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NOTE: This disposition is nonprecedential.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;
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D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION 3
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.
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4 D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION
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
D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION 5
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
6 D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION
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
D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION 7
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).
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8 D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION
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