously presented (App. Br. 74-75). The Examiner finds that
Appellant has acknowledged that a sunvisor may be located in the same
general locations as a review mirror, albeit less typically, and that the
sunvisor, at least partially, may be located in the same general location as the
rearview mirror (Ans. 57-58). We agree with Examiner.
To the extent argued, claim 25 recites “said display system is mounted
at a position conventionally occupied by an interior rearview mirror.” The
position of the sunvisor in JP ′657 is proximate to where an interior rearview
mirror may be found and can provide a rearview display, when combined
with JP ′700, that would be near when such a mirror is conventionally found.
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Further, we find that one of ordinary skill in the art would find the placement
locations to be obvious over each other, given the rearview provided by the
display and the mirror. As such, we find no error in the Examiner’s
rejection of claims 23-27 as being obvious over JP ′657 and JP ′700.

Claims 54-58, 77-81, and 97-101
With respect to claims 54-58, 77-81, and 97-101, those claims depend
from independent claims 32, 63, and 82, and Appellant argues that the
former claims are not obvious over the combination of JP ′700 and JP ′657
by virtue of their dependencies (App. Br. 75-76). We agree based on our
discussion of claims 32, 63, and 82 supra. Thus we find that the Examiner
erred in rejecting claims 54-58, 77-81, and 97-101 over JP ′700 and JP ′657.

CONCLUSION
We find that the Examiner did not err in determining that:
a1) claims 1-3, 5-9, 15-18, 28-31, 103, and 104 were anticipated under
35 U.S.C. § 102(b) by JP ′700;
a2) claims 13, 14, and 105 were obvious under 35 U.S.C. § 103(a)
over JP ′700 and Wang;
a3) claims 10-12 and 19-22 were obvious under 35 U.S.C. § 103(a)
over JP ′700, JP ′139, and Wang; and
a4) claims 23-27 were obvious under 35 U.S.C. § 103(a) over JP ′700
and JP ′657.
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We also find that the Examiner erred in determining that:
r1) claims 4, 32-40, 46-49, 59-67, 82-87, 102, 106, 115-127, 152-157,
and 167-171 were anticipated under 35 U.S.C. § 102(b) by JP ′700;
r2) claims 44, 45, 71, 72, 91, 92, 107-112, 114, 128-132, 134-138,
140, 149, 158, 161, and 163-166 were obvious under 35 U.S.C. § 103(a)
over JP ′700 and Wang;
r3) claims 41-43, 50-53, 68-70, 73-76, 88-90, 93-96, 113, 133, 139,
141-148, 150, 151, 159, 160, 162, and 172-175 were obvious under 35
U.S.C. § 103(a) over JP ′700, JP ′139, and Wang; and
r4) claims 54-58, 77-81, and 97-101 were obvious under 35 U.S.C. §
103(a) over JP ′700 and JP ′657.

DECISION
The decision of the Examiner to reject claims 1-3, 5-31, 103, 104, and
105 is AFFIRMED, and the decision of the Examiner to reject claims 4, 32-
102, and 106-175 is REVERSED.

AFFIRMED-IN-PART
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ack

cc:

APPELLANT / PATENT OWNER:
Frederick S. Burkhart
VAN DYKE GARDNER LINN & BURKHART
Post Office Box 888695
Grand Rapids, MI 49588

THIRD PARTY REQUESTER:
William H. Mandir
Sughrue Mion, PLLC
2100 Pennsylvania Avenue, N.W.
Suite 800
Washington, DC 20037