Ex Parte Bennett et al

Patent Trial and Appeal Board

Sep 15, 2016

12982156 (P.T.A.B. Sep. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/982, 156 12/30/2010
68365 7590 09/19/2016
FIALA & WEA VER P.L.L.C.
C/O CPA GLOBAL
900 2nd A venue South, Suite 600
MINNEAPOLIS, MN 55402
FIRST NAMED INVENTOR
James D. Bennett
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
AOS.01310000 7892
EXAMINER
NGUYEN, PHU K
ART UNIT PAPER NUMBER
2617
NOTIFICATION DATE DELIVERY MODE
09/19/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
DOCKETING@CPAGLOBAL.COM
docketing@fwiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES D. BENNETT and JEYHAN KARAOGUZ
Appeal2015-002705
Application 12/982, 156
Technology Center 2600
Before ALLEN R. MacDONALD, JOHN P. PINKERTON, and
GARTH D. BAER, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2015-002705
Application 12/982, 156
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-20, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Exemplary Claims
Exemplary claims 1, 4, 7, 12, and 18 under appeal read as follows
(emphasis added):
1. A method used in an application containing code
of a programming language, the method comprising:
generating a first command by execution of the
code of the application by at least one processor
directing at least in part a first configuration of a first
region of a screen to support a first content, the first
content being three-dimensional content, and the first
configuration being a first three-dimensional
configuration;
generating a second command by execution of
the code of the application by at least one processor
directing at least in part a second configuration of a
second region of the screen to support a second content;
causing the display of the first content within the
first region of the screen based on the first command; and
causing the display of the second content within
the second region of the screen based on the second
command simultaneously with the display of the first
content within the first region of the screen.
4. A software development kit, stored within a
computer-readable memory, for a programming language
that enables simultaneous display on a screen of both
two-dimensional content and three-dimensional content,
the software development kit comprising:
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a source code editor operable to enable
applications to be generated based on code of the
programming language;
a compiler that compiles code written in the
programming language into compiled code; and
at least one library module that responds to first
program calls by assisting in establishing a first region
of a screen, the establishing of the first region involving
placing the first region in a first configuration to
support display of first content, the first configuration
being a first three-dimensional configuration, and the
first content being three-dimensional content;
the at least one library module that responds to
second program calls by assisting in establishing a
second region of the screen, the establishing of the
second region involving placing the second region in a
second configuration to support display of second
content, the first configuration being different than the
second configuration; and
the compiler being configured to link the compiled
code \vith the at least one library module.
7. A computer program product stored within a
computer-readable memory for enabling a processor to display
content on a screen that supports two-dimensional display and
three-dimensional display, the computer program product
compnsmg:
one or more library modules that receive one or more
commands, the one or more library modules comprising a
two-dimensional display supporting module, a three-
dimensional display supporting library module, and a mixed
two-dimensional or three-dimensional display supporting
library module, the mixed two-dimensional and three-
dimensional display supporting library module being
configured to assist in establishing multiple regions of the
screen and placing the multiple regions in one or more
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corresponding configurations to support display of two-
dimensional and three-dimensional content;
first code that delivers the one or more commands to the
one or more library modules, the one or more commands being
indicative of a viewing dimension, the one or more library
modules responding to the one or more commands by at least
in part placing a first screen region in a selected one of a two-
dimensional configuration or a three-dimensional
configuration, the selection in conformance with the viewing
dimension; and
second code that at least assists in establishing display of
content in the first screen region of the screen.
12. A method used in an application containing code
of a programming language, the method comprising:
generating a first command by execution of the code of
the application by at least one processor directing a two-
dimensional display of the two-dimensional content within a
first region of the screen; and
generating a second command by execution of the code
of the application by at least one processor directing a three-
dimensional display of the three-dimensional content within a
second region of the screen simultaneously with the two-
dimensional display of the two-dimensional content within the
first region of the screen.
18. A program library supporting a programming
language and stored within a computer-readable memory, the
program library comprising:
a first predefined module that responds to first program
calls by assisting in establishing a first region of a screen, the
establishing of the first region involving placing the first
region in a first configuration to support display of first
content, the first configuration being a first three-dimensional
configuration, and the first content being three-dimensional
content;
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a second predefined module that responds to second
program calls by assisting in establishing a second region of
the screen, the establishing of the second region involving
placing the second region in a second configuration to
support display of second content, the first configuration
being different than the second configuration; and
a third predefined module that responds to third program
calls by assisting in establishing multiple regions of the
screen, the establishing of the multiple regions involving
placing the multiple regions in one or more corresponding
configurations to support display of two-dimensional and
three-dimensional content.
