Ex Parte Wilson et al

Patent Trial and Appeal Board

Jan 26, 2018

12819238 (P.T.A.B. Jan. 26, 2018)

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.
12/819,238 06/21/2010 Andrew D. Wilson 329346-US-NP 9658
69316 7590 01/30/2018
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
EXAMINER
AN, SHAWN S
ART UNIT PAPER NUMBER
2483
NOTIFICATION DATE DELIVERY MODE
01/30/2018 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):
u sdocket @ micro soft .com
chriochs @microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW D. WILSON and STEVEN BATHICHE
Appeal 2017-003751
Application 12/819,238
Technology Center 2400
Before ALLEN R. MacDONALD, JOSEPH P. LENTIVECH, and
MICHAEL J. ENGLE, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-003751
Application 12/819,238
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection
of claims 1-9, 32-38, and 43^15. Claim 39 is objected to as dependent upon
a rejected base claim but allowable if rewritten in independent form. Final
Act. 11. Claims 10-31 and 40^12 have been cancelled. App. Br. 14-15.
We have jurisdiction over the rejected claims under 35 U.S.C. § 6(b).
Representative Claim
Representative claim 1 under appeal reads as follows (emphasis and
formatting added):
1. A multi-view display comprising:
multiple light sources configured to generate light;
a parallax barrier or lenslet configured to direct the light
to different directions depending on which of the multiple light
sources are illuminated; and
a scheduling algorithm configured to direct the light to
different viewing angles by selectively illuminating different
light sources behind the parallax barrier or lenslet in different
time slices,
wherein the different viewing angles correspond to
different views,
wherein the different views include
a first view that is directed to a first viewing angle
by illuminating a first light source behind the parallax
barrier or lenslet during a first time slice and
a second view that is directed to a second viewing
angle by illuminating a second light source behind the
parallax barrier or lenslet during a second time slice,
wherein the first viewing angle is different than the
second viewing angle.
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Application 12/819,238
Rejections on Appeal
The Examiner rejects claims 1, 2, 5-8, 32, and 43^45 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Huang et al. (US
2008/0316378 Al; published Dec. 25, 2008), Ju et al. (US 2010/0164861
Al; published July 1, 2010), and Appellants’ Admitted Prior Art (“AAPA”).
The Examiner rejects claim 38 under 35 U.S.C. § 103(a) as being
unpatentable over Huang, Ju, AAPA, Mather et al (US 8,144,079 B2; issued
Mar. 27, 2012), and Haskell et al (US 6,055,012; issued April 25, 2000).
The Examiner rejects claims 3, 4, 9, and 32-37 under 35 U.S.C.
§ 103(a) as being unpatentable over Huang, Ju, and AAPA in various
combinations with other references.
Issue on Appeal
Did the Examiner err in rejecting claims 1 and 44 as being obvious?
ANALYSIS1
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred.
Claim 1
The Examiner finds as to claim 1:
Huang et al discloses a multi-view display/method
comprising:
a scheduling algorithm configured to direct the light to
different viewing angles by selectively (sequentially)
1 The contentions we discuss are determinative as to all the rejections on
appeal. Therefore, Appellants’ other contentions are not discussed in detail
herein.
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Application 12/819,238
illuminating different light sources behind the parallax barrier or
lenslet in different time slices (sequential inherently implies
different time slice), wherein the different viewing angles
correspond to different (multiple) views (paras. [0030], [0031],
[0034-0035], [0051-0056]).
Final Act. 3 (emphasis omitted).
Appellants contend that the Examiner erred in rejecting claim 1 under
35U.S.C. § 103(a) because:
The Final Office Action alleges that Huang’s sequential
generation of light implies different “time slices” (Final Office
Action at page 3). However, . . . Huang does not show using
different light sources in different time slices. Rather, in the
portions of Huang relied upon by the Examiner (Final Office
Action at page 3), each light source is illuminated during all time
slices, as discussed more below.
App. Br. 7-8 (emphasis omitted).
In the Answer, the Examiner responds by repeating the finding:
Huang et al discloses a multi-view display/method
comprising:
a scheduling algorithm configured to direct the light to
different viewing angles (different viewing positions) by
selectively (sequentially) illuminating different light sources
(red, green, and blue) behind the parallax barrier or lenslet in
different time slices/instants (sequentially illuminating
inherently implies different time slices), wherein the different
viewing angles correspond to different (multiple) views (Figs.
