Case: 19-1883   Document: 46    Page: 1    Filed: 05/15/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

  IN RE: NELSON GEORGE PUBLICOVER, LEWIS
  JAMES MARGGRAFF, ELIOT FRANCIS DRAKE,
        SPENCER JAMES CONNAUGHTON,
                   Appellants
             ______________________

                       2019-1883
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. 15/131,273.
                   ______________________

                 Decided: May 15, 2020
                 ______________________

    THERESA H. NGUYEN, Perkins Coie, LLP, Seattle, WA,
 argued for appellants. Also represented by DAN L.
 BAGATELL, Hanover, NH.

    MAUREEN DONOVAN QUELER, Office of the Solicitor,
 United States Patent and Trademark Office, Alexandria,
 VA, argued for appellee Andrei Iancu. Also represented by
 THOMAS W. KRAUSE, BENJAMIN T. HICKMAN, MEREDITH
 HOPE SCHOENFELD.
                  ______________________

   Before O’MALLEY, BRYSON, and CHEN, Circuit Judges.
 CHEN, Circuit Judge.
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 2                                           IN RE: PUBLICOVER




     Appellants Nelson George Publicover, Lewis James
 Marggraff, Eliot Francis Drake, and Spencer James Con-
 naughton (collectively, Publicover) appeal the determina-
 tion of the Patent Trial and Appeal Board that claims 43–
 51 of their patent application, No. 15/131,273 (the ’273 Ap-
 plication), would have been obvious under 35 U.S.C.
 § 103(a). See Ex Parte Publicover et al., No. 2018–005362,
 2019 WL 1453980 (P.T.A.B. Mar. 8, 2019). For the reasons
 explained below, we affirm the Board’s decision.
                        BACKGROUND
                   I. The ’273 Application
     The ’273 Application relates generally to methods of
 tracking eye movements in a graphical user interface envi-
 ronment such as wearable virtual- or augmented-reality
 display devices, using those movements to determine the
 user’s intent, and performing an action based on that in-
 tent. ’273 Application ¶¶ 17–21. The eye-tracking technol-
 ogy thereby enables the user to interact with and control
 the device with his or her eye movements, rather than us-
 ing traditional tools such as a computer mouse, joystick, or
 touch-sensitive displays. Id. ¶¶ 4–6. According to Pub-
 licover, the purported invention seeks to solve certain
 unique challenges associated with discerning user intent
 based on eye movements. Appellant’s Br. at 4 (citing ’273
 Application ¶ 6).
     One such challenge, and stated goal of the purported
 invention, is to accurately discern user intent by distin-
 guishing the user’s involuntary movements from voluntary
 movements intended to interact with, and control, the de-
 vice. ’273 Application ¶¶ 6, 87. Two types of “[v]oluntary
 movements that may [be used to] convey purposeful intent”
 are saccadic eye movements and voluntary head move-
 ments that produce vestibulo-ocular eye movements. Id.
 ¶¶ 89, 115.
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 IN RE: PUBLICOVER                                           3



     The appealed claims rely on identifying vestibulo-ocu-
 lar eye movements to discern user intent. 1 Id. ¶¶ 89, 98,
 179. Vestibulo-ocular eye movements are “generally ac-
 cepted” as one of “four fundamental types of eye move-
 ments.” Id. ¶ 115. In order for a person’s eyes to remain
 focused on a particular target while his or her head is mov-
 ing, vestibulo-ocular eye movements “compensate for head
 movements by” rapidly and reflexively “moving the eye[s]
 through the same angle as a head rotation, but in the op-
 posite direction.” Id. ¶¶ 116, 222. The eye and head move-
 ments “correspond” “approximate[ly] . . . in movement
 magnitudes.” Id. ¶ 224, Fig. 4. “This has the effect of”
 keeping the eyes on a fixation point and “stabilizing an im-
 age of the external world.” Id. ¶ 116. Although the head
 movements that produce the vestibulo-ocular movement
 are generally voluntary, “the vestibulo-ocular [eye] move-
 ment itself is involuntary.” Id. ¶ 182.
     Vestibulo-ocular movements can occur in conjunction
 with another fundamental type of eye movement, saccadic
 eye movements. “Saccadic eye movements are rapid move-
 ments that abruptly change the fixation point of the
 eye[s].” Id. ¶ 119; see also id. ¶¶ 217–18. After a person
 performs a saccadic eye movement, he or she may naturally
 rotate the head to align it with the new fixation point of the
 eyes. As the specification explains, “any shift in gaze
 greater than about 20° . . . is usually associated with a head
 movement.” Id. ¶ 179. If the eyes were to remain still as
 the head moves, the head would carry the eyes off target.
 The involuntary vestibulo-ocular reflex of the eyes keeps
 the eyes on target by moving the eyes in the opposite direc-
 tion of the head rotation. Id. ¶ 116.




