Ex Parte Benitez

Patent Trial and Appeal Board

Aug 24, 2017

12668718 (P.T.A.B. Aug. 24, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/668,718 01/12/2010 Ana B. Benitez PU070098 8252
24498 7590 08/28/2017
Robert D. Shedd, Patent Operations
THOMSON Licensing LLC
4 Research Way
3rd Floor
Princeton, NJ 08543
EXAMINER
AN, SHAWN S
ART UNIT PAPER NUMBER
2483
NOTIFICATION DATE DELIVERY MODE
08/28/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
uspto@technicolor.com
pat. verlangieri @ technicolor.com
russell. smith @ technicolor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANA B. BENITEZ
Appeal 2015-005681
Application 12/668,718
Technology Center 2400
Before JOSEPH L. DIXON, JUSTIN BUSCH, and
CARL L. SILVERMAN, Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 1—24. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2015-005681
Application 12/668,718
CLAIMED SUBJECT MATTER
Claims 1,12, and 24 are independent claims. The claims relate
generally to three dimensional object modeling using two-dimensional
images and, more specifically, to applying multiple depth acquisition
functions to the same set of two or more two-dimensional images to improve
the accuracy of three-dimensional information. Spec. 1:6—10, 3:20-31.
Claim 1 is reproduced below:
1. A three-dimensional acquisition method comprising:
acquiring at least two two-dimensional images of a
scene;
applying a first depth acquisition function to the at
least two two-dimensional images;
applying a second depth acquisition function to the
same at least two two-dimensional images;
combining an output of the first depth acquisition
function with an output of the second depth acquisition
function; and
generating a disparity map from the combined
output of the first and second depth acquisition functions.
REJECTIONS
Claims 1, 2, 5, 6, 8—15, 17, 18, and 20-24 stand rejected under
35 U.S.C. § 103(a) as unpatentable in view of Jones (US 7,567,703 B2;
July 28, 2009). Non-Final1 Act. 2—5.
1 Although this Appeal is taken from the Final Action mailed on June 30,
2014, the statement of rejection in the Final Action merely refers to the
rejection made in the Non-Final Action, mailed on November 7, 2013. Final
Act. 4. Accordingly, we reference the Non-Final Action for purposes of
identifying the Examiner’s findings regarding the pending rejection.
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Application 12/668,718
Claims 3, 4, and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable in view of Jones and Ha (US 7, 944, 444 B2; May 17, 2011).
Non-Final Act. 5—6.
Claims 7 and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable in view of Jones, Ha, and V. Michael Bove, Jr., Probabilistic
Method for Integrating Multiple Sources of Range Data, 7 J. Optical Soc’y
Am. 2193 (Dec. 1990) (“Bove”). Non-Final Act. 6—7.
OPINION
Appellant argues Jones does not disclose applying two depth
acquisition functions to the same at least two two-dimensional images. Br.
5—6. There appears to be no dispute regarding this point because the
Examiner acknowledges that Jones fails to disclose applying first and second
depth acquisition functions to the same at least two two-dimensional images.
Non-Final Act. 2—4, 5; see also, e.g., Ans. 9 (“Jones et al discloses all of the
claimed invention with the only exception of applying the second depth
acquisition functions to the same at least two two-dimensional images.”).
Appellant also argues the Examiner fails to provide a sufficient
rationale for modifying Jones, basing the proposed combination only on
impermissible hindsight. Br. 6—7. Appellant further asserts “the mere fact
that a prior art device could (in hindsight) be modified to produce a claimed
invention is not a basis for an obviousness rejection unless the prior art
suggests the desirability of such a modification.” Id. at 7 (citing In re
Laskowski, 871 F.2d 115 (Fed. Cir. 1989).
The Examiner explains that the difference between Appellant’s claims
and Jones are minor, and concludes it would have been obvious to recognize
that the two depth acquisition functions “functioning separately (using at
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Application 12/668,718
least four of two dimensional images) can very well be substituted for” the
two depth acquisition functions “functioning together (using at least two
dimensional images), just as long as the end result remains substantially the
same.” Non-Final Act. 3; Ans. 9. In response to Appellant’s contention that
the conclusion of obviousness is based only on impermissible hindsight, the
Examiner reiterates the above-quoted statement about the depth acquisition
functions acting together instead of independently and states it would have
been obvious “in order to provide an effective single representation of the
depth information (3D structure) of the scene.” Ans. 11.
The Federal Circuit has stated that “rejections on obviousness grounds
cannot be sustained by mere conclusory statements; instead, there must be
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006), cited with approval in KSR Int’l Co., 550 U.S. 398, 418 (2007).
Obviousness, however, does not require a specific teaching, suggestion, or
