Ex Parte Scheibe

Patent Trial and Appeal Board

Oct 18, 2016

11836117 (P.T.A.B. Oct. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111836, 117 08/08/2007
25235 7590 10/20/2016
HOGAN LOVELLS US LLP - Colorado Springs
TWO NORTH CASCADE A VENUE
SUITE 1300
COLORADO SPRINGS, CO 80903
FIRST NAMED INVENTOR
Paul 0. Scheibe
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.
M-16380-4D US
(70383.14)
CONFIRMATION NO.
2633
EXAMINER
EDWARDS, CAROLYN R
ART UNIT PAPER NUMBER
2625
NOTIFICATION DATE DELIVERY MODE
10/20/2016 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):
patentcoloradospring@hoganlovells.com
HLUSDocketing@hoganlovells.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte PAUL 0. SCHEIBE
Appeal 2015-007531
Application 11/836, 117
Technology Center 2600
Before JOHN A. JEFFERY, BRADLEY W. BAUMEISTER, and
DENISE M. POTHIER, Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-5, 7, and 8. App. Br. 1. 1 Claim 6 has been canceled.
See id. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm.
1 Throughout this opinion, we refer to (1) the Final Rejection (Final Act.)
mailed September 25, 2014, (2) the Appeal Brief (App. Br.) filed March 16,
2015, (3) the Examiner's Answer (Ans.) mailed July 16, 2015, and (4) the
Reply Brief (Reply Br.) filed August 17, 2015.
Appeal 2015-007531
Application 11/836, 117
fNVENTION
Appellant's invention inserts a diagnostic image in an image sequence
in a way that avoids the observer's notice. Abstract; Spec. 18: 15-17. The
disclosed embodiments use a diagnostic image for calibrating pixel color
and luminance or for determining ambient light reflected from the display.
Id. at 3:29-31. To make the diagnostic image less noticeable in the image
sequence, one embodiment places the diagnostic image adjacent in time with
images having similar luminosity. Id. at 18: 15-17. Claim 1, reproduced
below with our emphasis, is illustrative:
1. A method for displaying a single image for diagnostic purpose
without interrupting an observer's perception of the display of a
sequence of images, comprising:
displaying a sequence of images on a graphical display in
which each pixel comprises a plurality of light emitting diode
(LED) strings;
interrupting displaying of the sequence images by
displaying a selected image not within the sequence of images
for a time period not longer than 30 milliseconds, the selected
image being displayed by selectively activating predetermined
LED strings, wherein the selected image has a luminosity
substantially the same as the luminosity in an image of the
sequence of images displayed immediately prior to the selected
image;
detecting a fault condition in the LED strings of the
graphical display using light sensors positioned to receive light
emitted from the selectively activated LED strings of the
graphical display and ambient light reflected from the graphical
display; and
resuming display of the sequence of images immediately
after displaying the selected image.
The Examiner relies on the following as evidence of unpatentability:
Oshima US 6,570,559 B 1 May 27, 2003
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Application 11/836, 117
Song
Boldt
US 2005/0068268 Al
US 2006/0227085 Al
Mar. 31, 2005
Oct. 12, 2006
Applicant's Admitted Prior Art (AAPA) states that (1) LEDs are typically
arranged in small groups, each group providing a picture element (pixel) in
the image being displayed and (2) each pixel is made up of three kinds of
LEDs, each kind consisting of a single or a serially connected string of
LEDs. Spec. 2:7-35.
THE REJECTION
Claims 1-5, 7, and 8 are rejected under 35 U.S.C. § 103(a) over Boldt,
Oshima, Song, and AAP A. Final Act. 4--8.
CONTENTIONS
Appellant argues that Song does not interrupt an image sequence in
the manner recited. See App. Br. 3-8; see also Reply Br. 4--7. In particular,
Appellant contends Song's interruption does not use an "unrelated image of
a luminosity similar to that of a preceding image." i~\'.l.pp. Br. 5; see also
Reply Br. 4--5 (asserting that the recited, selected image is an "unrelated
image.") According to Appellant, Song inserts an image identical to an
adjacent image, or alternatively, an image equal to the mean value of the
adjacent images to reduce flicker and false-contour noise. App. Br. 5---6
( citing Song i-f 87). Appellant contends that if Oshima were combined with
Song, the resulting selected image would be within the sequence of images,
contrary to claim l's limitations. App. Br. 7-8; see also Reply Br. 5---6
( arguing that the combination lacks a selected image not in the sequence of
image).
