Sony Corporation

Patent Trials and Appeals Board

May 28, 2020

2019003970 (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.
15/656,691 07/21/2017 Thomas Dawson 201705764.01 4511
36738 7590 05/28/2020
ROGITZ & ASSOCIATES
4420 Hotel Circle Court
SUITE 230
SAN DIEGO, CA 92108
EXAMINER
HAIEM, SEAN N
ART UNIT PAPER NUMBER
2422
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):
John@rogitz.com
Noelle@rogitz.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte THOMAS DAWSON and STEVEN RICHMAN
____________________

Appeal 2019-003970
Application 15/656,691
Technology Center 2400
____________________

Before ROBERT E. NAPPI, LARRY J. HUME, and
JULIET MITCHELL DIRBA, Administrative Patent Judges.

DIRBA, Administrative Patent Judge.

DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 seeks review of the
Examiner’s rejection of claims 1–20. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.

1 This Decision uses the following abbreviations: “Spec.” for the original
Specification, filed July 21, 2017; “Final Act.” for the Final Office Action,
mailed Feb. 7, 2019; “Appeal Br.” for Appellant’s Appeal Brief, filed Feb.
20, 2019; “Ans.” for Examiner’s Answer, mailed Apr. 8, 2019; and “Reply
Br.” for Appellant’s Reply Brief, filed Apr. 23, 2019.
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, the real party in interest is Sony
Corp. Appeal Br. 2.
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BACKGROUND
Appellant’s disclosed embodiments and claimed invention relate to a
projector screen with a multichromic filtering coating. Spec. 1–2. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
l. An assembly comprising:
at least one substrate against which color video can be
projected by a projector, the substrate comprising pixels
actuatable to establish grayscale values on the substrate; and
at least one multichromic filtering coating disposed on the
substrate, the multichromic filtering coating comprising
molecules passing to the substrate only those wavelengths
produced by the projector.
Appeal Br. 11 (Claims App.).
RELATED APPEALS
Appellant identifies no related appeals (Appeal Br. 2), but the Board
is aware of one appeal that may be related. A notice of appeal was filed in
copending Application No. 15/656,495, Appeal No. 2019-000464.3 In our
Decision mailed May 26, 2020, we reversed the Examiner’s rejection.
REJECTIONS
R1. Claims 1–4 and 7–20 stand rejected under the judicially-created
doctrine of non-statutory obviousness-type double patenting as being

3 Both Application No. 15/656,495 and the instant application: were filed
on the same date with similar specifications, name the same inventors, list
the same real party in interest, and are being prosecuted by the same patent
attorney. See 37 C.F.R. § 41.37(c)(1)(ii) (defining related appeals).
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unpatentable over claims 1–4 and 7–20 of Application No. 15/656,495.
Final Act. 7.
R2. Claims 1–2, 5, and 7–11 stand rejected under 35 U.S.C.
§ 102(a)(1) as anticipated by Weng (US 2007/0040989 A1, published
Feb. 22, 2007). Final Act. 8–12.
R3. Claim 3 stands rejected under 35 U.S.C. § 103 as obvious over
Weng and Osterhout (US 2015/0309316 A1, published Oct. 29, 2015).
Final Act. 12–13.
R4. Claim 4 stands rejected under 35 U.S.C. § 103 as obvious over
Weng and Yamaguchi (US 2017/0269360 A1, published Sept. 21, 2017).
Final Act. 13.
R5. Claims 6, 12–13, and 16–17 stand rejected under 35 U.S.C.
§ 103 as obvious over Weng and Destain (US 2010/0097699 A1, published
Apr. 22, 2010). Final Act. 14–16.
R6. Claim 14 stands rejected under 35 U.S.C. § 103 as obvious over
Weng, Destain, and Osterhout. Final Act. 16–17.
R7. Claim 15 stands rejected under 35 U.S.C. § 103 as obvious over
Weng, Destain, and Yamaguchi. Final Act. 17.
R8. Claims 18–20 stands rejected under 35 U.S.C. § 103 as obvious
over Weng, Destain, and Hajjar (US 2007/0014318 A1, published
Jan. 18, 2007). Final Act. 17–19.
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).
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To the extent Appellant has not advanced separate, substantive arguments
for particular claims, or other issues, such arguments are waived. 37 C.F.R.
§ 41.37(c)(1)(iv).
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.
Obviousness-Type Double Patenting Rejection R1 of Claims 1–4 and 7–20
The Examiner provisionally rejected claims 1–4 and 7–20 on the
ground of non-statutory obviousness-type double patenting (OTDP) as being
unpatentable over claims 1–4 and 7–20 of co-pending Application No.
15/656,495. Final Act. 7. The Examiner found that “the claims are very
similar with the exception of the wording ‘reflecting’ versus ‘filtering,’”4 but
that both “creat[e] a viewable image by filtering/reflecting specific
wavelengths for specific colors to form on the substrate” and, thus, “provide
the same function in light of the specification.” Id.
Appellant argues that this rejection should be reversed because “no
prima facie case of [OTDP] has been made.” Appeal Br. 4. In support,
Appellant contends that “no actual claim interpretation appears on the record

