Andras Tantos et al.

Patent Trials and Appeals Board

Aug 1, 2019

13728892 - (D) (P.T.A.B. Aug. 1, 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.
13/728,892 12/27/2012 Andras Tantos 337040-US-NP 7788
69316 7590 08/01/2019
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
EXAMINER
SCHNIREL, ANDREW B
ART UNIT PAPER NUMBER
2625
NOTIFICATION DATE DELIVERY MODE
08/01/2019 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):
chriochs@microsoft.com
usdocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_____________

Ex parte ANDRAS TANTOS, ROD G. FLECK,
JEDD PERRY, and DAVID D. BOHN
_____________

Appeal 2018-001789
Application 13/728,8921
Technology Center 2600
______________

Before ERIC S. FRAHM, NORMAN H. BEAMER, and
MATTHEW J. McNEILL, Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL
This is a Decision on Appeal under 35 U.S.C. § 134(a) from the Final
Rejection of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 According to Appellants, Microsoft Technology Licensing, LLC is the real
party in interest (Br. 3).
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STATEMENT OF THE CASE
Appellants’ disclosed and claimed invention pertains to “[a] near-eye
display (NED) device, such as a head mounted display (HMD) device” (see,
e.g., Figs. 1A–C) that “may be worn by a user for an augmented reality (AR)
experience or a virtual reality (VR) experience” (Spec. ¶ 1). More
specifically, Appellants disclose and claim a near-eye display device and
method for reducing display update time (Title; Abstract; see also Figs. 4A–
C). Update time delays cause users to have “to wait a noticeable time period
for image data to be updated to reflect a response to a user action” (Spec.
¶ 1). Claim 1 is exemplary, and is reproduced below, with emphases added
to key limitations:
1. A method comprising:
determining a three-dimensional (3D) distance
vector in a 3D field of view of a near-eye display device, the
vector extending to a 3D point of focus of a user of the near-eye
display device and from one of a predetermined reference point
on the near-eye display device and an eye of the user, which
eye is spaced apart from and not bonded to the near-eye display
device, the 3D point of focus of the user being out in a
corresponding 3D region of displayable scenery in the 3D
display field of view, beyond the near-eye display device;
based on the determined distance vector that
extends to the user's 3D point of focus and based on
predetermined low perception criteria, determining whether at
least some of image data of the corresponding 3D region of
displayable scenery qualifies as lossless priority data
which does not satisfy the low perception criteria;
based on the determined distance vector,
determining whether at least some of other image data of the
corresponding 3D region of displayable scenery qualifies as
allowed loss data which satisfies the low perception criteria;
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responsive to at least some of the image data
qualifying as allowed loss data, first transmitting to the near-
eye display device as first updating data, the allowed loss data,
said first transmitting using one or more communication
techniques allowing for lossy transmission; and
responsive to at least some of the other image data
qualifying as lossless priority data, second transmitting to the
near-eye display device as second updating data, the lossless
priority image data using one or more communication
techniques satisfying lossless transmission criteria.
Claims Appendix (Br. 28) (emphases added). Remaining independent
claims 10 and 16 recite commensurate limitations regarding analyzing 3D
image data to determine whether to use a communication technique for
transmitting data to a near-eye display device that (i) allows for lossy
transmission; or (ii) satisfies lossless transmission criteria, but uses focal
region image data instead of a 3D distance vector as in claim 1.
The Examiner’s Rejections
The Examiner has rejected (i) claims 10–20 under 35 U.S.C. § 103(a)
as being unpatentable over Camp, Jr. (US 2009/0096927 A1; issued Apr. 16,
2009) and Deering (US 2009/0189974 A1; published July 30, 2009) (Final
Act. 3–14; Ans. 3–14); and (ii) claims 1–9 under 35 U.S.C. § 103(a) as being
unpatentable over the same base combination of Camp, Jr. and Deering
taken with Lemelson (US 2002/0105482 A1; published Aug. 8, 2002) and
various other references (Final Act. 14–26; Ans. 15–27).

ANALYSIS
We have reviewed Appellants’ arguments in the Appeal Brief (Br. 8–
27), the Examiner’s rejections (Final Act. 3–26; Ans. 3–27), and the
Examiner’s response (Ans. 27–34) to Appellants’ arguments in the Appeal
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Brief. Independent claims 1, 10, and 16 recite similar limitations pertaining
to the analysis of 3D image data to determine whether to use a
communication technique for transmitting data to a near-eye display device
that (i) allows for lossy transmission; or (ii) satisfies lossless transmission
criteria.
Based on Appellants’ arguments in the Appeal Brief (see generally
Br. 8–26), two principal issues are presented on appeal:
(1) Does the combination of Camp, Jr. and Deering teach or
suggest analyzing 3D image data to determine whether to
send data using lossy or lossless transmission; and

(2) Has the Examiner erred in determining it would have been
obvious to modify Camp, Jr.’s video coding technique with
Deering’s eye mounted displays, when the Examiner
improperly relies on three different embodiments of
Deering, with motivation provided only as to one of the
embodiments?

