Patent application for eye tracking computer control system found obvious. IN RE: PUBLICOVER

A patent is a government granted monopoly on an invention for a limited period of time. A patent grants its owner the exclusive right to make, use, sell and import an invention within the country that granted the patent. To be granted a patent in the United States an inventor must file a patent application with the United States Patent and Trademark Office. The patent application must meet many requirements to be granted. The most important requirements are that the invention is new, useful and not obvious. The patent law definition of obviousness is not the same as the dictionary definition.

Whether an invention is obvious under patent law depends on the prior art and the knowledge of an ordinary person skilled in the area of technology to which the invention relates. To be obvious every aspect of an invention must be described in the prior art or would have been obvious to a person having ordinary skill in the art. Prior art is any public published information. Patents and patent applications are the most commonly cited forms of prior art, however research papers and sales brochures can also qualify as prior art. During the patent application process the United States Patent and Trademark Office will review publications world wide for relevant pieces of prior art.

When examining patent claims, the initial burden rests with the patent examiner to set out a prima facie case that the claims at issue are obvious over the prior art. The burden then shifts to the applicant to produce evidence or argument supporting patentability. The examiner weighs the prima facie evidence against the rebuttal evidence to determine whether the entirety of the evidence in record supports a finding of obviousness by a preponderance of the evidence.

A case which deals with the question of obviousness in a patent application is IN RE: PUBLICOVER, 2019-1105 (C.A.F.C. 2020). This case centered on patent application, No. 15/131,273 which relates to eye-tracking technology that enables a user to interact with and control a device with his eye movements. The invention seeks to solve certain challenges associated with eye movement based control systems. The goal of the invention, is to accurately discern user intent by distinguishing the user’s involuntary movements from voluntary movements.

During the prosecution of the patent application the patent examiner rejected the patent application as obvious over the combination of two issued patents – U.S. 2014/0380230 A1 (Venable) and U.S. 2012/0081666 A1 (Kiderman). Publicover appealed the examiners rejection to the Patent Trial and Appeal Board who affirmed the rejection. Publicover appealed the Board’s decision to the Court of Appeals for the Federal Circuit.

On appeal Pulicover argued that 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.

The Federal Circuit found the Board and examiner reasonably found that Venable teaches concurrently tracking eye movements and head movements, and is not limited “to head-fixed saccades” for discerning user intent. Kiderman teaches discerning between involuntary vestibulo-ocular movements and voluntary saccades that are accompanies by head movements. The Board found that the accuracy of Venable’s system which tracks both eye and head movements would be improved by identifying vestibulo-ocular movements in addition to saccadic eye movements. The Federal Circuit held that the Board’s findings were supported by substantial evidence and affirmed the rejection of the patent application for obviousness.

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