FUNG, HENRY H. et al.

Patent Trials and Appeals Board

Mar 13, 2020

15047301 - (D) (P.T.A.B. Mar. 13, 2020)

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.
15/047,301 02/18/2016 HENRY H. FUNG NG(ST)024627 US PRI 1060
109501 7590 03/13/2020
Tarolli, Sundheim, Covell & Tummino
LLP and Northrop Grumman Systems Corporation
1300 East Ninth Street
Suite 1700
Cleveland, OH 44114
EXAMINER
MAZUMDER, SAPTARSHI
ART UNIT PAPER NUMBER
2612
NOTIFICATION DATE DELIVERY MODE
03/13/2020 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@tarolli.com
rkline@tarolli.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte HENRY H. FUNG, WAYNE S. KIM,
DEVANG R. PAREKH, LOUIS A. ODDO, FENG CAO,
MICHEL AZAR, and BENJAMIN J. MONTGOMERY
____________________

Appeal 2019-001748
Application 15/047,301
Technology Center 2600
____________________

Before BRYAN F. MOORE, MATTHEW J. McNEILL, and
JASON M. REPKO, Administrative Patent Judges.

MOORE, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20, which are all claims pending in
the application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 We use the word “Appellant” to refer to “[A]pplicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Northrop
Grumman Corporation. Appeal Br. 3.
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BACKGROUND2
Appellant’s disclosed embodiments and claimed invention relate to
“federated system management, and specifically to a mission monitoring
system.” Spec. ¶ 1. Claim 1, reproduced below, is illustrative of the subject
matter on appeal (emphasis added to contested prior-art limitation):
1. A mission monitoring system comprising:
a data store to store map data associated with a
geographic region of interest and a plurality of graphical
elements corresponding to at least one mission asset and
to mission constraints, wherein each of the plurality of
graphical elements comprises a layer assignment
associated with one of a plurality of graphical layers;
a human-machine interface (HMI) to facilitate user inputs
to selectively activate the plurality of graphical layers
associated with the plurality of graphical elements and to
display a graphical rendering of the selectively activated
graphical layers superimposed over a graphical virtual
environment of the geographic region of interest via a
display system; and
a performance monitor to provide graphical feedback of
the graphical rendering rate of the display system based
on the selective activation and deactivation of the
plurality of graphical layers associated with the plurality
of graphical elements.
Appeal Br. 24 (Claims App.).

