Sony Interactive Entertainment Inc.

Patent Trials and Appeals Board

Dec 28, 2020

2019002638 (P.T.A.B. Dec. 28, 2020)

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. 14/225,408 03/25/2014 Jeffrey Roger Stafford SONYP198 3185 16051 7590 12/28/2020 PENILLA IP and SONY 1200 PACIFIC AVENUE SUITE 250 SANTA CRUZ, CA 95060 EXAMINER YOON, SAE WON ART UNIT PAPER NUMBER 2612 NOTIFICATION DATE DELIVERY MODE 12/28/2020 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): mpdocket@mpiplaw.com scea_patent_docket@Playstation.Sony.com sonydocket@mpiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JEFFREY ROGER STAFFORD ____________ Appeal 2019-002638 Application 14/225,408 Technology Center 2600 ____________ Before KALYAN K. DESHPANDE, CHARLES J. BOUDREAU, and SHARON FENICK, Administrative Patent Judges. FENICK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3-7, 9, and 11-19, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b)(1). We affirm. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Sony Interactive Entertainment Inc. as the real party in interest. Appeal Br. 3. Appeal 2019-002638 Application 14/225,408 2 CLAIMED SUBJECT MATTER Appellant’s invention relates to “customizing optical representation of views, objects, etc., on a screen of a head mounted display.” Spec. ¶ 7. The optical setting for the display may be adjusted based on user input regarding perceived clarity levels of rendered images, and, in some embodiments, based on an optical prescription of a user. Id. ¶¶ 7-8. In some embodiments, the customized optical setting is stored in the user’s profile to be used to render images for the user whenever the user wears the head mounted display. Id. ¶ 8. Of the claims on appeal, claims 1, 7, 13, and 17 are independent. Claim 1, reproduced below with certain claims italicized for emphasis, is illustrative of the subject matter on appeal: 1. A method for operating a screen of a head mounted display (HMD), comprising, executing a program, the execution rendering images generated by the program on the screen of the HMD, the screen rendering the images is visible through display optics of the HMD that are disposed in front of an eye of a user when the user wears the HMD, the screen is configured to render the images using digitally created modeling of optics that is used to make changes to an optical setting of the screen for viewing through the display optics; presenting a first image on the screen using a first optical setting of the screen that is viewed through the display optics, the first image having a first size and rendered at a distance; receiving input identifying a clarity level for the first image; presenting a second image on the screen using the first optical setting for viewing through the display optics, the second image having a second size and rendered at the distance; Appeal 2019-002638 Application 14/225,408 3 receiving input identifying a clarity level for the second image, wherein the distance is a virtual distance in a three dimensional space as viewed through the HMD for identifying the clarity level for the first and the second images; changing the first optical setting for the screen that is viewed through the display optics of the HMD to a second optical setting, based on the inputs that identifies the clarity level of the first and second images; and saving the second optical setting to a user profile associated with the user, the second optical setting is configured to be automatically set for the screen of the HMD from the user profile of the user, upon identification of the user. Appeal Br. 16 (Claims App.). REJECTIONS The Examiner rejects claims 1, 3, 4, 6, 7, 9, 13-15, 17, and 19 under 35 U.S.C. § 103 as being unpatentable over Ollivierre,2 Buchheit,3 Burger,4 and Fleck.5 Final Act. 3-26. The Examiner rejects claims 5, 11, 12, 16, and 18 under 35 U.S.C. § 103 as being unpatentable over Ollivierre, Buchheit, Burger, Fleck, and Perez.6 Final Act. 26-30. 2 Ollivierre et al., US 2012/0254779 A1 (pub. Oct. 4, 2012). 3 Buchheit, US 2012/0262477 A1 (pub. Oct. 18, 2012). 4 Burger et al., US 2011/0157180 A1 (pub. June 30, 2011). 5 Fleck et al., US 2013/0208014 A1 (pub. Aug. 15, 2013). 