Ex Parte Sengupta

Patent Trial and Appeal Board

Sep 26, 2017

13920613 (P.T.A.B. Sep. 26, 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.
13/920,613 06/18/2013 Kuntal Sengupta IPV-030/7311272001 7263
23517 7590 09/28/2017
MORGAN, LEWIS & BOCKIUS LLP (BO)
1111 PENNSYLVANIA AVENUE, N.W.
WASHINGTON, DC 20004
EXAMINER
ITSKOVICH, MIKHAIL
ART UNIT PAPER NUMBER
2483
NOTIFICATION DATE DELIVERY MODE
09/28/2017 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):
kcatalano@morganlewis.com
patents @ morganlewis.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KUNTAL SENGUPTA
Appeal 2017-000684
Application 13/920,6131
Technology Center 2400
Before MARC S. HOFF, SCOTT B. HOWARD, and ALEX S. YAP,
Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—25, which constitute all of the claims pending in this application.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellant identifies Imprivata, Inc. as the real party in interest. App. Br. 2.
Appeal 2017-000684
Application 13/920,613
THE INVENTION
The disclosed and claimed invention is directed to “vision-based
authentication platforms for secure resources such as computer systems” in
which “false positives and/or false negatives in the detection of walk-away
events are reduced or eliminated by incorporating depth information into
tracking authenticated system operators.” Abstract.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A computer-implemented method for monitoring an
operator’s use of a secure system, the method comprising:
(a) defining a detection zone extending from an operator
terminal of the secure system to a depth boundary spaced apart
from the operator terminal and corresponding to a distance from
the operator terminal beyond which an operator cannot interact
with the secure system;
(b) using a depth-sensing camera system co-located with
the operator terminal to acquire a series of images of one or more
objects within the detection zone;
(c) using the depth-sensing camera to measure distances
from the operator terminal to the one or more objects in the series
of images;
(d) determining whether any of the one or more objects
within the detection zone is a face, and, if so, associating the face
with an operator; and
(e) following association of a detected face with the
operator, using the depth-sensing camera to track the distance
from the operator terminal to the detected face and, if the distance
extends beyond the depth boundary, signaling a walk-away
event.
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
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Fujimura US 2005/0058337 A1 Mar. 17, 2005
Sukegawa US 7,120,278 B2 Oct. 10,2006
Xiao, Qinghan and Yang, Xue Dong, “A Facial Presence Monitoring System
for Information Security,” Computational Intelligence in Biometrics:
Theory, Algorithms, and Applications, IEEE (2009) (hereinafter “Xiao”).
REJECTIONS
Claims 1—24 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Sukegawa in view of Fujimura. Final Act. 6—15.
Claim 25 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Sukegawa in view of Fujimura and Xiao. Final Act. 15.
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellant. We
are not persuaded by Appellant’s arguments regarding claims 1—4, 11, 12,
24, and 25. However, based on the current record, we are persuaded by
Appellant’s arguments that the Examiner erred in rejecting claims 5—10 and
13-23.
Claims 1—4, 11, 12, and 25
Appellant argues the Examiner erred in finding Sukegawa teaches the
“defining a detection zone extending from an operator terminal of the secure
system to a depth boundary spaced apart from the operator terminal and
corresponding to a distance from the operator terminal beyond which an
operator cannot interact with the secure system,” step as recited in claim 1.
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See App. Br. 7—9. More specifically, Appellant argues because “users so far
away as to preclude such interaction are simply irrelevant to Sukegawa,. . .
Sukegawa does not and cannot define a detection zone as required by the
instant claims.” Id. at 8. Appellant does not address Fujimura with regard to
this limitation. See id. at 7—9.
The Examiner initially finds that Sukegawa teaches the defining a
detection zone step. Final Act. 6 (citing Sukegawa 31:8—10, 55:3—10). The
Examiner further notes to see the “additional embodiments below.” Id.
When discussing the additional embodiment, the Examiner further
finds Fujimura teaches the boundary of the detection zone—the “depth
boundary spaced apart from the operator terminal and corresponding to a
distance from the operator terminal beyond which an operator cannot
interact with the secure system.” Id. at 8 (emphasis omitted) (citing
Fujimura 1 37, Fig. 1). Specifically, the Examiner finds Fujimura “ignores
the presence of any object 108 beyond the [Dmax] depth.” Id. at 8 (quoting
Fujimura 1 37); see also Ans. 8.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
test for obviousness is not whether the claimed invention is expressly
suggested in any one or all of the references, but whether the claimed subject
matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of those references. In re Keller, 642 F.2d 413,
425 (CCPA 1981).
