NISSAN MOTOR CO., LTD.

Patent Trials and Appeals Board

May 26, 2021

2020001459 (P.T.A.B. May. 26, 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.
15/323,004 12/29/2016 Norio Kosaka 18610/044001 4049
22511 7590 05/26/2021
OSHA BERGMAN WATANABE & BURTON LLP
TWO HOUSTON CENTER
909 FANNIN, SUITE 3500
HOUSTON, TX 77010
EXAMINER
LEIBY, CHRISTOPHER E
ART UNIT PAPER NUMBER
2622
NOTIFICATION DATE DELIVERY MODE
05/26/2021 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@obwbip.com
escobedo@obwbip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte NORIO KOSAKA
and TETSUYA YAMAMOTO
__________________

Appeal 2020-001459
Application 15/323,004
Technology Center 2600
____________________

Before ANTON W. FETTING, DEBRA K. STEPHENS, and
JAMES P. CALVE, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 1–4 and 7, which are all pending claims.2
See Final Act. 2; Appeal Br. 4. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies Nissan Motor Co., Ltd. as the real party in interest. Appeal Br. 3.
2 Claims 5, 6, and 8 are cancelled. Appeal Br. 3.
Appeal 2020-001459
Application 15/323,004

2
CLAIMED SUBJECT MATTER
The claimed vehicle display detects an attention target (e.g., a vehicle,
a pedestrian) and superimposes an attention mark nearby to draw the driver’s
attention to the target. Spec. ¶¶ 1, 4, 6, 11, 13. It can correct positions of the
attention mark to account for a time difference between detecting the target
and displaying the attention mark. Id. ¶ 34. Representative claim 1 recites
the claimed vehicular display with disputed limitations in italics.
1. A vehicular display apparatus that displays an image on a
windshield of a vehicle, the vehicular display apparatus
comprising:
an attention target detector configured to detect an attention
target to which attention of a driver of the vehicle needs
to be drawn, and calculate a distance from the attention
target to the vehicle;
a display controller configured to perform display control that
displays an attention mark on the windshield in a
superimposed manner such that from a point of view of
the driver, the attention mark is displayed close to the
attention target detected by the attention target detector,
the attention mark being displayed to draw the attention
of the driver to the attention target; and
a display modulator configured to change, according to the
distance, a highlight level for highlighted display of the
attention mark, the display control for which is
performed by the display controller,
wherein the display controller changes a display size of the
attention mark according to the distance,
wherein the display controller corrects a display position of the
attention mark by changing the display position thereof
according to a time difference between detection of the
attention target and display of the attention mark, and
wherein the display controller corrects the display position of
the attention mark corrected according to the time
difference in accordance with a vehicle speed of the
vehicle at a time when the attention target is detected.
Appeal 2020-001459
Application 15/323,004

3
REJECTIONS
Claims 1–4 and 7 are rejected under 35 U.S.C. § 102(a)(1) as
anticipated by Niehsen.3
Claims 1–4 and 7 are rejected under 35 U.S.C. § 103 as unpatentable
over Niehsen and Dollinger.4
ANALYSIS
Claims 1–4 and 7 as Anticipated by Niehsen
Regarding claims 1 and 7, the Examiner cites Niehsen to disclose a
vehicular display with an attention target detector that detects an attention
target to which a driver’s attention should be drawn and a display controller
that superimposes an attention mark close to the attention target. Final Act.
3–4, 7–8. The Examiner finds that Niehsen inherently corrects the display
position of the attention mark based on a time difference between detection
of the attention target and display of the attention mark in accordance with a
speed of the vehicle when the attention target is detected. Id. at 4–5, 8–9;
Ans. 5–6. The Examiner further finds that Niehsen does so by tracking the
movement and changes in size/scaling and dimensions of a vehicle using an
algorithm so a mark 500 can be overlaid on the vehicle, and the mark has the
correct size and location based on the calculated movement and scaling of
the target vehicle. Id. at 5 (citing Niehsen ¶¶ 58, 133), 8–9 (same). The
Examiner cites Figures 5–7 to show how mark 500 remains superimposed on
the target vehicle as the vehicle approaches the host vehicle/driver and finds
that this change in size and position over time corrects a display of the mark
according to time. Final Act. 5, 8–9; Ans. 5–6 (citing Niehsen ¶¶ 58, 133).

3 US 2014/0176350 A1, published June 26, 2014, (“Niehsen”).
4 US 2015/0158430 A1, published June 11, 2015 (“Dollinger”).
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Application 15/323,004

4
Appellant argues that correcting a display position according to a time
difference between detecting an attention target and displaying an attention
mark requires knowing what the time difference is, and there is no disclosure
in paragraphs 58 and 133 of Niehsen to measure a time difference between a
detection of the attention target and a display of the attention mark. Appeal
Br. 11–12. Appellant asserts that Niehsen does not inherently correct a
display position of an attention mark using a time difference. Id. at 9–11.
Appellant’s Specification describes this feature as follows:
The display position calculator 23 may correct the display
position of the attention mark when there is a time difference
between detection of the attention target and display of the
attention mark. For example, the display position of the
attention mark is corrected toward the vehicle depending on the
length of the time difference. If the vehicle speed of the vehicle
is high, the display position of the attention mark is corrected
toward the vehicle more.
Spec. ¶ 34. Appellant’s Figure 3 below illustrates an attention target 41 with
an attention mark 47 positioned near it to draw a driver’s attention to the
attention target 41, which, in this case, is a pedestrian. See id. ¶¶ 13, 33.

