Ex Parte Karman et al

Patent Trial and Appeal BoardFeb 27, 2014

10574140 (P.T.A.B. Feb. 27, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte GERARDUS P. KARMAN and VOLKER SCHOELLMANN ____________________ Appeal 2011-008369 Application 10/574,140 Technology Center 2600 ____________________ Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-008369 Application 10/574,140 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1-22 and 24-35. We have jurisdiction under 35 U.S.C. § 6(b). The Examiner has withdrawn the rejection of claims 18 and 31, which are indicated as now objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all the limitations of the base claim and any intervening claims. (Ans. 19).1 Claims 23 and 36 have been cancelled. We affirm. The claims are directed to optimising brightness control in a three dimensional image display device. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A display device for displaying a three dimensional image such that different views are displayed according to different viewing angles, the display device including: a display panel having a plurality of separately addressable pixels for displaying said image, the pixels being grouped such that different pixels in a group correspond to different views of the image as a function of an angle with respect to a first axis, each pixel in a group being positioned relative to a respective discrete light source; a display driver for controlling an optical characteristic of each pixel to generate an image according to received image data; and an intensity compensation device for further controlling light transmission characteristics of pixels within a group to compensate for an angular size of view, of the respective light 1 Note that these two claims are still rejected under nonstatutory obviousness-type double patenting. Appeal 2011-008369 Application 10/574,140 3 source, via said pixels in a second axis of the display panel, wherein the second axis is transverse to the first axis. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Akamatsu US 6,172,807 B1 Jan. 9, 2001 Balogh US 2001/0028356 A1 Oct. 11, 2001 Mochizuki US 6,386,720 B1 May 14, 2002 Sawabe US 7,113,159 B2 Sep. 26, 2006 REJECTIONS The Examiner made the following rejections: Claims 1-13, 22, 24-26, and 35 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Balogh in view of Sawabe. Claims 14-17 and 27-30 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Balogh in view of Sawabe as applied to claims 1 and 22 above, and further in view of Akamatsu. Claims 19-21 and 32-34 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Balogh in view of Sawabe as applied to claims 1 and 22 above, and further in view of Mochizuki. Claims 1-22 and 24-35 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-18 and 20-27 of co-pending Application No. 10/574,142. Appellants seek our review of the all the rejections in the final rejection. (Notice of Appeal). Appeal 2011-008369 Application 10/574,140 4 ANALYSIS Obviousness-Type Double Patenting Appellants do not respond to the Examiner’s obviousness-type double patenting rejection, but merely state “[t]he Applicants have acknowledged this provisional rejection and will address the rejection if the claims of the applications are deemed allowable and remain subject of a non-provisional double patenting rejection.” (App. Br. 4, n.1 (emphasis omitted)). Since Appellants have not substantively responded to the rejection, but appealed all rejections in the final, we pro forma affirm the Examiner’s rejection of claims 1-22 and 24-35. Obviousness With respect to claims 1-13, 22, 24-26, and 35, Appellants argue the claims as a group. (App. Br. 4). Therefore, we select independent claim 1 as the representative claim for the grouping. Appellants contend that neither Balogh nor Sawabe discloses or suggests “an intensity compensation device for further controlling light transmission characteristics of pixels within a group to compensate for an angular size of view, of the respective light source, via said pixels,” as recited in claim 1. (App. Br. 5). The Examiner has relied upon the Sawabe reference to teach and suggest the intensity compensation device. (Ans. 5). Appellants contend that independent claim 1 is directed to a “‘display device for displaying a three dimensional image’” and the grouping of pixels is related to three-dimensional image that will be displayed by the display device. (App. Br. 5). Appellants contend this is not the case for the two dimensional display such as described by the Sawabe Appeal 2011-008369 Application 10/574,140 5 reference. Appellants provide a detailed description of the three- dimensional displays and two dimensional displays. (App. Br. 5-6). The Examiner maintains that claim 1 only sets forth three-dimensional display in the preamble and the body of the claim sets forth no meaningful limitations thereto. (Ans. 19). We agree with the Examiner. We note that Appellants did not file a Reply Brief to respond to the Examiner’s detailed responsive arguments. Furthermore, we find the “image” is directed to