Ex Parte Vink et al

Patent Trial and Appeal Board

Jul 26, 2017

14359187 (P.T.A.B. Jul. 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.
14/359,187 05/19/2014 Jelte Peter Vink 2011P01873WOUS 4278
24737 7590 07/28/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue SCHWARTZ, RAPHAEL M
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
2665
NOTIFICATION DATE DELIVERY MODE
07/28/2017 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):
marianne. fox @ philips, com
debbie.henn @philips .com
patti. demichele @ Philips, com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JELTE PETER VINK and
MARINUS BAS TIA AN VAN LEEUWEN
Appeal 2017-000571
Application 14/359,187
Technology Center 2600
Before JUSTIN BUSCH, CATHERINE SHIANG, and
JOHN D. HAMANN, Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge SHIANG.
Opinion Dissenting-in-Part filed by Administrative Patent Judge BUSCH.
SHIANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1—13 and 15, which are all the claims pending and
rejected in the application. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
Introduction
Appeal 2017-000571
Application 14/359,187
According to the Specification, the present invention relates to image
processing. See generally Spec. 1. Claim 15 is exemplary:
15. A non-transitory computer-readable storage medium
comprising instructions for causing a processor system to
perform a method of processing an image, comprising
detecting a region comprising an artifact in the image;
sending region data to a parameter determining unit;
determining a parameter, based on a portion of the image
excluding the detected region;
processing the image, using the derived parameter; and
visualizing both the image and the artifact excluded
during the processing of the image.
References and Rejections
Claims 1—8, 10-13, and 15 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Powell (Mark W. Powell et al., A
Methodology for Extracting Objective Color from Images, 34:5 IEEE
Transactions on Systems, Man, and Cybernetics-Part B:
Cybernetics 1964—78 (2004) (provided by Applicant)) and Xiong (US
2010/0111441 Al; May 6, 2010).
Claim 9 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Powell, Xiong, and Foracchia (Marco Foracchia et al., Luminosity and
contrast normalization in retinal images, 9 Medical Image Analysis
179—90 (2005) (provided by Applicant)).
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
contentions and the evidence of record. We concur with Appellants’
contention that the Examiner erred in finding Powell teaches “determining a
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parameter, based on a portion of the image excluding the detected region;
processing the image, using the derived parameter,” as recited in
independent claim 15 (emphasis added). See App. Br. 9—12; Reply Br. 7—9.
Appellants argue under the Examiner’s mapping, “Powell fails to
disclose or suggest[] ‘a parameter determining unit for determining a
parameter, based on a portion of the image excluding the detected regionf.]”’
App. Br. 11.1 In particular, Appellants contend “the Examiner fails to assert,
and Powell fails to disclose, that the process of determining a color intensity
value (the asserted ‘parameter determining’) is based on a portion of’ the
image excluding the detected region. App. Br. 11.
We begin by noting the claim does not require determining a
parameter based only on a portion of the image excluding the detected
region. Instead, the claim requires determining a parameter based on a
portion of the image excluding the detected region. As discussed below,
under the Examiner’s mapping, Powell teaches determining a parameter
before “a portion of the image excluding the detected region” even exists.
Therefore, the Examiner fails to show Powell teaches or suggests
“determining a parameter based on a portion of the image excluding the
detected region” (emphasis added).
We now turn to the Examiner’s mapping. The Examiner maps the
claimed “parameter” to Powell’s color intensity value, as the Examiner finds
1 In the initial summary section of the arguments, Appellants incorrectly
assert “Powell fails to disclose a system that detects regions comprising an
artifact in an image, and excludes the regions during determining of a
parameter.” App. Br. 9. However, as discussed above, in the main section
of the arguments, Appellants correctly argue Powell does not teach the
disputed limitation under the Examiner’s mapping. See App. Br. 11.
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“[cjolor correction is the process of determining a color intensity value (i.e.,
‘parameter determining’).” Final Act. 5.
Further, the Examiner maps the claimed “processing the image” to
Powell’s color correction, as the Examiner finds in Powell, “color correction
is performed on the basis of the parameter” with respect to the limitation
“processing the image, using the derived parameter.” Final Act. 6, 10; Ans.
4.
The Examiner cites excerpts from Powell’s page 1969 for teaching the
italicized limitation. See Final Act. 5—6; Ans. 3—4, 9. Powell is entitled “A
Methodology for Extracting Objective Color From Images.” Powell, Title.
