Ex Parte 5949331 et al

Patent Trial and Appeal BoardMay 28, 2014

90011477 (P.T.A.B. May. 28, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 90/011,477 02/07/2011 5949331 Q122419 5673 7590 05/29/2014 FREDERICK S. BURKHART VAN DYKE GARDNER LINN & BURKHART P O BOX 888695 GRAND RAPIDS, MI 49588-8695 EXAMINER BANANKHAH, MAJID A ART UNIT PAPER NUMBER 3992 MAIL DATE DELIVERY MODE 05/29/2014 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 MAGNA ELECTRONICS, INC. _____________ Appeal 2013-006429 Reexamination Control No. 90/011,477 Patent 5,949,331 Technology Center 3900 ______________ Before HOWARD B. BLANKENSHIP, KEVIN F. TURNER, DAVID M. KOHUT, and STANLEY M. WEINBERG, Administrative Patent Judges. KOHUT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2013-006429 Reexamination Control No. 90/011,477 Patent 5,949,331 This is an appeal under 35 U.S.C. § 134(b) from the Examiner’s rejection of claims 3 and 5-91 of Patent 5,949,331 (hereinafter “’331 Patent”). Final Office Action mailed February 2, 2012 (hereinafter “Final Action.”). An oral hearing was conducted with the Patent Owner on July 31, 2013. We have jurisdiction under 35 U.S.C. § 306. We AFFIRM. STATEMENT OF THE CASE This ex parte reexamination proceeding was initiated by a “REQUEST FOR REEXAMINATION” filed on February 7, 2011, by Third-Party Requester, William Mandir. The ’331 patent describes a vehicular review vision system. Claim 5 is illustrative of the invention and reads as follows: 5. A vehicular rearview vision system, comprising: at least one image capture device positioned on the vehicle and adapted to capturing images of objects; a display system which displays an image which comprises a rearward facing view of objects captured by said at least one image capture device; wherein said display system enhances the displayed image by including an image enhancement comprising a visual prompt perspectively related to objects in the image displayed and which visually informs the driver of what is occurring in the area 1 Appellant withdraws claims 11, 68, 70-74, 79, 81-115, 120, and 122-154 from consideration and asks the Examiner to cancel the claims without prejudice. Reply Br. 2. As such, we will not address any arguments directed toward these claims and also urge the Examiner to cancel the claims. Appeal 2013-006429 Reexamination Control No. 90/011,477 Patent 5,949,331 3 surrounding the vehicle including relative position of objects behind the vehicle; and wherein said image enhancement comprises a graphic overlay superimposed on the displayed image indicating distances of objects from the vehicle and wherein said graphic overlay comprises at least one horizontal mark superimposed on the displayed image, and wherein said at least one horizontal mark comprises a plurality of short horizontal lines superimposed on the image at regular rearward intervals. Requester proposes rejections of the claims over the following prior art references: Matsushita Electric Co. JP 60-79889 Oct. 23, 1986 Aisin AW Co. JP 64-14700 Jan. 18, 1989 Appellant/Patent Owner appeals the Examiner’s adoption of the following rejection: Claims 3 and 5-92 are rejected under 35 U.S.C. § 103(a) as obvious over the combination of JP 64-14700 (hereinafter referred to as JP ‘700) and JP 60-79889 (hereinafter referred to as JP ‘889). Ans. 3. ISSUES Did the Examiner err in finding that the combination of JP ‘700 and JP ‘889 teaches or suggests a “vehicular rearview vision system . . . wherein said image enhancement comprises a graphic overlay superimposed on the displayed image indicating distances of objects from the vehicle and wherein 2 Since Appellant withdrew claims 11, 68, 70-74, 79, 81-115, 120, and 122- 154 (Reply Br. 2) we have removed them from the rejection statement. Appeal 2013-006429 Reexamination Control No. 90/011,477 Patent 5,949,331 4 said graphic overlay comprises at least one horizontal mark superimposed on the displayed image,” as recited in independent claim 3? Did the Examiner err in finding that the combination of JP ‘700 and JP ‘889 teaches or suggests a “vehicular rearview vision system . . . wherein said graphic overlay comprises at least one horizontal mark superimposed on the displayed image, and wherein said at least one horizontal mark comprises a plurality of short horizontal lines superimposed on the image at regular rearward intervals,” as recited in independent claim 5? Did the Examiner err in combining JP ‘700 and JP ‘889? ANALYSIS Claim 3 Claim 3 recites “[a] vehicular rearview vision system . . . wherein said image enhancement comprises a graphic overlay superimposed on the displayed image indicating distances of objects from the vehicle and wherein said graphic overlay comprises at least one horizontal mark superimposed on the displayed image.” The Examiner adopted the Requester’s proposed rejection of claim 3 over the combination of JP ‘700 and JP’889. Ans. 3 citing Final Office Action mailed February 2, 2012. Patent Owner argues that neither of the references, alone or in combination, teaches