Ex Parte 6669346 et al

Patent Trial and Appeal Board

Oct 31, 2014

95001817 (P.T.A.B. Oct. 31, 2014)

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.
95/001,817 11/21/2011 6669346 57150-5001 9547
35690 7590 11/03/2014
MEYERTONS, HOOD, KIVLIN, KOWERT & GOETZEL, P.C.
P.O. BOX 398
AUSTIN, TX 78767-0398
EXAMINER
WHITTINGTON, KENNETH
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
11/03/2014 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 PATENT TRIAL AND APPEALS BOARD
____________________

Inter partes BRITNEY SPEARS, SPEARS KING POLE INC.,
JUSTIN TIMBERLAKE, AND
TENNMAN PRODUCTIONS, LLC.,
Requesters and Cross Appellants

v.

LARGE AUDIENCE DISPLAY SYSTEMS, LLC,
Patent Owner and Appellant
____________________

Appeal 2014-007355
Patent 6,669,346 B2
Reexamination Control 95/001,817
Technology Center 3900
____________________

Before STEPHEN C. SIU, DENISE M. POTHIER, and ANDREW J. DILLON,
Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION ON APPEAL

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I. STATEMENT OF CASE
Britney Spears, Spears King Pole Inc., Justin Timberlake, Tennman
Productions, and The LA Lakers, Inc. made a third party request for inter partes
reexamination of U.S. Patent No. 6,669,346 B2 (“the ’346 patent”) to Darrell J.
Metcalf, entitled Large-Audience, Positionable Imaging and Display System for
Exhibiting Panoramic Imagery, and Multimedia Content Featuring a Circularity
of Action, issued December 30, 2003, and assigned to Large Audience Display
Systems, LLC. The LA Lakers, Inc. is no longer a third party requester in these
proceedings. Third Party Requesters (3PR) App. Br. 5.
Both Patent Owner and Requesters indicate that the ’346 patent is the
subject of litigation, styled as Large Audience Display Systems, LLC v. Tennman
Productions, LLC et al., Civil No. 2:11-cv-03398 (C.D. Cal.), which has been
stayed. Patent Owner (PO) App. Br. 2; 3PR App. Br. 5.
Patent Owner appeals from the decision in the Examiner’s Right of Appeal
Notice (RAN) rejecting claims 1–6, 9-10, 13–15, 17, 24, 28, 31-32, 36-37, 50, 52–
54, 56, and 58 of the ’346 patent. Claims 7-8, 11-12, 16, 18–23, 25–27, 29, and 30
are not subject to reexamination, claim 47 has been canceled, and claims 33–35,
38–46, 48-49, 51, 55, and 57 have been found patentable. PO App. Br. 2; RAN 1.
Requesters filed a responsive brief disputing the contentions by Patent Owner and
supporting the Examiner’s decision. 3PR Resp. Br. 10–15. Patent Owner also
filed a rebuttal brief, responding to Requesters’ position. PO Reb. Br. 2–8.
Requesters filed a cross appeal contending the Examiner erred in not
adopting various rejections covering claims 1–6, 9-10, 13–15, 17, 24, and 28 based
on “the Olympics Prior Art.” 3PR App. Br. 13–30. Patent Owner filed a
responsive brief disputing the contentions by Requesters and supporting the
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Examiner’s decision. PO Resp. Br. 3–12. Requesters also filed a rebuttal brief,
responding to Patent Owner’s position. 3PR Reb. Br. 2–15.
The Examiner’s Answer relies on the RAN, incorporating it by reference.
See Ans. 1.
An oral hearing was conducted on October 1, 2014. The transcript of the
oral hearing will be made of record.
We have jurisdiction under 35 U.S.C. §§ 134(b) and 315.
We AFFIRM.
Illustrative claim 1 on appeal reads as follows:
1. A large-audience, positionable imaging and display system for the
imaging and exhibition of visual-media content, comprising:
a.) a screen-display configured for the exhibition of panoramic imagery
having an interior surface-perimeter and an exterior surface-perimeter,
wherein,
each of said surface-perimeters is shaped and sized to be substantially
contiguous in appearance and to have a display-surface viewing area of a
panoramic type, over a wide-angle field extending up to a full 360° of
azimuth, on which, substantially contiguous panoramic visual-media content
and segmented visual-media content can be imaged;
b.) at least one screen support means for supporting the shape of said
screen-display;
c.) screen positioning means to position said screen-display to at least one
height relative to a viewing audience to provide a multitude of vantage
points from which to view at least one of said surface-perimeters; and,
d.) exhibition means for imaging and controlling said contiguous
panoramic visual-media content and said segmented visual-media content on
at least one of said surface-perimeters.

PO App. Br. 31, Claims App’x.

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A. Prior Art Relied Upon
The Examiner relies on the following as evidence of unpatentability:
Vallen US 1,719,574 July 2, 1929
Adams US 3,107,577 Oct. 22, 1963
Herndon US 3,872,238 Mar. 18, 1975
Globus US 4,078,860 Mar. 14, 1978
Fussell US 4,597,633 July 1, 1986
Wuu US 4,885,878 Dec. 12, 1989
Brotz US 5,663,740 Dec. 12, 1989
Shaffron US 6,253,494 B1 July 3, 2001
Hayashi US 6,280,341 B1 Aug. 28, 2001
Salesky US 6,367,934 B1 Apr. 9, 2002

B. The Adopted Proposed Rejections
The Examiner maintains the following proposed rejections:
Reference(s) Basis Claims RAN
Hayashi § 102(e) 1, 2, 9, 10, 31, 32, 36, and 56 12–20
Salesky § 102(e)
1, 2, 4–6, 14,
15, 17, 28, 31,
32, 50, and
52–54
24–33
Globus § 102(b) 1, 2, 14, 31, and 32 47–53
Fussell § 102(b) 1, 2, 4–6, and 9 68–72
Adams § 102(b) 1, 2, and 10 81-83
Hayashi and Shaffron § 103(a) 3 20-22
Hayashi and Wuu § 103(a) 3 22-24
Salesky and Globus § 103(a) 3 33-35
Salesky and Fussell § 103(a) 3 35-37
Salesky and Adams § 103(a) 3 37-39
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Salesky and Herndon § 103(a) 13 39-40
Salesky and Brotz § 103(a) 24 40-41
Salesky, Vallen, and
APA1 § 103(a) 24 42-44
Salesky and APA § 103(a) 24 44-47
Globus § 103(a) 4 90-91
Globus and Saffron § 103(a) 3 53-55
Globus and Wuu § 103(a) 3 55-56
Globus and Salesky § 103(a) 3, 15, 17, and 28 57-60
Globus and Herndon § 103(a) 13 60
Globus and APA § 103(a) 17, 24, 37, 58 60-68
Fussell and Shaffron § 103(a) 3 72-73
Fussell and Wuu § 103(a) 3 74-75
Fussell and Salesky § 103(a) 3, 15, 17, 28 75-79
Fussell and Herndon § 103(a) 13 79
Fussell and APA § 103(a) 17 79-80
Adams and Shaffron § 103(a) 3 83-85
Adams and Wuu § 103(a) 3 85-87
Adams and Salesky § 103(a) 3-5, 15, 17, 28 87-90
Adams and Fussell § 103(a) 4 91-92
Adams and Herndon § 103(a) 13 92-93
Adams and APA § 103(a) 17 93-94
Shaffron and Wuu § 103(a) 3 94-95

PO App. Br. 5-6.

1 APA stands for Admitted Prior Art.
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C. The Non-Adopted Rejections
The Examiner refused to adopt several rejections of claims 1–6, 9-10, 14-
15, 17, 24, and 282 appealed by Requesters. The non-adopted rejections follow
here:

Reference(s) Basis Claims Request
Olympics3 § 102(b) 1–6, 9, and 14 5
Adams and Olympics § 103(a) 4, 5, 9, 10 9–10
Olympics and Salesky § 103(a) 15, 17, 28 12–13
Olympics and Lichenstein § 103(a) 17 and 24 13
Olympics and APA § 103(a) 17 and 24 13

See 3PR App. Br. 13; Request 5, 9–10, 12–13.

II. ISSUES ON APPEAL
The main issues on appeal are whether, given its broadest reasonable
interpretation in light of the Specification and as would be interpreted by one of
ordinary skill in the art, the Examiner has erred in rejecting claim 1 under § 102 by
finding that the cited references would have disclosed:
(a) “a screen-display configured for the exhibition of panoramic imagery
having an interior surface-perimeter and an exterior surface-perimeter, wherein,

2 Requesters include claim 13 in their cross appeal. 3PR App. Br. 13. However,
the Request does not include a proposed rejection of claim 13 based on Olympics.
See Request 10–11.
3 The cited prior art is collectively referred to by Requesters as “Olympics Prior
Art.” 3PR App. Br. 1.
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each of said surface-perimeters is shaped and sized to be substantially contiguous
in appearance and to have a display-surface viewing area of a panoramic type, over
a wide-angle field extending up to a full 360° of azimuth, on which, substantially
contiguous panoramic visual-media content and segmented visual-media content
can be imaged” and similarly recited in independent claim 2 and
(b) “screen positioning means to position said screen-display to at least one
height relative to a viewing audience to provide a multitude of vantage points from
which to view at least one of said surface-perimeters” and similarly recited in
independent claims 2–3?

