Ex Parte Nutaro

Patent Trial and Appeal Board

Dec 22, 2016

12165387 (P.T.A.B. Dec. 22, 2016)

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.
12/165,387 06/30/2008 Joseph Nutaro H0018985 (002.2411) 1834
89955 7590 12/27/2016
HONEYWELL/LKGlobal
Patent Services
115 Tabor Road
P.O.Box 377
MORRIS PLAINS, NJ 07950
EXAMINER
BUKOWSKI, KENNETH
ART UNIT PAPER NUMBER
2621
NOTIFICATION DATE DELIVERY MODE
12/27/2016 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 @ honey well, 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
Ex parte JOSEPH NUTARO
Appeal 2014-009909
Application 12/165,387
Technology Center 2600
Before JOHNNY A. KUMAR, SCOTT B. HOWARD, and
JOYCE CRAIG, Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—5, 7—12, 14, 16, 17, and 20-25, which constitute all of the
claims pending in this application. Claims 6, 13, 15, 18, and 19 have been
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellant identifies Honeywell International Inc. as the real party in
interest. App. Br. 1.
Appeal 2014-009909
Application 12/165,387
THE INVENTION
The present invention is directed to a head-mountable display systems
for simulating a cockpit instrument panel in an aircraft. Spec. 11.
Claim 1, reproduced below with the disputed limitations italicized, is
illustrative of the claimed subject matter:
1. A cockpit display system for providing information related
to an aircraft system to a user, the cockpit display system
comprising:
an eyeglass frame adapted for wearing on the head of the
user, the eyeglass frame having a perimeter defining a field of
view aligned with eyes of the user;
a display element mechanically coupled to the eyeglass
frame, wherein the display element is aligned with a bottom
portion of the field of view and an upper portion of the field of
view is not occupied by the display element;
display electronics coupled to the display element; and
an avionics system coupled to the display electronics,
wherein the display electronics are configured to render an image
of a cockpit instrument panel associated with the avionics system
on the display element at a downward angle relative to a forward
line of sight of the user.
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
REFERENCES
Schoolman
Fisher
Shimada
Terasaki
Yamamoto
US 5,281,957 Jan. 25, 1994
US 5,572,229 Nov. 5, 1996
US 5,621,424 Apr. 15, 1997
US 2004/0252077 A1 Dec. 16, 2004
US 7,319,437 B2 Jan. 15, 2008
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REJECTIONS
Claims 1—5, 7, 9, 10, 12, 13, 16, 17, and 22—24 stand rejected under
pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Schoolman in view
of Terasaki. Final Act. 4—8.
Claims 8, 14, 15, and 25 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Schoolman in view of Terasaki and
Shimada. Final Act. 9-10.
Claims 11 and 20 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Schoolman in view of Terasaki and Fisher. Final
Act. 10-11.
Claim 21 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Schoolman in view of Terasaki and Yamamoto. Final
Act. 11.
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellant. We
are not persuaded by Appellant’s arguments regarding claims 1—5, 7—10, 12,
14, 16, 17, and 21—25. However, we are persuaded by Appellant’s
arguments that the Examiner erred in the rejection of claims 11 and 20.
Claims 1, 10, and 21
Appellant argues the Examiner erred in finding Schoolman teaches “a
display element mechanically coupled to the eyeglass frame, wherein the
display element is aligned with a bottom portion of the field of view and an
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upper portion of the field of view is not occupied by the display element,” as
recited in claim 1. App. Br. 10-11; Reply Br. 2—\. Specifically, Appellant
argues Schoolman teaches the opposite configuration and the proposed
modification would change the principle of operation of Schoolman and
render it inoperable for its intended purpose. App. Br. 10-11.