2 Throughout this Decision, we have considered the Specification filed
February 18, 2016 (“Spec.”), the Final Office Action mailed January 11,
2018 (“Final Act.”), the Advisory Action mailed April 9, 2018 (“Advisory
Act.”), the Appeal Brief filed June 11, 2018 (“Appeal Br.”) (as
supplemented by the Response to Notice of Noncompliant Appeal Brief,
filed July 16, 2018), the Examiner’s Answer mailed October 19, 2018
(“Ans.”), and the Reply Brief filed December 19, 2018 (“Reply Br.”).
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REJECTION
Claim 10 stands rejected under 35 U.S.C. § 112(b) as being indefinite
for failing to particularly point out and distinctly claim the subject matter
which the inventor or a joint inventor regards as the invention. Advisory
Act. 2.
Claims 11, 13–15, and 17 stand rejected under 35 U.S.C. § 101 as
being directed to patent-ineligible subject matter. Final Act. 9–14.
Claims 1, 2, 4, 5, 9, 10, and 18 have been rejected under 35 U.S.C.
§ 103 as allegedly being obvious over Tieftrunk et al. (US 2016/0057032;
published Feb. 25, 2016 (“Tieftrunk”)) in view of Deering et al. (US
6,313,838 B1; issued Nov. 6, 2001 (“Deering”)). Final Act. 14–29.
Claims 3 and 19 have been rejected under 35 U.S.C. § 103 as
allegedly being obvious over Tieftrunk and Deering, and in further view of
Jordan: “A Dynamically Linked Checkbox Matrix with Microsoft Excel,” 26
August 2013, https://optionexplicitvba.com/2013/08/26/adynamically-
linked-checkbox-matrix-with-microsoft-excel/, (“Jordan”) and NIGAM:
“Selecting/Deselecting All the CheckBoxes Inside a GridView,” May 2008,
https://www .codeproject.com/ Articles/23256/Selecting-Deselecting-all-the-
CheckBoxes-Inside-a, (“Nigam”). Final Act. 29–36.
Claim 6 has been rejected under 35 U.S.C. §103 as allegedly being
obvious over Tieftrunk and Deering, and in further view of Blumenberg et
al. (US 2013/0325343 A1; published Dec. 5, 2013 (“Blumenberg”)). Final
Act. 37–40.
Claim 7 has been rejected under 35 U.S.C. § 103 as allegedly being
obvious over Tieftrunk, Deering, and Blumenberg, and in further view of
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Stinson et al. (US 2012/0060177 A1; published Mar. 8, 2012 (“Stinson”)).
Final Act. 40–41.
Claim 8 has been rejected under 35 U.S.C. § 103 as allegedly being
obvious over Tieftrunk, Deering, and Blumenberg, in further view of
Goossen et al. (US 2014/0018979 A1; published Jan. 16, 2014 (“Goossen”)).
Final Act. 41–43.
Claims 11, 13, 14, and 17 have been rejected under 35 U.S.C. § 103 as
allegedly being obvious over Tieftrunk and Jordan. Final Act. 43–51.
Claim 12 has been rejected under 35 U.S.C. § 103 as allegedly being
obvious over Tieftrunk, Jordan, and Blumenberg, and further in view of
Nigam. Final Act. 52–53.
Claim 15 has been rejected under 35 U.S.C. § 103 as allegedly being
obvious over Tieftrunk, Jordan, and Blumenberg, and further in view of
Stinson. Final Act. 53–54.
Claim 16 has been rejected under 35 U.S.C. § 103 as allegedly being
obvious over Tieftrunk, Jordan, and Blumenberg, and further in view of
Deering. Final Act. 55–58.
Claim 20 has been rejected under 35 U.S.C. §103 as allegedly being
obvious over Tieftrunk and Deering, and further in view of Blumenberg and
Stinson. Final Act. 58–62.
The rejection of claims 1–20 is appealed.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
To the extent Appellant has not advanced separate, substantive arguments
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for particular claims, or other issues, such arguments are waived. 37 C.F.R.
§ 41.37(c)(1)(iv) (2017).
We have considered all of Appellant’s arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.
Rejection of Claim 10 under 35 U.S.C. § 112(b)
The Examiner rejects claim 10 as being indefinite for failing to
particularly point out and distinctly claim the subject matter which the
inventor or a joint inventor regards as the invention. Advisory Act. 2.
Specifically, the Examiner finds the “specification doesn't describe what the
structure of ‘receiver’ is. Receiver is not a part of HMI or memory.
Specification [0026] discloses that mission monitoring system includes a
‘receiver’ but no hardware for ‘receiver’ is disclosed.” Id.
Appellant advances no arguments concerning the rejection under 35
U.S.C. § 112, for dependent claim 10, and, thus, waives argument as to the
rejection of claim 10. See 37 C.F.R. § 41.37(c)(1)(iv). We, therefore,
summarily sustain the rejection. See 37 C.F.R. § 41.37(c)(1)(iv) (2017).
Rejection of Claims 11, 13–15, and 17 under 35 U.S.C. § 101
The Examiner finds that claims 11, 13–15, and 17 are directed to
patent-ineligible subject matter. The Examiner also “acknowledges that the
amendments to claim 11 satisfies the ‘significantly more’ requirement of 35
U.S.C. §101, and thus are sufficient to overcome the 35 U.S.C. §101
rejection of claims 11, 13-15, and 17.” Ans. 4. Nevertheless, the Examiner
states “[t]hough appellant included limitations of previously filed claim 16
and as a result the amended claim 11 would overcome 35 USC 101
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rejection, the amended claim 11 doesn’t overcome the prior art rejection of
amended claim 11. Id. (emphasis omitted). “This appeal is filed based on
the rejection of claims on the final office action mailed on rejection mailed
on 01/11/2018 but appellant is arguing about amended claim 11 filed during
