Ex Parte Waeller et al

Patent Trial and Appeal Board

Mar 22, 2017

12377102 (P.T.A.B. Mar. 22, 2017)

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.
12/377,102 02/10/2009 Christoph Waeller 11150/141 2674
26646 7590 03/24/2017
ANDREWS KURTH KENYON LLP
ONE BROADWAY
NEW YORK, NY 10004
EXAMINER
WALSH, JOHN B
ART UNIT PAPER NUMBER
2451
NOTIFICATION DATE DELIVERY MODE
03/24/2017 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):
u spto @ keny on .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPH WAELLER and JENS FLIEGNER
Appeal 2016-006276
Application 12/377,1021
Technology Center 2400
Before ST. JOHN COURTENAY III, JUSTIN BUSCH, and
JOHN P. PINKERTON, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 18—27, 29—34, and 36, which constitute all of the
claims pending in the application. Claims 1—17, 28, and 35 are canceled.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify the real party in interest as VOLKSWAGEN AG. App.
Br. 2.
Appeal 2016-006276
Application 12/377,102
STATEMENT OF THE CASE
Introduction
Appellants’ disclosed and claimed invention is generally directed to
displaying information in a motor vehicle, including a display device having
a display with which different content may be displayed for different
viewing angles. Spec, p.l, 11. 1^4.2
Claim 18 is representative of the subject matter on appeal and
reproduced below (with the disputed limitations emphasized)'.
18. A method for displaying information in a motor vehicle,
the motor vehicle including a display device having a display
adapted to display different content for different viewing angles,
comprising:
displaying, on the display, a same basic information for
both of a first viewing angle and a second viewing angle',
displaying, on the display (a) first supplementary
information related to and superimposed on the basic
information, for the first viewing angle and (b) second
supplementary information related to and superimposed on the
basic information, for the second viewing angle;
receiving information indicative of vehicle speed;
modifying a depth of detail for the first viewing angle as a
function of the vehicle speed', and
displaying content for the second viewing angle
independently of the vehicle speed.
App. Br. 9 (Claims App’x).
2 Our Decision refers to the Final Action mailed June 18, 2015 (“Final
Act.”); Appellants’ Appeal Brief filed Nov. 12, 2015 (“App. Br.”); the
Examiner’s Answer mailed Apr. 20, 2016 (“Ans.”); Appellants’ Reply Brief
filed June 3, 2016 (“Reply Br.”); and, the original Specification filed
Feb. 10, 2009 (“Spec.”).
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Application 12/377,102
References and Rejections on Appeal
Claims 18—21, 24—27, 29—31, 33, and 34 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Burnham et al. (US
2005/0278091 Al; published Dec. 15, 2005) (“Burnham”) and Geelen (US
2004/0243307 Al; published Dec. 2, 2004).
Claim 22 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Burnham, Geelen, and Feyereisen et al. (US
2003/0132860 Al; published July 17, 2003) (“Feyereisen”).
Claims 23 and 32 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Burnham, Geelen, and Maehata et al. (US 2007/0006081
Al; published Jan. 4, 2007) (“Maehata”).
Claim 36 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Burnham, Geelen, and Kawabe (US 2006/0028453 Al;
published Feb. 9, 2006).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments in the Briefs and are not persuaded the Examiner erred. Unless
otherwise noted, we adopt as our own the findings and reasons set forth by
the Examiner in the Office Action from which this appeal is taken (Final
Act. 2—6) and in the Examiner’s Answer (Ans. 14—19), and we concur with
the conclusions reached by the Examiner. For emphasis, we consider and
highlight specific arguments as presented in the Briefs.
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Application 12/377,102
Rejection of Claims 18—21, 24—27, 29—31, 33, and 34 under § 103 faf
A. “displaying, on the display, a same basic information for both
of a first viewing angle and a second viewing angle”
Appellants argue Burnham does not teach or suggest displaying “a
same basic information for both of a first viewing angle and a second
viewing angle,” as recited in independent claim 18, and as similarly recited
in independent claims 29 and 30. App. Br. 3—5; Reply Br. 3—5. In particular,
Appellants argue paragraph 21 of Burnham “only describes that the display
of a passenger side image 18 may be based on information from the driver
information system” but does not “disclose or suggest that the same
information is displayed to both viewing angles.” App. Br. 4. Appellants
also argue Burnham merely discloses the source of information may be the
same for the passenger and driver screens, “not that the same information
[is] displayed on both screens.” Id. at 5.