The Examiner finds Schoolman teaches a display element “aligned
with a portion of the field of view and another portion of the field of view is
not occupied by the display element.” Final Act. 4. The Examiner further
finds Terasaki teaches “a bottom portion of the field of view and an upper
portion of the field of view is not occupied by the display element; and the
display element at a downward angle relative to a forward line of sight of the
user” and concludes it would have been obvious to a person of ordinary skill
in the art to modify Schoolman in view of Terasaki to place the display on
the lower part of the field of view. Final Act. 4—5; see also Ans. 3^4. The
Examiner further determines the modification would not render Schoolman
unsatisfactory for its intended purpose as both Schoolman and Terasaki “are
concerned with displaying an image or images to a portion of the user’s field
of view - while at the same time allowing the user to look past, in a wide
external field of view, by the shift of only the user’s gaze.” Ans. 4.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
test for obviousness is not whether the claimed invention is expressly
suggested in any one or all of the references, but whether the claimed subject
matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of those references. In re Keller, 642 F.2d 413,
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425 (CCPA 1981). Because the Examiner relied on the combination of the
teachings of Schoolman and Terasaki and the Appellant’s arguments are
directed to Schoolman individually, we are not persuaded by Appellant’s
argument that the Examiner erred.
We also agree with and adopt the Examiner’s finding that the
modification to Schoolman would not render the device unsatisfactory for its
intended purpose or change its principle of operation. If a proposed
modification would render the prior art being modified unsatisfactory for its
intended purpose, then there is no suggestion or motivation to make the
proposed modification. In re Gordon, 733 F.2d 900, 902 (Fed. Cir.1984).
In Gordon, our reviewing court found that turning upside down a liquid
strainer that removes dirt and water from gasoline and other light oils would
render the apparatus “inoperable for its intended purpose” because “[t]he
gasoline to be filtered would be trapped in pocket 9, and the water French
seeks to separate would flow freely out of the outlet 5.” 733 F.2d at 901-02.
Appellant’s argument is premised on an erroneous understanding of
Schoolman. Although Schoolman teaches that “[preferably, the display
screens 25 and 26 are positioned such as 60 to allow a user to ‘look down’
and see past the displays 25 and 26 so as to allow the user at least some
visualization of the user’s environment, if so desired,” (Schoolman 5:59-63)
we are not persuaded that the teachings of Schoolman are so limited.
Although a preferred embodiment and the claims may be directed to a
specific embodiment in which the display is at a certain portion of the
lenses, we agree with the Examiner that Schoolman teaches head mounted
display for displaying images. For example, Schoolman is entitled a
“Portable Computer of Head Mounted Display,” and states “[t]he present
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invention is a portable computer including a keyboard and a head mounted
display.” Schoolman [54], 2:63—64.
Appellant does not present any evidence that the modification would
result in a device that could not display images. Accordingly, we are not
persuaded that the modification of Schoolman in view of Terasaki would
render the device inoperative or unsatisfactory for its intended purpose.
Appellant further argues because the Examiner “provides a conclusory
statement that asserts that the modification involves only rearrangement of
parts . . . there is no suggestion or motivation to make the proposed
modification found in the prior art.” App. Br. 11—12.
The Examiner finds that Terasaki teaches advantages to “configuring
the display in the lower portion of the user’s field of view.” Ans. 4 (citing
Terasaki 14, 8, 10, 13). The Examiner further finds that modifying
Schoolman “adds versatility to the device, which is an additional motivation
to combine the two references.” Id.
Rejections based on obviousness must be supported by “some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” 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). We are not apprised of error based on Appellant’s argument because
it does not address the reasoning currently relied on by the Examiner (Ans.
4). Furthermore, we find the Examiner provided an articulated reasoning
with rational underpinnings to support the reason to modify Schoolman in
light of the teachings of Terasaki.2
2 Because we do not rely in In re Japikse, Appellant’s arguments regarding
the Examiner’s reliance on Japikse are moot.
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Appellant also argues the Examiner erred in finding the prior art
teaches “the display electronics are configured to render an image of a
cockpit instrument panel associated with the avionics system on the display
element at a downward angle relative to a forward line of sight of the user,”
as recited in claim 1. App. Br. 12—13, Reply Br. 5—6. Particularly,
Appellant argues Schoolman does not teach an image of a cockpit
instrument panel or the claimed angle and that Terasaki does not teach
“display electronics that are configured to render an image of a cockpit
instrument panel associated with the avionics system on the display
element.” App. Br. 12.
