Ex Parte Harris

Board of Patent Appeals and Interferences

Apr 30, 2010

09683599 (B.P.A.I. Apr. 30, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte SCOTT C. HARRIS
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Appeal 2009-011363
Application 09/683,599
Technology Center 2400
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Decided: May 4, 2010
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Before ROBERT E. NAPPI, ELENI MANTIS MERCADER, and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL

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Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-20. Oral argument was held on April 20, 2010. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
Appellant’s invention relates to
[a] system of searching an image database. An image
database is associated with an on-line merchant, and each of the
images in the database are [sic: is] associated with items which
can be purchased. Image information is entered, and that image
to information is used to search the items in the database.
(Abstract).
Independent claim 1 is illustrative.1 It reads as follows with the
disputed language emphasized:
1. A system, comprising:
a client which allows entry of image information; and
a server, including a database associated with the server,
said server connected to said client to receive said image
information and using said image information to search said
database associated with the server for items to be purchased
which meet criteria specified in said image information and
forming search results based on said image information.
Claims 1-3, 5-11, and 13-20 stand rejected under 35 U.S.C. § 103(a)
as obvious over US Patent 6,445,822 B1 [Crill] in view of US Patent
7,007,076 B1 [Hess].

1 Appellant argues claims 1, 2, 5-8, 11, 16, 18, and 20 together as a group.
See App. Br. 6-16. Accordingly, we select independent claim 1 as
representative. See 37 C.F.R. § 41.37(c)(1)(vii).
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Claims 4 and 12 stand rejected under 35 U.S.C. § 103(a) as obvious
over Crill in view of Hess and US Patent 5,893,095 [Jain].2
The Examiner finds that Crill is directed towards a system for
searching image databases (Ans. 3)3 and that it discloses every limitation of
claim 1 except that “it fails to explicitly teach a sever [sic: server] for items
to be purchased” (Ans. 4). The Examiner combines Hess to show that non-
image-based searches of online commerce sites were known (Ans. 4).
Appellant “readily admit[s] that the concept of searching an image
database for images is [sic: was] well-known in the art” (App. Br. 7).
Appellant also acknowledges that Hess discloses an online trading
environment that uses conventional text searching of a database that has
images (App. Br. 8). Appellant asserts, though, that (1) Crill “does not
disclose any reason why one might want to use [image-based-search]
technology” to “obtain images of items for sale, based on the image
matching” (App. Br. 7); (2) Hess does not teach that the images disclosed in
that database may be searched using an image search technique (App. Br. 8);
(3) “[n]owhere is there any teaching or suggestion of the claimed feature that
requires ‘using said image information to search said database associated
with the server for items to be purchased which meet criteria specified in
said image information’” (App. Br. 11 (quoting claim 1)); and (4)
“recognition of the source of this problem is an important part of what is

2 The Examiner initially asserts that claims 1-20 are all rejected over Crill in
view of Hess alone (Ans. 3), but subsequently clarifies that claims 4 and 12
are, in fact, rejected over Crill in view of Hess and Jain (Ans. 5).
3 Rather than repeat the arguments of Appellant or the Examiner, we refer to
the following documents for their respective details: Appeal Brief (App. Br.)
filed October 19, 2007; the Examiner’s Answer (Ans.) mailed January 8,
2008; and the Reply Brief (Reply Br.) filed March 14, 2008.
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patentable in the present system, and there is not one word of the source of
this problem in either Crill or Hess” (App. Br. 11).

ISSUE
Does the cited prior art further teach or suggest using conventional
image-based search techniques to search for images in an online database of
items that are “to be purchased” as recited in claim 1?

FINDINGS OF FACT
The record supports the following Findings of Fact by a
preponderance of the evidence:
Crill
1. Many companies use or develop databases of images or
graphic files. Such databases may be centrally or remotely
located. For example, a company may keep or maintain a
database of schematics or other images relating to the
manufacture, assembly, and maintenance of products the
company develops and sells. As another example, a company
may store pictures or images of artwork, posters, paintings,
antiques, real property, etc. that the company has available for
sale or rent. Such databases of images are often searched
periodically by people who are looking for a specific image or
who are attempting to find matches between an image they may
create or provide and images in the database. A user may
access the database servers from a computer, terminal, or other
client device, which can be locally or directly connected to the
database servers or which can be remotely connected to the
database servers via a local or wide area computer or other
communications network. Often times, however, limitations on
the ability to quickly search through the image databases or to
efficiently compare images provided by the user to images in
the image databases significantly reduce the utility of the image
databases.
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Col. 1, ll. 25-46 (emphases added).
2. Unfortunately, comparing two images or two digital files
can be a very time consuming process. Therefore, despite the
state of the art in image and pattern recognition, there remains a
need for an efficient apparatus and method to search for one or
more candidate images and to compare such candidate images
to one or more reference images. Preferably, the image
comparison will recognize and find patterns present in
candidate images regardless of the scale, shape, rotation, or
translation of the patterns in the candidate images. In addition,
the apparatus and method will preferably allow candidate
images to be retrieved from centralized and/or distributed
databases or repositories of images for comparison to reference
images.
Col. 2, ll. 21-33.
3. To create reference images during the step 102, a user
might combine drawing with conventional software tools that
are well known in the art. For example, drawing a circle by
first clicking on a drawing icon representing a circle and then
“clicking and dragging” a computer mouse so as to change the
size of the circle. A user might also create a reference image by
starting with an image having content similar to that sought in a
candidate image and cropping the image so that the superfluous
content is omitted from the overall image. The user might
logically combine multiple image elements; e.g., (duck) AND
(pond) AND (cloudy sky), by selecting such elements of
images and using logical or boolean functions or operators to
combine the elements into a single image.
Col. 7, ll. 17-30.