We are not persuaded by Appellants’ arguments. First, we find
Burnham at least suggests displaying the same basic information for both a
first and second viewing angle. Paragraph 21 of Burnham states the display
system has the capability “to generate the passenger side image 18 based on
information from the driver information system.” Because Burnham teaches
the passenger side image can be generated from the same information used
to generate the driver side image, Burnham at least suggests displaying the
same basic information for both a first and second viewing angle. See Merck
& Co., Inc. v. Biocraft Labs, Inc., 874 F. 2d 804, 807—08 (Fed. Cir. 1989)
3 We decide the rejection of claims 18—21, 24—27, 29—31, 33, and 34, which
are rejected under the first-stated ground of rejection, on the basis of
representative claim 18. See 37 C.F.R. § 41.37(c)(l)(iv).
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Application 12/377,102
(“[T]he question under 35 U.S.C. 103 is not merely what the references
expressly teach but what they would have suggested to one of ordinary skill
in the art at the time the invention was made.”).
Second, we conclude the step of “displaying ... a same basic
information for both of a first viewing angle and a second viewing angle” is
directed to displaying non-functional descriptive material because the “same
basic information” is merely intended for human viewing, and such “basic
information” is not positively recited as being used to change or affectthe
performance of any of the steps or acts within the scope of method claim
18.4 Thus, claim 18 cannot be distinguished over the cited prior art based on
the information displayed for the different viewing angles, because the
informational content of non-functional descriptive material is not entitled to
weight in the patentability analysis. See Ex parte Nehls, 88 USPQ2d 1883,
1889 (BPAI 2008) (precedential) (“[T]he nature of the information being
manipulated does not lend patentability to an otherwise unpatentable
computer-implemented product or process.”); Ex parte Curry, 84 USPQ2d
1272, 1274 (BPAI 2005) (informative) (“Nonfunctional descriptive material
cannot render nonobvious an invention that would have otherwise been
obvious.”), aff’d. No. 2006-1003 (Fed. Cir. June 12, 2006) (Rule 36); In re
4 The Manual of Patent Examining Procedure (MPEP) guides: “where the
claim as a whole is directed [to] conveying a message or meaning to a
human reader independent of the intended computer system, and/or the
computer-readable medium merely serves as a support for information or
data, no functional relationship exists.” MPEP § 2111.05 (III.) (9th Ed.,
Rev. 07.2015, Last Revised Nov. 2015).
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Lowry, 32 F.3d 1579, 1583 (Fed. Cir. 1994) (holding informational content
of non-functional descriptive material is not entitled to patentable weight).
B. “modifying a depth of detail for the first viewing angle as a
function of the vehicle speed”
Appellants contend Burnham and Geelen fail to teach or suggest the
“modifying” limitation of claim 18. App. Br. 5. Appellants argue a person
of ordinary skill in the art would not have combined Burnham with Geelen
because Geelen “describes a device requiring significant user interaction in
selecting and displaying various points of interest” (citing | 57), whereas
Burnham discloses a system “that contemplates limiting the types of POIs
that a driver can see” (citing 121). See id. at 5—6.
