Warehouse Cinemas LLC

Patent Trials and Appeals Board

Dec 28, 2020

2020002875 (P.T.A.B. Dec. 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.
15/961,933 04/25/2018 Richard E. Daughtridge 13880001C1 6222
30743 7590 12/28/2020
W&C IP
11491 SUNSET HILLS ROAD
SUITE 340
RESTON, VA 20190
EXAMINER
KENNY, DANIEL J
ART UNIT PAPER NUMBER
3633
MAIL DATE DELIVERY MODE
12/28/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICHARD E. DAUGHTRIDGE and GREGORY L. MILLS
____________

Appeal 2020-002875
Application 15/961,933
Technology Center 3600
____________

Before EDWARD A. BROWN, BENJAMIN D. M. WOOD, and
JAMES A. WORTH, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
decision rejecting claims 22–32.2 Appeal Br. 5. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Warehouse Cinemas LLC as the real
party in interest. Appeal Br. 3.
2 Claims 18–20 are withdrawn from consideration. Final Act. 1.
Appeal 2020-002875
Application 15/961,933

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CLAIMS
Appellant’s disclosure “generally relates to movie theater auditoriums
and, more particularly, advantageous configurations and combinations of
seating, projection screens, and floors, for example.” Spec. 1, ll. 11–13.
Claims 22 and 28 are independent claims. Claim 22, reproduced
below, illustrates the claimed subject matter.
22. A cinema auditorium, comprising:
(a) a main seating area with only a single flat floor
perpendicular to vertical;
(b) a plurality of reclining or reclined seats
positioned only within said main seating area, wherein
the reclining or reclined seats have a recline angle from
15 degrees to 70 degrees; and
(c) a tilted screen positioned at a first end of said
main seating area, said tilted screen being tilted toward
said main seating area with a screen angle of 10 degrees
to 35 degrees from vertical, wherein the tilted screen is
elevated at least 12 feet above the main seating area.
Appeal Br. (Claims App.).

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Vetter US 3,598,470 Aug. 10, 1971
Runge US 6,164,018 Dec. 26, 2000
Shafer US 6,865,023 B2 Mar. 8, 2005
Ramirez Magaña US 9,140,027 B2 Sept. 22, 2015
Van de Casseye EP 0987383 A1 Mar. 22, 2000

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Application 15/961,933

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REJECTIONS
Claims 22, 23, 25, 26, and 28–32 are rejected under 35 U.S.C. § 103
as unpatentable over Van de Casseye, Runge, and Vetter.
Claim 24 is rejected under 35 U.S.C. § 103 as unpatentable over Van
de Casseye, Runge, Vetter, and Shafer.
Claim 27 is rejected under 35 U.S.C. § 103 as unpatentable over Van
de Casseye, Runge, Vetter, and Ramirez Magaña.

ANALYSIS
Obviousness over Van de Casseye, Runge, and Vetter
(Claims 22, 23, 25, 26, and 28–32)
As to claim 22, the Examiner finds that Van de Casseye discloses a
cinema auditorium comprising reclining or reclined seats 3 positioned only
within the main seating area, and tilted screen 6 positioned at an end of the
main seating area and tilted toward and elevated above the main seating
area. Final Act. 2 (citing Van de Casseye, Fig. 2); see also Van De Casseye,
Fig. 4. The Examiner finds that Van de Casseye discloses a flat
(“continuously inclined”) floor, but not that the floor is perpendicular to
vertical; the seats have a recline angle of 15 to 70 degrees; and the screen is
elevated at least 12 feet above the main seating area, as claimed. Id. at 3.
The Examiner relies on Runge as teaching that a theater can be made
with either a flat floor, a sloping floor, or a combination of a flat or sloping
floor and stadium seating. Final Act. 3 (citing Runge, col. 3, ll. 46–49). The
Examiner concludes that it would have been obvious to one of ordinary skill
in the art in view of Runge to modify Van de Casseye “to have a floor
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Application 15/961,933

