Ex Parte Shuster

Patent Trial and Appeal Board

Dec 17, 2015

12751357 (P.T.A.B. Dec. 17, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
121751,357 03/31/2010 Gary Stephen Shuster
112918 7590 12/17/2015
Coleman & Horowitt, LLP
499 W. Shaw Ave., Ste. 116
Fresno, CA 93704
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.
70013-00175 1486
EXAMINER
MONK, MARKT
ART UNIT PAPER NUMBER
2661
MAILDATE DELIVERY MODE
12/17/2015 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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GARY STEPHEN SHUSTER
Appeal2015-001877
Application 12/751,357
Technology Center 2600
Before MICHAEL J. STRAUSS, JOHN F. HORVATH, and
AMBER L. HAGY, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
1-23. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
THE INVENTION
The claims are directed to automated white balancing in digital
photography. Spec., Title. Claim 1, reproduced below, is representative of
the claimed subject matter:
1. A method, comprising:
in response to receiving a wireless signal from a color
reference article placed within a field of view of a camera,
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Application 12/751,357
. t. . 1 ,..I" • 1 • -C' • • • processmg tue signa1 to extract uigita1 m1ormatwn compnsmg a
standard color value characteristic of a reference surface of the
color reference article, using a processor component of the
camera, wherein the standard color value indicates a specific
RGB value characteristic of the reference surface when
photographed under a defined set of controlled conditions;
capturing a digital image of the field of view, using the
camera;
storing the digital information in association with the
digital image for use in image post-processing; and
comparing an image of the reference surface to the
standard color value determined by the digital information.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Lin
Raskar
Erol
Takane
US 2003/0235333 Al
US 2007 /0268366 Al
US 2008/0027983 Al
US 2008/0074515 Al
REJECTIONS
Dec. 25, 2003
Nov. 22, 2007
Jan. 31, 2008
Mar. 27, 2008
The Examiner made the following rejections:
Claims 1 and 3 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Erol and Takane. Final Act. 9--14.
Claims 2, 4, 5, and 7-23 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Erol, Takane, and Raskar. Final Act. 14--22.
Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Erol, Takane, Raskar, and Lin. Final Act. 22-24.
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APPELLANT'S CONTENTIONS
1) Neither Erol nor Takane, taken individually or in combination, teach or
suggest a specific RGB value characteristic of the reference surface when
photographed under a defined set of controlled conditions as required by
claim 1. App. Br. 7-10.
2) Takane's a, b, and, c correction factor of a specific light source fails to
disclose the specific RGB characteristics of claim 1. Reply Br. 5---6.
3) "[B]y erroneously reading Erol and Takane on elements of claim 1, [the
Final Action] has failed to correctly describe the differences between the
claimed invention and the prior art." App. Br. 10.
ISSUES ON APPEAL
Based on Appellant's arguments in the Appeal Brief (App. Br. 6-14)
and Reply Brief (Reply Br. 1-16), the issues presented on appeal are
whether the Examiner erred in finding the prior art teaches or suggests the
disputed limitations.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner has erred. We disagree with Appellant's
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Final Act. 2-24;
Advisory Act, continuation sheets) and (2) the reasons set forth by the
Examiner in the Examiner's Answer in response to Appellant's Appeal Brief
(Ans. 2-26) and concur with the conclusions reached by the Examiner. We
highlight the following for emphasis.
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Claims 1---6
Appellant contends neither Erol nor Takane teach or suggest a specific
RGB value characteristic of the reference surface when photographed under
a defined set of controlled conditions as required by claim 1. Appellant
argues:
The "color of an object" as disclosed by Erol fails to read on the a
[sic] "specific RGB value characteristic of the reference surface when
photographed under a defined set of controlled conditions" because
the simple "color of an object" lacks any aspect of the recited "defined
set of controlled conditions" and does not comprise a "standard color
value characteristic."
App. Br. 7-8. Appellant further argues Erol relies on the actual color of an
arbitrary object in the photo, not a reference surface or the use of a standard
color value as required by claim 1. App. Br. 8. Appellant contends Takane
does not remedy this deficiency because it teaches correcting image data
based on identifying different light sources and, therefore, "fails to disclose
any standard color value that indicates a specific P'"-GB value characteristic of
the reference surface when photographed under a defined set of controlled
conditions." App. Br. 9. Because, according to Appellant, the combination
of Erol and Takane fails to teach or suggest the disputed elements of claim 1,
the Examiner "has failed to correctly describe the differences between the