4 For context, the only difference between claim 1 of the instant application
and claim 1 of the ’495 application is the use of the phrase “passing to the
substrate” in place of the term “reflecting.” Compare Appeal Br. 11 (Claims
App.), with US Application No. 15/656,495, Appeal No. 2019-000464,
Appellant’s Appeal Brief (Claims App.). Both claims recite a “substrate
against which color video can be projected by [a] projector” and “a
multichromic . . . coating disposed on the substrate” that selectively
passes/reflects “only those wavelengths produced by the projector.” We
understand the Examiner and Appellant to use “filtering” to refer to the
claim phrase “passing to the substrate.” See Final Act. 7; Appeal Br. 3–4.
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and no actual citation to the instant specification to support the equivalence
appears in the rejection.” Id. However, Appellant does not respond to the
substance of the Examiner’s rejection.
Appellant’s arguments do not persuade us of error because the
Examiner established a prima facie case. “[T]he prima facie case is merely a
procedural device that enables an appropriate shift of the burden of
production.” Hyatt v. Dudas, 492 F.3d 1365, 1369–70 (Fed. Cir. 2007). It
requires the Examiner to set forth the basis for a rejection and “adequately
explain[] the shortcomings it perceives [in the application] so that the
applicant is properly notified and able to respond.” Id.; see also In re Jung,
637 F.3d 1356, 1362 (Fed. Cir. 2011) (explaining that a prima facie case is
not established when a rejection “is so uninformative that it prevents the
applicant from recognizing and seeking to counter the grounds for
rejection”). In the Final Office Action, the Examiner identified the basis for
the rejection and provided an explanation that was sufficient to enable
Appellant to substantively respond.
Moreover, we perceive no reversible error in the Examiner’s OTDP
rejection. “Obviousness-type double patenting is a judge-made doctrine that
prevents an extension of the patent right beyond the statutory time limit.” In
re Berg, 140 F.3d 1428, 1431 (Fed. Cir. 1998). The ODTP inquiry asks
whether the instant claims define “merely an obvious variation of” the
claims of the ’495 application. In re Goodman, 11 F.3d 1046, 1052 (Fed.
Cir. 1993). We agree with the Examiner (see Final Act. 7) that, in the
context of the Specification, “passing to the substrate” (or “filtering”) is an
obvious variation of “reflecting.” Indeed, as indicated by the Examiner (see
id.), the Specification describes “filtering” and “reflecting” as two sides of
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the same coin. See, e.g., Spec. 1 (“As understood herein, selective
reflectivity of light from the eScreen can be enhanced using multichromic
particles coated onto the eScreen.”), 19 (“The coating material and thickness
are established to selectively pass to the substrate 602 only those
wavelengths produced by the projector, to accentuate selective wavelengths
of light to be reflected.”); compare id. at 20 (“Moving to block 702,
multichromic material is selected for the coating 600 that best passes to the
projector screen substrate the wavelengths identified at block 700 . . . .”),
with Fig. 7, item 702 (“Select coating best reflecting projector
wavelengths.”) (emphases added).
Accordingly, we are not persuaded of error in the Examiner’s
conclusion that the instant application’s claims are not patentably distinct
over the cited claims of the ’495 application. As a result, we affirm the
Examiner’s OTDP rejection R1 of claims 1–4 and 7–20.
Anticipation Rejection R2 of Claims 1–2, 5, and 7–11
Claims 1–2, 5, and 7–11 stand rejected under 35 U.S.C. § 102(a)(1) as
anticipated by Weng. Final Act. 8–12. Appellant presents arguments for
independent claims 1 and 7 and dependent claims 9 and 11. We address
each claim in turn.
Claim 1
Claim 1 recites a “substrate against which color video can be
projected by at least one projector,” where the “substrate compris[es] pixels
actuatable to establish grayscale values on the substrate.” Appeal Br. 11
(Claims App.). Claim 1 further recites a coating disposed on the substrate
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that “pass[es] to the substrate only the wavelengths of light produced by the
projector.” Id. (referred to in this Decision as the “passing limitation”).
The Examiner found Weng discloses all limitations of claim 1. Final
Act. 8–10 (citing Weng at Figs. 1, 3, ¶¶ 16–18, 25–27, 44).5 In particular,
the Examiner found Weng’s reflective layer 142 teaches the claimed
“coating.” Id. at 9–10; see id. at 3–4. For the claimed “substrate,” the
Examiner points to Weng’s screen 12, onto which grayscale component 24
is projected. Id. at 8–9; see id. at 2–3. As to the passing limitation, the
Examiner states:
(0016) noted that “screen 12 to selectively reflect and absorb
ambient light and light 22 from projector 14 based upon the
color or chrominance component of the image[.”] Also (0027)
as shown by FIG. 3, for each pixel 220, reflective layer 142 is
partitioned or divided into distinct reflectors 142a, 142b and
142c. Reflectors 142a, 142b and 142c are configured to reflect
distinct colors or wavelengths of visible light such as red, green
and blue or such as cyan, magenta and yellow colored light,
respectively (If more detailed desired see (0044)).
Final Act. 9 (emphasis omitted) (citing Weng ¶¶ 16, 27, 44); see id. at 3–4.
Appellant presents several arguments on appeal. First, Appellant
argues that Weng fails to disclose “pixels that are actuatable to establish
grayscale values on the substrate,” as required by claim 1, because grayscale
component 24 of Weng “is a component of image data” and “not a physical

