Ex Parte Jung et al

Patent Trial and Appeal BoardNov 30, 2012

11895631 (P.T.A.B. Nov. 30, 2012)

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. 11/895,631 08/24/2007 Edward K.Y. Jung SE1-0454-US 1930 80118 7590 12/03/2012 Constellation Law Group, PLLC P.O. Box 220 Tracyton, WA 98393 EXAMINER SMALL, NAOMI J ART UNIT PAPER NUMBER 2682 MAIL DATE DELIVERY MODE 12/03/2012 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 EDWARD K.Y. JUNG, ROYCE A. LEVIEN, ROBERT W. LORD, MARK A. MALAMUD, and JOHN D. RINALDO, JR. ____________ Appeal 2011-008068 Application 11/895,631 Technology Center 2600 ____________ Before MARC S. HOFF, CARLA M. KRIVAK, and ELENI MANTIS MERCADER , Administrative Patent Judges. MANTIS MERCADER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-008068 Application 11/895,631 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-16 and 20-25. App. Br. 13. We have jurisdiction under 35 U.S.C. § 6(b). We Affirm. THE INVENTION Appellants’ claimed invention is directed to generating data indicative of a physical orientation of a person relative to a display operable to present the content (Spec. ¶ [01]). Independent claim 1, reproduced below, is representative of the subject matter on appeal. 1. A method of individualizing a presentation of a content, the method comprising: receiving data indicative of a physical orientation of a person relative to a display operable to present the content; selecting a display parameter of the presented content in response to the received data indicative of a physical orientation of a person, wherein the selecting a display parameter of the presented content in response to the received data indicative of a physical orientation of a person further comprises at least: selecting a physical display parameter of the presented content in response to the received data indicative of a physical orientation of a person; and selecting a portion and/or location of a display screen real estate to present the content in response to the received data indicative of a physical orientation of a person and employing the selected display parameter in presenting the content. Appeal 2011-008068 Application 11/895,631 3 REFERENCES and REJECTIONS The Examiner rejected claims 1-16 and 20-25 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1, 7, 8, 12, 15, and 17 of co-pending Application Number 11/906,186. Ans. 4-7. The Examiner rejected claims 1, 2, 4, 6-12, 16, and 20-25 under 35 U.S.C. § 103(a) based upon the teachings of Bell (U.S. Patent Application Publication Number 2006/0132432 A1, published June 22, 2006) and Yui (U.S. Patent Application Publication Number 2002/0175924 A1, published November 28, 2002). Ans. 7-19. The Examiner rejected claims 3 and 5 under 35 U.S.C. § 103(a) based upon the teachings of Bell, Yui, and Taylor (U.S. Patent Application Publication Number 2004/0075645 A1, published April 22, 2004). Ans. 19-22. The Examiner rejected claims 13-15 under 35 U.S.C. § 103(a) based upon the teachings of Bell, Yui, and Coleman (U.S. Patent Number 5,697,687, issued December 16, 1997). Ans. 22-23. ISSUES The issues are whether the Examiner erred in finding that: 1. Yui teaches the limitation: “in response to the received data indicative of a physical orientation of a person” as recited in claim 1 (emphasis added); 2. Taylor teaches the claim limitation: “receiving data indicative of a gaze orientation of a person relative to a display operable to present the content” as recited in claim 3; and Appeal 2011-008068 Application 11/895,631 4 3. The combination of Bell, Yui, and Coleman teaches the limitation: “receiving data indicative of a physical orientation of a person relative to a display having a visual screen area greater than three square feet and operable to present the content” as recited in claim 13. PRINCIPLES OF LAW “[O]ne cannot show non-obviousness by attacking references individually where . . . the rejections are based on combinations of references.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). ANALYSIS Claims 1-16 and 20-25 The Examiner rejected claims 1-16 and 20-25 as being unpatentable over claims 1, 7, 8, 12, 15, and 17 of co-pending Application Number 11/906,186 based on nonstatutory obviousness-type double patenting. Ans. 4-7. Appellants have not presented any arguments regarding this rejection. Accordingly, we pro forma affirm this rejection. Claims 1, 2, 4, 6-12, 16, and 20-25 Appellants argue that Yui does not teach the limitation: “in response to the received data indicative of a physical orientation of a person” as recited in claim 1 (emphasis added) (App. Br. 28-29). Appellants explain that Yui’s “scaling magnification ratio” relates to “magnification” and not an “orientation” (App. Br. 29). We do not agree with Appellants’ arguments. We adopt the Examiner’s findings and reasoning from the Answer (Ans. 24). The Appeal 2011-008068 Application 11/895,631 5 Examiner found that Yui teaches that when an audience member utilizes a display pointer controller and actuates a settlement control button, the distance of the audience member from the display screen is calculated (Ans. 24; ¶ [0081]). Using the distance measurement, the image on the display screen is scaled to an appropriate magnification which corresponds to the distance of the audience member from the display (Ans. 24; ¶ [0089]). The Examiner concluded, and we agree, that Yui teaches the