motivation from the cited art. KSR Int’l Co., 550 U.S. at 401 (noting that an
obviousness analysis “need not seek out precise teachings directed to the
challenged claim’s specific subject matter, for a court can consider the
inferences and creative steps a person of ordinary skill in the art would
employ”).
In determining the differences between the prior art and the claims,
the question under 35 U.S.C. § 103 is not whether the differences themselves
would have been obvious, but “whether the claimed invention as a whole
would have been obvious.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d
1530 (Fed. Cir. 1983). The Supreme Court has held that in analyzing an
obviousness rationale, a court need not find specific teachings, but rather
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Application 12/668,718
may consider “the background knowledge possessed by a person having
ordinary skill in the art.” See KSR Int’l Co. v. Teleflex Inc., 550 U.S. at 418
(quoting In re Kahn, 441 F.3d at 988). Further, an artisan is presumed to
possess both skill and common sense. See KSR, 550 U.S. at 421 (“A person
of ordinary skill is also a person of ordinary creativity, not an automaton.”).
We agree with Appellant that the end result in Jones being the same as
the end result of Appellant’s claims is not enough, by itself, to render
Appellant’s claims obvious. However, it is relevant to our consideration of
the scope and content of the prior art and the differences between that prior
art and Appellant’s claims. See Graham v. John Deere Co., 383 U.S.l, 17
(1966).
Appellant admits that various depth acquisition techniques for
generating 3D models, each with their own benefits and disadvantages, were
well known, even stating that the different methods “have been extensively
studied for decades.” See, e.g., Spec. 1:13—3:16. Appellant characterizes
the invention as “combining multiple 3D acquisition methods for the
accurate recovery of 3D information.” Id. at 8:19—20.
As explained by the Examiner, Jones describes applying a first depth
acquisition function to one pair of images and a second depth acquisition
function to another pair of images, and uses the combined output of the two
functions2 to generate a single disparity map. See Non-Final Act. 2—3 (citing
2 We note that, although Jones does not explicitly state whether the same or
different depth acquisition functions are applied to each of its image pairs,
claim 1 does not recite that the first and second depth acquisition functions
are different from each other. Regardless, Appellant does not dispute that
Jones discloses “applying a first depth acquisition function to the at least two
two-dimensional images” and “applying a second depth acquisition function
to ... at least two two-dimensional images.”
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Application 12/668,718
Jones 5:47—63). Jones also explains that “where there are multiple estimates
of the same disparity, it should be possible to obtain a more accurate value,”
and “by merging disparity maps from different viewpoints, a more complete
representation of the scene can be obtained.” Id. at 5:14—18 (emphases
added).
We are not persuaded by Appellant’s argument that the Examiner
does not provide a rationale for modifying Jones and that the modification is
based only on impermissible hindsight. The Examiner provided some
reasoning in the initial rejection and expanded upon that reasoning in the
Answer, to which Appellant did not respond. Considering the broad scope
of Appellant’s independent claims and the identified difference between
those claims and the prior art, we determine the Examiner has sufficiently
articulated a reason with a rational underpinning for modifying Jones to
arrive at Appellant’s independent claims—namely, “in order to provide an
effective single representation of the depth information (3D structure) of the
scene.” See Ans. 11; see also In re Kahn, 441 F.3d at 988, cited with
approval in KSR, 550 U.S. at 418. Accordingly, Appellant has not presented
a sufficient persuasive showing of error in the Examiner’s factual findings or
conclusion of obviousness, and we sustain the Examiner’s rejection of
independent claims 1, 12, and 24.
The Examiner also finds Jones teaches the additional limitations
recited in dependent claims 2, 5, 6, 8—11, 13—15, 17, 18, and 20—23, which
ultimately depend from one of claims 1 and 12. Non-Final Act. 4—5. The
Examiner finds the combination of Jones and Ha or Jones, Ha, and Bove
teaches or suggests the subject matter recited in dependent claims 3, 4, 7, 16,
and 19, which ultimately depend from independent claims 1 or 12.
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Non-Final Act. 5—7; Ans. 6—8. Appellant does not present separate
substantive argument for any of the dependent claims. Accordingly, we also
sustain the Examiner’s rejection of dependent claims 2—11 and 13—23 for the
same reasons as discussed above.
DECISION
We affirm the Examiner’s decision to reject claims 1—24 under
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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