Ex Parte Schechterman

Board of Patent Appeals and Interferences

Aug 15, 2007

10364053 (B.P.A.I. Aug. 15, 2007)

The opinion in support of the decision being entered today is
not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MARK SCHECHTERMAN
____________

Appeal 2007-3242
Application 10/364,0531
(Technology Center 2800)
____________

Decided: 15 August 2007
____________

Before JAMESON LEE, RICHARD TORCZON, and SALLY C.
MEDLEY, Administrative Patent Judges.

LEE, Administrative Patent Judge.

DECISION ON APPEAL
A. Statement of the Case

This is a decision on appeal by Applicants under 35 U.S.C. § 134(a)
from a rejection of claims 1, 2, and 4-11 in Application 10/364,053. We
have jurisdiction under 35 U.S.C. § 6(b).

1 Filing or 35 U.S.C. § 371(c) date: February 10, 2003. The real party in
interest is Visionsense Ltd.
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References Relied on by the Examiner

Street US 6,075,555 Jun. 13, 2000
Li US 5,912,762 Jun. 15, 1999
Lee US 5,121,983 Jun. 16, 1992

The Rejections on Appeal

The Examiner rejected claims 1, 5-9, and 10-11 under
35 U.S.C. § 102 as anticipated by Street.
The Examiner rejected claim 2 under 35 U.S.C. § 103 as unpatentable
over Street and Li.
The Examiner rejected claim 4 under 35 U.S.C. § 103 as unpatentable
over Street and Lee.

B. Issue

Has the Applicant shown error in the rejection of claims 1, 5-9, and
10-11?

C. Summary of the Decision
Yes. The Applicant has shown error in each of the Examiner’s
rejections on appeal.

D. Findings of Fact (Referenced as FF. ¶ No.)
1. The disclosed invention is directed to an apparatus and method
for stereoscopic image detection. (Specification 1:5-14).
2. The specification describes a stereoscopic device including a
“directional” image separator which uses optical layers whose coefficient of
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reflection depends on the angle of incidence with respect to the optical
layers. (Specification 4:9-12).
3. The operation of the directional image separator is described as
being “based on optical layers whose coefficient of reflection depends on the
angle of incidence.” (Specification 8:4-5).
4. In one disclosed embodiment, rays with a small angle of
incidence relative to the optical layers are reflected to a detector and rays
with a large angle of incidence relative to the optical layers are transmitted
to a detector. (Specification 4:12-14).
5. In a different embodiment, rays with a small angle of incidence
relative to the optical layers are transmitted to a detector and rays with a
large angle of incidence relative to the optical layers are reflected to a
detector. (Specification 4:18-20).
6. The directional image separator is described as having a
directionally selective surface, reflecting rays from a first direction toward a
first image detector and transmitting rays from a second direction toward a
second image detector. (Specification: 6:1-8).
7. The boundary of an optical layer and a prism is described as a
“directionally selective surface” which reflects light arriving from a range of
directions and transmits light arriving from a second range of directions.
(Specification 8:5-9).
8. An optical layer is described as including layers of dielectric
material, or another type of directionally selective material such as a
holographic material or a lattice. (Specification 8:9-13).
9. The independent claims are claims 1 and 10, which are
reproduced below:
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1. Stereoscopic device comprising:

a first entrance pupil, receiving a first image of at least
one object;

a second entrance pupil, receiving a second image of said
at least one object;

a directional image separator, receiving said first image
from said first entrance pupil and receiving said second image
from said second entrance pupil;

a common optical image assembly, located between said
entrance pupils and said directional image separator, conveying
said first image from said first entrance pupil to said directional
image separator, conveying said second image from said second
entrance pupil to said directional image separator, providing
said first image to said directional image separator in a first
source direction, and providing said second image to said
directional image separator in a second source direction;

a first image detector; and

a second image detector,

wherein said directional image separator comprises a
directionally selective surface, said directionally selective
surface reflecting said first image in a first target direction,
towards said first image detector, and transmitting said second
image in a second target direction, towards said second image
detector, and

wherein said first image and said second image are at
least partially overlapping, when arriving at said directionally
selective surface.

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10. Method for producing a stereocopic image, the
method comprising the procedures of:

receiving a first image through a first entrance pupil;

receiving a second image through a second entrance pupil;

conveying said first image through a common optical assembly
from said first entrance pupil to a directional image separator and
providing said first image to said directional image separator in a first
source direction;

conveying said second image through said common
optical assembly from said second entrance pupil to said
directional image separator and providing said second image to
said directional image separator in a second source direction;

reflecting said first image, at a directionally selective
surface, in a first target direction, towards a first image detector;
and

transmitting said second image, at said directionally
selective surface, in a second target direction, towards a second
image detector,

wherein said first image and said second image are at
least partially overlapping, when arriving at said directionally
selective surface.

