Alex Dunn

Patent Trials and Appeals BoardOct 30, 2019

14942391 - (D) (P.T.A.B. Oct. 30, 2019)

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. 14/942,391 11/16/2015 Alex Dunn 15-TH-0076-US01 3024 102469 7590 10/30/2019 PARKER JUSTISS, P.C./Nvidia 14241 DALLAS PARKWAY SUITE 620 DALLAS, TX 75254 EXAMINER HOANG, PHI ART UNIT PAPER NUMBER 2613 NOTIFICATION DATE DELIVERY MODE 10/30/2019 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): docket@pj-iplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ALEX DUNN1 ____________________ Appeal 2018-009203 Application 14/942,391 Technology Center 2600 ____________________ Before ST. JOHN COURTENAY III, LARRY HUME, and PHILLIP A. BENNETT, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1, 3–6, 8, 9, 11–15, 17, and 18. Claims 7, 10, 16, and 19–21 are objected to as being dependent upon a rejected base claim. Final Act. 12. Claim 2 is cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. 1 We use the word “Appellant” to refer to “Applicants” as defined in 37 C.F.R. § 1.42(a). Appellant indicates the real party in interest in Nvidia Corporation. App. Br. 3. Appeal 2018-009203 Application 14/942,391 2 The Invention The claimed invention relates to “to optimized sparse volume rendering using traditional rasterization hardware.” Spec. ¶ 1. Independent Claims 1 and 11 Independent Claims 1 and 11 are illustrative of the subject matter on appeal: 1. A method for rendering a fluid-like object in a volume space, comprising: [L1] determining a list of bricks in said volume space said fluid-like object would occupy; [L2] grouping said bricks into buckets based on depth values of said bricks; and rendering each of said buckets separately. (Contested limitations L1 and L2 emphasized). 11. A system for rendering a fluid-like object in a volume space, comprising: [L1] a Central Processing Unit (CPU) configured to determine a list of bricks said fluid-like object would occupy; and [L2] a Graphics Processing Unit (GPU) configured to group said bricks into multiple buckets based on depth values of said bricks and render each of said buckets separately. (Contested limitations L1 and L2 emphasized). Appeal 2018-009203 Application 14/942,391 3 Rejections A. Claims 1, 3, 4, and 9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fedkiw et al. (Fedkiw et. al., “Visual Simulation of Smoke,” Proceedings of the 28th Annual Conference on Computer Graphics and Interactive Techniques, New York, 2001). Final Act. 6. B. Claims 5, 11–14, and 18 are rejected under 35 U.S.C. § 103 as being obvious over the combined teachings and suggestions of Fedkiw and McNabb (US 2016/0042552 A1, published Feb. 11, 2016). Final Act. 8. C. Claims 6 and 8 are rejected under 35 U.S.C. § 103 as being obvious over the combined teachings and suggestions of Fedkiw and Newcombe et al. (US 2012/0194644 A1, published Aug. 2, 2012). Final Act. 10. D. Claims 15 and 17 are rejected under 35 U.S.C. § 103 as being obvious over the combined teachings and suggestions of Fedkiw, McNabb, and Newcombe. Final Act. 11. ANALYSIS In reaching this decision, we consider all the evidence presented and all arguments actually made by Appellant. We focus our analysis on contested limitations L1 and L2 of independent claim 1, and the similar limitations of commensurate scope recited in remaining independent claim 11. Rejection A of Independent Claim 1 under 35 U.S.C. § 102 Issue: Under 35 U.S.C. § 102(a)(1), did the Examiner err by finding Fedkiw expressly or inherently discloses contested limitations L1 and L2: Appeal 2018-009203 Application 14/942,391 4 [L1] determining a list of bricks in said volume space said fluid- like object would occupy; [L2] grouping said bricks into buckets based on depth values of said bricks; and rendering each of said buckets separately[,] within the meaning of independent claim 1?2 Appellant contends Fedkiw is silent on “determining which of these voxels would be occupied by a fluid-like object.” App. Br. 5. Limitation L1 of Independent Claim 1 Claim Construction The Examiner reads the claimed list of “bricks” on Fedkiw’s voxels. See Final Act. 