Ex Parte Kasahara

Patent Trial and Appeal Board

Nov 22, 2016

13435967 (P.T.A.B. Nov. 22, 2016)

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.
13/435,967 03/30/2012 Shunichi KASAHARA 1946-0386 2809
60803 7590 11/23/2016
Paratus Law Group, PLLC
1765 Greensboro Station Place
Suite 320
Tysons Corner, VA 22102
EXAMINER
WANG, YI
ART UNIT PAPER NUMBER
2611
MAIL DATE DELIVERY MODE
11/23/2016 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 SHUNICHIKASAHARA
Appeal 2016-002164
Application 13/435,967
Technology Center 2600
Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 1—20. We have jurisdiction under 35
U.S.C. § 6(b).
We Affirm.
The Invention
The claimed invention relates to “a display control device comprising
a determining unit configured to determine an orientation of a real object in
a real space image.” Abstract.
Appeal 2016-002164
Application 13/435,967
Representative Claim
1. A display control device comprising:
a determining unit configured to determine an orientation
angle of a real object in a real space image in relation to an
optical axis of the real space image;
a control unit configured to:
select between a first virtual object orientation and a
second virtual object orientation of a virtual object based on
the real object orientation angle, wherein the first virtual object
orientation is on substantially the same plane as a surface of the
real object in the real space image and the second virtual object
orientation is in a different plane than the surface of the real
object in the real space image; and
output an image on a display device of the virtual object
with the selected orientation at least partially superimposed on
the real object.
(Contested “select” clause limitation emphasized)
Rejections
A. Claims 1—10 and 12—20 are rejected under 35 U.S.C. § 103(a) as
being obvious over the combined teachings and suggestions of Zimmerman
et al. (“Zimmerman”) (US 2012/0113141 Al, published May 10, 2012) and
Jetha et al. (“Jetha”) (US 6,661,426 Bl, issued Dec. 9, 2003).
B. Claim 11 is rejected under 35 U.S.C. § 103(a) as being obvious
over the combined teachings and suggestions of Zimmerman, Jetha, and
Whytock et al. (“Whytock”) (US 2010/0177931 Al, published July 15,
2010).
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Application 13/435,967
Claim Grouping
Based on Appellant’s arguments (Supp. App. Br. 11—19), we decide
the appeal of rejection A of claims 1—10 and 12—20 based on representative
independent claim 1. We address rejection B of remaining dependent
claim 11, argued separately, infra. See 37 C.F.R. § 41.37(c)(l)(iv).
ANALYSIS
We have considered all of Appellant’s arguments and any evidence
presented. We disagree with Appellant’s contentions regarding the
Examiner’s obviousness rejections of the claims. We adopt as our own:
(1) the findings and legal conclusions set forth by the Examiner in the action
from which this appeal is taken, and (2) the findings, legal conclusions, and
explanations set forth in the Answer in response to Appellant’s arguments.
We highlight and address specific findings and arguments for emphasis in
our analysis below.
Rejection A of Independent Claim 1 under 35 U.S.C. § 103(a)
Issue: Under § 103, did the Examiner err by finding the cited
combination of references would have taught or suggested the contested
“select” clause limitation, within the meaning of representative claim 1,
under a broad but reasonable interpretation? 1
1 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 111 F.3d
1048, 1054 (Fed. Circ. 1997). See e.g., Spec. 1110 (“Although preferred
embodiments of the present disclosure are described above with reference to
the appended drawings, the present disclosure is not limited thereto. It
should be understood by those skilled in the art that various modifications,
combinations, subcombinations and alterations may occur depending on
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Application 13/435,967
Regarding the contested “select” clause limitation of independent
claim 1, Appellant contends:
Jetha does not have any disclosure, teaching, or suggestion
relating to selecting orientations of a virtual object based on the
orientation of a real object. In fact, Jetha does not relate to the
combination of real objects and virtual objects in a display
scenario.
(Supp. App. Br. 12).
Appellant further contends:
The Appellant respectfully and strenuously traverses the
unsubstantiated and erroneous assertion that “the combination of
Zimmerman and Jetha teaches selecting ‘between a first virtual
object orientation and a second virtual object orientation of a
virtual object based on the real object orientation angle’.” This
erroneous assertion is inconsistent with the admissions on page
7 of the Final Office Action and not supported by the actual prior
art disclosure.
(Supp. App. Br. 17).
We agree with the Examiner’s conclusion that the Appellant is
arguing the references separately.* 2 (Ans. 14—15).
The Examiner finds Jetha teaches selecting between first and second
orientations of ancillary data, based on the orientation of the prismatic body
(Ans. 13, citing Jetha, col. 5 lines 30—60). The Examiner finds Zimmerman
design requirements and other factors insofar as they are within the scope of
the appended claims or the equivalents thereof.”) (Emphasis added).
2 One cannot show nonobviousness by attacking references
