Ex Parte Larson

Patent Trial and Appeal Board

Sep 30, 2016

12353038 (P.T.A.B. Sep. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/353,038 01/13/2009
89955 7590
HONEYWELL/LKGlobal
Patent Services
115 Tabor Road
P.O.Box 377
MORRIS PLAINS, NJ 07950
10/04/2016
FIRST NAMED INVENTOR
Brent D. Larson
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.
H0020792 (002.2480) 2027
EXAMINER
PARKER, JEFFREY ALAN
ART UNIT PAPER NUMBER
2625
NOTIFICATION DATE DELIVERY MODE
10/04/2016 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):
patentservices-us@honeywell.com
DL-ACS-SM-IP@Honeywell.com
docketing@LKGlobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte BRENT D. LARSON
Appeal2015-007007
Application 12/353,038 1
Technology Center 2600
Before LARRY J. HUME, TERRENCE W. MCMILLIN, and
ALEX S. YAP, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-3, 7, 8, 10, 11, 13-16, 18, 19, and 21-27. Appellant
has canceled claims 4---6, 9, 12, 17, and 20. We have jurisdiction under 35
U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellant, the real party in interest is Honeywell
International Inc. App. Br. 1.
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Application 12/353,038
STATEMENT OF THE CASE2
The Invention
Appellant's disclosed and claimed invention relates to systems and
apparatus "for viewing a display element configured to reflect light rays
incident on a surface of the display element." Abstract.
Exemplary Claims
Claims 1, 7, and 19, reproduced below, are representative of the
subject matter on appeal (emphasis added):
1. A frontlight for viewing a display element having a
surface configured to reflect light rays incident on the surface
resulting in image light rays, the frontlight comprising:
a polarization sensitive element disposed proximate the
surface of the display element, the polarization sensitive
element having a planar cross-section, the polarization sensitive
element comprising a microstructural composite of material
domains having differing birefringence; and
a light source disposed proximate the polarization
sensitive element, the light source being configured to produce
source light rays, wherein the polarization sensitive element is
configured to:
scatter at least a portion of the source light rays having a
first polarization toward the surface of the display element; and
transmit without deflection at least a portion of the image
light rays reflected from the display element having a second
polarization orthogonal to the first polarization, the portion of
the image light rays transmitted by the polarization sensitive
2 Our Decision relies upon Appellant's Appeal Brief ("App. Br.," filed
Feb. 23, 2015); ReplyBrief("ReplyBr.," filedJuly21, 2015); Examiner's
Answer ("Ans.," mailed May 22, 2015); Final Office Action ("Final Act.,"
mailed Aug. 7, 2014); and the original Specification ("Spec.," filed
Jan. 13, 2009).
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element being substantially normal to the planar cross-section
of the polarization sensitive element.
7. The frontlight of claim 1, further compnsmg a
polarizer disposed proximate the polarization sensitive element
such that the polarization sensitive element is disposed between
the display element and the polarizer, wherein the polarizer is
configured to absorb light rays of the first polarization and
transmit light rays of the second polarization.
19. A display system comprising:
a display element having a reflective surface, the display
element being configured to modulate light rays of a first
polarization and reflect image light rays of a second
polarization based on an image signal, the second polarization
being orthogonal to the first polarization;
a frontlight disposed proximate the display element, the
frontlight comprising a light source configured to generate
source light rays with a first luminance, and a polarization
sensitive element disposed proximate the light source, the
polarization sensitive element comprising a microstructural
composite of material domains having differing birefringence,
the polarization sensitive element being configured to scatter
source light rays of the first polarization toward the display
element and transmit light rays of the second polarization, such
that reflected image light rays of the second polarization are
transmitted from the display element through the frontlight with
a second luminance;
a light sensor disposed proximate the frontlight to
measure the second luminance; and
a control module coupled to the display element, the light
sensor, and the frontlight, wherein the control module is
configured to generate the image signal for the display element
based on received image data, receive a luminance command,
and adjust the first luminance based on the received image data
such that the second luminance is substantially equal to the
luminance command.
