Ex Parte Delashmit et al

Patent Trial and Appeal Board

Dec 16, 2015

12559771 (P.T.A.B. Dec. 16, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/559,771 09/15/2009 Walter H. Delashmit JR.
109667 7590 12/18/2015
Lockheed Martin MFC and
Withrow & Terranova, PLLC
2530 Meridian Parkway
Suite 300
Durham, NC 27713
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.
1302-152C 9035
EXAMINER
LUU,CUONGV
ART UNIT PAPER NUMBER
2128
NOTIFICATION DATE DELIVERY MODE
12/18/2015 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@wt-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte WALTERH. DELASHMIT, JR. and
JAMES T. JACK, JR.
Appeal2013-005146
Application 12/559,771
Technology Center 2100
Before ALLEN R. MACDONALD, JOHN A. JEFFERY, and
DEBRA K. STEPHENS, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1, 2, 4, 7, 10, 11, 16-20, 23--46, 52-55, and 58-84. We have
jurisdiction under 35 U.S.C. § 6(b). Claims 3, 5, 6, 8, 9, 12-15, 21, 22, 47-
51, 56, and 57 have been cancelled.
We AFFIRM-IN-PART and enter a NEW GROUNDS OF
REJECTION UNDER 37 C.F.R. § 41.50(b).
Appeal2013-005146
Application 12/559,771
STATE OF THE INVENTION
According to Appellants, the claims are directed to a method and
apparatus for developing synthetic three-dimensional models from imagery,
in software (Abstract). Claim 1, reproduced below, is representative of the
claimed subject matter:
1. A method for modeling an object in software, comprising:
generating a three-dimensional geometry of the object
from a plurality of points obtained from a plurality of images of
the object, the images having been acquired from a plurality of
perspectives and the geometry being generated independently
of any positional relationship between the object and the point
of acquisition; and
generating a three-dimensional model from the three-
dimensional geometry for integration into an object recognition
system.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Mueller
Lyons
Delashmit (AAP A)
US 2003/0071194 Al
US 6,954,212 B2
US 2010/0002910 Al
REJECTION
Apr. 17, 2003
Oct. 11, 2005
Jan. 7,2010
Claims 1, 2, 4, 7, 10, 11, 16-20, 23--46, 52-55, and 58-84 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over Mueller, Lyons,
and AAP A (Final Act. 4--17).
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Application 12/559,771
We have only considered those arguments that Appellants actually
raised in the Briefs. Arguments Appellants could have made but chose not
to make in the Briefs have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2012).
ISSUE 1
35 USC§ 103(a): Claims 1, 2, 4, 7, 10, 11, 16-20, and 23-43
Appellants assert their invention is not obvious over Mueller, Lyons,
and AAPA (App. Br. 11-13). The issues presented by the arguments are:
Issue 1: Has the Examiner erred in finding the combination of
Mueller, Lyons, and AAPA teaches or suggests "the geometry being
generated independently of any positional relationship between the object
and the point of acquisition," as recited in claim 1?
ANALYSIS
Appellants contend Lyons does not teach the three-dimensional
geometry of the object is generated independently of any positional
relationship between the object and the point of acquisition (App. Br. 11 ).
According to Appellants, the position and orientation of Lyon's camera is a
necessary prerequisite for registering the images in the camera calculator
process (id. at 12). Thus, according to Appellants, Lyons requires
knowledge of the positional relationship between the object and the point of
acquisition (id.).
We are persuaded by Appellants' arguments. Lyons teaches data
defining images of the subject object 210 and photographic mat 34 recorded
at different relative positions and orientations are input by the user (Lyons,
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Application 12/559,771
8:61---67). Lyons further teaches determining the position and orientation of
the camera 230 relative to the calibration pattern on the photographic mat
(and hence relative to the subject object 210) (id. at 9:6-11). However,
although we agree with the Examiner that Lyon's points of acquisition are
not necessarily pre-defined positions and can be positioned at random
distances and elevation from the object, we do not find Lyons teaches the
three-dimensional geometry is "generated independently of any positional
relationship between the object and the point of acquisition," as recited in
claim 1.