     1    The Board affirmed the examiner’s rejection of all
 pending claims, claims 31–39, 41–56, and 58–61, but Pub-
 licover’s appeal is limited to claims 43–51.
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 4                                          IN RE: PUBLICOVER




                   II. Procedural History
     The examiner rejected claims 43 and 46–51 of the ’273
 Application as obvious over the combination of U.S.
 2014/0380230 A1 (Venable) and U.S. 2012/0081666 A1 (Ki-
 derman). J.A. 1147–50. Additionally, the examiner re-
 jected claims 44–45 as obvious over the combination of
 Venable, Kiderman, and U.S. 6,932,090 (Reschke).
 J.A. 1161–63. Publicover appealed to the Board, which af-
 firmed the examiner’s rejections.
     On appeal before us, Publicover directs its argument
 solely to independent claim 43, from which claims 44–51
 depend. Claim 43 recites a method for using a graphical
 user interface to determine a user’s intent by detecting
 when there has been a vestibulo-ocular eye movement as-
 sociated with a head movement, and then performing an
 action related to a viewed object or its location:
     43. A method for providing a graphical user inter-
     face to determine intent of a user based at least in
     part on movement of the user’s head and one or
     both of the user’s eyes using a head movement de-
     tector and an eye movement detector, comprising:
        identifying, with the head movement detec-
        tor, when the user’s head moves at a head
        velocity;
        identifying, with the eye movement detec-
        tor, when the one or both of the user’s eyes
        move at an eye velocity;
        identifying, based at least in part on the
        head velocity and the eye velocity occurring
        concurrently, a vestibulo-ocular movement
        of the one or both of the user’s eyes;
        confirming that the one or both of the user’s
        eyes are directed at a viewed object at a
        viewed object location based at least in part
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 IN RE: PUBLICOVER                                             5



         on the determined vestibulo-ocular move-
         ment of the one or both of the user’s eyes;
         and
         performing, in response to the confirming,
         an action related to one or more of the
         viewed object and the viewed object loca-
         tion.
 ’273 Application at claim 43 (emphases added).
     We have       jurisdiction   pursuant     to   28   U.S.C.
 § 1295(a)(4).
                          DISCUSSION
     Obviousness is a question of law based on underlying
 factual findings. Randall Mfg. v. Rea, 733 F.3d 1355, 1362
 (Fed. Cir. 2013). The factual findings include, inter alia,
 “the scope and content of the prior art” and “differences be-
 tween the prior art and the claims at issue.” Id. (cit-
 ing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007)).
     This court reviews the Board’s legal determinations de
 novo, and the Board’s factual findings underlying those de-
 terminations for substantial evidence. Belden Inc. v. Berk-
 Tek LLC, 805 F.3d 1064, 1073 (Fed. Cir. 2015). A finding
 is supported by substantial evidence if a reasonable mind
 might accept the evidence to support the finding. Consol.
 Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
     Publicover argues that the Board erred in finding that
 the prior art teaches the claim limitation of “identifying . . .
 a vestibulo-ocular movement.” Publicover contends that
 neither Kiderman alone nor the combination of Venable
 and Kiderman teach this limitation. Appellant’s Br. at 17.
 We disagree because substantial evidence supports the
 Board’s finding that the combination of Venable and Kider-
 man would result in performing the “identifying . . . a ves-
 tibulo-ocular movement” limitation.
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 6                                            IN RE: PUBLICOVER