III. ANALYSIS
A. Claim Construction
This appeal hinges on how several of the terms in the claims are construed.
See PO App. Br. 7 and 3PR Resp. Br. 1–2. During reexamination, a claim is given
its broadest reasonable construction “in light of the specification as it would be
interpreted by one of ordinary skill in the art.” See In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (internal citations and quotations
omitted). Thus, prior to turning to the cited prior art, we address the broadest,
reasonable construction of each disputed term in light of the disclosure as it would
be interpreted by an ordinarily skilled artisan.
Claim 1 as well as the other disputed independent claims recite “[a] large-
audience, positionable imaging and display system for imaging and exhibition of
visual-media content[.]” PO App. Br. 31, Claims App’x. Claim 1 additionally
recites “a screen-display,” “screen positioning means,” and “exhibition means.”
Id. These or similar limitations are found in each disputed independent claim on
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appeal. Id. at 31–37, Claims App’x. For independent claims 2-3, 24, 32, and 38,
Patent Owner incorporates arguments by reference (id. at 11–12); for independent
claim 56, Patent Owner does not present a separate argument. We select claim 1 as
representative. For those additional, disputed limitations not found in claim 1 (e.g.,
“to provide circumnavigable viewing of the screen-display” recited in claim 2), we
will be addressed separately.
1. Claim 1
a. Preamble
Patent Owner contends that “the preamble is a fundamental characteristic [of
claim 1] as it defines the type of system being claimed and not just the use of the
system.” Id. at 10 (underlining omitted) (citing the ’346 patent 1:45–49, 5:7–10,
6:8–10, 6:51–8:63; Figs. 1, 9–11). Patent Owner further relies on the declaration
of Mr. Clyde Tichenor (“the Tichenor declaration”) in arguing that an ordinarily
skilled artisan would have found “a large audience” to mean “an audience of at
least several hundred people.” Id. (citing Tichenor Decl. ¶¶ 10–11). On the other
hand, the Examiner finds that the preamble is intended use (RAN 4) and can be
construed as “an imaging and display system that is ‘able to be positioned or
placed somewhere’ for the imaging and exhibition ‘to an ample or abundant
audience[.]’” RAN 5. The Requesters further contend that there is no support for
Patent Owner’s construction in the claims, the prior art, or the Patent Owner’s
Specification. See 3PR Resp. Br. 2.
We agree with the Examiner that the preamble includes intended use
language. For example, the phrase, “for the imaging and exhibition of visual-
media content” in claim 1’s preamble, is an intended use limitation. As such, the
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cited prior art need only be capable of performing the functions recited in the
preamble.
Concerning the specific term, “large-audience” within the phrase, “large-
audience, positionable imaging and display system,” we turn to the disclosure for a
better understanding. The ’346 patent describes a system that can be configured
for close proximity viewing or viewing at a distance. The ’346 patent 1:45–48.
The ’346 patent further describes the “viewing at a distance” configuration “can
readily be employed in arenas, stadiums and other large audience venues, including
venues in indoor or outdoor settings.” Id. at 1:48–50. This discussion states the
“viewing at a distance” configuration can be used for large audience venues but
does not eliminate “close proximity viewing” configurations for large audiences.
See id. at 1:45–48. That is, there is no language in claim 1 specifically requiring
the displaying system is only viewed at a distance.
Additionally, the ’346 patent describes and shows several examples of
“close proximity viewing” configurations that are intended for large audiences.
One such example (e.g., Figure 11) that has been cited by Patent Owner when
discussing the preamble (see PO App. Br. 10) is described as “a large-audience,
positionable imaging and display system suitable for a retail, educational or
research facility, or command-and-control center[.]” The ’346 patent 5:47–49,
17:55–59; Fig. 11. In this embodiment, the seats are arranged for close proximity
viewing. See id. at 18:13–18, Fig. 11. Additionally, eight seats are shown and
arranged around half of a display screen. See id. If the seats not shown are added
to the eight viewable seats, this described “large-audience” embodiment arguably
shows no more than fourteen seats. This is much less than several hundred people,
as Patent Owner urges. PO App. Br. 10. Thus, although the ’346 patent describes
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embodiments that are viewable at a distance and can be viewed by several hundred
people (see the ’346 patent 5:7–10; Fig. 1), we fail to find the term “large-
audience” in light of the disclosure must be limited to at least several hundred
people. Id. at 10.
Patent Owner further relies upon the Tichenor declaration to support the
position that one of ordinary skill in the art would have understood the term,
“large-audience,” to mean at least several hundred people. PO App. Br. 10 (citing
Tichenor Decl. ¶¶ 10–11). Even presuming that Mr. Tichenor is one of ordinary
skill in the art (see Tichenor Decl. ¶ 1–2), he provides no supporting evidence for
his position. See Tichenor Decl. ¶ 10. Mr. Tichenor addresses the ’346 patent
(citing the ’346 patent, Title, the Background of the Invention, 3:23–29, 4:23–29),
but does not address the Figure 11 embodiment of the ’346 patent. See id. at ¶¶ 9–
10. As such, Mr. Tichenor has not demonstrated sufficiently how one skilled in the
art would have construed the term, “large-audience” when considering the ’346
patent in its entirety and, consequently, his declaration addressing this limitation is
not persuasive.
Accordingly, we find that the Examiner’s construction that the term limits
the claim term “large-audience” to “an ample or abundant audience” (RAN 5) is
broad but reasonable in light of the disclosure and as the disclosure would have
been interpreted by one of ordinary skill in the art.
b. a screen-display
Claim 1 recites “a screen-display configured for the exhibition of panoramic
imagery having an interior surface-perimeter and an exterior surface-perimeter,
wherein, each of said surface-perimeters is shaped and sized to be substantially
contiguous in appearance and to have a display-surface viewing area of a
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panoramic type, over a wide-angle field extending up to a full 360° of azimuth, on
which, substantially contiguous panoramic visual-media content and segmented
visual-media content can be imaged.” Patent Owner asserts that the Examiner has
“ignored almost all of this claim language.” PO App. Br. 7. We disagree.
First, the Examiner finds that claim 1 requires a screen display with an
interior surface-perimeter and an exterior surface perimeter. See RAN 5. Second,
contrary to Patent Owner’s arguments (PO App. Br. 7; PO Reb. Br. 3), the
Examiner additionally states the screen display – not the surface-perimeters – is
“configured for the exhibition” and does not state the recitation is intended use.
RAN 5. Also, this “configured for” limitation is a functional recitation that
requires the screen-display to have the ability to exhibit panoramic imagery. See
In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997).
The Examiner further states that the term “panoramic” has been broadly
recited to include images that have “a wide aspect ratio, such as 16:9 aspect ratio”
or a “3:1 aspect ratio” in comparison with “a standard image which has a ratio of
about 4:3.” RAN 5. Although Patent Owner asserts that the RAN discusses a
“resized panorama” rather than “the exhibition of panorama” (see PO App. Br. 7
and RAN 6) (bolding omitted), we fail to find claim 1 excludes resizing an image
to exhibit panoramic imagery. Furthermore, the ’346 patent does not define
“panoramic” or “panoramic imagery.” See generally the ’346 patent. Given the
above, we find the Examiner’s position reasonable that the “panoramic imagery”
limits claim 1 to a screen display capable of exhibiting imagery having a wide
aspect ratio or covering a field of view greater than that of the human eye.
Moreover, the ’346 patent’s disclosure describes projectors that project an
array of adjacent panoramic segments (e.g., 20). The ’346 patent 10:22–27, Fig. 1;
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see also the ’346 patent 11:31, 50–52, 12:21–22, 14:15–17, 41–45; Figs. 1, 2, 6.
The ’346 patent also describes “panoramic display screens” (the ’346 patent 11:22)
and a “laterally-aligned camera array” that is a “panoramic image-capturing
apparatus” on flat surfaces (the ’346 patent 13:60–65, 15:1–8; Fig. 6). As such,
when considering the disclosure, we find that “panoramic imagery” includes even
panoramic segments exhibiting imagery having a wide aspect ratio or covering a
field of view greater than that of the human eye on flat surfaces.
Claim 1 further recites that “each of said surface-perimeters is shaped and
sized . . . to have a display-surface viewing area being capable of a panoramic
imagery over a wide-angle field extending up to a full 360° of azimuth.” Patent
Owner urges that the proper construction
requires the system to include a display surface with a viewing area that
allows at least one person at all of the angles between 0 degrees and up to a
full 360 degrees of azimuth to see both of the viewing surfaces (i.e., the
interior viewing surface perimeter and the exterior viewing surface
perimeter). To do otherwise would not provide a proper interpretation to “up
to a full 360 degrees of azimuth.” In other words, “full” means and includes
all of the angles from 0 to 360 degrees of azimuth, and not just one of them.

