Ex Parte Nohara

Patent Trial and Appeal Board

Sep 19, 2016

13356872 (P.T.A.B. Sep. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/356,872 01124/2012
28156 7590 09/20/2016
Cosud Intellectual Property Solutions, P.C.
714 COLORADO AVENUE
BRIDGEPORT, CT 06605-1601
FIRST NAMED INVENTOR
TIMOTHY J. NOHARA
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.
S45-015US 4417
EXAMINER
GYAWALI, BIPIN
ART UNIT PAPER NUMBER
2625
MAILDATE DELIVERY MODE
09/20/2016 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 TIMOTHY J. NOHARA1
Appeal2015-005139
Application 13/356,872
Technology Center 2600
Before BRUCE R. WINSOR, KARA L. SZPONDOWSKI, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Decision rejecting claims 1-105. We have jurisdiction over this appeal
under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.2
1 According to Appellant, the real party in interest is Accipiter Radar
Technologies Inc. See Appeal Brief 1.
2 Throughout this Opinion, we refer to: (1) Appellant's Specification filed
Jan. 24, 2012 ("Spec."); (2) the Final Office Action ("Final Act.") mailed
May 23, 2014; (3) the Appeal Brief ("Appeal Br.") filed Oct. 23, 2014;
(4) the Examiner's Answer ("Ans.") mailed Feb. 11, 2015; and (5) the Reply
Brief ("Reply Br.") mailed Apr. 8, 2015.
Appeal2015-005139
Application 13/356,872
BACKGROUND
Appellant's application relates to a personal electronic target vision
device, carried by a user, in which targets in the field of view of the user are
rendered in real-time to the user so that the user can visualize where the
targets are relative to him, in an orientation analogous to unaided human
vision. Spec. 3 7. Claims 1, 24, 49, 77, and 94 are independent claims.
Claim 1 is exemplary of claims 1, 24, 77, and 94 and is reproduced below
with disputed limitations emphasized:
1. A personal, electronic target vision system for displaying
moving targets to one or more users relative to each user's respective
location, comprising:
one or more personal electronic vision devices (PEVDs) each
held or worn by a respective user; and
at least one remote computer connected to each said PEVD over
a network;
each said PEVD being configured to periodically send respective
user data over said network to said remote computer, said user data
including location of the respective user and look direction or
orientation of said PEVD, the look direction or orientation of said
P EVD including at least a horizontal bearing angle, and said remote
computer being configured to acquire from a source remote to each said
user and to send to each said PEVD, respective target data selected by
said remote computer in response to said respective user data including
the location of the respective user and the horizontal bearing angle of
said PEVD, said respective target data pertaining at least in part to near-
real-time locations of moving objects within a determinable distance of
the respective user, each said PEVD being configured to display, on a
user-centric display, targets taken from the respective selected target
data and to render the displayed targets in a user-centric view at
respective locations relative to the location of the respective user and
the horizontal bearing angle of said PEVD.
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Appeal2015-005139
Application 13/356,872
Claim 49 is reproduced below with disputed limitations emphasized:
49. A personal, electronic target vision system for displaying
targets to one or more users relative to the location of each respective
user comprising: a target information server storing target location
updates for respective targets and providing selected target location
information in response to queries; one or more sensors operatively
connected to said target information server for providing thereto target
location updates for respective targets; a target vision server
operatively connected to said target information server for transmitting
thereto queries in response to respective target selection information
received by said target vision server from one or more personal
electronic vision devices, said target vision server being configured to
respond to each of said personal electronic vision devices with
respective selected target location information provided to said target
vision server by said target information server, said respective selected
target location information pertaining at least in part to near-
instantaneous or real-time locations of moving objects within a
determinable distance of the respective user, each of said personal
electronic vision devices displaying said respective selected target
location information to its associated user on a user-centric display, said
selected target location information being rendered so that the
visualization of selected targets by said respective user is relative to the
location of said respective user.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal includes:
V au et al. ("V au")
Forrester et al.
("Forrester")
Huston ("Huston")
Harrison et al.
("Harrison")
US 2009/0034800 Al
US 2011/0109747 Al
US 2011/0282799 Al
US 2012/0120499 Al
3
Feb. 5,2009
May 12, 2011
Nov. 17, 2011
May 17, 2012
Appeal2015-005139
Application 13/356,872
REJECTIONS
Claims 1-8, 13-21, 23-33, 38--45, 47, 49---61, 64---66, 69-75, 77-81,
84-97, and 99-105 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Huston and Harrison. 3 Final Act. 4-24.
Claims 9-12, 34-37, 48, 62, 63, 76, 83 and 93 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Huston, Harrison, and Forrester.
