Ex Parte Burton

Board of Patent Appeals and Interferences

Dec 19, 2002

09149616 (B.P.A.I. Dec. 19, 2002)

1 Application for patent filed September 8, 1998, entitled
"Method and System for Creating False Three-Dimensional Images
for Amusement," which claims the benefit of U.S. Provisional
Application 60/058,374, filed September 9, 1997.
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The opinion in support of the decision being
entered today was not written for publication
and is not binding precedent of the Board.
_______________
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte JOHN BURTON

Appeal No. 2000-1965
Application 09/149,6161

Before JERRY SMITH, BARRETT, and SAADAT, Administrative Patent
Judges.
BARRETT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from
the final rejection of claims 1-8, 10, and 11.
We affirm.
Appeal No. 2000-1965
Application 09/149,616
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BACKGROUND
The invention relates to a method and system for creating
false images using known stereoscopic lenses that selectively
diffract light based on its wavelength, so that different colors
on the same surface appear to be at different distances from the
viewer, as shown in appellant's figure 1. The method may be
understood from claim 1, reproduced below.
1. A method of creating false images in an amusement
center, comprising the steps of:
providing an enclosed room that is substantially sealed
from electromagnetic radiation and having walls and floors
that are substantially black and reflect substantially no
electromagnetic radiation;
forming a pattern on a surface of the room, said
pattern comprising at least one portion having a color with
a wavelength greater than approximately 5000 Ã…;
providing a light source for illuminating said pattern
and a region of said surface adjacent said pattern, said
light source radiating electromagnetic radiation with a
wavelength of less than 4300 Ã…; and
providing a viewer with stereoscopic lenses that
selectively diffract light based on its wavelength, wherein
said portion of said pattern appears to project away from
said surface when viewed through said stereoscopic lenses.
The examiner relies on the following references:
Steenblik 4,597,634 July 1, 1986
Burke 5,469,295 November 21, 1995
Ishii et al. (Ishii) 5,482,510 January 9, 1996
Claims 1-8, 10, and 11 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Ishii, Steenblik, and Burke.
Appeal No. 2000-1965
Application 09/149,616
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We refer to the final rejection (Paper No. 9) (pages
referred to as "FR__") and the examiner's answer (Paper No. 16)
(pages referred to as "EA__") for a statement of the examiner's
rejection, and to the appeal brief (Paper No. 15) (pages referred
to as "Br__") for a statement of appellant's arguments
thereagainst.
OPINION
Grouping of claims
The claims are not argued separately. Therefore, the claims
are treated as standing or falling together with representative
claim 1. See 37 CFR § 1.192(c)(7) (1998).
Requirement under 37 CFR § 1.196(d)
On September 24, 2002, we entered a requirement under 37 CFR
§ 1.196(d) (Paper No. 18) for appellant to address a question of
possible public use based on the use of ChromaDepth® 3-D glasses
in the Maniac Maze in the summer of 1996 as described in the
article about appellant entitled Theatrical Terror's John Burton
by Leonard Pickel, from "http://www.hauntedattraction.com/15/-
coverstory.html." (Although the first article by J. Hillinger
discusses that a series of lighting and viewing effects using the
ChromaDepthTM glasses were introduced by Automated Entertainment
in 1995, and discusses scenic applications such as the use of
fluorescent colors on a non-fluorescent black background, the
Appeal No. 2000-1965
Application 09/149,616
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copyright is 1995/2000 and it is not known, and we have not been
able to determine, what date the disclosures are entitled to.)
Appellant filed a Declaration by Glenn A. Lewis (Paper
No.19), President of After Five, Inc., the assignee and real
party in interest. Mr. Lewis states (declaration, p. iii-iv):
4. In the summer of 1996, John Burton began
experimenting with three-dimensional illusions for
Industrial Nightmare, specifically three-dimensional
illusions based on the use of stereoscopic lenses
(ChromaDepthTM glasses) to alter the perceived depth of
objects based on their wavelength.
5. Maniac Maze was first opened to the public on
Friday, September 13, 1996. There were no public
disclosures of the technology in issue prior to the opening
of Maniac Maze.
We accept that there was no public use based on these facts.
Factual findings
Ishii discloses an amusement device comprising a tubular
passage reflecting ultraviolet rays from a picture drawn on the
inner wall surface of the dark interior of the tubular passage
with fluorescent substance (e.g., col. 2, lines 40-46; col. 3,
lines 34-46). Because Ishii discloses that the interior of the
passage is "dark," except as illuminated by the ultraviolet
light, and because Ishii discusses a technique which can be used
with an "opaque" tube (col. 1, line 48), such as stainless steel
or concrete (col. 5, lines 8-10, the passage of Ishii is
considered to be "an enclosed room that is substantially sealed
Appeal No. 2000-1965
Application 09/149,616
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from electromagnetic radiation." The ultraviolet light source 3
has a wavelength of 280 (nanometers) nm to 400 nm, i.e.,
2800-4000 Ã…, so it is a "light source for illuminating said
pattern and a region of said surface adjacent said pattern, said
light source radiating electromagnetic radiation with a
wavelength of less than 4300 Ã…."
The three differences between Ishii and the subject matter
of claim 1 are: (1) Ishii discloses that a stereoscopic effect is
created by the difference in light and tone (col. 3, lines 1-4 &
54-55), but does not disclose "providing a viewer with
stereoscopic lenses that selectively diffract light based on its