Appellant’s Figure 3 above illustrates an attention mark 47 positioned
by an attention target 41 (a pedestrian). Id. ¶ 33.
Appeal 2020-001459
Application 15/323,004

5
“The very essence of inherency is that one of ordinary skill in the art
would recognize that a reference unavoidably teaches the property in
question.” Agilent Techs., Inc. v. Affymetrix, Inc., 567 F.3d 1366, 1383 (Fed.
Cir. 2009). Thus, “[i]nherency . . . may not be established by probabilities
or possibilities. The mere fact that a certain thing may result from a given
set of circumstances is not sufficient.” In re Robertson, 169 F.3d 743, 745
(Fed. Cir. 1999) (internal quotation and citation omitted). As a result, “an
inherent property must necessarily be present in the invention . . . and it must
be so recognized by persons of ordinary skill in the art.” Hitzeman v. Rutter,
243 F.3d 1345, 1355 (Fed. Cir. 2001).
Niehsen discloses:
After the driver has selected the object, for example by touching
with the finger, an object tracking algorithm begins the tracking.
At the same time, the object movement in the image, the change
in size (scaling) of the image, and the object dimensions in the
image are determined, . . . It is thus possible to overlay additional
information (i.e., a mark) on the image (in particular in the area
of the object to be tracked) which has the correct size and which
uses the ascertained movement and scaling data.
(Niehsen ¶ 58). The Examiner finds that Figures 5 and 6 disclose the
limitation, stating “if the displayed attention mark was not in accordance to
the delay/processing/time difference[,] the displayed attention mark would
not be shown overlaid the object, but would only partially overlay relating to
a previous position or would completely identify an incorrect space away
from the object” (Ans. 8–9).
The Examiner is correct that a time difference exists for every signal
output from a detector between the time of detection of a target to the output
of the sensor. See Ans. 6; Final Act. 4.
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Application 15/323,004

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However, claims 1 and 7 recite that “the display controller corrects a
display position of the attention mark by changing the display position
thereof according to a time difference between detection of the attention
target and display of the attention mark.” Appeal Br. 21, 22 (emphasis
added).5 The Examiner has not explained sufficiently why the “correcting a
display position” limitation is necessarily present in the invention. Nor has
the Examiner explained sufficiently why a skilled artisan would understand
that Niehsen necessarily discloses correcting a display position of an
attention mark based on a time difference between detecting the attention
target and displaying the attention mark as claimed where Niehsen does not
teach to measure or use a time difference to correct the display position of
the attention mark. See Appeal Br. 10–12.
Accordingly, we do not sustain the rejection of claims 1–4 and 7.
Claims 1–4 and 7
Rejected as Unpatentable Over Niehsen and Dollinger
Appellant argues claims 1, 2, 4, and 7 as a group. Appeal Br. 8–17.
We select claim 1 as representative. 37 C.F.R. § 41.37(c)(1)(iv) (2019).
Claims 2, 4 and 7 stand or fall with claim 1. We address arguments for
claim 3 separately.
Regarding claim 1, the Examiner relies on Niehsen to teach the same
features discussed in the previous rejection. Final Act. 3–5. The Examiner
cites Dollinger to teach the correction of the display position of an attention
mark based on a time difference between detecting the attention target and
displaying the attention mark. Id. at 6.

5 Independent claim 7 recites “correcting a display position of the attention
mark by changing the display position thereof according to a time difference
between detection of the attention target and display of the attention mark.”
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7
The Examiner determines it would have been obvious to correct the
display position of the attention mark 500 in Niehsen according to a time
difference between detecting a target and displaying the mark to enable the
mark to be precisely positioned without a time lag based on Dollinger’s
teachings. Id. at 6, 9–10 (citing Dollinger ¶ 11); Ans. 9 (citing Dollinger
¶¶ 11, 52). We agree. We reproduce Figure 4 of Dollinger below to
illustrate its teachings in this regard. See Dollinger ¶ 52.

