NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

D3D TECHNOLOGIES, INC.,

Appellant

v.

MICROSOFT CORPORATION,

Appellee

______________________ 

2023-1011

______________________ 

Appeal from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in No. IPR2021-

00647.

______________________ 

Decided: February 20, 2024

______________________ 

TAREK N. FAHMI, Ascenda Law Group, PC, San Jose, 

CA, argued for appellant. 

 NITIKA GUPTA FIORELLA, Fish & Richardson P.C., Wilmington, DE, argued for appellee. Also represented by 

AAMIR ABDULQADER KAZI, Atlanta, GA; BETTY H. CHEN, 

Desmarais LLP, San Francisco, CA. 

 ______________________ 

Before PROST, SCHALL, and REYNA, Circuit Judges.

Case: 23-1011 Document: 35 Page: 1 Filed: 02/20/2024
2 D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION

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 

1–21 of U.S. Patent No. 8,384,771 (“the ’771 patent”) are 

unpatentable. We affirm.

BACKGROUND

D3D owns the ’771 patent, titled “Method and Apparatus for Three Dimensional Viewing of Images.” ’771 patent col. 1 ll. 1–2. The ’771 patent describes “a process for 

combining slices generated by medical imaging devices to 

create a volume of interest and then presenting this volume 

in a three-dimensional representation to a Head Display 

Unit (HDU),” so that a user, such as a radiologist or other 

medical professional, “can obtain a holistic view” of a patient. Id. at col. 4 ll. 59–64. The user “is afforded control 

over options designed to enhance the viewing process,”

such as “rotating the image, selectively filtering out items 

(e.g., tissues), adding a color schematic, and zooming in or 

out.” Id. at col. 9 ll. 28–32.

Independent claim 1 is representative and recites:

1. A method of three-dimensional viewing of images by a user comprising:

selecting a volume of interest from a collection of 

image slices;

arranging said slices corresponding to said volume 

of interest;

selecting an initial viewing angle of said slices;

. . .

selecting items of said image to be filtered, wherein 

said selecting items of said image to be filtered 

comprises: 

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D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION 3

selecting items of said image to be subtracted from 

said image to produce a filtered image; 

displaying, in said HDU, a filtered image for said 

left eye based on said initial viewing angle, said 

view point for said left eye and said volume of interest; and 

displaying, in said HDU, a filtered image for said 

right eye based on said initial viewing angle, said 

view point for said right eye, and said volume of interest and wherein said filtered image for said left 

eye and said filtered image for said right eye produce a filtered three-dimensional image to said 

user.

’771 patent claim 1 (emphasis added). We refer to the language emphasized above as the “subtracted limitation.” 

Dependent claim 6 additionally recites in relevant 

part: 

6. The method of claim 4 wherein said selecting 

items of said image to be colored comprises: 

sorting voxels of said items by a property of said 

voxel; 

applying colors to groups of sorted voxels to obtain 

a colored image; . . . . 

’771 patent claim 6 (emphasis added). 

Microsoft Corporation (“Microsoft”) filed a petition for 

inter partes review of claims 1–21 of the ’771 patent. In a 

final written decision, the Board found the challenged 

claims anticipated by and obvious over WO 2007/059477 

(“Murphy”). Microsoft Corp. v. D3D Techs., Inc., No. 

IPR2021-00647, 2022 WL 3137967, at *1 (P.T.A.B. Aug. 3, 

2022) (“Final Written Decision”).

The Board began by construing the term “subtracted” 

as used in the subtracted limitation. The Board noted that 

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4 D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION

the specification does not define the term “subtracted” and

construed that term to mean “withdrawn or taken away, as 

a part from a whole.” Id. at *6. 