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perpendicular to vertical in the seating area for safety of a flat versus sloped
floor.” Id. The Examiner also determines that it would have been obvious
for the seats in Van de Casseye to have the recited recline angle, as Van de
Casseye is concerned with an optimum viewing angle relative to the screen
angle. Id.
The Examiner relies on Vetter as teaching a tilted projection screen
elevated at least 12 feet above the main seating area. Final Act. 3 (citing
Vetter, col. 3, ll. 9–13). The Examiner concludes that it would have been
obvious in view of Vetter to modify Van de Casseye to have the recited
screen elevation “to provide a more unobstructed view of the screen.” Id. at
3–4.
Appellant first contends that “[Van de] Casseye clearly shows a floor
2 that is angled upward.” Appeal Br. 14. Appellant asserts that it would not
have been obvious in view of Runge to make the floor flat and perpendicular
to vertical in Van de Casseye because “all of the sight angles in [Van de]
Casseye require an angled floor; projecting onto an angled wall, and
reflecting back to the seated audience.” Id. at 15.
The Examiner disagrees, stating “the primary purpose of the [Van de]
Casseye floor is for the security advantage of eliminating a staircase and for
reducing construction cost.” Ans. 3 (citing Van de Casseye ¶ 18). The
Examiner submits that, in Van de Casseye, “[o]ptimizing sight angles is
primarily a factor of the inclined position of the seat relative to screen
inclination (making the seat back parallel to the screen) . . . floor slope not
effectively relating to the relationship between seat and screen inclination.”
Id. (citing Van de Casseye ¶¶ 19, 23, 24) (emphasis added).
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We agree with the Examiner. Van de Casseye discloses, “[a]s can be
seen from [F]igure 2, the floor of the movie theatre according to the present
invention is not the usual stepped construction but a substantially
continuously inclined floor with a slope of 5 to 10 % in an upward direction
from the screen towards the end of the theatre.” See Van de Casseye ¶ 18,
Fig. 2. The theater includes inclined screen 6, inclinable seats 3, and
projector 4, which is also inclined such that main axis 9 of light beam 5
leaving projector 4 is incident at a substantially right angle on screen 6. See
Van de Casseye ¶¶ 16, 20, Fig. 2. According to Van de Casseye:
By having the seats and the screen inclined and the
main axis 9 of the light beam being substantially
perpendicularly incident on the screen, care is taken that
the light incident on the screen is reflected towards the
spectator with a minimum of light intensity loss. The
spectator looks perpendicularly to the screen so that he
looks under substantially the same angle as the one on
which the main axis of the light beam is incident. Thus
this set up enables to reduce the light scattering to a
minimum to provide a clear image to the spectator.
See Van de Casseye ¶ 24 (emphasis added). This passage does not describe
that an inclined floor also contributes to reducing light intensity loss.3

3 Paragraph 18 of Van de Casseye discloses: “Since the screen is raised with
respect to the floor it is no longer needed to use the stepped construction as
the spectator looks up to and no longer down on the screen. The inclined
floor offers a considerable security advantage in case of emergency since the
spectators no longer have to go down the staircase when the theatre has to be
evacuated. Moreover such an inclined construction is less expensive to
build and offers a better accessibility.” (Emphasis added). This passage
relates to the relative merits of using an inclined floor instead of a stepped
construction, not to the merits of such elevated floors versus use of a flat
floor. This passage seems to imply or suggest that, in Van de Casseye,
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Appellant does not explain persuasively why “all of the sight angles in
[Van de] Casseye require an angled floor” (Appeal Br. 15), or why the sight
lines would be unsatisfactory or inoperable if Van de Casseye were modified
to have a flat floor. Nor does Appellant direct us to any specific evidence of
record that supports this contention. Thus, Appellant’s attorney argument
lacks sufficient evidentiary support. See Becton, Dickinson & Co. v. Tyco
Healthcare Grp., LP, 616 F.3d 1249, 1260 (Fed. Cir. 2010) (“Unsupported
attorney argument . . . is an inadequate substitute for record evidence.”).
Second, Appellant contends that Figure 2 of Runge shows a sloped
and stepped floor, and thus, a combination of Van de Casseye and Runge
would not result in a seating area that has a single flat floor that is
perpendicular to vertical. Appeal Br. 15.
We disagree. Runge is not limited to only the embodiment shown in
Figure 2. Rather, Runge discloses that the theater floor can be either (1) a
flat floor, (2) a sloping floor, (3) a combination of a flat floor and stadium
seating, or (4) a combination of a sloping floor and stadium seating. See
Runge, col. 3, ll. 46–49. Although we agree with Appellant that Figure 2
shows structure (4), we disagree that Ranges requires this structure. To the
contrary, Runge discloses that the theater floor can alternatively be a flat
floor, instead of structures (2)–(4). A reference “may be used as evidence of
obviousness under [35 U.S.C.] § 103 for all it fairly suggests to one of
ordinary skill in the art.” In re Wiggins, 488 F.2d 538, 543 (CCPA 1973).
We agree with the Examiner that Runge’s structure (1) qualifies as evidence
of obviousness for all it fairly suggests to one of ordinary skill in the art.