PO App. Br. 8; see also PO Reb. Br. 4. Patent Owner further cites to the Tichenor
declaration to support this position. See PO App. Br. 9 (citing Tichenor Decl.
¶¶ 13–16). We disagree.
Claim 1 recites each surface-perimeter is sized to have a viewing area “being
capable of panoramic imagery over a wide-angle field . . . .” Notably, the
disclosure of the ’346 patent has no definition for this claim language. See
generally the ’346 patent. Moreover, we will not import a particular embodiment
into a claim that is broader in scope than that embodiment. See Tichenor Decl. ¶
13–14. That is, we will not read into claim 1 a particular embodiment (e.g., Figure
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1), when as is the case here, the claim may be construed broader than the Figure 1
embodiment. See PO App. Br. 8–9 (discussing Fig. 1 in the ’346 patent); see also
Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004).
Because the surface-perimeters need to be capable of panoramic imagery
over a wide-angle field as recited, we disagree that the surface perimeter includes
“all of the angles” or those that would not be capable of panoramic imagery “over
a wide-angle field,” such as those at zero degrees or those that fail to generate the
correct aspect ratio. PO App. Br. 8. Thus, we are not persuaded that the recited
viewing area extends from 0 to 360 degrees or requires all angles. See Tichenor
Decl. ¶ 13. Additionally, we disagree that the phrase, “extending up to a full 360°
of azimuth” must include all of the angles up to a full 360° of azimuth. Claim 1
does not require each of said surface-perimeters is shaped and sized to have a
display-surface viewing area having the full 360° of azimuth. As such, we view
this limitation similar to claiming a range, and the plain meaning of the limitation
“extending up to a full 360° of azimuth” (emphasis added) is a recitation of a range
over which the viewing area can cover but does not require the viewing area to
encompass all the angles in the recited range, including 360 degrees. 3PR Resp.
Br. 5.
For example, as the Requesters indicate, this viewing area includes various
wide-angle fields, including only 120°, 270°, or 300° degrees, or “a wide angle
field less than the full 360 degrees.” 3PR Resp. Br. 5. We thus disagree that a
viewing area of 180° of azimuth would not have a “display surface viewing area of
panoramic type, over a wide-angle field extending up to a full 360 degrees of
azimuth” as broadly recited. See Tichenor ¶ 16. Also, the use of the word, “full,”
in front of “360° of azimuth” does not require that the wide angle field must
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include 360 degrees. Nor do we agree that our construction of a “full 360” degrees
fails to give “real meaning” to this term. See id. at ¶ 15. Rather, this claim
limitation of “up to full 360” degrees describes the top end of the wide angle field
range on which the prior art can read. Furthermore, even in the cylindrical screen
embodiments of the ’346 patent, none of the viewers are able to view the entire
360 degrees of a screen’s interior or exterior surface at one time or from a single
vantage point. Accordingly, like the Examiner, we construe this limitation as
having a “viewing area [that] can extend from ranges less than 360° . . . .” RAN 6.
Lastly, concerning the recitation, “each of said surface-perimeters is shaped
and sized to be substantially contiguous in appearance and to have a display-
surface viewing area of a panoramic type . . . on which, substantially contiguous
panoramic visual-media content and segmented visual-media content can be
imaged,”4 Patent Owner argues that this phrase requires that the surface-perimeters
are “substantially continuous in appearance” or “largely continuous.” The
Examiner has not disagreed with this construction stating the limitation of
“substantially contiguous” means “largely” continuous. See id. at 6.
Although the Examiner does not state that “substantially contiguous” means
a “majority,” Patent Owner asserts that the language, “substantially contiguous”
does not include “a system that merely has a majority of the surface perimeters
shaped and sized to be continuous.” PO App. Br. 9. The phrase, “substantially
contiguous,” is not defined in the disclosure of the ’346 patent, nor is there a clear
disavowal of this phrase. The ’346 patent describes the Figure 1 embodiment as

4 Patent Owner misquotes this claim language in claim 1 as “each of said surface-
perimeters is shaped and sized to be substantially contiguous in appearance on
which panoramic visual-media content and segmented visual-media content can be
imaged.” PO App. Br. 9.
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having screen-display 32 “preferably substantially contiguous and seamless in
appearance” or the viewing area having “a substantially seamless appearance.”
The ’346 patent 7:18–19, 7:67–8:1. Yet, the word “seamless” is noticeably absent
from claim 1. Also, the Tichenor declaration states that the “substantially
contiguous” includes surface perimeters that “are shaped and sized to be
continuous in appearance, or shaped and sized to be mostly continuously in
appearance.” PO App. Br. 9 (citing Tichenor ¶ 17). Similarly, the Examiner
further states this means “‘for the most’ part contiguous.” RAN 6. This
construction does not exclude gaps in the surface-perimeters. See 3PR Resp.
Br. 14. We thus find the Examiner’s construction of this phrase reasonable and
consistent with Patent Owner’s position.
c. screen positioning means