6. As a matter of claim interpretation, we turn to Appellant’s Specification for context: Introduced herein is a sparse volume rendering technique that skips over the samples that do not contribute to the final outcome of rendering fluid-like object. For this technique, the volume space is subdivided into multiple regions called bricks, each of which is made up of neighboring cells in the volume space. By running an extrapolation algorithm based on the physics of fluid with the simulation data of past frames, the technique determines a list of bricks that would be occupied by fluid and collect samples from only those bricks for rendering. Spec. ¶ 10 (emphasis added). See also Spec. ¶ 21 describing Figure 2: Fig. 2 is a diagram of one embodiment of a volume space 200 having a simulation object 240 overlaid with grouped bricks. The volume space 200 has X-axis 210, Y-axis 220, and Z-axis 2 We give the contested claim limitations the broadest reasonable interpretation (BRI) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appeal 2018-009203 Application 14/942,391 5 230, representing width, height and depth of the volume space 200, respectively. In the illustrated embodiment, the volume space 200 is divided into forty-eight (48) bricks, each of which including a plurality of neighboring cells. Spec. ¶ 21 (emphasis added). Appellant’s Figure 2 is reproduced below: Appellant’s Figure 2 is reproduced above depicting a volume space 200 that is is divided into forty-eight (48) “bricks.” Appeal 2018-009203 Application 14/942,391 6 Fedkiw’s Figure 1 from page 17 is reproduced below: Fedkiw Figure 1 is depicted above that handles boundaries immersed in the fluid by tagging all voxels that intersect an object as being occupied. See page 17, right column paragraph 2, first sentence. Given the equivalence between the “bricks” subdividing volume space 200, as depicted in Appellant’s Figure 2, and Fedkiw’s “[d]iscretization of the computational domain into identical voxels” (Figure 1), we conclude the Examiner’s claim interpretation is reasonable. Thus, the Examiner finds Fedkiw’s dividing of space into voxels (i.e., “bricks”) discloses claim limitation L1. See Final Act. 6. See Fedkiw’s Figures 1 and 2. In particular, the Examiner finds Fedkiw’s dicing up of a computational domain into identical voxels specifically discloses “determining a list of bricks in said volume space said fluid-like object would occupy.” Ans. 2. Appeal 2018-009203 Application 14/942,391 7 We find a preponderance of the evidence supports the Examiner’s findings that Fedkiw’s cited descriptions and Figure 1 disclose disputed limitation L1, because Fedkiw’s discretization of the computational domain into identical voxels discloses “determining a list of bricks in said volume space.” Fedkiw, Fig. 1, p. 17, 4. Implementation, ¶ 2. Additionally, we find Fedkiw’s description of computational fluid dynamics and simulation of gases and other fluids, such as water, discloses the recited “fluid-like object” that occupies a subset (i.e., a list) of the “bricks.” See Fedkiw 17, col. 2, paragraph 2, first sentence: “To handle boundaries immersed in the fluid we tag all voxels that intersect an object as being occupied.” See also Fedkiw, p. 15, 1 Intro, ¶ 2. Thus we find Fedkiw discloses disputed limitation L1: (“determining a list of bricks in said volume space said fluid-like object would occupy”), as claimed. Limitation L2 of Independent Claim 1 Regarding limitation L2, Appellant contends: [T]he cited portion of Fedkiw does not teach the above limitation [L2] because it merely teaches decomposing the voxel grid into slices along a coordinate axis that is most aligned with the viewing direction. As set forth in the beginning, the standard for anticipation is exact one. Slicing Fedkiw’s voxel grid along the viewing direction cannot anticipate the above limitation because the viewing direction is not always along the z axis and hence not necessarily based on a depth value[]. App. Br. 5–6. Regarding limitation L2, the Examiner finds Fedkiw’s description of rendering voxel grid slices from front to back discloses