Appellant also asserts contour noise in Song would increase if Song
were modified to use an image of "similar luminosity" rather than one that is
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Application 11/836, 117
within the image sequence. App. Br. 6; Reply Br. 6. In fact, modifying the
image, according to Appellant, would render Song unsuitable for its
intended purpose of reducing contour noise and other artifacts. App. Br.
6-7; Reply Br. 6. Appellant contends that Song achieves its purpose when
displaying an image that is identical or nearly identical to a previous image,
not by simply displaying an image that has "substantially the same
luminosity," as recited. Reply Br. 6.
Appellant further argues that Oshima has no need for the modification
proposed by the Examiner because Oshima's adjustment image is not
noticed by the viewer. Reply Br. 6 (citing Oshima 11: 52-61 ).
ISSUE
Under§ 103, has the Examiner erred in rejecting claim 1 by finding
that Boldt, Oshima, Song, and AAP A collectively would have taught or
suggested the recited interrupting?
ANALYSIS
We review the appealed rejection for error based upon the issues
identified by Appellant, and in light of the arguments and evidence
produced. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). The Examiner's reliance on Boldt is undisputed, as is the
comb inability of Oshima, Song, and the AAP A with Boldt. See App. Br. 3-
8; see also Reply Br. 4--7. Rather, Appellant only disputes the Examiner's
findings and conclusions regarding Oshima and Song-in particular,
whether Oshima and Song teach or suggest interrupting an image sequence,
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as recited in claim 1. Accordingly, we confine our discussion mainly to
Oshima and Song.
In concluding that claim 1 would have been obvious over Boldt,
Oshima, Song, and AAP A, the Examiner relies on Song to teach a selected
image having the recited luminosity. Final Act. 6; Ans. 3. The Examiner
finds that the mean-value frame in Song's Figure 5 corresponds to an image
having the recited luminosity. Id. Moreover, the Examiner further finds that
Song's mean-value frame is not in the sequence of images because the
mean-value frame is an average of the first and second frames. Id. (citing
Song i-fi-170-84). 2
We find no error in the Examiner's rejection of claim 1 based on
Song's Figure 5. In particular, Appellant's argument that Song's inserted
image is not an "unrelated image" of a preceding image (App. Br. 5;
Reply Br. 4--5) is not commensurate with the scope of claim 1. Neither the
language of claim 1 nor the general description in the Specification (see,
e.g., Spec.18: 15-18, cited in App. Br. 2) requires that the selected image be
"unrelated" to the other images in the sequence. Specifically, claim 1 recites
that the selected image is "not within the sequence of images." But this
language does not exclude images that are related, yet not within the
sequence. In fact, and as claimed, Appellant admits that the selected image
2 Notably, the Examiner cites different images in Song to address the recited
"selected image." Compare Final Act. 6 (discussing Figure 5 as well as
i-fi-1 86-87) with Ans. 3 (discussing both Figures 5 and 7). Appellant
addresses these different images/embodiments in the briefs. See, e.g.,
App. Br. 5---6 (discussing inserting an image that is (1) identical to the
preceding or succeeding image or (2) "is the mean value of' the preceding
and succeeding images); Reply Br. 5. We discuss the Examiner's position
of Song's Figure 5, not reaching the merits of the Figure 7 embodiment.
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has a relationship to or has "luminosity substantially the same as the
luminosity of a preceding image" in an image sequence. App. Br. 4. That
is, the selected image is at least related to a preceding image of the image
sequence, because the selected image and the preceding image have
substantially the same luminosity.
Apart from this claimed "luminosity" feature, Appellant does not
persuasively demonstrate the Specification imposes a limitation regarding
the relationship, or lack of a relationship for that matter, of the recited
selected image with the recited image sequence. See App. Br. 3-8; see also
Reply Br. 4--7. At best, regarding the claimed "luminosity" feature,
Appellant directs our attention to page 18, lines 15-18 of the Specification.
App. Br. 2. In the cited passage, the Specification explains that the
invention places a diagnostic image in an image sequence. Spec. 18: 15-17.