nonfunctional descriptive material which does not structurally distinguish the claimed “display device” including a “display panel,” “display driver,” and “intensity compensation device.” The informational content of non-functional descriptive material is not entitled to weight in the patentability analysis. See In re Lowry, 32 F.3d 1579, 1583 (Fed. Cir. 1994) (“Lowry does not claim merely the information content of a memory. . . . Nor does he seek to patent the content of information resident in a database.”). See also Ex parte Nehls, 88 USPQ2d 1883, 1887-90 (BPAI 2008) (precedential); Ex parte Curry, 84 USPQ2d 1272 (BPAI 2005) (informative), aff’d, No. 2006-1003 (Fed. Cir. June 12, 2006) (Rule 36); Ex parte Mathias, 84 USPQ2d 1276 (BPAI 2005) (informative), aff’d, 191 Fed. Appx. 959 (Fed. Cir. 2006). Appellants merely set forth the label “three-dimensional image” in the preamble, but identify no structural limitations with which to differentiate the claimed display device. Appellants further contend that the Sawabe reference is a binary adjustment for a two-dimensional display and that both viewers will see the same pixels as the viewer at narrow viewing angles and wide viewing angles (App. Br. 6). Appeal 2011-008369 Application 10/574,140 6 Appellants further contend: because “the pixels [are] grouped such that different pixels in a group correspond to different views of the image as a function of an angle. That is, viewers at different viewing angles are not seeing the same pixels, they are seeing the pixels that correspond to the viewing angle at which they are viewing the display. A viewer at a first angle sees a “different view[] of the image” than a viewer at a second angle. (App. Br. 6 (alteration in original)). The Examiner maintains that Appellants’ argument is not commensurate in scope with the express language of independent claim 1 and does not specify beyond what is taught by the Sawabe reference. (Ans. 20). The Examiner maintains: the correction of Sawabe would be improper if applied to all the pixels in the group, but the claim language merely discusses controlling the pixels within a group, rather than individually controlling a correction factor to be applied to each pixel. Generally, Appellant appears to be arguing that Sawabe fails to teach individually correcting pixel values for a three- dimensional display which projects the image from each pixel in a different direction, but the claim language does not reflect these arguments. (Ans. 20). We agree with the Examiner and further find Appellants’ argument does not show any structural difference in the claimed display device. Appellants further repeat the language of independent claim 1 and maintain “neither Balogh nor Sawabe, either alone or in combination, teach or suggest” the claimed limitation. (App. Br. 7). Merely reciting the language of the claim is insufficient. See 37 C.F.R. § 41.37(c)(vii) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”). Merely alleging that the references fail to support the rejection is insufficient to Appeal 2011-008369 Application 10/574,140 7 persuade us of Examiner error. Attorney arguments and conclusory statements that are unsupported by factual evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); and Ex parte Belinne, No. 2009-004693, slip op. at 7-8 (BPAI Aug. 10, 2009) (informative), available at http://www.uspto.gov/web/offices/dcom/bpai/its/fd09004693.pdf. Therefore, Appellants have not shown error in the Examiner’s conclusion of obviousness and we sustain the rejection of representative independent claim 1, and dependent claims 2-13 not argued separately. With respect to independent claim 22, Appellants advance the same arguments as with independent claim 1. (App. Br. 7-8). Since we found in those arguments unpersuasive with respect to independent claim 1, we similarly find them unpersuasive with respect to independent claim 22, and dependent claims 24-26 and 35 not argued separately. With respect to claims 14-17 and 27-30, Appellants repeat the language of the claim and maintain that the Akamatsu reference does not remedy the deficiency in the combination of Balogh and Sawabe as applied to claims 1 and 22. We find Appellants’ arguments unpersuasive of error in the Examiner’s conclusion of obviousness of representative claim 14. With respect to claims 19-21 and 32-34, Appellants repeat the language of the claim and maintain that the Mochizuki reference does not remedy the deficiency in the combination of Balogh and Sawabe as applied to claims 1 and 22. We find Appellants’ arguments unpersuasive of error in the Examiner’s conclusion of obviousness of representative claim 19. Appeal 2011-008369 Application 10/574,140 8 CONCLUSIONS OF LAW The Examiner did not err in rejecting claims 1-22 and 24-35 based upon nonstatutory obviousness-type double patenting. The Examiner did not err in rejecting claims 1-17, 19-22, 24-30, and 32-35 based upon obviousness. DECISION For the above reasons, the Examiner’s rejections of claims 1-22 and 24-35 are 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). AFFIRMED msc