Garcia, Frederic et al.

Patent Trials and Appeals Board

Mar 10, 2020

13058962 - (D) (P.T.A.B. Mar. 10, 2020)

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.
13/058,962 05/06/2011 Frederic Garcia 8527-3004-1 5374
29318 7590 03/10/2020
JAMES D. STEVENS
REISING ETHINGTON P.C.
755 W. BIG BEAVER RD.
SUITE 1850
TROY, MI 48084
EXAMINER
RETALLICK, KAITLIN A
ART UNIT PAPER NUMBER
2482
NOTIFICATION DATE DELIVERY MODE
03/10/2020 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):
USPTOmail@gmx.com
USPTOmail@reising.com
stevens@reising.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
_________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte FREDERIC GARCIA, FREDERIC GRANDIDIER,
BRUNO MIRBACH, ROBERTO ORSELLO,
and THOMAS SOLIGNAC
____________________

Appeal 2019-004920
Application 13/058,9621
Technology Center 2400
____________________

Before ERIC S. FRAHM, NATHAN A. ENGELS, and
JOHN D. HAMANN, Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL

1 The instant application on appeal was the subject of a prior appeal, Appeal
No. 2015-002051, decided December 9, 2016. In the prior appeal, the Board
affirmed the Examiner’s obviousness rejections of claims 16–20, 22–25, 27,
28, and 30–39 under 35 U.S.C. § 103(a) over the combination of Rafii et al.
(US 7,741,961 B1; issued June 22, 2010 and filed Sept. 28, 2007)
(hereinafter, “Rafii”) and Palm (US 5,699,444; issued Dec. 16, 1997) (see
Decision 2–3, 6).
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Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 16–20, 22–25, 27, 28, and 30–39,
which constitute all the claims pending in this application. Claims 1–15, 21,
26, and 29 have been canceled (see Appeal Br. 8, 27, 28, 29, 30). We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.

STATEMENT OF THE CASE
Disclosed Invention and Exemplary Claim
Appellant’s disclosed invention relates to three-dimensional (3D)
computer vision, and particularly “to a position/orientation calibration
method for a 3D time-of-flight [(TOF)] camera system” (Spec. ¶ 1; Title; see
also claim 16; Fig. 3) used in the automotive field (see Spec. ¶ 3). Because
the inventors recognized that “position and orientation calibration of 3D
TOF cameras currently requires the person installing the camera to go
through relatively complicated procedures, which might hinder the success
of such cameras on the market place” (Spec. ¶ 4), and “requires the
knowledge of [a] transformation matrix” (Spec. ¶ 5) and the space and time-
consuming installation of calibration tools, Appellant discloses and claims a
camera system (claims 24 and 32) and position and orientation calibration
method (see claims 16, 35, and 39) for a 3D time-of-flight camera system

