Gentex Corporation

Patent Trials and Appeals Board

May 19, 2021

2020001364 (P.T.A.B. May. 19, 2021)

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.
15/189,371 06/22/2016 Tom B. Sherman AUTO 01820US
GEN010 P827A
6463
28469 7590 05/19/2021
GENTEX CORPORATION
600 NORTH CENTENNIAL STREET
ZEELAND, MI 49464
EXAMINER
LIU, GORDON G
ART UNIT PAPER NUMBER
2612
NOTIFICATION DATE DELIVERY MODE
05/19/2021 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):
ptomail@priceheneveld.com
uspto@gentex.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte TOM B. SHERMAN, DANIEL G. McMILLAN,
DALE M. RADCLIFF, IGOR MAJDANDZIC, and
GREGORY S. BUSH
________________

Appeal 2020-001364
Application 15/189,371
Technology Center 2600
_______________

Before ERIC S. FRAHM, JOYCE CRAIG, and
MICHAEL T. CYGAN, Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the final rejection
of claims 1–13, 15–18, and 20, which constitute all pending claims on

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42 (2019). “The word ‘applicant’ when used in this title refers
to the inventor or all of the joint inventors, or to the person applying for a
patent as provided in §§ 1.43, 1.45, or 1.46.” 37 C.F.R. § 1.42(a). Appellant
identifies Gentex Corporation as the real party in interest (Appeal Br. 2).
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appeal. Claims 14 and 19 have been canceled. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

DISCLOSED AND CLAIMED INVENTION
Appellant’s disclosed invention, entitled System and Method for
Processing Streamed Video Images to Correct for Flicker of Amplitude-
Modulated Lights (see Title), “generally relates to processing of video
images streamed to a display, and more specifically to processing of
streamed video images of scenes exterior to a vehicle” (Spec. ¶ 2). And,
more specifically, some embodiments pertain to “processing of video images
obtained from a rearward facing camera in a vehicle that are streamed to a
display serving as a replacement for a rearview mirror” (Spec. ¶ 2; see Figs.
3, 4).
Appellant claims a “display system” (claims 1, 11), and a “method of
processing streamed video images” (claim 17), for detecting amplitude-
modulated light sources in streamed video images, classifying the detected
light sources into two classes, and processing the detected light sources
differently based upon the classification in order to correct for light source
flicker when displaying streamed video images (see claims 1, 11, 17). Claim
1 is illustrative of the claimed subject matter:
1. A display system for a vehicle equipped with a
camera for supplying streamed video images of a scene
rearward of the vehicle, the display system comprising:
an image processing unit for receiving the streamed
video images and processing the streamed video images; and
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a display for displaying the processed streamed video
images,
wherein to perform processing of the streamed video
images, the image processing unit is configured to:
detect amplitude-modulated light sources in the
streamed video images,
classify the detected amplitude-modulated light
sources into one of several possible classifications, and
process the detected amplitude-modulated light
sources differently based upon the classification of the
amplitude-modulated light source including:
select the streamed video images in which an
amplitude-modulated light source is detected that
flickers based upon the classification of the
amplitude- modulated light source, and
modify the selected streamed video images to
correct for flicker of any amplitude-modulated light
sources in the selected streamed video images.

Claims Appendix, 1 (emphases added).

REJECTIONS
The Examiner made the following rejections:
(1) Claims 1–7, 9, and 10 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Yanagi (JP 2009/214795 A; published Sept. 24,
2009), Rast (US 2002/0105423 A1; published Aug. 8, 2002), and Stein et al.
(US 2007/0221822 A1; published Sept. 27, 2007) (hereinafter, “Stein”).
Final Act. 8–18.
(2) The Examiner rejected claims 8 and 11–13, 15–18, and 20 under
35 U.S.C. § 103 as being unpatentable over the combination of Yanagi, Rast,
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Stein, and Voronov et al. (US 2006/0054783 A1; published Mar. 16, 2006)
(hereinafter, “Voronov”).2 Final Act. 18–29.

ISSUE
Based on Appellant’s arguments in the Appeal Brief (Appeal Br. 5–
35) and Reply Brief (Reply Br. 2–3), the following principal issue is
presented on appeal:
Did the Examiner err in rejecting claims 1–13, 15–18, and 20 under
35 U.S.C. § 103 as being unpatentable over the base combination of Yanagi,
Rast, and Stein, because there is not proper motivation to combine Yanagi,
Rast, and Stein?

ANALYSIS
We have reviewed the Examiner’s rejection (see Final Act. 8–29) in
light of Appellant’s arguments that the Examiner has erred (see Appeal Br.
5–35; Reply Br. 2–3), as well as the Examiner’s response to Appellant’s
arguments in the Appeal Brief (see Ans. 3–7). Appellant’s contentions that
the Examiner has not provided a sufficient motivation to combine Yanagi,
Rast, and Stein (see Appeal Br. 10–14; Reply Br. 2) are persuasive. We
provide the following explanation for emphasis.

