Ex Parte MAKINEN et al

Patent Trials and Appeals Board

Jun 24, 2019

15098551 - (D) (P.T.A.B. Jun. 24, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/098,551 04/14/2016
466 7590
YOUNG & THOMPSON
209 Madison Street
Suite 500
Alexandria, VA 22314
06/26/2019
FIRST NAMED INVENTOR
Otso MAKINEN
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
3509-1046 5888
EXAMINER
DU,HAIXIA
ART UNIT PAPER NUMBER
2611
NOTIFICATION DATE DELIVERY MODE
06/26/2019 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):
DocketingDept@young-thompson.com
yandtpair@firs ttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OTSO MAKINEN and HANNU SARANSAARI
Appeal2017-010637
Application 15/098,551 1
Technology Center 2600
Before JOSEPH L. DIXON, JAMES W. DEJMEK, and
STEPHEN E. BELISLE, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-3, 6-11, 14-19, and 22-24. The Examiner has objected to
claims 4, 5, 12, 13, 20, and 21 as being dependent upon a rejected base
claim, but has indicated these claims would be allowable if rewritten in
independent form. See Final Act. 18; Adv. Act. 2 (mailed Dec. 12, 2016).
We have jurisdiction over the remaining pending claims under 35 U.S.C.
§ 6(b ). An oral hearing was scheduled for May 16, 2019, but the hearing
was waived. Therefore, we decide the appeal on the briefs.
We affirm.
1 Appellants identify Umbra Software Ltd. as the real party in interest. App.
Br. 3.
Appeal2017-010637
Application 15/098,551
STATEMENT OF THE CASE
Introduction
Appellants' disclosed and claimed invention generally relates to
"building a cell and portal graph corresponding to two-dimensional (2D) or
three-dimensional (3D) graphics data." Spec. ,-J 2. According to the
Specification, rendering computer graphics is "a resource intensive operation
and performance can be optimized by rendering the least amount of objects
possible." Spec. ,-J 4. An approach to reduce the amount of objects being
rendered is to remove those objects that are not visible in a scene. Spec. ,-J 4.
Occlusion culling is an approach wherein objects are not rendered if they are
occluded (i.e., blocked or hidden) by other objects. Spec. ,-J 5. Appellants
describe that a cell and portal graph may be used by, for example, a
graphical processing unit (GPU) to perform occlusion culling of graphics
when rendering graphics on a display. Spec. ,-J 38. In a disclosed
embodiment, a cell and portal graph is simplified by "repeatedly, selecting a
first cell in the initial cell and portal graph and growing the first cell in the
initial cell and portal graph by merging cells neighboring the first cell until
the first cell cannot be grown further without exceeding a specified measure
of occlusion." Spec. ,-J 6.
In a disclosed embodiment, "occlusion is measured by casting,
between the first cell and a cell neighboring the first cell, a specified
plurality of rays between points on portals of the first cell and points on
portals of the cell neighboring the first cell." Spec. ,-J 8. A percentage of
occluded rays relative to the specified plurality of rays is determined.
Spec. ,-J 8. According to the Specification, the specified measure of
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Application 15/098,551
occlusion at which a cell is not added to the cell group (i.e., first cell) is "a
user-specified value." Spec. ,i 51.
Claim 1 is representative of the subject matter on appeal and is
reproduced below with the disputed limitation emphasized in italics:
1. A computer implemented method for generating a cell and
portal graph corresponding to graphics data, the method
compnsmg:
voxelizing the graphics data;
generating an initial cell and portal graph for the voxelized
graphics data; and
simplifying the initial cell and portal graph by repeatedly:
selecting a first cell in the initial cell and portal
graph, and
growing the first cell in the initial cell and portal
graph by merging cells neighboring the first cell until the
first cell cannot be grown further without exceeding a
specified measure of occlusion.
The Examiner's Rejections2
1. Claims 1-3, 6-11, 14-19, and 22-24 stand rejected under the
doctrine of nonstatutory obviousness-type double patenting over the claims
of U.S. Patent No. 9,342,924 B2. Final Act. 5-7.