The Examiner finds Schoolman teaches “display electronics . . .
configured to render an image of a cockpit instrument panel associated with
the avionics system on the display element” such as “speed, tachometer,
engine parameters, [and] navigation information such as a moving map.”
Final Act. 4; Ans. 2—3 (citing Schoolman 7:55—673), 6. The Examiner
further finds Terasaki teaches placing the display element at a downward
angle relative to a forward line of sight of the user. Final Act. 5.
Although Appellant is correct that certain embodiments of Schoolman
— such as Figure 6 — merely disclose a small amount of text being
displayed, other sections of Schoolman, such as column 7, lines 55—67,
which are relied on by the Examiner but not addressed by Appellant, teaches
“operating parameters of the engine such as oil and water temperatures,
ammeter indications, etc. and performance feedback information such as
speed, tachometer reading, etc.” along with “digitized map information.”
3 Although the Answer cites Schoolman column 12, the quoted language is
from column 7.
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Schoolman 7:55—60. Schoolman further teaches that the displayed
information “can also be an airplane avionics panel.” Schoolman 7:63—67.
Applying the broadest reasonable interpretation, we agree with and adopt
and the Examiner’s findings that Schoolman teaches a display electronics
“configured to render an image of a cockpit instrument panel associated with
the avionics system on the display element,” as recited in claim 1.
Appellant’s remaining contentions — that Schoolman does not teach a
display element at a downward angle and Terasaki does not teach displaying
an avionics system on the display element — are also unpersuasive. The
Examiner cited Terasaki for the downward angle and Schoolman and for the
avionics display. See Final Act. 4—5. Nonobviousness cannot be established
by attacking the references individually when the rejection is predicated
upon a combination of prior art disclosures. Merck, 800 F.2d at 1097.
Accordingly, we sustain the Examiner’s rejection of claim 1, along
with the rejections of independent claim 10, which relies on the substantially
the same argument (compare App. Br. 10-14 (claim 1), with App. Br. 18—19
(claim 10)), and dependent claim 21, which is not argued separately.
Claim 2
Appellant argues modifying Schoolman so that the opaque image is at
a downward angle “changes Schoolman’s principle of operation,” and thus
the Examiner erred in concluding the subject matter of claim 2 is obvious.
App. Br. 14—15. Appellant further argues “Schoolman clearly does not
disclose a substantially opaque image of a cockpit instrument panel at a
downward angle relative to a forward line of sight.” Reply Br. 7.
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First, for the same reasons as discussed above for claim 1, we are not
persuaded by Appellant’s argument that changing the location of the display
in Schoolman results in a change in its principle of operation.
Second, regarding Schoolman not teaching a downward angle, the
Examiner finds Schoolman Figure 9 teaches a substantially opaque image
and, through the incorporation of the rejection of claim 1, the Examiner
finds Terasaki teaches the downward angle. Final Act. 5; Ans. 6. Because
Appellant’s argument focuses on Schoolman individually and not the
combined teachings of the references as relied on by the Examiner, we are
not persuaded that the Examiner erred. See Keller, 642 F.2d at 425.
Accordingly, we sustain the Examiner’s rejection of claim 2.
Claim 3
Appellant argues the Examiner erred in finding Schoolman teaches
causing “the image to become substantially transparent,” as recited in claim
3. App. Br. 15. Specifically, Appellant argues “Schoolman teaches the
exact opposite, i.e., that the LCD displays are transparent when inactivated.”
Id. In the Reply Brief, Appellant contends the Answer “notably fails to
identity what feature of Schoolman is being construed as the claimed control
element that is activated to cause an image of a cockpit instrument panel
presented at a downward angle relative to a forward line of sight to become
transparent.” Reply Br. 7.
The Examiner finds Schoolman teaches all of the limitations of claim
3. Final Act. 5—6 (citing Fig. 10, 5:64—6:8). Specifically, the Examiner
maps control elements 25/26 to the control element that is activated to cause
“the image to become substantially transparent.” Id. In the Answer, the
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Examiner further finds Figure 9 for showing a substantially transparent
display when the display device is activated. Ans. 6—7.
