Ex Parte Gregg

Patent Trial and Appeal Board

Apr 17, 2017

14704562 (P.T.A.B. Apr. 17, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/704,562 05/05/2015 Richard L. Gregg 231.0001-00000 2893
22882 7590 04/19/2017
MARTIN & FERRARO, LLP
1557 LAKE O'PINES STREET, NE
HARTVTT.TE, OH 44632
EXAMINER
GE, JIN
ART UNIT PAPER NUMBER
2616
NOTIFICATION DATE DELIVERY MODE
04/19/2017 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):
U S PTO-docketing @ martinferraro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD L. GREGG1
Appeal 2017-003247
Application 14/704,562
Technology Center 2600
Before KRISTEN L. DROESCH, JOHNNY A. KUMAR, and
SCOTT B. HOWARD, Administrative Patent Judges.
KUMAR, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks review under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1—3. We have jurisdiction over the appeal of these
claims pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies Prism Technologies, LLC as the real party in interest
(App. Br. 1).
Appeal 2017-003247
Application 14/704,562
STATEMENT OF CASE2
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below [bracketed matter added]:
1. A method for altering visual perception during a welding
operation, comprising:
[a] obtaining a current image video using an image sensor
attached to a welding mask:
[b] determining a background reference image;
[c] determining a foreground reference image;
[d] processing the current video by:
[e] combining the current video and the background
reference image; and
[f] substituting the foreground reference image onto the
combined image; and
[g] displaying, in real-time, a processed current video on a
display screen attached to the welding mask.
REJECTIONS
Claims 1 and 2 are rejected under 35 U.S.C. § 103 as being
unpatentable over Steve,3 Buchmann,4 Levin,5 and Applicant’s Admitted
Prior Art (hereinafter “AAPA”). Final Act. 4—11.
2 Our Decision will make reference to Appellant’s Appeal Brief (“App.
Br.,” filed Aug. 16, 2016), the Examiner’s Answer (“Ans.,” mailed Oct. 31,
2016), and Appellant’s Reply Brief (“Reply Br.,” filed Jan. 3, 2017).
3 US 2012/0180180 A1 (July 19, 2012).
4 Volkert Buchmann et al., Interaction With Partially Transparent Hands
and Objects, Proc. 6th Australian Conf. on User Interface (AUIC ’05),
Vol. 40, 17-20 (2005).
5 Anat Levin et al., A Closed-Form Solution to Natural Image Matting,
Proc. IEEE Conf. Computer Vision and Pattern Recognition (2006).
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Application 14/704,562
Claim 3 is rejected under 35 U.S.C. § 103 as being unpatentable over
Tschimer,6 Steve, Buchmann, and Levin. Final Act. 11—17.
ANALYSIS
Issue on Appeal: Did the Examiner err in combining Steve,
Buchmann, Levin, and AAPA to teach or suggest all the limitations of
claims 1 and 2 because the references are not properly combinable?
We have reviewed the Examiner’s rejections in light of Appellant’s
contentions that the Examiner has erred. Further, we have reviewed the
Examiner’s response to claims 1—3 that has been argued by the Appellant.
App. Br. 3—8; Reply Br. 1—5.
We disagree with Appellant’s conclusions. We adopt as our own
(1) the findings and reasons set forth by the Examiner in the action from
which this appeal is taken and (2) the reasons set forth by the Examiner in
the Examiner’s Answer in response to Appellant’s Appeal Brief. Ans. 2—6.
We concur with the conclusions reached by the Examiner. We highlight and
address specific findings and arguments for emphasis as follows.
The Examiner finds that Steve teaches elements [a], [e], and [g] of
claim 1 (Ans. 2; Steve Tflf 114—119, 122, and 139) and Levin teaches
elements [b], [c], [d], and [f] (Ans. 2-4; Levin, Abstract, Figure 11, Section
7)-7
6 Petra Tschimer & Axel Graser, Virtual and Augmented Reality For
Quality Improvement of Manual Welds, 15th Triennial World Congress,
Barcelona, Spain (2002).
7 Alternately, for element [c], the Examiner cites Buchmann (Final Act. 8—
9; Buchmann, Figure 1, Section 3).
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Application 14/704,562
Appellant’s arguments with respect to the Examiner’s obviousness
rejection of independent claim 1—3 mainly focus on whether Steve and Levin
are combinable. App. Br. 4—7; Reply Br. 1—4.
The Appellant contends “if the method disclosed in Levin
for determining a foreground image of each still frame requires user input
and takes ‘a few seconds,’ Levin cannot be applied to a real-time video
application” (App. Br. 4) and “one of ordinary skill would readily
understand that a method that requires user input for every frame cannot be
used in processing a video for display in real-time” (App. Br. 5).
Appellant also contends,
The Examiner’s contention not only ignores the legal
requirements of 35 U.S.C. § 103, it directly contradicts the
teachings of Levin that “[interactive digital matting, the
process of extracting a foreground object from an image based
