Guennadi Riguer

Patent Trials and Appeals BoardApr 23, 2021

2020000524 (P.T.A.B. Apr. 23, 2021)

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. 15/496,972 04/25/2017 Guennadi Riguer 160305-US-NP 3561 163037 7590 04/23/2021 Advanced Micro Devices, Inc. c/o Kennedy Lenart Spraggins LLP 797 Sam Bass Road #2559 ROUND ROCK, TX 78681 EXAMINER GUO, XILIN ART UNIT PAPER NUMBER 2616 NOTIFICATION DATE DELIVERY MODE 04/23/2021 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): eofficeaction@appcoll.com kate@klspatents.com office@klspatents.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GUENNADI RIGUER _____________ Appeal 2020-000524 Application 15/496,972 Technology Center 2600 ____________ Before ST. JOHN COURTENAY III, LARRY J. HUME, and PHILLIP A. BENNETT, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1–20. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We affirm in part. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a) (2019). According to Appellant, the “real party in interest is Advanced Micro Devices, Inc.” See Appeal Br. 1. Appeal 2020-000524 Application 15/496,972 2 STATEMENT OF THE CASE2 Introduction Appellant’s claimed invention relates generally to methods and systems for “display pacing in multi-head mounted display virtual reality configurations.” Title. Independent Claim 1 1. A method of delivering video frame data to multiple VR displays, comprising: generating content for multiple VR displays; sensing for competing needs for resources with real time requirements of the multiple VR displays; if competing needs for resources with real time requirements are sensed, determining a selected refresh offset for refreshes of the multiple VR displays to avoid conflict between the competing needs for resources of the multiple VR displays; imposing the selected refresh offset; and delivering the content to the multiple VR displays. Appeal Br. 27 (disputed limitations emphasized). 2 We herein refer to the Final Office Action, mailed January 29, 2019 (“Final Act.”); Appeal Brief, filed June 20, 2019 (“Appeal Br.”); the Examiner’s Answer, mailed September 4, 2019 (“Ans.”), and the Reply Brief, filed October 28, 2019 (“Reply Br.”). Appeal 2020-000524 Application 15/496,972 3 Evidence The prior art relied upon by the Examiner as evidence is: Name Reference Date O’Neal et al. (“O’Neal”) US 2008/0246771 A1 Oct. 9, 2008 Oravainen US 2017/0330496 A1 Nov. 16, 2017 Hicks et al. (“Hicks”) US 2018/0075820 Al Mar. 15, 2018 Table of Rejections The rejections that remain before us on appeal are: Rej. Claims Rejected 35 U.S.C. § Reference(s)/Basis A 1, 3, 5, 8, 12, 15–17, 20 103 Oravainen B 2, 4, 9–11 103 Oravainen, Hicks C 6, 7, 13, 14, 18, 19 103 Oravainen, O’Neal ANALYSIS Rejection A under 35 U.S.C. § 103 We understand obviousness Rejection A as being over the single Oravainen reference in light of the knowledge of a person having ordinary skill in the art (PHOSITA). Issue: Did the Examiner err by providing an insufficient motivation for an artisan to modify the single Oravainen reference to teach or suggest Appeal 2020-000524 Application 15/496,972 4 the disputed limitations of independent claims 1, 8, and 15?3 The Examiner finds that “Oravainen does not specifically describe the refresh offset.” Final Act. 14. However, the Examiner finds: Oravainen discloses that the frame time is the total number of frames generated by the GPU for both left and right display. When the output frame time increases above an acceptable time, or “threshold frame time”, the total number of frames cannot be generated based on the nominal frame rate. It can be understood that the refresh offset between the right eye frame and the left eye frame is determined when the first frame time exceeds the threshold frame time (FIG. 5; paragraphs [0042]-[0044]). Id. Appellant contends that “[n]o skilled artisan would be motivated to jettison the detailed throttling resolution techniques [of Oravainen] in favor of refresh offset.” Appeal Br. 18. In particular, Appellant urges that “the skilled artisan viewing Oravainen would have had absolutely no motivation to modify, and in fact would have been taught away from modifying, Oravainen to impose a temporal refresh offset between the two eye displays 310A and 310B. After all, what skilled artisan would want to inflict discomfort on VR users?” Appeal Br. 19. We are not persuaded by Appellant’s “teaching away” argument because Appellant provides no evidence in support. It is well settled that mere attorney arguments and conclusory statements, which 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 Pearson, 494 F.2d 1399, 3 Throughout this opinion, we give the claim limitations the broadest reasonable interpretation (BRI) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appeal 