after final response which is not entered. Thus appellant’s argument is not
persuasive.” Id.
Appellant advances no arguments concerning the rejections under 35
U.S.C. § 101, for either independent claim 11, or dependent claims 13–15,
and 17, as they exist prior to requested amendment to claim 11, and, thus,
waives argument as to the rejections of claims 11, 13–15, and 17. See 37
C.F.R. § 41.37(c)(1)(iv). We, therefore, summarily sustain the rejection.
See 37 C.F.R. § 41.37(c)(1)(iv) (2017); In re Baxter Int’l, Inc., 678 F.3d
1357, 1362 (Fed. Cir. 2012) (argument waived when not timely presented in
briefing to the Board, absent exceptional circumstances); In re Berger, 279
F.3d 975, 984–85 (Fed. Cir. 2002) (Board did not err in sustaining a
rejection under 35 U.S.C. § 112 ¶ 2 when the Examiner refused to enter an
Amendment filed with Appeal Brief and applicant failed to contest the
rejection as to the non-amended claims on appeal); MPEP § 1215.02 (9th
ed., Rev. 08.2017, eff. Jan. 2018) (“If a ground of rejection stated by the
examiner is not addressed in the appellant's brief, appellant has waived any
challenge to that ground of rejection and the Board may summarily sustain
it, unless the examiner subsequently withdrew the rejection in the examiner's
answer.”); id. § 1215.03 (“An appellant may, of course, choose not to
present arguments or rely upon particular evidence as to certain claim
rejections; however, such arguments and evidence are waived for purposes
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of the appeal and the Board may summarily sustain any grounds of
rejections not argued.”).
Rejection of Claims 1, 2, 4, 5, 9, 10, and 18 under 35 U.S.C. § 103
The Examiner finds that claims 1, 2, 4, 5, 9, 10, and 18 would have
been obvious over the combination of Tieftrunk and Deering. Final Act. 9–
14. Claim 1 recites “a performance monitor to provide graphical feedback
of the graphical rendering rate of the display system based on the selective
activation and deactivation of the plurality of graphical layers associated
with the plurality of graphical elements.” The Examiner finds Tieftrunk
teaches selectable activation or deactivation of graphical layers. Ans. 6.
The Examiner concedes Tieftrunk does not teach “providing graphical
rendering rate due to selectable activation of graphical layers.” Id. at 7.
However, the Examiner finds Deering teaches “the display with flickering or
flickering free display provides a graphical feedback of rendering rate. This
graphical rendering rate depends on number of polygons and number of
polygons changes based on the activation and deactivation of different
variant objects or graphical elements.” Id.
In the disclosure relied upon by the Examiner Deering states “the
rendering time is calculated” and may result in “reduc[ing] the number of
polygons.” Id. (citing Deering 25:13–40). “Graphical rendering” is not
mentioned. Id. Nevertheless, the Examiner finds “Deering teaches a
performance monitor to provide a graphical feedback (display with
flickering or not) of a graphical rendering rate of a display system that is
provided based on selective activation and deactivation of a plurality of
graphical elements.” Id. at 10 (citation omitted). In other words, the
Examiner relies on Deering’s teaching that a display will flicker (or not
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flicker) based on the rendering rate and whether polygons are selected in
rapid succession. Id. (citing Deering 26:47–49 (“This hysteresis may
advantageously prevent unwanted flickering that may occur if different
object variants for a particular general object are selected in rapid
succession.”)). The quoted section means Deering uses hysteresis to avoid
flickering by changing the object that is selected based on the rendering rate
and then not immediately changing back to a previous object even though
the rendering rate has improved. Deering 26:37–49.
Based on the above findings, the Examiner concludes
it would have been obvious for an ordinary skilled person in the
art before the effective filing date of the claimed invention to
have modified Tieftrunk to have included a performance
monitor to provide graphical rendering rate of the display
system based on the selective activation and deactivation of the
plurality of graphical layers associated with the plurality of
graphical elements similar to a performance monitor to provide
graphical feedback (display with flickering or not) of the
graphical rendering rate of a display system based on the
selective activation and deactivation of a plurality of graphical
elements as taught by Deering.
Ans. 11.
Appellant argues Deering provides a feature that attempts to prevent
flicker, rather than display a graphical feedback of graphical rendering rate.
Reply Br. 3. Appellant argues
flickering is not at affirmative function of the method of Deering
and is instead an undesired result stemming from the inability to
provide sufficient rendering. Thus, flickering of a display does
not actually show or determine a rendering rate. A ‘rate’ is
commonly defined as a numeric value that can be calculated or
measured representing a ratio between two things. Thus, to a
person of ordinary skill in the art, the rendering rate would be the
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numeric value of how many renders are performed over a given
period of time (i.e., renders per second).

