Occipital, Inc.

Patent Trials and Appeals Board

Apr 1, 2021

2020000114 (P.T.A.B. Apr. 1, 2021)

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.
14/216,010 03/17/2014 Jeffrey Powers O049-0007US 8658
29150 7590 04/01/2021
LEE & HAYES, P.C.
601 W. RIVERSIDE AVENUE
SUITE 1400
SPOKANE, WA 99201
EXAMINER
ITSKOVICH, MIKHAIL
ART UNIT PAPER NUMBER
2483
NOTIFICATION DATE DELIVERY MODE
04/01/2021 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):
lhpto@leehayes.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY POWERS and PATRICK O'KEEFE
Appeal 2020-000114
Application 14/216,010
Technology Center 2400
Before ROBERT E. NAPPI, JAMES R. HUGHES, and
JENNIFER L. McKEOWN, Administrative Patent Judges.
HUGHES, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Claims 2, 4, 13–16, 22, 24, 25, 28, 29, 31–35, and 39–42 are pending,
stand rejected, are appealed by Appellant, and are the subject of our decision
under 35 U.S.C. § 134(a).1 See Non-Final Act. 1; Appeal Br. 23–27.2 We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Occipital, Inc.
Appeal Br. 3.
2 We refer to Appellant’s Specification (“Spec.”), filed Mar. 17, 2014
(claiming benefit of US 61/792,728, filed Mar. 15, 2013); Appeal Brief
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CLAIMED SUBJECT MATTER
The claimed subject matter, according to Appellant, “relates generally
to the 3D imaging field, and more specifically to new and useful methods for
reducing power consumption of a 3D image capture system.” Spec. ¶ 2.
Appellant’s claims recite image capture and processing methods for
reducing power consumption of a three-dimensional (3D) image capture
system. The method captures two-dimensional (2D) image data
(representing an object) using a red-green-blue (RGB) camera while in a
first power state, and captures depth data (representing an object) using a
depth camera also while in the first power state. The method then generates
3D image data (first 3D image data) using (based on) the 2D image data
without using the depth data, and generates a second set of 3D image data
(second 3D image data) simultaneously (in parallel) with the generation of
the first 3D image data using (based on) a combination of the 2D image data
and the depth data, all while in the first power state. The method compares
the first 3D image data with the second 3D image data to determine whether
an image tracking technique (the first image tracking technique) is
successful. The method also identifies an imaging target (i.e., the object
being tracked) based on the 2D image data and the depth data and
determines a distance between the object and the 3D image capture system
while in the first power state. The method determines a threshold (distance
threshold) based on measured historical values of the distance between the

(“Appeal Br.”), filed June 10, 2019; and Reply Brief (“Reply Br.”), filed
Oct. 4, 2019. We also refer to the Examiner’s Non-Final Office Action
(“Non-Final Act.”), mailed Jan. 25, 2019; and Answer (“Ans.”) mailed Aug.
6, 2019.
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image target and the 3D image capture system. When the method
determines that the distance between the image target and the 3D image
capture system is below the threshold and the first image tracking technique
is successful, the method switches from the first power state to a second
power state that consumes less power. See Spec. ¶¶ 8–18; Abstract.
Independent claims 14, 25, and 28 are directed to a method for reducing
power consumption of a 3D image capture system. Claim 14, reproduced
below, is illustrative of the claimed subject matter:
14. A method for reducing power consumption of a
three-dimensional (3D) image capture system comprising:
capturing, in a first power state, by a red-green-blue
(RGB) camera two-dimensional (2D) image data, at least a
portion of the image data representative of an object;
capturing, in the first power state, by a depth camera depth
data, at least a portion of the depth data representative of the
object;
generating first 3D image data, in the first power state,
based on the 2D image data without the depth data;
generating second 3D image data, in the first power state
and substantially simultaneously with generating the first 3D
image data, based at least in part on a combination of the 2D
image data and the depth data;
comparing the first 3D image data and the second 3D
image data to determine the first image tracking technique is
successful;
identifying, in the first power state, an imaging target
based at least in part on the 2D image data and the depth data;
determining, in the first power state, a distance between
the object and the 3D image capture system;
determining a threshold based at least in part on historical
values between the image target and the 3D image capture
system;
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determining that the distance between the image target and
the 3D image capture system is below the threshold; and
switching from the first power state to a second power
state, in response to determining that the distance between the
image target and the 3D image capture system is below the
threshold and that the first image tracking technique is
successful, the 3D image capture system consuming less power
in the second power state than in the first power state.