6 Perez et al., US 2013/0169683 A1 (pub. July 4, 2013). Appeal 2019-002638 Application 14/225,408 4 OPINION Claims 1, 3, 4, 6, 7, 9, 13-15, 17, and 19 Rejected as Being Unpatentable over Ollivierre, Buchheit, Burger, and Fleck The Examiner finds that “Buchheit teaches [the] feature of adjusting resolution of a display screen” and relies on Buchheit for the limitation “changing the first optical setting for the screen . . . to a second optical setting” as recited in independent claim 1. Final Act. 8-9 (citing Buchheit ¶¶ 37, 38, Fig. 2); see Ans. 9-10, 18-22 (citing Buchheit ¶¶ 18, 37, 38, 52, 60, 61, Figs. 2-4). The Examiner makes a similar finding with respect to similar limitations in independent claims 7, 13, and 17. Final Act. 20-26. Appellant argues that Buchheit teaches adjusting the display resolution of images rendered on the display screen by applying a linear algebraic transform, but does not teach or suggest adjusting the display resolution of the display screen itself. Appeal Br. 8-10 (citing Buchheit ¶¶ 6, 32, 35, 47, 52, 54-63, 65, 69, claims 1-3, 6, Abstr.). According to Appellant, “the algebraic transform is applied to images” and “not applied to the screen to adjust optical settings of the screen rendering the images.” Id. at 9 (emphases omitted). We agree with the Examiner that Buchheit clearly teaches adjusting the display resolution of the display screen. See Final Act. 8; Ans. 21. Although Appellant cites portions of Buchheit that describe applying a linear algebraic transform to adjust “images” viewed by the user (see, e.g., Buchheit ¶¶ 6, 32, 47, claims 1-3, Abstr.), Buchheit explicitly discloses “a system for adjusting digital screen resolution for users with refractive or accommodation eye disorders.” Id. ¶ 37. The system includes a computing device that “can be any apparatus or device having a display screen capable Appeal 2019-002638 Application 14/225,408 5 of having screen resolution adjustments.” Id. ¶ 38. Buchheit describes “perform[ing] an algebraic transform through which the device screen is rendered in a formatted way” by “bend[ing] the light coming off of the screen in such a way as a glass lens would to correctly focus the image displayed on the back of the device user’s retina.” Id. ¶ 61. We find that the claim language of “changing the first optical setting for the screen . . . to a second optical setting” encompasses adjusting the display resolution of the display screen as taught by Buchheit, and thus find no error in the Examiner’s reliance on Buchheit for that limitation. Addressing independent claims 1, 7, 13, and 17, Appellant further argues that Ollivierre fails to teach or suggest “rendering images at a virtual distance using digitally created modeling of optics” (Appeal Br. 7 (emphasis omitted)),7 “changing [an] optical setting of the screen from a first optical setting to a second optical setting” (id. at 8 (emphasis omitted)), and a display screen of a head mounted display (“HMD”) viewed through display optics (id. at 11). Appellant additionally argues that Buchheit’s display screen is not of an HMD or viewed through display optics (id. at 8; Reply Br. 4-5) and that Buchheit fails to teach or suggest both “adjusting screen resolution of a display screen from a first optical setting to a second optical setting based on clarity level input provided by a user” (Appeal Br. 9; see also Reply Br. 5) and “rendering objects at virtual distance to obtain clarity 7 Appellant acknowledges that the Examiner does not rely on Ollivierre for the “virtual distance” limitation but “nonetheless deem[s] it necessary to highlight the distinguishing features of the display screen of the claimed embodiment with respect to the display screen of Ollivierre.” Reply Br. 3. Appeal 2019-002638 Application 14/225,408 6 level feedback” (Reply Br. 5).8 Appellant also argues that Burger fails to teach or suggest “changing optical settings of a display screen from a first optical setting to a second optical setting” (Appeal Br. 12 (emphasis omitted)) and that Fleck fails to teach or suggest “performing any vision test using digitally created modeling of optics and using the results of the vision test to adjust [an] optical setting of a display screen of the HMD” (id. at 13). We find these arguments unpersuasive because Appellant attacks the references individually without consideration of what the combined teachings would have suggested to one of ordinary skill in the art. As noted by the Examiner, one cannot show nonobviousness by attacking references individually where the rejection is based upon a combination of references. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see, e.g., Ans. 5, 18, 31, 35. The test for obviousness is what the combined teachings of the references would have suggested to one of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Here, the rejection is based on a combination of Ollivierre, Buchheit, Burger, and Fleck. See Final Act. 3-26. We agree with the Examiner, for example, that the combination of Ollivierre’s teaching of presenting a vision test on a display screen and receiving user input identifying a clarity level, Buchheit’s teaching of adjusting the resolution of a display screen based on a user’s corrective lens prescription and saving the user’s rendering adjustment preferences, Burger’s teaching of adjusting the display of an HMD (video display 8 Appellant acknowledges that the Examiner does not rely on Buchheit for the “virtual distance” limitation but nonetheless “highlight[s] the differences between the display screen of Buchheit and that of the claimed embodiment.” Reply Br. 5. Appeal 2019-002638 Application 14/225,408 7 glasses) based on a user’s vision characteristics, and Fleck’s teaching of an HMD generating a virtual environment with three-dimensional modeling and including display optics teaches or suggests the method of independent claim 1. See id. at 3-17 (citing Ollivierre ¶¶ 21, 23-26, 28, 31-34, 36, 47, 51, Figs. 10-13; Buchheit ¶¶ 37, 38, 52, 60, 61, 64, Figs. 2, 3; Burger ¶¶ 28, 36, 52, Figs. 1, 3, 8, 13; Fleck ¶¶ 29, 37, 46, 47, 67, Figs. 2-5, 7, 9, 10). Appellant argues that the Examiner “has not articulated a reason or provided rational underpinning as to why a person of ordinary skill[] in the art would combine . . . Buchheit with Ollivierre.” Appeal Br. 10. According to Appellant, the Examiner’s provided motivation to combine Ollivierre and Buchheit is a conclusory statement and the combination is based on impermissible hindsight. Id. at 10-11; Reply Br. 6. We are not persuaded by Appellant’s arguments and find that the Examiner provides sufficient “articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). In combining the teachings of Ollivierre and Buchheit, the Examiner concludes that it would have been obvious to one of ordinary skill in the art to modify Ollivierre by incorporating Buchheit’s features of adjusting the display screen resolution based on the user’s corrective lens prescription and saving the user’s rendering adjustment preferences in order to “present[] better quality display output” to the user and to provide the rendering adjustment during subsequent logins of the user. Final Act. 11; see Ans. 26. Appellant presents no persuasive argument or evidence to rebut the Examiner’s finding that the combination would result in “well-known and expected benefits of displaying content with a better quality (more accurate/detail) to a user.” Appeal 2019-002638 Application 14/225,408 8 See Final Act. 11. The Examiner does not rely solely on knowledge gleaned from Appellant’s application, but rather relies on knowledge of one of ordinary skill in the art, as well as Buchheit’s disclosure of “the benefit of allowing each user of the machine to have his or her own resolution settings.” See Ans. 26-28 (quoting Buchheit ¶ 30). As such, we are not persuaded by Appellant that the combination of Ollivierre and Buchheit is based on impermissible hindsight. Appellant also argues that the Examiner has not explained reasons to combine Ollivierre and Buchheit with the teachings of Burger and Fleck, and that the Examiner’s provided motivations to combine the references are conclusory and without support. Appeal Br. 12; Reply Br. 7-8. We find that the Examiner provides sufficient reasoning in combining Ollivierre and Buchheit with Burger and Fleck. In combining Ollivierre and Buchheit with Burger, the Examiner concludes that it would have been obvious to one of ordinary skill in the art to modify Ollivierre and Buchheit by incorporating Burger’s HMD (video display glasses) in order to “promote better user mobility.” Final Act. 13; see also Ans. 33. And, in combining Ollivierre, Buchheit, and