5 According to Appellant, the Examiner relies upon two “different”
embodiments in the rejection. See Appeal Br. 6 (identifying Figures 3–5 as
a “different embodiment”). Appellant identifies (and we perceive) no error
in the Examiner’s reference to both the general system (with screen 12 and
projector 14, as illustrated in Figure 1) and a specific embodiment of it (as
illustrated in Figure 3). See Weng ¶ 25 (Figures 3–5 illustrate details of a
screen 112, which is “a particular embodiment of screen 12.”).
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thing.” Appeal Br. 4–5. The Examiner responds that screen 12 is
“physical,” and it includes “pixels” as well as “the substrate and the layers
on the substrate.” Ans. 4–5; see also Final Act. 2–3 (explaining projector 14
projects greyscale light onto screen 12), 8 (identifying screen 12 as the
“substrate”). The Examiner further explains that “the substrate is controlled
to selectively[,] per pixel[,] either accept the greyscale light in each color
which passes to the substrate and reflect to a viewer, or the substrate is
controlled to reject the greyscale light in each color which is absorbed and
not reflected.” Ans. 5; see also Final Act. 3. Appellant replies that the
Answer “evades Appellant’s observation . . . that the element 24 of Weng is
not a substrate with pixels” (Reply Br. 2) and asserts, without support or
explanation, that the Examiner’s further explanation is incorrect (id. at 4).
Appellant’s arguments do not persuade us of error because they fail to
address the rejection as articulated. The Examiner found that screen 12, not
grayscale component 24, teaches the claimed “substrate.” The Examiner
referenced component 24 to support his finding that screen 12 (the substrate)
includes “pixels that are actuatable to establish grayscale values on the
substrate,” as required by claim 1. Appellant fails to directly respond to the
Examiner’s actual findings.6 See generally Reply. Br. 2–4. Accordingly, we