ANALYSIS
I.
Appellant’s arguments are not persuasive. Crill itself discloses every
limitation of claim 1, specifically including disclosing that the images may
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be of items to be purchased. See Facts 1-2. As such, while the further
combination of Hess may not have been necessary to establish a prima facie
case of the claim’s unpatentability, we see nothing wrong with further
relying on Hess since Crill also provides motivation to combine the
teachings of Hess. See In re Meyer, 599 F.2d 1026, 1031 (CCPA 1979)
(noting that obviousness rejections can be based on references that happen to
anticipate the claimed subject matter). For the foregoing reasons, Appellant
has not persuaded us of error in the Examiner’s obviousness rejection of
representative claim 1.
Appellant similarly argues (App. Br. 15-16) that claims 9, 10, and 17
recite price information associated with the search results, but that “the prior
art has not one word about returning search results from an image search,
including price information” (App. Br. 15). This argument is likewise
unpersuasive. The fact that Crill’s image search database is for items to be
purchased or rented (e.g., real property) (see Fact 1) either implies, or at the
very least suggests, that price information is, or may be, also included in the
database.
Accordingly, we will sustain the Examiner’s rejection of claim 1; of
claims 2, 5-8, 11, 16, 18, and 20, which were not separately argued; and of
claims 9, 10, and 17 for the reasons set forth above.

II.
Claim 3 further sets forth that a parameter “associated with said image
information includes exclusion information to exclude from said search
results, and said server forms said search results which do not include said
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exclusion information.” Claims 13, 14, and 19 also recite “exclusion
information.”
Appellant argues that the Examiner is improperly reading this
limitation on Crill’s disclosed cropping function, and that Crill does not
disclose exclusion information. We agree with Appellant that the cropping
function doesn’t constitute including “exclusion information.” However,
Appellant’s further argument – that Crill fails to disclose the feature of
including exclusion information – is unpersuasive.
Crill discloses that image searches may be performed with Boolean
operators (Fact 3). While Crill’s only express example is a search using the
Boolean “AND” operator, we see nothing to indicate that only the “AND”
operator was envisioned. Rather, we understand Crill as disclosing that any
Boolean operator may be used.
Furthermore, the Boolean operators are of a relatively small and finite
set: AND, NAND (not AND), OR, NOR (not OR), XOR (exclusive OR),
and NOT. As such, we find Crill’s express disclosure – that Boolean
operators may be employed – to be synonymous with stating, or at the least
suggesting, that the NOT operator may be employed. That is, we find that
Crill either discloses or at least suggests including exclusion information.

III.
Claim 4 further sets forth that one of the image information setting
parameters “includes a selection of a more important image portion, which is
more important than other image portions, and said client forms search
results which are weighted according to said more important image portion.”
Method claim 12 sets forth similar language. Appellant argues that none of
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Crill, Hess, or Jain discloses selecting a more important image portion as
claimed (App. Br. 14).
This argument is not persuasive. As Appellant acknowledges (App.
Br. 13), Crill discloses a cropping function that takes information out of the
image. “Crill may crop the image, but the cropping of the image is not
entering exclusion information to exclude from the search results . . . ” (id.).
That is, when an image is cropped in order to perform an image search, the
retained portion of the cropped image must necessarily be present in a
candidate image, while the cropped-out portion doesn’t necessarily have to
be present in the candidate image. As such, the portion retained within
Crill’s cropped image reads on image information that is “more important
than other image portions” as recited in claim 4. That is, the client forms
search results which are weighted according to the retained portion of the
cropped image relative to the cropped-out portion.

IV.
Claim 15 further recites, “wherein said entering image information
includes entering an initial image, and entering size information associated
with said initial image, wherein said search results are based on said size
information.” Appellant argues that although Crill “simply teaches that a
user can draw a circle by first clicking on a drawing icon representing a
circle and then clicking and dragging the computer mouse to change its size”
(App. Br. 15; see also Fact 3), “[t]here is not one word about entering size
information, much less searching Crill’s database or any other database
based on such size information” (App. Br. 15).
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This argument is not persuasive. It seems implicit why one would
change the size of an object that has been selected to be searched: because
the size of that object is somehow relevant to the search. For example, the
size of that particular object in relation to a second object may be relevant.
Appellant has not provided any evidence or rationale for why else one would
actively undertake to change the size of an object prior to using it as part of
an image search. Accordingly, we find that Crill further discloses “entering
size information associated with said initial image, wherein said search
results are based on said size information” as required by claim 15.

DECISION
We sustain the Examiner’s rejections with respect to all pending
claims on appeal. Therefore, the Examiner’s decision rejecting claims 1-20
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)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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SCOTT C HARRIS
Law Office of Scott C Harris, Inc
P O BOX 1389
Rancho Santa Fe, CA 92067-1389