Claim 1 additionally recites, “screen positioning means to position said
screen-display to at least one height relative to a viewing audience to provide a
multitude of vantage points from which to view at least one of said surface-
perimeters.” Patent Owner asserts for this limitation that the Examiner has
improperly ignored the prosecution history and how this limitation should be
construed in light of the disclosure. PO App. Br. 10–11; PO Reb. Br. 4–5. In
particular, Patent Owner argues that this limitation means that “there is a system to
move the screen to a height relative to the audience.” PO App. Br. 11. Yet, we
agree with the Requesters that the phrases, “moving,” and “two or more heights,”
are not found in claim 1. 3PR Resp. Br. 15 (bolding and underlining omitted).
Rather, the claim merely recites “screen positioning means to position said screen-
display to at least one height . . . .” Id. at, Claims App’x (emphasis added).
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Turning to the disclosure for better understanding, we find various passages
discussing the positioning means. Some include motion-control actuators. See the
’346 patent 6:63–7:3. Others do not. See id. at 19:58–60, 20:56–21:38; Figs. 12–
16. For example, the Figure 12 embodiment shows the building itself serving as
the primary positioning means. See RAN 7; see also the ’346 patent 21:13–14,
19–24; Fig. 12. We therefore disagree that “the embodiment of using a building as
a positioning means is irrelevant to the interpretation of the claims.” PO App. Br.
11. Other examples describe a screen positioning means 56 that position a screen
at one height relative to the viewing audience. See RAN 7; see also the ’346 patent
21:34–39; Figs. 14–16. Thus, even when we consider the disclosure, we do not
find that the recited positioning means requires movement of the screen to a height
relative to the audience.
Regarding the prosecution history, the quoted portion of the prosecution
does not define or provide a meaning for the recited “screen positioning means.”
PO App. Br. 11 (quoting the April 2003 Response to an Office Action noting
Hayashi “doesn’t move his screens, he moves his audiences” (bolding omitted) and
quoting the Examiner’s reasons for allowance with bolding and underlining added
by Patent Owner); PO Reb. Br. 4–5. Rather, the statements merely are arguments
and indicate what one Examiner found that the cited prior art failed to show. See
id. These statements do not provide evidence of how the inventor limited the
meaning of the recited “screen positioning means” during prosecution. See id.
“Absent claim language carrying a narrow meaning, the PTO should only limit the
claim based on the specification or prosecution history when those sources
expressly disclaim the broader definition.” In re Bigio, 381 F.3d 1320, 1325 (Fed.
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Cir. 2004). As indicated above, the provided prosecution history fails to disclaim
expressly a broader definition of “screen positioning means.”
Accordingly, we find the Examiner’s construction that the “screen
positioning means” includes “anything that maintains, locates or moves the screen-
display at one or more heights” reasonable. RAN 7.
d. exhibition means
Lastly, claim 1 recites, “exhibition means for imaging and controlling said
contiguous panoramic visual-media content and said segmented visual-media
content on at least one of said surface-perimeters.” Patent Owner contends that the
limitation, “at least one of” in this phrase requires both the interior and exterior
surface-perimeters to be capable of being viewed, when reading the claim as a
whole. PO App. Br. 11. The Examiner construes this phrase to mean the content
is “on only one (reasonable interpretation of “at least one”) surface perimeter.”
RAN 8. We agree with the Examiner that a broad, but reasonable construction of
the phrase, “at least one of said surface-perimeters,” includes only one surface-
perimeter.
As for construing claim 1 as whole, claim 1 also recites “a screen-display . . .
having an interior surface-perimeter and an exterior surface-perimeter, wherein,
each of said surface-perimeter is shaped and sized . . . to have a display-surface
viewing area of a panoramic type, over a wide-angle field extending up to a full
360° of azimuth, on which, substantially contiguous panoramic visual-media
content and segmented visual-media content can be imaged.” PO App. Br. 31,
Claims App’x. We agree that the immediately above recitation recites that both
surface-perimeters must be capable of (e.g., are “shaped and sized”) having
viewing area for visual-media content. However, the separately recited exhibition
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means images and controls visual-media content on “at least one of said surface-
perimeters.” For example, in the Figure 1 embodiment, exhibition means 28
images and controls the visual-media content on the interior surface, while the
content is viewable on both surfaces. The ’346 patent 7:12–15, 10:15–30; Fig. 1.
Other embodiments show the exhibition means imaging on either the interior (e.g.,
Figs. 5, 8) or the exterior surface (e.g., Figs. 4, 7), and yet others disclose both.
The ’346 patent 10:15–33, 16:5–8; Figs. 4-5, 7–8.
2. Claim 2
For those limitations in independent claim 2 similar to independent claim 1,
we refer to the above discussion. Claim 2 additionally recites the “screen
positioning means to position said screen-display to at least one height relative to a
viewing audience to provide circumnavigable viewing of the screen-display, and to
provide a multitude of vantage points exterior to an outermost perimeter of said
display, from which to view at least one of said surface-perimeters.” Patent Owner
argues that the Examiner has improperly construed the phrase, “circumnavigable”
to mean “‘a viewing audience can see or can move to see a substantial portion of
the substantially contiguous screen-display, they would be provided
circumnavigable viewing.’ This is not the same as being able to walk around the
screen.” PO App. Br. 11 (bolding and underlining omitted).
At the outset, we note that there is no precise language in the recitation that
permits viewers to walk around the screen from all angles between 0 and up to the
full 360 degrees of azimuth as asserted. See id. at 11-12. Nor do we find precise
language in claim 2 of “the same viewing areas allow viewers (e.g., at different
heights), walking around an exterior of, or ‘circumnavigating,’ the system’s
screen-display from all angles” on the surface perimeters. Id. at 12. Concerning
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how to construe the phrase, “circumnavigable,” Requesters address two possible
definitions. 3PR Resp. Br. 9 (citing the ’346 patent 6:24–28, 16:16–19). Yet,
turning to these passages in the ’346 patent’s disclosure, we agree with the
Requesters that there is inadequate guidance regarding how this term is defined.
See id.
Other passages assist us a little more in understanding this term. For example,
the ’346 patent describes the Figure 2 (e.g., a cylindrical screen) and Figure 3 (e.g.,
a dome screen) embodiments as display screens having surface-perimeters that are
“circumnavigably, exteriorly, and/or interiorly, viewable.” The ’346 patent 5:15–
16. When discussing the Figure 7, 8, 10, and 12–16 embodiments, screen-display
32 is described as “a substantially contiguous circumferential surface that is
circumnavigably viewable in close proximity or from a distance, and is exteriorly,
and/or interiorly, viewable,” “substantially contiguous, panoramic and
circumnavigably viewable,” or “circumnavigably viewable screens.” Id. at 16:16–
19, 17:36–37, 19:63–64. Each of these screens has a substantially cylindrical or
octagonal shape.
However, we further note that the ’346 patent describes a partial cylindrical,
or arced, segment of the display can also achieve benefits similar to the Figure 1
embodiment, including “locat[ing] the arced-display for dual-perspective viewing
such that the display segment is exteriorly, and/or interiorly, viewable, or
circumnavigably viewable.” Id. at 11:64–66; see also id. at 11:58-64. Claim 3
also recites a panoramic arced-screen segment with a screen positioning means that
provides circumnavigable viewing. PO App. Br. 31, Claims App’x. Therefore,
although an ordinary understanding of the term, “circumnavigable,” includes
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“capable of being sailed round,”5 which implies a circumferential or cylindrical
shape, the ’346 patent envisions “a partial cylindrical or arced, segment of the
display” also provides circumnavigable viewing.
We therefore find the phrase, “screen positioning means . . . to provide
circumnavigable viewing of the screen-display” does not require the viewer to be
able to walk around a screen display from all angles between 0 and up to the full
360 degrees of azimuth, and can include partial-cylindrical or arced-shaped screens
in accordance with the disclosure. Given the ordinary understanding of
“circumnavigable,” we further find that the Examiner’s position that the
“circumnavigable viewing” includes when “a viewing audience can see or can
move to see a substantial portion of the contiguous screen-display” reasonable.
RAN 9. Additionally, as claim 2 further recites “screen positioning means . . . to
provide a multitude of vantage points . . . from which to view at least one of said
surface-perimeters,” we also find that the Examiner’s position that “there must be
more than one vantage point . . . to see one of the surface perimeters” reasonable.
Id. at 9.
Lastly, Patent Owner argues that the screen-height positioning provides
“significant new and unexpected outcomes.” PO App. Br. 12. However, Patent
Owner points to insufficient evidence to support this proposition. See id; see also
3PR Resp. Br. 15.

5 WEBSTER’S REVISED UNABRIDGED DICTIONARY (1913), available at
http://machaut.uchicago.edu/?resource=Webster%27s&word=circumnavigable&us
e1913=on (last visited October 7, 2014).

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3. Claim 3
Independent claim 3 does not recite a limitation in which the “screen-
display” has surface-perimeters shaped and sized “to have a display-surface
viewing area of a panoramic type, over a wide-angle field extending up to a full
360° of azimuth.” Additionally, claim 3 recites “a panoramic arced-screen
segment configured for the imaging of arced-panoramic imagery having an interior
surface-perimeter and an exterior surface-perimeter” and not a display having 360°
of viewing area. See PO App. Br. 31-32, Claims App’x. Thus, the arguments
related to the claim construction of the recitation of “a full 360° of azimuth” are
not applicable to claim 3. See id. at 12 (referring to parts 1–4 of the argument).
Patent Owner also argues that the Examiner did not construe the interior and
exterior perimeters as being arced. Id. at 12. We disagree. The Examiner states
that “there must be some arc or curve to the shape [of the screen] thereof.” RAN 9.
Additionally, the Examiner finds that the screen-display further has both an interior
and exterior surface-perimeters. Id. at 10. Taken in total, the Examiner has found
that the interior and exterior perimeters have some arc or curve.
4. Remaining Claims
Patent Owner refers to parts 1–4 of the Appeal Brief for independent claims
24, 32, and 38. PO App. Br. 12. To the extent these claim include the same
limitations as those discussed in parts 1–4, we refer to our previous discussions.
B. Art Rejections
The Tichenor declaration addressing evidence of secondary consideration
has no effect to the following anticipation rejections. The declaration has been
considered for the obviousness rejections.

