Ex Parte Aas et al

Board of Patent Appeals and Interferences

Jul 13, 2009

10193030 (B.P.A.I. Jul. 13, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ERIC F. AAS, LARRY S. CHAPMAN,
CHARLES E. SCHINNER, ROBERT CAZIER,
and THEODORE B. ZIEMKOWSKI
_____________

Appeal 2009-001581
Application 10/193,030
Technology Center 2600
____________

Decided:1 July 13, 2009
____________

Before KENNETH W. HAIRSTON, MAHSHID D. SAADAT, and
JOHN A. JEFFERY, Administrative Patent Judges.

HAIRSTON, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1, 3 to 8, 10, 11, 13 to 17, 19, 21 to 23, and 25 to 29.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We will sustain the rejection.
Appellants’ invention relates to digital cameras and is concerned with
a face recognition method which evaluates images and faces, and then
requests the name of a person when (i) the face does not match any face in a
database, or (ii) the face has been identified in a predetermined number of
images.3
Claims 1 and 7, reproduced below, are representative of the subject
matter on appeal:
1. A digital camera comprising:
a photo-sensor configured to capture images;
a means for accessing a face database, the face database used for
storing the names and the face identification information for people;
a processor configured to evaluate captured images to locate faces;
the processor configured to match the faces, located by the processor,
to the face identification information stored in the face database;
a means for communicating with a user;

2 Claims 2, 12, 18, 20, 24, and 30 have been canceled. Claim 9 is objected
to as being dependent upon a rejected base claim, but allowable if rewritten
in independent form to include all of the limitations of the base claim and
any intervening claims.
3 See Abs.; Spec. 1-2; Figs. 2, 3; claims 1, 7.
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the camera configured to request a name of a person, using the
communication means, when a face of the person in an image does not
match any faces currently stored in the face database; and
where the name of the person is added to the meta-data of the image
containing the person when the user identifies the person.
7. A digital camera comprising:
a photo-sensor configured to capture images;
access to a face database, the face database for storing the
names and the face identification information for people;
a processor configured to evaluate captured images to locate faces;
the processor configured to match the faces, located by the processor,
to the face identification information stored in the face database;
the processor configured to add the face identification information to
the face database when a face of a person does not match any faces currently
stored in the face database;
a means for communicating with a user; and
the camera configured to request a name of a person, using the
communication means, after a face has been identified in a predetermined
number of images, said predetermined number being greater than one.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Cooper US 6,606,398 B2 Aug. 12, 2003
Berstis US 6,721,001 B1 Apr. 13, 2004
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The Examiner rejected claims 1, 3 to 8, 10, 11, 13 to 17, 19, 21 to 23,
and 25 to 29 under 35 U.S.C. § 103(a) based upon the teachings of Berstis
and Cooper.
Appellants present substantive arguments on the merits only with
regard to independent claims 1 and 7. Appellants present nominal
arguments with regard to claims 3 to 6, 11, 13, 17, 19, 21 to 23, 25, and 29,
stating that these claims stand or fall with claim 1 (see App. Br. 16-18); and,
similarly, present nominal arguments as to claims 8, 10, 14 to 16, and 26 to
28, stating that these claims stand or fall with claim 7 (see App. Br. 22).
Regarding claim 1, Appellants argue that neither Berstis nor Cooper,
individually or in combination, discloses or suggests adding the name of a
person to meta-data of an image as recited (App. Br. 12-14). Appellants
contend that Berstis and Cooper are different from claim 1, which requires
that a person’s name (i.e., the meta-data) is added to the same file that
contains the image data (see generally App. Br. 14-15). Appellants also
argue that the ordinary artisan would understand the term “meta-data of the
image” in the last clause of claim 1 to mean data contained in the same file
as the image itself, based on a reading of page 3, lines 20 to 21, of the
Specification (App. Br. 15-16; Reply Br. 2-4).
Regarding claim 7, Appellants argue that Cooper fails to disclose or
suggest requesting a name after a face has been identified in a predetermined
number of images, where the predetermined number is greater than one (see
generally App. Br. 18-22; Reply Br. 4-6).

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ISSUES
(i) Based on Appellants’ arguments, the first issue before us is: Have
Appellants demonstrated that the Examiner erred in determining that the
combination of Berstis and Cooper teaches or suggests “the name of the
person is added to the meta-data of the image” as recited in representative
claim 1, when the term “meta-data of the image” is properly construed in
light of the specification?
(ii) Based on Appellants’ arguments, the second issue before us is:
Have Appellants demonstrated that the Examiner erred in determining that
Cooper teaches or suggests requesting a name of a person “after a face has
been identified in a predetermined number of images, said predetermined
number being greater than one,” as recited in representative claim 7?