wavelength, wherein said portion of said pattern appears to
project away from said surface when viewed through said
stereoscopic lenses"; (2) Ishii discloses that the pictures on
the walls of the passage are drawn with a fluorescent substance
(e.g., col. 2, line 23-29), and thus discloses "forming a pattern
on a surface of the room," but does not expressly disclose "said
pattern comprising at least one portion having a color with a
wavelength greater than approximately 5000 Ã…"; and (3) Ishii
discloses that the surface of the passage reflects the
ultraviolet rays to achieve a uniform illumination (e.g., col. 3,
lines 34-53; col. 5, lines 13-24) and does not disclose "walls
and floors that are substantially black and reflect substantially
no electromagnetic radiation."
Appeal No. 2000-1965
Application 09/149,616
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Steenblik discloses a stereoscopic process and lenses to
alter the perceived depth of objects based on their color
(wavelength). The claimed invention uses the stereoscopic lenses
taught by Steenblik (spec. at 1, lines 17-20). Steenblik
discloses that the stereoscopic process "may be applied to any
type of color image" (col. 2, line 24). Applications include
video games and computer-aided design systems (col. 2,
lines 23-46). "Other applications include the use in air traffic
control display systems, binocular microscopy, viewing of printed
pictures, and laser light shows" (col. 5, lines 8-11)). It is
disclosed that "the image to be viewed is color coded according
to the distance of depth desired and the images viewed through
prism goggles or glasses (col. 2, lines 48-51). Steenblik
discloses that the brain interprets, by parallax, certain colors
as being closer or further away, providing the parallax is not
greatly overidden by or contradicted by cues such as relative
size, composition, and perspective (col. 4, lines 18-22).
Burke discloses a system and method of collecting and
displaying images of isolated persons and objects in three
dimensions. A "subject" (a person or object) is filmed against a
black background that isolates the subject in each frame of film
so that the only thing projected is the isolated image of the
subject (col. 8, lines 18-24). The image of the subject is
projected on a special screen so the object is seen by the
Appeal No. 2000-1965
Application 09/149,616
2 The final rejection, page 3, has handwritten notes in
pencil in the margin. Although not initialed and not in
permanent ink, we assume these notes are part of the rejection.
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audience on the screen (col. 10, lines 42-45) while real three
dimensional objects in front of and behind the screen are visible
by a viewer in front of the screen (col. 12, lines 60-62) without
the use of special eyewear.
The rejection
The examiner correctly identifies the three differences
between Ishii and the subject matter of claim 1 (FR3; EA3). The
examiner finds that Steenblik discloses the claimed stereoscopic
lenses and a pattern having at least one portion having a color
greater than approximately 5000 Ã… (FR3; EA3-4), i.e., the subject
matter of differences (1) and (2). The examiner finds that Ishii
and Steenblik use similar techniques to create stereoscopic
images, because they both use how different colors will behave
when reflected or refracted based on their different wavelengths,
referring to column 3, lines 45-55 of Ishii and figures 4a-4c of
Steenblik (FR32; EA4). The examiner concludes that it would have
been obvious to view the pattern of Ishii with the stereoscopic
lenses of Steenblik and to make the pattern of Ishii with at
least one portion having a color with a wavelength greater than
approximately 5000 Ã… as Steenblik "to add depth and realism,
Appeal No. 2000-1965
Application 09/149,616
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i.e., enhance the 3-D effect (column 2, lines 35-36, Steenblik)
so the pattern of Ishii will be more fantastic" (FR3).
With respect to difference (3), the examiner finds that
Burke discloses that having images on a black background was well
known and concludes that it would have been obvious to make the
walls and floors of Ishii black to isolate the pattern (FR3-4).
Analysis
Difference (1)
Appellant argues that there is no motivation for the
combination outside of appellant's disclosure and that regardless
of the propriety of the combination, such combination would not
yield the invention recited in the claims (Br13). It is first
argued that there is no suggestion in Ishii for providing the
rider with stereoscopic lenses as taught by Steenblik and,
similarly, although Steenblik discloses the preferred
stereoscopic lenses, Steenblik does not suggest the creation of
false three-dimensional images by forming patterns in an enclosed
room on a substantially black background that reflects
substantially no electromagnetic radiation (Br14-15). It is
argued that the examiner's motivation, that both Ishii and
Steenblik are directed to creating stereoscopic images, is not
persuasive because Ishii is not a "true" stereoscopic process and
uses the term "stereoscopic" in a different context (Br15).
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Application 09/149,616
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The examiner replies that Ishii and Steenblik use similar
techniques for creating stereoscopic images and "it is clear it
would have been obvious . . . to combine the images and the
stereoscopic lenses of Steenblik with the amusement device of
Ishii in order to increase the depth and realism of the images
disclosed in Ishii and make them appear more fantastic" (EA8).
The examiner states that Ishii states that a 3-D effect is
created so it must have the necessary structure (EA8). The
examiner further finds the motivation in Steenblik (EA9).
We find that Steenblik's disclosure that the stereoscopic
process "may be applied to any type of color image" (col. 2,
line 24) constitutes a general suggestion to use the stereoscopic
glasses to view any kind of colored image to see a stereoscopic