Nonetheless, although we find Lyons does not teach this limitation, we also
find Appellants' Specification does not disclose this limitation. Appellants
identify Figure 5, element 509 and page 11, lines 1-7 of their Specification,
as describing this limitation (App. Br. 3). As shown in element 509 of
Figure 5, the selected points in the calibrated source images are mapped into
a 3D space (Spec., Fig. 5). Element 508 describes the relationship between
the source images from selected points co-located in more than one of the
source images is calibrated before mapping the selected points in the
calibrated source images into a 3D space (id. at Fig. 5; see also Spec. 11: 1-
7). Appellants' Specification further describes that calibration involves
determining selected parameters regarding acquisition of source images
where the parameters may include position, rotation, focal length, and
distortion, i.e, positional relationships or points of acquisition (id. at 10: 12-
15). Therefore, we do not find Appellants' Specification describes the three-
dimensional geometry is generated independently of any positional
relationship between the object and the point of acquisition. Accordingly,
we enter a new grounds of rejection of claims 1, 2, 4, 7, 10, 11, 16-20, and
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Application 12/559,771
23--43 under 35 U.S.C. § 112, first paragraph for lack of written description,
as discussed below.
ISSUE 2
35 US.C. § 103(a): Claims 44-46, 52-55, and 58---84
Appellants did not present separate arguments that the combination of
Mueller, Lyons, and AAPA fails to teach the invention as recited in claims
44--46, 52-55 and 58-84.
Independent claims 44, 64, 70, 73, 76, 79, and 82 were not argued, nor
were their dependent claims argued. Accordingly, we find the combination
teaches the invention as recited in claims 44--46, 52-55, and 58-84.
ISSUE 3
35 US.C. § 103(a): Claims 1, 2, 4, 7, 10, 11, 16-20, 23-46,
52-55, and 58---84
Appellants assert their invention is not obvious over Mueller, Lyons,
and AAPA (App. Br. 13-29). The issues presented by the arguments are:
Issue 3a: Has the Examiner erred in finding Mueller is analogous art?
Issue 3b: Has the Examiner erred in finding neither Mueller nor
Lyons teaches away from the present invention as recited in the claims?
ANALYSIS
Issue 3a:
Appellants argue Mueller is not analogous art as it is not from the
same field of the present invention or "reasonably pertinent," as Mueller is
directed to achieving color fidelity in an image, not generating a synthetic
3D model of vehicles for use in an automatic target recognition (ATR)
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Application 12/559,771
system (App. Br. 13-14). Appellants proffer a declaration from one of the
inventors, James Jack, Jr., to support their argument Mueller is non-
analogous art (App. Br. 15; Deel. of James Jack, Jr.). Appellants further
assert the Office has not cited any countervailing evidence, and point to In re
Clay, 966 F.2d 656 (Fed. Cir. 1992) as support for their assertion that
Mueller is non-analogous art (App. Br. 18). Appellants continue that the
Examiner errs in determining the testimony of Mr. Jack, Jr. in paragraphs 7-
11, is disqualified because the evidence is not tied to the claim language
(App. Br. 19-20). Appellants next argue the Board's previous decision is
not controlling on the present record (App. Br. 22).
We do not agree with Appellants' arguments, and instead, agree with
the Examiner's findings and conclusions (Ans. 18-19; Final Act. 2-3).