Appeal Br. 23–24 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Nasiri US 2009/0184849 A1 July 23, 2009
Wagner US 2014/0139639 A1 May 22, 2014

REJECTIONS3
1. The Examiner rejects claims 14–16 under 35 U.S.C. § 112 (pre-
AIA), first paragraph, as failing to comply with the written description
requirement. See Non-Final Act. 11–12.
2. The Examiner rejects claims 2, 4, 13–16, 22, 24, 25, 28, 29, 31–
35, and 39–42 under 35 U.S.C. § 112 (pre-AIA), second paragraph, as being
indefinite. See Non-Final Act. 13–16.

3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112–29, 125
Stat. 284 (2011), amended 35 U.S.C. § 112 and 35 U.S.C. § 103. Because
the present application has an effective filing date after the AIA’s effective
(March 16, 2013), this decision refers to 35 U.S.C. § 112, first paragraph; 35
U.S.C. § 112, second paragraph; and 35 U.S.C. § 103(a).
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3. The Examiner rejects claims 2, 4, 13–16, 22, 24, 25, 28, 29, 31–
35, and 39–42 under 35 U.S.C. § 103(a) as being unpatentable over Wagner
and Nasiri. See Non-Final Act. 18–39.
ANALYSIS
Written Description Rejection of Claims 14–16
The Examiner rejects claims 14–16 as failing to comply with the
written description requirement. See Non-Final Act. 12; Ans. 8–9.
Specifically, the Examiner rejects claim 14 because the claim recites
“determining a threshold based at least in part on historical values between
the image target and the 3D image capture system” (Non-Final Act. 12
(emphasis omitted)), for which the Examiner finds no written description
support in Specification. See Non-Final Act. 12; Ans. 8–9.
Appellant contends that support for the disputed features of claim 14
(and claims 15 and 16)—“determining a threshold” based on “historical
values” of the image target distance (Appeal Br. 24 (Claims App.))—can be
found in at least paragraphs 35 and 41 of the Specification, and that “[o]ne
skilled in the art would understand that the specification supports historical
values of image target distances being used in conjunction with power state
triggers” (Appeal Br. 9), as well as “the use of thresholds (e.g., distance
thresholds) with respect to the imaging target distance” (Appeal Br. 10). See
Appeal Br. 9–10 (citing Spec. ¶¶ 35, 41); Reply Br. 3.
The test for sufficiency under the written description requirement “is
whether the disclosure of the application relied upon reasonably conveys to
those skilled in the art that the inventor had possession of the claimed
subject matter as of the filing date.” Ariad Pharms., Inc. v. Eli Lilly and Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010).
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Appellant’s cited support (Spec. ¶¶ 35, 41) describes a process for
changing power states triggered by, for example, detecting an imaging target
distance change using a “historical value” (Spec. ¶ 35) and a process for
detecting an imaging target distance change by “detecting that the distance
between the 3D image capture system and an imaging target has crossed a
threshold” using, for example, a calculated table of emitter intensities (Spec.
¶ 41). We find the above-described subject matter from Appellant’s
Specification provides sufficient written description support for the claimed
features the Examiner found lacking in such support. We, therefore, find the
Examiner erred in rejecting claims 14–16 as lacking sufficient written
description support.
