Capital One Services, LLC

Patent Trials and Appeals Board

Mar 22, 2022

2021001810 (P.T.A.B. Mar. 22, 2022)

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. 16/516,117 07/18/2019 Michael MOSSOBA 0104-0266 1009 122571 7590 03/22/2022 Harrity & Harrity, LLP 11350 Random Hills Road Suite 600 Fairfax, VA 22030 EXAMINER MALINOWSKI, WALTER J ART UNIT PAPER NUMBER 2439 NOTIFICATION DATE DELIVERY MODE 03/22/2022 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): docket@harrityllp.com mpick@harrityllp.com ptomail@harrityllp.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHAEL MOSSOBA, JOSHUA EDWARDS, and ABDELKADAR M’HAMED BENKREIRA ____________ Appeal 2021-001810 Application 16/516,117 Technology Center 2400 ____________ Before CAROLYN D. THOMAS, DAVID J. CUTITTA II, and MICHAEL J. ENGLE, Administrative Patent Judges. THOMAS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-11 and 13-21. Claim 12 is canceled. See Claims App. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2012). Appellant identifies the real party in interest as Capital One Services. Appeal Br. 3. Appeal 2021-001810 Application 16/516,117 2 The present invention relates generally to authenticating by facial recognition. See Spec. Abstr. Claim 1, reproduced below with disputed limitations emphasized, is representative: 1. A method, comprising: selecting, by a device, an individual that is a candidate for authentication by facial recognition; identifying, by the device and based on selecting the individual, a facial area of the individual and an area of exposed skin of the individual, wherein the area of exposed skin of the individual is not associated with the facial area of the individual; obtaining, by the device, a first temperature associated with the facial area of the individual and a second temperature associated with the area of exposed skin of the individual; determining, by the device and based on a comparison of the first temperature and the second temperature, whether the first temperature is outside of a threshold difference in temperature range with respect to the second temperature; determining, by the device and based on determining whether the first temperature is outside of the threshold difference in temperature range with respect to the second temperature, whether an appearance of the facial area of the individual is likely altered by a face-altering technology, wherein the first temperature being within the threshold difference in temperature range with respect to the second temperature indicates that the appearance of the facial area of the individual is likely not altered by the face-altering technology, wherein the first temperature being outside of the threshold difference in temperature range with respect to the second temperature indicates that the appearance of the facial area of the individual is likely altered by the face-altering technology; and Appeal 2021-001810 Application 16/516,117 3 selectively performing, by the device, facial recognition on the facial area of the individual based on whether the appearance of the facial area of the individual is likely altered by the face-altering technology. REFERENCES The references relied upon by the Examiner are: Name Reference Date Beenau US 2004/0230488 A1 Nov. 18, 2004 Xie US 2013/0147845 A1 June 13, 2013 Lee US 2015/0135310 A1 May 14, 2015 Fix US 2016/0110833 A1 Apr. 21, 2016 Matsimanis US 2018/0239977 A1 Aug. 23, 2018 Yuen US 2019/0014999 A1 Jan. 17, 2019 Fernandez US 10,255,738 B1 Apr. 9, 2019 Moloney US 2019/0222756 A1 July 18, 2019 Haraguchi JP 10315906 (A) Dec. 2, 1998 REJECTIONS R1. Claims 1, 2, 5, 8-10, 15, 17, and 20 are rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Matsimanis and Haraguchi. Final Act. 4-19. R2. Claims 3 and 21 are rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Matsimanis, Haraguchi, and Fernandez. Final Act. 19-24. R3. Claim 4 is rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Matsimanis, Haraguchi, Fernandez, and Lee. Final Act. 24-25. R4. Claims 6, 11, and 18 are rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Matsimanis, Haraguchi, and Fix. Final Act. 25-29. Appeal 2021-001810 Application 16/516,117 4 R5. Claim 7 is rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Matsimanis, Haraguchi, and Yuen. Final Act. 29- 30. R6. Claims 13 and 14 are rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Matsimanis, Haraguchi, and Beenau. Final Act. 30-35. R7. Claim 16 is rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Matsimanis, Haraguchi, and Xie. Final Act. 35-36. R8. Claim 19 is rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Matsimanis, Haraguchi, and Moloney. Final Act. 36-38. We review the appealed rejections for error based upon the issues identified by Appellant, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). ANALYSIS Claim 1 recites, inter alia, “a first temperature associated with the facial area of the individual and a second temperature associated with the area of exposed skin of the individual” and determining “based on a comparison of the first temperature and the second temperature, whether the