where the rejections are based on combinations of references. In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
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Application 13/435,967
teaches a camera capturing real objects and generating an image comprising
one or more virtual objects combined with a real object, and further teaches
changing the angle of a virtual object based on the virtual or real object
orientation on which the virtual object is superimposed. (Ans. 13—14, citing
Zimmerman Fig. 1, || 14, 22, 24, 68).
We find a preponderance of the evidence supports the Examiner’s
findings. Zimmerman’s augmented image (118-2), as shown in Fig. 5C, of a
hand (real object 106-2, Fig. 1), is depicted holding a cell phone in multiple
different positions (virtual images), where the angle of orientation of the cell
phone images depends on both the image of the hand and the virtual image
of various positions of the cell phone. We find these multiple different
angled positions of the cell phone in the image of a hand teach or suggest the
contested limitation: “select between a first virtual object orientation and a
second virtual object orientation of a virtual object based on the real object
orientation angle,” as recited in claim 1. (Zimmerman | 68, Fig. 5C). As
found by the Examiner, Zimmerman’s Augmented Reality System 100 (Fig.
1), and Figure 5C, which depicts the orientation angles of the various
positions of the cell phone based on the user’s hand orientation, teach or at
least suggest the disputed limitation. (Ans. 13—14, Zimmerman | 68, Figs.
1,5C).
Moreover, given that Zimmerman (id.) evidences that determining
orientation angles of images of objects relative to each other was well
known in the art, we find selecting between a first and second virtual object
orientation of a virtual object based on the orientation angle of a real object
would have merely produced a predictable result. On this record, Appellant
has not shown that such virtual object orientation selection would have been
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Application 13/435,967
more than a combination of prior art elements according to known methods
to yield predictable results. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398,
416 (2007).
Nor has Appellant provided evidence that combining such known
elements or steps would have been “uniquely challenging or difficult for one
of ordinary skill in the art,” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485
F.3d 1157, 1162 (Fed. Cir. 2007), or would have yielded unexpected results.
Appellant argues a limitation in the Reply Brief that was not raised in
the Appeal Brief, i.e., “determine an orientation angle of a real object
(Reply Br. 4). We note arguments raised in a Reply Brief that were not
raised in the Appeal Brief or are not responsive to arguments raised in the
Examiner’s Answer will not be considered except for good cause, which
Appellant has not shown. See 37 C.F.R. § 41.41(b)(2).
Appellant further contends, “[I]t is apparent from the teachings of
Zimmerman that the first virtual object and the second virtual object are not
real objects.” (Reply Br. 4). We are not persuaded by Appellant’s
argument, because Zimmerman’s Figure 1 and paragraph 68 both describe
real and virtual objects. Further, we agree with the Examiner’s reading of a
“real object” as recited in claim 1, on Zimmerman’s hand as a real object
(Figures 1 and 5C) (Ans. 13—15; Final Act. 5—7, citing Zimmerman Fig. 1
and 1 68).
Appellant raises an untimely hindsight argument in the Reply Brief.
(Reply Br. 6), where Appellant merely alleges the Examiner has relied on
“impermissible hindsight” without presenting any substantive argument or
reasoning. Mere conclusory statements that are unsupported by factual
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Application 13/435,967
evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Because Appellant has not persuaded us that the Examiner erred, we
sustain § 103 rejection A of representative independent claim 1, and the
associated grouped claims, which fall therewith. (See Grouping of Claims,
supra.)
Rejection B of dependent Claim 11 under 35 U.S.C. § 103(a)
Appellant advances no separate, substantive arguments regarding
dependent claim 11, but urges this rejected claim is not obvious for the same
reasons previously advanced regarding claim 1, and that “Whytock fails to
remedy the deficiencies of Zimmerman and Jetha . . . .” (Supp. App.
Br. 19). Because we find no deficiencies regarding rejection A of
independent claim 1, on this record, we are not persuaded the Examiner
erred regarding rejection B of dependent claim 11. Arguments not made are
waived. See 37 C.F.R. § 41.37(c)(l)(iv). Therefore, we sustain rejection B
of claim 11.
Conclusion
For at least the aforementioned reasons, on this record, we are not
persuaded the Examiner erred. We find a preponderance of the evidence
supports the Examiner’s underlying factual findings and ultimate legal
conclusion of obviousness for all contested claims on appeal.
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DECISION
We affirm the Examiner’s decision rejecting claims 1—20
under § 103(a).
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). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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