Indefiniteness Rejection of Claim 14
The Examiner rejects independent claim 14 as being indefinite. See
Non-Final Act. 13–15; Ans. 10–13. Specifically, the Examiner concludes
that “substantially simultaneously” and “values between the image target
and the 3D image capture system” are “relative terms which render the claim
indefinite” because the terminology “is not defined by the claim, the
specification does not provide a standard for ascertaining the requisite
degree, and one of ordinary skill in the art would not be reasonably apprised
of the scope of the invention.” Non-Final Act. 13 (emphasis omitted). The
Examiner also concludes that “determining that the distance between the
image target and the 3D image capture system is below the threshold” lacks
antecedent basis. Non-Final Act. 13 (emphasis omitted). The Examiner
further concludes that the recited image capture techniques (first image
capture technique and second image capture technique) are indefinite
because the claim “omits any definition or limits (broad or narrow) on such
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techniques, and omits critical relationships of image capture/tracking
techniques to the processing steps or the camera use steps” (Non-Final Act.
14) and, therefore, the claim is “incomplete for omitting essential steps”
(Non-Final Act. 15). Finally, the Examiner concludes that the term
“technique” is a “relative term which renders the claim indefinite” because
the terminology “is not defined by the claim, the specification does not
provide a standard for ascertaining the requisite degree, and one of ordinary
skill in the art would not be reasonably apprised of the scope of the
invention.” Non-Final Act. 15.
Substantially Simultaneously
Appellant contends that
the specification states that “[t]he technique tracking algorithm
is preferably run in parallel with the primary capture techniques,
but may additionally or alternatively be run at any suitable time.”
Specification, Para. [0032]. One skilled in the art would see this
disclosure and know that “substantially simultaneously” means
in parallel or nearly in parallel to accommodate minor variations
that would be appropriate when processors perform in parallel.
As such, Appellant’s use of “substantially simultaneously” is
definite.
Appeal Br. 10. We agree with Appellant.
The essence of the requirement under 35 U.S.C. § 112, second
paragraph, is that the language of the claims must make clear what subject
matter the claims encompass—i.e., “whether those skilled in the art would
understand what is claimed when the claim is read in light of the
specification.” Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 655 F.3d
1364, 1380 (Fed. Cir. 2011) (quoting Orthokinetics, Inc. v. Safety Travel
Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986)); see In re Packard,
751 F.3d 1307, 1310–14 (Fed. Cir. 2014).
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“[W]e apply the approach for assessing indefiniteness approved by the
Federal Circuit in Packard, i.e., ‘[a] claim is indefinite when it contains
words or phrases whose meaning is unclear.’ Put differently, ‘claims are
required to be cast in clear—as opposed to ambiguous, vague, indefinite—
terms.’” In re McAward, Appeal 2015-006416, 2017 WL 3669566, at *5
(PTAB Aug. 25, 2017) (precedential) (quoting In re Packard, 751 F.3d at
1310, 1313–14) (citations omitted).
We find the disputed language of claim 14, when properly construed,
would be understood by those skilled in the art, and the language is not
unclear. In particular, we disagree with the Examiner that one of ordinary
skill in the art “would not be reasonably apprised of the scope of the
invention” or be able to ascertain “a standard for . . . the requisite degree.”
Non-Final Act. 13; see Ans. 10–11. As pointed out by Appellant (supra),
the Specification provides a description of parallel processing of the
captured image data and the technique tracking algorithm. See Spec. ¶¶ 27–
30, 32.
The Examiner does not sufficiently explain why, in view of
Appellant’s Specification, the disputed language would be unclear to one of
ordinary skill in the art. In light of our findings and Appellant’s arguments,
we find the Examiner fails to adequately explain why one of ordinary skill in
the art would not understand what is claimed by Appellant.
Values
Appellant also contends that “values between the image target and the
3D image capture system” (claim 14), “historical values,” and distance
values are discussed in the Specification, and based on the disclosure “[o]ne
having ordinary skill in the art would understand that values, such as
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distance values, change between an image target and the 3D image capture
system, and that those values may be utilized to determine a threshold.”
Appeal Br. 11 (citing Spec. ¶¶ 35, 41).