10. Street discloses an apparatus and method for enhancing
autostereoscopic imaging including a different perspective view of an object
field for each eye of an observer. (Street, Abstract).
11. Figure 4 of Street illustrates an endoscopic system having two
light entrance pupil segments 58L and 58R, each transmitting light for a
different eye view and each including a polarising element whereby the
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direction of polarization in 58L and in 58R are orthogonal to each other.
(Street col. 7:8-24).
12. Figure 4 of Street illustrates an objective lens assembly 57
which receives the light coming from the two entrance pupils and forms a
composite image on face 55 of a coherent fibre-optic bundle 54. (Street
col. 7:8-15).
13. The fibre-optic bundle 54 shown in Figure 4 of Street transfers
the image on its end face 55 to another end face 56 and the image formed on
end face 56 is one image comprising two polarized components. (Street col.
7:24-31).
14. The two polarized components forming one image on end face
56 of Street are then separated by a quarter-wave plate 60 and a polarising
beam splitter 61 (Street col. 7:32-34), and the separated images are then
formed, respectively, on detectors 63 and 64. (Street col. 7:35-41).
15. The text in Street (col. 7:35-36) “Lens 62 forms both images on
two CCD’s 63 and 64” means one image is formed on detector 63 and the
other on detector 64, because the polarizing beam splitter is meant to
“separate” the two orthogonally polarized image components. (Street col.
7:33-34). In other words, there are two orthogonally polarized image
components, one routed by the polarising beam splitter to detector 63 and
the other to detector 64, not both routed by the polarising beam splitter to
each detector 63 and 64.
E. Principles of Law
To establish anticipation under 35 U.S.C. § 102, each and every
element in a claim, arranged as is recited in the claim, must be found in a
single prior art reference. Karsten Mfg. Corp. v. Cleveland Golf Co., 242
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F.3d 1376, 1383, 58 USPQ2d 1286, 1291 (Fed. Cir. 2001). Anticipation can
be found when a claim limitation is inherent or otherwise implicit in the
relevant reference. Standard Havens Products, Inc. v. Gencor Industries,
Inc., 953 F.2d 1360, 1369, 21 USPQ2d 1321, 1328 (Fed. Cir. 1991). For
establishing inherency, that which is missing in the express description must
necessarily be present and would be so recognized by one with ordinary skill
in the art. Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1268, 20
USPQ2d 1746, 1749 (Fed. Cir. 1991). Inherency may not be established by
probabilities or possibilities, and the mere fact that a certain thing may result
from a given set of circumstance is not sufficient. In re Oelrich, 666 F.2d
578, 581, 212 USPQ 323, 326 (CCPA 1981).
In proceedings before the U.S. Patent and Trademark office, claims
are properly construed according to their broadest reasonable interpretation
that still is consistent with the specification. In re Zletz, 893 F.2d 319, 321,
13 USPQ2d 1320, 1322 (Fed. Cir. 1989); In re Prater, 415 F.2d 1393, 1404,
162 USPQ 541, 550 (CCPA 1969).
F. Analysis
In this case, the key to the issues on appeal is the meaning of the terms
“source direction” and “directionally selective surface” in claims 1 and 10.
The Applicant’s specification contains no special definition for these terms
and thus it cannot be said that the Applicant is its own lexicographer in
coining any new meaning for these terms. Based on the various descriptions
in the specification involving the terms “direction” and “directionally
selective surface” as is determined in FF. 2-7, it is clear that in the context of
the Applicant’s disclosed invention, “direction” and “directionally selective
surface” refer to and involve physical direction, i.e., an incident angle or
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angular range of light arriving at a physical surface. The selectivity of the
surface is based on the incident angle. It would not be reasonable to
construe these terms, based on the Applicant’s specification, as not
necessarily pertaining to the incident angle of light arriving at the
directionally selective surface. The ordinary meaning of “direction” in the
English language also suggests something no different. Thus, the broadest
reasonable construction of “direction” and “directionally selective surface”
based on the Applicant’s specification still limits the terms to the specific
context of physical direction or incident angle of the incoming light relative
to the directional image separator.
The Examiner improperly generalized the scope of “direction” to
cover the overall path of travel of incoming light regardless of the incident
angle at the receiving end. According to the Examiner, so long as two
images, one starting its journey by entering one entrance pupil and the other
starting its journey by entering a second entrance pupil, eventually arrive at
an image separator, they have been provided to the image separator in a first
source direction and a second source direction, respectively. (Answer 3:16-
25). That is incorrect.
Based on proper claim construction as discussed above for both
independent claims 1 and 10, the first and second images must be provided
to the directional image separator in a first and a second source direction in
the sense of an actual physical incident angle, respectively, and the
directional image separator has a directionally selective surface which
responds differently based on the respective incident angle. The selectivity
is based on the angle of incident light. The Examiner has failed to
demonstrate that Street discloses providing one image to a directional image
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separator in one source direction and another image to the same directional
image separator in a second source direction, and also that the image
separator includes a directionally selective surface which either reflects or
transmits based on the direction of the incident light.
The Examiner even expressly acknowledged that in Street, the
polarization beam splitter, which the Examiner regards as the image
separator, separates the two arriving images on the basis of something else,
i.e., the orthogonal polarization states of the incoming images. (Answer
3:21 to 4:2).
For the foregoing reasons, the rejection of claims 1, 5-9, and 10-11
under 35 U.S.C. 102 as anticipated by Street cannot be sustained.
As for the rejection of claim 2, which depends from claim 1, as
unpatentable over Street and Li, and the rejection of claim 4, which also
depends from claim 1, as unpatentable over Street and Lee, as applied by the
Examiner, neither Li nor Lee makes up for the deficiencies of Street as
discussed above in connection with the rejection of claim 1. Li and Lee
have been relied on for their teachings concerning features added by
dependent claims 2 and 4. Accordingly, the rejection of claim 2 under 35
U.S.C. § 103 as unpatentable over Street and Li cannot be sustained, and the
rejection of claim 4 under 35 U.S.C. § 103 as unpatentable over Street and
Lee cannot be sustained.
G. Conclusion
The rejection of claims 1, 5-9, and 10-11 under 35 U.S.C. § 102 as
anticipated by Street is reversed.
The rejection of claim 2 under 35 U.S.C. § 103 as unpatentable over
Street and Li is reversed.
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The rejection of claim 4 under 35 U.S.C. § 103 as unpatentable over
Street and Lee is reversed.

REVERSED

Gregory A. Sebald
MERCHANT & GOULD P.C.
P.O. Box 2903
Minneapolis, MN 55402-0903