2 The Examiner had also rejected claims 1-24 under the doctrine of
nonstatutory obviousness-type double patenting over U.S. Patent
No. 8,988,431 B2 (see Final Act. 3-5) and claims 9-16 under 35 U.S.C.
§ 101 (see Final Act. 7-8). On November 22, 2016, Appellants filed a
terminal disclaimer with respect to U.S. Patent No. 8,988,431 B2.
Additionally, Appellants amended claim 9 to overcome the Examiner's
rejection under 35 U.S.C. § 101. Accordingly, the Examiner has withdrawn
these rejections. Adv. Act. 2.
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Application 15/098,551
2. Claims 1, 6-9, 14-17, and 22-24 stand rejected under pre-AIA
35 U.S.C. § 102(b) as anticipated by Lim (US 2002/0190995 Al; Dec. 19,
2002). Final Act. 8-14.
3. Claims 2, 10, and 18 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Lim and Hsien-His Hsieh et al., A
Flexible 3D Slicer for Voxelization Using Graphics Hardware,
ASSOCIATION FOR COMPUTING MACHINERY, INC., 285-88 (2005) ("Hsieh").
Final Act. 14-15.
4. Claims 3, 11, and 19 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Lim, Hsieh, and D. Haumont et al.,
Volumetric cell-and-portal generation, 22 EUROGRAPHICS (2003)
("Haumont"). Final Act. 15-18.
ANALYSIS3
Obviousness-type Double Patenting Rejection
Claims 1-3, 6-11, 14-19, and 22-24 stand rejected under the doctrine
of nonstatutory obviousness-type double patenting over the claims of U.S.
Patent No. 9,342,924 B2. Final Act. 5-7. Appellants filed a terminal
disclaimer on November 22, 2016, but only disclaimed the term that would
extend beyond that of U.S. Patent No. 8,988,431 (i.e., U.S. Patent No.
9,342,924 was not identified). Accordingly, the Examiner withdrew the
3 Throughout this Decision, we have considered the Appeal Brief, filed
March 16, 201 7 ("App. Br."); the Supplemental Appeal Brief, filed April 24,
2017 ("Supp. App. Br."); the Reply Brief, filed August 7, 2017 ("Reply
Br."); the Examiner's Answer, mailed June 8, 2017 ("Ans."); and the Final
Office Action, mailed August 24, 2016 ("Final Act."), from which this
Appeal is taken.
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Application 15/098,551
obviousness-type double patent rejection with respect to U.S. Patent No.
8,988,431, but stated "the nonstatutory double patenting rejections over
9,342,924 have been maintained." Adv. Act. 2.
Appellants do not set forth arguments rebutting the Examiner's
obviousness-type double patenting rejection with respect to U.S. Patent
No. 9,342,924. See generally App. Br. 7-13.
To the extent Appellants have not advanced separate, substantive
arguments for particular claims or issues, such arguments are considered
waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2016); see also Hyatt v. Dudas,
551 F.3d 1307, 1314 (Fed. Cir. 2008) ("When the appellant fails to contest a
ground of rejection to the Board, ... the Board may treat any argument with
respect to that ground of rejection as waived."). Additionally, "[i]f a ground
of rejection stated by the examiner is not addressed in the appellant's brief,
appellant has waived any challenge to that ground of rejection and the Board
may summarily sustain it unless the examiner subsequently withdrew the
rejection in the examiner's answer." MANUAL OF PATENT EXAMINING
PROCEDURE ("MPEP") § 1205.02 (9th ed., Rev. 08.2017, Jan. 2018).
Accordingly, we summarily sustain the Examiner's rejection of claims
1-3, 6-11, 14-19, and 22-24 under the doctrine ofnonstatutory
obviousness-type double patenting over the claims of U.S. Patent
No. 9,342,924.
Rejection under pre-AJA 35 U.S.C. § 102(b)
We begin our analysis with a brief review of Lim.
Lim generally relates to methods for "improving visibility
computations in 3D computer graphics." Lim, Abstract; see also Lim ,-J,-J 23,
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26. Lim describes an architectural model comprising cells and portals.