Because Appellant’s argument is directed to Sukegawa alone and not
the combination of Sukegawa and Fujimura, we are not persuaded by
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Appellant’s argument that the Examiner erred. Instead, we agree with the
Examiner that the combination of Sukegawa and Fujimura, which detects
and photographs objects between Dmin and Dmax (Fujimura 1 37), teaches or
suggests the defining a detection zone step recited in claim 1.
Appellant further argues that the Examiner erred in finding Sukegawa
in combination with Fujimura teaches “using a depth-sensing camera ... to
acquire a series of images . . . [and] to measure distances from the operator
terminal. . .,” as recited in claim 1. App. Br. 9-11. Specifically, Appellant
argues that “Sukegawa’s system does not have the problems the Examiner
purports to solve via the incorporation of Fujimura’s camera system.” Id. at
9. Appellant further avers that “Sukegawa’s system would therefore not
utilize actual depth information even if it could measure it, and thus one of
skill in the art would not make the Examiner’s proposed combination.” Id.
at 11 (footnote omitted).
The Examiner finds that a person ordinary skill in the art would have
modified “Sukegawa to us[e] the depth-sensing camera to measure distances
from the operator terminal to the one or more objects in the series of images
as taught in Fujimura, in order to make the camera system less sensitive to
appearance variation and drift of its subject.” Final Act. 8.
The Supreme Court has determined the conclusion of obviousness can
be based on the interrelated teachings of multiple patents, the effects of
demands known to the design community or present in the marketplace, and
the background knowledge possessed by a person having ordinary skill in
the art. KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007); id. at 416
(“The combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.”).
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Furthermore, “the analysis need not seek out precise teachings directed to
the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ.” Id. at 418. In other words, “if a technique has been
used to improve one device, and a person of ordinary skill in the art would
recognize that it would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his or her skill.”
Id. at 417.
Furthermore, “[t]he test for obviousness is not whether the features of
a secondary reference may be bodily incorporated into the structure of the
primary reference.” Keller, 642 F.2d at 425. Instead, the relevant issue is
“what the combined teachings of the references would have suggested to
those of ordinary skill in the art.” Id. “Combining the teachings of
references does not involve an ability to combine their specific structures.”
In re Nievelt, 482 F.2d 965, 968 (CCPA 1973); see also In re Mouttet, 686
F.3d 1322, 1332 (Fed. Cir. 2012) (“It is well-established that a determination
of obviousness based on teachings from multiple references does not require
an actual, physical substitution of elements.” (citing In re Etter, 756 F.2d
852, 859 (Fed. Cir. 1985) (enbanc))).
Appellant’s arguments regarding the using steps are premised on
bodily incorporating the teachings of Fujimura into Sukegawa. However, as
discussed above, that is improper. The Examiner has identified an
advantage of the depth-sensing cameras taught by Fujimura and Appellant
has not persuasively argued why a person of ordinary skill in the art would
not have combined the teachings to improve the system taught by Sukegawa.
Accordingly, for the reasons given by the Examiner, which we hereby adopt,
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we agree that a person of ordinary skill in the art would have modified the
prior art in the way found by the Examiner.
Appellant also argues that the Examiner erred in finding Sukegawa
teaches “following association of a detected face with the operator, using the
depth-sensing camera to track the distance from the operator terminal to the
detected face” and determining “if the distance extends beyond the depth
boundary,” as recited in claim 1. App. Br. 11—12; Reply Br. 14.
Specifically, Appellant argues “Sukegawa performs no distance tracking and
indeed, as detailed above, specifically avoids the need for and use of
distance information.” App. Br. 11—12.
The Examiner relies on the combination of Sukegawa and Fujimura to
teach the following step recited in claim 1. Final Act. 7—8. Specifically, the
Examiner finds “Fujimura ‘ignores the presence of any object 108 beyond
the [Dmax] depth’” and maps that teaching to measuring the distance to
determine if it “extends beyond the depth boundary.” Final Act. 8 (emphasis
omitted).
We are not persuaded by the Appellant’s argument that the Examiner
erred. Although the Examiner relied on the combined teachings of
Sukegawa and Fujimura, Appellant’s arguments only address Sukegawa.