We again agree with Appellant, and find the disputed language of
claim 14, would be understood by those skilled in the art, and the language
is not unclear. In particular, we disagree with the Examiner that the
“historical values” recited in claim 14 or the relationship of these values to
the image target distance (distance values) would be unclear to one of
ordinary skill in the art. See Non-Final Act. 13. As pointed out by
Appellant (supra), and discussed with respect to the written description
rejection (supra), the Specification provides a description of determining an
imaging target distance using a “historical value.” See Spec. ¶¶ 35, 41. The
Examiner does not sufficiently explain why, in view of Appellant’s
Specification, the disputed language would be unclear to one of ordinary
skill in the art.
The Distance
Appellant further contends that “the distance” recited in claim 14 “has
appropriate antecedent basis” in that claim 14, prior to the recitation of “the
distance,” recites “‘determining, in the first power state, a distance between
the object and the 3D image capture system.’” Appeal Br. 11 (quoting claim
14).
Appellant accurately explains and quotes the recitations of claim 14.
Accordingly, we agree with Appellant that there is proper antecedent basis
for the disputed claim language and the disputed language is not unclear.

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The Image Capture and Image Tracking Techniques
As previously discussed, the Examiner determined that the image
capture and image tracking techniques of claim 14 are indefinite because the
claim does not define the techniques, “omits critical relationships” (Non-
Final Act. 14) of the techniques to the processing steps in the claim, and
“omit[s] essential steps” (Non-Final Act. 15), and the terminology itself is
relative and not adequately defined (Non-Final Act. 15). Appellant contends
the Examiner fails to present a prima facie rejection in that the Examiner
does not explain what is missing or omitted in the claim (Appeal Br. 12) and
does not explain how the recitations would require undue experimentation
(Reply Br. 4–5). Appellant also contends the term “technique” is not
indefinite and the Specification details various techniques. See Appeal Br.
12.
We agree with Appellant that the Examiner does not make the
requisite findings to show omitted essential steps and does not sufficiently
explain why the disputed language would be unclear to one of ordinary skill
in the art. Claim 14 recites capturing “two-dimensional (2D) image data,”
“camera depth data,” “generating first 3D image data . . . based on the 2D
image data without the depth data,” “generating second 3D image data . . .
based . . . on a combination of the 2D image data and the depth data,” and
“determin[ing] that [a] first image tracking technique is successful” based on
a comparison of the first and second 3D image data. Although not defined
in claim 14, the image tracking techniques and image capture techniques are
discussed in Appellant’s Specification and “technique” is used
interchangeable to describe image capture and image tracking. See Spec.
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¶¶ 10, 11, 15, 16, 18, 27–30. In light of our findings and Appellant’s
arguments, we find the Examiner fails to adequately explain why one of
ordinary skill in the art would not understand what is claimed by Appellant.
Indefiniteness Rejection of Claim 25
The Examiner rejects independent claim 25 as being indefinite. See
Non-Final Act. 14–15; Ans. 10–13. Specifically, the Examiner concludes
that “different than” in the limitation “‘the second image capture technique
different than the first image capture technique’” (Non-Final Act. 14
(quoting claim 25 (Appeal. Br. 26 (Claim App.))) (emphasis omitted)) is a
“relative term which renders the claim indefinite” because the term “is not
defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would
not be reasonably apprised of the scope of the invention.” Non-Final Act.
14. Also, the Examiner rejects the various recitations of “techniques” as
being indefinite for the same reasons set forth with respect to claim 14. See
Non-Final Act. 14–15.
Appellant contends that different image capture techniques are
described in the Specification, and that based on the disclosure “one of
ordinary skill in the art would see the image capture techniques described in
the specification and would understand that claim 25 recites generating 3D
image data utilizing two of those techniques, and specifically two different
techniques as claim 25 recites.” Appeal Br. 13. Appellant also contends, as
with claim 14 (supra), that the various techniques and terminology are not
indefinite. See Appeal Br. 13–14; Reply Br. 4–5.
We agree with Appellant, and find the disputed language of claim 25,
would be understood by those skilled in the art, and the language is not
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unclear. In particular, we disagree with the Examiner that the use of
“different” recited in claim 25 would be unclear to one of ordinary skill in
the art in reference to multiple distinct image capture techniques detailed in
Appellant’s Specification. See Spec. ¶¶ 15, 16, 18, 27–30. As pointed out
by Appellant (supra), and discussed with respect to the indefiniteness
rejections of claim 14 (supra), the Specification provides a description of
various distinct (different) imaging techniques. See Spec. ¶¶ 15, 16, 18, 27–
30. The Examiner does not sufficiently explain why, in view of Appellant’s
Specification, the disputed language would be unclear to one of ordinary
skill in the art.