elevated floors are not required for spectator viewing because the screen is
raised relative to the floor.
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Third, Appellant contends that “the sight line in Runge is similar to
the ‘problem’ solved by the applicant. That is, the sight line is straight on
perpendicular in Runge (see as an example Figure 1 of the present
application).” Appeal Br. 15. According to Appellant, “[a]ny combination
of Casseye and Runge would clearly suggest elevating the chairs from front
to back, as there is no other teaching in either of them.” Id. at 16.
These contentions are also unpersuasive because the Examiner only
relies on Runge’s teaching that the floor can be flat.
Fourth, Appellant contends that Vetter does not cure the deficiency of
Van de Casseye/Runge. Appeal Br. 16. According to Appellant, Figure 1 of
Vetter shows that the dirt going up to the projector is sloped upward, and
hence, a combination of Van de Casseye/Runge/Vetter shows in every
instance some sort of slope from front to back. Id.
This contention is unpersuasive. The Examiner explains that “the
Vetter reference is used for the sole purpose of the teaching that it is old in
the art to elevate a screen at least 12 feet.” Ans. 4. Also, Vetter discloses
that Figure 1 shows an audience area 13, which is not depicted as being
sloped. See Vetter, col. 2, ll. 70–71.
Lastly, Vetter discloses a tilted screen elevation value (i.e., “about 18
to 20 feet above the datum”) that meets the value recited in claim 22. See
Vetter col. 3, ll. 11–13. As to the claimed values of the seat recline angle
and screen tilt angle, the values of the screen tilt angle β (i.e., between 25°
and 40°) and seat incline angle α (i.e., “β - 10° < α < β + 10°) disclosed in
Van de Casseye appear to overlap the claimed values. See Van de Casseye
¶¶ 16, 20. A prima facie case of obviousness typically exists when the range
of a claimed invention overlaps the range disclosed in the prior art. In re
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Peterson, 315 F.3d. 1325, 1329 (Fed. Cir. 2003). This overlap creates a
presumption of obviousness. Iron Grip Barbell Co. v. USA Sports, Inc., 392
F.3d 1317, 1322 (Fed. Cir. 2004). This presumption can be rebutted by
showing: (1) the claimed invention provides a new and unexpected result
relative to the prior art (id. (citing In re Woodruff, 919 F.2d 1575, 1578 (Fed.
Cir. 1990)); (2) the prior art teaches away from the claimed invention (id.
(citing In re Geisler, 116 F.3d 1465, 1471 (Fed. Cir. 1997)); or (3) a claimed
parameter was not recognized as a “result-effective variable” (In re Antonie,
559 F.2d 618, 620 (CCPA 1977). Here, Appellant has not made a
persuasive showing as to any one of options (1)–(3).4
For the foregoing reasons, we sustain the rejection of claim 22, and
claims 23, 25, 26, and 31 depending therefrom and not separately argued, as
unpatentable over Van de Casseye, Runge, and Vetter.
Independent claim 28 is directed to a method of providing a cinema
auditorium. Appeal Br. 20 (Claims App.). In contrast to claim 22, claim 28
does not recite a recline angle for the reclining or reclined seats. For claim
28, Appellant’s single contention that the claim requires “that the main
seating area has only a single flat floor that is perpendicular to vertical” is
unpersuasive for the same reasons discussed for claim 22. Id. at 14.
Accordingly, we sustain the rejection of claim 28, and claims 29, 30, and 32

4 As to option (2), the Specification describes the meaning of the claim term
“flat floor,” as follows: “Unless otherwise specified, ‘flat floor’ as used
herein implies that the floor of the auditorium is substantially flat and level
for most (e.g., over 50%, all but 10 or fewer seats, all but 2 or fewer rows)
and generally all of the seats in the auditorium.” See Spec. 5, ll. 26–28
(emphasis added). According to this description, only “over 50%” of the
“flat floor” needs to be “substantially flat.”
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depending therefrom and not separately argued, as unpatentable over Van de
Casseye, Runge, and Vetter.

Obviousness over Van de Casseye, Runge, Vetter, and Shafer (Claim 24)
Obviousness over Van de Casseye, Runge, Vetter, Shafer, and
Ramirez Magaña (Claim 27)
For claims 24 and 27, which depend from claim 22, Appellant
contends that Shafer and Ramirez Magaña do not show the missing features
of the combination of Van de Casseye, Runge, and Vetter. Appeal Br. 16.
As Appellant does not apprise us of any missing features of this combination
as applied to claim 22, we also sustain the rejection of claim 24 as
unpatentable over Van de Casseye, Runge, Vetter, and Shafer, and the
rejection of claim 27 as unpatentable over Van de Casseye, Runge, Vetter,
Shafer, and Ramirez Magaña for the same reasons as for claim 22.

CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
22, 23, 25,
26, 28–32
103 Van de Casseye,
Runge, Vetter
22, 23, 25,
26, 28–32

24 103 Van de Casseye,
Runge, Vetter,
Shafer
24
27 103 Van de Casseye,
Runge, Vetter,
Ramirez Magaña
27
Overall
Outcome
22–32

Appeal 2020-002875
Application 15/961,933

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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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED