Ex Parte Weller et al

Patent Trial and Appeal Board

Jul 25, 2016

13487513 (P.T.A.B. Jul. 25, 2016)

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,
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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
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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.
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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 ).
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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
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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;
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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
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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
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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)
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