Indefiniteness Rejection of Claim 34
The Examiner rejects claim 34 as being indefinite. See Non-Final
Act. 13–14. Specifically, the Examiner concludes that “‘applying a
surrogate function to determine that the first tracking techniques can be
successfully implemented’” (Non-Final Act. 13 (quoting claim 34 (Appeal.
Br. 27 (Claims App.))) (emphasis omitted)) “describes a determination
limited by a function, but omits any definition or limits . . . on such a
function” and is, therefore, “incomplete for omitting essential steps, such
omission amounting to a gap between the steps.” Non-Final Act. 14.
Appellant contends the Examiner has not adequately explained the
rejection (see Appeal Br. 13), and also contends, as with claims 14 and 25
(supra), that the Examiner has not made the requisite findings concerning an
omitted essential step (see Reply Br. 4).
We agree with Appellant, and find the disputed language of claim 34,
would be understood by those skilled in the art, and the language is not
unclear. Appellant’s Specification provides a description of a surrogate
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function. See Spec. ¶ 31. For the same reasons as claims 14 and 25, and
because the surrogate function is detailed in Appellant’s Specification, the
Examiner does not sufficiently explain why, in view of Appellant’s
Specification, the disputed language would be unclear to one of ordinary
skill in the art.
Indefiniteness Rejection of Claim 40
The Examiner rejects claim 40 as being indefinite. See Non-Final
Act. 15. Specifically, the Examiner concludes that “estimating future
motion” (emphasis omitted) is a “relative term,” that does not “specify a
motion” to which the estimate relates, or “the nature of the estimation,” and
the “term is not defined by the claim, the specification does not provide a
standard for ascertaining the requisite degree, and one of ordinary skill in the
art would not be reasonably apprised of the scope of the invention.” Non-
Final Act. 15.
Appellant contends that estimating future motion is described in the
Specification, and that based on the disclosure “one having ordinary skill in
the art, when reading this claim in light of the specification would
reasonably understand the scope of the invention as claimed.” Appeal Br.
14 (citing Spec. ¶ 43).
We agree with Appellant, and find the disputed language of claim 40,
would be understood by those skilled in the art, and the language is not
unclear. Appellant’s Specification provides a description of estimating
future motion, such as by “using a predictive method like Kalman filtering.”
Spec. ¶ 43. Thus, the Examiner does not sufficiently explain why, in view
of Appellant’s Specification, the disputed language would be unclear to one
of ordinary skill in the art.
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Indefiniteness Rejection of Claim 41
The Examiner rejects claim 41 as being indefinite. See Non-Final
Act. 15–16. Specifically, the Examiner concludes that various
determinations are indefinite because the claim “omits any definition or
limits [] on” the functions (techniques) used in the determinations “and
omits critical relationships between the claimed elements.” Non-Final Act.
15.
Appellant contends that the claim need not provide specifics with
respect to the functions, that the Examiner’s rationale is inadequate and is
not supported by the MPEP, and “[o]ne having skill in this field would
understand the particulars and bounds of these [functions] . . . as specifically
recited in claim 41.” Appeal Br. 14.
We agree with Appellant, and find the disputed language of claim 41,
would be understood by those skilled in the art, and the language is not
unclear. Appellant’s Specification provides a description of “volumetric
integration” and a “truncated signed distance function” used to update a 3D
map. See Spec. ¶ 38. Thus, the Examiner does not sufficiently explain why,
in view of Appellant’s Specification, the disputed language would be unclear
to one of ordinary skill in the art.
Indefiniteness Rejection of Remaining Dependent Claims
The Examiner rejects the remaining dependent claims (claims 2, 4, 13,
16, 22, 24, 29, 31–33, 35, 39, and 42) as being indefinite based on the
indefiniteness of independent claims 14 and 25 (and 28, which is not
separately discussed by the Examiner). We find the Examiner erred in
rejecting these claims for the same reasons as claims 14 and 25, discussed
supra.