      As the Board explained, Venable “teaches selecting
 user interface elements via position signals derived from
 sequential eye gestures that may include saccades.” Pub-
 licover, 2019 WL 1453980, at *5 (citing Venable ¶ 26). Ve-
 nable is directed to “an eye tracking system . . . configured
 to produce a periodically updated position signal based
 upon a determined location of a user’s gaze on a . . . user
 interface” element. Venable ¶ 19. Venable discloses that
 some embodiments rely on identifying saccadic eye move-
 ments to determine the user’s intent to select the user in-
 terface element.      Id. ¶ 26.    Once Venable’s system
 “determin[es] that the user has selected the U[ser ]I[nter-
 face] element,” it will perform an action such as, for exam-
 ple, “launching a program represented by the element.” Id.
 ¶ 37.
      As shown in Venable’s figures, the eye tracking system
 is integrated with “a head-mounted display . . . configured
 to display augmented reality images.” Id. ¶ 15; see also id.
 Figs. 1A–C, 4A–C, 5A–D, 6. Venable states that its system
 may comprise not only an eye tracking system but also
 “may include . . . motion sensors . . . and/or . . . image sen-
 sors” that may be “incorporated into [the] head-mounted
 display.” Id. ¶¶ 19–20. Venable contemplates using sev-
 eral different types of components alone or together, in-
 cluding “a head tracker, eye tracker, accelerometer, and/or
 gyroscope for motion detection and/or intent recognition.”
 Id. ¶ 51. Based on Venable’s disclosure of the “head
 tracker, eye tracker, accelerometer, and/or gyroscope for
 motion detection and/or intent recognition,” the Board and
 examiner reasonably found that Venable teaches concur-
 rently tracking eye movements and head movements, and
 is not limited “to head-fixed saccades” for discerning user
 intent. J.A. 1501; Publicover, 2019 WL 1453980, at *8. We
 disagree with Publicover’s arguments to the contrary.
     Kiderman is directed to a head mounted goggle based
 video oculography system for recording and evaluating sac-
 cadic eye movements “for assisting in the diagnosis of”
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 IN RE: PUBLICOVER                                            7



 certain brain injuries and disorders “that cause highly sac-
 cadic results.” Kiderman ¶¶ 3, 5, 18. Importantly, with
 regard to vestibulo-ocular movements, Kiderman discloses
 that they occur in conjunction with saccadic eye move-
 ments. Id. ¶ 12. In the background of the invention, Ki-
 derman explains that “[d]uring . . . saccades” with “shift[s]
 in gaze larger than about 20°,” “first the eye produces a
 saccade to get gaze on target, whereas the head follows
 more slowly and the vestibulo-ocular reflex causes the eyes
 to roll back in the head to keep gaze on the target.” Id.
 Kiderman further explains that “[t]he vestibular system
 stabilizes vision with head movement . . . , sensing the di-
 rection and speed of head acceleration and moving the eyes
 accordingly.” Id. ¶ 7.
     The examiner reasoned that the basis to combine Ki-
 derman’s disclosure of vestibulo-ocular movement with Ve-
 nable’s system for tracking saccadic eye movements to
 “identify[]. . . a vestibulo-ocular movement” was to “im-
 prove[] on the accuracy of” Venable’s system “by consider-
 ing the effect of head movement on the saccade.”
 J.A. 1501–02; see also J.A. 1141. This is particularly so
 given Kiderman’s teaching that vestibulo-ocular eye move-
 ments are commonly associated with and naturally follow
 from saccadic eye movements and Venable’s disclosure of
 embodiments that already track both eye and head move-
 ments. Kiderman ¶ 12; Venable ¶ 51.
     Before the Board, Publicover argued that Kiderman
 taken individually does not teach the “identifying . . . a ves-
 tibulo-ocular movement” limitation.           J.A. 1477–78;
 J.A. 1588. The Board rejected that argument, noting that
 “Kiderman only is relied upon to teach that vestibulo-ocu-
 lar movement, such as that recited in claim 43, is one
 known type of head movement.” Publicover, 2019 WL
 1453980, at *9 (citing Kiderman ¶ 12). The Board found
 that “the eye tracking system of Venable may be combined
 with . . . Kiderman[’s]” disclosure of vestibulo-ocular move-
 ment. Id. Like the examiner, whose Answer the Board
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 8                                           IN RE: PUBLICOVER




