2018006840 (P.T.A.B. May. 28, 2020)

Norman Weyrich

Patent Trials and Appeals BoardMay 28, 2020

2018006840 (P.T.A.B. May. 28, 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. 14/904,065 01/08/2016 Norman WEYRICH HARM0501PUSA 7344 109676 7590 05/28/2020 Brooks Kushman P.C./Harman 1000 Town Center Twenty Second Floor Southfield, MI 48075 EXAMINER DOAN, PHUC N ART UNIT PAPER NUMBER 2619 NOTIFICATION DATE DELIVERY MODE 05/28/2020 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@brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte NORMAN WEYRICH ________________ Appeal 2018-006840 Application 14/904,065 Technology Center 2600 ________________ Before JOHN A. EVANS, JASON J. CHUNG, and MATTHEW J. McNEILL, Administrative Patent Judges. CHUNG, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection of claims 1–10, 15, 19, and 20.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. INVENTION The invention relates to image layer composition. Spec. ¶ 1. Claim 1 is illustrative of the invention and is reproduced below: 1. A method for image layer composition, comprising: 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. According to Appellant, Harman International Industries, Inc. is the real party in interest. Appeal Br. 1. 2 According to the Amendment filed on July 21, 2017, claims 11–14 and 16– 18 have been cancelled. Appeal 2018-006840 Application 14/904,065 2 detecting whether a plurality of computing devices of a computing system with a processor have available resources for performing image layer composition; receiving a plurality of image layers; and controlling with the processor, at least one computing device detected having the available resources for performing image layer composition to compose the plurality of image layers, detecting whether the plurality of image layers are required to be composed prior to detecting whether the plurality of computing devices of the computing system have the available resources; and detecting information corresponding to the plurality of image layers in frame buffers within a predetermined time interval to detect whether the plurality of image layers are required to be composed, wherein the predetermined time interval is based on a refresh rate of a display. Appeal Br. 1 (Claims Appendix) (emphasis added). REJECTIONS3,4 The Examiner rejects claims 1, 3–6, 8–10, 15, 19, and 20 under 35 U.S.C. § 103 as being unpatentable over the combination of Mak-Fan 3 Claim 1, a method claim, recites “whether” multiple times. We note that this language may be conditional. In the event of further prosecution, the Examiner may want to evaluate whether claim 1 invokes Ex parte Schulhauser, No. 2013-007847, 2016 WL 6277792 (PTAB Apr. 28, 2016) (precedential). We note that Schulhauser only applies to the method claims. 4 In the event of further prosecution, the Examiner may want to evaluate whether claims 1, 6, and 20 recite intended use limitations and carry little patentable weight. For example, claims 1, 6, and 20 recite “to compose the plurality of image layers” and “to detect whether the plurality of image layers are required to be composed.” Appeal 2018-006840 Application 14/904,065 3 (US 2013/0069981 A1; published Mar. 21, 2013) and Gonzalez (US 2008/0211816 A1; published Sept. 4, 2008). Final Act. 3–7. The Examiner rejects claims 2 and 7 under 35 U.S.C. § 103 as being unpatentable over the combination of Mak-Fan, Gonzalez, and Margulis (US 2013/0016032 A1; published Jan. 17, 2013). Final Act. 7–9. ANALYSIS The Examiner finds Mak-Fan teaches application A and application B have a graphical component including surfaces that are to be displayed, which the Examiner maps to the limitation “detecting information corresponding to the plurality of image layers in frame buffers . . . to detect whether the plurality of image layers are required to be composed” recited in claim 1 (and similarly recited in claims 6 and 20). Ans. 4 (citing Mak-Fan ¶¶ 17, 33, 58; Figs. 1–2). The Examiner finds Gonzalez teaches accessing a video buffer to compose an output of video data during each screen refresh cycle, which the Examiner maps to the limitation “within a predetermined time period . . . the plurality of image layers . . . to be composed” recited in claim 1 (and similarly recited in claims 6 and 20). Ans. 4–5 (citing Gonzalez ¶¶ 47–49, 52, 53, 63, 68, 69). The Examiner concludes a person having ordinary skill in the art at the time of the invention (hereinafter “PHOSITA”) would have combined Mak-Fan’s detecting and controlling the composition of a plurality of image surfaces/layers and Gonzalez’s composition of video data within a predetermined time to provide a seemless video signal. Ans. 5; Final Act. 5–7 (citing Gonzalez ¶ 44). Appellant argues Gonzalez fails to teach the italicized limitation on page 2 above because Gonzalez merely teaches already ordered video data components and there is no assessment of whether images are required to be Appeal 2018-006840 Application 14/904,065 4 composed after detecting information corresponding to image layers within a predetermined time interval. Appeal Br. 4–6 (citing Gonzalez ¶¶ 52, 53, 63, 68); Reply Br. 2–3 (citing Gonzalez ¶¶ 47–49). Appellant argues the Examiner’s conclusion to combine Mak-Fan and Gonzalez is based on improper hindsight reasoning. Reply Br. 3–4; Appeal Br. 6–7. Regarding Appellant’s first argument, one cannot show nonobviousness “by attacking references individually” where the rejections are based on combinations of references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). In this case, the Examiner relies on Mak-Fan to teach application A and application B have a graphical component including surfaces that are to be displayed, which teaches or at least suggests the limitation “detecting information corresponding to the plurality of image layers in frame buffers . . . to detect whether the plurality of image layers are required to be composed” recited in claim 1 (and similarly recited in claims 6 and 20). Ans. 4 (citing Mak-Fan ¶¶ 17, 33, 58; Figs. 1–2). We disagree with Appellant’s improper hindsight argument above. Appellant has not provided persuasive evidence that combining the respective teachings of the references (as concluded by the Examiner — Ans. 5; Final Act. 5 (citing Gonzalez ¶ 44)) would have been “uniquely challenging or difficult for one of ordinary skill in the art,” or that such a combination would have “represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Nor has Appellant provided any objective evidence of secondary considerations, which, as our reviewing court explains, “operate[] as a beneficial check on hindsight.” Cheese Systems, Inc. v. Tetra Pak Cheese Appeal 2018-006840 Application 14/904,065 5 and Powder Systems, Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013). In this case, the Examiner concludes a PHOSITA would have combined Mak-Fan’s detecting and controlling the composition of a plurality of image surfaces/layers and Gonzalez’s composition of video data within a predetermined time to provide a seemless video signal. Ans. 5; Final Act. 5–7 (citing Gonzalez ¶ 44). We, therefore, find the Examiner has set forth sufficient “articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. at 418 (quoting In re Kahn, 441 F.3d at 988). Appellant does not argue claims 2–10, 15, 19, and 20 separately with particularity. Appeal Br. 3–8; Reply Br. 1–5. Accordingly, we discern no error in the Examiner’s findings and conclusions for at least the reasons articulated above. We, therefore, sustain the Examiner’s rejection of: (1) independent claims 1, 6, and 20; and (2) dependent claims 2–5, 7–10, 15, and 19 under 35 U.S.C. § 103. We have only considered those arguments that Appellant actually raised in the Briefs. Arguments Appellant could have made, but chose not to make, in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2017). Appeal 2018-006840 Application 14/904,065 6 CONCLUSION No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–6, 8– 10, 15, 19, 20 103 Mak-Fan, Gonzalez 1, 3–6, 8– 10, 15, 19, 20 2, 7 103 Mak-Fan, Gonzalez, Margulis 2, 7 Overall Outcome 1–10, 15, 19, 20