2 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. “The word ‘applicant’ when used in this title refers to the
inventor or all of the joint inventors, or to the person applying for a patent as
provided in §§ 1.43, 1.45, or 1.46.” 37 C.F.R. § 1.42(a). Appellant
identifies the real party in interest as IEE International Electronics &
Engineering S.A. (Appeal Br. 2).
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that “facilitates installation, in particular position and orientation calibration,
of a 3D TOF camera” (Spec. ¶ 6). Exemplary independent claim 16 under
appeal, with emphases and bracketed lettering added to key portions of the
claim at issue, reads as follows:
16. Position and orientation calibration method for a
camera system including a 3D time-of-flight camera, said
method comprising:
acquiring a camera-perspective range image of a scene
using said 3D time-of-flight camera, [A] wherein the range
image includes 3D data points representing surface elements
within the scene;
[B] detecting one or more planes within said range
image [C] without using predefined reference points from the
3D data;
[D] selecting a reference plane among said one or more
planes detected, said selecting of said reference plane
comprising presenting said one or more detected planes using
a user interface and fixing said reference plane based upon
user interaction; and
[E] calibrating said 3D time-of-flight camera with
respect to a position and orientation of said 3D time-of-flight
camera by computing, using said reference plane, position
and orientation parameters of said 3D time-of-flight camera
with respect to said reference plane and a coordinate
transformation matrix that transforms camera-perspective
range images of said scene into Cartesian representations of
said scene, in which coordinates are defined with respect to
said reference plane.
Appeal Br. 27, Claims Appendix (emphases and bracketed lettering added).
Remaining independent claims 24, 32, 35, and 39 recite camera systems and
methods having limitations commensurate in scope with limitations A–E of
claim 1. Limitations A through E in claim 16 above are similar to the
disputed limitations in the prior appeal of this application decided by the
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Board on December 9, 2016 (affirmed for obviousness over Rafii and Palm),
with the difference being that limitations A and C were added by
Appellant’s amendment filed May 23, 2017 (see p. 2), and limitation E was
amended, by Appellant’s amendments filed February 9, 2017 (see p. 2) and
December 13, 2017 (see p. 2). As discussed below, limitations A and C will
be dispositive of the instant application on appeal.
The Examiner’s Rejection
Claims 16–20, 22–25, 27, 28, and 30–39 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Rafii, Palm, Lea et al. (US
2009/0086014 A1; published April 2, 2009) (hereinafter, “Lea”), and Jorge
Lobo et al., Vision and Inertial Sensor Cooperation Using Gravity as a
Vertical Reference, IEEE TRANSACTIONS ON PATTERN ANALYSIS AND
MACHINE INTELLIGENCE, Vol. 25, No. 12, pp. 1597–1608 (2003)
(hereinafter, “Lobo”). Final Act. 17–32; Ans. 3–17.
Appellant’s Contentions
Appellant primarily contends that the Examiner erred in rejecting
claims 16–20, 22–25, 27, 28, and 30–39 under 35 U.S.C. § 103(a) based on
the failure of the applied references to teach or suggest various limitation of
claim 16 (see Appeal Br. 14–22; Reply Br. 2–6), and based on a failure by
the Examiner to articulate a reason to modify Rafii (see Appeal Br. 22–23).
More particularly, Appellant argues that the applied references, taken
individually or in combination, fail to teach or suggest limitations A and C
recited in claim 16, and as commensurately recited in claims 24, 32, 35, and
39.

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Principal Issue on Appeal
Based on Appellant’s arguments in the Appeal Brief (Appeal Br. 4–
10) and Reply Brief (Reply Br. 2–5), the following dispositive issue is
presented on appeal:
Has Appellant shown that the Examiner erred in rejecting claims 16–
20, 22–25, 27, 28, and 30–39 under 35 U.S.C. § 103(a) because Lobo, and
thus the combination of Rafii, Palm, Lea, and Lobo, fails to teach or suggest
detecting one or more planes within a range image including 3D data points
representing surface elements within a scene without using predefined
reference points from the 3D data as recited in claim 16 (see claim 16,
limitations A and C), and as commensurately recited in remaining
independent claims 24, 32, 35, and 39?

ANALYSIS
We have reviewed Appellant’s arguments in the Briefs (Appeal Br. 8–
26; Reply Br. 2–54), the Examiner’s rejection (Final Act. 17–32; Ans. 3–
17), and the Examiner’s response (Ans. 17–53) to Appellant’s arguments in
the Appeal Brief. We are persuaded by Appellant’s contentions that the
Examiner has not sufficiently shown that Lobo, and thus the combination of
applied references, teaches or suggests the subject matter recited in
limitations A and C of claim 16, and the commensurate limitations found in
remaining independent claims 24, 32, 35, and 39. Our reasoning follows.
The USPTO “must examine the relevant data and articulate a
satisfactory explanation for its action including a rational connection
between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal
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quotation marks and citation omitted); see Synopsys, Inc. v. Mentor
Graphics Corp., 814 F.3d 1309, 1322 (Fed. Cir. 2016) (stating that, as an
administrative agency, the PTAB “must articulate logical and rational
reasons for [its] decisions” (internal quotation marks and citation omitted)).
We will not resort to speculation or assumptions to cure the deficiencies in
the Examiner’s fact finding. See In re Warner, 379 F.2d 1011, 1017 (CCPA
1967).
In this light, and in view of the Examiner’s explanations as to the
basis for the rejection of claim 16 (see Final Act. 18–24; Ans. 3–9), it is not
completely clear which of the four applied references the Examiner mapped
to each claim limitation, because the Examiner maps multiple references to
individual limitations.
For example, as to limitation E of claim 16, the calibrating step, the
Examiner cites to all four of the applied references: (i) Rafii (see Final Act.
18–21; Ans. 4–5); (ii) Palm (see Final Act. 21; Ans. 6); (iii) Lea (see Final
Act. 21–22; Ans. 7); and (iv) Lobo (see Final Act. 22–23; 8).
With regard to limitation A of claim 16 (“the range image includes 3D
data points representing surface elements within the scene”), the Examiner
cites to (i) Rafii (see Final Act. 18; Ans. 3); and (ii) Lobo (see Final Act. 22;
Ans. 7). And, as to limitation C (“without using predefined reference points
from the 3D data”), the Examiner cites to (i) Rafii (see Final Act. 18; Ans.
4); and (ii) Lobo (see Final Act. 22; Ans. 7–8), and then finds that “Rafii,
Palm, and Lea fail to explicitly disclose that the calibration of the imaging
system can occur without predefined reference points from the imaged data”
(Final Act. 22; Ans. 7) (emphases added).
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In view of (i) the foregoing; and (ii) the Examiner’s 43 page response
to Appellant’s arguments as to claim 16 (see Ans. 3–46), we find
Appellant’s statements made in the Reply Brief to have merit and bear
repeating:
The content of an Examiner’s Answer is prescribed in
MPEP 1207.02, which sets forth that the Examiner’s Answer
should include a “Response to Argument” heading that includes
a statement of whether the Examiner disagrees with each of the
arguments presented in Appellant’s Brief, and an explanation of
the reasons for disagreement with any such argument. MPEP
1207.02 further states that:

In the event that the final rejection fully addresses
the arguments in the appeal brief, the examiner
should complete an examiner’s answer with a
typical “Grounds of Rejection to be Reviewed on
Appeal” section and a simplified “Response to
Arguments” section that simply refers to the
appropriate portion of the final rejection. (Emphasis
added.)

The Examiner’s Answer in this case is 54 pages in length. Pages
3-17 of the Answer replicate the rejections set forth in the Final
Office Action dated August 23, 2018, and the “Response to
Arguments” section, which begins on page 17 of the Answer,
spans the remaining 37 pages. But for a handful of sentences, the
Response to Arguments section replicates the rejections in the
Final Office Action, which themselves are little more than cut
and pasted excerpts from the cited art references that lack
analysis and reasoned explanation. Indeed, there are portions of
the Lobo reference in particular that are replicated more than a
dozen times. Appellant respectfully submits that the repetitive
nature of the Examiner's Answer is confusing,
counterproductive, and contrary to the guidelines set forth in the
MPEP. Moreover, as detailed below, despite the 54 pages, the
Examiner has failed to fully address the substance of each
rebuttal argument set forth in the Appeal Brief.
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Reply Br. 2 (italicized emphases added, underlining in original).
The Examiner makes the following findings as to Lobo and
limitations A and C of claim 16:
Rafii, Palm, and Lea fail to explicitly disclose that the
calibration of the imaging system can occur without predefined
reference points from the imaged data.
Lobo discloses acquiring a camera-perspective range
image of a scene using said time of flight camera ([Fig. 5 and 6,
Pages 1601-1602] first orientation), wherein the range image
includes 3D data points representing surface elements within the
scene ([Section 7.2 and Fig. 10] detecting ground points in
images);
detecting one or more planes within said range image
([Fig. 5 and 6, Pages 1601-1602 and 1604] algorithm 6.2)
without using predefined reference points from the 3D data
([Section 7.2 and Fig. 10] ground plane detection through
mapping an identified ground patch onto the 3D scene);
Final Act. 22; Ans. 7–8 (strike through and bold emphasis in original).
Regarding limitation A in claim 16, Lobo only teaches an artificial
vision system including a camera for an autonomous robot that uses an
inertial sensor and ground plane detection (see Lobo Abstract; Fig. 1), and
not a 3D time-of-flight camera capable of acquiring a camera-perspective
range image of a scene that “includes 3D data points representing surface
elements within the scene” as set forth in limitation A of claim 16.
Furthermore, Appellant describes a “range image” in the following manner
(Spec. ¶ 21):
Range images acquired with a 3D TOF camera correspond to
matrices of distance values d , which indicate the distances from
the camera to the imaged surface elements.