To avoid being noticed by an observer, this diagnostic image has a "similar
luminosity" to adjacent images in the sequence. Id. Although this example
informs our construction, Appellant has not defined the recited "selected
image" such that the image is limited to a particular degree of similarity with
the others.
Given this understanding of the recited "selected image" in claim 1,
the Examiner's finding that Song's mean image is the selected image is
reasonable. See Ans. 3 (citing Song Fig. 5). Specifically, Song inserts
frames in an image sequence to drive the display at a higher "pseudo"
frequency. Song i-f 70, cited in Ans. 3. These inserted frames correspond to
a mean value of two other frames. Song i-f 70; see also Song i-fi-186-87, cited
in Final Act. 6. The two other frames are adjacent in the original sequence.
See id. i-f 71 (explaining that the two frames are the nth and (n+ 1 )th frames).
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In other words, this new, inserted frame corresponds to the mean value of
the immediately preceding and succeeding images. See id.; accord
App. Br. 5 (describing "an image ... that is the mean value of the
immediately preceding and the immediately succeeding image, as the
Examiner already conceded above.")
Appellant has not argued persuasively that Song's mean-value frame
(e.g., Song i-f 70, Fig. 5) appears in Song's image sequence. See App. Br.
7-8. Rather, Song states that this frame is "new" and determined from the
adjacent frames. Song i-f 70. So contrary to Appellant's argument
(App. Br. 6-8; Reply Br. 5), the Examiner reasonably concludes that Song's
"new" mean-value frame, like the recited selected image, is not within the
sequence of images (see Ans. 3), as recited in claim 1.
Appellant, likewise, has not persuasively rebutted the Examiner's
finding that Song's mean-value frame does have substantially the same
luminosity as the image displayed immediately before the mean-value
frame. See id. Specifically, Appellant argues that Song achieves its
intended purpose when displaying an image that is identical or nearly
identical to a previous image. Reply Br. 6. But to the extent that Song's
mean-value frame is "nearly identical" to the other images as Appellant
admits, Appellant does not explain persuasively how such an image does not
also have "substantially the same luminosity," as recited. Id.
Song's mean-value frame is calculated from the adjacent frames.
Song. i-f 71, cited in Ans. 3. In the particular example shown in Figure 5,
these adjacent frames depict the same subject captured at a similar angle.
See Song, Fig. 5. On this record, the Examiner's conclusion that Song's
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inserted image has "substantially the same luminosity," as recited (Ans. 3),
is reasonable.
Appellant's argument that modifying Song to include the selected
image in claim 1 would render it unsuitable for its intended purpose
(App. Br. 6-7; Reply Br. 5) does not address the Examiner's position
squarely. For instance, the Examiner does not propose modifying Song so
that it has the recited luminosity. See Ans. 3. Rather, the Examiner finds
that Song's inserted, mean-value frame, when combined with the Boldt's
and Oshima's teachings, has the recited luminosity absent any further
modification. See id.; Final Act. 7.
Moreover, Appellant's argument that Oshima has no need for the
proposed modification (Reply Br. 6) is unpersuasive. The Examiner reasons
that Song, in the proposed combination with Boldt and Oshima, reduces
flicker and false contour noise. See, e.g., Ans. 4. Regarding this point, we
are unpersuaded that Oshima could not also benefit from this feature. In
particular, Appellant's characterization that Oshima's viewer would not
notice the adjustment image is not explicitly stated in the cited passage from
Oshima. Reply Br. 6 (citing Oshima 11 :52-61 ). Oshima only states that the
adjustment image is not an "obstacle" to the viewer and the resulting display
quality is "good." Oshima 11 :52-61. As such, one skilled in the art would
have recognized that adding Song's averaged image, as the Examiner
concludes, would have assisted in improving Oshima's image and its goal of
eliminating obstacles to vision by reducing flicker and false contour noise.
See Ans. 4; Final Act. 7. Accordingly, the Examiner did not err in
combining Oshima's and Song's teachings with Boldt.
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For the foregoing reasons, Appellant has not persuaded us of error in
rejecting independent claim 1 and claims 2-5, 7, and 8 not separately argued
with particularity. See App. Br. 8; Reply Br. 7.
CONCLUSION
The Examiner did not err in rejecting claims 1-5, 7, and 8 under
§ 103.
The Examiner's decision rejecting claims 1-5, 7, and 8 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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