Burger with Fleck, the Examiner concludes that it would have been obvious to one of ordinary skill in the art to combine Fleck’s teaching of an HMD generating a virtual environment with three-dimensional modeling and including display optics with the other references in order to provide “accurate representation of involved content(s) by utilizing modeling of captured physical environment” and “promote enhanced visual contrast.” Final Act. 16-17 (citing Fleck ¶ 29). Appellant presents no persuasive argument or evidence to rebut the Examiner’s finding of “well- Appeal 2019-002638 Application 14/225,408 9 known and expected benefit[s]” of HMDs and virtual environment/three- dimensional modeling capability. See Final Act. 13, 16. Appellant argues that the combination of Ollivierre, Buchheit, Burger, and Fleck fails to teach or suggest dependent claims 3, 4, 6, 9, 14, 15, and 19. Appeal Br. 13-15. Appellant’s arguments with respect to the dependent claims consist of attacking references individually, which is unpersuasive for the reasons discussed above, and reciting or paraphrasing the claim language and alleging that it is not taught by the cited references, alone or in combination. Such conclusory statements, lacking evidence or explanation, are unpersuasive because Appellant does not substantively address the Examiner’s findings or rationale with respect to the combined teachings and suggestions of the cited references. See 37 C.F.R. § 41.37(c)(1)(iv) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”); In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006) (explaining that, on appeal to the Board, Appellant has the burden to demonstrate error in the Examiner’s rejection); Ex parte Belinne, Appeal No. 2009-004693, 2009 WL 2477843, at *4 (BPAI Aug. 10, 2009) (informative) (finding Appellant did not show error in the Examiner's rejection where the Examiner made extensive specific fact finding with respect to each of the argued claims and, in response, Appellant restated elements of the claim language and simply argued that the elements were missing from the reference). Appeal 2019-002638 Application 14/225,408 10 For the foregoing reasons, we sustain the Examiner’s § 103 rejection of claims 1, 3, 4, 6, 7, 9, 13-15, 17, and 19 as being unpatentable over Ollivierre, Buchheit, Burger, and Fleck. Claims 5, 11, 12, 16, and 18 Rejected as Being Unpatentable over Ollivierre, Buchheit, Burger, Fleck, and Perez Appellant argues that “[t]he see-through screen of Perez will not work with the teachings of Ollivierre and Buchheit as these references do not suggest or teach a wearable device with a see-through display.” Appeal Br. 13.9 We find this argument unpersuasive because the rejection is based on a combination of not only Ollivierre and Buchheit, but also Burger and Fleck, both of which teach, and are relied on by the Examiner for, wearable devices (i.e., HMDs). See Final Act. 26-30; see also id. at 12-17. Appellant does not consider what the combined teachings-including Burger and Fleck’s teachings of HMDs and Perez’s teaching of “see-through head-mounted display cameras” (Perez ¶ 51)-would have suggested to one of ordinary skill in the art. Appellant’s remaining arguments attack the Perez reference individually and are unpersuasive for the reasons discussed above. See Appeal Br. 13, 15. Accordingly, we sustain the Examiner’s § 103 rejection of claims 5, 11, 12, 16, and 18 as being unpatentable over Ollivierre, Buchheit, Burger, Fleck, and Perez. 9 This argument appears in the portion of the Appeal Brief addressing dependent claims 3, 4, 6, 9, 14, 15, and 19, to which Perez does not apply. We treat this argument as addressing dependent claims 5, 11, 12, 16, and 18, to which the Examiner applies the Perez reference. Appeal 2019-002638 Application 14/225,408 11 CONCLUSION The Examiner’s rejections of claims 1, 3-7, 9, and 11-19 under 35 U.S.C. § 103 are affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § References/Basis Affirmed Reversed 1, 3, 4, 6, 7, 9, 13-15, 17, 19 103 Ollivierre, Buchheit, Burger, Fleck 1, 3, 4, 6, 7, 9, 13-15, 17, 19 5, 11, 12, 16, 18 103 Ollivierre, Buchheit, Burger, Fleck, Perez 5, 11, 12, 16, 18 Overall Outcome 1, 3-7, 9, 11-19 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)(1)(iv). AFFIRMED