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1. Anticipation Rejections
Except as noted below, we adopt the Examiner’s findings in the Answer and
reference to the RAN as our own. Ans. 1 (incorporating the RAN).
A. Hayashi
Based on the evidence of record and the above claim construction, we
conclude that the Examiner has not erred in rejecting claims 1- 2, 9-10, 31-32, 36,
and 56 under § 102(e) based on Hayashi. RAN 12-20. Other than claims 1 and 2,
Patent Owner has not argued the claims separately. PO App. Br. 12-14. We select
independent claims 1 and 2 as representative.
Patent Owner argues that Hayashi fails to disclose a screen display as
recited. PO App. Br. 12. In particular, Patent Owner argues that Hayashi fails to
disclose “a display surface with a viewing area that allows at least one person at all
of the angles between 0 degrees and up to a full 360 degrees of azimuth to see both
of the viewing surfaces (i.e., the interior viewing surface perimeter and the exterior
viewing surface perimeter),” because the screen is attached to a supporting
structure, preventing “two-sided screen “viewability” or viewing of both
surface-perimeters. PO App. Br. 12-13. Given the breadth of claim 1, we are not
persuaded.
As a preliminary matter, claim 1 recites “screen-display . . . having an
interior surface-perimeter and an exterior surface-perimeter, wherein, each of said
surface-perimeters is shaped and sized . . . to have a display-surface viewing area
of a panoramic type over a wide-angle field” and “exhibition means for imaging
and controlling said contiguous panoramic visual-media content and said
segmented visual-media content on at least one of said surface-perimeters.” Thus,
even though claim 1 requires an interior and exterior surface-perimeter and each
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has a viewing area, the claim only requires the exhibition means to image visual-
media content on “at least one of said surface-perimeters.” There is no limitation
in claim 1 requiring the viewer to be able to view both surfaces at once.
Turning to Hayashi, Figures 48 and 49 show a cylindrical screen display
(e.g., 22H) having interior and exterior surface-perimeters over a wide-angle field
(e.g., the right and left surfaces of screen 22H in Fig. 48 respectively). Hayashi
7:56–63, Fig. 48; see RAN 13. Although viewers 30 do not face the interior
surface-perimeter, Hayashi still has an interior surface-perimeter shaped and sized
to have a display-surface viewing area of a panoramic type over a wide-angle field
as broadly as recited. See Hayashi, Figs. 48–49. Moreover, even though not
required by claim 1 as discussed above, Hayashi’s display-surface viewing areas
for both the interior and exterior include all of the angles between 0 degrees and up
to a full 360 degrees of azimuth. See Hayashi 7:56–63, Fig. 48.
We additionally note that the ’346 patent states that projections “rendered
onto an interior-surface 14 would also appear on exterior surface-perimeter 16.”
Id. at 13:29–32. Similarly, Hayashi has internal projectors that render images on
the interior surface which also appear on the exterior surface. See Hayashi 7:58–
63, Figs. 48–49. This further demonstrates Hayashi’s display screen has an interior
and exterior surface-perimeters shaped and sized to have a viewable area, even
though the viewer may not face a particular surface.
Patent Owner further contends that Hayashi fails to disclose a screen
positioning means “to position said screen-display to at least one height relative to
a viewing audience to provide a multitude of vantage points from which to view at
least one of said surface-perimeters." We disagree. Contrary to Patent Owner’s
assertions (PO App. Br. 13), Hayashi shows floor 6 and building 3 with ceiling 2
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provide a screen positioning means that positions screen 22H. Hayashi, Figs. 48-
49; see also RAN 13. Additionally, Hayashi describes and shows screen 22H at
one height relative to the viewing audience (e.g., viewers at chairs 30) providing a
position of the screen-display relative to the viewing audience and multiple
vantage points from which to view at least one surface-perimeter (e.g., the exterior
surface-perimeter). Hayashi 7:57–63, Figs. 48–49. Notably, the part of Hayashi
quoted by Patent Owner describes an alternative embodiment (i.e., Fig. 1) where
the screen is positioned on the building’s cylindrical surface and the viewers are
located in the center of the building. PO App. Br. 13 (citing Hayashi 4:4–6).
Thus, because the Examiner focused on Figures 48 and 49, we find this discussion
unpersuasive. RAN 14.
To the extent Patent Owner is asserting that Hayashi fails to move the screen
relative to the viewing audience (see PO App. Br. 13), we disagree and refer to our
above discussion under the Claim Construction section. In particular, we stated
that this limitation in claim 1 does not require the screen positioning means to
move the screen relative to the viewing audience.
Patent Owner separately discusses independent claim 2. First, Patent Owner
refers to the previous arguments presented for claim 1. We are not persuaded.
Second, Patent Owner argues Hayashi does not disclose “screen positioning means
to position said screen-display to at least one height relative to a viewing audience
to provide circumnavigable viewing of the screen-display, and to provide a
multitude of vantage points exterior to an outermost perimeter of said display, from
which to view at least one of said surface-perimeters.” PO App. Br. 13. To
support this argument, Patent Owner repeats the contentions above in connection
with claim 1, arguing there is no “two-sided screen viewability” in Hayashi, and
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contending Hayashi does not disclose a system that moves a screen to a height
relative to an audience. Id. at 13. For the above reasons, we disagree.
For the foregoing reasons, Patent Owner has not persuaded us of error in the
rejection of (1) independent claims 1 and 2 and (2) claims 9-10, 31-32, 36, and 56
not separately argued with particularity.
B. Salesky
Based on the evidence of record and the above claim construction, we
conclude that the Examiner has not erred in rejecting claims 1- 2, 4–6, 14-15, 17,
28, 31-32, 50, and 52–54 under § 102(e) based on Salesky. RAN 24-33. Claims 1
and 14 are separately argued, and we select them as representative. PO App. Br.
14-17.
Patent Owner asserts that Salesky fails to disclose “a screen-display
configured for the exhibition of panoramic imagery having an interior surface-
perimeter and an exterior surface-perimeter, wherein, each of said surface-
perimeters is shaped and sized to be substantially contiguous in appearance and to
have a display-surface viewing area of a panoramic type, over a wide-angle field
extending up to a full 360° of azimuth, on which, substantially contiguous
panoramic visual-media content and segmented visual-media content can be
imaged.” Id. at 14. In particular, Patent Owner contends that Salesky’s screens are
flat, failing to mention panoramic-type imaging, and do not show or describe
surface-perimeters that are “substantially contiguous in appearance” as recited,
because the screen are “distinctly separated from each other by significant
structures where no picture would be viewable.” Id. (citing Tichenor Decl. ¶ 18).
As stated above, we find the Examiner’s position reasonable that the
“panoramic imagery” language in claim 1 limits to a screen display to one capable
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of being used to exhibit imagery having a wide aspect ratio and does not require
the prior art to have the full 360° of azimuth. Also, claim 1 fails to require the
display to be curved and can be flat while providing a panoramic view over wide-
angle field. Salesky describes projectors that project images with a certain height
H and width W that can spread or widen an image optically. RAN 24–25 (citing
Salesky Figs. 1–4); see also Salesky 7:24–41 (describing Fig. 1). Thus, we
disagree with Mr. Tichenor that the Salesky does not disclose panoramic-type
imaging as recited. See PO App. Br. 14-15. Also, regarding the “substantially-
contiguous arced-panoramic” comments, we note that claim 3 has not been
rejected using Salesky and, once again, we find the declaration addressing this
limitation unpersuasive. Id. at 14 (citing Tichenor Decl. ¶ 18).
Salesky states that multi-display system 300 may leave the top and bottom
surfaces open to form a viewable image surface. Salesky 9:28–32; Fig. 3.
Similarly, the Figure 1 embodiment in Salesky has its top and bottom surfaces
open and thus permits viewing on its interior. See Salesky, Figs. 1–2. That is,
depending on the height the display is positioned relative to the Salesky’s viewing
audience, the screen-display has both exterior and interior surface-perimeters
shaped and sized to have a display-surface viewing area of a panoramic type over a
wide-angle field as broadly as recited. We thus are not persuaded by Mr.
Tichenor’s position that “it would be very difficult to exhibit panoramic imagery”
based on the arrangements disclosed in Salesky. PO App. Br. 15 (citing Tichenor
Decl. ¶ 19). Furthermore, as previously noted, none of the viewers are able to see
the entire 360 degrees of a screen’s surface at one time in the embodiments of the
’346 patent.
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Patent Owner argues that the imagery must be contiguous to create a
panoramic type viewing area. PO App. Br. 15. However, for reasons discussed
above when addressing how to construe the claims, we disagree. First, when
addressing the limitation in claim 1 reciting the surface-perimeters are sized and
shaped to be “substantially contiguous in appearance,” we explained this limitation
requires the surfaces to be largely or for the most part contiguous and does not
exclude gaps. See 3PR Resp. Br. 14. Thus, although Salesky discloses screens
that contain gaps (e.g., Figs. 1, 2, or 4), we find that the screens (e.g., inner
surfaces 121–123 or those created by projectors 411–414) are largely or for the
most part are contiguous. See Salesky 5:54–57, 10:11-40, Figs. 1 and 4. We
further note that Salesky teaches further embodiments that have polygonal shapes,
including five, seven, or more sides. See Salesky 9:63–10:10. As such, we
