Ex Parte Pippillion et al

Patent Trial and Appeal Board

Dec 20, 2018

14202702 (P.T.A.B. Dec. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/202,702 03/10/2014
88360 7590 12/25/2018
Richards Patent Law P.C.
233 S. Wacker Dr., 84th Floor
Chicago, IL 60606
FIRST NAMED INVENTOR
Paris Allen Pippillion
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.
1280-002 8508
EXAMINER
HANLEY, BRITT D
ART UNIT PAPER NUMBER
2875
NOTIFICATION DATE DELIVERY MODE
12/25/2018 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):
docketing@richardspatentlaw.com
eofficeaction@appcoll.com
robin@richardspatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PARIS ALLEN PIPPILLION and MARY PIPPILLION
Appeal2018-003082
Application 14/202,702
Technology Center 2800
Before LINDA M. GAUDETTE, KAREN M. HASTINGS, and
SHELDON M. McGEE, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 request our review under 35 U.S.C. § 134 of the
Examiner's Non-Final Rejection of claims 1 and 3-11 under 35 U.S.C.
§ 103(a) as unpatentable over Hurwitz (US 2009/0034238 Al; publ. Feb. 5,
2009), and Moy (US 2010/0313334 Al; publ. Dec. 16, 2010). We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Claim 1 is illustrative of the appealed subject matter ( emphasis added
to identify key disputed limitation):
1. A safety helmet for displaying dynamic designs comprising:
a non-opaque protective shell including an outer surface
and an inner surface;
1 Paris Allen Pippillion is stated to be the real party in interest (Appeal Br. 3).
Appeal2018-003082
Application 14/202,702
an inner padding, including an outer surface and an inner
surface, wherein a portion of the inner padding is surrounded by
the inner surface of the outer shell;
a dynamic visual display including one or more tiled
display panels adapted to display one or more moving images or
video, wherein the dynamic visual display is mounted inside the
space defined by the inner surface of the protective shell and the
outer surface of the inner padding, wherein the dynamic visual
display fills a viewable surface as viewed through the protective
shell, wherein the dynamic visual display viewed through the
viewable surface occupies substantially all of the non-opaque
protective shell; and
a display controller in electronic communication with the
dynamic visual display such that the display controller
communicates the one or more moving images or video to the
dynamic visual display and control the operation of the dynamic
visual display;
wherein the dynamic visual display controller includes
instructions to dynamically zoom, translate, or rotate the moving
images or video displayed to optimize presentation of the moving
images or video on the viewable surface.
Appeal Br. 9 (Claims Appendix).
ANALYSIS
Upon consideration of the evidence on this appeal record and each of
Appellants' contentions, we find that the preponderance of evidence on this
record supports the Examiner's conclusion that the subject matter of
Appellants' claims is unpatentable over the applied prior art. We sustain the
Examiner's§ I03(a) rejection essentially for the reasons set out by the
Examiner in the Answer.
We add the following for emphasis.
Appellants' only argument is that the references do not teach or
suggest a dynamic visual display that occupies "substantially all of the
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Application 14/202,702
non-opaque protective shell" since Hurwitz teaches a static display and Moy
does not describe that its dynamic display covers substantially all of the
headwear (including helmets) (Appeal Br. 6; Reply Br. 2--4). Appellants
assert that since both references are silent about the disputed limitation, the
limitation "cannot possibly be obvious" (Reply Br. 4).
Appellants' arguments mainly address the references separately and
do not fully address the rejection and the inferences of these references that
are presented on this record for our review.
It has been established that "the [obviousness] analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398,418 (2007). Likewise, it is also well settled that a
reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in the art would have reasonably been
expected to draw therefrom. See In re Fritch, 972 F.2d 1260, 1264---65 (Fed.
Cir. 1992).
The Examiner's position is that the size of the display would have
been a design matter and one would have been motivated to make such a
display occupy substantially all of the protective shell so that "the dynamic
information could be seen from multiple positions around the helmet ... to
increase marketability" (Ans. 3).
Appellants have not shown error in the Examiner's obviousness
determination, especially considering that the static information display is
located over the entire helmet of Hurwitz as depicted in, e.g., Figure 1
therein. It has also been generally held that ordinarily changes in sizes of
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Application 14/202,702
shapes of known elements are within the level of skill in that art, especially
in the absence of unexpected results or criticality. Cf Gardner v. TEC Sys.,
Inc., 725 F.2d 1338, 1349 (Fed. Cir. 1984) (holding that, where the only
difference between the prior art and the claims was a recitation of relative
dimensions of the claimed device and a device having the claimed relative
dimensions would not perform differently than the prior art device, the
claimed device was not patentably distinct from the prior art device); see
also In re Dailey, 357 F.2d 669, 676 (CCPA 1966) (a change in shape is
ordinarily prima facie obvious).
It is well established that obviousness does not require absolute
predictability of success; rather, all that is required is a reasonable
expectation of success. In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009).
The predictable use of prior art elements according to their established
functions is ordinarily obvious; further, as previously mentioned, the
"inferences and creative steps that a person of ordinary skill in the art would
employ" can be taken into account. KSR Int'! Co., 550 U.S. at 417-18
(2007). "A person of ordinary skill is also a person of ordinary creativity,
not an automaton." Id. at 421. Adjusting the size and/or shape of a dynamic
visual display in a safety helmet is considered within the ambit of inferences
and creativity of an ordinarily skilled artisan.
One of ordinary skill would have readily inferred that there is a design
need to make a safety helmet as visible as possible, and adjusting the
size/shape of a dynamic visual display as exemplified in Moy to cover an
entire helmet with a lighted display as exemplified in Hurwitz would appear
to have been within the level of skill in the art as proposed by the Examiner.
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For the foregoing reasons, giving due weight to Appellants'
arguments, we determine that the preponderance of evidence weighs in favor
of obviousness.
Accordingly, the Examiner's rejection of claims 1 and 3-11 under
35 U.S.C. § 103(a) is affirmed.
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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