Ex Parte Connell

Patent Trial and Appeal Board

Jul 2, 2013

12127099 (P.T.A.B. Jul. 2, 2013)

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

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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

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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

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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

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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

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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)

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