D3d Technologies, Inc. v. Microsoft Corporation

• Court: Court of Appeals for the Federal Circuit
• Decided: February 20, 2024
• Docket: 23-1075
• Status: Unpublished

Opinion

Case: 23-1075 Document: 43 Page: 1 Filed: 02/20/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

D3D TECHNOLOGIES, INC., Appellant

v.

MICROSOFT CORPORATION, Appellee ______________________

2023-1075 ______________________

Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2021- 00648. ______________________

Decided: February 20, 2024 ______________________

TAREK N. FAHMI, Ascenda Law Group, PC, San Jose, CA, argued for appellant.

NITIKA GUPTA FIORELLA, Fish & Richardson P.C., Wil- mington, DE, argued for appellee. Also represented by AAMIR ABDULQADER KAZI, Atlanta, GA; ROSALYND UPTON, Washington, DC; BETTY H. CHEN, Desmarais LLP, San Francisco, CA. ______________________ Case: 23-1075 Document: 43 Page: 2 Filed: 02/20/2024

2 D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION

Before PROST, SCHALL, and REYNA, Circuit Judges. PROST, Circuit Judge. D3D Technologies, Inc. (“D3D”) appeals from a final written decision of the Patent Trial and Appeal Board (“Board”) in an inter partes review determining that claims 1–18 of U.S. Patent No. 9,349,183 (“the ’183 patent”) are unpatentable as obvious. We affirm. BACKGROUND The ’183 patent, owned by D3D, relates to the field of medical imaging and describes a headset and method for viewing three-dimensional images of a patient. The ’183 patent discloses that digital recording devices capture two- dimensional image slices from imaging equipment such as MRI equipment or a CT scanner. ’183 patent col. 5 ll. 12– 16. Using these image slices, a general purpose processor generates an image for the user’s right eye and an image for the left eye. Id. at col. 5 ll. 25–26. These left and right eye images “are sent to a head display unit (HDU) . . . worn by the user,” which in turn displays each image of the vol- ume of interest to the left and right eyes, respectively. Id. at col. 5 ll. 33–49. Because “[e]ach eye will see the image from a different angle,” “[t]he brain will interpret the left eye viewing angle’s image and right eye’s viewing angle im- age together to give depth perception.” Id. at col. 6 ll. 19– 23. This creates the effect of a three-dimensional image. Id. Claim 1 is representative and recites: 1. A method of three-dimensional viewing of im- ages by a user comprising: selecting a volume of interest from a collection of image slices; arranging said slices corresponding to said volume of interest; Case: 23-1075 Document: 43 Page: 3 Filed: 02/20/2024

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selecting an initial viewing angle of said slices; selecting a viewpoint for a left eye; selecting a viewpoint for a right eye; displaying, in a display unit (DU), an image for said left eye based on said initial viewing angle, said viewpoint for said left eye and said volume of inter- est; displaying, in said DU, an image for said right eye based on said initial viewing angle, said viewpoint for said right eye, and said volume of interest and wherein said image for said left eye and said image for said right eye produce a three-dimensional im- age to said user; wherein a convergence point of said image for said left eye and said image for said right eye is shifted to provide a different perspective of the volume of interest to said user; and selecting an alternate viewing angle, said selecting an alternate viewing angle comprising: reorienting said volume of interest in ac- cordance with said alternate viewing angle; displaying, in said DU, an image for said left eye based on said alternate viewing an- gle, said view point for said left eye and said volume of interest; and displaying, in said DU, an image for said right eye based on said alternate viewing angle, said view point for said right eye, and said volume of interest and wherein said image for said left eye and said image for said right eye produce an alternate three-dimensional image to said user. Case: 23-1075 Document: 43 Page: 4 Filed: 02/20/2024

