Ex Parte Ambrus et al

Patent Trial and Appeal Board

Sep 18, 2018

13931507 (P.T.A.B. Sep. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/931,507 06/28/2013 Anthony J. Ambrus
141746 7590 09/20/2018
ARENT FOX LLP& Microsoft Technology Licensing, LLC
1717 K Street, NW
WASHINGTON, DC 20006-5344
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.
037834.00899/337633-US-NP 7240
EXAMINER
GE,JIN
ART UNIT PAPER NUMBER
2616
NOTIFICATION DATE DELIVERY MODE
09/20/2018 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):
patentdocket@arentfox.com
USDocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANTHONY J. AMBRUS, JEA GON PARK, ADAM G. POULOS,
JUSTIN AVRAM CLARK, MICHAEL JASON GOURLAY,
BRIAN J. MOUNT, DANIEL J. MCCULLOCH,
and ARTHUR C. TOMLIN 1
Appeal2017-009605
Application 13/931,507
Technology Center 2600
Before CAROLYN D. THOMAS, BRUCE R. WINSOR, and
JEREMY J. CURCURI, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1-3, 7, and 9-20. Claims 4---6 and 8
are indicated as containing allowable subject matter (see Final Act. 43). We
have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants name Microsoft Technology Licensing, LLC as the real party in
interest (App. Br. 3).
Appeal2017-009605
Application 13/931,507
The present invention relates generally to space carving a user
environment based on movement through the environment by a user wearing
a near-eye display (NED) system (see Spec. ,r 2).
Claim 16 is illustrative:
16. One or more processor readable storage devices
comprising processor readable instructions stored on the one or
more storage devices which instructions cause the one or more
processors to execute a method for sensing a three dimensional
(3D) user environment based on 3D space carving of the user
environment due to movement through the user environment by
one or more users respectively wearing respective ones of one
or more near-eye display (NED) systems each having at least
one respective position indicating sensor, the method
compnsmg:
identifying by the one or more processors one or
more 3D navigable paths traversed by the one or more users
wearing the respective ones of the one or more NED systems in
the user environment, the identifying being based on user
physical features including at least one of user height and user
body width, and the identifying being based on sensor data
from at least one respective position indicating sensor of each
respectively used one of the one or more near-eye display
(NED) systems;
merging overlapping portions of the one or more
navigable paths traversed by the one or more users;
storing position and spatial dimensions for the one
or more navigable paths as carved out space as human space
carving data in a memory of a 3D space carving modeling unit;
and
displaying a visual representation of the state of
space carving thus far carved out in the user environment as
feedback to a user.
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Appellants appeal the following rejections:
RI. Claims 1, 3, 7, 16, 17, and 19 are rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Newcombe (US 2012/0194516 Al,
published Aug. 2, 2012), Fouhey (David F. Fouhey et al., People Watching:
Human Actions as a Cue for Single View Geometry, ECCV, 2012), and
Khan (Saad M. Khan, Tracking Multiple Occluding People by Localizing on
Multiple Scene Planes, IEEE Transactions on Pattern Analysis and Machine
Intelligence, Vol. 31, No. 3, (Mar. 2009));
R2. Claims 9--14 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Perez (US 2012/0154557 Al, published June 21, 2012),
Newcombe, Fouhey, and Khan.
R3. Claims 2, 15, 18, and 20 are rejected under 35 U.S.C. § I03(a)
as being unpatentable over Newcombe, Fouhey, Khan in combination with
various other prior art (see Final Act. 7--43).
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
ANALYSIS
Claims
Issue: Did the Examiner err in finding that the combined cited art
teaches or suggestes the argued limitations?
Appellants contend that in Newcombe "[t]he presence of a 'person' is
immaterial ... [as] [t]he mobile depth camera can be mounted anywhere on
a camera mobilizing person, robot or other such device [and] [t]he height
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and width of the camera mobilizing entity is immaterial [ and] [p ]aths
traversed by the camera mobilizing entity are essentially immaterial" (App.
Br. 10). Appellants further contend that "[n]owhere does Newcombe teach
or suggest that the height and/or width dimensions of the camera mobilizing
entity should be combined with the position of a NED device ... to thereby
build a 3D model of the environment" (id.).
Here, we find that Appellants' arguments do not take into account
what the collective teachings of the prior art would have suggested to one of
ordinary skill in the art and is therefore ineffective to rebut the Examiner's
prima facie case of obviousness. See In re Keller, 642 F.2d 413, 425 (CCPA
1981) ("The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference; nor is it that the claimed invention must be expressly suggested in
any one or all of the references. Rather, the test is what the combined
teachings of the references would have suggested to those of ordinary skill
in the art.") (citations omitted). This reasoning is applicable here because
Appellants' argument against Newcombe separately from F ouhey and Khan
does not persuasively rebut the combination made by the Examiner. One
cannot show non-obviousness by attacking references individually, where
the rejections are based on combinations of references. In re Merck & Co.,
Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
For example, the Examiner finds that in Newcombe a device is "used
to capture depth image to build up a dense 3D model of the environment as
the person moves around the room" (Ans. 3 (citing Newcombe ,r,r 22, 31));
Fouhey "teach[es] estimating a 3D scene geometry ... to display a carving
space for a 3D room to carve out some environment which [the] user can't
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go through" (Ans. 4 (citing Fouhey Abstract, sections 3, 4, 4.1 and 4.2)); and
Khan teaches "an XYZ diagram for human body includes height and width"
(Ans. 9 (citing Khan Fig. 6(b)).
Therefore, we find unavailing Appellants' contention that Newcombe
alone does not consider height and width dimensions and paths traversed
given the Examiner's reliance on the combined teachings, i.e., what the