on limited user input, is an important task in image and video
editing” and that “[fjrom a computer vision perspective, this
task is extremely challenging.” (Levin at 1, emphasis added.)
That is, according to Levin, extracting the foreground image is
“extremely challenging” even with input from the user at each
individual frame. Yet the Examiner, without any support,
makes the bald-faced assertion that extracting a foreground
image from a video, without user input, in real-time is “simple.”
(Advisory Action.) Appellant respectfully submits that a proper
rejection under 35 U.S.C. § 103 cannot be based on the
Examiner’s assertion that is directly contradicted by the very
reference the Examiner purports to modify.
App. Br. 6.
In response, the Examiner finds that:
It would have been obvious to a person of ordinary skill in the
art at the time the invention was filed to modify Steve et al. to
include determining a foreground reference image; processing
the current video image by: substituting the foreground
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Application 14/704,562
reference image onto the combined video image as taught by
Levin et al. to process video image (replace the foreground part
in the input video image with a foreground image), by Levin et
al., and display the process video image on the display screen in
realtime, taught by Steve et al., to let user view a combine
image with a new foreground to perform image matting and
compositing in image and video editing.
Ans. 4.
The Examiner also finds:
It would have been obvious to a person of ordinary skill in the
art at the time the invention was filed to modify Steve et al. to
include determining a background reference image; processing
the current video image by: combining the current video image
and the background reference image as taught by Buchmann et
al. to provide an alpha blend operation for input image and
background to perform with uniform transparency across
important object to handle the visual concealment of important
object and information. So Buchmann et al.’s method could be
used to welding device, taught by Steve et al., to generate
reasonable expectation of success after combining Steve et al.
with Buchmann et al.
Ans. 5—6.
We agree with the Examiner because Appellant’s 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 are 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
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Application 14/704,562
those of ordinary skill in the art.” (citations omitted)). This reasoning is
applicable here.
We further note that the Examiner has found actual teachings in the
prior art and has provided a rationale for the combination (see Ans. 4—6).
We note that the above-noted teachings suggest that the combination
involves the predictable use of prior art elements according to their
established functions, i.e., displaying video images during a welding
operation. There is no requirement that the problem solved by the secondary
reference be discussed by the primary reference to apply the teachings of the
secondary reference in a rejection under 35 U.S.C. § 103. The Supreme
Court has held that in analyzing the obviousness of combining elements, a
court need not find specific teachings, but rather may consider “the
background knowledge possessed by a person having ordinary skill in the
art” and “the inferences and creative steps that a person of ordinary skill in
the art would employ.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). To be nonobvious, an improvement must be “more than the
predictable use of prior art elements according to their established
functions,” id. at 417, and the basis for an obviousness rejection must
include an “articulated reasoning with some rational underpinning to support
the legal conclusion of obviousness.” Id. at 418 (citation and internal
quotation marks omitted). Here, the Examiner has provided a rationale for
the combination. Accordingly, we find that the Examiner has provided
sufficient motivation for modifying Steve with the teachings of Levin.
Appellant provides additional arguments with respect to the
patentability of claim 3. App. Br. 7—8. The Examiner has rebutted each of
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those arguments in the Answer (page 6). Therefore, we agree with the
Examiner’s findings and underlying reasoning and adopt them as our own.
Accordingly, Appellant has not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner’s reading of
the contested limitations on the cited prior art, or in the proper combinability
of the prior art references as suggested by the Examiner. Therefore, we
sustain the Examiner’s obviousness rejection of independent claims 1, 2, and
3.
Consequently, we conclude there is no reversible error in the
Examiner’s rejections of claims 1—3.
DECISION
The Examiner’s decision rejecting claims 1—3 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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