disputed limitation L2, i.e., “rendering each of said buckets separately.” Final Act. 6. Appeal 2018-009203 Application 14/942,391 8 In particular, regarding limitation L2 (i.e., grouping as claimed), the Examiner states: “it appears that even if the viewing direction is not always along a z axis, it is possible for it to be changed to be along the z axis since the viewing direction can allegedly be changed.” Ans. 6 (emphasis added). The Examiner further finds: “One of ordinary skill in the art would have recognized that a viewing direction that is changed to be aligned with the coordinate axis or Z axis would still allow Fedkiw to operate as described above.” Id. (emphasis added). In the Reply Brief, Appellant responds: “a mere possibility that a certain result or characteristic can occur is not enough to establish the inherency of that result or characteristic. As such, the fact that the viewing direction can be changed along the z-axis is a mere possibility that is not enough to support the Examiner’s assertion.” Reply Br. 4. Appellant’s statement is correct regarding an anticipation analysis. Id. Under § 102, what is apparent or suggested to an artisan having ordinary knowledge in the art is insufficient to establish express or inherent anticipation. Our reviewing court guides: “[i]nherency . . . may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.” In re Robertson, 169 F.3d 743, 745, (Fed. Cir. 1999) (internal citations omitted). Applying this reasoning here, we find the Examiner’s assertions and theory of use are insufficient to show that Fedkiw anticipates disputed claim limitation L2 of claim 1. “A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir. 1987). Appeal 2018-009203 Application 14/942,391 9 In reviewing the record, and the plain language of claim 1, we find a preponderance of the evidence supports Appellant’s contentions in the Briefs that the Examiner has not established that Fedkiw expressly or inherently anticipates disputed limitation L2 of claim 1.3 Accordingly, for essentially the same reasons argued by Appellant (App. Br. 5–6), regarding limitation L2 of claim 1, we are constrained on this record to reverse the Examiner’s anticipation Rejection A of independent claim 1. For the same reasons, we also reverse anticipation Rejection A of associated dependent claims 3, 4, and 9. Rejection B of Claim 5 and Rejection C of Claims 6 and 8 Claims 5, 6, and 8 each depend directly from independent claim 1. Regarding § 103 Rejection B of dependent claim 5, Appellant argues: “McNabb is cited to disclose ray marching using a pixel shader and not to cure the above noted deficiency of Fedkiw with respect to independent Claim 1.” App. Br. 11. Similarly, regarding § 103 Rejection C of dependent claims 6 and 8, Appellant argues: Newcombe is cited to disclose “storing a model in slice-row- column order by mapping voxels to memory of a GPU” and 3 Because a rejection under § 103 for independent claim 1 is not before us on appeal, we do not reach the issue of whether at least claim 1 might be obvious over the teachings and suggestions of the Fedkiw reference, considered alone, or considered in combination with McNabb, or other additional references. In the event of further prosecution of this application, we leave such consideration to the Examiner. Although the Board is authorized to reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects not to do so. See Manual of Patent Examining Procedure (MPEP) § 1213.02. Appeal 2018-009203 Application 14/942,391 10 “accessing data associated with voxels from a memory of a GPU using a mapping between the voxels and memory” (see pages 10- 11 of the Office Action). Newcombe is not cited to cure the above noted deficiency of Fedkiw with respect to independent claim 1. App. Br. 11–12. Thus, for § 103-rejected dependent claims 5, 6, and 8 (which depend from claim 1), the deficiency Appellant refers to in Fedkiw is a deficiency under § 102 (anticipation) for claim 1. We emphasize that dependent claims 5, 6, and 8 (which depend from § 102-rejected claim 1) are commensurate in scope to dependent claims 14, 