Ex Parte Weismuller et al

Patent Trial and Appeal Board

Mar 28, 2016

11764396 (P.T.A.B. Mar. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111764,396 06/18/2007
120226 7590 03/30/2016
Patterson & Sheridan - The Boeing Company
c/o Patterson & Sheridan, LLP
24 GREENWAY PLAZA, SUITE 1600
Houston, TX 77046
FIRST NAMED INVENTOR
Thomas P. Weismuller
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. CONFIRMATION NO.
7784-001062 5516
EXAMINER
BALI, VIKKRAM
ART UNIT PAPER NUMBER
2667
NOTIFICATION DATE DELIVERY MODE
03/30/2016 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):
P AIR_eofficeaction@pattersonsheridan.com
PatentAdmin@boeing.com
PSDocketing@pattersonsheridan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS P. WEIS MULLER and DA YID L. CABALLER01
Appeal2014-006941
Application 11/764,396
Technology Center 2600
Before CARLA M. KRIVAK, BRUCE R. WINSOR, and
MICHAEL M. BARRY, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 2, and 4-20, all pending claims of the application.2 We have
jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify The Boeing Company as the real party in interest.
Br. 2.
2 In this Opinion, we refer to the Appeal Brief ("Br.," filed Dec. 27, 2013),
the Examiner's Answer ("Ans.," mailed Mar. 27, 2014), the Final Office
Action ("Final Act.," mailed Oct. 16, 2013), and the original Specification
("Spec.," filed June 18, 2007).
Appeal2014-006941
Application 11/764,396
THE CLAIMED INVENTION
Appellants state "[t]he present disclosure relates ... particularly to a
system and method for optically detecting objects that is also able to
determine background clutter in an image in which the object is present, to
identify the background clutter, and to construct an image of the object being
tracked without the background clutter." Spec. ,-i 2.
Claim 1 is representative:
1. A method for optically detecting an object within a field of
view, where the field of view contains background clutter tending to
obscure visibility of the object, the method comprising:
optically tracking said object such that said object is motion
stabilized against said background clutter;
during said optical tracking, obtaining and storing a plurality of
frames of said field of view;
using said plurality of frames to perform a frame-to-frame
analysis of variances in intensities of pixels within said frames; and
using said variances in intensities of each of said pixels to
construct a variance image, wherein each said pixel is assigned an
intensity variance value, the pixel intensity variance value forming a
digital value representing a change in the intensity of a specific one of
the pixels over all the plurality of frames stored;
making a binary comparison of the intensity variance value of
each said pixel of said variance image to a predetermined threshold
intensity variance value; and
using the results of said binary comparisons of each said pixel
to said threshold intensity variance value to identify pixels
representing background clutter in said field of view, and to construct
a final image, the final image depicting the object.
Br. 15 (Claims App'x) (disputed claim terms highlighted).
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Appeal2014-006941
Application 11/764,396
THE REJECTIONS
Claims 1, 2, 4-8, 10-16, 19, and 20 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Tsuchikawa et al. (US 5,748,775; May 5, 1998)
("Tsuchikawa"). Final Act. 3-8.
Claims 9 and 17 stand rejected under 35 U.S.C. § 103(a) as obvious
over Tsuchikawa and Nelson et al. (US 6,052,485; Apr. 18, 2000)
("Nelson"). Final Act. 8-10.
Claim 18 stands rejected under 35 U.S.C. § 103(a) as obvious over
Tsuchikawa and Nagaya et al. (US 2002/0030739 Al; Mar. 14, 2002)
("Nagaya"). Final Act. 10-12.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments. We disagree with Appellants' conclusion of Examiner error. We
adopt as our own the findings and reasons set forth by the Examiner in the
Final Action and the Answer. See Ans. 12-13 and Final Act. 3-12. We
highlight the following for emphasis.
Appellants argue the Examiner errs in rejecting the independent
claims (1, 10, and 20) because "Tsuchikawa does not actually create and
assign an intensity variance value for each pixel of the images collected,"
Br. 9, rather
Tsuchikawa looks at the intensity value that is recorded for each pixel,
and then determines, from a histogram of intensity variations and a
binary comparison for that pixel over a plurality of images of the same
scene, if the intensity value needs to be updated. But this intensity
value that is assigned to the pixel is most definitely not an "intensity
variance value"; it is simply an intensity value.
Br. 10.
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Appeal2014-006941
Application 11/764,396
We disagree with Appellants' contention that Tsuchikawa uses "a
histogram of intensity variations." Tsuchikawa discloses histograms of pixel
intensity values (used to determine intensity variances). See, e.g.,
Tsuchikawa col. 5, 11. 53-62. Appellants do not persuade us of error in the
Examiner's finding that Tsuchikawa discloses creating and assigning
"intensity variance values" for pixels as required by the independent claims.
See Final Act. 3-4, 6-7; see also Ans. 12 (explaining "Tsuchikawa
explicitly discloses that for each of the sub regions ( ak), which is a singular
pixel, a respective corresponding variance (Gk) is obtained, wherein the
variance is a measure of the distribution of the intensity values for the pixel
during the time period to.") (citing Tsuchikawa col. 6, 11. 7-15 and 35--43).
Appellants also argue the Examiner errs because "there is no
'variance image' created and used by the [sic] Tsuchikawa during the
operation of his system from which determinations are made, based on the
intensity variance associated with each pixel, if the pixel is associated with
the object or the background." Br. 12. The Examiner explains that, in
Tsuchikawa,
each pixel ak will have an obtained variance value wherein that
variance represents the change/spread in intensity at that pixel during
the plurality of frames recorded during time period to. (Col. 2, lines
60-66 and Col. 14, lines 28-43)[.] This collection of variances (each
variance of each pixel ak) is analogous to the claimed variance image
since each pixel has a variance just as in a normal image each pixel
has a color/brightness/intensity value, and thus the collection of values
forms an image. . . . Furthermore, Tsuchikawa explicitly discloses the
pixel's variances being compared to a threshold variance to determine
a pixel belonging to a moving object or illumination changes caused
by the environment (Col. 5, lines 53-62 and Col. 6, lines 44-61).
Ans. 13.
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Appeal2014-006941
Application 11/764,396
It is of no import that Tsuchikawa' s disclosure3 may have significant
differences from Appellants' Specification and that Tsuchikawa does not
ipsissimis verb is discuss "variance images." The test is whether Tsuchikawa
discloses all claim elements, as arranged in the claim, to one of ordinary
skill. See, e.g., Verdegaal Bros., Inc. v. Union Oil. Co. of Cal., 814 F.2d
628, 631 (Fed. Cir. 1987); see also In re Bond, 910 F.2d 831, 832 (Fed. Cir.
1990) ("These elements must be arranged as in the claim under review, but
this is not an 'ipsissimis verbis' test.") (citations omitted); Kennametal, Inc.
v. Ingersoll Cutting Tool Co., 780 F.3d 1376, 1381 (Fed. Cir. 2015) ("a
reference can anticipate a claim even if it 'd[oes] not expressly spell out'
all the limitations arranged or combined as in the claim, if a person of skill
in the art, reading the reference, would 'at once envisage' the claimed
arrangement or combination.") (quoting In re Petering, 301 F.2d 676, 681
(CCPA 1962)). The Examiner's findings persuade us that Tsuchikawa
discloses the independent claims' "variance image" recitations.
We thus, on the record before us, sustain the rejection of claims 1, 10,
and 20. Appellants provide no substantive argument for patentability of
claims 2, 4-9, and 11-19 separate from the independent claims (see Br. 13-
14, and so we also sustain the rejections of these claims. See 37 C.F.R.
§ 41.37(c)(l)(iv); see also In re Lovin, 652 F.3d 1349, 1351 (Fed. Cir. 2011)
3 We note Appellants provide helpful explanations regarding Tsuchikawa's
disclosure. See, e.g., Br. 7-8. Arguments regarding unclaimed differences
or advantages of Appellants' Specification vis-a-vis Tsuchikawa, however,
are not commensurate with the scope of the claims and are of no import in
our analysis of the anticipation rejection of the independent claims. See,
e.g., Br. 12 (paragraph starting with "The Board will appreciate").
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Appeal2014-006941
Application 11/764,396
(sustaining the requirement for an appellant to make separate substantive
arguments for separate review on appeal of individual claims).
DECISION
For the above reasons, we affirm the Examiner's rejections of claims
1, 2, and 4-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
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