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Id. at claim 1 (emphasis added). We refer to the language emphasized above as the “convergence point” limitation. Microsoft Corporation (“Microsoft”) petitioned for inter partes review of claims 1–18 of the ’183 patent. The Board instituted review. In a final written decision, the Board held claims 1–18 obvious in view of Murphy 1 and Guang;2 claims 1, 5–7, 11–13, 17, and 18 anticipated and obvious in view of Jones; 3 and claims 2–5, 8–10, and 14–16 obvious in view of Jones and Schoolman. 4 Microsoft Corp. v. D3D Techs., Inc., No. IPR2021-00648, 2022 WL 3588375 (P.T.A.B. Aug. 22, 2022) (“Final Written Decision”). D3D appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A). DISCUSSION D3D’s appeal raises four issues. D3D disputes (1) the Board’s construction of terms related to each of its deter- minations of obviousness and anticipation—namely, “con- vergence point” and “subtracted”; (2) the Board’s determination of obviousness in view of Murphy and Guang; (3) the Board’s determination of anticipation and obviousness over Jones; and (4) the Board’s determination of obviousness in view of Jones and Schoolman. Because we agree with the Board’s construction of the convergence point limitation and its determination that Murphy and Guang invalidate as obvious all challenged claims under that construction, we reach only the first two issues. 5

1 International Pub. No. WO 2007/059477 (“Mur- phy”). 2 U.S. Patent Pub. No. 2005/0148848 (“Guang”). 3 European Patent No. 1056049 A2 (“Jones”). 4 U.S. Patent No. 5,488,952 (“Schoolman”). 5 The parties agree that affirmance of the Board’s convergence point limitation construction and invalidation Case: 23-1075 Document: 43 Page: 5 Filed: 02/20/2024

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I D3D disputes the Board’s construction of the conver- gence point limitation. We review the Board’s claim con- struction de novo where, as here, the construction relies solely on intrinsic evidence. Data Engine Techs. LLC v. Google LLC, 10 F.4th 1375, 1380 (Fed. Cir. 2021). The convergence point limitation provides: wherein a convergence point of said image for said left eye and said image for said right eye is shifted to provide a different perspective of the volume of interest to said user . . . . ’183 patent claim 1. The parties agree, and the Board determined, that the convergence point is where the center theta-alpha ray from each left eye viewing perspective and right eye viewing per- spective intersect. Final Written Decision, 2022 WL 3588375, at *5–6. The Board also concluded that the con- vergence point limitation does not require shifting of the convergence point to occur while holding left and right viewpoints unaltered. Id. at *10. D3D takes issue with this construction, arguing that “[t]he Board incorrectly de- termined that this limitation does not require that the re- cited shifting of the convergence point occurs while holding left eye and right eye viewpoints unaltered.” Appellant’s Br. 43. We disagree. 6

of claims 1–18 over Murphy and Guang resolves this ap- peal. Oral Arg. at 2:15–2:35 (D3D), 11:30–12:02 (Mi- crosoft), https://oralarguments.cafc.uscourts.gov/ default.a spx?fl=23-1075_02062024.mp3. 6 D3D additionally argues that the claims “require that a shifted convergence point have a different location within the volume of interest.” Appellant’s Br. 56. Because this argument primarily relates to patentability over Case: 23-1075 Document: 43 Page: 6 Filed: 02/20/2024

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As the Board noted, the convergence point limitation “does not include the term ‘view point’ or ‘viewpoint.’” Fi- nal Written Decision, 2022 WL 3588375, at *10. The limi- tation is silent as to whether the left and right eye viewpoints remain the same after the convergence point has been shifted. We agree with Microsoft that this silence does little to support D3D’s effort to read in a restriction that the viewpoints remain unaltered. We similarly disa- gree with D3D that earlier steps of claim 1 require the left and right eye viewpoints to remain unaltered. Appellant’s Br. 45–46. Although claim 1 earlier recites “selecting a viewpoint for a left eye,” “selecting a viewpoint for a right eye,” and “displaying” an image for the left and right eyes “based on said initial viewing angle, said view point . . . and said volume of interest,” ’183 patent col. 17 ll. 30–39, noth- ing in this language requires or even suggests that the viewpoint thereafter remain unchanged once the conver- gence point is shifted. Again, D3D reads too much into si- lence in the claims. And D3D does not point to any supporting language in the specification or persuasive ex- pert testimony in support of its argument. See Appellant’s Br. 44–48; Appellant’s Reply Br. 1–4; Final Written Deci- sion, 2022 WL 3588375, at *10 (noting D3D did not cite the specification or expert testimony). We reject D3D’s argument that the recited shifting of the convergence point occurs while holding left and right