Spec. ¶ 21 (emphases added).
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The Examiner makes insufficient findings as to how/why Lobo’s Section 7.2
and Figures 5, 6, and 10 describe and show acquiring range images with a
3D TOF camera, where the range images “correspond to matrices of
distance values d” and “indicate the distances from the camera to the imaged
surface elements” as described in paragraph 21 of the Specification. As a
result, the Examiner leaves us to speculate how (i) Lobo’s Figures 5 and 6
(showing a frame of reference and a ground plane with a fixed ground plane
point) disclose, teach, or suggest acquiring a camera-perspective range
image of a scene using a camera; and (ii) Lobo’s Section 7.2 and Figure 10
(describing and showing ground plane/patch detection) disclose, teach, or
suggest limitation A (“the range image includes 3D data points representing
surface elements within the scene”).
At best, the Examiner’s proposed combination leaves us to speculate
as to how or why one of ordinary skill in the art would modify Lobo to meet
limitation A recited in claim 16, and commensurately recited in claims 24,
32, 35, and 39. See In re Warner, 379 F.2d at 1017; Ex parte Braeken,
54 USPQ2d 1110, 1112 (BPAI 1999) (unpublished) (“The review authorized
by 35 U.S.C. [§] 134 is not a process whereby the examiner . . . invite[s] the
[B]oard to examine the application and resolve patentability in the first
instance.”).
Regarding limitation C in claim 16, the Examiner (Final Act. 22; Ans.
7–8, 24–32) relies on Section 7.2 and Figure 10 of Lobo as teaching
detecting one or more planes within a range image including 3D data points
representing surface elements within a scene without using predefined
reference points from the 3D data, as recited in claim 16. In response to
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Appellant’s arguments (see Appeal Br. 17–18) that these cited portions fail
to teach or suggest limitation C, the Examiner further explains:3
Lobo discloses the known frames of reference such as Camera
{C}, IMU {I}, mobile system {N}, and world fixed {W} can be
found for the entire system [See Lobo, Fig. 5 and 1601]. The
system detects the ground plane points from the set of initial
points in the image and the ground patch is identified [See Lobo,
Fig.10]. The points are obtained with a corner detector and then
the points of interest are parsed [See Lobo, Section 7.2 and
Fig.10]. Lobo discloses that the results show that the method
works, but is very dependent on texture so that feature points can
be detected [See Lobo, Section 7.2]. The corner detection is
using features in the actual image data itself. The detection relies
on texture which is known in the art as feature data from the
actual image data. Thus, the identified points are not
predetermined reference points. The ground plane detection is
done through the mapping of the identified ground patch onto the
3D scene [See Lobo, Section 7.2 and Fig.10]. Thus, the ground
plane ("one or more planes") can be detected from the original
image of the area [See Lobo, Fig. 10].

Ans. 31–32.
Lobo discloses “[u]sing just one vanishing point and the vertical” (i.e.,
“the vertical reference provided by the inertial sensors”) to find a horizon
line to detect planes and thus “segment and reconstruct vertical features and
leveled planar patches” (Abstract). Lobo uses inertial sensors to “provide
important cues about the observed scene structure, such as vertical and
horizontal references” (p. 1597, Section 1), and uses “the vertical reference
provided by the inertial sensors” to determine the “image horizon line” (p.

