Ex Parte Weller et alDownload PDFPatent Trial and Appeal BoardJul 25, 201613487513 (P.T.A.B. Jul. 25, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/487,513 06/04/2012 25231 7590 07/27/2016 MARSH, FISCHMANN & BREYFOGLE LLP 8055 East Tufts A venue Suite 450 Denver, CO 80237 FIRST NAMED INVENTOR Errin T. Weller 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. 50622-00007 1039 EXAMINER GOOD JOHNSON, MOTILEWA ART UNIT PAPER NUMBER 2616 NOTIFICATION DATE DELIVERY MODE 07/27/2016 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): PTOMail@mfblaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ERRIN T. WELLER and JEFFREY B. FRANKLIN Appeal2015-003290 Application 13/487,513 Technology Center 2600 Before, BRUCE R. WINSOR, LINZY T. McCARTNEY, and NATHAN A. ENGELS, Administrative Patent Judges. PERCURIAM. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1--4 and 6-25. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM-IN-PART and enter a NEW GROUND OF REJECTION. Appeal2015-003290 Application 13/487,513 STATEMENT OF THE CASE The present patent application "relates to the field of augmented reality or simply AR. More particularly, the described methods and systems relate to increasing geographic accuracy of an AR system using markers." Spec. i-f 2. Claim 15 illustrates the claimed subject matter: 15. An augmented reality (AR) method comprising: operating a camera of the user device to acquire an input image of a physical environment, wherein a digitally encoded marker (DEM) is positioned at a marker location within the physical environment; with a processor, processing the input image to identify the DEM in the input image; decoding data from the identified DEM including geographic coordinate data defining the marker location in the physical environment; from memory of the user device, retrieving digital data; and displaying an augmented reality image comprising at least a portion of the input image and an overlay image, corresponding to the retrieved digital data, positioned within the augmented reality image based on the decoded data from the DEM and the marker location, as defined by the geographic coordinate data, in the physical environment associated with the input image. Br. 17. REJECTION Claims 1--4 and 6-25 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Maassel et al. (US 2010/0171758 Al; published July 8, 2 Appeal2015-003290 Application 13/487,513 2010) ("Maassel") and Tapley et al. (US 2011/0148924 Al; published June 23, 2011) ("Tapley"). Final Act. 2-12. ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments and the evidence of record. With respect to claims 1--4, 6-8, and 14--25, Appellants have not persuaded us that the Examiner erred. We adopt the Examiner's reasoning, findings, and conclusions for these claims as set forth in the Final Action and Answer to the extent consistent with the analysis below. As for claims 9-13, we agree with Appellants that the Examiner erred, and we enter a new ground of rejection for claim 9. Claims 1-4, 6-8, 15-25 Appellants argue Maassel does not teach or suggest a "DEM" because Maassel' s marker is a merely a bookmark or an annotation on data and is not "placed in a physical environment with encoded geographic coordinate data." See Br. 10-11. Given this purported deficiency, Appellants argue Maassel cannot teach or suggest the "decoding" limitation of claim 15. See Id. at 11. Appellants further argue that Tapley cannot teach the "decoding" or "displaying" limitations because "Tapley fails to teach that its marker 400 has geographic coordinate data encoded on/in it." See id. at 11-12. In essence, Appellants argue that neither Maassel nor Tapley teaches or suggests "a digitally encoded marker (DEM) ... positioned at a marker location within the physical environment ... including geographic coordinate data defining the marker location" and therefore neither reference can teach or suggest all of the limitations recited in claim 15. See id. at 10- 12. We find Appellants' arguments unpersuasive because the Examiner 3 Appeal2015-003290 Application 13/487,513 concluded a combination of Maassel's and Tapley's disclosures teaches or suggests the subject matter recited in claim 15, not Maassel's or Tapley's disclosure alone. See Final Act. 2--4. "[O]ne cannot show non-obviousness by attacking references individually where, as here, the rejections are based on combinations of references." In re Keller, 642 F.2d 413, 426 (CCPA 1981 ). Moreover, we agree the Examiner that a combination of Tapley and Maassel discloses "a digitally encoded marker (DEM) ... positioned at a marker location within the physical environment ... including geographic coordinate data defining the marker location." Tapley discloses placing a physical marker or placeholder (e.g., a marked piece of paper or barcode) that includes additional information (e.g., price, inventory, and related items) in a location where an actual item would be positioned. See Ans. 21 (citing Tapley Fig. 4; i-f 39); Final Act. 3--4 (citing Tapley Figs. 5A-B); see also Tapley i-fi-113, 14. We agree with the Examiner that this disclosure teaches or suggests a "digitally encoded marker (DEM) ... positioned at a marker location within the physical environment." Further, consistent with the Examiner's findings, Maassel discloses marker data that is recorded at predefined coordinates and geo-referenced by a positioning device including, for example, a GPS. See Maassel i-f 34; see also Final Act 2-9; Ans. 14--19. We find this disclosure teaches or suggests "a ... marker ... positioned at a marker location ... including geographic coordinate data defining the marker location," as the specification similarly describes an embodiment that uses a global positioning system ("GPS") to determine a DEM's geo-location information. See Spec. i-f 21; Fig. 4, item 425. 4 Appeal2015-003290 Application 13/487,513 Therefore, because one of ordinary skill in the art would understand the importance of accurately defining the location of Tapley' s digitally encoded marker so as to match the location of Tapley' s item for sale within the physical environment, 1 we conclude that incorporating Maassel's geo- referencing coordinate data into Tapley's digitally encoded marker would have been obvious, predictably resulting in a "a digitally encoded marker (DEM) ... positioned at a marker location within the physical environment . . . including geographic coordinate data defining the marker location" as recited in claim 15. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) ("If a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill."). 2 In view of the foregoing, we sustain the Examiner's rejection of independent claim 15; as well as independent claim 1 and dependent claims 2--4, 6-8 and 16-25, which were not argued separately with particularity beyond the arguments advanced for claim 15. See Br. 12-13. 1 Compare Tapley Fig. 5A, item 550, with Tapley Fig. 5B, item 560; see also Tapley Abstract, i-fi-f 13-14 (disclosing that a marker and corresponding item for sale share the same location), 27 (disclosing a placement determination module used to determine coordinates and general location of the placeholder in the contextual environment). 2 We note that although the Examiner articulated the rejection as Maassel in view of Tapley (Final Act. 2), the fact that we frame our analysis as Tapley in view of Maassel is "of no significance, but merely a matter of exposition." See In re Bush, 296 F .2d 491, 496 ( CCP A 1961 ). 5 Appeal2015-003290 Application 13/487,513 Claim 14 Appellants argue Tapley does not teach or suggest "calculating a mathematical offset between the geographic world coordinates and coordinates provided in the digital model of the virtual object," as recited in claim 14. See Br. 14. According to Appellants, Tapley simply discusses placeholders and does not provide any geographic world coordinates for use in determining a mathematical offset as claimed. See id. We find Appellants' arguments unpersuasive. The Examiner found Tapley teaches that a "retrieved image may be modified to reconcile the respective dimensions, orientation, etc. of the captured environment with the dimensions, orientation etc. of an item represented by the retrieved image." Final Act. 8-9 (citing Tapley i-f 33). This passage suggests that differences in dimension, orientation, etc., between Tapley's captured environment and its item image are calculated ("calculating a mathematical offset"). Although Tapley does not explicitly state that location is one of the image attributes to be reconciled, Tapley teaches that its "placement determination module 228 may determine ... coordinates ... of the placeholder in the contextual environment." Tapley i-f 27. Further, as discussed above with respect to claim 15, Maass el' s geo-referencing technique, which can use GPS to determine an item's location, teaches or suggests determining an item's location in terms of "geographic world coordinates." See Maassel i-fi-129, 34, 50; see also Final Act. 12; Ans. 18. Accordingly, we conclude that modifying Tapley's reconciliation to further include location as one of its attributes, and more specifically Tapley's "coordinates" and Maassel's GPS-based "geographic world coordinates," would have been obvious, predictably resulting in a device that 6 Appeal2015-003290 Application 13/487,513 calculates and reconciles the difference ("mathematical offset") between the coordinates of an item represented by the retrieved image and the geographical world