6 Appellant includes accusations of “misrepresentation” and “incoherence”
and makes other inflammatory comments. See, e.g., Reply Br. 2–3. We
disagree with Appellant’s characterizations. Also, such comments do not
serve to persuade us of the merits of Appellant’s substantive arguments.
Further, we remind Appellant that “Applicants and their attorneys or agents
are required to conduct their business with the United States Patent and
Trademark Office with decorum and courtesy.” 37 C.F.R. § 1.3.
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are not persuaded by Appellant’s argument that Weng fails to disclose the
substrate required by claim 1.
Second, Appellant argues that Weng’s reflective layer 142 does not
disclose the passing limitation because it reflects “substantially all light
without substantially filtering or absorbing light.” Appeal Br. 6–7 (quoting
Weng ¶ 26). Appellant also argues that Weng’s paragraphs 16–18 fail to
teach the passing limitation. Id. at 5–6; see Reply Br. 4.
These arguments also do not persuade us of error because Appellant
fails to address the rejection as articulated, which relied on reflectors 142a,
142b, and 142c in reflective layer 142 (as described in paragraph 27) to
teach the passing limitation. See Final Act. 4, 9 (citing Weng ¶ 27);
Ans. 6–7. As the Examiner found, Weng’s paragraph 27 teaches that
reflectors 142a, 142b, and 142c reflect only selected wavelengths of light
from the projector. Final Act. 4, 9; Ans. 6–7; see Weng ¶ 27. Appellant
fails to address this teaching of Weng (see Appeal Br. 5–7; Reply Br. 4–6)
and, consequently, fails to show error in the Examiner’s finding that it
discloses the passing limitation.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner’s reliance on the cited prior art to
disclose the disputed limitations of claim 1, nor do we find error in the
Examiner’s resulting finding of anticipation. Accordingly, we sustain the
Examiner’s anticipation rejection of independent claim 1.
Claims 7 and 9
For independent claim 7 and dependent claim 9 (which depends from
claim 7), Appellant relies upon arguments presented for claim 1. Appeal
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Br. 5–7; Reply Br. 4–6. These arguments, however, are not persuasive for
the reasons discussed above. Consequently, Appellant’s arguments do not
show error in the Examiner’s factual findings that claims 7 and 9 are
anticipated.
Accordingly, we sustain the Examiner’s anticipation rejection of
independent claim 7 and dependent claim 9.
Claims 2, 5, 8, and 10
Appellant does not address dependent claims 2, 5, 8, and 10. As a
result, these claims stand or fall with the claims from which they depend.
See In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
Accordingly, because we affirm the Examiner’s anticipation rejection
of independent claims 1 and 7, we affirm the Examiner’s anticipation
rejection of dependent claims 2, 5, 8, and 10.
Claim 11
Appellant contends that Weng fails to disclose the additionally recited
limitations in dependent claim 11, stating only that “[t]here are no grayscale
values of the substrate discussed in paragraph 16, much less is
synchronization as claimed discussed.” Appeal Br. 7. Appellant does not
provide further explanation or support for its argument. See id.7