Reference and Rejection on Appeal
The Examiner rejected claims 1-20 under 35 U.S.C. § 103(a) as being
unpatentable over Ijzerman (WO 2005/045488 Al ). 1
Appellants' Contentions2
1. Appellants contend that the Examiner erred in rejecting claim l
under 35 U.S.C. § 103(a) because:
The teachings of Ijzerman are fundamentally deficient with
respect to independent claim 1 for at least the reason that
Ijzerman does not teach or suggest generating a first or second
command directing a configuration of a region of a screen by
execution of the code of the application. Indeed, nowhere does
Ijzerman disclose an application containing code, or the code
executed by at least one processor, let alone generating a
1 The patentability of claims 2-3, 5-6, 8-11, 13-17, and 19-20 is not
separately argued from that of claims 1, 4, 7, 12, and 18. See Appeal Br. 10,
15-19. Except for our ultimate decision, claims 2-3, 5-6, 8-11, 13-17, and
19-20 are not discussed further herein.
2 These contentions are determinative as to the rejection on appeal.
Therefore, Appellants' other contentions are not discussed herein.
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command to direct configuration of a screen region by
execution of the code of the application.
There is no disclosure in Ijzerman that teaches or suggests
generating a command, execution of the code of the
application, or directing at least in a part a configuration of a
region of a screen to support content.
Thus, according to Ijzerman, the simultaneous display of 2D and
3D images are enabled because of the waveguide, more
specifically, its active matrix arrangement. Consequently, the
structure of waveguide has no bearing on the generation of a
command by execution of the code of an application, let alone
a command directing at least in part a configuration of a region
of a screen to support a content. Moreover, even if processor 40
or graphic processor 42 of Ijzerman do generate commands by
executing the "code of the operating software to control the
data process,"' which they do not, this is not what is claimed.
That is to say, claim 1 does not recite code of the operating
software to control the data process. Rather, claim 1 recites
"generating a first command by execution of the code of the
application by at least one processor directing at least in part a
first configuration of a first region of a screen to support a first
content" and "generating a second command by execution of the
code of the application by at least one processor directing at least
in part a second configuration of a second region of the screen to
support a second content."
Appellant notes that nowhere does Ijzerman even mention the
word "command,"' nor does Ijzerman even mention similar
words to "command,"' such as "instruction." Furthermore,
Ijzerman does not even mention the word "application" (as used
to mean "program"), or related words, such as "program,"'
"code," "execution,"' etc. Ijzerman primarily relates to hardware,
in particular disclosing a waveguide for autostereoscopic
display. Ijzerman simply does not teach or suggest, or even
relate to, the generating of a first command and a second
command by execution of the code of the application by at least
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one processor directing at least in part configurations of
regions of a screen to support first and second content.
Appeal Br. 8-10, Appellants' emphasis omitted, panel's emphasis added.
2. Appellants also contend that the Examiner erred in rejecting claims
4, 7, 12, and 18 under 35 U.S.C. § 103(a) because:
On page 4 of the Final Office Action, the Examiner rejected
claims 4-20 under 35 U.S.C. § 103(a) as allegedly being
unpatentable over Ijzerman. Specifically, the Examiner asserts:
"Claims 4-6, 7-11, 12-17, and 18-20 claim a software
development kit, a computer program product, a method, and a
program library supporting a programming language based on
the method of claims 1-3 and details which would have been
obvious in view of Ijzerman layer display; therefore, they are
rejected under the same reason." ... Appellant [submits] that
claims 4-20 are not based on the method of claims 1-3 as they
are directed towards different patent-eligible subject matter
categories and recite different features from claims 1-3.
Because USPTO personnel must consider all claim limitations
when determining patentability of an invention over the prior
art, Appellant [requests] that the Examiner provide further
detail where the features of claims 4-20 is disclosed in order to
provide Appellant with a full and fair opportunity to respond.
Claim 12 is patentable over Ijzerman for similar reasons to
independent claim 1 and 4 and further in view of its own features.
For example, Ijzerman fails to teach or suggest generating
commands by execution of the code of the application by at
least one processor directing two-dimensional and three-
dimensional display of content. Nowhere does ljzerman even
mention the word "command,"' nor does Ijzerman even
mention similar words to "command," such as "instruction."