In Section I entitled “Introduction,” Powell explains the methodology
involves sequential stages or steps:
Our strategy for color correction of images is based on
modeling the three major components of image formation:
illumination, reflectance, and responsivity. . . . We model
illumination by calibrating the positions of all of the
illumination sources that light the scene. We use range images
to measure the geometry of the scene and correct for surface
shading and brightness variation due to changing distance from
the illumination. We also use range information to identify
specular highlights, edges, and regions of coarse surface
texture. Finally, we model the position, orientation and
responsivity of the camera used for image capture.
Figure 1 illustrates the stages of the objective color
extraction methodology.
Powell, 1964 (emphases added).
Powell then proceeds to Section II entitled “Methodology,”
which includes detailed discussions of sequential steps (or stages) of
the methodology. In contrast, the Examiner’s interpretation
disregards the sequential nature of the steps, and mixes portions of the
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steps D and E to form a basis for the rejection (Final Act. 5—6; Ans.
3—4, 9).
In step D of the methodology, Powell explains:
We can use light source calibration to remove the
shading on surfaces in the image which get darker in intensity
as the angle between the surface normal and the optical axis
increases. To arrive at intrinsic color of surfaces, we pre
process the color image and adjust the intensity values based
on the light source direction. ... For every point in the image,
the intensity value is divided by cos(9). Dividing the intensity
values by this directionality factor results in an image that is
very close to how the surface would appear if the entire surface
were flat and oriented perpendicularly with respect to the
direction of illumination.
Powell, 1969 (emphases added) (“Step D”). We note Step D is not the
“Color Corrected Image[]” box of Powell’s Figure 1. Powell’s Figure 1 is a
“system overview diagram” showing stages of the methodology leading to
the end result of “Color Corrected Image”—not Step D. Powell, Fig. 1. As
shown above, Step D consists of a single paragraph that describes “us[ing]
light source calibration to remove the shading on surfaces in the image . . . .”
Powell, 1969. In contrast, the resulting “Color Corrected Image” of Figure 1
includes many features resulting from various stages of the color correction
methodology, such as a resulting feature associated with camera response.
See Powell, Fig. 1.
In a subsequent step E, Powell explains:
If we perform edge detection before we correct the color, we
can create a mask of pixel positions where we do not want to
correct color.
... [I] f we can determine where highlights are likely to
be found, we can mask them out when performing color
correction, and report them as not useful for identifying the
body reflectance properties of the underlying surface.
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Powell, 1969 (“Step E”).2
Therefore, contrary to the Examiner’s assertion (Final Act. 5—6; Ans.
3—4, 9), Powell determines the color intensity value in Step D—before
“creating] a mask of pixel positions where we do not want to correct color”
and “mask[ing] them out when performing color correction” in Step E. As a
result, the above Powell excerpts do not teach determining a parameter
(mapped to Powell’s color intensity value) based on a portion of the image
excluding the detected region, as required by claim 15. While the cited
Powell excerpts teach associating color correction with masking in Step E,
the Examiner cites Powell’s color correction for teaching the claimed
“processing the image”—a term separate and different from the claimed
“determining a parameter.”
Because the Examiner fails to provide sufficient evidence or
explanation to support the rejection, we respectfully disagree with the
2 Initially, in addition to Step E, the Examiner also cites Powell’s page 1974
for teaching “color correction is specifically not applied in certain regions,
such as at detected highlights” (Final Act. 6), but does not repeat that
assertion in the Answer (Ans. 3—4) or the Response to Arguments (Ans. 9).
Similar to our analysis regarding Step E, under the Examiner’s mapping,
“color correction is specifically not applied in certain regions” is insufficient
for showing Powell teaches determining a parameter (mapped to Powell’s
color intensity value) based on a portion of the image excluding the detected
region. The cited excerpts of Powell’s page 1974 are under Section III
entitled “Results”—many pages subsequent to Step D, which is under a
different Section II entitled “Methodology.” Therefore, similar to our
analysis about Step E, Powell determines the color intensity value in Step
D—before “color correction is specifically not applied in certain regions,
such as at detected highlights,” as the Examiner asserts (Final Act. 6). As a
result, the Examiner has not shown Powell teaches determining a parameter
(mapped to Powell’s color intensity value) based on a portion of the image
excluding the detected region, as required by claim 15.