We are not persuaded of error based on Appellant’s argument because
it does not address the reasoning relied on by the Examiner (Ans. 6—7 (citing
Fig. 9)) and, thus, does not adequately address the rejection on appeal.
With regard to Appellant’s contention regarding the control element
in the Reply Brief, because Appellant did not raise that contention in the
opening brief and good cause has not been shown why it should be
considered, we will not consider this argument. 37 C.F.R. §41.41 (b)(2).
Additionally, Appellant’s contention merely summarizes the claim
language and makes a naked assertion that the prior art does not teach the
limitation. “A statement which merely points out what a claim recites will
not be considered an argument for separate patentability of the claim” and is
insufficient to raise an argument that that Examiner erred. 37 C.F.R.
§ 41.37(c)(l)(iv)).
Accordingly, we sustain the Examiner’s rejection of claim 3.
Claims 4, 5, and 12
The entirety of Appellant’s contention that the Examiner erred in
rejecting claims 4 and 5 is as follows:
The cited portions of Schoolman fail to disclose, teach, or
otherwise suggest a wide-angle image of the cockpit instrument
panel, and therefore, the FOA also fails to satisfy the
requirements for a prima facie case of obviousness with respect
to Claims 4—5. Thus, the rejections of Claims 4—5 under 35
U.S.C. § 103(a) are clearly erroneous and without basis, and
therefore, it is respectfully requested the rejections of Claims 4—
5 under 35 U.S.C. § 103(a) also be reversed.
App. Br. 15—16.
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Because Appellant merely summarizes the claim language and make a
naked assertion that the prior art does not teach the limitation, the contention
“will not be considered an argument for separate patentability of the claim.”
37 C.F.R. § 41.37(c)(l)(vii). Because Appellant has not identified any
specific errors in the Examiner’s findings, “the Board will not, as a general
matter, unilaterally review those uncontested aspects of the rejection.” Ex
parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Accordingly, we sustain the Examiner’s rejections of claims 4 and 5,
along with the rejection of claim 12, which is argued on the same grounds
(App. Br. 19).
Claims 7 and 17
Appellant argues because “Schoolman teaches the same information
(e.g., the same image) is presented on both display portions,” the Examiner
erred in finding Schoolman teaches the additional limitation recited in claim
7. App. Br. 16. Appellant further argues because the Examiner’s
construction of the claim renders the claim limitation superfluous, the
Examiner erred in construing the claim such that the first image and the
second image can be identical. Reply Br. 7—8.
The Examiner incorporated the findings set forth in the rejection of
claim 1 and further finds “the first element 45 is for the left eye, and the
second element 44 is for the right eye” and that the “first and second images
in each display area 44/45 (left and right eye).” Final Act. 6 (citing
Schoolman Fig. 7). The Examiner concludes the claim is broad enough to
encompass a first image and a second image that are identical. Ans. 7—8.
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During prosecution, claims must be given their broadest reasonable
interpretation while reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re American
Acad. ofSci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Although
claim 7 recites a first image and a second image, there is no limitation in the
claim specifying that the first and second images must be different. See
App. Br. 28 (setting forth text of claim 7). Accordingly, we agree with the
Examiner that the broadest reasonable interpretation of the claim covers the
situation in which the first image and the second image are identical.
Because Appellant’s argument are not commensurate with the scope of the
claims, they are unpersuasive. See In re Self, 671 F.2d 1344, 1348 (CCPA
1982).
Accordingly, we sustain the Examiner’s rejection of claim 7, along
with the rejection of claim 17, which is argued on the same grounds (App.
Br. 20-21).
Claim 22
Appellant argues the Examiner erred in finding Schoolman teaches
“the image does not interfere with viewing out front windows of the
aircraft,” as recited in claim 22. App. Br. 16—17. Appellant argues “the
portion of Schoolman cited on Page 8 of the FOA explicitly teaches
providing the display portions in the upper portion of the field of view while
the bottom portion of the field of view is unobstructed by the display
portions.” Id. Therefore, according to Appellant, “even if one skilled in the
art were motivated to modify Schoolman to include an image of a cockpit
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instrument panel on the heads-up display, the modification would not arrive
at the claimed subject matter recited in Claim 22.” App. Br. 17.