2020-000524 Application 15/496,972 5 1405 (CCPA 1974) (attorney argument is not evidence). Thus, counsel’s arguments cannot take the place of factually supported objective evidence. See In re Huang, 100 F.3d 135, 139−40 (Fed. Cir. 1996). See also Manual of Patent Examining Procedure (MPEP) § 2145 (I) (“Attorney argument is not evidence unless it is an admission, in which case, an examiner may use the admission in making a rejection.”) (MPEP Ninth Edition, Rev. 10.2019, Last Revised June 2020). Regarding Appellant’s “teaching away” argument, our reviewing court guides: “A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.” Ricoh Co., Ltd. v. Quanta Computer, Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008) (citations omitted). However, a “finding that the prior art as a whole suggests the desirability of a particular combination need not be supported by a finding that the prior art suggests that the combination claimed by the patent applicant is the preferred, or most desirable, combination.” In re Fulton, 391 F.3d 1195, 1200 (Fed. Cir. 2004). Teaching an alternative or equivalent method, however, does not teach away from the use of a claimed method. In re Dunn, 349 F.2d 433, 438 (CCPA 1965). See DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009) (“A reference does not teach away [. . .] if it merely expresses a general preference for an alternative invention but does not ‘criticize, discredit, or otherwise discourage’ investigation into the invention claimed.”). Appeal 2020-000524 Application 15/496,972 6 Here, we find Appellant’s “teaching away” argument unavailing, because Appellant has not cited to specific language in Oravainen that criticizes, discredits, or otherwise discourages the invention claimed. Moreover, we find Oravainen is analogous art to the claimed invention because: (1) it is in the same field of endeavor as the claimed subject matter, and, (2) because it pertains to rendering images in virtual reality systems, and thus is reasonably pertinent to the problem faced by the inventor. See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004).4 We additionally focus our analysis on the following conditional language recited in the method claims: if competing needs for resources with real time requirements are sensed, determining a selected refresh offset for refreshes of the multiple VR displays to avoid conflict between the competing needs for resources of the multiple VR displays; imposing the selected refresh offset. Claim 1 (emphasis added). 4 In construing the scope of analogous art our reviewing court guides: “The Supreme Court's decision in KSR . . . directs us to construe the scope of analogous art broadly.” Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010). “The field of endeavor of a patent is not limited to the specific point of novelty, the narrowest possible conception of the field, or the particular focus within a given field.” Unwired Planet, LLC v. Google Inc., 841 F.3d 995, 1001 (Fed. Cir. 2016). A reference may be reasonably pertinent to the problem faced by the inventor where it would have “logically . . . commended itself to an inventor’s attention in considering his problem.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379–80 (Fed. Cir. 2007). Appeal 2020-000524 Application 15/496,972 7 This conditional language is similarly recited in method claim 8. See Ex parte Schulhauser, Appeal No. 2013-007847, 2016 WL 6277792, at *9 (PTAB, Apr. 28, 2016) (precedential) (holding “The Examiner did not need to present evidence of the obviousness of the remaining method steps of claim 1 that are not required to be performed under a broadest reasonable interpretation of the claim”); see also Ex parte Katz, Appeal No. 2010-006083, 2011 WL 514314, at *4–5 (BPAI Jan. 27, 2011). Applying the precedential guidance of Schulhauser here, the Examiner need not present evidence of the obviousness of the disputed conditional method steps because they are not required to be performed under the broadest reasonable interpretation of independent method claims 1 and 8.5 Therefore, on this record, and based upon a preponderance of the evidence, Appellant’s arguments regarding the disputed conditional limitations of claims 1 and 8 do not persuade us of error regarding the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness. 5 See, also e.g., Applera Corp. v. Illumina, Inc., 375 Fed. App’x. 12, 21 (Fed. Cir. 2010) (unpublished) (affirming a district court’s interpretation of a method claim as including a step that need not be practiced if the condition for practicing the step is not met); Cybersettle, Inc. v. Nat’l Arbitration Forum, Inc., 243 Fed. App’x. 603, 607 (Fed. Cir. 2007) (unpublished) (“It is of course true that method steps may be contingent. If the