claimed invention and the prior art." Id. at 10. In connection with claim 6,
Appellant argues the addition of Lin fails to cure the deficiencies argued in
the base rejection. Id.
The Examiner responds by finding Appellant's arguments attack the
Erol and Takane references individually even though the rejection is based
on their combination. Ans. 2-3. The Examiner addresses Appellant's
individual challenges by providing citations directing attention to where the
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disputed elements are disclosed in Erol or Takane and/or rendered obvious
based on their combination. Ans. 2-14. In connection with Appellant's
contention "Erol fails to teach any use of a 'standard color value' or making
a comparison to a 'standard color value[]' as defined by claim 1" (App. Br.
8), the Examiner responds by finding, when reasonably interpreted, Erol's
RFID tag color information discloses the disputed standard color value (Ans.
9-10). The Examiner further finds Erol discloses:
The objects descriptors, for the physical objects determined from the
image, are compared to objects descriptors decoded from information,
such as the color of the object, read from the RFID tags is performing
[sic] comparing the color of object descriptor in an image of the
colored objects surface (reference surface) to the color of object
descriptor, read form [sic] the RFID tag information (standard color
value) determined by the digital information (the color of object
descriptor form [sic] the RFID tag information in [sic] digital because
it is stored in memory) and then analyzing both color object
descriptors to determine a match.
Ans. 9-10. The Examiner responds to Appellant's contention that Takane
fails to disclose a standard color value as claimed by finding the disputed
limitation is taught by the combination ofErol and Takane, Takane being
relied upon for disclosing the limitation "wherein the standard color [value]
indicates a specific [RGB value] characteristic of the reference surface when
photographed." Ans. 10-11.
We find Appellant's arguments unpersuasive of Examiner error. For
the most part, Appellant's arguments are based on asserted deficiencies of
the references individually but fail to address the Examiner's findings that
the combination of Erol and Takane teaches the disputed limitations.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
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disclosures. See In re lvferck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986). Accordingly, we agree with the Examiner in finding the combination
of Erol and Takane teaches or suggests the disputed limitations.
We also find unpersuasive Appellant's argument that Takane fails to
teach a specific RGB value characteristic. App. Br. 9. As found by the
Examiner, Takane's correction factor teaches or suggests a specific RGB
value characteristic. Final Act. 12-13; Ans. 12-13. In particular, Takane
discloses "[ t ]he correction factors are stored for each light source or each
RGB in the storage device." Takane i-f 49. Therefore, Takane at least
suggests the correction factors may be expressed as a specific RGB value
characteristic. Furthermore, because we agree with the Examiner that the
combination of Erol and Takane teaches or suggests the disputed limitations
of claim 1, we also find unpersuasive Appellant's remaining arguments that
the Examiner has failed to correctly describe the differences between the
claimed invention and the prior art (App. Br. 9) and that Lin fails to cure the
alleged deficiencies of the asserted combination (App. Br. 10).
For the reasons discussed supra, Appellant's contentions of error in
connection with the rejections of claims 1 and 6 are unpersuasive of
Examiner error. Accordingly, we sustain the rejections of claims 1 and 6
under 35 U.S.C. § 103(a) together with the rejections of dependent claims 2-
5, which were not separately argued.
Claims 7-18
Appellant does not separately argue the rejection of claims 7-18,
instead relying on those arguments presented in connection with claim 1.
App. Br. 11-12. Appellant's contention that Raskar fails to "include or
make use of the [disputed limitations of claim 7]" (App. Br. 11) is
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unpersuasive as it amounts to no more than a naked assertion that the
corresponding elements were not found in the prior art. See 37 C.F.R.
§ 41.37(c)(l)(iv) ("A statement which merely points out what a claim recites
will not be considered an argument for separate patentability of the
claim."); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that
the Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art."). Accordingly, we sustain the rejections of claims 7-18 under
35 U.S.C. § 103(a) for the reasons discussed supra.
Claims 19-23
Appellant does not separately argue the rejections of claims 19-23,
again relying on those arguments presented in connection with claim 1.
App. Br. 12-14. Accordingly, we sustain the rejections of claims 19-23
under 35 U.S.C. § 103(a) for the reasons discussed supra.
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DECISION
The Examiner's decision to reject claims 1-23 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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