Ex Parte Brulle-Drews et al

Patent Trial and Appeal Board

Dec 31, 2012

11209194 (P.T.A.B. Dec. 31, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte CHRISTIAN BRULLE-DREWS
and BARBARA METTERNICH
____________________

Appeal 2010-005846
Application 11/209,194
Technology Center 2600
____________________

Before ROBERT E. NAPPI, JUSTIN BUSCH, and LYNNE E.
PETTIGREW Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
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Application 11/209,194

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Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-27. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

Introduction
According to Appellants, the invention relates to color display devices
for navigation systems, and more specifically to a system which incorporates
user-input color vision deficiency information as a parameter for the
display’s color scheme. Spec. § Abstract.

STATEMENT OF THE CASE
Exemplary Claim
Claim 1 is exemplary and reproduced below:
1. An apparatus for controlling at least one parameter of a
color scheme for a color display device for use in a navigation
system, the apparatus comprising:
a color display device arranged to display visual
information to a user;
a user interface arranged to receive color vision
deficiency information from the user indicating the user's
ability to distinguish colors; and
a controller in communication with the color display
device and the user interface, within a single wholly
independent color display device wherein the controller is in
receipt of the color vision deficiency information from the user
interface and modifies a parameter associated with the color
scheme of the visual information displayed on the color display
device in response to the color vision deficiency information
received from the user interface.

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References
Bunce US 6,309,117 B1 Oct. 30, 2001
Bates US 6,809,741 B1 Oct. 26, 2004

Rejections
Claim 27 stands rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter.
Claims 1-27 stand rejected under 35 U.S.C. § 103(a) as being obvious
in view of Bunce and Bates.

ISSUES
Appellants argue claim 27 is directed to statutory subject matter
because the claim recites a “tangible machine readable medium.” App. Br.
8-9. Appellants also argue that their invention is patentable over the
combination of Bates and Bunce because neither reference teaches or
suggests a controller that both receives color vision deficiency information
and is located within the display device. App. Br. 9-10. Finally, Appellants
argue that there is no motivation to combine Bates and Bunce “because
storing preference locally is already disclosed by the Bunce patent.” App.
Br. 11.
Issue 1: Has the Examiner erred in rejecting claim 27 as being
directed to non-statutory subject matter?
Issue 2: Has the Examiner erred in determining that the combination
of Bates and Bunce teaches or suggests “a controller in communication with
the color display device and the user interface, within a single wholly
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independent color display device wherein the controller is in receipt of the
color vision deficiency information,” as recited in claim 1 and similarly
recited in claims 14 and 27?

ANALYSIS
Issue 1
We adopt the Examiner’s findings and conclusions with respect to the
rejection of claim 27 under 35 U.S.C. § 101. Transitory embodiments are not
directed to statutory subject matter. Examples include physical but transitory
forms of signal transmission such as radio broadcasts, electrical
signals through a wire, and light pulses through a fiber-optic cable, that
convey encoded information. In re Nuijten, 500 F.3d 1346, 1353-54 (Fed.
Cir. 2007). As found by the Examiner, the broadest reasonable interpretation
of Appellants’ claims, in light of their Specification (Spec. ¶ [041]), includes
tangible yet transitory media.
1

Issue 2
Appellants’ argue that Bates merely teaches storing user preferences
locally and furthermore does not teach using or storing color vision
deficiency information. App. Br. 10. Appellants therefore conclude that “the
color contrast adjuster [of Bates] can not [sic] be in receipt of the color
vision deficiency information as claimed by Applicants.” App. Br. 10.

1
See Subject Matter Eligibility of Computer Readable Media, 1351 Off. Gaz.
Pat. Office 212 (Feb. 23, 2010).
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The Examiner finds that Bunce discloses every limitation of claims 1,
14, and 27, except “that the controller is within a single wholly independent
color display device,” because the controller of Bunce is located remotely
from the display device. Ans. 4, 9. The Examiner relies on Bates for its
teaching of a controller (the color contrast adjuster) being part of “a wholly
independent color display device.” Ans. 4, 9-10. The Examiner finds that
Bates does receive color vision deficiency information and further points out
that, regardless of the information received, Bates is merely relied on for
locating the controller within the display device (as opposed to locating the
controller at a server). Ans. 11. The Examiner concludes that it would have
been obvious to combine the references based on a finding that locating the
controller locally would “reduce data transmitted as would be known in the
art.” Ans. 5, 10.
We agree with the Examiner’s findings and conclusions. The
Examiner has shown that Bates teaches a local controller and that Bunce
teaches every limitation of Appellants’ claims other than locating the
controller locally. Furthermore, notwithstanding Appellants’ arguments to
the contrary, the Examiner has provided a sufficient rationale explaining
why a person of ordinary skill in the art would have been motivated to locate
the controller of Bunce within the display device. Moreover, Bunce itself
provides support and additional evidence for such a finding. Bunce states:
[V]ariations in configuration and implementation will occur to
persons skilled in the art. For instance, while the color
management server 112 and associated resources have been
described as being remote from network site 106, the functions
of the color management server 112 may be partly or wholly
integrated in network site 106. Other computing or other
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resources described as separate can be combined into one, or
computing or other resources described as singular can be
distributed amongst different platforms in different
implementations.

Bunce col. 4 l. 64 – col. 5 l. 7.
Finally, to the extent that Appellants are arguing that Bates shows a
local controller but does not show a controller in receipt of color vision
deficiency information, and that Bunce shows a remote controller (but not a
local controller) in receipt of color vision deficiency information, we find
that Appellants are arguing references independently when the rejection is
based on the combination of Bates and Bunce. One cannot show
nonobviousness by attacking references individually where the rejections are
based on a combination of references. See In re Keller, 642 F.2d 413, 426
(CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Therefore, we are not persuaded by Appellants’ arguments and agree
with the Examiner’s conclusion that independent claims 1, 14, and 27 are
obvious in view of the combination of Bates and Bunce. We also agree with
the Examiner’s conclusions with respect to dependent claims 2-13 and 15-
26, not argued separately.

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DECISION
The Examiner’s rejection of claims 1-27 is affirmed.

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) (2011).

AFFIRMED

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