size of the displayed image is dependent upon the position/distance of an individual in an audience (i.e., orientation) (Ans. 24). This interpretation is consistent with Appellants’ own Specification, which states that “orientation information may include bearing and distance” (Spec. ¶ [038] (emphases added)). Appellants assert that the rationale articulated by the Examiner constitutes a conclusory statement and that the Examiner’s interpretation is based on impermissible hindsight and personal knowledge (App. Br. 32-34). However, Appellants do not explain why the Examiner’s motivation of improving the device of Bell with the teachings of Yui for providing an efficient presentation of images and ease of viewing by the audience is not reasonable (see App. Br. 33-34). We find the Examiner’s rationale reasonable (Ans. 9-10), and as such, we do not agree with Appellants’ argument. Accordingly, we affirm the Examiner’s rejection of claim 1. For the same reasons we also affirm the Examiner’s rejection of claims 2, 4, 6-12, 16, and 20-25 because Appellants relied on the same arguments as those for claim 1 by way of their dependency (App. Br. 34). Appeal 2011-008068 Application 11/895,631 6 Claims 3 and 5 Appellants argue that Taylor does not teach the claim limitation: “receiving data indicative of a gaze orientation of a person relative to a display operable to present the content” as recited in claim 3 (App. Br. 36). We do not agree. The Examiner found, and we agree, that Taylor teaches a camera receiving images of an individual’s gaze while operating a device with a display screen (Fig. 1, Camera 8; ¶ [0038]) and then using those images to calibrate the system for that individual for determining the gaze location of the individual while utilizing the display screen (¶ [0039]) (see Ans. 24-25). Therefore, the claim limitation “receiving data indicative of a gaze orientation of a person relative to a display operable to present the content,” is taught by Taylor. Appellants further argue that even if Taylor teaches the disputed limitation, it is unclear how this can serve the “hands free operation” of Bell (App. Br. 40). We do not agree with Appellants. We agree with the Examiner (Ans. 25), that Bell teaches utilizing the physical orientation of an individual relative to a display screen to manipulate images on the display screen (¶ [0013]). We also agree with the Examiner that Taylor teaches the use of gaze tracking for the purposes of effecting cursor control or icon selection on a display screen (¶ [0002]). Finally, we agree with the Examiner’s rationale that it would be obvious to one of ordinary skill in the art to combine the teachings of Bell and Taylor for the purposes of utilizing gaze tracking in addition to physical orientation of an individual in place of physically actuating a selection tool, such as, a mouse or a button (Ans. 26). Appeal 2011-008068 Application 11/895,631 7 Accordingly, we affirm the Examiner’s rejection of claim 3. For the same reasons we also affirm the Examiner’s rejection of claim 5 for which Appellants raise the same arguments as those for claim 3 (App. Br. 43-47). Claims 13-15 Appellants argue that the Examiner inappropriately mapped “the screen represents a large area, for example, approximately 21 square feet” as taught by Coleman on the limitation of “receiving data indicative of a physical orientation of a person relative to a display having a visual screen area greater than three/six/twelve square feet and operable to present the content” as recited in claims 13-15 (App. Br. 49). We do not agree. One cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references. See Keller, 642 F.2d at 425. We agree with the Examiner that Coleman was merely used to teach “a display having a visual screen area of greater than three/six/twelve square feet and operable to present the content” (Ans. 27). The Examiner relied on Bell, rather than Coleman, to teach the limitation “receiving data indicative of a physical orientation of a person relative to a display” (¶ [0013]). Appellants further argue that it is unclear how the display of Coleman can serve the “hands free operation” of Bell (App. Br. 28). We agree with the Examiner that Coleman was solely introduced for the teaching of a display screen with a visual display area of greater than three/six/twelve square feet (App. Br. 28). As we stated above, one cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references. See Keller, 642 F.2d at 425. Appeal 2011-008068 Application 11/895,631 8 Accordingly, we affirm the rejection of claim 13 and for the same reasons the rejection of claims 14 and 15. CONCLUSIONS 1. Yui teaches the limitation: “in response to the received data indicative of a physical orientation of a person” as recited in claim 1 (emphasis added); 2. Taylor teaches the claim limitation: “receiving data indicative of a gaze orientation of a person relative to a display operable to present the content” as recited in claim 3; and 3. The combination of Bell, Yui, and Coleman teaches the limitation: “receiving data indicative of a physical orientation of a person relative to a display having a visual screen area greater than three square feet and operable to present the content” as recited in claim 13. DECISION The Examiner’s decision rejecting claims 1-16 and 20-25 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)(2010). AFFIRMED babc