Initially, to the extent Appellants are attempting to argue issues already
decided, Appellants did not file a rehearing request or further appeal the
earlier Board decision and thus, our previous findings and conclusions are
controlling. See Manual of Patent Examining Procedure (MPEP)
§ 706.07(h)(XI)(A) (noting that "a Board decision in an application is the
'law of the case,' and is thus controlling in that application and any
subsequent, related application."). To reiterate, in the Board's previous
decision, we found Mueller teaches a method and system for creating 3D
imagery of an object which may be as large as a building, from a plurality of
scanned images (Mueller, Abstract). Mueller further teaches the detector
may be separate from the image processor and may even be mounted on a
helicopter and flown around an object (Mueller i-fi-153, 56). Thus, we found
Mueller (as well as AAPA) is directed toward detecting one or more
characteristics of an object and creating a 3D model of the object (Dec. on
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Appeal 4--5, 10-11). Appellants argue because Mueller teaches a technique
for achieving color fidelity in a scanned, 2D object of a 3D object, an
ordinarily skilled artisan would not have looked to Mueller as analogous art
(App. Br. 15). We are not persuaded, as both Mueller and Appellants'
invention are directed toward 3D modeling.
Appellants would have us read the field of endeavor very narrowly;
arguing an ordinarily skilled artisan skilled in developing 3D models would
not look to other references also related to 3D modeling because the
reference looks to also achieve color fidelity (id. at 13-14). However,
Appellants have not proffered sufficient argument or evidence to persuade
us an ordinarily skilled artisan would have found the field of endeavor to be
so narrow. Indeed, Mueller's Abstract states the invention is directed to
"[a]pparatus and method for creating 3D imagery of an object using
calibration means to transfer data to a reference frame and visibility analysis
to determine and resolve occlusion" (Mueller, Abstract).
Appellants proffer a Declaration of one of the inventors, James T.
Jack, Jr. (Declaration) as evidence an ordinarily skilled artisan would not
have looked to Mueller. We are not persuaded by Appellants' argument.
Specifically, Mr. Jack, Jr. contends the invention as recited addresses
difficulties posed by requiring the object being modeled be present without
reliance of "detailed knowledge of position and orientation of the camera
with respect to the object being modeled" (Declaration i-f 7, 9). However,
Mr. Jack, Jr. is arguing limitations not recited in the claims (see also Final
Rej. 2-3), and further, as discussed above, generating geometry
independently of any positional relationship, as recited in the claims, is not
disclosed in the Specification (and are not relevant to claims 64--84).
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We are also not persuaded that because Mueller discusses 3 D imagery
that yields superior color fidelity that an ordinarily skilled artisan would not
have looked to Mueller for teaching of 3D modeling (Declaration i-f 8). Mr.
Jack, Jr. 's testimony is not persuasive as that testimony is largely conclusory
with insufficient evidence to support the statements.
Thus, we are not persuaded by Appellants' arguments that Mueller is
non-analogous art to Appellants' invention.
Issue 3b:
Appellants again argue Mueller teaches away, an issue also previously
argued by Appellants and addressed by the Board (Decision 5-6).
Appellants now argue Mueller indicates it is "very undesirable" that data
image acquisition can be done remotely for a "whole variety of problems,"
but teaches it is "very desirable to achieve a high degree of integration in the
equipment," thus, implying Mueller is teaching it is more preferable to bring
the scanned object to the equipment in \vhich the data \Vill be processed
(App. Br. 26).
"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 Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994). Teaching an alternative or equivalent method, however,
does not teach away from the use of a claimed method. See In re Dunn, 349
F.2d 433, 438 (CCPA 1965).
Mr. Jack, Jr. declares thatMueller teaches away from the claimed
method as Mueller requires the physical presence of the object and
knowledge of the relative position and orientation of a camera relative to the
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Application 12/559,771
object (Dec. il I 1). Initially, we note as set forth above, Appellants' own
Specification does not teach the relative position and orientation of a camera
relative to the object. Additionally, the claim does not recite the object is
not physically present. Furthermore, as we previously stated, Mueller
teaches using a data acquisition device separate from the image processor
that may be attached to, for example, a helicopter to acquire data of a very
large object (Mueller i-fi-153, 56). Thus, Mueller describes processing the
acquired image to obtain a three-dimensional model, may be done separate,
without the physical presence of the object. Accordingly, we are not
persuaded Mueller would be discouraged from following the path set out in
the reference, or would be led in a direction divergent from the path taken by
Appellants. A reference does not teach away if it merely expresses a general
preference for an alternative invention from amongst options available to the
ordinarily skilled artisan, and the reference does not discredit or discourage
investigation into the invention claimed. In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004).