See Lim ,i 43. Lim discloses constructing model cells (i.e., wall surfaces)
and portals (i.e., boundaries of the cells). After the (geometric) model is
constructed, an adjacency graph is computed. Lim ,i 49. "This is the graph
that connects adjacent cells through the portals between them. Based on the
graph, the visibility between cells are computed. The combined technique
then uses the fuzzy projection technique to compute the visibility of these
cells." Lim ,i 49.
In a disclosed embodiment, Lim describes "[ e Jven more powerful
culling can be achieved by combining the CPCs [ ( combined projection
cubes)] of multiple cells." Lim ,i 123. Lim discloses identifying a root cell
(i.e., a first cell) and a first layer of adjacent cells (including diagonally
connected cells). Lim ,i 123. The adjacent cells are tested to determine if
they are within the field of view of the root cell. Lim ,i 123.
If the cell is found to be totally hidden by the CPC[s], no further
access to other cells from it is required. Otherwise those cells
within the field of view, adjacent to the tested cell and further
away from the root cell would be added into a list for further
access.
Lim ,i 123. Further, Lim discloses "[i]f at least one of the tested cells is not
found to be totally hidden, the CPCs of all these cells are merged using
logical-AND operation to form a new CPC. This CPC is then combined
with the CPC of the root cell using LOGICAL-OR operations." Lim ,i 123.
The resultant CPC is then used for testing occlusion involving the next level
of cells (i.e., cells adjacent to the expanded root cell). Lim ,i 124. "The
recursion would repeat until all cells and surfaces that are likely to be seen
by the root cell have been accessed." Lim ,i 126.
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The Examiner finds Lim discloses, inter alia, (i) voxelizing graphics
data; (ii) generating a cell and portal graph of the voxelized data;
(iii) selecting a first cell in the initial cell and portal graph; and (iv) growing
the first cell by merging cells neighboring the first cell until the first cell
cannot be grown further without exceeding a specified measure of occlusion.
Final Act. 9-11 ( citing Lim ,i,i 43, 49, 123-124, Fig. 8). The Examiner
explains "[ u ]sing the CPC of the root cell and merging the adjacent CPCs if
they are not hidden can be viewed as growing the CPC by merging
neighboring CPCs if they are not hidden, where the criterion of not hidden
can be a specified measure of occlusion." Final Act. 11. More specifically,
the Examiner explains that Lim's determination of cells being "not hidden"
corresponds to the claimed specified measure of occlusion. Adv. Act. 2.
That is, when there is no occlusion, the specified measure of occlusion is not
exceeded and the process continues. See Adv. Act. 2. As the Examiner
states, "the criterion of not hidden can be a specified measure of occlusion
because not hidden is similar to not being occluded and 'totally hidden' will
exceed the specified measure of occlusion 'not hidden."' Ans. 4.
Appellants assert Lim fails to disclose growing a first cell until it
cannot be grown any further without exceeding a specified measure of
occlusion. App. Br. 10-13; Reply Br. 2-5. In particular, Appellants dispute
the Examiner's finding that Lim' s disclosure of determining a cell is not
hidden discloses that a "specified measure" of occlusion has not been
exceeded. App. Br. 10-13; Reply Br. 2-5. Further, Appellants describe an
embodiment in their Specification for measuring occlusion as a percentage
of occluded rays. Reply Br. 4-5. Appellants argue Lim merely discloses
determining "totally hidden and not totally hidden cells, where the not
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totally hidden cells are merged" rather than providing an indication such as a
percentage of occluded rays. Reply Br. 5.
When construing claim terminology during prosecution before the
Office, claims are to be given their broadest reasonable interpretation
consistent with the Specification, reading claim language in light of the
Specification as it would be interpreted by one of ordinary skill in the art.
In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). We
are mindful, however, that limitations are not to be read into the claims from
the Specification. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
Because "applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee." In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) ( citation omitted).