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Minority and are constrained by the record to reverse the Examiner’s
rejection of claim 15.
Independent claim 1 also recites the disputed limitation “determining
a parameter, based on a portion of the image excluding the detected region.”
Claim 1. The Examiner applies similar mappings for claims 1 and 15. See
Final Act. 5—6, 10. Therefore, for similar reasons, we reverse the
Examiner’s rejection of independent claim 1.
We also reverse the Examiner’s rejection of dependent claims 2—13,
which depend from claim 1. Although the Examiner cites an additional
reference for rejecting claim 9, the Examiner has not shown the additional
reference overcomes the deficiency of Powell, as discussed above regarding
the rejection of claim 15.
We note Appellants raise additional arguments. Because the
identified issue is dispositive of the appeal, we do not reach the additional
arguments. See 37 C.F.R. § 41.1(a) (“Part 41 governs appeals and
interferences before the Patent Trial and Appeal Board.”); 37 C.F.R. §
41.1(b) (“The provisions of Part 41 shall be construed to secure the just,
speedy, and inexpensive resolution of every proceeding before the Board.”).
Further, we note while the Examiner and Appellants disagree on
whether certain claim terms of claims 1,2, and 7 should be construed as
means-plus-function claim terms, the Examiner does not find such claim
terms lack adequate corresponding disclosure in the Specification, See Final
Act. 3-4.3 And the Examiner has not entered any indefiniteness rejection
3 The Examiner finds—and Appellants do not dispute—the cited prior art
teaches those terms. See Final Act. 5—8.
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with respect to any claim. Because we are a reviewing body and do not
assume the Examiner’s role in examining cases, we decline to initiate an
examination of indefmiteness, which the Examiner has not raised and is not
in the record. As discussed above, because we reverse the Examiner’s
rejection of all pending claims based on the disputed claim limitation, we do
not reach additional issues, especially since such issues are not in the record.
DECISION
We reverse the Examiner’s decision rejecting claims 1—13 and 15.
REVERSED
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UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JELTE PETER VINK and
MARINUS BASTIAAN VAN LEEUWEN
Appeal 2017-000571
Application 14/359,187
Technology Center 2600
Before JUSTIN BUSCH, CATHERINE SHIANG, and
JOHN D. HAMANN, Administrative Patent Judges.
BUSCH, Administrative Patent Judge, dissenting-in-part.
I concur with my colleagues in the result reached with respect to
claims 1—13, but I disagree with the manner in which they reach that
determination. I also respectfully disagree with the result reached regarding
claim 15. Claim 1 requires various terms that the Examiner finds should be
interpreted as means-plus-function terms under 35 U.S.C. § 112, | 6.
Appellants assert no aspect of system claims 1—13 should be interpreted as
means plus function terms. That disagreement is one of the main disputes
between Appellants and the Examiner. See App. Br. 3—8; Ans. 11; Reply
Br. 2—6. Accordingly, in addition to explaining my disagreement with the
result reached regarding claim 15,1 write separately because I think it is
important to expressly construe the disputed terms. See Key Pharms. v.
Hereon Labs. Corp., 161 F.3d 709, 714 (Fed. Cir. 1998) (observing that “a
Appeal 2017-000571
Application 14/359,187
determination . . . obviousness, involves two steps. First is construing the
claim, a question of law for the court, followed by ... a comparison of the
construed claim to the prior art.”).
Notably, neither the Examiner nor Appellants offer any explicit
construction for the disputed terms. The majority declines to express its
position on whether the disputed terms invoke 35 U.S.C. § 112, | 6. As I
discuss in more detail below, I disagree with the majority regarding their
conclusion that the prior art fails to teach each of the limitations recited in
independent Beauregard claim 15 and commensurately recited in
independent claim 1. Therefore, I must construe the claims in order to apply
the asserted art.
Claim Construction
The terms in claim 1 that the Examiner asserts should be interpreted
as means-plus-fimction limitations are: region detector, artifact detector,
parameter determining unit, image processing module, and user interface.
