IMMY Inc.Download PDFPatent Trials and Appeals BoardJul 2, 20212020002147 (P.T.A.B. Jul. 2, 2021) Copy Citation 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. 14/214,346 03/14/2014 Douglas Peter Magyari I1442.102.105 9048 25281 7590 07/02/2021 DICKE, BILLIG & CZAJA FIFTH STREET TOWERS 100 SOUTH FIFTH STREET, SUITE 2250 MINNEAPOLIS, MN 55402 EXAMINER SCHNIREL, ANDREW B ART UNIT PAPER NUMBER 2625 NOTIFICATION DATE DELIVERY MODE 07/02/2021 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): DBCLAW-Docket@dbclaw.com USPTO.PATENTS@dbclaw.com dmorris@dbclaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DOUGLAS PETER MAGYARI Appeal 2020-002147 Application 14/214,346 Technology Center 2600 Before JASON V. MORGAN, MICHAEL J. STRAUSS, and PHILLIP A. BENNETT, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1–10, 12, 13 and 15–21. See Final Act. 1 We refer to the Specification, filed March 14, 2014 as amended June 15, 2015 and September 28, 2015 (“Spec.”); Final Office Action, mailed November 29, 2018 (“Final Act.”); Appeal Brief, filed July 29, 2019 (“Appeal Br.”); Examiner’s Answer, mailed November 18, 2019 (“Ans.”); and Reply Brief, filed January 21, 2020(“Reply Br.”). 2 Appellant refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as IMMY INC. Appeal Br. 3. Appeal 2020-002147 Application 14/214,346 2 1. Claims 11 and 14 are canceled. Appeal Br. 15 (Claims App.) We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER The claims are directed to a head mounted display assembly with a structural frame and an outer frame. Spec., Title. Claim 1, reproduced below with labels added for ease of reference, formatting altered, and a disputed limitation emphasized in italics, is illustrative of the claimed subject matter: 1. A method for assembling a head mounted display in a manufacturing process, comprising: [(i)] providing a rigid structural frame; [(ii)] forming an inner optical assembly by assembling optical components to the structural frame including at least one micro- display configured to generate an image, and at least one reflective optical component configured to direct the image to a user’s eye, [(iii)] wherein the rigid structural frame defines one or more first datums and one or more second datums, [(iv)] wherein assembling the optical components to the rigid structural frame includes: [(a)] engaging portions of the at least one reflective optical component to the one or more first datums in order to facilitate accurate and dimensionally stable optical alignment of the at least one reflective optical component; and [(b)] engaging portions of the at least one micro- display to the one or more second datums in order to facilitate accurate and dimensionally stable optical alignment of the at least one micro-display; and [(v)(a)] assembling an outer frame to the inner optical assembly to provide protection for the optical components and customization of the head-mounted display for the user, the outer Appeal 2020-002147 Application 14/214,346 3 frame separate from the rigid structural frame, [(v)(b)] the structural frame has a higher elastic modulus than the outer frame sufficient to maintain the accurate and dimensionally stable optical alignment of the at least one reflective optical component and the at least one microdisplay, [(v)(c)] the assembling including receiving the structural frame into the outer frame and non-adjustably securing the outer frame to the structural frame. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Nanba US 5,663,833 Sept. 2, 1997 Mizoguchi US 6,084,555 July 4, 2000 Buchon US 2009/0268287 A1 Oct. 29, 2009 Magyari3 WO 2011/062591 A1 May 26, 2011 REJECTIONS The Examiner rejects claims 1–5, 8–10, 12, 13, 15–17, and 21 under 35 U.S.C. § 103(a) as obvious over the combined teachings of Mizoguchi, Buchon, and Magyari. Final Act. 3–17. The Examiner rejects claims 6, 7, and 18–20 under 35 U.S.C. § 103(a) as obvious over the combined teachings of Mizoguchi, Buchon, Magyari, and Nanba. Final Act. 17–21. 3 Magyari, WO 2011/062591 (PCT application PCT/US2009/065420), and its corresponding national phase U.S. application 13/510,423 (US 9,250,444 issued Feb. 2, 2016) are earlier applications by Douglas Peter Magyari, who is named as the inventor in the application now on appeal. Appeal 2020-002147 Application 14/214,346 4 STANDARD OF REVIEW 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). OPINION We have considered in this Decision only those arguments Appellant actually raised in the Briefs. Arguments not made are forfeited. See 37 C.F.R. § 41.37(c)(1)(iv) (2018). Examiner’s Findings and Appellant’s Contentions of Error The Examiner finds Mizoguchi’s spectacle type display device includes (a) image generating arrangement 2 teaching a rigid structural frame (claim element (i)) (Final Act. 3 citing Mizoguchi Fig. 1, col. 5, ll. 38–47); and (b) image generating unit 20 teaching the inner optical assembly (claim element (ii)) (id. citing Mizoguchi Figs. 1, 3, col. 5, ll. 38–47, col. 6, l. 46 – col. 7, l. 4, col. 10, l. 58 – col. 11, l.12). The Examiner further finds Mizoguchi’s description of the arrangement of frame and optical components teaches the assembly steps of claim elements (v)(a) and (v)(c). Id. (citing Mizoguchi Figs. 1, 3, col. 5, ll. 47–56, col. 6, l. 46 – col. 7, l. 4). The Examiner finds the datums of claim elements (iii) through (iv) are taught by Buchon’s binocular display device’s (a) ribs 14AN1, 14AN2 which position light guides 5A, 5B (first datum) and (b) a ridge portion of Buchon’s connector C which holds miniature display screen E1 in place (second datum). Id. at 4 (citing Buchon