We do not find Appellants’ arguments persuasive. First, under the
broadest reasonable interpretation of the “modifying” limitation, the “first
viewing angle” is not limited to that of the driver, and can be the passenger’s
viewing angle. Second, the Examiner finds, and we agree, Geelen teaches
modifying a depth of detail of the display of a navigation system as a
function of speed. Final Act. 3 (citing Geelen H 59—65). In that regard,
Geelen teaches automatically zooming in to show more detail when the
vehicle is travelling slower and zooming out when the vehicle is travelling
faster. See Geelen | 63. Third, the Examiner finds, and we agree, both
Burnham and Geelen disclose the use of navigational maps and a person of
ordinary skill in the art, presented with a problem of modifying a depth of
detail for a map of a navigational system, “would have found it obvious to
modify the navigational system of Burnham with Geelen to provide
modifying depth of detail as a function of speed in order to allow a user to
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Application 12/377,102
make timely decisions and reduce screen clutter.” Ans. 6—7. Fourth, we find
the combination of Burnham and Geelen teaches or suggests “modifying a
depth of detail for the first [i.e., passenger] viewing angle as a function of
the vehicle speed” because a person of ordinary skill in the art at the time of
the invention would not have been dissuaded from combining Geelen’s
teaching of automatically zooming in or out on a map based on the vehicle’s
speed (see Tfl] 58—63) with Burnham’s teaching that the passenger side
image is provided access to navigational functions not available to the
driver, such as “map zoom functions” (see 121).
C. Reply Brief
In the Reply Brief, Appellants argue for the first time that “Geelen
(i.e. 110059-0065) does not suggest the limitation as recited in claim 18,
i.e., ‘modifying a depth of detail for the first viewing angle as a function of
the vehicle speed, and displaying content for the second viewing angle
independently of the vehicle speed.'1'’'’ See Reply Br. 2—3. In that regard,
Appellants argue “Geelen does not suggest different treatment of display
information for two different viewing angles, let alone suggest selectively
modifying a depth of detail for only one of two different viewing angles as a
function of the vehicle[’]s speed.” Id. at 3. Because these arguments are
raised by Appellants for the first time in the Reply Brief not in response to a
shift in the Examiner’s position and without otherwise showing good cause,
they are waived. See 37 C.F.R. § 41.41(b)(2); see also Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI2010) (informative) (“[T]he reply brief [is not]
an opportunity to make arguments that could have been made in the
principal brief on appeal to rebut the Examiner’s rejections, but were not.”
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For the foregoing reasons, and based on a preponderance of the
evidence, we are not persuaded the Examiner erred in (1) finding the
combined teachings of Burnham and Geelen teach or suggest the disputed
limitations of claim 18, and (2) concluding the combination of Burnham and
Geelen renders the subject matter of claim 18 obvious under 35 U.S.C.
§ 103(a). Accordingly, we sustain the Examiner’s rejection of claim 18. For
the same reasons, we also sustain the Examiner’s rejection of independent
claims 29 and 30, as well as claims 19—21 and 24—27, which depend from
claim 18, and claims 31, 33, and 34, which depend from claim 30, none of
which are separately argued.
Rejection of Claims 22,5 23, 32,6 and 367 under § 103(a)
Appellants argue claim 22 is allowable because it depends from claim
18, which is allowable because Burnham and Geelen do not teach all the
limitations of claim 18, and Feyereisen does not cure such deficiencies. See
App. Br. 6. Appellants argue claim 23 is allowable because it depends
ultimately from claim 18, and claim 32 is allowable because it depends
ultimately from claim 30,8 both of which Appellants argue are allowable
because Burnham and Geelen do not teach all the limitations of claims 18
and 30, and Maehata does not cure such deficiencies. See App. Br. 7.
Appellants argue claim 36 is allowable because it depends from claim 18,
which is allowable because Burnham and Geelen do not teach all the
limitations of claim 18, and Kawabe does not cure such deficiencies. See
5 Claim 22 is rejected under the second-stated ground of rejection.
6 Claims 23 and 32 are rejected under the third-stated ground of rejection.
7 Claim 36 is rejected under the fourth-stated ground of rejection.
8 Claim 32 ultimately depends from claim 30, but Appellants mistakenly
argue claim 32 depends from claim 29. See App. Br. 7.
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App. Br. 7. We do not find these arguments persuasive because, for the
reasons discussed supra, we find there are no deficiencies in the combined
teachings of Burnham and Geelen with respect to the disputed limitations of
claims 18 and 30 and, therefore, claims 18 and 30 are not patentable. Thus,
we sustain the Examiner’s rejections of dependent claims 22, 23, 32, and 36.
DECISION
We affirm the Examiner’s decision rejecting claims 18—27, 29—34,
and 36 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended. See 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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