disagree that Salesky fails to teach each surface-perimeter is shaped and sized to be
substantially contiguous in appearance as recited.
Next, Patent Owner argues that Salesky fails to disclose a screen positioning
means as recited. PO App. Br. 15-16. Patent Owner admits Salesky’s screen can
be attached or suspending by the ceiling using cables, positioned on a floor, or in a
box or cube. PO App. Br. 15 (citing Salesky 8:37–39); see also RAN 25-26 (citing
Salesky 8:32-39). However, Patent Owner asserts this disclosure fails to teach the
screen is positioned to at least one height relative to a viewing audience. We
disagree that the discussed cables fail to meet this claim limitation of a positioning
means that positions the screen at one height relative to a viewing audience.
Patent Owner further contends that Salesky does not disclose an exhibition
means, once again focusing on the “contiguous panoramic” claim language.
PO App. Br. 16. We are not persuaded for the above-stated reasons.
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As for claim 14, Patent Owner additionally asserts Salesky fails to teach
“‘said screen-display having a circularity-of-action’ in combination with the other
features of the claims.” Id. at 16–17. Patent Owner focuses on Salesky disclosing
only disrupted display surfaces and not a panoramic display to conclude that
Salesky fails to provide “a circularity-of-action.” Id. at 16. For the above reasons,
we disagree that Salesky fails to teach a panoramic display and note the claim only
requires the surface-perimeters to be “substantially contiguous in appearance.”
Moreover, as noted above, viewers of Salesky’s display can see both the exterior
and interior surface-perimeters depending on the position of the display’s height
relative to the viewing audience (e.g., viewers can view both surface-perimeters
from below when screen is suspended from the ceiling), such that an object can be
seen to travel from left to right on an exterior surface-perimeter and right to left on
an interior surface-perimeter as recited. See also RAN 28 (citing Salesky 8:32–39,
9:20–32; Fig. 4). We therefore disagree that display shapes other than a circle
cannot create “circularity-of-action.” See PO App. Br. 17.
For the foregoing reasons, Patent Owner has not persuaded us of error in the
rejection of (1) claims 1 and 14 and (2) claims 2, 4–6, 14-15, 17, 28, 31-32, 50, and
52–54 not separately argued with particularity.
C. Globus
Based on the evidence of record and the above claim construction, we
conclude that the Examiner has not erred in rejecting claims 1-2, 9, 14, 31, and 32
under § 102(b) based on Globus. RAN 47–53. Patent Owner argues claims 1-2,
14, and 31 separately (PO App. Br. 19-22), and we select them as representative.
Patent Owner asserts that Globus fails to disclose “a screen-display
configured for the exhibition of panoramic imagery having an interior surface-
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perimeter and an exterior surface-perimeter, wherein, each of said surface-
perimeters is shaped and sized to be substantially contiguous in appearance and to
have a display-surface viewing area of a panoramic type, over a wide-angle field
extending up to a full 360° of azimuth, on which, substantially contiguous
panoramic visual-media content and segmented visual-media content can be
imaged.” PO App. Br. 19–20. Patent Owner once again asserts that only one
surface-perimeter (i.e., the interior surface) is shaped and sized to have a viewing
area over 360 degrees of wide-angle field. Id. at 19–20. However, as noted
previously, claim 1 only requires an exhibition means for imaging visual-media
content on at least one of the surface-perimeter, which Patent Owner admits
Globus does. See id. at 19 (discussing a 360 degree screen on the inner periphery
and citing Globus 2:50–54). Additionally, Globus teaches that screen 2 can be
made from reflective or transmittive rear screen material. Globus 4:1-3; see also
RAN 50 and PO App. Br. 20 (quoting this passage). As such, we disagree with
Patent Owner that Globus has no description that the exterior surface-perimeter is
suitable for imaging and cannot create a viewing area as recited. Id. at 19.
Patent Owner further argues that Globus fails to teach a display system for
large audiences, only showing a few people viewing the screen. Id. at 20. Based
on the record, we disagree. First, we note our construction of the recitation to a
“large-audience” in the preamble at best limits the claim to “an ample or abundant
audience” but does not require a viewing audience of several hundred.
Additionally, although Patent Owner points to Globus’ disclosure of a viewing
room having a seventeen foot diameter (Globus 3:37–39), this is merely an
example of the screen size. Patent Owner also argues that Globus is “in a small
room of a building” (PO App. Br. 20), but we fail to find this discussion in Globus.
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Patent Owner next argues that Globus does not disclose a screen positioning
means that provides multiple vantage points, because the legs are not adjustable.
Id. at 20. We disagree based on the above discussion and our claim construction of
positioning means, which requires means to position the screen to one height
relative to a viewing audience and does not require movement.
Finally, Patent Owner contends Globus fails to disclose a screen support
means for supporting the shape of the screen-display. Id. at 20. Although Patent
Owner focuses on the screen material (see id.), the Examiner states that one of the
legs supporting screen drum 2 maps to this recitation. RAN 48. Additionally,
Globus discloses other structures located above the screen and supporting housing
3, which also provide a screen support means. See Globus, Fig. 1.
As for claim 2, Patent Owner argues Globus fails to disclose “screen
positioning means to position said screen-display to at least one height relative to a
viewing audience to provide circumnavigable viewing of the screen-display, and to
provide a multitude of vantage points exterior to an outermost perimeter of said
display, from which to view at least one of said surface-perimeters.” PO App.
Br. 21. Many the arguments with respect to claim 2 merely repeat those for claim
1 (see id.), and we refer to our findings above for details. Also depending on how
the viewing audience is positioned (e.g., sitting underneath but outside drum 2),
Globus screen-display’s height relative to the viewing audience is such that the
viewing audience can have multiple vantage points exterior to an outermost
perimeter and still provide circumnavigable viewing, such as the interior surface’s
display. Notably, as discussed above, we found that “circumnavigable” includes
partial-cylindrical or arced-shaped screens in accordance with the disclosure.
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Regarding claim 14, Patent Owner refers to section D1 and claim 1. Id. at
21. As stated above, we are not persuaded. Patent Owner also contends that light
transmittive feature in Globus fails to teach the “circularity-of-action” limitation in
claim 14, because one of ordinary skill in the art would interpret this arrangement
as having the image projected from the outside and into the drum’s center. Id. at
22. Although this is mere attorney argument with no supporting evidence, we find,
even if presumed true, that there would be images on both the interior and exterior
of Globus’ screen-display having a circularity of action as recited. That is, as
stated above, Globus has a positioning means which can position the display at one
height relative to an audience which provide a dual-perspective vantage points of
an object seen to travel from left to right on the exterior surface-perimeter and right
to left on the interior surface-perimeter, depending on where the audience is sitting
(e.g., one sitting on the ground outside the dome).
Lastly, concerning claim 31, Patent Owner refers section D1 and claim 1.
Id. at 22. We are not persuaded for the reasons previously set forth.
For the foregoing reasons, Patent Owner has not persuaded us of error in the
rejection of (1) claims 1, 2, 14, and 31 and (2) claim 32 not separately argued.
D. Fussell
Based on the evidence of record and the above claim construction, we
conclude that the Examiner has not erred in rejecting claims 1-2, 4–6, and 9 under
§ 102(b) based on Fussell. RAN 68–72. Patent Owner argues claim 1, which we
select as representative. PO App. Br. 24–25.
At the outset, we note the remarkable similarity between Fussell’s Figure 3
and Figure 14 of the ’346 patent. Compare Fussell, Fig. 3 with the ’346 patent,
Fig. 14. Additionally, Figure 13 of the ’346 patent has a balloon display similar to
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Fussell’s Figure 3. See id. Patent Owner attempts to argue that the Figure 13 and
14 embodiments of the ’346 patent are excluded by the claim language in claim 1,
because one would not be able to see the display-surface viewing area of the
interior surface-perimeter. PO App. Br. 24. However, as discussed above, claim 1
recites each surface-perimeter is shaped and sized to have a display-surface
viewing area over a wide-angle field but does not require that the viewer be able to
see each viewing area. Rather, claim 1 recites the screen positioning means
positions the screen-display to provide multiple vantage points to view at least one
of the surface-perimeters (e.g., the exterior surface). As such, we find this
argument is not commensurate with the scope of claim 1.
Even so, given that Fussell has a spheroid-shaped translucent screen, Fussell
discloses a screen-display having both interior and exterior surface-perimeters to
be substantially contiguous in appearance and to have a display-surface viewing
area of a panoramic type over a wide-angle field extending up to a full 360 degrees
of azimuth based on our above construction of this limitation. See Fussell 2:56–67,
3:14–18; Fig. 1 (Figure 1 cited in RAN 68-70). For example, Fussell states that the
material of the panels 12–14 that form the spheroid are translucent, permitting the
projected image on the interior surface to be viewable on the outside and also
permitting the interior surface-perimeter to have a display-surface viewing area
