Magic Leap, Inc.Download PDFPatent Trials and Appeals BoardMay 12, 20212019006711 (P.T.A.B. May. 12, 2021) Copy Citation 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. 14/704,971 05/06/2015 Brian T. Schowengerdt ML.20006.303 4764 132471 7590 05/12/2021 Vista IP Law Group, LLP (Magic Leap, Inc.) 2160 Lundy Ave., Ste. 230 San Jose, CA 95131 EXAMINER SUN, HAI TAO ART UNIT PAPER NUMBER 2616 NOTIFICATION DATE DELIVERY MODE 05/12/2021 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): docketing@viplawgroup.com sp@viplawgroup.com vlm@viplawgroup.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRIAN T. SCHOWENGERDT and SAMUEL A. MILLER Appeal 2019-006711 Application 14/704,971 Technology Center 2600 Before CAROLYN D. THOMAS, JASON V. MORGAN, and DAVID J. CUTITTA II, Administrative Patent Judges. CUTITTA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1–20, which are all of the claims pending and under consideration in the application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Magic Leap, Inc. Appeal Brief filed June 24, 2019 (“Appeal Br.”) 2. Appeal 2019-006711 Application 14/704,971 2 CLAIMED SUBJECT MATTER Summary Appellant’s claimed subject matter relates to implementing “accurate and low latency head pose detection” in “head-tracked display systems.” Spec. ¶ 9.2 According to Appellant, “[i]f the latency [in the head-tracked display system] is high, the system can create a mismatch between the user’s vestibular and visual sensory systems, and generate motion sickness or simulator sickness.” Id. ¶ 6. Exemplary Claims Claims 1 and 18 are independent. Claims 1 and 3, reproduced below with certain limitations at issue italicized, exemplify the claimed subject matter: 1. A method of operation in a virtual image presentation system, the method comprising: rendering a first complete frame having a first portion and a second portion to an image buffer; displaying a first frame in a sequence of frames for virtual contents in a field of view of a user at least by retrieving at least a portion of the first complete frame from the image buffer and projecting light beams corresponding to the at least the portion of the first complete frame to at least one eye of the user with a projector of a virtual image presentation system; determining an updated first portion to the first portion in the first complete frame based at least in part upon a predicted location of a virtual object for displaying in a subsequent frame after the first frame in the sequence of frames for the virtual 2 In addition to the Appeal Brief noted above, we refer to: (1) the originally filed Specification filed May 6, 2015 (“Spec.”); (2) the Final Office Action mailed December 21, 2018 (“Final Act.”); (3) the Examiner’s Answer mailed July 12, 2019 (“Ans.”); and (4) the Reply Brief filed September 11, 2019 (“Reply Br.”). Appeal 2019-006711 Application 14/704,971 3 contents to the user, wherein the virtual object is predicted to change its location to the predicted location in the updated first portion; preparing the subsequent frame in the sequence of frame by initiating retrieval of the first complete frame from the image buffer; dynamically interrupting, based at least in part upon the predicted location, the retrieval of the first complete frame for the subsequent frame before completion of the retrieval of the first complete frame; retrieving the updated first portion, without retrieving the first portion of the first complete frame, for the subsequent frame; adjusting one or more perceived pixel sizes of a plurality of pixels in the subsequent frame into one or more adjusted pixel sizes based at least in part upon non-uniformity of pixel spacing between adjacent pixels in the plurality of pixels; and displaying the subsequent frame for the virtual contents with variable resolutions between the updated first portion and the second portion with the into one or more adjusted pixel sizes at least by replacing the first portion in the first frame with the updated first portion for the subsequent frame. 3. The method of claim 1, further comprising substituting an updated second spiral scan line for the second spiral scan line of the first complete frame. Appeal Br. 72–73 (Claims App.). REFERENCES The Examiner relies on the following prior art references:3 Name Reference Date Haskell US 3,632,865 Jan. 4, 1972 Albrecht US 5,138,555 Aug. 11, 1992 3 All citations to the references use the first-named inventor or author only. Appeal 2019-006711 Application 14/704,971 4 Name Reference Date Maeda US 2004/0130520 A1 July 8, 2004 Johnston US 2006/0226231 A1 Oct. 12, 2006 Biocca US 2009/0225001 A1 Sept. 10, 2009 Shibasaki US 2010/0137684 A1 June 3, 2010 Nakada US 2012/0242560 A1 Sept. 27, 2012 Fein US 2014/0098137 A1 Apr. 10, 2014 REJECTIONS The Examiner makes the following rejections: Claims Rejected 35 U.S.C. § Reference(s)/Basis Final Act. 1–20 112, first paragraph Written Description 7 3–6, 17 112, second paragraph Indefiniteness 10 1–6, 10, 18 103(a) Johnston, Haskell, Fein, Biocca 11 7 103(a) Johnston, Nakada, Haskell, Fein, Biocca, Maeda 32 8, 9 103(a) Johnston, Nakada, Haskell, Fein, Biocca, Shibasaki 34 11, 17 103(a) Johnston, Nakada, Haskell, Fein, Biocca, Albrecht 37 OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of Appellant’s arguments and evidence. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2018). Appeal 2019-006711 Application 14/704,971 5 Written Description Rejection of Independent Claim 1 The Examiner rejects claim 1 under 35 U.S.C. § 112, first paragraph. The Examiner finds “read out” in the “the specification fails to provide support of the following claim language, ‘retrieving’, and ‘a retrieval of the first complete frame’.” Final Act. 7. In particular, the Examiner cites to dictionary definitions and concludes that “‘Read out’ and retrieval are not equal” because “‘Read out’ is essentially removing or reading data in some form” and “[r]etrieval is essentially recovering data in some form.” Id. at 9. Appellant relies on Figures 11 and 13–15 and paragraphs 114, 181, 193, and 207 to provide written description support for the limitations at issue. Appeal Br. 12–16. Appellant argues that the specification provides adequate written description support for the term “retrieving” in claim 1 because: the verbal phrases “read out”, “read out of”, or “reading out” (e.g., “the augmented reality system starts to read out the updated first complete frame before completion of the reading out of the first complete frame from the frame buffer . . . “ in ¶ [00207]) in the originally filed Specification explicitly, sufficiently describes the claimed “retrieving data . . . from at least one frame buffer of the virtual image presentation system.” Id. at 42–43. We determine whether an applicant has satisfied the written description requirement by determining whether the patent specification describes the claimed invention in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed invention. Carnegie Mellon Univ. v. Hoffmann-La Roche Inc., 541 F.3d 1115, 1122 (Fed. Cir. 2008). Our reviewing court guides us to evaluate issues of written description using the following standard: Appeal 2019-006711 Application 14/704,971 6 In order to satisfy the written description requirement, the disclosure as originally filed does not have to provide in haec verba support for the claimed subject matter at issue. Nonetheless, the disclosure must . . . convey with reasonable clarity to those skilled in the art that . . . [the inventor] was in possession of the invention. Put another way, one skilled in the art, reading the original disclosure, must immediately discern the limitation at issue in the claims. That inquiry is a factual one and must be assessed on a case-by-case basis. Purdue Pharma L.P. v. Faulding Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000) (alterations in original) (internal quotation marks and citations omitted). The Specification discloses reading out frame data from frame buffers or image buffers. Spec. ¶¶ 205, 207. We agree with Appellant that the disclosure in the originally filed application would have been sufficient to show one of ordinary skill had possession of the claimed retrieving of frame data from the image buffer. As Appellant points out, the Specification need not “literally describe[] the claim elements using exactly the same language.” Appeal Br. 44. One skilled in the art would have discerned that frame data necessarily must be retrieved to be read out from the buffer. Accordingly, we determine there is sufficient written description support in the Specification for retrieving of frame data from an image buffer, as recited in claim 1. We do not sustain the 35 U.S.C. § 112, first paragraph, rejection of independent claim 1. Independent claim 18 includes similar limitations and so we do not sustain that rejection for similar reasons. We also do not sustain the rejection of claims 2–16, 19, and 20, which depend from independent claims 1 and 18. Appeal 2019-006711 Application 14/704,971 7 Obviousness Rejection of Independent Claim 1 The Examiner relies on Johnston to teach or suggest “retrieving the updated first portion, without retrieving the first portion of the first complete frame, for the subsequent frame,” as recited in claim 1. Final Act. 13. In particular, the Examiner finds: Johnston teaches replacing the “old” frame images of one color with a “new” frame image of the same color without updating, i.e. retrieving other color data; Johnston further teaches each composite frame image may just use the most recently captured inner portion for display without retrieving other portion of the first frame; Johnston further more teaches the outer portion 21 only updates a single color with each subsequent frame image without updating other color.). Id. Appellant argues that the obviousness rejection of claim 1 in view of Johnston is erroneous because the “alleged basis for rejection on p. 13 of the