first temperature is outside of a threshold difference.” See claim 1. Appellant highlights that “claim 1 explicitly recites ‘a comparison of the first temperature and the second temperature,’ e.g., comparison of temperature associated with the facial area and temperature associated with the area of exposed skin that is not the facial area” (Appeal Br. 9) and contends that “the cited portions of HARAGUCHI, alone or in combination Appeal 2021-001810 Application 16/516,117 5 with MATSIMANIS, do not disclose or suggest the claimed comparison.” Id. We agree with Appellant. Here, the Examiner is relying on Haraguchi to teach and/or suggest the aforementioned limitation. See Final Act. 7. As such, we shall look for error in the Examiner’s interpretation of Haraguchi. The Examiner finds that “Haraguchi relates [to] a temperature of a face in relation to a temperature of the body.” Ans. 6. The Examiner further finds: Paragraph 0015 of Haraguchi discloses . . . the human body region extracting unit 15 compares the first threshold Tx = 25° C . . . with the thermal image data Tij . . . [and] [w]hen extracting the skin area C, the face area extracting means 16 compares the second threshold value Ty = 33° C . . . with the thermal image data Tij. Id. In other words, the Examiner directs out attention to Haraguchi’s disclosure of comparing thermal image data (from the body or face) with a respective threshold value indicative of that particular body part. However, the Examiner fails to direct our attention to where/how Haraguchi teaches a second temperature (which is associated with the area of exposed skin that is not associated with the facial area of the individual) that is compared to a first temperature associated with the facial area, i.e., comparing two different exposed body parts temperatures to each other. Instead, we find that Haraguchi discloses “extracting a human body region and a face region . . . and calculating a face position . . . [whereby] the extraction of the human body region and the like are performed using the temperature data Tij.” Haraguchi ¶ 15. Haraguchi indicates that “the trunk (clothing area D) of the occupant 5 has a temperature of 25° C to 32° C, and the face (skin region P) is distributed at 33° C or higher. The clothing area D and the skin area P are [collectively] referred to as a human body area B.” Appeal 2021-001810 Application 16/516,117 6 Id. Haraguchi further discloses that “[i]n the case where the occupant 5 has short sleeves, the arm region and the hand portion are also included in the skin region P . . . [and] the face area C can be specified by eliminating the hand or arm portion E by the standard face height and standard face aspect ratio.” Id. In other words, Haraguchi merely distinguishes the clothed areas D from the skin regions P, whereby all exposed skin portions, i.e., the face, arm, and/or hands, are all extracted and included in the skin region P. The skin region of Haraguchi is compared to a threshold value of 33° C. Haraguchi further teaches that the face area C can be distinguished from the exposed hand or arm portion E by knowing the standard face height/aspect ratio. Haraguchi ¶ 15. As such, although Haraguchi teaches distinguishing the face area from other exposed skin areas, such as the arm/hands, by using standard measurements of the face, for example, the Examiner has not shown where Haraguchi teaches comparing the temperature of the facial area with the temperature of the exposed arm/hand area. At best, Haraguchi teaches comparing the temperature data taken from the thermal image of the facial area, plus any other exposed skin areas, to a threshold value of 33° C. The Examiner fails to illustrate where Haraguchi compares the temperature data from the facial area to the temperature data from the arm or hand area, and, therefore, consequently fails to show that based thereon, determining that the temperature data from the facial area is outside of a threshold difference. Thus, we disagree with the Examiner’s finding that Haraguchi teaches a comparison of the first temperature and the second temperature, as recited in each of the independent claims. The Examiner also has not found that any Appeal 2021-001810 Application 16/516,117 7 of the other references of record teach this feature. Since we agree with at least one of the arguments advanced by Appellant, we need not reach the merits of Appellant’s other arguments. Accordingly, we will not sustain the Examiner’s obviousness rejection of claims 1-11 and 13-21. CONCLUSION The Examiner’s rejections R1-R8 of claims 1-11 and 13-21 as being unpatentable under 35 U.S.C. § 103 are reversed. In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 5, 8-10, 15, 17, 20 103 Matsimanis, Haraguchi 1, 2, 5, 8-10, 15, 17, 20 3, 21 103 Matsimanis, Haraguchi, Fernandez 3, 21 4 103 Matsimanis, Haraguchi, Fernandez, Lee 4 6, 11, 18 103 Matsimanis, Haraguchi, Fix 6, 11, 18 7 103 Matsimanis, Haraguchi, Yuen 7 13, 14 103 Matsimanis, Haraguchi, Beenau 13, 14 16 103 Matsimanis, Haraguchi, Xie 16 19 103 Matsimanis, Haraguchi, Moloney 19 Overall Outcome 1-11, 13-21 REVERSED