Figure 4 is a timing diagram that corrects a display image for the time
between detecting an object (t1) to presenting a corrected display image (t4).
The purpose of Dollinger’s time correction is to correct a displayed
image for the period of time (time difference) between when a target object
is detected to the time a corrected image is displayed. Dollinger ¶ 7. In this
regard, Dollinger corrects a displayed image to account for the time that is
taken to process and transmit data of the captured target until a corrected
image is displayed. Id. ¶ 11. Dollinger corrects for the time between the
determination (capture) of the original object and the display of a corrected
image, as claimed, by accounting for the latency time periods that occur in
the transmission and processing between the “determination of the original
[object] and/or of the corrected display image.” Id.
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As illustrated in Figure 4, Dollinger teaches a timing diagram used to
determine a corrected display image by correcting for a time difference
“from the capture of the first image to the display of the at least one graphic
element on the head-up display 5.” Dollinger ¶ 52. Latency time periods
accounted for include object recognition & location (t1), motion prediction
(t2), determining details of a second image (t3), and determining a corrected
display image (t4). Id. Appellant agrees that these four time periods (t1–t4)
cover the claimed time difference that is used to correct a display position of
an attention mark. See Appeal Br. 14–15. However, Appellant argues that
these teachings of Dollinger are limited by paragraph 53’s teaching that the
optical sensor 160 has a capture period for consecutive images of 60 ms that
compensates for a processing time of approximately 180 ms. Appeal Br. 14.
Appellant argues that this teaching limits Dollinger’s latency correction to
time period t1 and image capture periods B1, B2, and B3. Id. We are not
persuaded by Appellant’s arguments.
As discussed above, Dollinger compensates for latency for processing
times between the capture of the initial image/target object and the display
of a corrected image. Dollinger ¶¶ 11, 52. The Examiner’s findings based
on these teachings are unrefuted. Ans. 9–10; Appeal Br. 13–15. Dollinger
further teaches that the predetermined period of time for latency correction
for displaying a corrected image can have, for example, two to four detection
periods B1, B2, B3, B4 of the optical sensor. Id. ¶ 41. This teaching teaches
and suggests to use more than four capture periods. Indeed, paragraph 52
describes time periods that extend from object recognition and location (t1)
through display of a corrected image (t4) with associated image capture
periods B1–Bn.
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9
The ellipsis under time period t4 teaches capture periods B5–Bn may
be used to correct for time period T4. Dollinger thus consistently teaches to
correct an image based on a total time between detecting a target object and
displaying a corrected image as claimed. Dollinger’s teaching to correct for
less latency than the period t1–t4 does not negate other teachings to correct
for latency over the claimed time difference. The teachings would motivate
and enable a person of ordinary skill and creativity to correct for the claimed
time difference. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007).
Appellant also argues that Niehsen does not correct a display position
of an attention mark in accordance with vehicle speed. Appeal Br. 15–16.
We agree with the Examiner that Niehsen corrects a display position of an
attention mark (image 500) based on the speed of the host vehicle. Niehsen
measures a host vehicle’s speed to predict a time to collision with the target
vehicle by assuming that the velocities of both vehicles remain constant for a
constant differential speed. Niehsen ¶¶ 60, 107–112, Figs. 5–7B.
Figures 5–7B of Niehsen shows the display position of image 500 is
corrected based on the host vehicle’s speed as claimed. The Specification
indicates, “[i]f the vehicle speed of the vehicle is high, the display position
of the attention mark is corrected toward the vehicle more.” Figures 5–7B
of Niehsen show the position of image 500 moving closer to the host vehicle
based on the host vehicle’s speed and the relative velocities of the target and
host vehicle used in the time to collision calculation, which uses the host
vehicle’s speed relative to the target vehicle speed to reposition image 500.
This correction thus falls within the broad scope of this limitation.
Accordingly, we sustain the rejection of claim 1 and claims 2, 4, and
7, which fall with claim 1 as unpatentable over Niehsen and Dollinger.
Appeal 2020-001459
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Claim 3
Claim 3 depends from claim 1 and recites that “the display modulator
changes spatial frequency of the attention mark according to the distance.”
Appeal Br. 21 (Claims App.). The Examiner reasonably finds that Niehsen
teaches this feature in Figures 7A and 7B by adding a pulsing image over the
target vehicle and pulsing the visual warning with increased frequency as the
distance between the target vehicle and host vehicle decreases. Final Act. 6.
Appellant argues that the Specification describes spatial frequency as
referring to the blurriness or clarity of the attention mark. Appeal Br. 17–18.
Appellant argues that Niehsen’s pulsing frequency does not correspond to
the claimed spatial frequency when interpreted in light of the Specification.
The Specification describes spatial frequency as a difference between
blurriness and clarity. Spec. ¶ 38. Figures 5(a) and 5(b) illustrate decreased
spatial frequency of attention mark 47 as “blurry” because the lines of mark
47 are dashed rather than solid (Fig. 5(a)) and increased spatial frequency of
mark 47 when the lines are more solid and not dashed (Fig. 5(b)).
Even if we read such unclaimed features into “spatial frequency” in
claim 3, Niehsen teaches this limitation. Niehsen illustrates attention mark
500 with more blurry indicia (Fig. 7A) and clearer indicia (Fig. 7B) and then
teaches that the frequency with which the clearer indicia appear increases as
the distance between the target vehicle and host vehicle decreases. Niehsen
¶ 133. The intensity and magnitude of the indicia also change with distance.
Id. As the indicia on image 500 flashes more frequently at greater intensity
and magnitude, image 500 appears more clearly to a driver in the host
vehicle to draw the driver’s attention to attention mark 500. Id.
Accordingly, we sustain the rejection of claim 3.
Appeal 2020-001459
Application 15/323,004

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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 7 102(a)(1) Niehsen 1–4, 7
1–4, 7 103 Niehsen, Dollinger 1–4, 7
Overall
Outcome
1–4, 7
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