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Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Tiao et al. ("Tiao ") US 6,254,246 B 1 July 3, 2001
Larson US 6,310,671 Bl Oct. 30, 2001
Nakamura et al. ("Nakamura") US 2002/0054033 Al May 9, 2002
Jagt et al. ("Jagt") US 2003/0067760 Al Apr. 10, 2003
Holman et al. ("Holman") US 2004/0080938 Al Apr. 29, 2004
Kim et al. ("Kim") US 2008/0278658 Al Nov. 13, 2008
Nakajima et al. (Nakajima") US 2009/0179880 Al July 16, 2009
Rejections on Appeal
RI. Claims 1-3, and 21, 23, and 24 3 stand rejected under 35 U.S.C.
§ 103(a) as being obvious over the combination of Jagt and Larson. Ans. 3.
R2. Claims 7, 11, 15, 16, 18, 22, 25, and 26 stand rejected under 35
U.S.C. § 103(a) as being obvious over the combination of Jagt, Larson, and
Holman. Ans. 6.
R3. Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Jagt, Larson, and Tiao. Ans. 11.
R4. Claims 13 and 14 stand rejected under 35 U.S.C. § 103(a) as
being obvious over the combination of Jagt, Larson, and Tiao. Ans. 12.
R5. Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Jagt, Larson, and Nakamura. Ans. 13.
3 The Examiner indicates that claim 22 is subject to Rejection RI, however
the Examiner does not address this claim in the rejection. Ans. 3-6.
However, the Examiner rejects claim 22 under Rejection R2. Ans. 6-10.
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R6. Claims 19 and 27 stand rejected under 35 U.S.C. § 103(a) as
being obvious over the combination of Jagt, Larson, and Nakajima. Ans. 14.
CLAIM GROUPING
Based on Appellant's arguments (App. Br. 6-18), we decide the
appeal of obviousness Rejection RI of claims 1-3, and 21, 23, and 24 on the
basis of representative claim 1; we decide the appeal of obviousness
Rejection R2 of claims 7, 11, 15, 16, 18, 22, 25, and 26 on the basis of
representative claim 7; and we decide the appeal of obviousness Rejection
R6 of claims 19 and 27 on the basis of representative claim 19.
Remaining claims 8, 10, 13, and 14 in rejections R3 through R5,
which are not argued separately, stand or fall with the respective
independent claim from which they depend. 4
ISSUES AND ANALYSIS
In reaching this decision; we consider all evidence presented and all
arguments actually made by Appellant. We do not consider arguments that
Appellant could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellant's arguments with respect to claims 1-3, 7,
8, 10, 11, 13-16, 18, 19, and 21-27, and we incorporate herein and adopt as
our own: (1) the findings and reasons set forth by the Examiner in the Final
Office Action from which this appeal is taken, and (2) the reasons and
rebuttals set forth in the Examiner's Answer in response to Appellant's
4 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 3 7 C.F .R. § 41.3 7 ( c )( 1 )(iv).
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arguments. We incorporate such findings, reasons, and rebuttals herein by
reference unless otherwise noted. 5 However, we highlight and address
specific findings and arguments regarding claims 1, 7, and 19 for emphasis
as follows.
1. Rejection RI of Claims 1-3, and 21, 23, and 24
Issue 1
Appellant argues (App. Br. 7-11; Reply Br. 2-10) the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Jagt and Larson is in error. These contentions present us
with the following issue:
5 Appellant states: "Rather than providing the requisite articulated technical
reasoning responding to Appellant's arguments, the Examiner's Answer
offers irrelevant comments and blustery arguments that evince a
fundamental misunderstanding of basic physics and optics principles." App.
Br. 2 (footnote omitted); "the Examiner fundamentally misunderstands the
arguments and the underlying optics principles at play." Reply Br. 10.
We remind Appellant of the requirement to conduct all business with the
Office with decorum and courtesy.