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Obviousness Rejection
The Examiner rejects independent claim 14 (as well as independent
claims 25 and 28, and dependent claims 2, 4, 13, 15, 16, 22, 24, 29, 31–35,
and 39–42) as being obvious over Wagner and Nasiri. See Non-Final Act.
17–39; Ans. 8–19. Appellant contends that Wagner and Nasiri do not teach
the disputed limitations of independent claims 14, 25, and 28. See Appeal
Br. 15–22; Reply Br. 5–8.
Claim 14
With respect to claim 14, Appellant specifically contends, inter alia,
“Wagner does not teach or suggest ‘determining a threshold based at least in
part on historical values between the image target and the 3D image capture
system,’ as recited in claim 14” (Appeal Br. 17 (quoting claim 14)) because
the Examiner-cited portions of Wagner and Nasiri (see Non-Final Act. 25
(citing Wagner ¶¶ 120, 121, 125, 126 and Nasiri ¶ 96)) do not teach or
suggest the disputed feature of determining an image target distance
threshold. See Appeal Br. 17; Reply Br. 5–6.
We agree with Appellant that the Examiner-cited portions of Wagner
and Nasiri do not teach or suggest determining an image target distance
threshold. Appeal Br. 17. As pointed out by Appellant, the Examiner-cited
portions of Wagner to teach enabling a depth sensor to update a 3D model
with new depth information, and computing a difference between a sample
depth and a measured distance (to a sample object). See Appeal Br. 17;
Wagner ¶¶ 120, 121, 125, 126. Nasiri, merely discloses motion sensor
thresholds. See Nasiri ¶ 96.
The Examiner does not sufficiently explain how updating a three-
dimensional model with new depth information and computing a distance
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difference, in conjunction with a motion sensor threshold teaches or at least
suggests a distance threshold, much less “determining a threshold based at
least in part on historical values between the image target and the 3D image
capture system” as recited in claim 14.
Consequently, we are constrained by the record before us to find that
the Examiner erred in finding that the combination of Wagner and Nasiri
renders obvious at least one feature of Appellant’s claim 14.
Claim 25
With respect to claim 25, Appellant specifically contends, inter alia,
that “Wagner and Nasiri does not teach or suggest at least ‘processing the
RGB data, via a first image capture technique, to generate first 3D image
data; processing, in parallel to the first image capture technique, the RGB
data and the 3D depth data, via a second image capture technique” (Appeal
Br. 19 (quoting claim 25)) because the Examiner-cited portions of Wagner
(see Non-Final Act. 19–20 (citing Wagner ¶¶ 47, 57, 110)) do not teach or
suggest the disputed feature of parallel processing different 3D image data
sets. See Appeal Br. 19; Reply Br. 7.
We agree with Appellant that the Examiner-cited portions of Wagner
do not teach or suggest parallel processing of different 3D image data sets.
Appeal Br. 19. The Examiner-cited portions of Wagner describe processing
depth data (Wagner ¶ 47), updating a 3D model (Wagner ¶ 57), and running
two modules in parallel (Tracking Module 210 and Reconstruction Module
250) (Wagner ¶ 110), but Wagner does not describe parallel processing of
two distinct 3D image data sets (RGB data and RGB data with depth
information) processed using two different image processing techniques.
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The Examiner does not sufficiently explain how updating a three-
dimensional model, processing depth information, and executing software
modules in parallel teaches or at least suggests parallel processing of
different data sets, much less parallel processing of different 3D image data
sets by different techniques as required in claim 25.
Consequently, we are constrained by the record before us to find that
the Examiner erred in finding that the combination of Wagner and Nasiri
renders obvious at least one feature of Appellant’s claim 25.
Claim 28
Claim 28 recites, in part:
analyzing, by the processing resource, additional active
depth data and additional image data to detect a number of
updates to the 3D map;
determining, by the processing resource, that the number
of updates is greater than a threshold number of updates and that
individual updates of the number of updates change the 3D map
by less than a threshold amount; and
in response to determining that the number of updates is
greater than the threshold number of updates, reducing power to
the sensor.
