Case: 19-1895     Document: 35   Page: 1   Filed: 05/11/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                IN RE: KAREN CHAPMAN,
                          Appellant
                   ______________________

                        2019-1895
                  ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. 14/675,320.
                   ______________________

                  Decided: May 11, 2020
                  ______________________

    CLIFFORD JAY MASS, Ladas & Parry LLP, New York,
 NY, for appellant.

    KAKOLI CAPRIHAN, Office of the Solicitor, United States
 Patent and Trademark Office, Alexandria, VA, for appellee
 Andrei Iancu. Also represented by THOMAS W. KRAUSE,
 FARHEENA YASMEEN RASHEED, PETER JOHN SAWERT.
                 ______________________

    Before NEWMAN, LOURIE, and STOLL, Circuit Judges.
 LOURIE, Circuit Judge.
     Karen Chapman appeals from the decision of the
 United States Patent and Trademark Office Patent Trial
 and Appeal Board (“the Board”) affirming the examiner’s
 rejection of all pending claims of U.S. Patent Application
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2                                              IN RE: CHAPMAN




 14/675,320 (“the ’320 application”). Ex parte Chapman¸
 No. 2018-007101 (P.T.A.B. Mar. 15, 2019) (“Decision”). For
 the reasons stated below, we affirm.
                        BACKGROUND
      Chapman applied for a patent on methods and systems
 for streaming live events. According to the specification of
 the ’320 application, a fixed video camera or multiple fixed-
 position cameras are used to capture images from a single
 perspective. The system allows the user to view the images
 or video and manipulate them (i.e., by zooming in and out
 and panning the camera).
     In this appeal, the parties argue about the three inde-
 pendent claims in the application, claims 1, 9, and 21.
 Claim 1 recites “[a] method for viewing an event which con-
 sists essentially of receiving a stream of images by a re-
 ceiver comprising a display screen, wherein the stream of
 images is captured by” either a “single camera” with a
 “fixed perspective at a wide angle” or a “plurality of cam-
 eras,” which also provide a “single fixed perspective at a
 wide angle.” J.A. 284. A “receiver” is “connected to a sep-
 arate touchplate, wherein said touchplate is adapted to
 control . . . and to move” the viewed images or video without
 “changing the fixed perspective” of the camera feed. Id.
 Claim 9 recites a “system” for viewing an event consisting
 essentially of a camera and a receiver connected to a touch-
 plate operating in the manner as described in claim 1.
 J.A. 285. Claim 21 recites a “method” similar to claim 1,
 but with the transitional phrase “comprising” instead of
 “consisting essentially of.” J.A. 286.
     The examiner rejected these independent claims as ob-
 vious over Choi 1 in view of Aman 2 and Franko. 3 Choi


     1   U.S. Patent App. Pub. 2011/0265118.
     2   U.S. Patent App. Pub. 2007/0279494.
     3   U.S. Patent App. Pub. 2008/0136839.
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 IN RE: CHAPMAN                                              3



 teaches an apparatus to display streamed video, which can
 include an external camera for capturing images. Choi
 ¶ 199. Choi’s apparatus includes a remote controller with
 a touchpad that can control the images on the display. Id.
 at ¶ 281. Aman teaches capturing a stream of images from
 a single, fixed perspective at a wide angle to produce a dis-
 play having a 3D appearance. Aman ¶ 41. Franko teaches
 moving video images on a display to pan across the image
 without altering a fixed perspective. Franko ¶ 40. As rel-
 evant here, in analyzing claims 1 and 9, the examiner as-
 signed no patentable weight to the “consisting essentially
 of” transitional phrase because it is part of the preambles
 in claims 1 and 9.
      Chapman appealed to the Board, and the Board agreed
 with the examiner’s factfinding regarding the references,
 explaining that a skilled artisan would have been moti-
 vated to combine the teachings of the references using
 known methods and yielding predictable results. Decision,
 slip op. at 8. The Board deviated, however, from the exam-
 iner’s analysis of the “consisting essentially of” language of
 claims 1 and 9. According to the Board, the “consisting es-
 sentially of” language limits the scope of the claims to spec-
 ified materials or steps and those that do not materially
 affect the basic and novel properties of the invention.
 Chapman argued that the basic and novel property of the
 invention is the use of a camera or cameras that provide
 images to a viewer from a single, fixed perspective only to
 replicate the experience of a viewer when he or she attends
 a live performance in person. Id. at 10. But the Board
 found this property to be merely “a generalized intended
 benefit of the invention” and not sufficiently clear or defi-
 nite in scope to limit the claims. Id. The Board further
 found that, even if the basic and novel property were to be
 considered, Aman disclosed it by teaching filming a sport-
 ing event from a single, fixed perspective that would stim-
 ulate the experience of viewing the event in person from a
 vantage point above the event. Id. at 10–11.
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4                                              IN RE: CHAPMAN