3 Notably, similar responses, almost word for word, are made by the
Examiner (see Ans. 24, 26, 27–28, 29, 30) regarding Appellant’s arguments
(Appeal Br. 16–17) that Lobo’s Figures 5 and 6 and their accompanying
description also fail to teach or suggest limitation C.
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1598, Section 1.2). Thus, the vertical (and horizontal) reference lines (which
consist of a plurality of points) could be considered as predefined reference
points that are used later to identify feature points. Although Lobo discloses
determining vertical and horizontal reference lines using inertial sensors
(Abstract; Section 1, 1.2), as well as detecting (i) corner features to find
“points of interest” in an image (see Section 7.2), (ii) “ground points” in a
ground plane (see Section 7.2), and (iii) “feature points” (see Lobo, Section
7.2; see also Fig. 10a), Lobo is silent as to detecting a plane in a range
image including 3D data points representing surface elements within a scene
without using predefined reference points from the 3D data.
In light of our careful review of Lobo, we conclude that the strength
of Appellant’s contentions (Appeal Br. 17–18) that Lobo discloses using
predefined reference points outweighs the strength of the Examiner’s
findings and reasoning that Lobo, whether taken individually or in some
combination with the other 3 applied references, teaches or suggests
limitation C (i.e., not using predefined reference points). At best, the
Examiner’s proposed combination leaves us to speculate as to how or why
one of ordinary skill in the art would modify Rafii, Palm, and Lea to meet
limitation C, which requires the range image acquired in limitation A,
recited in claim 16, and commensurately recited in claims 24, 32, 35, and 39.
See In re Warner, 379 F.2d at 1017; Ex parte Braeken, 54 USPQ2d at 1112.
In view of the foregoing, we agree with Appellant’s contentions (Appeal Br.
15–18) that the Examiner has not adequately shown that Lobo, and thus the
combination of Rafii, Palm, Lea, and Lobo, teaches or suggests limitations A
and C of claim 16 (i.e., detecting one or more planes within a range image
including 3D data points representing surface elements within a scene
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without using predefined reference points from the 3D data), and the
commensurate limitations recited in claims 24, 32, 35, and 39.
Based on the record before us, we find that the Examiner
(i) incorrectly relies upon Lobo to teach or suggest limitations A and C in
claim 16, and the commensurate limitations recited in claims 24, 32, 35, and
39; and thus, (ii) has not properly established factual determinations and
articulated reasoning with a rational underpinning to support the legal
conclusion of obviousness for claims 16, 24, 32, 35, and 39, resulting in a
failure to establish a prima facie of obviousness. The Examiner has not
sufficiently shown Lobo, and thus the combination, teaches or suggests
detecting one or more planes within a range image including 3D data points
representing surface elements within a scene without using predefined
reference points from the 3D data as recited in claim 16, and as
commensurately recited in claims 24, 32, 35, and 39.
As a result, based on the record before us, Appellant has shown the
Examiner erred in rejecting independent claims 16, 24, 32, 35, and 39, and
thus claims 17–20, 22, 23, 25, 27, 28, 30, 31, 33, 34, and 36–38 depending
respectively therefrom, under 35 U.S.C. § 103(a), and we cannot sustain the
Examiner’s obviousness rejection of claims 16–20, 22–25, 27, 28, and 30–
39 over the combination of Rafii, Palm, Lea, and Lobo.4

4 We recognize that Appellant’s arguments concerning the obviousness
rejection presents additional issues (see, e.g., Appeal Br. 18–26; Reply Br.
2–6). Because we were persuaded of error by the issue regarding limitations
A and C, as recited in claim 16 and similarly recited in claims 24, 32, 35,
and 39, we do not reach the additional issues (e.g., such as to limitations B,
D, and E in claim 16, and the commensurate limitations recited in claims 24,
32, 35, and 39), as the issue as to limitations A and C is dispositive of the
appeal.
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CONCLUSION
For all of the reasons above, we hold as follows:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
16–20, 22–
25, 27, 28,
30–39
103(a) Rafii, Palm, Lea,
Lobo
16–20, 22–
25, 27, 28,
30–39

REVERSED