Because nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures, Merck, 800 F.2d at 1097, we are not persuaded by Appellant’s
arguments directed to Sukegawa alone that the Examiner erred.
Finally, Appellant argues the Examiner erred in finding Sukegawa
teaches “signaling a walk-away event,” as recited in claim 1. App. Br. 12—
13. Specifically, Appellant argues there is no teaching of signaling a walk-
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away event, which is defined in the Specification as “detecting] when she
exits the detection zone.” Id. at 12 (quoting Spec. 17).
Claim 1 recites a step that includes a conditional limitation. Claim 1
only recites an intended use—signaling a walk-away event—“if the distance
extends beyond the depth boundary.” See App. Br. 20 (Claims App’x)
(emphasis added). On the other hand, the claim does not require any
specific action if the distance detected does not extend beyond the depth
boundary. See id. We conclude that the broadest reasonable construction of
claim 1 covers two alternative methods, one method the detected distances
extends beyond the depth boundary, and another when it does not. See Ex
parte Schulhauser, No. 2013-007847, 2016 WL 6277792, *3-5 (PTAB
April 28, 2016) (precedential) (discussing construction of conditional
limitations in method claims). In light of the claim’s conditional language,
the prior art need only teach one of the two alternatives, not both. See id.
Because the claim does not require any specific action when the distance
does not extend beyond the depth boundary, the prior art necessarily teaches
that alternative. Therefore, we are not persuaded by Appellants’ arguments
that the Examiner erred. Id. (holding the claimed subject matter to be
obvious when only one of two conditional methods is taught by the prior
art).
Accordingly, we sustain the Examiner’s rejection of claim 1, along
with the rejections of dependent claims 2—4, 11, and 12, which are not
argued separately.
With respect to dependent claim 25, Appellant does not make any
separate arguments directed to the Examiner’s findings regarding the
additional cited reference, Xiao. “If an appellant fails to present arguments
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on a particular issue—or, more broadly, on a particular rejection—the Board
will not, as a general matter, unilaterally review those uncontested aspects of
the rejection.” Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). Accordingly, because we determine that the rejection of
claim 1 is not erroneous for the reasons discussed above, we sustain the
rejections of claim 25.
Claim 24
Claim 24 depends from claim 1 and recites that the “signaling the
walk-away event comprises issuing an alarm. App. Br. 25 (Claims App’x).
As discussed above, the signally the walk-away event describes what
happens when a conditional limitation is satisfied in one of the two
alternative claim constructions of method claim 1. However, dependent
claim 25 does not add any additional limitations to the alternative
construction in which the condition is not satisfied. Therefore, for the same
reason discussed above for claim 1, we are not persuaded by Appellant’s
argument2 that the Examiner erred.
Accordingly, we sustain the Examiner’s rejection of claim 24.
Claims 13—23
Appellant relies on the same arguments discussed above for claim 1 in
arguing the Examiner erred in rejecting independent claim 13. See App. Br.
7—13. With the exception for the discussion of the conditional step, we are
not persuaded that the Examiner erred for the same reasons as discussed
above for claim 1.
2 Appellant’s argument can be found at page 18 of the Appeal Brief.
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Unlike claim 1, claim 13 is not a method claim. Instead, claim 13
recites “[a]n access-control system for monitoring an operator's use of a
secure system” which includes “a computational facility including a
processor and associated memory, the memory storing instructions, for
execution by the processor” of various recited steps. App. Br. 22—23
(Claims App’x). Because claim 13 is not a method step, our claim
construction of the conditional limitation does not apply.
The Examiner concludes that “a walkaway event is a change in
recognition status based on the position or orientation of the passing object,
in this case based on distance from the terminal.” Final Act. 7. Applying
that claim construction, the Examiner finds Sukegawa teaches signaling a
walk-away event:
Sukegawa teaches this embodiment: “the door controller 113
keeps the door 202 closed to reject the entrance of the passerby
0.” Sukegawa, Column 36, lines 38-39. And further: “reducing
a lowering of the person recognition rate caused by the angle at
which a person is illuminated or a difference between the sizes
of face images” indicating a distance beyond a depth boundary.
See Sukegawa, Column 36, lines 61-64.
Id.