Furthermore, ljzerman does not mention the word
"application" (as used to mean "program''), or related words,
such as "program," ["]code," ["]execution," etc. ljzerman
simply does not teach or suggest, or even relate to, the
generating of a first command and a second command by
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Application 12/982, 156
execution of the code of the application by at least one
processor directing two-dimensional display and three-
dimensional display, respectively, of content.
Appeal Br. 10-12, 17, Appellants' emphasis omitted, panel's emphasis
added.
Issue on Appeal
Did the Examiner err in rejecting claims 1, 4, 7, 12, and 18 as being
obvious?
ANALYSIS
As to Appellants' above contention 1, we are not persuaded the
Examiner erred in rejecting claim 1. We agree with the Examiner that
Ijzerman teaches a processor that sends control signals to perform the
functionality recited in claim 1 (i.e., directing a first configuration of a first
region of a screen to support first content, where the first configuration is a
three-dimensional configuration and the first content is three-dimensional
content, and directing a second configuration of a second region of the
screen to support second content). Ans. 4 (citing Ijzerman p. 13, 11. 12-15;
p. 17, 11. 16-21 ). Thus, we agree with the Examiner that claim 1 would have
been obvious to one of ordinary skill in the art in light of Ijzerman.
Accordingly, we sustain the rejection of claim 1.
As to Appellants' above contention 2, we are persuaded the Examiner
erred in rejecting claims 4, 7, and 18, but we are not persuaded the Examiner
erred in rejecting claim 12. The Examiner has the burden of establishing a
prima facie case of obviousness regarding the subject matter recited in the
claims on appeal. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)
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("[The] [patent] examiner bears the initial burden, on review of the prior art
or on any other ground, of presenting a prima facie case of
unpatentability."); see also In re Jung, 637 F.3d 1356, 1365---66 (Fed. Cir.
2011) (explaining that while "the applicant must identify to the Board what
the examiner did wrong, ... the examiner retains the burden to show
invalidity").
We agree with Applicants that claims 4, 7, and 18 are directed
towards different subject matter categories and recite substantially different
claim limitations from claim 1. 3 See Appeal Br. 11. However, in rejecting
claims 4, 7, and 18, the Examiner did not separately consider the limitations
of those claims, and instead, indicated that the claims claim "a software
development kit, a computer program product ... and a program library
supporting a programming language based on the method of claims 1-3 ...
which would have been obvious in view ofljzerman ... therefore, [the
claims] are rejected under the same reason [sic]." Final Act. 4. The
Examiner's rationale is not sufficient to meet the burden of establishing a
prima facie case of obviousness for claims 4, 7, and 18. Accordingly, we do
not sustain the rejection of claims 4, 7, and 18.
However, we do not agree with Appellants that claim 12 is directed
towards a different subject matter category from claim 1. See Appeal Br. 11.
Instead, both claims 1 and 12 are method claims. Further, we do not agree
with Appellants that claim 12 recites substantially different claim limitations
3 Should there be further prosecution of this application, we suggest that the
Examiner re-review all pending claims and consider whether a restriction
requirement is appropriate.
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from claim 1.4 See id. Rather, similar to claim 1, we agree with the
Examiner that Ijzerman teaches a processor sending control signals to
perform the functionality recited in claim 12 (i.e., directing a two-
dimensional display of two-dimensional content within a first region of a
screen, and directing a three-dimensional display of three-dimensional
content within a second region of the screen simultaneously with the two-
dimensional display of the two-dimensional content within the first region of
the screen). Ans. 6-7 (citing Ijzerman p. 13, 11. 12-15; p. 17, 11. 16-21).
Thus, we agree with the Examiner that the rationale for rejecting claim 1
applies to claim 12. See Final Act. 4. Accordingly, we sustain the rejection
of claim 12.
CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 1-3 and 12-17 as
being unpatentable under 35 U.S.C. § 103(a).
(2) Appellants have established that the Examiner erred in rejecting
claims 4--11 and 18-20 as being unpatentable under 35 U.S.C. § 103(a).
(3) Claims 1-3 and 12-17 are not patentable.
( 4) On this record, claims 4--11 and 18-20 have not been shown to be
unpatentable.
4 Although not necessary to reach our conclusion, we note that Appellants'
arguments regarding patentability of claim 12 are substantially similar to its
arguments regarding patentability of claim 1. See Appeal Br. 17-18.
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DECISION
We affirm the Examiner's rejections of claims 1-3 and 12-17 as
being unpatentable under 35 U.S.C. § 103(a).
We reverse the Examiner's rejection of claims 4--11 and 18-20 as
being unpatentable under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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