Based on only the claim language, we know that a region detector comprises
an artifact detector. We also know the “region detector comprising an
artifact detector” is used “for detecting a region comprising an artifact in the
image.” Similarly, we know that a parameter determining unit is
“operatively coupled to the region detector to receive a representation of the
region comprising the artifact” and is used “for determining a parameter,
based on a portion of the image excluding the detected region.” Finally, we
know the image processing module is used “for processing the image, using
the derived parameter” and the user interface enables a user to see the image
and the excluded artifact during image processing.
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Accordingly, the only structural requirements of the elements recited
in claim 1 (i.e., requirements other than functions) are: the region detector
comprises the artifact detector and the parameter determining unit is
operatively coupled to the region detector. Appellants acknowledge the
artifact detector and region detector may be implemented completely in
software. Reply Br. 3^4. Thus, there is no structural requirement from the
recitation of the “region detector comprising an artifact detector.” The
operative coupling language merely indicates that the two components
operate together, but that limitation does not require any structure.
Specifically, in claim 1, the operatively coupled language merely requires
that the parameter determining unit is able to receive data—specifically “a
portion of the image excluding the detected region”—from the region
detector. Thus, the structure recited in the claim language is limited to the
terms identified by the Examiner: region detector, artifact detector,
parameter determining unit, image processing module, and a user interface.
Based on the record before us, I would determine that each of region
detector, artifact detector, parameter determining unit, and image processing
module, recited in claim 1, is a means-plus-function term, subject to
interpretation under 35U.S.C. § 112,16. The standard for determining
whether a limitation is a means-plus-fimction term is not based merely on
the presence of the word “means,” but, rather, “is [based on] whether the
words of the claim are understood by persons of ordinary skill in the art to
have a sufficiently definite meaning as the name for structure.” Williamson
v. Citrix Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015) (internal
citation omitted). Although there is a presumption that a limitation lacking
the word “means” is not subject to § 112, | 6, that presumption is overcome
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when it is “demonstrate[d] that the claim term fails to ‘recite sufficiently
definite structure’ or else recites ‘function without reciting sufficient
structure for performing that function. Id. at 1349. Notably, Williamson
overruled the holding from previous cases, including Inventio AG v.
ThyssenKrupp Elevator Ams. Corp., 649 F.3d 1350 (Fed. Cir. 2011), cited
by Appellants, that the presumption against finding a term invokes 35 U.S.C.
§ 112,16 is strong and not readily overcome. Williamson, 792 F.3d at
1348-49 (concluding “that such a heightened burden is unjustified and that
we should abandon characterizing as ‘strong’ the presumption that a
limitation lacking the word ‘means’ is not subject to § 112, para. 6”).
Appellants argue each of the disputed terms “when considered in light
of the specification and their commonly accepted meaning in the
technological art, provides sufficient structure since they limit the scope of
the claim.” App. Br. 6. Appellants assert the disputed terms would be
“sufficiently understood by persons of ordinary skill in the art, as having a
sufficiently definite meaning as the name for structure,” but provide little
support for that assertion. Id. at 4—6. Specifically, the only argument in the
Appeal Brief in support of their position is a quote from their Specification
describing the artifact detector. Id. at 6. That disclosure generally indicates
that artifact detectors may detect particular kinds of artifacts based on
models or object recognition techniques that “are known in the art per se”
and that “[sjuch artifact detectors are known in the art per se.” Id. (quoting
Spec. 7:27-8:3).
Similar to the disputed limitation in Williamson, the disputed detector,
unit, and module limitations (e.g., “a parameter determining unit for
determining a parameter, based on a portion of the image excluding the
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detected region”) are in a format consistent with means-plus-fimction
claiming, merely replacing the word “means” with the identified terms (e.g.,
“a parameter determining unit”). See Williamson, 792 F.3d at 1350. Much
like the term “module,” recited in the disputed limitation in Williamson, the
terms “unit,” “detector,” and “module” recited here are generic descriptions
for hardware or software to perform the specified functions. Also similar to
Williamson, the modifiers of the identified terms (e.g., “parameter
determining”) do not impart structure to the generic descriptors because
none of the modifiers describe a sufficiently definite structure. A mere
statement that something is known does not provide a sufficient description
of definite structure.
In their Reply, Appellants also argue “[t]he microscope itself is
sufficient structure to avoid means plus function characterization.” Reply
Br. 3. However, the microscope is not recited in claim 1. To the extent
Appellants argue the disclosure of a microscope would provide sufficient
information for an ordinarily skilled artisan to know what structure is
claimed by the identified terms, it is unclear for which particular term or
terms Appellants’ argument applies.