Applicants and their attorneys or agents are required to conduct
their business with the United States Patent and Trademark
Office with decorum and courtesy. Papers presented in
violation of this requirement will be submitted to the Director
and will not be entered. A notice of the non-entry of the paper
will be provided. Complaints against examiners and other
employees must be made in correspondence separate from other
papers.
3 7 C.F .R. § 1.3 ("Business to be conducted with decorum and courtesy").
We find such disparaging comments do not advance Appellant's interests, or
otherwise assist the Board in reaching a Decision on the merits.
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Did the Examiner err in combining Jagt and Larson in the manner
suggested to render claim 1 obvious because the references allegedly teach
away from their combination?
Analysis
Appellant contends the Examiner's findings are "merely a conclusory
statement that is wholly unsupported by any facts, objective evidence, or
other articulated technical reasoning ... the proposed substitution [of
Larson's polarization sensitive scattering element] renders the front light
arrangement of Jagt inoperable or otherwise unsatisfactory for its intended
purpose." App. Br. 8.
In particular, Appellant contends:
[T]he predictable result of the proposed combination is merely
a front light that decreases visibility by producing a blurred
image under ambient lighting conditions and a blurred washed-
out image when the front light is turned on, which completely
defeats the purpose of the front light, and there is no reasonable
expectation of success at the proposed combination improving
the visibility of the display under any conceivable conditions.
One skilled in the art would appreciate that modifying the
volume hologram (87) to scatter s-polarized light likely results
in substantially the same amount of s-polarized light being
directed towards the viewer (2) as the amount of s-polarized
light directed towards the display cell ( 63). In particular, the
cited portion of Larson describes the polarization sensitive
scattering elements as "forward scattering," and one skilled in
the art would appreciate the substitution of a forward scattering
polarization sensitive scattering element in lieu of the volume
hologram (87) would result in significant scattering of non-
image source light toward the viewer (2). Further, the proposed
modification results in the s-polarized light directed towards the
display cell ( 63) being uncollimated. These effects are directly
contrary to the stated intent of the volume hologram in Jagt,
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which is to selectively direct "highly collimated" light "to the
display panel and away from the viewer."
App. Br. 8-9.
Appellant presents lengthy argument (App. Br. 8-11) alleging "there
is no suggestion or motivation to make the proposed modification." App.
Br. 11. We note the Examiner's detailed response in the Answer.
Ans. 15-20. For example, in response to Appellant's contentions, the
Examiner finds:
As described in the final rejection ... , Jagt teaches the
entirety of claim 1 except for the construction details of the
polarization sensitive element "comprising a microstructural
composite of material domains having differing birefringence."
However, Jagt actually suggests constructing the volume
hologram/waveguide 85/87 that reads on the claimed
polarization sensitive element with LC birefringent materials
in paragraph 55 .... See paragraphs 30-41 for discussion on
how optically anisotropic materials are used to construct the
polarization sensitive waveguide.
Ans. 16 (citing Jagt i-fi-130-41 and 55); and see Larson, col. 6, 11. 1-56 (relied
upon by the Examiner (Ans. 4, 16-17) for its teaching of a polarization
sensitive scattering element using the recited "microstructural composite of
material domains having differing birefringence").
Thus, because "Larson teaches methodologies to create polarization
sensitive scattering elements using 'microstructural composites of [LC]
materials having differences in birefringence,' and Jagt suggests the use of
these materials as equivalents to construct its polarization sensitive
waveguide" (Ans. 17), "[i]t would have been obvious to a person having
ordinary skill in the art at the time of the invention to combine the specific
known differing birefringence polarizer of Larson with the frontlight system
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of Jagt for the purpose of replacing one known polarizer with another for
predictable results." Final Act. 4.
We adopt and incorporate herein the Examiner's findings, reasoning,
and legal conclusions, especially the findings and related discussion on
pages 17 through 20 of the Answer.