over a wide-angle field that can be seen when the spheroid is at a position of at
least one height relative to the large viewing audience (e.g., positioned such that
the viewer is above or below the spheroid). See id. at 2:57–61, Fig. 1. Similarly,
the Figure 3 balloon embodiment has openings above and below buoyant body 70,
permitting viewers to be able to see both the interior and exterior surface-
perimeters over a wide angle field. See id. at 4:63–5:1, Fig. 3. Moreover, even
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though the viewers may be positioned outside the inflated volume or screen (PO
App. Br. 24 (citing Fussell 5:48– 6:2)), this does not prevent viewers from viewing
the display’s inside surface.
We also are not persuaded that Patent Owner has provided sufficient
evidence that the interior portion of Fussell’s screen is not viewable, because
Fussell’s structures are filled with heated exhaust gas. PO App. Br. 24. If this is
true, then the Figure 13 embodiment of the ’346 patent, which has been described
as having “pressurized balloon-shaped commercial display,” would not have
display 32, which is both exteriorly and interiorly viewable as stated in the ’346
patent. The ’346 patent 21:21–22; see also id. at 21:26–31.
Lastly, Patent Owner argues that Fussell’s surface-perimeters are not
“substantially contiguous in appearance and sized and shaped as a display on
which, substantially-contiguous panoramic visual-media content and segmented
visual-media content can be imaged.” PO App. Br. 24 (citing Fussell 3:14–18,
5:48–6:2). Specifically, Patent Owner contends that Fussell only displays
panoramic visual-media content and not panoramic visual-media content and
segmented visual-media content. A review of these passages in Fussell fails to
disclose that segmented visual-media content cannot be imaged. See Fussell 3:14–
18, 5:48–6:2. On the other hand, Fussell states that its video projection screens
have reception screens for circumferential viewing for a full 360° of viewing area.
RAN 68 (citing Fussell 1:5–9); Fussell 3:14–18. Thus, Fussell discloses an
exhibition means for imaging contiguous panoramic visual-media content.
Moreover, each projector individually (e.g., 30, 31, 42 in Fig. 1 or 73 in Fig. 3)
provides segmented visual-media content that collectively create circumferential or
panoramic visual-media content. Fussell 3:12–21, 5:4–8; Figs. 1, 3.
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For the foregoing reasons, Patent Owner has not persuaded us of error in the
rejection of (1) independent claim 1 and (2) claims 2, 4–6, and 9 not separately
argued with particularity.
2. Obviousness Rejections
A. Salesky and Herndon
Claim 13 is rejected under § 103 as obvious based on Salesky and Herndon.
RAN 39–40. Patent Owner refers to “the reasons set forth herein” to argue that
Salesky does not teach or suggest the features in claims 1 and 13. PO App. Br. 17.
For claim 1, we disagree for the above reasons. Additionally, Patent Owner
contends that Herndon does not cure the purported deficiencies. Id. Specifically,
Patent Owner argues Herndon cannot just use a ring of cameras and relies on an
optic system interposed between the cameras and scene 20 exteriorly to the camera
ring. Id.
Notably, claim 13 recites “consisting of” language but also recites “said
exhibition means is comprised of a panoramic image-capturing apparatus
consisting of a ring of inward-facing cameras” (emphasis added). Thus, claim 13
requires the specifically recited panoramic image-capturing apparatus to be the
ring of cameras, but the exhibition means can comprise more elements. Herndon
describes the scene being depicted by cameras 11A–F through the medium of six
optic systems or channels for image collection. Herndon 2:11–15; Fig. 1. As such,
these components collectively form the exhibition means for imaging and
controlling the media-content that comprises components (e.g., an optic system)
and a panoramic image-capturing apparatus consisting a “ring of inward-facing
cameras.” Alternatively, Herndon discusses the cameras have “associated optic
systems.” RAN 40 (citing Herndon 2:64-3:2). Based on Herndon’s discussions,
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one skilled in the art would have recognized the optic system media or channels
described separately in Herndon are a part of the cameras and thus these
components collectively form the panoramic image-capturing apparatus consisting
of the ring of inwardly-facing cameras.
Below, we address the secondary considerations but note the arguments do
not address or relate to the specific limitations in claim 13. PO App. Br. 30. Id.;
Tichenor Decl. ¶¶ 22–30. The weight of the evidence taken as a whole supports
the conclusion of obviousness for claim 13.
B. Salesky and Brotz
Claim 24 is rejected under § 103 as obvious based on Salesky and Brotz.
RAN 40–41. Claim 24 is similar in scope to claim 1 and adds a limitation of “the
positioning means comprises at least one computer-automated stepper motor.”
PO App. Br. 33, Claims App’x. Patent Owner refers to “the reasons stated in C1,”
arguing that claim 24 is patentable over Salesky. PO App. Br. 18. For previously
stated reasons, we disagree.
Additionally, Patent Owner contends that Brotz does not cure the purported
deficiencies, disputing the combination because Salesky only teaches a screen
attached or suspending from a ceiling or positioned on a floor and would only
teach rotating the screen not positioning the screen to a height. Id. We are not
persuaded. As discussed above when addressing claim 1, claim 24 similarly
recites “screen positioning means to position said screen-display to at least one
height relative to the large viewing audience’ and Salesky teaches this recitation
using the cables. Salesky 8:37–39 (citing by PO App. Br. 18). The Examiner
explains that Brotz assists in obtaining the desired level (e.g., a height) for the
viewing audience by using computer-automated stepper motor. RAN 41 (citing
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Brotz 4:54-5:15; Fig. 6). Using a stepper motor rather than a cable to obtain the
desired viewing level for an audience is no more than mere substitution of one
known element for another and does no more than yield a predictable result. See
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
We further disagree with Mr. Tichenor that an ordinary skilled artisan would
not look to a computer-automated stepper motor for suspending or attaching
screens to a ceiling so that the screens are set in place. PO App. Br. 18 (citing
Tichenor Decl. ¶ 21). We note that automatically retractable screens, such as in
movie theaters, were commonly known. Moreover, even assuming, without
agreeing, that Brotz’s motor is used only to rotate the screen in Salesky (see PO
App. Br. 18 (discussing the Figure 4 embodiment)), the substitution still achieves
the recited means “to position said screen-display to at least one height relative to
the large viewing audience” (emphasis added) as recited.
Below, we address the secondary considerations but note the arguments do
not address or relate to the specific limitations in claim 24. PO App. Br. 30;
Tichenor Decl. ¶¶ 22–30. The weight of the evidence taken as a whole supports
the conclusion of obviousness for claim 24.
C. Globus and APA
Claims 17, 24, 37, and 58 are obvious over Globus and APA under
35 U.S.C. § 103(a). RAN 60–68. For claim 17, Patent Owner refers to “the
reasons set for in D1” in arguing claim 1 is patentable over Globus. PO App.
Br. 23. We disagree for reasons already discussed and need not address how APA
cures any alleged deficiency. Additionally, we disagree that APA in combination
with Globus fails to teach the features in claim 17 and especially “the quoted
features of claim 17,” which have not been discussed in any particularity. Id.
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Lastly, below, we address the secondary considerations of long felt need, failure of
others, and commercial success but the arguments do not address the recitations in
claim 17. Id. at 30. The weight of the evidence taken as a whole supports the
Examiner’s conclusion of obviousness under the law for claim 17.
As for claims 24, 37, and 58, Patent Owner argues that the section of the
’346 patent cited by the Examiner is not admitted prior art. Id. at 23. Specifically,
Patent Owner argues that the cited section is “merely a description of motion-
controlled actuators, and not AAPA.” Id. Patent Owner further argues that Globus
does not disclose its legs are adjustable and one skilled in the art would not use a
computer-automated stepper motor to position a screen, such as Globus’. Id.
(citing Tichenor Decl. ¶ 21). We are not persuaded.
First, as emphasized by the Examiner (RAN 63), the ’346 patent states that
there are “known and/or available motion-control actuators” used in combination
with connecting arms. The ’346 patent 6:63–7:11. Second, concerning the
Tichenor declaration, there is inadequate supporting evidence that one skilled in
the art would not use a computer-automated stepper motor. We further repeat that
automatically retractable screens were known in the art. Third, combining this
familiar or known actuator with Globus’s legs does no more than yield a
predictable and improved result (see RAN 64 (discussing providing a means that
assists in raising and lowering a screen)). See KSR, 550 U.S. at 416–417.
Regarding claims 37 and 58, Patent Owner refers to “the reasons stated in
D1” and that APA fails to cure the deficiencies. PO App. Br. 23. We disagree for
the above-stated reasons. As to claim 37, Patent Owner also refers to (1) the
arguments proffered with respect to claim 24, for which we are not persuaded by
and (2) “quoted features of claim 37,” for which Patent Owner fails to articulate
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with any specificity. Id. Concerning claim 58, Patent Owner essentially repeats
the argument made for claim 24.
Below, we address the secondary considerations but note the arguments do
not address or relate to the specific limitations in claims 17, 24, 37, and 58. PO
App. Br. 30; Tichenor Decl. ¶¶ 22–30. The weight of the evidence taken as a
whole supports the conclusion of obviousness for claims 17, 24, 37, and 58.
D. Fussell and Shaffron
Claim 3 is obvious over Fussell and Shaffron under 35 U.S.C. § 103(a).