We note, as does the Examiner, that independent claim 1 recites a
specified measure of occlusion, without additional limitations specifying
how such occlusion is measured. Ans. 4. Similarly, the claim is silent as to
the range or granularity of such measurements. Consistent with the
Specification (see, e.g., Spec. ,-J 51 (indicating the specified value may be
determined by the user)), the specified measure of occlusion, as claimed,
may range from no occlusion (i.e., not hidden, or 0% occlusion) to complete
occlusion (i.e., totally hidden or 100% occlusion). As explained by the
Examiner (see supra), Lim discloses growing a first cell (i.e., root cell) by
merging neighboring cells until it cannot be grown further without
exceeding a specified measure of occlusion. As discussed, Lim discloses the
process as being recursive and continues "until all cells and surfaces that are
likely to be seen by the root cell have been accessed." Lim ,-J 126. Cells are
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not merged (i.e., the first, or root, cell is not grown) when the cell is totally
occluded (i.e., a specified measure of occlusion is exceeded).
Appellants also argue that Lim fails to disclose when the process ends
(i.e., until the CPC cannot be grown further without exceeding a specified
measure of occlusion). App. Br. 11-12. Appellants argue Lim does not
limit the growth of the cell by merging and posit that Lim could "continue
merging indefinitely." App. Br. 11.
We do not find this argument persuasive of error. As the Examiner
explains, Lim's operation is similar to Appellants' claimed limit of growing
the cell. Ans. 4-5. In other words, Appellants' cell would also continue to
grow (indefinitely) if the specified measure of occlusion is not exceeded.
See Ans. 4-5.
We also disagree with Appellants' assertion (see Reply Br. 2) that the
Examiner's findings are speculative regarding when Lim will stop growing
the root cell. As discussed, Lim discloses a recursive method wherein cells
(i.e., adjacent cells) are merged unless the cell is totally hidden (i.e., a
specified measure of occlusion has been exceeded). See Lim ,-J 123.
Appellants also suggest Lim discloses its process is performed and
would end "after the access of several levels of cells" and not until a
specified measure of occlusion would be exceeded. App. Br. 12-13 ( citing
Lim ,-J 125).
When read in context, Lim describes that "[i]n a densely occluded
model the access would end after the access of several levels of cells."
Lim ,-J 125 (emphasis added). In other words, because the model is dense,
after several levels of cells, it is likely that a cell would be found to be totally
hidden. However, as Lim discloses in the next paragraph, "[t]he recursion
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would repeat until all cells and surfaces that are likely to be seen by the root
cell have been accessed." Lim ,i 126. Thus, we agree with the Examiner's
finding that Lim discloses growing a first cell (i.e., a root cell) by merging
cells neighboring the first cell until the first cell cannot be grown further
without exceeding a specified measure of occlusion (i.e., neighboring cells
are merged with the root cell unless they exceed a specified measure of
occlusion (i.e., they are totally hidden)).
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner's rejection under pre-AIA
35 U.S.C. § 102(b) of independent claim 1. For similar reasons, we also
sustain the Examiner's rejection of independent claims 9 and 17, which
recite commensurate limitations and were not argued separately. See App.
Br. 10-13; see also 37 C.F.R. § 41.37(c)(l)(iv). Additionally, we also
sustain the Examiner's rejection underpre-AIA 35 U.S.C. § 102(b) of claims
6-8, 14-16, and 22-24, which depend directly or indirectly therefrom and
were not argued separately. See App. Br. 13; see also 37 C.F.R.
§ 41.37(c)(l)(iv).
Rejections under pre-AJA 35 U.S.C. § 103(a)
Appellants assert that neither Hsieh nor Haumont cures the alleged
deficiencies of Lim and, therefore, dependent claims 2, 3, 10, 11, 18, and 19
are patentably distinguished over the relied upon references. App. Br. 13.
Because we do not find the Examiner's findings with respect to Lim to be
deficient (see supra), we find Appellants' argument concerning these other
references is moot. Accordingly, we sustain the Examiner's rejections of
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claims 2, 3, 10, 11, 18, and 19, which were not argued separately with
particularity. See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
We summarily affirm the Examiner's decision rejecting claims 1-3,
6-11, 14-19, and 22-24 under the doctrine of nonstatutory obviousness-type
double patenting.
We affirm the Examiner's decision rejecting claims 1, 6-9, 14-1 7,
and 22-24 under pre-AIA 35 U.S.C. § 102(b).
We affirm the Examiner's decision rejecting claims 2, 3, 10, 11, 18,
and 19 under pre-AIA 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. § l .136(a). See 37 C.F.R.
§ 41.50(±).
AFFIRMED
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