Moreover, we find Appellant's invention is simply a combination of
known teachings that realize a predictable result. The Supreme Court has
determined the conclusion of obviousness can be based on the interrelated
teachings of multiple patents, the effects of demands known to the design
community or present in the marketplace, and the background knowledge
possessed by a person having ordinary skill in the art. KSR Int'! Co. v.
Teleflex, Inc., 550 U.S. 398, 418 (2007). The skilled artisan would "be able
to fit the teachings of multiple patents together like pieces of a puzzle" since
the skilled artisan is "a person of ordinary creativity, not an automaton." Id.
at 420-21. Furthermore, the artisan is not compelled to blindly follow the
teaching of one prior art reference over the other without the exercise of
independent judgment. See Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d
881, 889 (Fed. Cir. 1984).
In the present case, and as cited above, the Examiner found that the
proposed combination would have resulted in using Jagt in combination with
Larson. We find this articulated rationale to be sufficient to justify the
combination.
In addition, Appellant has not demonstrated, by evidence, that the
Examiner's proffered combination of references would have been "uniquely
challenging or difficult for one of ordinary skill in the art." See Leapfrog
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Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)
(citing KSR, 550 U.S. at 418). Nor has Appellant provided objective
evidence of secondary considerations which our reviewing court guides
"operates as a beneficial check on hindsight." Cheese Sys., Inc. v. Tetra Pak
Cheese and Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013).
Based upon our review of the record before us, we find Appellant has
failed to present substantive arguments supported with specific factual
evidence of sufficient character and weight to persuade us of error regarding
the Examiner's findings of facts and ultimate legal conclusion of
obviousness. In particular, we note Appellant's contentions regarding the
understanding and appreciation that a person with ordinary skill in the art
would have with respect to this particular art are simply unsupported
speculation. 6 Mere attorney arguments and conclusory statements
unsupported by factual evidence are entitled to little probative value. In re
Geisler; 116 F.3d 1465; 1470 (Fed. Cir. 1997); see also Irz re De Blauwe;
736 F.2d 699, 705 (Fed. Cir. 1984).
Therefore, considering the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the claimed
subject matter of claim 1, nor do we find error in the Examiner's resulting
legal conclusion of obviousness. Therefore, we sustain the Examiner's
obviousness rejection of independent claim 1, and grouped claims 2, 3,
and 21, 23, and 24, which fall therewith. See Claim Grouping, supra.
6 We note the absence of any affidavit or declaration evidence of record to
support Appellant's contentions, and particularly note the identical
inventorship of the present application and the Larson reference, used in
combination with Jagt.
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2. Rejection R2 of Claims 7, 11, 15, 16, 18, 22, 25, and 26
Issue 2
Appellant argues (App. Br. 12-14; Reply Br. 10-13) the Examiner's
rejection of claim 7 under 35 U.S.C. § 103(a) as being obvious over the
combination of Jagt, Larson, and Holman is in error. These contentions
present us with the following issue:
Did the Examiner err in combining Jagt, Larson, and Holman in the
manner suggested to render claim 7 obvious because the references allegedly
teach away from their combination?
Analysis
Appellant contends, "[t]he proposed modification of Jagt to change
the polarization absorbed by the polarizer (15, 75) changes the principle of
operation of the front light (17, 77)." App. Br. 12 (footnote omitted).
Appellant also argues; "the proposed modification renders the front light (17;
77) of J agt inoperable for its intended purpose of improving visibility of the
image in concert with the ambient lighting by (at best) producing an inverted
contrast image that counteracts the image illuminated by the ambient
lighting." App. Br. 13 (footnote omitted).
Similar to Issue 1, claim 1, supra, Appellant's arguments are presented
by way of attorney argument only, with no evidence of record to support
their contentions. Appellant asserts the Examiner's passing mention of Jagt
Figure 18 in the Advisory Action (App. Br. 13) "[is] not probative."
