Ex Parte Vaysburg et alDownload PDFPatent Trial and Appeal BoardApr 16, 201512431914 (P.T.A.B. Apr. 16, 2015) Copy Citation 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. 12/431,914 04/29/2009 Dimitry Vaysburg applied_330 6080 29397 7590 04/17/2015 LAW OFFICE OF GERALD MALISZEWSKI P.O. BOX 270829 SAN DIEGO, CA 92198-2829 EXAMINER MONK, MARK T ART UNIT PAPER NUMBER 2661 MAIL DATE DELIVERY MODE 04/17/2015 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 DIMITRY VAYSBURG, VINAY RAVURI, PRODYUT HAZARIKA, LOC HO, TUSHAR TYAGI, PARAMESH GOPI, DMITRIY SHTALENKOV, VIDHYANANTH VENKATASAMY, GILLES GARCIA, FUSHEN CHEN, and VICTOR GALLARDO ____________ Appeal 2012-012507 Application 12/431,914 Technology Center 2600 ____________ Before CAROLYN D. THOMAS, MICHAEL J. STRAUSS, and NABEEL U. KHAN, Administrative Patent Judges. KHAN, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1–40. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is Applied Micro Circuits Corporation (Appeal Br. 3). Appeal 2012-012507 Application 12/431,914 2 THE INVENTION The invention relates to “automatic photo-image discovery and storage.” Abstract. Independent claim 1, which is illustrative, is reproduced below. 1. A method for automatic photo-image discovery and storage, the method comprising: a photo-image discovery device scanning communication interfaces for photo-capable devices; determining if detected photo-capable devices have stored electronically formatted photo-images; acquiring the photo-images into the photo-image discovery device and organizing the photo-images into folders using a criteria based upon the photo-capable device originating the photo-images; and, automatically uploading the acquired photo-images to a network-connected storage site. REFERENCES Tracy US 2002/0086636 A1 Jul. 4, 2002 Mutton US 2002/0147840 A1 Oct. 10, 2002 Montulli US 2006/0189349 A1 Aug. 24, 2006 Disario US 2007/0159651 A1 Jul. 12, 2007 Minor US 2007/0281667 A1 Dec. 6, 2007 Anton US 2007/0288556 A1 Dec. 13, 2007 Hwang US 2008/0091725 A1 Apr. 17, 2008 Ahmed US 2008/0201751 A1 Aug. 21, 2008 Appeal 2012-012507 Application 12/431,914 3 REJECTIONS 1. The Examiner rejected claims 1, 3, 9–11, 15–21, 23, 29–31, and 35–40 as unpatentable under 35 U.S.C. § 103(a) over Minor, Montulli, and Disario. 2. The Examiner rejected claims 2 and 22 as unpatentable under 35 U.S.C. § 103(a) over Minor, Montulli, Disario, and Hwang. 3. The Examiner rejected claims 4–7 and 24–27 as unpatentable under 35 U.S.C. § 103(a) over Minor, Montulli, Disario, and Tracy. 4. The Examiner rejected claims 8 and 28 as unpatentable under 35 U.S.C. § 103(a) over Minor, Montulli, Disario, and Ahmed. 5. The Examiner rejected claims 12 and 32 as unpatentable under 35 U.S.C. § 103(a) over Minor, Montulli, Disario, and Anton. 6. The Examiner rejected claims 13, 14, 33, and 34 as unpatentable under 35 U.S.C. § 103(a) over Minor, Montulli, Disario, and Mutton. ISSUE Did the Examiner err in finding that Minor, Montulli, and Disario teach or suggest “organizing the photo-images into folders using a criteria based upon the photo-capable device originating the photo-images,” as claim 1 requires. ANALYSIS We adopt the Examiner’s findings and conclusions in the Answer and we add the following for emphasis. Appellants contend “that Disario does not address the process of acquiring images from a photo-capable device” Appeal 2012-012507 Application 12/431,914 4 and instead teaches downloading images from a network server. Appeal Br. 7. We disagree with Appellants’ argument for at least two reasons and are not persuaded of Examiner error. First, Appellants’ argument is not commensurate with the scope of the claim. Under the broadest reasonable interpretation, the term “photo- capable device originating the photo-images” is not limited to devices that take photos, such as a camera, but can include devices that supply photos to the photo-image discovery device, such as the network server in Disario. Indeed, Appellants’ Specification provides several examples of “photo- capable devices” that store or supply photos, not only optical imaging devices for taking photos. Specification 5, ll. 15–21 (“Some examples of photo-capable devices include . . . a personal computer, . . . digital video disk (DVD), . . . television, digital video recorder (DVR), [and] secure digital (SD) memory card.”) Therefore, we do not find error