Appellants point to no other evidence supporting their assertion that
the identified terms recite sufficiently definite structure. Accordingly, I
would find that, because the claims lack a sufficiently definite structure,
there is insufficient evidence an ordinarily skilled artisan would understand
what structure is claimed by the recited region detector, artifact detector,
parameter determining unit, and image processing module, notwithstanding
the presumption that the terms are not means-plus-fimction terms.
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Therefore, I agree with the Examiner’s findings and conclusions that those
terms invoke 35 U.S.C. § 112,16.
A means-plus-fimction limitation “shall be construed to cover the
corresponding structure, material, or acts described in the specification and
equivalents thereof.” 35 U.S.C. § 112, | 6. Upon reviewing Appellants’
Specification, I find no disclosed corresponding structure for performing the
function in each of the terms determined to be means-plus-fimction terms,
subject to the provisions of 35 U.S.C. § 112, | 6: “a region detector
comprising an artifact detector for detecting a region comprising an artifact
in the image,” “a parameter determining unit for determining a parameter,
based on a portion of the image excluding the detected region,” and “an
image processing module for processing the image, using the derived
parameter.”
Rejections
Because I would construe the noted terms under 35 U.S.C. § 112,16,
and I find insufficient disclosure in the Specification of corresponding
structure of the recited means, I would not reach the merits of the rejection
of claims 1—13 under 35 U.S.C. § 103. Before a proper review of the
rejection under 35 U.S.C. § 103 can be performed, the subject matter
encompassed by the claims on appeal must be reasonably understood
without resort to speculation. Accordingly, I would reverse, pro forma, the
rejection of claims 1—13 under 35 U.S.C. § 103. See In re Steele, 305 F.2d
859, 862 (CCPA 1962) (A prior art rejection cannot be sustained if the
hypothetical person of ordinary skill in the art would have to make
speculative assumptions concerning the meaning of claim language.); see
also In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970) (“If no reasonably
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definite meaning can be ascribed to certain terms in the claim, the subject
matter does not become obvious—the claim becomes indefinite.”).
With respect to independent claim 15,1 would affirm the Examiner’s
rejection. My primary disagreement with the majority is regarding what
Powell would teach or suggest to a person having ordinary skill in the art.
The majority finds Powell fails to teach or suggest the determining step and,
accordingly, reverses the rejection of claim 15. I disagree that Powell fails
to teach the determining step of claim 15.
I understand the Examiner to find Powell’s disclosure in the Abstract,
and further described in Section III.D. (“Detecting Where Correction Should
not be Applied”), regarding identifying regions where color correction
should not be applied, teaches or suggests the recited “detecting a region
comprising an artifact in the image.” Final Act. 5, 10. There appears to be
no dispute regarding that limitation. I understand the Examiner to find that
Powell’s disclosure of determining a color intensity value as part of the
overall color correction process teaches or suggests the recited “determining
a parameter.” Id. at 5 (“determining a color intensity value (i.e., ‘parameter
determining’)”), 10. There also appears to be no dispute regarding that
portion of the determining limitation. See Maj. Op. at 4 (stating “[t]he
Examiner maps the claimed ‘parameter’ to Powell’s color intensity value”).
Finally, I understand the Examiner to find that Powell’s disclosure of color
correction, and specifically adjusting the color intensity value to the newly
determined value. Id. at 6 (“color correction is performed on the basis of the
parameter” (emphasis added)), 10. Again, there appears to be no dispute
regarding that limitation. See Maj. Op. at 4 (“the Examiner finds in Powell,
‘color correction is performed on the basis of the parameter’”).
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Relevant to claim 15, Appellants argue only that “the Examiner fails
to assert, and Powell fails to disclose a system that detects regions
comprising an artifact in an image, and excludes the regions during
determining of a parameter.” App. Br. 9.1 First, I would affirm the
Examiner’s rejection because Appellants’ argument is not commensurate
with the scope of claim 15. See In re Self 671 F.2d 1344, 1348 (CCPA
1982) (limitations not appearing in the claims cannot be relied upon for
patentability), because claim 15 does not recite that the regions detected as
containing artifacts are excluded during the determining step. Specifically,
the determining step requires only that the parameter is determined “based
on a portion of the image excluding the detected region.” Claim 15 does not
prohibit basing the determination on other factors, including portions of the
image including artifacts (the detected region or otherwise). In my view,
that alone is sufficient basis to affirm because Appellants’ have not
demonstrated error in the Examiner’s findings and conclusions.
