Ex Parte Clark et al

Patent Trial and Appeal Board

Sep 27, 2018

14158016 (P.T.A.B. Sep. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/158,016 01/17/2014
61834 7590
Meister Seelig & Fein LLP
125 Park Avenue
7th Floor
NEW YORK, NY 10017
10/01/2018
FIRST NAMED INVENTOR
Matthew Cameron Clark
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.
5024-008 7093
EXAMINER
DEMOSKY, PATRICKE
ART UNIT PAPER NUMBER
2486
NOTIFICATION DATE DELIVERY MODE
10/01/2018 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):
patents@msf-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW CAMERON CLARK
and
DEREK DEL CARPI0 1
Appeal2018-003247
Application 14/158,016
Technology Center 2400
Before JOSEPH L. DIXON, JEAN R. HOMERE, and
CARLA M. KRIVAK, Administrative Patent Judges.
KRIVAK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-8, 10-20, and 22-33, which constitute all the
claims pending in this application. App. Br. 1. Claims 9 and 21 have been
cancelled. Claims App'x. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify Care View Communications, Inc., of Lewisville, Texas
as the real party in interest. App. Br. 2.
Appeal2018-003247
Application 14/158,016
STATEMENT OF THE CASE
Appellants' invention "relates generally to systems and methods for
patient monitoring by analyzing video frames to detect patient events ...
particularly, the present disclosure relates to detection algorithms that can
recover from unpredictable changes in illumination of the patient area being
monitored while avoiding false alarms and improving detection of particular
situations" (Spec. ,r 2).
Independent claim 1, reproduced below, is exemplary of the subject
matter on appeal.
1. A system for monitoring a patient in a patient area
having one or more detection zones, the system comprising:
a camera;
a user interface; and
a computing system configured to receive a chronological
series of frames from the camera and perform the following steps
based on the reception of each frame of the chronological series:
calculate a background luminance of the frame;
calculate an aggregate background luminance based on a
respective background luminance for each of a plurality of
previous frames of the chronological series;
for each of one or more zones, calculate a zone luminance
based at least in part on the background luminance and each
luminance value of each pixel within a plurality of pixels of the
zone;
for each of one or more zones, detect patient motion based
on a change between the zone luminance and a previous zone
luminance of a previous frame exceeding a zone threshold;
compare the background luminance of the frame to an
aggregate background luminance;
in response to the background luminance changing relative
to the aggregate background luminance by more than a
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Application 14/158,016
predetermined amount, disregard luminance from the plurality of
previous frames when performing the detecting patient motion
step and not referencing the luminance from the plurality of
previous frames as part of the calculating the aggregate
background luminance step for subsequent frames of the
chronological series; and
in response to patient motion being detected, generate an
alert with the user interface in response to the background
luminance changing relative to the aggregate background
luminance by less than the predetermined amount but refrain
from generating the alert in response to the background
luminance changing relative to the aggregate background
luminance by more than the predetermined amount.
REJECTIONS and REFERENCES
The Examiner rejected claims 1-8, 10-20, and 22-33 under 35 U.S.C.
§ 112(±).
The Examiner rejected claims 1-7 under 35 U.S.C. § I03(a) based
upon the teachings of Ecker (US 2009/0278934 Al; Nov. 12, 2009), Kishida
(US 2006/0244866 Al; Nov. 2, 2006), and Kulkarni (US 2012/0188386 Al;
July 26, 2012).
The Examiner rejected claims 8, 10-20, and 22-31 under 35 U.S.C.
§ I03(a) based upon the teachings of Ecker, Kishida, Kulkarni, and Shen
(US 2008/0123987 Al; May 29, 2008).
The Examiner rejected claim 32 under 35 U.S.C. § I03(a) based upon
the teachings of Ecker, Kishida, Kulkarni, and Qi (US 2009/0185743 Al;
July 23, 2009).
The Examiner rejected claim 33 under 35 U.S.C. § I03(a) based upon
the teachings of Ecker, Kishida, Kulkarni, Shen, and Qi.
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Application 14/158,016
ANALYSIS
35 USC§ 112(!)
The Examiner rejects claims 1-8, 10-20, and 22-33 under 35 U.S.C.
112(f), because they use "a generic placeholder 'system' coupled with
functional language 'configured to' without reciting sufficient structure to
achieve the function. Furthermore, the generic placeholder is not preceded
by a structural modifier." (Final Act. 2-5).
Appellants assert the claims do not recite means plus function
language and are thus correct as written (App. Br. 4--5). The Examiner does
not address/respond in the Answer. We therefore agree with Appellants that
the claims should not be treated so as to invoke 3 5 USC § 112 (f).
Rejection under 35 USC§ 103
Appellants argue independent claims 1, 8, and 20, together (App. Br.
20). Therefore, we select claim 1 as the representative claim. Appellants
contend the Examiner errs in finding Kishida teaches or suggests comparing
"the background luminance of the frame to an aggregate background
luminance" (App. Br. 6) and after "determining that the background
luminance changed relative to the aggregate background luminance by more
than a predetermined amount, set the aggregate background luminance to the
background luminance of the frame and dampen luminance of the plurality
of frames for subsequent monitoring for the luminance change in the one or
more zones" (App. Br. 9; claims 8, 20). Appellants further contend the
Examiner errs in finding Kulkarni teaches or suggests "for each of one or
more zones, calculate a zone luminance based at least in part on the
background luminance and each luminance value of each pixel within a
plurality of pixels of the zone" (App. Br. 7; claim 1) and "in response to the
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Application 14/158,016