Figs. 1, 2, ¶¶ 26, 43, 52). Appeal 2020-002147 Application 14/214,346 5 In connection with disputed claim element (v)(b), the Examiner finds Magyari’s head mounted display device includes frame 10 that corresponds to the recited outer frame and primary transmission housing 40 that corresponds to the recited structural frame of claim 1. Id. at 5 (citing Magyari Figs. 2, 3, ¶¶ 30, 38). The Examiner finds Magyari’s disclosure of materials from which frame 10 and housing 40 can be manufactured teaches the recited elastic modulus relationship, as follows: Magyari et al. teaches the structural frame (Figure 2, Element 40. Paragraph 38) has a higher elastic modulus (Paragraphs 30 and 38. Magyari et al. discloses that the primary transmission housing (Element 40) is comprised of a light weight material such as a magnesium alloy. Magyari et al. further discloses that the frame (Element 10) can be made by a durable lightweight material such as PVC. A magnesium alloy will have a higher elastic modulus than [a] PVC . . . outer frame (Figure 2, Element 10[,] Paragraph 30) sufficient to maintain the accurate and dimensionally stable optical alignment of the at least one reflective optical component (Figures 2 and 3, Element 30. Paragraph 31) and the at least one micro-display (Figure 3, Element 20. Paragraph 35). Id. at 6. Appellant contends the rejection is improper, arguing the prior art fails to teach the recited elastic modulus relationship of the structural and outer frames. Appeal Br. 10–11. In particular, Appellant argues as follows: Magyari . . . discloses the exact same example materials for both elements 10 and 40 in respective paragraphs [0038] and [0030] and never discloses that elements 10 and 40 should or would ever have distinct high and low elastic modulus as specifically defined in independent claims 1, 12, and 21 to have the structural frame have a higher elastic modulus than the outer frame sufficient to maintain the accurate and dimensionally stable optical alignment Appeal 2020-002147 Application 14/214,346 6 of the at least one reflective optical component and the at least one micro-display. Id. at 11 (emphasis omitted). Appellant further argues Mizoguchi discloses using one material for both the outer and inner frames and that, to do otherwise, would significantly increase manufacturing costs. Id. The Examiner responds, as follows: Magyari et al. discloses embodiments for materials for both the housing and the frame. Nowhere in this disclosure does Magyari et al. disclose that the materials being used must be the same. The [A]ppellant is incorrectly adding language to the Magyari et al. reference that is simply not present. A person of ordinary skill in the art would readily recognize that given a list of materials for a given part, the part can be made of any material on the list. Ans. 26–27. Analysis Appellant’s contentions are persuasive of reversible Examiner error. Although Magyari discloses various materials from which primary transmission housing 40 and frame 10 can be manufactured, we find insufficient evidence of any teaching or suggestion of selecting those materials such that the limitations of disputed claim element (v)(b) are satisfied, i.e., that the structural frame has a higher elastic modulus than the outer frame sufficient to maintain the accurate and dimensionally stable optical alignment of the at least one reflective optical component and the at least one micro-display. Although we are not persuaded by Appellant’s argument that using different materials would increase costs so as to dissuade one skilled in the art from modifying Mizoguchi to make the outer and inner frames of different materials, neither does the Examiner explain Appeal 2020-002147 Application 14/214,346 7 why Magyari’s separate but identical listing of materials for transmission housing 40 and frame 10 teach or suggest the materials should be different such that the relative elastic modulus of each component meet the requirement of recitation (v)(b). That is, even if Magyari’s separate listings of materials teaches or suggests that housing 40 and frame 10 could be made of different materials, the Examiner fails to provide sufficient evidence or explanation to persuade us one skilled in the art would have selected the materials to effect a particular elastic modulus relationship ensuring it is “sufficient to maintain the accurate and dimensionally stable optical alignment” of optical components as required by claim element (v)(b). Because we agree with at least one of the arguments advanced by Appellant, we need not reach the merits of Appellant’s other arguments. Accordingly, we do not sustain the rejection of independent claim 1 or the rejection of independent claims 12 and 21, which include language similar to the argued limitation of claim 1. Nor do we sustain the rejection of dependent claims 2–10, 13 and 15–20, which stand with their respective base claims. CONCLUSION We reverse the Examiner’s rejection of claims 1–5, 8–10, 12, 13, 15– 17, and 21 under 35 U.S.C. § 103(a) as obvious over the combined teachings of Mizoguchi, Buchon, and Magyari. We reverse the Examiner’s rejection of claims 6, 7, and 18–20 under 35 U.S.C. § 103(a) as obvious over the combined teachings of Mizoguchi, Buchon, Magyari, and Nanba. Appeal 2020-002147 Application 14/214,346 8 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–5, 8–10, 12, 13, 15– 17, 21 103(a) Mizoguchi, Buchon, Magyari 1–5, 8–10, 12, 13, 15– 17, 21 6, 7, 18–20 103(a) Mizoguchi, Buchon, Magyari, Nanba 6, 7, 18–20 Overall Outcome 1–10, 12, 13, 15–21 REVERSED Copy with citationCopy as parenthetical citation