Moreover, as discussed further below, I also agree with the Examiner
that Powell teaches or suggests determining the color intensity value based
only “on a portion of the image excluding the detected region.” In
particular, I agree with the Examiner that Powell teaches or suggests
determining the color intensity value of only those pixels for which Powell
determines color correction should be applied—i.e., the portion of the image
excluding the detected region.
1 Appellants also argue “the Examiner fails to show a mechanism that
detects regions comprising an artifact that is coupled to a mechanism that
determines a parameter.” App. Br. 9. Claim 15, however, is a method that
does not recite mechanisms or couplings.
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Appellants argue “the Examiner fails to assert, and Powell fails to
disclose, that the process of determining a color intensity value (the asserted
‘parameter determining’) is based on a portion of the detected regions where
color correction should not be applied (the asserted ‘detected region’).” Id.
at 11. Appellants argue the Examiner instead finds Powell’s color correction
process, which the Examiner maps to the recited image processing, is based
on a portion of the detected regions where color correction should not be
applied. Id. Appellants do not appear to dispute the finding that Powell’s
color correction process is “based on a portion of the image excluding the
detected region.” See id.
In response, the Examiner points to Powell’s disclosure regarding the
identification and masking of artifacts prior to correcting the color,
specifically pointing to the example of specular highlights and edges. Final
Act. 5—6 (citing Powell §§ II.E, II.F); Ans. 10 (citing Powell § II.E). The
Examiner further explains that Powell’s color correction process “applies
only to the remainder of the image not detected as artifacts” and “includes
determining a color intensity value and determining the cosine of the angle
0 for each pixel,” both of which teach determining parameters “for use in
future color correction and are applied only in areas not detected as
artifacts.” Ans. 10 (citing Powell § D).
Appellants emphasize in their Reply that “[t]he Examiner asserts that
regions of the image are excluded from color correction during image
processing, but not that regions of the image are excluded during the
parameter-determining process.” Reply 8. Appellants also argue Powell’s
masking “is only performed during color correction, which the Examiner
claims is the recited ‘image processing,”’ and that the Examiner’s finding
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that the determined parameter is used in future color correction is not
supported by Powell’s disclosure. Id. at 9.
I disagree with Appellants’ characterizations of the Examiner’s
mappings, the recited claim language, and Powell’s disclosure. I agree with
Appellants that the Examiner finds Powell’s color correction process teaches
or suggests “processing the image, using the derived parameter.” However,
I read the Examiner’s rejection as finding the portion of Powell’s color
correction process that determines the color intensity value teaches the
determining step, whereas at least the portion of the color correction process
that adjusts the color intensity value for each pixel based on the determined
parameter (the determined color intensity value)—i.e., changing the value
for pixel(s) to the newly determined value(s) teaches or suggests the
processing step. Final Act. 6, 10; Ans. 10.
To the extent Appellants are arguing Powell’s color correction adjusts
only those pixels that were not masked and does not adjust those pixels in
the detected regions (containing artifacts), the argument is unpersuasive.
Adjusting pixels outside the masked region is sufficient to teach or suggest
the processing step because the claim does not require that the recited
“determined parameter” influences or changes pixels inside the detected
region (outside the mask). Powell takes an original image, determines a
parameter for non-masked pixels, adjusts the color intensity value of certain
pixels and not of other pixels, and produces a new image.
I also read the Examiner’s rejection as finding that the determining of
the new color intensity value for certain pixels teaches or suggests
“determining a parameter,” and that Powell teaches determining the new
color intensity value only for those pixels that are not masked. Final Act. 5,
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10; Ans. 10. I disagree with Appellants’ assertions that the Examiner finds
only the processing step is “based on a portion of the image excluding the
detected region” and that Powell does not support a finding that the
determining step is “based on a portion of the image excluding the detected
region.”