Appeal Br. 26 (Claims App.).
With respect to claim 28, Appellant contends that “[t]he combination
of Wagner and Nasiri does not teach or suggest the above [referenced]
features of claim 28.” Appeal Br. 20. Specifically, Appellant contends that
the Examiner-cited portions of Wagner (see Non-Final Act. 29–31 (citing
Wagner ¶¶ 61, 62, 82)) do not teach either determining that the number of
updates is greater than a threshold number of updates, or determining that
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individual updates change the 3D map by less than a threshold amount. See
Appeal Br. 20; Reply Br. 7.
Wagner describes updating a 3D model and that the model may be
updated “even in situations where there are no new points,” and setting a
threshold limit for updates (“a threshold . . . may be set to limit the number
of times the same surface element is updated”). Wagner ¶ 61; see Wagner
¶¶ 62, 82. Although Wagner may suggest a threshold related to updates, the
Examiner-cited portions of Wagner do not describe analyzing depth data to
determine a number of updates to a 3D map and determining that the number
of updates is greater than (exceeds) an update threshold. Wagner’s disclosed
threshold is used to limit the number of updates (the number of times
information may be updated), not to determine if a threshold number of
updates has been exceeded as required by claim 28. Further, nothing in the
cited portions of Wagner describes a determination that the updates to the
3D map change the 3D map less than a threshold amount.
We agree with Appellant that the Examiner-cited portions of Wagner
do not teach determining whether a computed number of updates to a 3D
map exceeds an update threshold or changes the map less than a threshold
amount (i.e., a different threshold). At most the Examiner-cited portions of
Wagner describe limiting (stopping) the update process when a set number
of updates have occurred. The Examiner does not sufficiently explain how
setting an update limit teaches or at least suggests determining a number of
updates exceeds a threshold and that a 3D map is not changed by a threshold
amount by the updates as required in claim 28. Consequently, we are
constrained by the record before us to find that the Examiner erred in finding
Appeal 2020-000114
Application 14/216,010

19
that the combination of Wagner and Nasiri renders obvious at least one
feature of Appellant’s claim 28.
Dependent Claims
Claims 2, 4, 13, 15, 16, 22, 24, 29, 31–35, and 39–42 depend from
and stand with claims 14, 25, and 28, respectively. Therefore, we do not
sustain the Examiner’s obviousness rejection of dependent claims 2, 4, 13,
15, 16, 22, 24, 29, 31–35, and 39–42 for the same reasons set forth for
claims 14, 25, and 28 (supra).
CONCLUSION
Appellant has shown that the Examiner erred in rejecting claims 14–
16 under 35 U.S.C. § 112, first paragraph. Appellant has also shown that the
Examiner erred in rejecting claims 2, 4, 13–16, 22, 24, 25, 28, 29, 31–35,
and 39–42 under 35 U.S.C. § 112, second paragraph. Further, Appellant has
shown that the Examiner erred in rejecting claims 2, 4, 13–16, 22, 24, 25,
28, 29, 31–35, and 39–42 under 35 U.S.C. § 103(a). We, therefore, do not
sustain the Examiner’s rejection of claims 2, 4, 13–16, 22, 24, 25, 28, 29,
31–35, and 39–42.
DECISION SUMMARY
In summary:
Appeal 2020-000114
Application 14/216,010

20
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
14–16 112, first
paragraph
Written Description 14–16
2, 4, 13–16,
22, 24, 25,
28, 29, 31–
35, 39–42
112, second
paragraph
Indefiniteness 2, 4, 13–16,
22, 24, 25,
28, 29, 31–
35, 39–42
2, 4, 13–16,
22, 24, 25,
28, 29, 31–
35, 39–42
103(a) Wagner, Nasiri 2, 4, 13–16,
22, 24, 25,
28, 29, 31–
35, 39–42
Overall
Outcome
2, 4, 13–16,
22, 24, 25,
28, 29, 31–
35, 39–42

REVERSED