combined teachings of all the references would have suggested to those of
ordinary skill in the art.
Appellants further contend that "the proposed modifications would
completely change the principles of operation of Newcombe" (App. Br. 10),
and "that those skilled in the art would appreciate F ouhey to be teaching a
principle of operation that is an antithesis of what is taught by Newcombe"
(id. at 14) and "the given motivation for modifying lacks technical
rational[ e ]" (id.). Appellants also contend that the motivation for combining
Khan with the Newcombe and Fouhey "lacks rational underpinning" (App.
Br. 16) because it would "frustrate and render inoperative the alleged
objectives of Khan" (id.).
As an initial matter, we note that Appellants' aforementioned
arguments regarding "changing the principle of operation" are another form
of teaching away. "If references taken in combination would produce a
'seemingly inoperative device,' ... such references teach away from the
combination and thus cannot serve as predicates for a prima facie case of
obviousness." McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1354 (Fed.
Cir. 2001) ( citation omitted); see also In re ICON Health & Fitness, Inc.,
496 F.3d 1374, 1382 (Fed. Cir. 2007) ("a reference teaches away from a
combination when using it in that combination would produce an inoperative
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result," but the obviousness analysis must account for "modifications that
one skilled in the art would make to a device borrowed from the prior art").
The Federal Circuit has held "[a] reference may be said to teach away
when a person of ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant." In re
Kahn, 441 F.3d 977,990 (Fed. Cir. 2006) (quoting In re Gurley, 27 F.3d
551, 553 (Fed. Cir. 1994)).
Here, the Examiner finds that Fouhey teaches collecting "position and
spatial dimensions for the one or more navigable paths" (Final Act. 13-14)
and the Examiner also points out that the information in Fouhey's "operation
... is [the] same as the information from [the] real-time tracking system and
the color video camera disclosed by the Newcombe et al. [system]" (Ans. 6).
In other words, Fouhey, like Newcombe, teaches using input information
captured from cameras to build a 3D model (see Newcombe ,r 22; Fouhey,
Abstract). Appellants fail to persuasively demonstrate that a person of
ordinary skill, upon reading Fouhey, would be discouraged from following
the path set out in the Fouhey, i.e., acquiring position and spatial
dimensions, in the system of Newcombe.
Finally, we note that the Examiner has found actual unrebutted
teachings in the prior art and has provided rationales for the combination,
i.e., "to significantly improve estimates of 3D scene geometry" (Final Act.
14) and "to avoid collision and display the tracking information of users"
(id. at 16). Although Appellants contend that "Fouhey operates by entirely
different principles [from Newcombe]" (App. Br. 13), we highlight that
"[ t ]he test for obviousness is not whether the features of a secondary
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reference may be bodily incorporated into the structure of the primary
reference," but rather "what the combined teachings of the references would
have suggested." Keller, 642 F.2d at 425. We find that Appellants have not
demonstrated error in the Examiner's combination of the references to form
the claimed invention.
Further, the teachings suggest that the combination involves the
predictable use of prior art elements according to their established functions.
Accordingly, we find that the Examiner has provided sufficient motivation
for modifying Newcombe with the teachings of Fouhey and/or Khan.
Accordingly, we sustain the Examiner's rejection of claim 16.
Appellants' arguments regarding the Examiner's rejection of independent
claim 1 rely on the same arguments as for claim 16, and Appellants do not
argue separate patentability for the dependent claims. We, therefore, also
sustain the Examiner's rejection of claims 1-3, 7, and 16-20.
Claims 9-15
As an initial point, we note that Appellants fail to rebut the
Examiner's findings regarding the Perez reference. Instead, Appellants
contend that "Newcombe does not disclose, teach or suggest an NED system
worn by a user" (App. Br. 17). However, Appellants go on to admit that
paragraph 34 of Newcombe "states that the housing can be 'worn' rather
than held by hand" (id.), but emphasizes that this "does not inherently
disclose or teach where and how the housing should be worn" (id.). In other
words, Appellants concede that Newcombe discloses the system being worn
by a user, but argue that Newcombe does not explain how it is worn.
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We find that independent claim 9, nor any of the other independent
claims, does not specifically indicate where or how the NED system is worn,
but merely states "a user wearing the NED system" (see claim 9). Thus, we
find that the aforementioned claim limitation reads on Newcombe disclosure,
i.e., "[t]he mobile environment capture device may be provided in a housing
which is shaped and sized to be held by the user or worn by a user"
(Newcombe ,r 34) (emphasis added). Thus, we find unavailing Appellants'
contention that Newcombe does not teach or suggest an NED system being
worn by a user, consistent with the claims.
Appellants also contend that "the [E]xaminer demonstrates
miscomprehension of what the claimed subject matter (space carving
without need for images) is all about [because] [ n Jo captured images are
required at all" (App. Br. 17), whereas the cited art "operates on captured
images" (id.). We disagree with Appellants.
To be relevant, evidence of nonobviousness must be commensurate in
scope with the claimed invention. In re Kao, 639 F.3d 1057, 1068 (Fed. Cir.
2011 ). Here, we point out that the claims do not prohibit using captured
images. Thus, we find that Appellants' arguments regarding the prior art's
use of captured images to distinguish the claims from the prior art, are not
commensurate with the scope of the claims.
Accordingly, we sustain the Examiner's rejection of claim 9, and also
sustain the rejection of dependent claims 10-15, which are not argued
separately.
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DECISION
We affirm the Examiner's§ 103(a) rejections Rl-R3.
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
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