Id. Appellant thus contends the Examiner reversibly erred in finding
Deering’s system to reduce flicker teaches monitoring to provide graphical
feedback of the graphical rendering rate. Id. Additionally, Appellant argues
“there is no teaching in Deering that the user is able to ascertain the actual
rendering rate of the system in a feedback manner, graphically or
otherwise.” Appeal Br. 11.
The Examiner finds a
[u]ser can ascertain graphical rendering rate based on display
with flickering or flickering free display. It is to note that
Argued limitation doesn’t have “actual rendering rate”. Claim
1 just recites graphical feedback of rendering rate. [F]lickering
with display or flickering free display provides graphical
feedback of rendering rate which is understood by a user.
Ans. 13.
The Examiner’s finding is not supported by the teachings of Deering
because the Examiner is reading Deering in an overly broad manner. We are
persuaded by Appellant’s reasonable contention that one of ordinary skill in
the art would have found the flickering in Deering to represent a problem
that the system was to fix, not a performance monitor for a user to observe
based on selectively activating or deactivating graphical layers associated
with the plurality graphical elements. Appeal Br. 11; Reply Br. 4.
Claim 18 recites “a performance monitor . . . to provide graphical
feedback of the graphical rendering rate of the display system.” For the
same reasons as above, Tieftrunk and Deering do not disclose graphical
feedback of the graphical rendering rate of the display system.
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Because we agree with at least one of the dispositive arguments
advanced by Appellant, we need not reach the merits of Appellant’s other
arguments. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir.
1984) (finding an administrative agency is at liberty to reach a decision
based on “a single dispositive issue”).
We, therefore, do not sustain the Examiner’s rejection of claims 1, 2,
4, 5, 9, 10, and 18 as obvious over Tieftrunk and Deering.
Rejection of Claims 3, 6, 7, 8, 19, and 20 under 35 U.S.C. § 103
The Examiner finds that claims 3, 6, 7, 8, 19, and 20 would have been
obvious. Final Act. 12–14. Claims 3, 6, 7, and 8 depend from claim 1, and
claims 19 and 20 depend from claim 18. See Appeal Br. 10–11. Because
we did not sustain the rejection of the independent claim, we do not sustain
the Examiner’s rejection of claims 3, 6, 7, 8, 19, and 20 as obvious.
Rejection of Claims 11–15 and 17 under 35 U.S.C. § 103
The Examiner finds that claims 11–15 and 17 would have been
obvious. Final Act. 12–14. Appellant does not separately address these
claims but relies on the amendment to add limitations from claim 16. See
Appeal Br. 10–11. As noted above, the Examiner did not enter the
amendment to claim 11. Thus, Appellant advances no arguments
concerning the rejections under 35 U.S.C. § 101, for independent claim 11
and dependent claims 12–15 and 17 that depend therefrom, and, thus, waives
argument as to the rejections of claims 1, 11, 13–15, and 17. See 37 C.F.R.
§ 41.37(c)(1)(iv). We, therefore, summarily sustain the rejection. See 37
C.F.R. § 41.37(c)(1)(iv) (2017).
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Rejection of Claim 16 under 35 U.S.C. § 103
The Examiner finds that claim 16 would have been obvious over the
combination of Tieftrunk, Deering, Blumenberg, and Goossen. Final Act.
9–14. Claim 1 recites “monitoring a graphical rendering rate of the display
system relative to at least one threshold associated with an acceptable range
of operation of the display system with respect to the graphical rendering
rate of the display system in a feedback manner in response to the selective
activation and deactivation of the plurality of graphical layers associated
with the plurality of graphical elements.” As to claim 16, Appellant and the
Examiner rely on the arguments and findings discussed regarding claim 1
above. Appeal Br. 21–22; Ans. 25. Jordan and Blumenberg are used by the
Examiner to teach limitations of independent claim 11 (Final. Act. 45–47),
not the additional limitation of claim 16. Final Act. 55–58. We, therefore,
do not sustain the Examiner’s rejection of claim 16 as obvious over
Tieftrunk, Deering, Blumenberg, and Goossen.
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CONCLUSION
We sustain the Examiner’s rejection of claim 10 under 35 U.S.C.
§ 112(b). We sustain the Examiner’s rejection of claims 11–15, and 17
under 35 U.S.C. § 101. We reverse the Examiner’s rejection of claims 1–10,
16, and 18–20 under 35 U.S.C. § 103(a). Because we have affirmed at least
one ground of rejection with respect to claims 10, 11–15, and 17 on appeal,
the Examiner’s decision rejecting claims 10, 11–15, and 17 is affirmed. See
37 C.F.R. § 41.50(a)(1) (“The affirmance of the rejection of a claim on any
of the grounds specified constitutes a general affirmance of the decision of
the [E]xaminer on that claim, except as to any ground specifically
reversed.”)
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
10 112(b) Indefiniteness 10
11, 13–15,
17
101 Eligibility 11, 13–
15, 17

1, 2, 4, 5,
9, 10, 18
103 Tieftrunk, Deering 1, 2, 4, 5,
9, 10, 18
3, 19 103 Tieftrunk,
Deering, Jordan,
Nigam
3, 19

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6 103 Tieftrunk,
Deering,
Blumenberg
6
7 103 Tieftrunk,
Deering,
Blumenberg,
Stinson
7
8 103 Tieftrunk,
Deering,
Blumenberg,
Goossen
8
11, 13, 14,
17
103 Tieftrunk, Jordan 11, 13,
14, 17

12 103 Tieftrunk, Jordan,
Blumerberg
12
15 103 Tieftrunk, Jordan,
Blumerberg,
Stinson
15
16 103 Tieftrunk, Jordan,
Blumenberg,
Deering
16
20 103 Tieftrunk,
Deering,
Blumenberg,
Stinson
20
Overall
Outcome
10, 11,
13–15, 17
1–9, 16,
18–20

AFFIRMED-IN-PART