Specifically, as the Examiner found, Powell discloses identifying
specular highlight and edge regions using various techniques, such as
thresholding, sudden normal changes, and range imaging. Ans. 10; Powell
§ II.E. Powell uses those identified edge and highlight regions to detect
pixels where such artifacts are likely to be found and generate a mask to
exclude those detected regions when performing color correction. Powell
§ II.E. Section II.E of Powell is labeled “Detecting Where Color Correction
Should not be Applied,” and explains “[t]here are many instances where . . .
the surface normal cannot be estimated well,” rendering “[a]n underlying
assumption in our color correction strategy’'' incorrect, such that “over­
correction or under-correction in the color” would result if color correction
were applied. Powell § II.E (emphases added). As the Examiner found,
“[cjolor correction is the process of determining a color intensity value (i.e.,
‘parameter determining’) and adjusting the measured intensity value.” App.
Br. 11 (emphasis added). Thus, the Examiner finds Powell’s color
correction process includes both parameter determining and image
processing.
Although the Examiner at times refers generically to “color
correction” as teaching or suggesting the processing step, the Examiner
explicitly found the color intensity value teaches the determined parameter
and “color correction is performed on the basis of the parameter.” Final Act.
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5—6. Thus, in order for color correction to be performed on the basis of the
parameter, it is evident the Examiner finds adjusting the color intensity
value (using the determined color intensity value) portion of Powell’s color
correction process teaches or suggests the processing step. Furthermore,
because Powell teaches determining the color intensity value only for those
pixels not masked, I agree with the Examiner’s finding that Powell’s
determining of the color intensity value is “based on a portion of the image
excluding the detected region.”
It appears my findings regarding what Powell would have taught or
suggested to an ordinarily skilled artisan differ from the majority’s findings
primarily because I see nothing in Powell that states, or even implies, a
correlation between the order in which Powell describes aspects of its
“objective color extraction methodology” in Section II and an order or
“sequence of steps” in which the described processes must be performed.2 I
find Powell teaches that the processes disclosed in Section II.E, including
specular highlight detection, logically must occur prior to color correction,
disclosed in Section II.D, because any other reading would result in Powell
teaching determining where not to apply color correction after color
correction was already performed.
Moreover, I find the specific portions of Powell discussed below
support such a conclusion. Figure 1 of Powell indicates that the highlight
detection stage described in Section II.E must occur prior to the color
correction stage described in Section II.D. In particular, Figure 1 indicates
21 note that the methodology is described as a methodology for “objective
color extraction,” of which “color correction” appears to be the final stage.
Powell § I, Fig. 1.
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(via arrows) a specific order of performance for certain stages. Most
importantly, Figure 1 indicates that color correction, which is at the bottom
of Figure 1 and described in Section II.D, must occur after every other stage
depicted, including “Highlight Detection,” described in Section II.E.
The color corrected image box at the bottom of Figure 1 indicates
color correction is not performed at certain places/pixels within the image,
but does not include the process of determining those pixels. Rather,
Powell’s description of its methodology provides further explanation of each
of the stages’ contribution to identifying the pixels at which color correction
is not applied. Powel § II. Thus, Figure 1 shows the color correction stage
as the last stage (i.e., all other stages have an arrow pointing directly, or
indirectly from that stage to the color corrected image stage) because the
prior stages determine and/or calculate information needed to do the color
correction and/or identify pixels that should not be color corrected. Id.
Furthermore, Powell explicitly states: “Lastly, we correct for nonlinear
camera response and off-white illumination color.” Powell § I.
Additionally, for the reasons discussed above, I find Sections I, II.D, and
II.E of Powell, when read together, teach or suggest performing highlight
and edge detection prior to the color correction stage of Powell’s
methodology.
For the reasons discussed herein, I find Powell teaches or suggests
masking regions prior to color correction, which includes both determining
the new color intensity value for unmasked pixels (mapped to the
determining step) and adjusting the color intensity value of those pixels
(mapped to the processing step). Finding Powell’s masking applies only to
the adjusting step would mean calculating a new color intensity value for a
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pixel that would not be adjusted. Thus, Powell would have at least
suggested to a person having ordinary skill in the art determining the color
intensity value (“determining a parameter”) only for (“based on”) the
unmasked pixels (“a portion of the image excluding the detected region”) at
least to eliminate calculations of color values that will be discarded.
Accordingly, I disagree with the majority that Powell does not teach
“determining a parameter, based on a portion of the image excluding the
detected region,” and I respectfully dissent from the reversal of the
Examiner’s rejection of claim 15.
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