Ex Parte Gilley et alDownload PDFPatent Trial and Appeal BoardMay 31, 201612567541 (P.T.A.B. May. 31, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/567,541 0912512009 61947 7590 06/02/2016 Apple - Blank Rome c/o Blank Rome LLP 717 Texas Avenue, Suite 1400 HOUSTON, TX 77002 FIRST NAMED INVENTOR Greg Gilley 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. P7336USX1 4546 (l 19-0375USX1) EXAMINER CARTER, AARON W ART UNIT PAPER NUMBER 2665 NOTIFICATION DATE DELIVERY MODE 06/02/2016 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): mbrininger@blankrome.com houstonpatents@blankrome.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GREG GILLEY, JOSHUA PAGANS, NIKHIL BHATT, JEFF ALBOUZE, SIMEON LEIFER, TIMOTHY B. MARTIN, and GREGORY CHARLES LINDLEY1 Appeal2014-006972 Application 12/567,541 Technology Center 2600 Before ALLEN R. MacDONALD, KEVIN C. TROCK, and MICHAEL M. BARRY, Administrative Patent Judges. BARRY, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-26. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. 1 Appellants identify Apple Inc. as the real party in interest. App. Br. 3. Appeal2014-006972 Application 12/567,541 Introduction Appellants state their "disclosure relates to organizing images, such as digital images, by correlating one or more faces represented in the images." Spec. i-f 2 ("Technical Field"). Claims 1 and 15 are illustrative: 1. A computer-implemented method for organizing images, the computer-implemented method comprising: generating a correlation value indicating a likelihood that a face included in a test image corresponds to a face associated with a pre-determined base image; determining that a correlation threshold exceeds the correlation value and that the correlation value exceeds a non- correlation threshold; generating a similarity score based on one or more exposure values and one or more color distribution values corresponding to the test image and the base image; combining the similarity score with the correlation value to generate a weighted correlation value; and determining that the test image and the base image are correlated when the weighted correlation value exceeds the correlation threshold. 15. A computer-implemented method comprising: presenting an image in a user interface; receiving user input identifying a face region in the image depicting a face that was not automatically detected; altering one or more facial detection criteria; and performing a facial detection process for the identified face region using the altered facial detection criteria. App. Br. 12, 14--15 (Claims App'x). 2 Appeal2014-006972 Application 12/567,541 Rejections2 Claims 15-19 and 21-26 stand rejected under 35 U.S.C. § 102(b) as anticipated by Calia et al. (US 5,450,504; Sept. 12, 1995). Final Act. 7-10. Claims 1---6, 8-14, and 20 stand rejected under 35 U.S.C. § 103(a) as obvious over Calia and Zhang (US 2008/0122944 Al; May 29, 2008). Final Act. 11-18. Claim 7 stands rejected under 35 U.S.C. § 103(a) as obvious over Calia, Zhang, and Corcoran et al. (US 2007/0110305 Al; May 17, 2007). Final Act. 19-20. ANALYSIS Claim 1 Pre-Determined Base Image Appellants argue the Examiner errs in finding Calia teaches or suggests claim l's "generating a correlation value indicating a likelihood that a face included in a test image corresponds to a face associated with a pre-determined base image" because the Examiner's citations to Calia "explicitly require that the base image is not predetermined (i.e., decided in advance) before the generation of a correlation value indicating a likelihood that a face in the test image corresponds with a face in the base image, as is recited." App. Br. 7. Appellants contend all cited passages from Calia are deficient on this requirement because they "make it clear that 'all' of the target images in Calia are examined." Id. at 8. 2 Page 6 of the Final Action rejects claim 1under35 U.S.C. § l 12(b) "as being indefinite for failing to particularly point out and distinctly claim the subject matter". The Advisory Action delivered electronically to Appellants on September 25, 2013 (Adv. Act. 1), withdraws that rejection. 3 Appeal2014-006972 Application 12/567,541 The Examiner answers that "[t]he basic definition for the term 'pre- determined' is to decide in advance, therefore the [E]xaminer is interpreting a predetermined base image as the base image that has been decided (acquired and stored) in advance." Ans. 4. We agree with the Examiner's interpretation. Appellants' argument in reply that Calia, notwithstanding that its "PVP [(Potential Value Process)] will order the database images for likely fit to the target images," "explicitly require[s] that the base image is not predetermined" (Reply 8), does not persuasively explain why Calia's determination of the order of all images that may be used as a base image does not teach a predetermined base image. We also find unpersuasive Appellants' reply that Calia differs from the use of "a 'bucket' of confirmed images" in Appellants' Specification, because such an argument is not commensurate with the scope of the claims. See Reply 9 (citing Spec. iTiT 62---63). Generating a Similarity Score Appellants argue the Examiner errs in finding the combination of Calia and Zhang teaches or suggests claim 1 's "generating a similarity score based on one or more exposure values and one or more color distribution values corresponding to the test image and the base image." App. Br. 8-9. Appellants specifically argue "Zhang fails to recite using color distribution values or exposure values/or generating a similarity score." Id. at 8. We find this unpersuasive because, as the Examiner answers, the rejection "relies on Calia for disclosing [generating] a similarity score and on Zhang for using exposure values as part of the similarity calculation." Ans. 5. Appellants also argue Zhang fails to teach the claimed use of color distribution values because "Zhang works to calculate a color value of a 4 Appeal2014-006972 Application 12/567,541 particular pixel(s) making up an object within an image, and does not relate to evaluating the color distribution of an entire image." App. Br. 9; Reply 9. This argument is unpersuasive because it is not commensurate with the scope of claim, which recites "color distribution values corresponding to the test image and the base image." Id. We also note the test for obviousness "is what the combined teachings of the references would have suggested to those of ordinary skill in the art." In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted). We agree with, and adopt, the Examiner's findings and reasons for how the combination of Calia and Zhang teaches all requirements of the claim 1 's "generating a similarity score ... "step. See Final Act. 12-14; Adv. Act. 2-3; Ans. 5---6. Combining Zhang with Calia Appellants argue "it would not have been within the skill of the ordinary person to combine Zhang with Calia, at least because Zhang has nothing to do with determining the similarity between faces detected in different images." App. Br. 9. We find this unpersuasive in view of the Examiner's findings to the contrary (see Final Act. 13-14; Adv. Act. 3 (Sept. 25, 2013); Ans. 5---6) and that "[a] person of ordinary skill is also a person of ordinary creativity, not an automaton." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). We accordingly sustain the Examiner's rejection of claim 1, as well as of claims 2-8, for which Appellants provide no argument separate from claim 1 (see App. Br. 9-10). 5 Appeal2014-006972 Application 12/567,541 Claim 9 Independent claim 9 includes all requirements of claim 1, with the further limitation of "confirming that an elapsed time between the base image and the test image is below a time threshold." The Examiner finds Calia teaches this step: The applicant's attention is directed towards col. 10 lines 46-51 and col 11 lines 54-61 which discuss the time element being measured as a percentage of the data base to be reached as well as it having an impact on the quality of the result. If only a short time is allowed so that using the potential value sort, [sic] only a smaller percentage of the data base is reached and the quality of the result will be lower. The first threshold is the score where the probability of false alarm error is equal to the probability of a matching score below the first threshold and since the potential value sort has placed the match (if there is one) high in order there is a very high likelihood of finding the match above the threshold before the time cut-off (percentage of data base) is reached. This implies that there is relationship between the values, thresholds and time. Therefore a time threshold. Adv. Act. 3--4. Appellants argue the Examiner errs because "Calia is concerned with cutting down the speed of the matching algorithm and has nothing at all to do with the 'elapsed time' between the base image and the test image." App. Br. 9. The Examiner answers with an interpretation of"' elapsed time' between images as a time period measuring the total processing time that is related to the images." Ans. 7. Semantically, any reasonable interpretation of claim 9's "an elapsed time between the base image and the test image" requires an elapsed time that is between a time of the base image and a time of the test image. The Examiner does not persuade us that Calia' s disclosure of a time to process 6 Appeal2014-006972 Application 12/567,541 images, which is silent as to any time attribute of any particular image, teaches or suggests such an elapsed time. We accordingly do not sustain the rejection of claim 9, or of its dependent claims 10-14. Claim 15 Appellants argue the Examiner errs in finding Calia teaches "receiving user input identifying a face region in the image depicting a face that was not automatically detected" as recited in claim 15 because: Calia's only description of the human intervention is that "some or all of the points on a particular image can be located by a human operator." Locating the position of an eye or the tip of a nose in an image already considered as having a face region ("locat[ing] points in the face" (Col. 5, lines 55-57)) is not the same as (or the equivalent to) "identifying a face region in the image depicting a face that was not automatically detected." Likewise, the cited portion of Calia at Col. 13, lines 46-64 also describes steps taken by the computer decision algorithm program to confirm a facial match, not to receive user input to identify the existence of a face in an image where a face was not even automatically detected at all. App. Br. 6-7. The Examiner answers: The claim does not require "identifying the existence" as [A ]ppellant[ s] argue[]. Instead, the claim recites "not automatically detected," which broadly reads on "not automatically detected" as a match as interpreted by the [E] xaminer. . . . [Calia] discusses a human operator locating some or all of the points on a particular image while the feature extraction process is being applied to all facial images in the database, therefore the human operator is the user which is identifying the face regions when selecting the (feature) points on the selected facial images which wasn't automatically selected due to poor image quality. 7 Appeal2014-006972 Application 12/567,541 Ans. 3--4. Appellants in reply argue Calia's "[human] intervention is not indicated as 'identifying a face region.'" Reply 5. Appellants argue that the broadest reasonable interpretation of the phrase, "receiving user input identifying a face region in the image depicting a face that was not automatically detected" would, in fact, imply to a person having ordinary skill in the art, that the user was identifying the existence (via identifying its location) of a face that was not automatically detected as existing in the image. . . . [T]he broadest reasonable interpretation would be that the user identifies a face region in an image in which no face was detected, i.e., in which no face was detected to exist . ... Reply 7. Appellants do not persuade us of Examiner error; we adopt the findings and reasons of the Examiner in the rejection of claim 15. See Final Act. 7-8; Adv. Act. 2; Ans. 5-8. The Examiner's interpretation of claim 15' s "a face that was not automatically detected" is reasonable in view of Appellants' Specification and claims; and encompasses images in Calia' s database that are of poor image quality and for which all points on the image may be located by a human operator. See Calia 7:41--44. We accordingly sustain the Examiner's rejection of claim 15, and the rejections of claims 16-26, which Appellants argue together with claim 15 (see App. Br. 6). DECISION For the reasons above, we affirm the Examiner's rejection of claims 1-8 and 15-26, and reverse the rejection of claims 9-14. 8 Appeal2014-006972 Application 12/567,541 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-IN-PART 9 Copy with citationCopy as parenthetical citation