Turning to the prior art, the Board noted that D3D disputed only whether Murphy disclosed the subtracted limitation but did not otherwise contest Microsoft’s showing 

with respect to other limitations. Id. at *7. The Board 

found that Murphy describes a display system that can virtually display “data representing human anatomy” and 

that Murphy discloses the ability to hide and show anatomical features. Id. at *7–8. The Board concluded that “Murphy’s hiding, cutting away, and making items completely 

transparent teaches withdrawing or taking away items 

from an image.” Id. at *8. The Board therefore held that 

under its construction of “subtracted” Murphy discloses the 

subtracted limitation and that claim 1 is anticipated by and 

would have been obvious over Murphy. Id. The Board additionally concluded that because Murphy discloses “applying colors to groups of sorted voxels to obtain a colored 

image,” it anticipated and would have rendered obvious dependent claim 6 and, similarly, claims 13 and 20. Id. at 

*9–10. 

D3D appeals. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(4)(A). 

DISCUSSION

We review the Board’s claim construction de novo and 

any subsidiary factual findings based on extrinsic evidence 

for substantial evidence. Apple Inc. v. MPH Techs. Oy, 28 

F.4th 254, 259 (Fed. Cir. 2022). We “review the Board’s 

legal conclusions of obviousness de novo and factual findings for substantial evidence.” Id. (citing PersonalWeb 

Techs., LLC v. Apple, Inc., 848 F.3d 987, 991 (Fed. Cir. 

2017)). Anticipation is “a question of fact reviewed for substantial evidence.” ABS Glob., Inc. v. Cytonome/St, LLC, 

84 F.4th 1034, 1043 (Fed. Cir. 2023). What a piece of prior 

art teaches is also a question of fact. Apple, 28 F.4th at 

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D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION 5

259. Substantial evidence “is such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion.” Novartis AG v. Torrent Pharms. Ltd., 853 F.3d 

1316, 1323–24 (Fed. Cir. 2017) (cleaned up).

We turn first to the Board’s construction of the term 

“subtracted” and subsequently consider the Board’s findings that Murphy anticipates or renders obvious claims

1–21. 

I 

D3D argues that the Board’s construction of the term 

“subtracted” to mean “withdrawn or taken away, as a part 

from a whole,” was unduly broad. According to D3D, subtraction requires actual “elimination of data from the underlying model from which left eye and right eye images 

are created,” rather than merely removing data from the 

displayed image. Appellant’s Br. 30. We disagree.

Claim 1 recites “selecting items of said image to be subtracted from said image to produce a filtered image.” ’771 

patent claim 1 (emphasis added). As is evident from the 

plain language of the claim, the recited subtraction occurs 

relative to the image. In other words, items are subtracted 

from the three-dimensional image displayed in the HDU; 

nothing in the claim language suggests that subtraction requires data to be eliminated from the underlying data 

model. 

The specification further indicates that D3D’s arguments regarding elimination of data are misplaced. The 

’771 patent’s references to “filtering” an image suggest that

subtraction is essentially filtering: 

Method 500 begins with processing block 502 

which recites selecting items of the image to be subtracted from the image to produce a filtered image. 

The user selects the tissues to be filtered. Several 

filtering processes are possible, including by 

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6 D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION

composition (e.g. Houndsfeld unit or signal intensity) or position (x, y, z) of the tissue.

Id. at col. 9 ll. 60–67. The specification discloses other instances in which filtering does not involve deletion of any 

data. See, e.g., id. at col. 13 ll. 15–18 (explaining as an example of filtering that “one method would be to ignore all 

voxels with H. units less than 500” (emphasis added)). The 

specification also explains that the user selects tissues—as 

opposed to data—to remove from the image to create a filtered image. Id. at col. 9 ll. 60–67; see also Final Written 

Decision, 2022 WL 3137967, at *5 (reasoning that “[i]t 

takes a logical leap to suggest that eliminating displayed 

tissue means eliminating the data underlying the displayed tissue”). 

Finally, even assuming that intrinsic evidence does not 

suffice to resolve this claim construction dispute, extrinsic 

evidence additionally supports the Board’s construction. 