the disputed limitation. App. Br. 35. Patent Owner’s arguments revolve around the contention that the references teach predicting the path of a vehicle which only provides positional awareness and a perspective feeling, not the distance of objects from the vehicle. App. Br. 35-38. We disagree with Patent Owner for the reasons discussed below. Appeal 2013-006429 Reexamination Control No. 90/011,477 Patent 5,949,331 5 We note that as indicated by the Examiner (Ans. 3), the claim does not require a distance measurement or a distance determination. Instead, the claim requires there be a display that indicates distance from objects in some manner. The explicit manner in which the distance is indicated is not particularly claimed. The Examiner cites to a portion of Patent Owner’s Specification to show what was meant by the claim language. Ans. 4. In particular, the Examiner cites to column 10, lines 56-63 of the ‘331 patent that indicates horizontal lines spaced at intervals behind the vehicle can be used to show distances. Ans. 4. We agree with the Examiner. Patent Owner admits that Figure 3b of JP ‘700 shows a locus with frames in order to provide perspective to the driver of the vehicle. App. Br. 36. However, Patent Owner argues that this figure teaches a predicted path that is distorted to match the distorted image that is obtained through the use of a super-wide-angle backup camera and does not indicate a distance. App. Br. 37. Thus, again, Patent Owner contends that JP ‘700 only teaches a positional relationship that is not the same as reliably indicating what is behind a vehicle. App. Br. 37. The Examiner does not specifically rely on JP ‘700 to teach the disputed limitation. The Examiner finds that JP ‘700 teaches displaying the end portion of a vehicle on a backup display and that JP ‘889 teaches a graphic overlay indicating relative distances. Ans. 4-6. Therefore, the Examiner finds that JP ‘889 teaches the disputed limitation (Ans. 4-6) and Patent Owner’s arguments are not persuasive. Additionally, Patent Owner argues that JP ‘889 does not teach the disputed limitation either. App. Br. 38-41; Reply Br. 4-10. The Examiner finds that JP ‘889 teaches that the horizontal lines of the scale function indicate distances of objects from a vehicle by virtue of being superimposed Appeal 2013-006429 Reexamination Control No. 90/011,477 Patent 5,949,331 6 at regular, rearward intervals onto an image taken by a rear-facing camera installed on the vehicle. Ans. 4-6; see also JP ‘889, Fig. 2 and accompanying text. We agree with the Examiner that this finding in conjunction with the Examiner’s interpretation of the claim, indicated above, is enough to read on the disputed limitation. Nonetheless, Patent Owner provided expert testimony from Dr. Lynam to attempt to contradict the Examiner’s specific finding by presenting a scenario to illustrate the difference between a positional relationship, as found in the references, and an indication of distance. App. Br. 40-41; Reply Br. 5. Specifically, Dr. Lynam contends that when an individual is trying to back up into a parking spot, knowing whether to turn the steering wheel to the right or left (i.e., knowing the position of the vehicle) is a vital piece of information. App. Br. 40-41; see also Lynam Decl., ¶ 55. In order to finish parking the vehicle, Dr. Lynam contends, the driver must know the distance between the car and a wall. App. Br. 41; see also Lynam Decl. ¶ 55. Thus, Dr. Lynam contends that these are two different types of information. Lynam Decl. ¶ 55. While we have considered the evidence provided by Dr. Lynam, we do not find it to be persuasive. We agree with the Examiner (Ans. 8-9) that the graphic overlay that includes grid lines indicates at least a relative distance behind the vehicle and would indicate to the driver whether there is space (i.e., a particular distance) between the vehicle and an object. Appellant also argues that the scale of JP ‘889 does not indicate distances of objects from a vehicle, as is required of the graphic overlay recited by claim, because the numbers that correspond to the horizontal lines of the scale do not indicate distances of objects from a vehicle. App. Br. 38- Appeal 2013-006429 Reexamination Control No. 90/011,477 Patent 5,949,331 7 39; Reply Br. 8-9. We disagree. As indicated above, the claim does not require that the distances be a numerical number. Even so, the Examiner finds that Figure 2 of JP ‘889 contains markings that indicate whether an object is closer to the vehicle (50) or farther from the vehicle (200). Ans. 9. The Examiner finds that it is irrelevant the reference does not indicate what type of measurement (i.e., feet/inches) the markings represent as they still represent a distance. Ans. 11-12. Additionally, the Examiner finds that setting the type of measurement would be a design choice. Ans. 11. We agree with the Examiner (Ans. 7-12) that, although not required, JP ‘889 teaches a particular distance to an object indicated by the horizontal lines