11146194 (P.T.A.B. Aug. 29, 2013)

Ex Parte Heinrich

Patent Trial and Appeal BoardAug 29, 2013

11146194 (P.T.A.B. Aug. 29, 2013)

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. 11/146,194 06/06/2005 Harald Heinrich P09,0348 (40026-0005) 5434 26574 7590 08/29/2013 SCHIFF HARDIN, LLP PATENT DEPARTMENT 233 S. Wacker Drive-Suite 6600 CHICAGO, IL 60606-6473 EXAMINER PAGE, EVAN RANDALL ART UNIT PAPER NUMBER 3715 MAIL DATE DELIVERY MODE 08/29/2013 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 APPEAL BOARD ____________________ Ex parte HARALD HEINRICH ____________________ Appeal 2011-008795 Application 11/146,194 Technology Center 3700 ____________________ Before MICHAEL C. ASTORINO, MICHELLE R. OSINSKI, and ADAM V. FLOYD, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-008795 Application 11/146,194 2 STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of claims 29-422 under 35 U.S.C. § 103(a) as unpatentable over De-Gol (US 2002/0183123 A1, pub. Dec. 5, 2002), Lagace (US 6,354,044 B1, iss. Mar. 12, 2002), and Ohga (US 5,486,141, iss. Jan. 23, 1996). Ans. 3-7. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Claim 29 is the sole independent claim on appeal and is reproduced below: 29. A simulator comprising: a robotic manipulator having a free end movable in a plurality of axes; a non-enclosed seat attached to said free end of said manipulator and movable by said manipulator in said plurality of axes, said seat being configured to receive a seated human being thereon; a display system comprising a display screen on which an image is displayed; a pivot bow on which said display screen is carried, said pivot bow being circular and being connected to said display screen and forming an enclosure structure with said display screen; a pivot mount at said free end of said manipulator to which said pivot bow is attached, said pivot mount allowing pivoting of said enclosure structure in relation to said seat between 1 Appellant identifies the real party in interest as KUKA Roboter GmbH. App. Br. 1. 2 Claims 1-28 have been cancelled. App. Br. 1. Appeal 2011-008795 Application 11/146,194 3 a first position in which said seat remains non- enclosed, and a second position in which said seat is enclosed by said enclosure structure and that places said display screen in a field of vision of a human being seated on said seat; and said enclosure structure having a size and shape configured to completely surround a human being on said seat in a body direction selected from the group consisting of head-to-toe and shoulder-to-shoulder, and said pivot bow being attached to said pivot mount with an orientation relative to said pivot mount that pivots said enclosure structure around a pivot axis that is perpendicular to a plane containing said body direction. ANALYSIS The Examiner’s rejection acknowledges that De-Gol fails to disclose several limitations of claim 1, but relied on Lagace and Ohga to disclose the missing limitations. Ans. 3-5. The Examiner concludes that “[i]t would have been obvious to one of ordinary skill . . . to have replaced the display and movable support structure of De-Gol with that of Lagace in order to offer ‘ . . . isolation from the environment so that viewing and listening will not be interrupted.’” Id. at 5 (citing Lagace, col. 1, ll. 33-35). The Examiner further concludes that: [i]t would have been obvious to one of ordinary skill . . . to have made the projection screen and supporting structure of Lagace partially spherical as in Ohga resulting in a curved support and display overhead and in front of the viewing position in order to create a more immersive display. Id. Appeal 2011-008795 Application 11/146,194 4 Appellant contends that: [although] the Lagace reference does, in fact, disclose a very specific type of display that can be moved between two positions, . . . this is far from a general teaching that would serve as a basis to guide or motivate a person of ordinary skill . . . to modify such a structure in the manner proposed by the Examiner. Reply Br. 2; see also App. Br. 5. Appellant’s contention is unpersuasive because it does not explain how the Examiner’s articulated reasoning for the proposed replacement of De-Gol’s display and support structure with Lagace’s display and support structure (i.e., to isolate the user to avoid distractions (see Ans. 5)) lacks rational underpinnings. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)) (“[R]ejections on obviousness grounds [require] some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.”). Appellant also contends that Lagace “teaches away from starting with a non-enclosed seat that is provided with an enclosure structure” since Lagace includes side panels and its purpose “is to provide a segregated viewing area for the viewer.” App. Br. 5. This argument is not persuasive because in order to “teach away” a reference must “criticize, discredit, or otherwise discourage the solution claimed . . . .” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellant does not identify any portion of Lagace that discredits or discourages starting with a non-enclosed seat that can be provided with an enclosure structure. Rather, as pointed out by the Examiner, “Lagace teaches an open seat as shown in figure 8 with a display supporting enclosure structure that is movable to position the display in the viewing area of one sitting in the seat as shown in Fig. 9,” thereby enabling Appeal 2011-008795 Application 11/146,194 5 transition from a non-enclosed seat to a seat that is enclosed by an enclosure structure. Ans. 9. Appellant additionally contends that “[a] person seeking to design a simulator that is intended to move a human passenger in a seat attached to a robotic manipulator would have no reason whatsoever to consult . . . Lagace . . . which happens to describe a foldable structure for storage purposes.” App. Br. 6. Appellant’s contention is not persuasive because it is immaterial if the modification of De-Gol based on Lagace is for offering isolation from the environment for improved listening as suggested by the Examiner, rather than for improved storage as may be suggested by Lagace itself, so long as the Examiner has articulated reasoning with rational underpinnings. Appellant further contends that: [a] modification of the De-Gol apparatus to provide that apparatus with a display screen as disclosed in Lagace would merely result in the overall display and seat and enclosure combination of Lagace being used at the location designated 15 in the De-Gol reference, and such a combination would not correspond to the subject matter of claim 29. App. Br. 6-7. More particularly, Appellant contends that “it is not possible to use the arrangement disclosed in Lagace with a non-enclosed seat.” Id. at 6; see also Reply Br. 3 (arguing that Lagace does not disclose a non- enclosed seat since “Lagace . . . explicitly refers to structure containing the seat as a ‘booth’ and the side panels of this booth can be clearly seen in Figure 2 of . . . Lagace”). Because Lagace’s seat is not closed in due to at least the open top and front as shown in Figure 8, we agree with the Examiner that Lagace discloses a “pivot mount allowing pivoting of said enclosure structure [display and support structure] in relation to said seat between a first position in which said seat remains non-enclosed (Fig. 8), Appeal 2011-008795 Application 11/146,194 6 and a second position in which said seat is enclosed by said enclosure structure . . . (Fig. 9).” See Ans. 4-5. Appellant further contends that “[t]he curved display screen in . . . Ohga . . . provides no teaching or guidance with regard to the shape or configuration of any supporting structure for the display screen . . . [and] therefore, does not disclose or suggest a circular pivot bow to which a display screen is attached.” App. Br. 7; see also Reply Br. 3 (“it is the pivot bow that is claimed to be circular, not the display screen . . . [and] Ohga . . . provides no disclosure of a circular pivot bow to which a display screen, as a separate item, is mounted”). The Examiner’s position is that further modifying the overhead and front structure of De-Gol as already modified by Lagace, based on Ogha’s teachings of a curved structure both overhead and in front of a viewing position, would result in a curved support and display in modified De-Gol. See Ans. 5, 9. Appellant’s argument is unpersuasive because it does not address Ogha’s broader teaching of curving the overhead and front structure relative to the seat for immersing the viewer as articulated by the Examiner. For the foregoing reasons, Appellant does not show error by the Examiner in concluding that the subject matter of claim 29 is unpatentable over De-Gol, Lagace, and Ohga, and we sustain the rejection of claim 29 under 35 U.S.C. § 103(a) as unpatentable over De-Gol, Lagace, and Ohga. Appellant does not provide separate arguments for dependent claims 30-42. App. Br. 11. Therefore, we also sustain the rejection of dependent claims 30-42 under 35 U.S.C. § 103(a) as unpatentable over De-Gol, Lagace, and Ohga Appeal 2011-008795 Application 11/146,194 7 DECISION The Examiner’s rejection of claims 29-42 under 35 U.S.C. § 103(a) is AFFIRMED. AFFIRMED Klh