Ex Parte Fleisher

Board of Patent Appeals and Interferences

Mar 28, 2012

10987426 (B.P.A.I. Mar. 28, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL FLEISHER
____________

Appeal 2009-012344
Application 10/987,426
Technology Center 2600
____________

Before JOSEPH F. RUGGIERO, CARLA M. KRIVAK, and
DEBRA K. STEPHENS, Administrative Patent Judges.

RUGGIERO, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-5, 11-21, 27-36, 38, and 39. Claims 6-10, 22-26, 37, and 40-69
are withdrawn from consideration as being subject to a restriction
requirement. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Appeal Brief (filed Jan. 8, 2009), the Answer (mailed Apr.
15, 2009), and the Reply Brief (filed June 5, 2009) for the respective details.

Appellant’s Invention
Appellant’s invention relates to the surveillance of a subject including
a person’s body by interrogating the subject with electromagnetic radiation.
Image data representative of at least a first image of a portion of a person’s
body is generated. In some embodiments, a portion of the image of the
person’s body may be replaced with a substitute image portion that can be a
modified portion of the original body image. See generally Spec. 1:22–2:4;
2:6-11.
Claim 1 is illustrative of the invention and reads as follows:
1. A method of surveilling a subject including a person’s body
comprising:
interrogating the subject with electromagnetic radiation in a frequency range
of about 100 MHz to about 2 THz;
generating, from the interrogating, image data representative of at least a
first image of the person’s body;
determining, via a processor, the location in the image corresponding to a
first given portion of the person’s body from the image data; and
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replacing a first portion of the image corresponding to the first given portion
of the person’s body with a substitute image portion.

The Examiner’s Rejection
The Examiner’s Answer cites the following prior art references:
McMakin US 6,507,309 B2 Jan. 14, 2003
Van Geest US 2003/0035001 A1 Feb. 20, 2003
Nguyen US 6,738,066 B1 May 18, 2004
Keller US 2004/0140924 A1 July 22, 2004
Claims 1-5, 16-21, 32-36, and 39 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Keller and McMakin in view of
Nguyen.
Claims 11-15, 27-31, and 38 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Keller and McMakin in view of Nguyen and Van
Geest.

ANALYSIS
Claims 1-5, 16-21, 32-36, and 39
Appellant’s initial argument (App. Br. 17-18), with respect to
independent claims 1, 17, 33, and 39, that neither Keller nor McMakin
(incorporated by reference in Keller) discloses the identification of a
particular body feature by a processor using imaged data is not persuasive.
While Appellant (App. Br. 12-15) has undertaken an analysis of the type of
image processing performed by Keller and McMakin to identify body
features, they have not identified any particular claim language that is not
satisfied by the image processing disclosures of Keller and McMakin.
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As discussed by the Examiner (Ans. 9), both Keller and McMakin
extract image data from a millimeter-wave imaging system to identify
particular body parts. Further, we agree with the Examiner (id.) that
McMakin, in particular, discloses that a processor is performing the claimed
body portion locating determining operation (Fig. 1; col. 11, ll. 15-24; col.
17, ll. 20-23, 35-37).
We further find unpersuasive Appellant’s contention that Nguyen
does not overcome what the Examiner has identified as the deficiency in
Keller and McMakin, i.e., the replacing of an image portion of a person’s
body with a substitute image portion. According to Appellant (App. Br. 16),
Nguyen’s removal of artifacts from images of body parts to produce cleaner
images does not correspond to the replacing of a portion of an image of a
person’s body with a substitute image portion as claimed.
We find no error, however, in the Examiner’s broad, but reasonable,
interpretation of the claimed image replacement feature as corresponding to
the artifact removal and image “clean up” discussed by Nguyen which the
Examiner has characterized as an image filtering operation (col. 6, ll. 49-53).
As explained by the Examiner (Ans. 9), the pixel values representing
artifacts in the body image portions of Nguyen are substituted with “cleaned
up” pixel values that result in a filtered substitute body image that replaces
the original image. Appellant’s arguments in the Reply Brief do not
challenge the Examiner’s interpretation.1

1 Appellant’s Reply Brief contains a series of generalized and conclusory
statements which do not challenge with particularity any of the Examiner’s
rejections of the appealed claims.
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We also agree with the Examiner that Nguyen’s described artifact
removal operation is remarkably similar to what Appellant has described at
page 28 of the Specification. As described, and as illustrated in Appellant’s
Figures 13 and 14, “black spots” on the image of a body portion are
eliminated by eroding and dilating the displayed image resulting in a
“cleaned up” image that substitutes for the original image of the body
portion.
Lastly, we find without merit Appellant’s contention that the
Examiner has improperly combined Nguyen with Keller and McMakin. In
Appellant’s view, the image processing disclosed by Nguyen, which
involves the manipulation of optical images, is non-analogous to the systems
of Keller and McMakin which manipulate millimeter wave images that have
very low resolution compared to optical images (App. Br. 16-18). We agree
with the Examiner, however, that Nguyen, Keller, and McMakin are all in
the field of identification of body parts by image processing (Ans. 9).
Further, it is apparent to us, that the Examiner is not suggesting the
bodily incorporation of the derived optical image teachings of Nguyen into
the millimeter wave body image processing teachings of Keller and
McMakin (Ans. 9). Rather, it is Nguyen’s teaching (col. 6, ll. 49-53) of
substituting “cleaned up” or filtered images of an image of a body part for an
original image containing undesirable artifacts that is relied upon as a
rationale for the proposed combination with Keller and McMakin. “The test
for obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference . . . . Rather,
the test is what the combined teachings of the references would have
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suggested to those of ordinary skill in the art.” See In re Keller, 642 F.2d
413, 425 (CCPA 1981); In re Nievelt, 482 F.2d 965, 968 (CCPA 1973).
For the above reasons, we sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of independent claims 1, 17, 33, and 39, as well as dependent
claims 2-5, 16, 18-21, 32, and 34-36 not separately argued by Appellant.

Claims 11-15, 27-31, and 38
We also sustain the Examiner’s obviousness rejection of dependent
claims 11-15, 27-31, and 38 in which the Examiner has applied Van Geest to
the combination of Keller, McMakin, and Nguyen to address the body
orientation determining features of the rejected claims (Ans. 6-10).
Appellant’s arguments (App. Br. 23-24) reiterate the contention that the use
of optical image processing such as in Van Geest and Nguyen is not
compatible with the millimeter wave image processing teachings of Keller
and McMakin. We find such arguments unpersuasive for all of the reasons
discussed supra.

CONCLUSION OF LAW
Based on the analysis above, we conclude that the Examiner did not
err in rejecting claims 1-5, 11-21, 27-36, 38, and 39 for obviousness under
35 U.S.C. § 103(a).

DECISION
We affirm the Examiner’s decision rejecting claims 1-5, 11-21, 27-36,
38, and 39 under 35 U.S.C. § 103(a).
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2010).

AFFIRMED

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