effect. Thus, we agree with the examiner that it would have been
obvious to use the stereoscopic lenses in Steenblik to view the
patterns in Ishii. Ishii provides complementary motivation in
that desires the viewers to experience a "stereoscopic fantastic
space" (col. 3, lines 54-55) and anything that would further that
goal would be desirable. It does not make any difference whether
Ishii itself is a "true" stereoscopic process.
Difference (2)
As to difference (2), "said pattern comprising at least one
portion having a color with a wavelength greater than
approximately 5000 Ã…," although it expected that Ishii would use
Appeal No. 2000-1965
Application 09/149,616
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colors having a wavelength greater than 5000 Ã… (i.e., colors
other than blue or violet, such as green, yellow, orange, red),
Steenblik discloses viewing green and yellow colors. It would
have been obvious to use any colors, including green and yellow,
in Ishii in view of Steenblik to get the stereoscopic effect.
Difference (3)
The weakest part of the examiner's case is with respect to
difference (3), "walls and floors that are substantially black
and reflect substantially no electromagnetic radiation."
Appellant argues that Burke mentions the use of a black
background to isolate a subject for filming, but "this reference
provides no teaching or suggestion for projecting or otherwise
placing an image against a black background reflecting
substantially no electromagnetic radiation for viewing" (Br16).
It is argued that Burke describes a method and system for
creating three-dimensional images that requires the image to be
projected onto a specially designed screen that eliminates the
need for stereoscopic lenses altogether and, thus, teaches away
from placing an image on a substantially black background for
viewing (Br17). Appellant notes that all three independent
claims require a black background that reflects substantially no
electromagnetic radiation (Br18-19).
Appeal No. 2000-1965
Application 09/149,616
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The examiner responds (EA9):
Ishii discloses that the images that are viewed are on a
dark background that reflects substantially no
electromagnetic radiation (column 3, lines 45-55; Ishii),
which serves to isolate the image from the surroundings.
Using a black background as a dark background that reflects
substantially no electromagnetic radiation is [sic, was]
well known, as shown by Burke. Burke teaches that the black
background is useful for isolating an image (column 8,
lines 20-21; Burke) and thereby accentuating the image/-
pattern. The isolating of the image in Burke acts as
motivation for combining the teaching of Burke of the black
background with the teachings of Ishii in order again to
accentuate the image/pattern and to make the ride more
fantastic.
The examiner states that Burke is used solely for teaching using
a black background to isolate an image (EA10).
Ishii discloses that the surface of the passage reflects the
ultraviolet rays to achieve a uniform illumination for the
background (e.g., col. 3, lines 34-53; col. 5, lines 13-24).
Thus, we disagree with the examiner's finding that Ishii
discloses a dark background that reflects substantially no
electromagnetic radiation.
We think there must be many other references which would
better teach the obviousness of using a black background to make
the patterns stand out for viewing under the ultraviolet light in
Ishii. Paintings on black velvet and blacklight (Day Glo)
posters from the 1960s come to mind. Indeed, the claims would
cover looking at a black velvet picture or a blacklight poster
under a blacklight in a darkened room with the Steenblik lenses
Appeal No. 2000-1965
Application 09/149,616
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except for the claim that the whole room is substantially black.
Further, we think it was well known at the time of the invention
for haunted house attractions to have enclosed rooms with
non-reflective black walls, ceilings, and floors using
fluorescent patterns with blacklight illumination, so that the
claim covers viewing known haunted house attractions with the
Steenblik lenses. Nevertheless, in the absence of evidence of
such use of black backgrounds, we conclude that Burke's teaching
of using a black background to isolate the subject reasonably
would have suggested using a black background for the fluorescent
patterns in Ishii for the same reason. The subject in Burke is
viewed, it is just viewed by film rather than a user, but the
principle of having the subject stand out against a background is
the same; note that the examiner does not rely on the final
three-dimensional projection of the filmed image. Moreover, it
appears that the reason Ishii uses a reflective dark background
to achieve uniform illumination of the tubular passage is to
overcome the safety problem in the prior art of riders in a
completely dark tube possibly getting neck injuries due to
accidental variable shock if the tube changes suddenly in
direction (col. 1, lines 32-47; col. 2, line 9). Thus, Ishii
suggests to one of ordinary skill that the background purposely
was not completely black to avoid this safety problem, which
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Application 09/149,616
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implies that it would have been obvious to make the background
black if safety were not an issue.
For the reasons stated above, we conclude that the
differences between Ishii and the subject matter of claim 1 would
have been obvious to one of ordinary skill in the art at the time
the invention was made. The rejection of claims 1-8, 10, and 11
is sustained.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
JERRY SMITH )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LEE E. BARRETT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
MAHSHID D. SAADAT )
Administrative Patent Judge )
Appeal No. 2000-1965
Application 09/149,616
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