Appellants next argue both Lyons and the combination of Mueller and
Lyons teach away from the present invention (App. Br. 28). Appellants
argue Lyons teaches away because Lyons requires knowledge of the position
and orientation of the target relative to the camera for proper registration of
the images (id.). Appellants have not proffered sufficient evidence or
argument to persuade us Lyons criticizes, discredits, or otherwise
discourages investigation into the claimed invention. Further, Appellants'
Specification does not describe knowledge of the position and orientation
relative to the camera, as set forth above.
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Application 12/559,771
Accordingly, we are not persuaded the Examiner erred by improperly
combining the teachings of Mueller, Lyons, and AAP A.
CONCLUSION
We are not persuaded the Examiner improperly combined the
teachings of Mueller, Lyons, and AAPA. However, we do not find Lyons
teaches the three-dimensional geometry is "generated independently of any
positional relationship between the object and the point of acquisition," as
recited in claim 1, and commensurately recited in claims 24 and 34. Thus,
we do not sustain the rejection of claims 1, 2, 4, 7, 10, 11, 16-20, 23--43,
under 35 U.S.C. § 103(a) as being unpatentable over Mueller, Lyons, and
AAPA. We sustain the rejection of claims 44--46, 52-55, and 58-84 under
35 U.S.C. § 103(a) for obviousness over Mueller, Lyons, and AAP A.
REJECTIONS OF CLAHvIS 1, 2, 4, 7, 10, 11, 16-20, 23--46, 52-55, AND
58---63 UNDER 37 C.F.R. § 41.50(b)
We make the following new grounds of rejection using our authority
under 37 C.F.R. § 41.50(b).
Claims 1, 2, 4, 7, 10, 11, 16-20, 23--46, 52-55, and 58---63 are rejected
under 35 U.S.C. § 112, first paragraph for lack of written description.
Specifically, we determine Appellants' Specification does not clearly convey
the information that Appellants have claimed - the geometry being
generated independently of any positional relationship between the object
and the point of acquisition. Indeed, we do not find in the portions of their
Specification cited by Appellants as supporting this limitation, nor readily
find in any other description in the Specification, support for how a three-
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dimensional geometry is generated without using some positional
relationship between the object and the point of acquisition. As such, the
amended claims introduce elements or limitation not supported by the as-
filed disclosure, through express, implicit, or inherent disclosure. Therefore,
we determine
the Specification does not "reasonably convey[] to a person skilled in the art
that the inventor had possession of the claimed subject matter at the time of
filing," Eiselstein v. Frank, 52 F.3d 1035, 1039 (Fed. Cir. 1995) (citations
omitted), but instead, the claims go beyond the subject matter originally
filed.
DECISION
The Examiner's rejection of claims 1, 2, 4, 7, 10, 11, 16-20, 23--43
under 35 U.S.C. § 103(a) as being unpatentable over Mueller, Lyons, and
AAP A is reversed.
The Examiner's rejection of claims 44--46, 52-55, and 58-84 under
35 U.S.C. § 103(a) as being unpatentable over Mueller, Lyons, and AAP A is
affirmed.
In a new ground of rejection, we reject claims 1, 2, 4, 7, 10, 11, 16-
20, and 23--43 under 35 U.S.C. § 112(a) for lack of written description.
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b) (2010). 37 C.F.R. § 41.50(b) provides "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review."
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Application 12/559,771
37 C.F.R. § 41.50(b) also provides that the Appellant, WlTHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
lv
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the examiner, in
which event the proceeding will be remanded to the examiner. ...
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record ....
AFFIRMED-IN-PART
37 C.F.R. § 41.50(b)
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