coordinates of the captured environment, thereby allowing the user to view the item as it would appear in the environment. See Maassel i-fi-129; 34, 50; Tapley i133; see also Final Act. 12; Ans. 18. In view of the foregoing, we sustain the Examiner's rejection of claim 14. Claims 9-13 The Examiner found Tapley teaches "generating an AR image ... positioned and oriented based on ... the determined user device location and ... orientation," as recited in claim 9, because "Tapley discloses ... receiving ... visual data ... captured by a camera, and detecting placeholder information included in the visual data[, the] placeholder information associated with a placeholder placed in a contextual environment captured by the camera." Ans. 22 (citing Tapley i-fi-132-33). Appellants argue neither Maassel nor Tapley teaches or suggests this limitation because "Tapley shows replacing the marker/place holder 400/550 with an image of an object (such as a couch or a lamp) without any indication that such placement or orientation should be performed based on a location or an orientation of the device capturing providing the visual input." Br. 13. We agree with Appellants that the Examiner erred. Although Tapley teaches generating an AR environment of visual data including a placeholder or an associated image, wherein the dimensions and orientation of the placeholder and associated image are reconciled (see Tapley i-fi-132-33, 39; 7 Appeal2015-003290 Application 13/487,513 Figs. 5A-B), the Examiner has not shown that Tapley or Maassel, either singularly or in combination, teaches or suggests "generating an AR image . . . positioned and oriented based on ... the determined user device location and . .. orientation" as recited in claim 9. See Final Act. 6-7; Ans. 21-22. Accordingly, we do not sustain the Examiner's rejection of independent claim 9, nor do we sustain the Examiner's rejection of dependent claims 10-13, each of which recites a similar limitation. See Br. 16-13. NEW GROUND OF REJECTION WITHIN 37 C.F.R. § 41.50(b) Claim 9 We adopt as our own the Examiner's findings, conclusion, and reasoning regarding claim 9 except, as discussed supra, the finding that Tapley teaches or suggests "generating an AR image ... positioned and oriented based on ... the determined user device location and ... orientation." We find that Maassel teaches or suggests this claim limitation. In particular, Maassel's positioning device teaches determining the location and orientation of the augmented reality (AR) unit (including a user device) and providing that data to the sensor data source and/or controller so as to geo-reference the captured audio visual data and marker data. See Maassel i-f 34; Maassel Fig. 2, items 200, 207, 250. 260. Further, Maassel's geo- referenced audio-visual and marker data make up geo-registered sensor data, which is rendered along with geospatial overlay data to provide an AR image presentation. See Maassel i-fi-120, 44. Accordingly, we find that Maassel's AR presentation, which includes geo-registered sensor data based on positioning information including the location and orientation of an AR 8 Appeal2015-003290 Application 13/487,513 unit, teaches or suggests "generating an AR image ... positioned and oriented based on ... the determined user device location and ... orientation," as recited in claim 9. As our analysis deviates from the Examiner's rejection, we designate our findings and conclusion to be a new ground of rejection for claim 9 under 35 U.S.C. § 103(a) over Maassel and Tapley. Claims 10-13 We have entered a new ground of rejection for claim 9. We leave it to the Examiner to consider the patentability of dependent claims 10-13 in light of our findings and conclusion above. The fact that we did not enter a new ground of rejection for claims 10-13 should not be construed to mean that we consider those claims to be directed to patentable subject matter or to be patentable over the prior art of record. DECISION The decision of the Examiner to reject claims 1--4, 6-8, and 14--25 is affirmed. The decision of the Examiner to reject claims 9-13 is reversed. We enter a new ground of rejection for claim 9 under 35 U.S.C. § 103(a) over Maassel and Tapley. Section 41.50(b) provides that "[a] new ground of rejection ... shall not be considered final for judicial review." Section 41.50(b) also provides that Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of 9 Appeal2015-003290 Application 13/487,513 the following two options with respect to the new ground 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 prosecution 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. 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-IN-PART 37 C.F.R. § 41.50(b) 10 Copy with citationCopy as parenthetical citation