7 In its reply, Appellant presents new arguments and explanation. Reply
Br. 7. These new arguments are untimely and will not be considered. See
37 C.F.R. § 41.41(b)(2) (“Any argument raised in the reply brief which was
not raised in the appeal brief, or is not responsive to an argument raised in
the examiner’s answer . . . will not be considered by the Board for purposes
of the present appeal, unless good cause is shown.”). In particular, these
arguments address the rejection as originally provided in the Final Action,
rather than positions raised in the Answer (compare Final Act. 5, with
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We are not persuaded of error. The Examiner found Weng discloses
the additionally recited step of synchronization because of Weng’s
“formation of the greyscale luminance values and matching with
chrominance (color values) for each data in projection of video images as
noted in (0016).” Final Act. 5; see id. at 12 (citing Weng ¶ 16). In
paragraph 16, Weng explains that an image is separated into its color and
grayscale components, and then both of these components are projected or
displayed on the screen to create the image. Weng ¶ 16. Accordingly, the
Examiner has presented a prima facie case of anticipation.
Appellant fails to address the Examiner’s findings or explain why
those findings are allegedly unclear or unsupported. By failing to do so,
Appellant’s fails to show error in the rejection. See Ex Parte Belinne, 2009
WL 2477843, at *4 (BPAI Aug. 10, 2009) (informative); see also In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably
interpreted Rule 41.37 to require more . . . than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art.”).
Accordingly, we sustain the Examiner’s anticipation rejection of
dependent claim 11.
Obviousness Rejection R3–R4 of Claims 3–4
The Examiner rejects dependent claims 3–4 over a combination of
Weng and either Osterhout or Yamaguchi. Final Act. 12–13. Appellant

Ans. 8), and Appellant has not shown good cause for failing to provide these
arguments in the Appeal Brief.
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does not address dependent claims 3–4, and as a result, these claims stand or
fall with the claims from which they depend. See King, 801 F.2d at 1325.
Accordingly, because we affirm the Examiner’s anticipation rejection
of independent claim 1, we affirm the Examiner’s obviousness rejection of
dependent claims 3–4.
Obviousness Rejection R5 of Claims 6, 12–13, and 16–17
Claims 6, 12–13, and 16–17 stand rejected under 35 U.S.C. § 103 as
obvious over Weng and Destain. Final Act. 14–16. We are persuaded by
certain of Appellant’s arguments, as explained below. We address
dependent claim 6 (which depends from claim 1) and then independent
claim 12 (and its dependent claims, i.e., claims 13 and 16–17).
Claim 6
Claim 6 depends from claim 1 and further recites that the claimed
coating comprises “multichromic filtering particles (MFP) that are linearly
disposed in the coating along parallel lines of molecules.”8 Appeal Br. 12
(Claims App.).
The Examiner found that Weng discloses multichromic filtering
particles, and the Examiner found that Destain teaches the rest of this claim
limitation because Destain describes a prismatic film that “includes parallel
prismatic grooved lines.” Final Act. 14 (quoting Destain ¶ 17; citing Destain