background luminance changing relative to the aggregate background
luminance by more than a predetermined amount, disregard luminance from
the plurality of previous frames when performing the detecting patient
motion step and not referencing the luminance from the plurality of previous
frames as part of the calculating the aggregate background luminance step"
(App. Br. 8). We do not agree.
We agree with and adopt the Examiner's findings as our own (Final
Act. 5-27; Ans. 2-24). We address the Appellants' argument as they are
presented in the Appeal Brief.
Appellants contend claims 1, 8, and 20 do not teach or suggest
comparing the background luminance of the frame to an aggregate
background luminance, we do not agree (App. Br. 5---6). Appellants contend
paragraph 186 does not disclose this limitation as it discusses calculating the
difference between and average luminance level of an entire frame, rather
than the background luminance of the frame, and the background model,
which is a comparison of the entire frame to the background reference-a
determination of a deviation in luminance "within the entire frame as
opposed to focusing on the background" (App. Br. 6). This is different from
the claim which recites comparing background luminance of a frame to an
aggregate background luminance "(i.e.[,] a comparison of a frame's
background to a background reference)" (id.). The Examiner relies on
Kishida' s paragraphs 181-187 for teaching calculating a background
luminance and an aggregate background luminance, and comparing the two
(Final Act. 9-10; Ans. 6-7; 25). Specifically, paragraph 181 states the
background model includes an average luminance in addition to another
things. Appellants address the Examiner's argument with respect to
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Application 14/158,016
Kishida's paragraph 186 (App. Br. 6) but do not address the findings in
Kishida' s paragraphs 181-185, and 187. Appellants Reply Brief does refer
to Kishida' s paragraphs 186 and 182, but on by way of attorney argument.
Appellants have not provided persuasive evidence of why the Examiner's
reasonable findings are incorrect and do not teach or suggest using the
background luminance in the comparison.
Appellants contend Kulkarni does not teach or suggest "each of one or
more zones[,] calculate a zone luminance based at least in part on the
background luminance and each luminance value of each pixel within a
plurality of pixels" (App. Br. 7). Appellants further contend Kulkarni's zone
luminance values correspond "to a brightness of a given pixel within a zone"
and not "a calculation based on the background luminance ... " (id.). We do
not agree.
The Examiner cites Kulkarni' s paragraph 24 for teaching zone
luminance values correspond to a brightness of a given pixel within a zone
(Ans. 26), and Appellants' agree ("Kulkarni discusses that 'zone luminance
values may be based on luminance values captured by the pixels
corresponding to each zone .... "') (App. Br. 7). As the Examiner finds,
Kulkarni teaches "calculating a sum of the absolute value of differences
between average zone luminance values of a first group and a second group"
(Ans. 26-27). Further, Appellants claim language recites "the calculation is
bases 'at least in part on the background luminance,"' which would fall
within Kishida' s teachings of "breaking up a frame into detection areas and
performing background luminance difference processing on these areas"
(27). Appellants' arguments, however, do not take into account what the
collective teachings of the Kishida and Kulkarni would have suggested to
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one of ordinary skill in the art and are therefore ineffective to rebut the
Examiner's prima facie case of obviousness. In re Keller, 642 F.2d 413, 425
( CCP A 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.).
As to Appellants' contention that Kulkarni does not teach or suggest
the claim limitations "in response to the background luminance changing
relative to the aggregate background luminance ... , disregard[ing]
luminance for the plurality of previous frames ... as part of the calculating
the aggregate background luminance step for subsequent frames of the
chronological series" (App. Br. 8-9), we do not agree.
We agree with the Examiner finding Kulkarni teaches a reference
frame is repeatedly updated as luminance values are used to compute S SAD
metrics for the current frame being compared, and updating the reference
frame d(next frame) when motion is detected (Ans. 28, 30). Further,
Kulkarni' s Figure 7 teaches the luminance values of a motion score are
compared to a given threshold ("a comparison of luminance values from first
and second groups") (Ans. 29). We also agree with the Examiner Kulkarni
teaches reference frames are incremented "according to a detected amount of
motion as a result of luminance comparisons," therefore, "as each frame is
continually replaced (updated). Its values are being disregarded" (Ans. 30).
Appellants do not address the Examiner's findings with respect to
Kulkarni's Figure 7.
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Appellants arguments that Kishida does not teach dampening
luminance of the plurality of frames for subsequent monitoring for the
luminance change in the one or more zones, as recited in independent claims
8 and 20, are also unpersuasive (App. Br. 10). As the Examiner points out,
Kulkarni was cited for this limitations (Ans. 31). We also adopt the
Examiner's findings regarding Shen (Ans. 32), which Appellants do not
sufficiently rebut.
For the above reasons, we are not persuaded of Examiner error. We
find the weight of the evidence supports the Examiner's ultimate legal
conclusion of obviousness, and therefore sustain the Examiner's rejection of
independent claims 1, 8, and 20, ad claims 2-7, 10-19, and 22-33 not
separately argued.
DECISION
The Examiner's decision rejecting claims 1-8, 10-20, and 22-33
under 35 U.S.C. § 103 is affirmed.
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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