condition for performing a contingent step is not satisfied, the performance recited by the step need not be carried out in order for the claimed method to be performed.”). Appeal 2020-000524 Application 15/496,972 8 Accordingly, in light of the controlling authority of Schulhauser, we sustain the Examiner’s 35 U.S.C. § 103 Rejection A of independent method claims 1 and 8 over the single Oravainen reference. Rejection A of Dependent Claim 20 We note claim 20 depends directly from independent system claim 15 (“15. (Original) A virtual reality computing system, comprising: . . . .”). Independent system claim 15, and associated dependent claims 16–20, are not method claims, nor means-plus-function claims. Therefore, in contrast to our analysis of independent method claims 1 and 8 supra, the conditional limitation rule of Schulhauser does not apply to system claims 15–20. Dependent claim 20 recites: The virtual reality computing system of claim 15, wherein the multiple displays support dynamic refresh, the processor being operable to, if competing needs for resources with real time requirements are sensed, also determine a selected dynamic refresh rate for refreshes of the multiple VR displays to aid in avoiding conflict between the competing needs for resources of the multiple VR displays, and to impose the selected refresh offset and dynamic refresh rate. (emphasis added). The Examiner relies upon Oravainen, at paragraphs 30, 31, 37, and 38, as teaching or suggesting the disputed limitations of dependent claim 20. See Final Act. 23–25. Appellant contends that paragraph 37 of Oravainen does not disclose any refresh offset or dynamic refresh. See Appeal Br. 22 (emphasis added). Appellant notes that paragraph 37 of Oravainen instead discloses “refresh Appeal 2020-000524 Application 15/496,972 9 for both eyes being conducted at 120 frames per second.” Appeal Br. 22. Appellant further argues: Oravainen discloses the flip-flopping of which eye is receiving the reduced resolution and this occurs every other frame, so while refresh for both eyes is conducted at 120 frames per second, the flip-flopping which receives reduced resolution display is done at 60 frames per second. However, this is not staggered refresh of the right eye display 310A and the left eye display 310B. Id. Turning to the Specification for context regarding the broadest reasonable interpretation of the claim 20 terms “selected refresh offset” and “selected dynamic refresh rate,” we note the supporting descriptions found in paragraphs 13 and 15, as reproduced below in pertinent part: If competing needs for resources with real time requirements are sensed, a selected refresh offset for refreshes of the multiple VR displays is determined to avoid conflict between the competing needs for resources of the multiple VR displays. The selected refresh offset is imposed and the content is delivered to the multiple VR displays. Spec. ¶ 13 (emphasis added). The method wherein the multiple displays support dynamic refresh and comprising if competing needs for resources with real time requirements are sensed, also determining a selected dynamic refresh rate for refreshes of the multiple VR displays to aid in avoiding the competing needs for resources made by the multiple VR, and imposing the selected refresh offset and dynamic refresh rate. Spec. ¶ 15. In the Answer (6–7) the Examiner points to, inter alia, Oravainen at paragraph 30. Paragraph 30 describes in pertinent part: Appeal 2020-000524 Application 15/496,972 10 If the frame time 312 becomes too long (e.g., due to heavy processing demands), then the frame rate may drop because the frames are not ready for display at the rate necessary to maintain a target frame rate. As such, the adaptive rendering module 210 may take mitigating actions (e.g., lowering the resolution of one eye) based at least in part on the frame time 312 . . . . Oravainen ¶ 30. Based upon our review of the cited paragraphs 30, 31, 37, and 38 of Oravainen, we find a preponderance of the evidence supports Appellant’s contentions, because the Examiner has not fully developed the record regarding the necessary claim construction and specific mapping6 to show how a mitigating action such as lowering the resolution of one eye (e.g., as described in Oravainen (¶ 30)) teaches or suggests both of the disputed claim terms “imposing the selected refresh offset and dynamic refresh rate.” Claim 20 (emphasis added). The Examiner has conflated the meanings and mappings of these two disputed claim terms. “In the absence of any evidence to the contrary, we must presume that the use of . . . different terms in the claims connotes different meanings.” CAE Screenplates, Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317 (Fed. Cir. 2000). Accord Bd. of Regents of the Univ. of Tex. Sys. v. BENQ Am. Corp., 533 F.3d 1362, 1371 (Fed. Cir. 2008) (“Different claim terms are presumed to have different meanings.” (citation omitted)). 