2 Although the Examiner lists claims 14 and 19 as being rejected in the
heading of the statement of the rejection at page 18 of the Final Rejection,
claims 14 and 19 have been canceled, are not addressed in the body of the
rejection (see Final Act. 18–29), and Appellant recognizes that claims 14
and 19 are not rejected in the Appeal Brief (see Appeal Br. 16). Therefore,
we consider this to be harmless error.
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“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007); see
also Metalcraft of Mayville, Inc., v. The Toro Co., 848 F.3d 1358, 1367
(2017) (Fed. Cir. 2017) (“Without any explanation as to . . . why the
references would be combined to arrive at the claimed invention, we are
left with only hindsight bias that KSR warns against. . . . [W]e cannot
allow hindsight bias to be the thread that stitches together prior art patches
into something that is the claimed invention.”). Further, the USPTO “must
examine the relevant data and articulate a satisfactory explanation for its
action including a rational connection between the facts found and the
choice made” and that articulation requirement “appl[ies] with equal force to
the motivation to combine analysis.” In re Nuvasive, Inc., 842 F.3d 1376,
1382–83 (Fed. Cir. 2016). “The factual inquiry whether to combine
references must be thorough and searching and the need for specificity
pervades our authority on the findings on motivation to combine.” Id. at
1381–82 (internal quotation marks and citation omitted). When “motivation
to combine . . . is disputed,” USPTO “must articulate a reason why a
PHOSITA would combine the prior art references.” Id. We will not resort
to speculation or assumptions to cure deficiencies in the Examiner’s fact
finding or reasoning. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967).
In the case before us, we find the Examiner’s logic to be conclusory
and unsupported by the evidence of record (see Final Act. 9–13; Ans. 4–5).
Although we agree with the Examiner’s findings that (i) Yanagi corrects
flicker of pulse width modulated signals shown on a car display for a rear
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mounted camera (see Final Act. 9–11); Rast modulates brake lights based on
brake pedal pressure (see Final Act. 11); and (iii) Stein classifies light
sources for different processing based on whether headlights are detected
(see Final Act. 12), such findings still do not support a conclusion that it
would have been obvious to detect amplitude-modulated light sources in
streamed video images, classify the detected light sources into two classes,
and process the detected light sources differently based upon the
classification in order to correct for light source flicker when displaying
streamed video images, as recited in claims 1, 11, and 17.3 And, as
Appellant contends, Rast and Stein do not display images and are “not
concerned with the appearance of flickering light sources” (Appeal Br. 7).
“The mere fact that the prior art may be modified in the manner
suggested by the Examiner does not make the modification obvious unless
the prior art suggested the desirability of the modification.” In re Fritch,
972 F.2d 1260, 1266 (Fed. Cir. 1992) (citing In re Gordon, 733 F.2d 900,
902 (Fed. Cir. 1984)). “It is impermissible to use the claimed invention as
an instruction manual or ‘template’ to piece together the teachings of the
prior art so that the claimed invention is rendered obvious.” Fritch, 972 F.2
at 1266 (citing In re Gorman, 933 F.2d 982, 987 (Fed. Cir. 1991)).
In this case, the Examiner concludes (i) it would have been obvious
“to modify Yanagi to have classify the detected amplitude-modulated light

3 The Examiner relies upon Yanagi for detecting and eliminating flicker in
modulated light sources and Rast for classifying modulated light sources
(see Final Act. 9–12; Ans. 4–5), and Stein for processing detected modulated
light sources differently based on classifications of the light sources (see
Final Act. 12–13).

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sources into one of several possible classifications as taught by Rast in order
to provide a reaction time advantage to drivers” (Final Act. 11 citing Rast
¶ 5); and (ii) “[t]he motivation to modify Yanagi by Rast is ‘Simple
substitution of one known element for another to obtain predictable results’”
(Final Act. 12; Ans. 5).
The Examiner also concludes (i) it would have been obvious “to
modify Yanagi to have process the detected amplitude-modulated light
sources differently based upon the classification of the amplitude-modulated
light source including as taught by Stein in order to provide a signal,
specifically with image frames 15 available for use by a number of vehicle
control applications” (Final Act. 12 citing Stein ¶ 12); and (ii) “[t]he
motivation to modify Yanagi by Stein is ‘Simple substitution of one known
element for another to obtain predictable results’” (Final Act. 12).
The Examiner’s statement that it would have been obvious to modify
Yanagi with Rast in order to provide a reaction time advantage to drivers
(Final Act. 11 citing Rast ¶ 5) is not adequate, as neither Rast nor Stein are
concerned with displaying streamed video images from a camera to a display
in a vehicle and improving the appearance of the streamed video to a vehicle
occupant. Similarly, the Examiner’s determinations that the motivation to
modify Yanagi with Rast and Stein is a simple substitution of known
elements for others to obtain predictable results (see Final Act. 12; Ans. 5)
do not specifically address how or why a person of ordinary skill in the art
would employ brake pedal modulation based on brake pedal pressure (as in
Rast), and oncoming headlight detection (as in Stein) in the display system
of Yanagi for correcting for light flicker. As such, the Examiner’s
articulated rationale consists of general statements that does not “articulate a
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reason why a PHOSITA would combine the prior art references.” See
Nuvasive, 842 F.3d at 1382. As a result, the Examiner has not provided
“some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness,” as required by KSR. See KSR, 550 U.S. at
418.
In view of the foregoing, Appellant’s arguments that the Examiner
relies upon speculation and impermissible hindsight in modifying Yanagi
with Rast and Stein (see Reply Br. 2) are persuasive. Because the Examiner
fails to provide sufficient support for the legal conclusion of obviousness,
we are constrained by the record to reverse the Examiner’s rejections of
claims 1–13, 15–18, and 20 over the base combination of Yanagi, Rast, and
Stein. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (we will not
resort to speculation or assumptions to cure deficiencies in the Examiner’s
fact finding or reasoning).

CONCLUSION
For the reasons explained above, we do not sustain the rejections of
claims 1–13, 15–18, and 20 under 35 U.S.C. § 103 as being unpatentable
over the base combination of Yanagi, Rast, and Stein.
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 9, 10 103 Yanagi, Rast, Stein 1–7, 9, 10
8, 11–13, 15–
18, 20
103 Yanagi, Rast, Stein,
Voronov
8, 11–13,
15–18, 20
Overall
Outcome
1–13, 15–
18, 20
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REVERSED