    Chapman appealed. We have jurisdiction under 28
 U.S.C. § 1295(a)(4)(a).
                         DISCUSSION
     We review the Board’s legal determinations de novo, In
 re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), and its fact
 findings for substantial evidence, In re Gartside, 203 F.3d
 1305, 1316 (Fed. Cir. 2000). A finding is supported by sub-
 stantial evidence if a reasonable mind might accept the ev-
 idence as sufficient to support the finding. Consol. Edison
 Co. v. NLRB, 305 U.S. 197, 229 (1938).
     Chapman argues that the Board erred in its interpre-
 tation of the claim language and in its overall obviousness
 analysis. Specifically, contrary to the Board’s opinion,
 Chapman argues that the preambles are limiting and
 should be construed to limit the invention to streaming en-
 tire “events,” that the basic and novel property of the in-
 vention narrows the prior art that is relevant to the claims,
 that the Board relied on a different ground of rejection than
 the examiner, and that the claims would not have been ob-
 vious under either the Board’s or the examiner’s analysis.
     We disagree. As a preliminary matter, Chapman did
 not argue that the term “event” required construction, so
 this argument is waived on appeal. See In re Baxter Int’l,
 Inc., 678 F.3d 1357, 1362 (Fed. Cir. 2012) (first citing In re
 DBC, 545 F.3d 1373, 1379–80 (Fed. Cir. 2008); then citing
 In re Watts, 354 F.3d 1362, 1367–68 (Fed. Cir. 2004)).
 Chapman’s argument that the Board relied on a different
 ground of rejection than the examiner is also waived be-
 cause Chapman failed to raise it below. See 37 C.F.R. §
 41.50(c) (2011) (requiring petitioners to raise the Board’s
 failure to designate a new ground of rejection in a timely
 request for rehearing).
     On appeal, Chapman provides a new formulation of the
 basic and novel properties of the invention, arguing that
 there are two: (1) provision of a stream of images of an
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 IN RE: CHAPMAN                                             5



 event to a viewer from a single, fixed perspective and to
 enable a viewer to select what images from the single, fixed
 perspective to display on a display screen, and (2) the elim-
 ination of the need for multiple camera complexity in so
 doing. This formulation of the basic and novel properties
 appears to be simply a statement of the general, intended
 benefit of the invention. But even if we were to read the
 statement as limiting the scope of the claims, the Board
 correctly found that Aman teaches simulating the experi-
 ence of viewing an event from an overhead vantage point,
 which a person of skill in the art would have understood
 teaches using one or more fixed cameras filming from a
 fixed, overhead view. Aman ¶ 78.
     Chapman also challenges the Board’s obviousness con-
 clusion as lacking substantial evidence, but we disagree.
 Choi, Aman, and Franko teach the display monitor, a cam-
 era, the action of capturing images from a fixed perspec-
 tive, and a separate touchplate. Aman teaches using a
 fixed overhead view for filming sporting events, and a per-
 son of skill would have understood that statement to teach
 that a single fixed camera, as well as multiple fixed cam-
 eras, could be used to film such events. To the extent Chap-
 man now argues teaching away, Aman does not teach away
 from using wide-angle lenses, and the Board’s factfinding
 is entitled to deference.
                        CONCLUSION
     We have considered Chapman’s remaining arguments
 but find them unpersuasive. Accordingly, the decision of
 the Board is affirmed.
                        AFFIRMED