Jones, and, as discussed below, we find all claims un- patentable over Murphy in view of Guang, we need not reach this aspect of the Board’s construction. Similarly, we do not reach the Board’s construction of the claim term “subtracted” as it relates solely to the Board’s determina- tion of unpatentability over Jones and Schoolman. We note, however, that we affirm the Board’s construction of the same “subtracted” term in companion case No. 23-1011. Case: 23-1075 Document: 43 Page: 7 Filed: 02/20/2024

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eye viewpoints unaltered and affirm the Board’s construc- tion. II D3D appeals the Board’s determination that Murphy and Guang render obvious claims 1–18 of the ’183 patent. We review the Board’s legal conclusion of obviousness de novo and its factual findings for substantial evidence. Fleming v. Cirrus Design Corp., 28 F.4th 1214, 1221 (Fed. Cir. 2022). D3D—in large part rehashing the claim-construction dispute addressed above—argues that the Board’s “conclu- sion of obviousness rests on a fundamentally flawed claim construction” that “the claims do not require shifting of the convergence point to occur while holding all viewpoints un- altered.” Appellant’s Br. 48. Relying on its proposed con- struction, D3D argues that the challenged claims are patentable because “a Murphy-Guang combination would, in connection with shifting convergence points, use new viewpoints for the left eye / right eye images.” Id. at 51. As discussed above, we reject D3D’s proposed construction. We further determine that the Board’s conclusion of obvi- ousness is supported by substantial evidence. Murphy “describes ‘a stereoscopic display system’ that displays ‘data representing human anatomy’” and permits a user to “select part of a virtual patient to display by se- lecting any part or sub-part of the virtual patient.” Final Written Decision, 2022 WL 3588375, at *41 (quoting J.A. 1490 ¶ 15, J.A. 1497 ¶ 41). Guang “describes a system and methods for improved visualization and stereographic display of three-dimen- sional data sets of tube-like anatomical structures” and “describes that ‘the convergence point can be varied as nec- essary’ and can be ‘dynamically set.’” Id. (quoting J.A. 1587 ¶ 105). Case: 23-1075 Document: 43 Page: 8 Filed: 02/20/2024

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The Board agreed with Microsoft that “the Murphy- Guang combination provides a stereoscopic viewing system with dynamic convergence point capabilities (i.e., shifted convergence point).” Id. at *50. The Board noted that Mur- phy allows “surgeons to move [their] eyes to the part of the image they want to enhance,” id. (quoting J.A. 1492 ¶ 20), and that Guang “teaches shifting the convergence point by describing ‘dynamic adjustment of an eye convergence point for stereo display,’” id. (emphasis in original) (quoting J.A. 1581 ¶ 6). The Board credited the testimony of Microsoft’s expert, Dr. Zyda, as consistent with these teachings. Id. at *50–51. Even under D3D’s construction, the Board re- mained persuaded “that the prior art meets the claim reci- tations.” Id. at *51. We too agree with Microsoft and conclude that the teachings of Murphy and Guang, as well as Dr. Zyda’s testimony, provide substantial evidence to support the Board’s decision. Because substantial evidence supports the Board’s finding that the Murphy-Guang combination teaches shift- ing a convergence point, we affirm the Board’s decision. CONCLUSION We have considered D3D’s remaining arguments and find them unpersuasive. For the foregoing reasons, we af- firm. AFFIRMED