We are persuaded by Appellant’s arguments as the Examiner has not
identified sufficient evidence or provided sufficient explanation as to how
Sukegawa teaches “signaling,” as recited in claim 1. Neither of the cited
sections quoted by the Examiner contain any discussion of signaling a walk­
away event, let alone doing so after a tracked distance extends beyond a
depth boundary. Similarly, although Fujimura teaches not detecting an
object located beyond Dmax, the paragraph cited by the Examiner does not
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teach or suggest signaling when an object is no longer detected. See
Fujimura 137.
Accordingly, we agree with Appellant that the Examiner’s finding that
that the prior art teaches signaling a walk-away event if the distance extends
beyond the depth boundary is in error because it is not supported by a
preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed.
Cir. 1985) (Examiner’s burden of proving non-patentability is by a
preponderance of the evidence); see also In re Warner, 379 F.2d 1011, 1017
(CCPA 1967) (“The Patent Office has the initial duty of supplying the
factual basis for its rejection. It may not, because it may doubt that the
invention is patentable, resort to speculation, unfounded assumptions or
hindsight reconstruction to supply deficiencies in its factual basis.”).
Accordingly, we are constrained on this record to reverse the
Examiner’s rejection of claim 13, along with the rejections of dependent
claims 14—23.
Claim 5
Appellant argues the Examiner erred in finding that Sukegawa teaches
“identifying, among a plurality of faces present within the detection zone,
the face closest to the secure system based on distances to the plurality of
faces measured using the depth-sensing camera and computationally
associating that face with the operator,” as recited in claim 5. App. Br. 13—
14. According to Appellant, “Sukegawa is merely describing the positioning
of a camera of a face image registration system 260 ‘with which each user
registers his or her face image into a dictionary across a network such as the
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Internet.’” Id. at 13 (quoting Sukegawa 54:40-43). Appellant further argues
that Sukegawa is only directed to taking a single facial image at a time:
As Sukegawa himself details in the subsequent passage, “That is,
a user is guided by a manual or the like such that the geometrical
conditions of this face image are as equal as possible to those of
a face image photographed when the face image collating
apparatus is in operation.” Thus, Sukegawa reinforces the fact
that his system is specifically designed for the use by, and thus
the facial imaging of, only one user at a time.
Id. at 14 (quoting Sukegawa 55:6—10) (footnote omitted).
The Examiner finds Sukegawa teaches identifying the face closest to
the secure system. Final Act. 10 (citing Sukegawa 55:3—6).
We are persuaded by Appellant’s arguments as the Examiner has not
identified sufficient evidence or provided sufficient explanation as to how
Sukegawa teaches the additional limitation recited in dependent claim 5.
The cited section of Sukegawa states: “The relative distance to an image to
be photographed [depth], height, direction, and the like of the camera 261c
for obtaining a face image are set to be as close as possible to those of an
actual apparatus.” Sukegawa 55:3—6. The cited section does not suggest
choosing one face from multiple faces, let alone choosing the one closest to
a secure system. Accordingly, the Examiner’s finding is in error because it
is not supported by a preponderance of the evidence. See Caveney, 761 F.2d
at 674; see also Warner, 379 F.2d at 1017.
Therefore, we are constrained on this record to reverse the Examiner’s
rejection of claim 5.
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Claim 6
Appellant argues the Examiner erred in finding that Sukegawa teaches
“analyzing relative depth information measured with the depth-sensing
camera to discriminate between faces and two-dimensional images thereof,”
as recited in claim 6. App. Br. 14—15. According to Appellant,
While Sukegawa does disclose the possibility of authenticating a
user on the basis of biometric data (e.g., fingerprint or iris scan)
or additional passwords, such additional techniques clearly do
not involve or enable the discrimination between faces and two-
dimensional images thereof via analysis of relative depth
information as required by claims 6. . . .
Id. (citing Sukegawa 55:6—10) (footnote omitted).
The Examiner finds that Sukegawa teaches using biometrical
information, which the Examiner maps to the additional limitation recited in
claim 6. Final Act. 10 (citing Sukegawa 1:24—26, 16:36-40, 19:63—67).
We are persuaded by Appellant’s arguments as the Examiner has not
identified sufficient evidence or provided sufficient explanation as to how
Sukegawa teaches the additional limitation recited in dependent claim 6.