Final Act. 25-29.
Claims 68, 82, and 98 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Huston, Harrison, and Vau. Final Act. 30.
Claims 22, 46, and 67 are identified as rejected (Final Act. 1 ), but we
find no ground of rejection for claims 22, 46, and 67 articulated in the Final
Office Action (see generally Final Act. 4-30). The Examiner does state that
"the office maintains the rejection of these dependent claims." Ans. 9.
Our review in this appeal is limited to the above rejection and issues
raised by Appellant. We have not considered other possible issues that have
not been raised by Appellant and which are, therefore, not before us. See 37
C.F.R. § 41.37(c)(l)(iv) (2014).
3 Claims 34, 62, and 63 are listed in the summary grounds of rejection as
rejected over Huston and Harrison (Final Act 4) and also over Huston,
Harrison, and Forrester (Final Act. 25). The detailed grounds of rejection
only set forth a rejection over Huston, Harrison, and Forrester. Final Act.
28. We treat the inclusion of claims 34, 62, and 63 in the summary ground
of rejection over Huston and Harrison as an error that is typographical or
ministerial in nature.
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Application 13/356,872
ISSUES
1. Did the Examiner err in finding that the combination of Huston
and Harrison teaches or suggests "each said PEVD being configured to
periodically send respective user data over said network to said remote
computer, said user data including location of the respective user and look
direction or orientation of said PEVD, the look direction or orientation of
said PEVD including at least a horizontal bearing angle," as recited in claim
1?
2. Did the Examiner err in finding that the combination of Huston
and Harrison teaches or suggests "a target vision server," as recited in claim
49?
DISCUSSION
35 U.S.C. § 103: Claims 1--48 and 77-105
The Examiner relies on the combination of Huston and Harrison to
teach or suggest "each said PEVD being configured to periodically send
respective user data over said network to said remote computer, said user
data including location of the respective user and look direction or
orientation of said PEVD, the look direction or orientation of said PEVD
including at least a horizontal bearing angle" as recited in claim 1. Final
Act. 5; Ans. 2 (citing Huston Abstract and i-fi-f 19, 21, and 33-35 and
Harrison i-fi-1 93-94 and Fig. 8).
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Application 13/356,872
Appellant argues "Huston's system does not entail, require, or suggest
the periodic transmission of the horizontal bearing angle of each spectator's
portable viewing/display device to a remote (central) server[.]" Appeal Br.
17; see also Appeal Br. 11. Appellant further contends "there is no
suggestion in either Huston or Harrison that one might periodically transmit
the horizontal bearing angles of the users' portable viewing display devices
or HMDs to server (44) through radio (46) of Huston." Appeal Br. 14;
Reply Br. 2--4.
We are persuaded by Appellant's arguments. In addition to reciting
"the look direction or orientation of said PEVD including at least a
horizontal bearing angle," claim 1 further recites "the horizontal bearing
angle of said PEVD." The Examiner fails to demonstrate that Huston and
Harrison teach or suggest a horizontal bearing angle of the PEVD. Instead,
the portion of Harrison cited by the Examiner in the Final Action describes
detecting a direction of the user;s gaze by detecting the center of the retina,
rather than detecting the look direction or orientation of the device, and
therefore, the horizontal bearing angle of the device, as claimed. See Final
Act. 5, citing Harrison i-fi-193-94. Further, in response to Appellant's
argument, in the Answer, the Examiner states "friendlies of Huston are
inherently transmitting a horizontal bearing angle with respect to each other,
as the server will have all the information needed to calculate the horizontal
bearing angle between two friendlies, if required." Ans. 2. The Examiner
fails to demonstrate that Huston inherently teaches or suggests sending look
direction or orientation data of the PEVD, including a horizontal bearing
angle of the PEVD. vVhen a reforence is silent about an asserted inherent
characteristic, it must be clear that the missing descriptive matter is
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Application 13/356,872
necessarily present in the reference. Continental Can Co. v. Monsanto Co.,
948 F.2d 1264, 1268 (Fed. Cir. 1991). The Examiner has not shown that
sending a horizontal bearing angle of the PEVD over a network as claimed is
"necessarily present" when friendlies share GPS coordinates in Huston. See
Reply Br. 1-2. Accordingly, having considered the Examiner's findings
with respect to the teachings in Harrison and Huston, we find the Examiner
has failed to provide sufficient findings to show that Harrison and Huston
teach or suggest "the look direction or orientation of said PEVD including at
least a horizontal bearing angle" and "the horizontal bearing angle of said
PEVD," as claimed.
Because we agree with at least one of the arguments advanced by
Appellant, we need not reach the merits of Appellant's other arguments.