RAN 72–74. Patent Owner argues neither Fussell nor Shaffron teaches features of
claim 3. PO App. Br. 25. Notably, the Examiner relies on the combination of
Fussell and Shaffron to teach the features of claim 3. Additionally, Patent Owner
refers to “the reasons set forth in E1” and repeats some of the argument to contend
that the claim 3 is patentable over Fussell. Id. To the extent Patent Owner is
referring to the features in claims 1 and 2 (i.e., section E1) and the anticipation
rejection, we disagree for reasons previously stated. Additionally, we disagree that
claim 3 requires “both the surface-perimeters have to be viewable by an audience”
given that claim 3 recites a screen positioning means to provide multiple vantage
points from which to view at least one surface-perimeter. Lastly, Shaffron is relied
upon to teach the speaker feature of claim 3, which Patent Owner admits is taught,
and not the other features in the claim. PO App. Br. 25.
Below, we address the secondary considerations but note the arguments do
not address or relate to the specific limitations of claim 3. PO App. Br. 30;
Tichenor Decl. ¶¶ 22–30. The weight of the evidence taken as a whole supports
the conclusion of obviousness for claim 3.
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E. Fussell and Salesky
Claims 3, 15, 17, and 28 are rejected based on Fussell and Salesky.
RAN 75–79. When discussing claim 3, Patent Owner refers to “the reasons set
forth above” and section C4. PO App. Br. 26. We disagree for the previously-
stated reasons. Additionally, the Examiner has not relied upon Salesky to teach the
arced-panoramic screen segment with the interior and exterior surface-perimeter.
See RAN 76–77. Thus, we are not persuaded by Patent Owner’s reference to the
Tichenor declaration and addressing how Salesky cannot provide these recited
features. PO App. Br. 17 (citing Tichenor Decl. ¶¶ 18–19). Furthermore, we
disagree for the above reasons when addressing Fussell and for the reasons set
forth by the Examiner (RAN 76-77) that Fussell does not remedy the purported
deficiencies of Salesky. Id. Lastly, the Examiner has not proposed modifying
Salesky as asserted. Id. (citing Tichenor Decl. ¶ 20).
Concerning claims 15, 17, and 28, Patent Owner refers to “the Office Action
Responses.” Id. at 26. However, without any further details, we are unsure as to
which Office Action Responses and which arguments Patent Owner is referring.
Any argument not included in the brief will be refused consideration. See 37
C.F.R. § 41.67(c)(1)(vii).
Below, we address the secondary considerations but note the arguments do
not address or relate to the specific limitations set forth in claims 3, 15, 17, and 28.
PO App. Br. 30; Tichenor Decl. ¶¶ 22–30. The weight of the evidence taken as a
whole supports the conclusion of obviousness for claims 3, 15, 17, and 28.
F. Fussell and Herndon
Claims 13 is rejected based on Fussell and Herndon. RAN 79. Patent
Owner refers to section E1 in arguing claim 1 is patentable over Fussell. PO App.
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Br. 26. As previously stated, we are not persuaded. Additionally, Patent Owner
argues claim 13 is not obvious over the cited art “based on the reasons set forth in
D8.” Id. Section D8 addresses the rejection of Globus and Herndon and further
refers to section “C7.” PO App. Br. 22-23. To the extent that these arguments are
applicable to the rejection of Fussell and Herndon, we are not persuaded. As stated
above when addressing claim 13 rejected based on Salesky and Herndon, we
disagree that Herndon fails to teach the recited panoramic image-capturing
apparatus. Moreover, the arguments concerning “Globus’ intent of using one
projector” are not applicable to Fussell. PO App. Br. 23.
 Below, we address the secondary considerations but note the arguments do
not address or relate to the specific limitations in claim 13. PO App. Br. 30;
Tichenor Decl. ¶¶ 22–30. The weight of the evidence taken as a whole supports
the conclusion of obviousness for claim 13.
G. Fussell and APA
Claim 17 is rejected based on Fussell and APA. RAN 79–80. Patent Owner
refers to section E1 in arguing claim 1 is patentable over Fussell. PO App. Br. 26.
As previously stated, we are not persuaded. Additionally, Patent Owner argues
claim 13 is not obvious over the cited art “based on the reasons set forth in D11.”
Id. Section D11 argues that Metcalf is not admitted prior art. Id. at 23. For the
reasons previously discussed, we disagree and refer above for details. Moreover,
the arguments concerning Globus are not applicable to Fussell. Id. Below, we
address the secondary considerations but note the arguments do not address or
relate to the specific limitations in claim 17. Id. at 30; Tichenor Decl. ¶¶ 22–30.
The weight of the evidence taken as a whole supports the conclusion of
obviousness for claim 17.
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H. Secondary Considerations
Secondary considerations, including satisfaction of a long-felt need and
commercial success can have a significant impact on an obviousness analysis. See,
e.g., Washburn & Moen Manuf’g Co. vs. Beat’em All Barbed Wire Co., 143 U.S.
275, 282 (1892); In re Cyclobenzaprine Hydrochloride Extended-Release Capsule
Patent Litigation, 676 F.3d 1063, 1075-1080 (Fed. Cir. 2012) (long-felt need and
commercial success should be considered before ultimate decision made on
obviousness); In re Tiffin, 443 F.2d 394 (CCPA 1971), modified on reh’g, 448 F.2d
791 (CCPA 1971) (per curiam); Ex parte Artsana USA, Inc., 2014 WL 4090808
(PTAB Aug. 18, 2014) (finding commercial success to be entitled to considerable
weight); Murata Mfg. Co., Ltd. v. Synqor, Inc., 2014 WL 1397381 *11–14 (PTAB
Apr. 10, 2014).
Patent Owner present arguments concerning secondary considerations of
long felt need, failure of others, and commercial success set forth in the Tichenor
declaration. PO App. Br. 30. Notably, the portions of the Tichenor declaration
addressing secondary considerations have no persuasive value against the
anticipation rejections. In determining nonobviousness, evidence of secondary
considerations must be relevant to the claimed subject matter, and there must be a
determination of whether there is a nexus between the claimed invention and
evidence to be probative. See Ashland Oil, Inc., v. Delta Resins & Refractories,
Inc., 776 F.2d 281, 305 n. 42 (Fed. Cir. 1985). The Tichenor declaration only
discusses claims 1–3, and thus this evidence has less probative value for the
remaining claims.
Concerning claims 1–3, Patent Owner argues that there is evidence of
commercial success. Id. at 30. Beyond the general statement, Patent Owner does
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not provide evidence of a nexus between the claimed features and the commercial
success. Id. Additionally, the Tichenor Declaration has provided insufficient
proof to establish a nexus between the claimed features and the commercial
success. For example, the evidence of licensing with the Los Angeles Lakers may
be unrelated to the features of the claimed products in the ’346 patent, such as the
license is mutually beneficial to both parties or less expensive than defending an
infringement suit. See Tichenor Decl. ¶ 29; Hybritech Inc. v. Monclonal
Antibodies, Inc., 802 F.2d 1367 (Fed. Cir. 1986). Additionally, although Mr.
Tichenor states that the claimed systems have been used by Justin Timberlake,
Britney Spears, and the Los Angeles Lakers to generate “hundreds of millions of
dollars in revenue,” this statement is inadequate to demonstrate that these
individuals’ or entities’ commercial success was attributable to the claimed product
of claims 1–3. Tichenor Decl. ¶ 28.
Patent Owner also contends that there was a long felt need for the systems
recited in claims 1–3 and that others failed to address this need. Tichenor Decl.
¶¶ 22–27. As evidenced by the above-discussed prior art, we fail to find sufficient
evidence that an art recognized problem “for audience, positionable imaging and
display systems for the imaging and exhibition of visual-media content” or “for
better screen displays” or “for better screen-display systems” existed for a long
time without solution. PO App. Br. 30; Tichenor Decl. ¶¶ 23–24. Moreover,
contrary to Mr. Tichenor’s assertions (see Tichenor Decl. ¶ 23), some of the cited
art, such as Fussell, has no “fixed seating capacity” and other cited art, such as
Salesky and Fussell, allows all viewers to view the event.
Mr. Tichenor further argues that the system of claims 1–3 yield unexpected
results. Tichenor Decl. ¶ 25. However, the evidence of the energy and cost
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savings is conclusory without underlying support for the findings and is
insufficient evidence of superiority over the prior art or a greater than expected
result.
I. Remaining Adopted and Non-Adopted Rejections
Our conclusion that the Examiner did not err in rejecting claims 1–6, 9-10,
13–15, 17, 24, 28, 31-32, 36-37, 50, 52–54, 56, and 58 based on the adopted
rejections discussed above renders it unnecessary to reach the propriety of the
remaining rejections of those claims. See Beloit Corp. v. Valmet Oy, 742 F.2d
1421, 1423 (Fed. Cir. 1984); cf. In re Gleave, 560 F.3d 1331, 1338 (Fed. Cir.
2009). We further decline to reach the non-adopted rejections. See 37 C.F.R.
41.77 (a) (“The Patent Trial and Appeal Board … may affirm or reverse each
decision of the examiner on all issues raised on each appealed claim . . . .) and
Gleave, 560 F.3d at 1338.

IV. CONCLUSION
The Examiner’s decision to reject claims 1–6, 9-10, 13–15, 17, 24, 28, 31-
32, 36-37, 50, 52–54, 56, and 58 is affirmed.

V. TIME PERIOD FOR RESPONSE
Requests for extensions of time in this proceeding are governed by 37 C.F.R.
§§ 1.956 and 41.79(e). In the event neither party files a request for rehearing
within the time provided in 37 C.F.R. § 41.79, and this decision becomes final and
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must timely
serve notice on the Director of the United States Patent and Trademark Office. See
37 C.F.R. §§ 90.1 and 1.983.
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AFFIRMED

FOR PATENT OWNER:

Meyertons, Hood, Kivlin, Kowert & Goetzel, P.C.
P.O. Box 398
Austin, TX 78767-0398

FOR THIRD-PARTY REQUESTER:

Andrew S. Langsam
Pryor Cashman, LLP
7 Times Square
New York, NY 10036-6569