 adopted as its own, the Board found that the accuracy of
 Venable’s system which tracks both eye and head move-
 ments would be improved by identifying vestibulo-ocular
 movements in addition to saccadic eye movements. Pub-
 licover, 2019 WL 1453980, at *3, *9. Substantial evidence
 supports this finding, despite Publicover’s arguments to
 the contrary.
      Before this court, Publicover presents additional argu-
 ments that were not previously presented to the Board.
 For example, Publicover contends that neither reference,
 taken individually or together, disclose “identifying” that
 “the head velocity and eye velocity occur[] concurrently”
 during “a vestibulo-ocular movement,” as the claims re-
 quire. ’273 Application at claim 43 (emphasis added); Ap-
 pellant’s Reply Br. at 5–6. Because Publicover did not raise
 these arguments to the Board, we conclude that they are
 waived. See In re Watts, 354 F.3d 1362, 1368 (Fed. Cir.
 2004) (“declin[ing] to consider the appellant’s new argu-
 ment regarding the scope of [the prior art] raised for the
 first time on appeal”). Moreover, contrary to Publicover’s
 argument, Kiderman teaches that the head velocity and
 eye velocity occur concurrently during vestibulo-ocular
 movement, as the claims require. Kiderman discloses that
 when the head moves, “the vestibulo-ocular reflex causes
 the eyes to” move “to keep the gaze on the target.” Kider-
 man ¶ 12; see also id. ¶ 7 (“The vestibular system stabilizes
 vision with head movement,” as opposed to allowing vision
 to “shift” “during head movement,” by “sensing the direc-
 tion and speed of head acceleration and moving the eyes
 accordingly.”). In order “to keep the gaze on the target,” as
 Kiderman discloses, the head and eyes must be moving
 concurrently in opposite directions with roughly the same
 movement magnitudes. 2



     2   Kiderman “incorporated . . . by reference” certain
 related patent application publications “in their entirety”:
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 IN RE: PUBLICOVER                                               9



     We also note the examiner’s finding, which was
 adopted by the Board, that Publicover’s written description
 with respect to the “identifying . . . a vestibulo-ocular move-
 ment” limitation is rather thin in detail as to how the ap-
 plicant’s system identifies vestibulo-ocular movement. J.A.
 1501; Publicover, 2019 WL 1453980, at *3, *8. The exam-
 iner explained that the limitation “is merely supported” by
 “paragraph [224]” of Publicover’s specification, which pro-
 vides the “well-known” definition of vestibulo-ocular move-
 ment.      J.A. 1501.     Paragraph 224 of Publicover’s
 specification states:
     If the right and left eye move in the same direction
     . . . and this direction is opposite the direction of the
     head . . . with an approximate correspondence in
     movement magnitudes, then the eye movement is
     classified as vestibulo-ocular . . . .
 ’273 Application ¶ 224; see also id. ¶ 116 (providing a simi-
 lar description of how vestibulo-ocular movement occurs).
     Publicover argues that Venable and Kiderman’s disclo-
 sures are too sparse to adequately explain to a skilled arti-
 san how to modify Venable’s system to identify vestibulo-
 ocular movement. But as the examiner and Board correctly
 found, Publicover’s specification is just as sparse on how a
 system would identify this type of eye movement. Under
 the circumstances, we find this attorney argument as to the
 capabilities of a skilled artisan unpersuasive. See Uber
 Techn., Inc. v. X One, Inc., No. 19-1164, 2020 WL 2123399,
 at *5 (Fed. Cir. May 5, 2020) (“The specification of the [pa-
 tent-at-issue] is entirely silent on how to transmit user



 U.S.     2005/0099601,     U.S.     2007/0132841,     U.S.
 2008/0049186, U.S. 2008/0049187. Kiderman ¶ 22. The
 fact that these publications are directed to systems that
 concurrently track head movements and eye movements
 lends additional support to this reading of Kiderman.
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 10                                          IN RE: PUBLICOVER




 locations and maps from a server to a user’s mobile device,
 suggesting that a person of ordinary skill in the art was
 more than capable of selecting between the known methods
 of accomplishing this.”); In re Epstein, 32 F.3d 1559, 1568
 (Fed. Cir. 1994) (“[T]he Board’s observation that appellant
 did not provide the type of detail in his specification that
 he now argues is necessary in prior art references supports
 the Board’s finding that one skilled in the art would have
 known how to implement the features of the references and
 would have concluded that the reference disclosures would
 have been enabling.”). Accordingly, the Board did not err
 in determining that the combination of Venable and Kider-
 man would result in the “identifying . . . a vestibulo-ocular
 movement” limitation.
                        CONCLUSION
      We have considered Publicover’s remaining arguments
 and find them unpersuasive. For the foregoing reasons, we
 affirm the decision of the Board.
                        AFFIRMED
                            COSTS
      No costs.