Accordingly, we do not sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 1. Independent claims 24, 77, and 94 each include similar
limitations and, thus, the rejection of claims 24, 77, and 94 is also reversed.
The rejections of dependent claims 2-23, 25--48, 78-93, and 95-105,
which each include the disputed limitations, are also reversed.
35U.S.C.§103: Claims 49-66 and 68-76
After review of Appellant's arguments and the Examiner's findings
and reasoning, we determine that Appellant has not identified reversible
error in the Examiner's rejection of claim 49.
In rejecting claim 49, the Examiner relies on Huston's radio base
station 42 and server 44, respectively, to suggest the claimed target vision
server and target information server. Final Act. 13 (citing Huston Fig. 1 and
iTiT 33 and 67).
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Appellant contends that if Huston's server 44 is equivalent to the
claimed target information server, then the claimed target vision server is
absent from Huston. Appeal Br. 23. We find Appellant's arguments
unpersuasive. We agree with the Examiner's finding that Huston suggests
the claimed target vision server. See Final Act. 3; Ans. 5---6; see In re Keller,
642 F.2d 413, 425 (CCPA 1981) (the test for obviousness is "what the
combined teachings of the references would have suggested to one of skill in
the art").
Claim 49 recites that the "target information server stor[ es] target
location updates for respective targets and provid[ es] selected target location
information in response to queries." Appeal Br. 42. Claim 49 also recites
that the target vision server transmits queries in response to respective target
selection information received from one or more personal electronic vision
devices and responds to each of the personal electronic vision devices with
selected target location information provided by the target information
server. Appeal Br. 42--43. Appellant does not dispute that Huston's server
44 performs all of the respective functions of the claimed target information
server and target vision server, but instead argues that Huston fails to
suggest a second server separate from server 44 that performs the functions
of the target vision server. Appeal Br. 23-24.
We find Appellant's argument unpersuasive because Appellant fails to
establish that performing similar functions with separate servers rather than
a single server results in a patentable distinction over Huston. See, e.g.,
Nerwin v. Erlichmann, 168 USPQ 177, 179 (BPAI 1969) (non-precedential)
(constructing a formerly integral structure in various elements requires only
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Application 13/356,872
routine skill in the art) andin re Dulberg, 289 F.2d 522, 523 (CCPA 1961)
(making single pieces separable held obvious).
MPEP § 2144 provides further guidance that "[ w ]hen considering
obviousness, Office personnel are cautioned against treating any line of
reasoning [such as making separable] as a per se rule." That is, such
rationales should not be treated as per se rules, but rather must be explained
and shown to apply to the facts at hand. Id. However, "if a technique has
been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Here,
because Appellant fails to demonstrate that performing known functions in
two servers instead of in a single server is more than using a known
technique to improve a similar device, no per se rule has been applied.
Accordingly, we sustain the Examiner;s 35 U.S.C. § 103(a) rejection
of claim 49. Appellant does not make any other substantive argument
regarding the rejection of dependent claims 50-76. See App. Br. 24.
Therefore, we likewise sustain the rejections of these dependent claims
under 35 U.S.C. § 103(a).
Claims 22, 46, and 67
In the absence of any articulated ground of rejection for claims 22, 46,
and 67, the Final Office Action fails to "state a reason for such rejection," 35
U.S.C. § 135(a). Appellant does not question the sufficiency of the
rejection. Thus, this argument is technically waived. 37 C.F.R. § 41.37(iv)
(2013) ("any arguments or authorities not included in the appeal brief will be
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Application 13/356,872
refused consideration by the Board"); see also Ex parte Borden, 93 USPQ2d
14 73, 14 7 4 (BP AI 2010) (informative) ("Any bases for asserting error,
whether factual or legal, that are not raised in the principal brief are
waived."). However, we raise this issue sua sponte because failing to
consider the lack of reasons for the rejection would lead to a disposition
unsupported by substantial evidence. See In re Gartside, 203 F.3d 1305,
1315-16 (Fed. Cir. 2000). Additionally, the inevitable discovery of this error
in a later proceeding would impose further costs on the USPTO, Appellant,
and the public. See In re Sonkin, 2009-006045, slip. op. at 10 (BP AI Apr.
28, 2010) (non-precedential) (Jeffery, APJ, concurring).
For these reasons, and in addition to the reasons given supra regarding
claims 22 and 46, we conclude, sua sponte, that we cannot sustain the
rejections of claim 22, 46, and 67.
DECISION
We reverse the Examiner's decision rejecting claims 1--48, 67, and
77-105 under 35 U.S.C. § 103(a).
We affirm the Examiner's decision rejecting claims 49---66 and 68-76
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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