Ex Parte ConnellDownload PDFPatent Trial and Appeal BoardJul 2, 201312127099 (P.T.A.B. Jul. 2, 2013) Copy Citation MOD PTOL-90A (Rev.06/08) APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. 12/127,099 5/27/2008 Jonathan H. Connell YOR920040615US2 EXAMINER Ryan, Mason & Lewis, LLP Suite 205 1300 Post Road Fairfield CT 06824 AKHAVANNIK, HADI ART UNIT PAPER NUMBER 2666 MAIL DATE DELIVERY MODE 07/2/2013 PAPER 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. UNITED STATES DEPARTMENT OF COMMERCE U.S. Patent and Trademark Office Address : COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov UNITED STATES PATENT AND TRADEMARK OFFICE _____________________________________________________________________________________ UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JONATHAN H. CONNELL ____________________ Appeal 2010-011747 Application 12/127,099 Technology Center 2600 ____________________ Before ALLEN R. MacDONALD, SCOTT R. BOALICK, and KRISTEN L. DROESCH, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-011747 Application 12/127,099 2 STATEMENT OF CASE Introduction Appellant appeals under 35 U.S.C. § 134 from a final rejection of claims 1-27. We have jurisdiction under 35 U.S.C. § 6(b). Exemplary Claims Exemplary independent claims 1 and 18 under appeal read as follows: 1. A method for maintaining a background image model, comprising: obtaining a map of accumulated motion; and adjusting said background image model based on said map of accumulated motion, wherein one or more of said steps are performed by a processor. 18. A system for maintaining a background image model, comprising: a memory; and at least one processor, coupled to the memory, operative to: obtain a map of accumulated motion; and adjust said background image model based on said map of accumulated motion. Rejections 1. The Examiner provisionally rejected claims 1 and 16-17 under 35 U.S.C. § 101 as claiming the same invention as that of claim 1 of copending Application No. 11/345,854, and provisionally rejected claims 18 and 27 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 1 of copending Application No. 11/345,854. 1 1 Application No. 11/345,854 was abandoned prior to the filing of Appellant’s Appeal Brief. Therefore, the “co-pending” requirement for double patenting no longer exists, and we reverse these rejections pro forma. Appeal 2010-011747 Application 12/127,099 3 2. The Examiner rejected claims 1, 2, 5-15, 18 and 21-27 under 35 U.S.C. § 102(b) as being anticipated by Stauffer (“Adaptive background mixture models for real-time tracking”; The Artificial Intelligence Laboratory Massachusetts Institute of Technology). 2 3. The Examiner rejected dependent claims 3, 4, 16, 17, 19, and 20 as being unpatentable under 35 U.S.C. § 103(a) over various combinations of Stauffer and other prior art references. 3 Appellant’s Contentions 1. Appellant contends that the Examiner erred in rejecting claims 1, 18, and 27 because: Contrary to the Examiner's assertion, Stauffer's method does not use maps of accumulated motion to build a background model. Stauffer does not disclose or suggest obtaining a map of accumulated motion; and adjusting said background image model based on said map of accumulated motion. (App. Br. 5)(emphasis omitted). 2. Appellant also contends that the Examiner erred in rejecting claims 1, 18, and 27 because: The Examiner asserts that the current frame of Stauffer is interpreted as the “maps of accumulated motion” because it represents the effect of accumulated motion since the last frame. The Examiner further asserts that each pixel in the current frame is used to update a new background model and 2 Separate patentability is not argued for independent claims claim 1, 18, and 27. Except for our ultimate decision, these claims are not discussed further herein. 3 Separate patentability is not argued for claims 3, 4, 16, 17, 19, and 20. This rejection turns on our decision as to the underlying § 102 rejection, and is not further addressed herein. Appeal 2010-011747 Application 12/127,099 4 asserts that the map is the image frame because the image is made up of a map of pixels. Appellant notes that an accumulated motion map indicates which areas are changing currently or have changed a short time ago. A single static image, for example, does not indicate which objects are currently in motion or have been in motion recently. As would be apparent to a person of ordinary skill in the art, a current frame is not a “map of accumulated motion”, as defined in the context of the present invention. (Reply Br. 2)(emphasis omitted). Issue on Appeal Did the Examiner err in rejecting claims 1-27 because Stauffer fails to disclose obtaining a map of accumulated motion as claimed? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments that the Examiner has erred. We agree with Appellant’s above contentions. NEW GROUND OF REJECTION We reinstate the Examiner’s rejection of claims 1-17 under 35 U.S.C. § 101 as being directed to non-statutory subject matter as set forth at page 6 of the May 20, 2009 Office Action. The Examiner withdrew this rejection (page 2 of the Office Action of October 1, 2009) in response to Appellant’s amendment of claim 1 entered on August 17, 2009 which added the clause “wherein one or more of said steps are performed by a processor” to the claim. We deem Appellant’s amendment to be only partially effective. The language “one or more of” causes the claim to include at least one Appeal 2010-011747 Application 12/127,099 5 embodiment where only the obtaining (data gathering) step is performed by the processor. Without the “adjusting” step also being performed by the processor, this transformation step is performed on a disembodied image (i.e., an abstract data structure rather than an article in the form of a data structure in a memory). This rejection may be overcome by deleting the language “one or more of” from claim 1. 37 C.F.R. § 41.50(b) This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new grounds of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the examiner . . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record . . . . Appeal 2010-011747 Application 12/127,099 6 CONCLUSIONS (1) Appellant has established that the Examiner erred in rejecting claims 1, 2, 5-15, 18 and 21-27 as being anticipated under 35 U.S.C. § 102(b). (2) Appellant has established that the Examiner erred in rejecting claims 3, 4, 16, 17, 19, and 20 as being unpatentable under 35 U.S.C. § 103(a). (3) On this record, claims 18-27 have not been shown to be unpatentable. (4) Claims 1-17 are not patentable. DECISION The Examiner’s rejections and provisional rejections of claims 1-27 are reversed. REVERSED 37 C.F.R. § 41.50(b) ke Copy with citationCopy as parenthetical citation