15, and 17, in which we affirm the respective rejections below under an obviousness analysis. Although we decline to set forth new grounds of rejection under §103 for claim 1 in this Decision, we emphasize the similarities between the disputed limitations of independent claims 1 and 11, and we leave a new ground of rejection under § 103 for claim 1 to the further consideration of the Examiner. See supra n.3. Cf. Avantis Pharma Deutschland GmbH v. Lupin, Ltd., 499 F.3d 1293, 1300 (Fed. Cir. 2007); Ormco Corp. v. Align Tech., Inc., 498 F.3d 1307, 1319-20 (Fed. Cir. 2007) (law of the case that a dependent claim was obvious means the parent claim must also have been obvious); In re Muchmore, 433 F.2d 824, 824-25 (CCPA 1970) (“Since we agree with the [B]oard’s conclusion of obviousness as to these narrow claims, the broader claims must likewise be obvious.”). Therefore, for the same reasons for which we affirm the obviousness rejections of dependent claims 14, 15, and 17 below (which variously depend from claim 11 and are commensurate in scope with claims 5, 6, and 8, respectively), we also sustain the obviousness rejections for dependent Appeal 2018-009203 Application 14/942,391 11 claims 5, 6, and 8, which depend from § 102-rejected claim 1. Simply put, the deficiencies of independent claim 1 under an anticipation analysis (regarding disputed limitation L2) are not, in this case, deficiencies when claim 1 is considered under an obviousness analysis, and we emphasize that dependent claims 5, 6, and 8 include all the limitations of claim 1 by virtue of their dependency from claim 1. Rejection B of Independent Claim 11, and Rejection B of Dependent Claims 12, 13, 14, and 18 under 35 U.S.C. § 103 Issue: Under 35 U.S.C. § 103, did the Examiner err by finding the cited combination of Fedkiw and McNabb teaches or suggests limitations L1 and L2 of claim 11? We note the functional limitations of claim 11 are similar to those recited in the corresponding method step limitations L1 and L2 of independent claim 1. Regarding claim 11, Appellant argues: “The cited portion of Fedkiw does not teach the above limitation because it merely teaches decomposing the voxel grid into slices along a coordinate axis that is most aligned with the viewing direction. Slicing Fedkiw’s voxel grid along the viewing direction does not teach the above limitation because the viewing direction is not always along the z axis and hence not necessarily based on a depth values.” App. Br. 8 (emphasis added). Although this inherency argument is similar to that made by Appellant regarding the commensurate limitation L2 in claim 1, we find the Examiner has not erred here in finding that Fedkiw (in combination with McNabb) teaches or at least suggests the disputed limitation(s) of claim 11 under an obviousness analysis, because “‘the question under 35 U.S.C. § 103 is not Appeal 2018-009203 Application 14/942,391 12 merely what the references expressly teach but what they would have suggested to one of ordinary skill in the art at the time the invention was made.’” Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)). (Emphasis added); see also MPEP § 2123. In contrast with the anticipation rejection of claim 1, for claim 11 the Examiner finds that one of ordinary skill in the art would have recognized that Fedkiw’s viewing direction could have been changed to be aligned with the coordinate axis or z axis and still operate as described. See Ans. 6. Appellant has not asserted that the proposed modification would have been beyond the capabilities of an ordinarily skilled artisan. Absent such an assertion, we “take account of the inferences and creative steps that a person of ordinary skill in the art would employ,” and find a person of ordinary skill in the art would overcome those difficulties within their level of skill. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007); see also id. at 421 (“A person of ordinary skill is also a person of ordinary creativity, not an automaton.”). Moreover, “‘[e]very patent application and reference relies to some extent upon knowledge of persons skilled in the art to complement that [which is] disclosed. . . .’” In re Bode, 550 F.2d 656, 660 (CCPA 1977) (quoting In re Wiggins, 488 F.2d 538, 543 (CCPA 1973)). Those persons “must be presumed to know something” about the art “apart from what the references disclose.” In re Jacoby, 309 F.2d 513, 516 (CCPA 1962). We are also not persuaded the Examiner erred because Appellant does not point to any evidence of record that shows combining the Fenkiw and McNabb references in the manner proffered by the Examiner (Final Act. 8– 9) would have been “uniquely challenging or difficult for one of ordinary Appeal 2018-009203 Application 14/942,391 13 skill in the art” or 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) (citing KSR, 550 U.S. at 418). Appellant has not identified knowledge gleaned only from the present application that was not within the level of ordinary skill at the time the claimed invention was made. See In re McLaughlin, 443 F.2d 1392 (CCPA 1971). Moreover, Appellant has not provided any objective evidence of secondary considerations (e.g., unexpected results) which our reviewing court guides “operates as a beneficial check on hindsight.” Cheese Systems, Inc. v. Tetra Pak Cheese and Powder Systems, Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013). Appellant additionally argues: “the cited portion of McNabb does not teach the claimed CPU and GPU because it fails to teach [a] separately configured CPU and GPU.” App. Br. 9. The Examiner finds McNabb teaches the recited CPU and GPU. Final Act. 9. The Examiner further finds the use of a CPU and GPU is merely a means to perform the recited functional limitations. See Ans. 13; see Claim 11. Turning to the evidence, we reproduce McNabb’s Figure 11 below, depicting GPU 1114 and CPU 1112: Appeal 2018-009203 Application 14/942,391 14 McNabb’s Figure 11 is reproduced above, showing GPU 1114 and CPU 1112. We find a preponderance of the evidence supports the Examiner’s findings because McNabb’s description of GPU-based real-time volume rendering of images, and the use of a CPU, teaches or at least suggests the GPU and CPU configuration recited in claim 11. See McNabb Fig. 11, depicting GPU 1114 and CPU 1112, and the corresponding description of Figure 11, as set forth in McNabb’s paragraph 111. Thus, based upon our review of the record, we are not persuaded of error in the Examiner’s ultimate legal conclusion of obviousness for claim 11, because Appellant has not shown the invention recited in claim 11 is “more than the predictable use of prior art elements according to their established functions” so as to be non-obvious under the guidance of KSR 550 U.S. at 417. Appeal 2018-009203 Application 14/942,391 15 Therefore, for the reasons discussed above, Appellant has not provided arguments supported by a preponderance of the evidence to persuade us the Examiner erred regarding the obviousness rejection of independent claim 11. Accordingly, we sustain the Examiner’s § 103 Rejection B of independent claim 11, and Rejection B of associated dependent claims 12–14, and 18 (not separately argued), which fall with claim 11. See 37 C.F.R. § 41.37(c)(1)(iv). Rejection D of Dependent Claims 15 and 17 We also sustain the Examiner’s Rejection D of associated dependent claims 15 and 17, because Appellant merely argues: “Newcombe is not cited to cure the above noted deficiency of Fedkiw and McNabb with respect to independent Claim 11.” App. Br. 12. However, we find no deficiencies with Rejection B of independent claim 11, for the reasons discussed above. CONCLUSIONS The Examiner erred in rejecting claims 1, 3, 4, and 9 under 35 U.S.C. § 102(a)(1). The Examiner did not err in rejecting claims 5, 6, 8, 11–15, 17, and 18 under 35 U.S.C. § 103. Appeal 2018-009203 Application 14/942,391 16 DECISION SUMMARY FINALITY AND 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 Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1, 3, 4, 9 102(a)(1) Fedkiw 1, 3, 4, 9 5, 11–14, and 18 103 Fedkiw, McNabb 5, 11–14, and 18 6, 8 103 Fedkiw, Newcombe 6, 8 15, 17 103 Fedkiw, McNabb, Newcombe 15, 17 Overall Outcome 5, 6, 8, 11–15, 17, and 18