The Examiner finds that the combination of Schoolman and Terasaki
teaches “the image does not interfere with viewing out front windows of the
aircraft.” Final Act. 8. (citing Schoolman 7:56—63; Terasaki Fig. 1).
Because Appellant’s argument is directed solely to Schoolman and
does not address the combined teachings of Schoolman and Terasaki as
relied on by the Examiner, we are not persuaded by Appellant’s argument
that the Examiner erred. See Keller, 642 F.2d at 425.
Appellant also argues that any modification to Schoolman to change
the location of the display would change the operating principle of
Schoolman. App. Br. 17. For the same reasons discussed above regarding
claim 1, we are not persuaded the Examiner erred.
Accordingly, we sustain the Examiner’s rejection of claim 22.
Claim 23
Appellant argues the Examiner erred in finding Schoolman teaches a
“primary flight display” as recited in claim 23. App. Br. 17—18; Reply Br. 8.
More particularly, Appellant argues “one of ordinary skill in the aviation
field would appreciate the differences between an RPM value (i.e., a
tachometer output) or a moving map” and the claimed “primary flight
display.” App. Br. 18. Appellant relies on Fig. 2 and pages 8, lines 15—17
of the Specification, an FAA website, and a Wikipedia entry in support of its
argument. App. Br. 18 n.22.
The Examiner finds Schoolman teaches the additional limitation
recited in claim 23: “wherein the image comprises a primary flight display
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(see [7:56—63]; where flight display shown is ‘primary flight display’).”
Final Act. 8; see also Ans. 9. In construing the claims, the Examiner
concludes “there is nothing in the claims, or specification for that matter, to
describe exactly what it is to be (and not to be) a ‘primary flight display’.”
Ans. 9
Appellant has not persuaded us that the Examiner erred in finding the
subject matter of claim 23 obvious. The cited section of the Specification
(124) states “each display element may convey a different image, for
example, a first display element 230 may display an image of a first
instrument panel (e.g., primary flight display) associated with a first
electronic system.” Although that section does not contain a definition, the
Specification supports the Examiner’s implicit claim construction that the
term “primary flight display” is broad enough to encompass an instrument
panel, such as a tachometer.
With regard to the extrinsic evidence cited by Appellant (FAA
document and Wikipedia), we do not find it persuasive. First, we give no
weight to the Wikipedia entry for “Primary Flight Display” because it is “not
a reliable source of technical information.” Techradium, Inc. v. Blackboard
Connect Inc., No. 2-08-CV-00214-TJW, 2009 WL 1152985, at *4 n.5 (E.D.
Tex. Apr. 29, 2009).
Second, our reviewing court has emphasized the use of intrinsic
evidence, i.e., specification and prosecution history, as the primary source of
identifying the “ordinary and customary meaning” of a claim term. See
Phillips v. AWHCorp., 415 F.3d 1303, 1313—18 (Fed. Cir. 2005) (en banc).
Our reviewing court further views “extrinsic evidence in general as less
reliable than the patent and its prosecution history in determining how to
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read claim terms, for several reasons” including, for example, “there is a
virtually unbounded universe of potential extrinsic evidence of some
marginal relevance that could be brought to bear on any claim construction
question.” Id. at 1318. Accordingly, we give the FAA document minimal
weight and are not persuaded by it that the Examiner erred.
Moreover, Schoolman specifically states that the display can also be
used to display “an airplane avionics panel.” Schoolman 7:55—67.
Therefore, even if we adopted Appellant’s proposed construction,
Schoolman still teaches the disputed claim limitation.
Accordingly, we sustain the Examiner’s rejection of claim 23.
Claim 16
Appellant argues the Examiner erred in rejecting claim 16 for the
same reasons previously argued with respect to claims 1, 4, 5, and 10. App.
Br. 20. We are not persuaded that the Examiner erred for the reasons
discussed above for each of those claims.
Accordingly, we sustain the Examiner’s rejection of claim 16.
Claims 8, 14, and 25
Appellant argues the Examiner erred in rejecting claims 8, 14, and
25.4 App. Br. 22—23. Appellant’s arguments focus exclusively on
Schoolman and do not address the other two references relied on by the
Examiner, Terasaki and Shimada. Id. Moreover, Appellant’s argument are
4 The Appeal Brief also identifies claim 15. However, claim 15 has
previously been cancelled and is not the subject of this appeal.
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substantially the same as those presented with regard to claim 1 regarding
the location of the display element in Schoolman.
We are not persuaded by Appellant’s arguments regarding the
modification of Schoolman for the reasons set forth above regarding claims
1 and they are directed to Schoolman individually and do not address the
combined teachings of the three references. See Keller, 642 F.2d at 425.
Accordingly, we sustain the Examiner’s rejection of claims 8, 14 and
25.
Claims 11 and 20
Claim 11 recites that the display system also comprises a processor
configured to analyze a signal “to determine if the display system is
operating properly.” App. Br. 28 (Claims App’x). Because “the cited
portion of Fisher merely describes compensating for angular head movement
by a user,” Appellant argues the Examiner erred in finding Fischer teaches
the processor recited in claim 11. App. Br. 24; see also Reply Br. 8.
The Examiner finds Fischer teaches “processor 22 determines and
corrects [the] image displayed through feedback signal, in order to ensure
proper operation.” Final Act. 10 (citing Fischer 4:41—49).
During prosecution, claims must be given their broadest reasonable
interpretation while reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. American, 367 F.3d
at 1364. Absent an express intent to impart a novel meaning to a claim term,
the words take on the ordinary and customary meanings attributed to them
by those of ordinary skill in the art. Brookhill-Wilk 1, LLC v. Intuitive
Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003).
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Claim 11 recites that “the processor is configured to analyze the signal
to determine if the display system is operating properly.” App. Br. 29
(Claim App’x). According to the Specification, an example of operating
properly occurs when “the image 120 corresponds to what the display
electronics 104 intended to display” or that display element “does not pose a
hazard by providing improper information.” Spec. 131. Although we will
not read limitations from the specification into the claims, In re Van Geuns,
988 F.2d 1181, 1184 (Fed. Cir. 1993), a claim is given its broadest
reasonable construction “in light of the specification, as it would be
interpreted by one of ordinary skill in the art.” American, 367 F.3d at 1364
(internal citations and quotations omitted). We determine, based on the
ordinary meaning of the words of claim 11 as understood by one of ordinary
skill in the art, that the claim language is not so broad as to encompass
compensating for angular motion of the display system.
We are persuaded by Appellant’s arguments as the Examiner has not
identified sufficient evidence or provided sufficient explanation as to how
Fischer teaches a processor “configured to analyze the signal to determine if
the display system is operating properly,” as recited in claim 11. Although
the cited paragraph of Fischer teaches compensating for head motion, based
on the claim construction discussed above and the current record, Appellant
has persuaded usthat compensating for head motion is different than
determining “if the display system is operating properly,” as recited in claim
11.
Accordingly, we are constrained on this record to reverse the
Examiner’s rejection of claim 11, along with the rejection of claim 20,
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which recites limitations commensurate in scope to the disputed limitation
discussed above.
CONLCUSION
For at least the aforementioned reasons, on this record, Appellant has
not persuaded us the Examiner erred in rejection claims 1—5, 7—10, 12, 14,
16, 17, and 21—25. We find a preponderance of the evidence supports the
Examiner’s underlying factual findings and ultimate legal conclusion of
obviousness for claims 1—5, 7—10, 12, 14, 16, 17, and 21—25.
On the record before us and in view of the analysis above, we are
persuaded by Appellant’s contentions that the Examiner erred in rejecting
claim 11 and 20. Therefore, we do not sustain the pre-AIA 35 U.S.C.
§ 103(a) rejection of claims 11 and 20.
DECISION
For the above reasons, we affirm the Examiner’s decisions rejecting
claims 1—5, 7—10, 12, 14, 16, 17, and 21—25.
For the above reasons, we reverse the Examiner’s decisions rejecting
claims 11 and 20.
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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