Microsoft’s expert, Dr. Zyda, explained that D3D’s construction “would be inconsistent with a [skilled artisan’s]

desire to quickly and efficiently manipulate 3D images in 

real time by, for instance, repeatedly removing and re-adding different tissue sections.” Final Written Decision, 2022 

WL 3137967, at *6 (citing J.A. 1394 ¶ 8). The Board reasonably credited Dr. Zyda’s testimony over the testimony 

of D3D’s expert, Dr. Bajaj, which failed to explain the lack 

of “any discussion [in the ’771 patent] of deleting underlying data and reloading such data from an archive” in the 

manner advanced by D3D. Id. (emphasis in original).

For the foregoing reasons, we agree with the Board 

that the term “subtracted” need not be construed to mean 

that data is eliminated from the underlying data model.

II

Turning next to the Board’s consideration of the prior 

art, substantial evidence supports the Board’s determination that Murphy anticipates or renders obvious claim 1. 

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D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION 7

Id. at *7. The parties dispute only whether Murphy meets 

the subtracted limitation of claim 1.

The Board determined that “Murphy’s hiding, cutting 

away, and making items completely transparent teaches 

withdrawing or taking away items from an image.” Id. at 

*8. The Board considered Murphy’s teachings, including 

Murphy’s ability to hide and show each anatomical feature, 

and credited Dr. Zyda’s testimony that this ability “corresponds to subtracting the selected items from the image to 

produce a filtered image,” as claimed in the ’771 patent. Id.

On appeal, D3D urges that the Board’s decision rests 

on a flawed claim construction and “[b]ecause mere removal [of] an item from a displayed image is not eliminating the item from the underlying volume of interest . . . 

there was no substantial evidence for the Board to conclude 

that Murphy anticipated independent claims 1, 8, and 15.” 

Appellant’s Br. 62. We disagree. For the reasons discussed 

above, we agree with Microsoft that the Board correctly 

construed the term subtracted. Under that construction, 

substantial evidence supports the Board’s finding that 

Murphy teaches the subtracted limitation. We therefore 

affirm the Board’s determination that Murphy anticipates 

or renders obvious the challenged independent claims.

III

Finally, D3D argues that dependent claims 6, 13, and 

20 are independently patentable over Murphy. Claim 6, 

which is similar to claims 13 and 20, recites “sorting voxels 

of said items by a property of said voxel; [and] applying colors to groups of sorted voxels to obtain a colored image.” 

’771 patent claim 6. 

D3D argues, as it did before the Board, that Murphy 

does not teach or suggest sorting voxels or applying colors 

to groups of sorted voxels by a property of the voxel because

“Murphy is clear that color assignment is based on anatomical features,” rather than specific properties. Appellant’s 

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8 D3D TECHNOLOGIES, INC. v. MICROSOFT CORPORATION

Br. 72. In other words, D3D argues that because Murphy 

might, for example, apply the color orange to spleen voxels, 

and blue to liver voxels, Murphy does not apply color according to some specific property, but instead based solely 

on anatomical features. Id.

We agree with Microsoft that substantial evidence supports the Board’s rejection of D3D’s arguments. As the 

Board reasoned, D3D reads too much into the word “property.” Final Written Decision, 2022 WL 3137967, at *9. 

Murphy discloses creating new segment volumes in which 

“all voxels that are inside the desired segment fall on one 

side of the threshold value, and all voxels that are outside 

the desired segment fall on the other side of the threshold 

value.” Id. (quoting J.A. 1157–58 ¶ 42). The Board therefore found that Murphy teaches comparing the values of 

voxels to a threshold and sorting voxels according to their 

properties. Id. Further, the Board determined that Murphy renders color for each voxel, including those voxels in 

segment volumes. Id. at *10. This led the Board to determine that Murphy discloses “applying colors to groups of 

sorted voxels to obtain a colored image.” Id. (citing J.A. 

1158–59 ¶ 45). Because substantial evidence supports the 

Board’s determination that Murphy anticipates or renders 

obvious claims 6, 13, and 20, we affirm. 

CONCLUSION

We have considered D3D’s remaining arguments and 

find them unpersuasive. For the foregoing reasons, we affirm.

AFFIRMED

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