6 The mapping rule specifically requires: “When a reference is complex or shows or describes inventions other than that claimed by the applicant, the particular part relied on must be designated as nearly as practicable. The pertinence of each reference, if not apparent, must be clearly explained and each rejected claim specified.” 37 C.F.R. §1.104(c)(2) (emphasis added). Appeal 2020-000524 Application 15/496,972 11 Accordingly, for essentially the same reasons argued by Appellant (Appeal Br. 22), as further discussed above, we are constrained on this record to reverse the Examiner’s Rejection A of dependent claim 20. Rejection A of Independent System Claim 15 Independent claim 15 recites essentially the same conditional limitation at issue in claims 1 and 8. As noted above, because claim 15 is neither a method claim, nor a means-plus-function claim, the conditional limitation rule of Schulhauser does not apply to the “virtual reality computer system” of claim 15.7 Appellant’s sole argument for claim 15 asserts that “[i]ndependent claim 15 distinguishes over Oravainen for the same reasons discussed above for independent claim 1.” Appeal Br. 21. However, Appellant’s arguments regarding claim 1, as discussed supra, were limited to mere attorney arguments, which we did not find persuasive. And Schulhauser is applicable to independent method claims 1 and 8, for the reasons discussed above. Nevertheless, we have reversed claim 20, which directly depends upon independent claim 15, at least in part because we are persuaded by Appellant’s arguments that the cited paragraphs of Oravainen do not teach or suggest “determine a selected dynamic refresh rate for refreshes of the multiple VR displays.” (emphasis added). We emphasize that for independent method claims 1 and 8, we do not reach the same conclusion with respect to the limitation “determine a selected dynamic refresh rate for refreshes of the multiple VR displays” 7 The limited holding of Schulhauser applies only to two specific types of claims: method claims and means-plus-function claims. Appeal 2020-000524 Application 15/496,972 12 because of the conditional “if” limitation under the controlling guidance of Schulhauser. However, because independent system claim 15 is not a method claim to which Schulhauser applies, and because claim 15 recites “determine a selected refresh offset for refreshes of the multiple VR displays” (as in claim 20), we are constrained on this record to reverse Rejection A of independent claim 15, and also Rejection A of claims 16 and 17, which both depend directly from claim 15. Rejection C of Dependent Claims 18 and 19 Regarding Rejection C of dependent claims 18 and 19, which depend from claim 15, the Examiner has not shown that the secondary O’Neal reference teaches or suggests “determine a selected refresh offset for refreshes of the multiple VR displays,” as recited in independent claim 15. Therefore, we are constrained on this record to also reverse Rejection C of dependent claims 18 and 19. Rejections A, B, and C of Remaining Dependent Claims 2–7 and 9–14 Because dependent claims 2–7 and 9–14 depend variously from rejected method claims 1 or 8, which we affirmed on the basis of Schulhauser, as explained supra, the same basis for affirmance applies to all claims that depend from method claims 1 or 8 that were not separately argued. Regarding claim 3, Appellant essentially argues the same conditional limitation recited in claim 1, as similarly recited in claim 3 (“determining a selected dynamic refresh rate for refreshes of the multiple VR displays”) (emphasis added). See App. Br. 20–21. Therefore, we affirm the Examiner’s Rejection A of dependent claims 3, 5, and 12, and the Appeal 2020-000524 Application 15/496,972 13 Examiner’s Rejection B of dependent claims 2, 4, and 9–11, and the Examiner’s Rejection C of dependent claims 6, 7, 13, and 14, for the same reasons discussed above regarding independent method claims 1 and 8. CONCLUSION Based upon our application of the controlling conditional limitation rule of Schulhauser, the Examiner did not err in rejecting claims 1–14 under 35 U.S.C. § 103. However, for the reasons discussed above, the Examiner erred in rejecting claims 15–20 under 35 U.S.C. § 103. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 5, 8, 12, 15–17, 20 103 Oravainen 1, 3, 5, 8, 12 15−17, 20 2, 4, 9–11 103 Oravainen, Hicks 2, 4, 9–11 6, 7, 13, 14, 18, 19 103 Oravainen, O’Neal 6, 7, 13, 14 18, 19 Overall Outcome 1–14 15−20 FINALITY AND RESPONSE 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). See 37 C.F.R. § 41.50(f). AFFIRMED IN PART