Appellants contend (i) Camp, Jr. “does not teach or suggest anything
having to do with analyzing 3D scenes” (Br. 8) and the Examiner fails to
“explain where and how Camp discloses receiving image data representing a
three-dimensional (3D) field of view” (Br. 19); (ii) Camp, Jr. “does not
inherently disclose anything about lossless and lossy ‘transmission’ by
mentioning degree of error coding” (Br. 19); and (iii) Camp, Jr. “does not
inherently teach ‘lossless’ transmission,” and “[i]t is pure speculation to
assume otherwise” (Br. 20). We agree with Appellants’ contentions above.
Appellants also contend (see Br. 9–17) that (i) Deering teaches that
Eye-Mounted-Displays (“EMD”s) should be mounted directly on or in the
user’s eyeballs as shown in Figures 61 and 66 (as opposed to a near-eye
display device as shown in Appellants’ Figs. 1A–C); (ii) “the outstanding
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grounds of rejection do not explicitly identify which embodiment of Camp is
being relied on,” thus, “the Board (as well as Applicant) are being asked to
engage in speculation in this regard since proper notice under 35 USC §132
is not being provided” (Br. 16); (iii) because Deering’s EMDs are mounted
directly on the user’s eyeballs, unlike the recited near-eye display device
which is spaced apart from the user’s eyes, the motivation provided by the
Examiner “lacks technical underpinning” (Br. 18); and (iv) therefore, the
“PHOSITA would have no motivation to look to Deering for possible
teachings applicable to the system of Camp” (Br. 17). We agree with
Appellants’ contentions above.
Specifically, the Examiner has relied on no less than three different
embodiments of Deering as teaching the recited near-eye display: (1) the
eye mounted display system 105 shown in Figure 24 and described in
paragraphs 23 and 350 (see Final Act. 4–5, 16–17; Ans. 5, 17, 29); (2) the
display 6110 mounted on a contact lens 6140 shown in Figure 61 and
described in paragraph 476 (see Ans. 30); and (3) the contact lens display
6810 mounted on top of a cornea shown in Figure 66 and described in
paragraph 479) (see Final Act. 4, 16; Ans. 5, 17, 30). Notably, the Examiner
provides motivation for making the combination with respect to only one of
these embodiments (the eye mounted display system shown in Figure 24 and
described in paragraphs 23 and 350) (see Final Act. 5, 17; Ans. 5, 17, 29),
leaving us to speculate as to the proper motivation for combining Deering’s
display device(s) with Camp, Jr.’s video coding technique. In other words,
the Examiner relies on a motivation statement that fails to support at least
one claim limitation in one embodiment relied upon.
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We will not resort to speculation or assumptions to cure the
deficiencies in the Examiner’s fact finding. See In re Warner, 379 F.2d
1011, 1017 (CCPA 1967). As such, based on the record before us, we find
that the Examiner improperly relies upon the base combination of Camp, Jr.
and Deering to teach or suggest the disputed claim limitations. See Warner,
379 F.2d at 1017.
In view of the foregoing, we agree with Appellants that the Examiner
has not provided a prima facie case of obviousness for claims 1–20, which
are all rejected over the same base combination of Camp, Jr. and Deering.
As a result, based on the record before us, we cannot sustain the Examiner’s
obviousness rejections of independent claims 1, 10, and 16, as well as
dependent claims 1–9, 11–15, and 17–20 depending respectively therefrom,
over the base combination of Camp, Jr. and Deering.

CONCLUSION
Appellants have persuaded us of error in the Examiner’s decision to
reject claims 1–20.2

2 We recognize that Appellants’ arguments present additional issues (see,
e.g., Br. 8–26). Because we were persuaded of error by the issues regarding
(i) lossy and lossless transmission; and (ii) the motivation to modify Camp,
Jr. with Deering, as recited in claims 1, 10, and 16, we do not reach the
additional issues, as the two issues discussed in our analysis are dispositive
of the Appeal.

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DECISION
We reverse the decision of the Examiner to reject claims 1–20.

REVERSED