3B and 7; paras. [0030], [0031], [0034-0035], [0051-0056]).
Ans. 16 (emphasis omitted).
As articulated by the Federal Circuit, the Examiner’s burden of
proving non-patentability is by a preponderance of the evidence. See In re
Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (“preponderance of the
evidence is the standard that must be met by the PTO in making rejections”).
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Application 12/819,238
“A rejection based on section 103 clearly must rest on a factual basis[.]” In
re Warner, 379 F.2d 1011,1017 (CCPA 1967). “The Patent Office has the
initial duty of supplying the factual basis for its rejection. It may not. . .
resort to speculation, unfounded assumptions or hindsight reconstruction to
supply deficiencies in its factual basis.” Id.
Here, the Examiner’s analysis fails to meet this standard because it
does not adequately explain why the Examiner’s finding of fact that “Huang
et al discloses . . . (sequentially) illuminating different light sources behind
the parallax barrier or lenslet in different time slices (sequential inherently
implies different time slice)” (Final Act. 3, emphasis omitted) by itself
supports the Examiner’s conclusion that this renders obvious the claim 1
limitation of “selectively illuminating different light sources behind the
parallax barrier or lenslet in different time slices” (emphasis added). The
Examiner’s response to Appellants’ “during all time slices” argument merely
repeats the finding without providing any further insight as to the
Examiner’s reasoning why Huang’s “sequentially” teaches or renders
obvious the particular claimed “selectively.” For example, Appellants argue
each pixel “is active at all times in Huang and merely the color . . . changes
across Huang’s time slices.” App. Br. 8. The Examiner treats each color as
the claimed “light source,” see Ans. 16 (“different light sources (red, green,
and blue)”), whereas Appellants contend each pixel is illuminated by a
single light source that merely changes color. See App. Br. 8; Huang 30
(“The light source 102, such as a sequential backlight module 202,
sequentially generates the light of the colors. . . . The red, green and blue
light rays are sequentially transmitted through the pixels”). The Examiner
has not addressed sufficiently why multiple colors from a single light source
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Application 12/819,238
teaches or suggests the claimed “different light sources.” Appellants clearly
did not agree with the Final Office Action, as evidenced by the subsequent
appeal, so an Answer merely repeating the Final Office Action without
further discussion fails to clarify the Examiner’s position for either
Appellants or the Board.
We conclude, consistent with Appellants’ argument, there is
ultimately insufficient articulated reasoning to support the Examiner’s final
conclusion that claim 1 would have been obvious to one of ordinary skill in
the art at the time of Appellants’ invention.
Appellants ’ Other Arguments
Appellants present numerous additional arguments, which Appellants
have labelled as i, iii, iv, vi, and vii. We find all these additional arguments
unpersuasive.
Arguments i and vii fail because these arguments do not address the
actual reasoning of the Examiner’s rejections. Instead Appellants attack the
references singly for lacking teachings that the Examiner relied on a
combination of references to show. That is, Appellants attack one reference
for lacking a teaching when the Examiner relied on another reference for
that teaching. It is well established that one cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references. See In re Keller, 642 F.2d 413 (CCPA 1981);
In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986). This form of argument
is inherently unpersuasive to show examiner error. Our reviewing court
requires that references must be read, not in isolation, but for what they
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fairly teach in combination with the prior art as a whole. Merck, 800 F.2d at
1097 (Fed. Cir. 1986).
Arguments iii, iv, and vi fail because these arguments are directed to
intended uses of the claimed apparatus. The manner of operating a device
does not differentiate an apparatus claim from the prior art. “[AJpparatus
claims cover what a device is, not what a device does.” Hewlett-Packard
Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990); see also
MPEP § 2114 (II).
CONCLUSIONS
(1) Appellants have established that the Examiner erred in rejecting
claims 1-9, 32-38, and 43-45 as being unpatentable under 35 U.S.C.
§ 103(a).
(2) On this record, claims 1-9, 32-38, and 43-45 have not been
shown to be unpatentable.
DECISION
The Examiner’s rejections of claims 1-9, 32-38, and 43^15 are
reversed.
REVERSED
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