8 The Specification describes “linearly disposed” by pointing to two patents,
which it incorporates by reference. Spec. 19 (citing US Patent Nos.
6,013,123 and 5,764,248). These patents qualify as prior art. We have not
considered (and do not decide), however, whether claim 6 would have been
obvious over Weng in combination with either of these prior art patents.
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¶ 5). Appellant argues that the cited portions of Destain “teach nothing
about molecular alignment but rather discuss a film with parallel grooves in
it. Grooves are not molecules.” Appeal Br. 8.
We are persuaded of reversible error. We find the Examiner has not
adequately explained (and it is unclear from our review) how the relied-upon
disclosures in Destain, which discuss parallel grooves in a film, teach or
suggest particles that are “linearly disposed . . . along parallel lines of the
molecules,” as required by claim 6. See Final Act. 14. In addition, the
Examiner’s Answer does not appear to address the arguments presented by
Appellant. See Ans. 8–9.
Therefore, based upon the findings above, on this record, we are
persuaded of error in the Examiner’s reliance on the cited prior art
combination to teach or suggest this limitation, such that we find error in the
Examiner’s resulting legal conclusion of obviousness. Accordingly, we do
not sustain the Examiner’s obviousness rejection of claim 6.
Claims 12–13 and 16–17
Independent claim 12 recites a substrate “comprising screen pixels
actuatable to establish grayscale values” and a multichromic substance
disposed on the substrate. Appeal Br. 13 (Claims App.). In addition,
claim 12 further specifies that “the color video pixels [are] larger than the
screen pixels.” Id. (referred to in this Decision as the “size limitation”). The
Examiner found Weng does not disclose the size limitation. Final Act. 15.
But the Examiner found Destain teaches this limitation because:
Destain (0030) discloses using Fig 2 that the film (coating
filter) on the projection screen has a diffuser-reflector layer 110
and surface 175 is substantially a reflective roughened surface
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and provides a smaller pixel surface than the projected light
pixel, as cited “raised micro-features 205 (screen pixels), to be
substantially smaller than the target pixel area of light 150 to
be projected on the screen. E.g., in some preferred
embodiments, the micro-features 205 are about 0.1 to 0.2 the
size of a pixel.”
Final Act. 15 (emphasis added) (quoting Destain ¶ 30).
Appellant argues that the cited portions of Destain fail to teach the
size limitation. Appeal Br. 8–9. In particular, Appellant submits that
Destain’s paragraph 30 “teaches a roughened diffuser-reflector layer with
raised micro-features that are smaller than the target pixel area of light to be
projected on the screen.” Id. at 9. Appellant explains that “[r]aised micro-
features randomly distributed on a diffuser-reflector layer are not screen
pixels,” as required by the size limitation of claim 12. Id.
We are persuaded of reversible error. We find the Examiner has not
adequately explained (and it is unclear from our review) how the relied-upon
disclosures in Destain, which describe irregularities in a screen’s surface
(i.e., raised micro-features 205), teach or suggest “screen pixels,” as required
by claim 12. See Final Act. 15–16. In addition, the Examiner’s Answer
does not appear to address the arguments presented by Appellant. See
Ans. 8–9.
Therefore, based upon the findings above, on this record, we are
persuaded of error in the Examiner’s reliance on the cited prior art
combination to teach or suggest the size limitation, such that we find error in
the Examiner’s resulting legal conclusion of obviousness. Accordingly, we
do not sustain the Examiner’s obviousness rejection of independent claim
12, or its respective dependent claims (i.e., claims 13 and 16–17).
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Obviousness Rejection R6–R8 of Claims 14–15, and 18–20
The Examiner rejects dependent claims 14–15 and 18–20 over a
combination of Weng, Destain, and one of Osterhout, Yamaguchi, and
Hajjar. Final Act. 16–19. Each of claims 14–15 and 18–20 depend, directly
or indirectly, from independent claim 12, and the Examiner’s rejection of
these claims relies on Destain in the same erroneous manner discussed above
in the context of claim 12.
Accordingly, because we reverse the Examiner’s obviousness
rejection of independent claim 12, we also reverse the Examiner’s
obviousness rejection of dependent claims 14–15 and 18–20.

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CONCLUSION
In summary:
Claims
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 7–20

Provisional
Obviousness-Type
Double Patenting
1–4, 7–20
1–2, 5, 7–11 102 Weng 1–2, 5, 7–11
3 103 Weng, Osterhout 3
4 103 Weng, Yamaguchi 4
6, 12–13,
16–17
103 Weng, Destain 6, 12–13,
16–17
14 103 Weng, Destain,
Osterhout
14
15 103 Weng, Destain,
Yamaguchi
15
18–20 103 Weng, Destain, Hajjar 18–20
Overall
Outcome
1–5, 7–20 6
TIME PERIOD FOR RESPONSE
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. § 41.50(f).
AFFIRMED-IN-PART