marked 50, 100, 150, and 200, in Figure 2. While those numbers do not indicate a particular measurement, we agree with the Examiner that one of ordinary skill in the art could design the system as they saw fit. Claim 5 Claim 5 recites a “vehicular rearview vision system . . . wherein said graphic overlay comprises at least one horizontal mark superimposed on the displayed image, and wherein said at least one horizontal mark comprises a plurality of short horizontal lines superimposed on the image at regular rearward intervals.” Patent Owner argues that neither of the references teaches a plurality of short horizontal lines. App. Br. 42-43. However, the Examiner finds that JP ‘889 teaches horizontal lines that are spaced at regular intervals that provide the same information as short horizontal lines. Ans. 12. Therefore, the Examiner finds that using short horizontal lines or long horizontal lines is merely a matter of design choice. Ans. 12. We agree with the Examiner as both types provide the same functionality. Appeal 2013-006429 Reexamination Control No. 90/011,477 Patent 5,949,331 8 Combination of JP ‘700 with JP ‘889 Patent Owner also argues that it would not have been obvious to one of ordinary skill in the art at the time of the invention to modify the graphic overlay of JP ‘700 to incorporate the scale of JP ‘889 because doing so would result in the scale being distorted in such a way as to render the scale unable to indicate distance. App. Br. 37; see also Lynam Decl. ¶ 50. The Examiner finds that JP ‘700 teaches that the graphic overlay is only distorted when a super-wide camera is used and, even if distorted when combined with JP ‘889; the combination would provide an indication of distance. Ans. 6; see also JP ‘700, pg. 4. We agree as the combination is nothing more than a combination of familiar elements according to known methods that yields predictable results. KSR Int’l Co, v. Teleflex, Inc., 550 U.S. 398, 416 (2007). Patent Owner has not cited to any evidence to support the assertion that the combination would be “uniquely challenging or difficult for one of ordinary skill in the art.” See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Patent Owner also argues that it would not have been obvious to one of ordinary skill in the art at the time of the invention to modify the graphic overlay of JP ‘889 to incorporate the scale of JP ‘889 because the small horizontal marks required by the claims are a nonobvious feature, as evidenced by the commercial success of at least some of the vehicle models that incorporate the horizontal marks. App. Br. 43. We disagree. Although Patent Owner contends that the commercial success of at least some of the vehicle models that incorporate the horizontal marks is due to the horizontal marks rather than some other cause (such as successful marketing), Patent Owner provides no evidence to support Appellant’s contention. See In re Appeal 2013-006429 Reexamination Control No. 90/011,477 Patent 5,949,331 9 Huang, 100 F.3d 135, 140 (holding that the inventor’s opinion as to the purchaser’s reason for buying the product is insufficient to demonstrate a nexus between the sales and the claimed invention). It follows that Patent Owner has not shown that the Examiner erred in concluding that the combination of JP ‘700 and JP ‘889 renders claims 3 and 5 unpatentable. As such, and for all of the reasons stated supra we sustain the Examiner’s rejection of those claims. Claims 6-9 The Patent Owner makes the same arguments with respect to claims 6-9 as with claims 3 and 5. App. Br. 44. Therefore, we sustain the Examiner’s rejection of these claims for the same reasons discussed supra, with respect to claims 3 and 5. CONCLUSION The Examiner did not err in finding that the combination of JP ‘700 and JP ‘889 teaches or suggests a “vehicular rearview vision system . . . wherein said image enhancement comprises a graphic overlay superimposed on the displayed image indicating distances of objects from the vehicle and wherein said graphic overlay comprises at least one horizontal mark superimposed on the displayed image,” as recited in independent claim 3. The Examiner did not err in finding that the combination of JP ‘700 and JP ‘889 teaches or suggests a “vehicular rearview vision system . . . wherein said graphic overlay comprises at least one horizontal mark superimposed on the displayed image, and wherein said at least one Appeal 2013-006429 Reexamination Control No. 90/011,477 Patent 5,949,331 10 horizontal mark comprises a plurality of short horizontal lines superimposed on the image at regular rearward intervals,” as recited in independent claim 5. The Examiner did not err in combining JP ‘700 and JP ‘889. SUMMARY We affirm the Examiner’s decision to adopt the rejection of claims 3 and 5-9 as obvious over the combination of JP ‘700 and JP ‘889. AFFIRMED Appeal 2013-006429 Reexamination Control No. 90/011,477 Patent 5,949,331 11 THIRD PARTY REQUESTER: SUGHRUE MION, PLLC 2100 PENNSYLVANIA AVENUE, NW SUITE 800 WASHINGTON DC 20037