The cited section of Sukegawa teaches using “biometrical information such
as a fingerprint, retina, iris, palm shape, or face image.” Sukegawa 1:24—26;
see also id. at 16:36-40 (discussing the use of biometrical information),
19:63—67 (“Furthermore, an authenticator 2 performs an authentication
process (second authentication method) using biometrical information (face
image) and an authentication process (second authentication method) using
second authentication data (password).”). However, the cited sections do
not suggest any method—let alone based on relative depth information—to
determine the difference between a face and a two-dimensional image of a
face. Accordingly, the Examiner’s finding is in error because it is not
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supported by a preponderance of the evidence. See Caveney, 761 F.2d at
674; see also Warner, 379 F.2d at 1017.
Therefore, we are constrained on this record to reverse the Examiner’s
rejection of claim 6.
Claims 7—9
Appellant argues the Examiner erred in finding that Sukegawa teaches
“tracking a collection of trackable key features associated with the operator
between the successive images based, at least in part, on distances associated
therewith,” as recited in claim 7. App. Br. 15—16. According to Appellant,
Sukegawa does not teach or suggest any trackable features:
That is, once a user has been authenticated, Sukegawa’s system
has no need or ability to track anything associated with that user
in a successive image - and certainly not the user's distance from
the camera, since, again, the authenticated user is expected to
leave the vicinity of the camera. The user, in other words, has
already been authenticated, so the system's job is complete.
Id. at 16. Moreover, according to Appellant, the sections cited by the
Examiner, “merely explain that Sukegawa can authenticate a user in part by
utilizing other biometric information such as fingerprints or iris scans. . . .
Fingerprints and iris scans also do not involve depth measurements, so such
tracking, even if it could occur, could clearly not be based on distance.” Id.
The Examiner finds Sukegawa teaches using biometrical information,
which the Examiner maps to the additional limitation recited in claim 7.
Final Act. 11 (citing Sukegawa 9:16—20, 15:51—56.).
We are persuaded by Appellant’s arguments as the Examiner has not
identified sufficient evidence or provided sufficient explanation as to how
Sukegawa teaches the additional limitation recited in dependent claim 7.
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The cited section of Sukegawa teach authenticating using biometrical data.
However, the cited sections do not suggest any method tracking any
trackable key feature, let alone doing so based on distance. Accordingly, the
Examiner’s finding is in error because it is not supported by a preponderance
of the evidence. See Caveney, 761 F.2d at 674; see also Warner, 379 F.2d at
1017.
Therefore, we are constrained on this record to reverse the Examiner’s
rejection of claim 7, along with the rejection of claims 8 and 9, which
depend from claim 7.
Claim 10
Appellant argues the Examiner erred in finding that Sukegawa teaches
“periodically restarting the tracking based on at least one of re-detection of
the face or detection of a head-shoulder portion associated with the operator
. . .,” as recited in claim 7. App. Br. 16—17. According to Appellant,
Sukegawa does not teach or suggest restarting tracking:
Instead, Sukegawa’s system simply resets, and the next user
(even if s/he is the same one previously authenticated) would
need to perform the entire authentication process again. That is,
Sukegawa’s entire procedure restarts from the beginning; it is
incapable of restarting any single portion of the process, much
less the tracking procedure required by these claims.
Id. at 17. Moreover, according to Appellant, the section cited by the
Examiner, merely teaches that “Sukegawa’s authenticator acquires new
authentication data (e.g., the face image of a user) and compares it to the
dictionary data for authentication purposes and/or stores the new image in
the dictionary itself,” which is not restarting tracking. Id.
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The Examiner finds Sukegawa teaches “reacquires authentication data
by the authentication data input unit,” which the Examiner maps to the
additional limitation recited in claim 10. Final Act. 13 (quoting Sukegawa
2:38-44).
We are persuaded by Appellant’s arguments as the Examiner has not
identified sufficient evidence or provided sufficient explanation as to how
the reacquisition of authentication data taught by Sukegawa teaches or
suggests restarting tracking as recited in the claim. Accordingly, the
Examiner’s finding is in error because it is not supported by a preponderance
of the evidence. See Caveney, 761 F.2d at 674; see also Warner, 379 F.2d at
1017.
Therefore, we are constrained on this record to reverse the Examiner’s
rejection of claim 10.
DECISION
For the above reasons, we affirm the Examiner’s decisions rejecting
claims 1—4, 11, 12, 24, and 25.
For the above reasons, we reverse the Examiner’s decisions rejecting
claims 5—10 and 13—23.
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). See 37
C.F.R. §41.50(f).
AFFIRMED-IN-PART
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