However, we note both the Final Office Action (Final Act. 6) and the
Answer (Ans. 7) primarily rely instead on polarizer 75 in the frontlight
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arrangement in Jagt Figure 17 (and distinguish the backlight arrangement in
Figure 18; see Ans. 23), while further relying upon Holman as teaching or
suggesting an LCD with "opposite pixel behavior regarding changing
polarization" (Ans. 7), and that
[i]t would have been obvious to a person having ordinary
skill in the art at the time of the invention to combine the
oppositely configured LCD polarization and polarizer polarities
configuration taught by Holman with the LCD edge-lit
frontlight of Jagt in view of Larson for the purpose of simply
substituting a known equivalent configuration in a similar
device for predictable results.
Ans. 7-8.
In agreement with the Examiner's findings and related discussion
(Ans. 20-24), we find the determination of the proper polarization and
optical arrangement for either the frontlight device (as claimed), or a
backlight device (as discussed in an alternative embodiment of Jagt) would
not have been "uniquely challenging or difficult for one of ordina1 y skill in
the art." See Leapfrog, 485 F.3d at 1162.7
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 7, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of dependent claim 7, and grouped claims
7 In KSR, the Court stated " [ t ]he combination of familiar elements according
to known methods is likely to be obvious when it does no more than yield
predictable results." KSR, 550 U.S. at 416.
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11, 15, 16, 18, 22, 25, and 26 which fall therewith. See Claim Grouping,
supra.
3. Rejection R6 of Claims 19 and 27
Issue 3
Appellant argues (App. Br. 12-14; Reply Br. 10-13) the Examiner's
rejection of claim 19 under 35 U.S.C. § 103(a) as being obvious over the
combination of Jagt, Larson, and Nakajima is in error. These contentions
present us with the following issue:
Did the Examiner err in combining Jagt, Larson, and Nakajima in the
manner suggested to render claim 19 obvious because the references
allegedly teach away from their combination?
Analysis
Appellant contends, "modifying Jagt to arrive at the subject matter
recited by Claim 19 renders Jagt inoperable for its intended purpose without
significantly changing the principle of operation of Jagt." App. Br. 15.
Appellant similarly contends "modifying the extraneous light sensor (8) of
Nakajima to measure the luminance of image light rays reflected image light
rays changes its principle of operation - it no longer detects extraneous
light - and renders the extraneous light sensor (8) unsatisfactory for its
intended purpose." App. Br. 16. Appellant further alleges, "the Examiner
fundamentally misunderstands the teachings of Nakajima." Id.
Similar to Issue 1, claim 1, and Issue 2, claim 7, supra, Appellant's
motivational arguments with respect to claim 19 are presented by way of
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attorney argument only, with no evidence of record to support their
contentions.
The Examiner responds, in a detailed fashion, to Appellant's
arguments in the Answer. See Ans. 24--26. We adopt these findings and
legal conclusions as our own, and incorporate them herein by reference.
Accordingly, based upon the findings above, on this record, we are
not persuaded of error in the Examiner's reliance on the combined teachings
and suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 19, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 19, and grouped
claim 27 which falls therewith. See Claim Grouping, supra.
4. Rejections R3-R5 of Claims 8, 10, 13, and 14
In view of the lack of any substantive or separate arguments directed
to obviousness Rejections R3 through R5 of claims 8, 10, 13, and 14 under
§ 103(a) (see App. Br. 17-18), we sustain the Examiner's rejections of these
claims, Arguments not made are waived.
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 2-15) not in response to a shift in the Examiner's position
in the Answer, we note arguments raised in a Reply Brief that were not
raised in the Appeal Brief or are not responsive to arguments raised in the
Examiner's Answer will not be considered except for good cause (see 37
C.F.R. § 41.41(b)(2)), which Appellant has not shown.
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CONCLUSION
The Examiner did not err with respect to obviousness Rejections RI
throughR6ofclaims 1-3, 7,8, 10, 11, 13-16, 18, 19,and21-27under35
U.S.C. § 103(a) over the cited prior art combinations of record, and we
sustain the rejections.
DECISION
We affirm the Examiner's decision rejecting claims 1-3, 7, 8, 10, 11,
13-16, 18, 19, and 21-27.
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
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