in the Examiner’s interpretation of the term “photo-capable device” as including a “device capable of supplying images,” see Answer 5, and the Examiner’s finding that Disario also discloses a photo-capable device under such interpretation. Second, even if it is assumed, arguendo, that the term “photo-capable device” excludes network servers like the one disclosed in Disario, Appellants’ argument is still unpersuasive because it does not address the Examiner’s specific findings. The Examiner does not rely on Disario as disclosing a photo-capable device. Instead the Examiner relies upon Minor as disclosing a photo-image discovery device acquiring images from a photo-capable device. Answer 5–6 (citing Minor ¶ 71 (“The mobile terminal 10 may include . . . a camera device configured to generate a still Appeal 2012-012507 Application 12/431,914 5 image and/or video data stream.”)) Disario is relied upon as teaching the principle of organizing photo-images into folders using a criteria based upon the server from which the photo-images are downloaded. Answer 4–5. Appellants do not dispute the Examiner’s findings with respect to Minor and Appellants’ argument does not address Examiner’s specific findings with respect to Disario. Further one cannot show non-obviousness by attacking references individually where the rejections are based on a combination of references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Thus, even under Appellants’ narrow construction and, arguendo, accepting that Disario, taken individually, discloses acquiring images from a server rather than a photo- capable device, the combination of Disario with Minor nonetheless discloses acquiring images from a photo-capable device and organizing those images into folders based on the photo-capable device originating the images, as required by claim 1. Appellants further contend that Disario addresses downloading images from a network server while the claimed invention is directed to uploading images to a network server. Appeal Br. 9–10. Again, Appellants argument is improperly directed to Disario individually when the Examiner relies upon Montulli as teaching uploading images from the user’s cell phone to a network-connected storage site. Answer 6. Because the Appellants’ do not dispute the Examiner’s findings with respect to Montulli and because we agree with Examiner’s findings regarding Disario we are not persuaded of Examiner error. Finally, Appellants contend that because Disario addresses organizing images on the basis of downloaded information, the teachings of Disario Appeal 2012-012507 Application 12/431,914 6 “point away” from “organizing images as they are acquired from the camera” and therefore the Examiner has not provided evidence showing a reasonable expectation of success in the combination. Appeal Br. 13. We disagree the disclosure of organizing images based on downloaded information teaches or points away from organizing images as they are acquired from the camera. Appellants have not provided sufficient evidence showing that Disario criticizes, discredits or discourages the approach claimed by Appellants or that it would render either Minor or Montulli unsatisfactory for their intended purpose. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (If a prior art reference discloses a different solution to a similar problem, it does not teach away from the claimed subject matter unless the prior art reference also criticizes, discredits or otherwise discourages the solution claimed). Indeed from the point of view of the photo discovery device, the act of acquiring images from a camera is equivalent to downloading images from the camera. Thus, rather than teaching away, the disclosure of organizing images based on downloaded information teaches or suggests the disputed limitation. Accordingly, we affirm the Examiner’s rejection of independent claim 1 and the rejection of claims 3, 9–11, 15–21, 23, 29–31 and 35–40 which were not argued separately. See Appeal Br. 7–14. We also affirm the Examiner’s rejection of claims 2, 4–8, 12–14, 22, 24–28, 32–34 for which no additional arguments were made. See Appeal Br. 14–20. DECISION The Examiner’s rejection of claims 1–40 is AFFIRMED. Appeal 2012-012507 Application 12/431,914 7 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. § 1.136(a)(1)(iv). AFFIRMED dw Copy with citationCopy as parenthetical citation