final Office Action contains mere allegations, without providing any citations from Johnston.” Appeal Br. 52. Appellant adds that “the final Office Action clearly misinterprets Johnston as something Johnston never even remotely suggests,” while again pointing out that “the final Office Action fails to point to any figures or passages in Johnston.” Id. The Examiner responds to these arguments by copying and pasting verbatim the language from the Final Office Action, while still not providing factual findings in the form of specific citations to Johnston. Ans. 41. We find Appellant’s arguments persuasive. “When a reference is complex or shows or describes inventions other than that claimed by the applicant, the particular part relied on [by the Examiner] must be designated as nearly as practicable. The pertinence of each reference, if not apparent, Appeal 2019-006711 Application 14/704,971 8 must be clearly explained and each rejected claim specified.” 37 C.F.R. § 1.104(c)(2). Here, it is unclear from the Examiner’s rejection how Johnston teaches or suggests the limitation at issue. See In re Zurko, 258 F. 3d 1379, 1386 (Fed. Cir. 2001) (“With respect to core factual findings in a determination of patentability . . . [the Patent Office] must point to some concrete evidence in the record in support of these findings.”). The Examiner provides a summary of Johnston in the rejection but does not cite to any specific figures or passages. Accordingly, the Examiner has not provided the factual findings or evidence necessary to support the rejection. See MPEP § 2143. Nor do we find instructive the Examiner’s cut-and-paste in the Answer of the same paraphrased summary of Johnston provided in the Final Office Action. Ans. 41. Accordingly, the Examiner has not demonstrated that the cited combination of references teaches or suggests “retrieving the updated first portion, without retrieving the first portion of the first complete frame, for the subsequent frame,” as recited in claim 1. Because we agree with at least one of the dispositive arguments advanced by Appellant, we need not reach the merits of Appellant’s other arguments. For the reasons discussed above, and constrained by the record before us, we do not sustain the Examiner’s rejection of independent claim 1 under 35 U.S.C. § 103. For similar reasons, we do not sustain the Examiner’s rejection of independent claim 18, which recites a similar limitation. In addition, we do not sustain the Examiner’s rejections of claims 2–17, 19, and 20, which depend directly or indirectly from claims 1 and 18. Appeal 2019-006711 Application 14/704,971 9 Indefiniteness Rejection of Dependent Claim 3 The Examiner rejects claims 3–6 and 17 under 35 U.S.C. § 112, second paragraph as indefinite. Final Act. 10–11; Ans. 47. In particular, the Examiner finds “[t]here is insufficient antecedent basis for” the “limitation ‘the second spiral scan line,’” as recited in claim 3. Appellant argues the claims as a group. Appeal Br. 69–70. As such, we select dependent claim 3 as representative of the claims rejected under § 112, second paragraph. See 37 C.F.R. § 41.37(c)(1)(iv) (2018). Appellant argues that “commonly-accepted grammatical construction rules require the use of definite articles ‘the’ for nouns preceded with ordinal numbers. For example, commonly-accepted grammatical construction rules require the use of ‘the first [noun],’ ‘the second [noun],’ ‘the third [noun],’ etc.” Appeal Br. 70. Appellant’s argument is unpersuasive. The MPEP instructs that: A claim is indefinite when it contains words or phrases whose meaning is unclear. The lack of clarity could arise where a claim refers to “said lever” or “the lever,” where the claim contains no earlier recitation or limitation of a lever and where it would be unclear as to what element the limitation was making reference. MPEP § 2173.05(e). Claim 3 recites “the second spiral scan line.” But neither claim 3, nor claim 1 from which claim 3 depends, recites “a second spiral scan line,” or any spiral scan line at all for that matter. Although we have considered Appellant’s argument based on commonly-accepted grammatical construction rules, principles of claim drafting must take precedence. Accordingly, we sustain the Examiner’s rejection of claims 3–6 and 17 as being indefinite under 35 U.S.C. § 112, second paragraph. Appeal 2019-006711 Application 14/704,971 10 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § References/Basis Affirmed Reversed 1–20 112 Written Description 1–20 3–6, 17 112 Indefiniteness 3–6, 17 1–6, 10, 18 103(a) Johnston, Haskell, Fein, Biocca 1–6, 10, 18 7 103(a) Johnston, Nakada, Haskell, Fein, Biocca, Maeda 7 8, 9 103(a) Johnston, Nakada, Haskell, Fein, Biocca, Shibasaki 8, 9 11, 17 103(a) Johnston, Nakada, Haskell, Fein, Biocca, Albrecht 11, 17 Overall Outcome 3–6, 17 1–2, 7–16, 18–20 TIME PERIOD FOR 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED IN PART Copy with citationCopy as parenthetical citation