FINDINGS OF FACT
Appellants’ Disclosure
1. As indicated supra, Appellants describe and claim a digital camera
(Fig. 1) having a photo-sensor 102 and a processor 110/112 for
performing a face recognition process (Fig. 2). The processor
110/112 (i) matches faces based on face identification information
stored in a database 108/116/120, (ii) prompts a user to input a name
or meta-data associated with the face when a face does not match
known faces in the database based on face identification information,
and (iii) adds a person’s name to meta-data of the image containing
the face when identified by a user (see Abs.; Spec. 4:4-5:22; claim 1).
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The processor 110/112 may also request a person’s name after a face
has been identified in a predetermined number of images (see Abs.;
Spec. 5:3-1; Figs. 1, 3; claim 7).
2. Appellants’ Specification describes the use of meta-data and the type
of data that meta-data can include at page 3, line 20, through page 4,
line 3. Appellants’ originally filed Specification provides the
following description:
An image file typically contains more information
than just the raw image data. This additional data is
typically called meta-data. Many image files also
contain the time and date the file was created. Many
image files also contain information about the image, for
example the resolution of the image, the exposure
settings used to capture the image, whether the image has
been compressed, and if so how much compression was
used. Some cameras contain global positioning systems
(GPS, not shown) and include, in the image file, the
location the file was created. There are many other types
of information that can be included in an image file, for
example the names of the people captured in the image
may be stored as meta-data.
(Spec. 3:20-4:3 (emphasis added)).
Berstis
3. Berstis describes a digital camera system 100 (Fig. 1) and a digital
camera 102 (Fig. 2) having an image sensor 204 and a processor 208
for matching and storing textual annotations with images (Abs.; col. 3,
l. 53 to col. 5, l. 10).
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4. The annotation may include “the names of persons depicted” (col. 5, l.
5), and the user may also enter name information (col. 5, ll. 2-10).
5. Berstis shows (Figs. 4, 5) and describes two different embodiments
for the format of data in a memory 214 for storing image data and
textual annotation data (i.e., name or meta-data) (col. 5, ll. 11-42).
Berstis also discloses that “FIGS. 4 and 5 are only two examples of
data storage formats that may be used” and that “[a]ny other format
that maintains the association among the image data [and the meta-
data or textual data]” may be used (col. 5, ll. 43-45). “For example, a
well-known file system may be used” (col. 5, ll. 46-47).
Cooper
6. Cooper describes an automatic face recognition system (Figs. 1, 2)
having a face database 112, face recognition unit 108, face locator
110, and a processor 102, which uses face identification parameters
206 to match faces in images 200 to known faces 2041-N in the
database 112 (Abs.). The facial images and information associated
with the facial images (i.e., meta-data) are stored in the database (col.
1, ll. 49-59). Unrecognized faces cause the system to query the user
for additional data about the faces in the image, such as a person’s
name (col. 1, ll. 60-62).
7. Cooper additionally describes a face recognition process (Figs. 2, 3a,
3b) run by processor 102 and a face recognition module 108 (see
generally col. 2, ll. 17-55 (describing the process)).
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8. The process includes adding identification parameters 206 (i.e., face
identification information) to a face database 112 when a face does
not match previously stored faces 2041-N (col. 2, ll. 33-36). The
process also includes requesting the name of a person after a face has
been identified in multiple images (col. 2, ll. 38-43).

PRINCIPLES OF LAW
“During examination, ‘claims . . . are to be given their broadest
reasonable interpretation consistent with the specification, and . . . claim
language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art.’” In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997). “[T]he specification ‘is always highly relevant to the
claim construction analysis. Usually, it is dispositive; it is the single best
guide to the meaning of a disputed term.’” Phillips v. AWH Corp., 415 F.3d
1303, 1315 (Fed. Cir. 2005) (citations omitted).
The Examiner bears the initial burden of presenting a prima facie case
of obviousness, and Appellants have the burden of presenting a rebuttal to
the prima facie case. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
Appellants have the burden on appeal to the Board to demonstrate error in
the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir.
2006).
Routine optimization of scientific variables by ordinarily skilled
artisans that produce predictable variations are likely (i) the product not of
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innovation but of ordinary skill and common sense, and (ii) barred by 35
U.S.C. § 103. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417, 420
(2007); Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1371 (Fed. Cir. 2007).

ANALYSIS
Pursuant to our authority under 37 C.F.R. § 41.37(c)(1)(vii), we select
claim 1 as representative of the group consisting of claims 1, 3 to 6, 11, 13,
17, 19, 21 to 23, 25, and 29; and we select claim 7 as representative of the
group consisting of claims 7, 8, 10, 14 to 16, and 26 to 28. We will sustain
the Examiner’s rejection with respect to representative claim 1 (i.e., the first
issue), and representative claim 7 (i.e., the second issue), for the reasons that
follow.
We agree with the Examiner’s findings of fact and conclusions of
obviousness with respect to claims 1, 3 to 8, 10, 11, 13 to 17, 19, 21 to 23,
and 25 to 29 (Ans. 3-12), and adopt them as our own, along with some
amplification of the Examiner’s explanation of the teachings of Berstis (see
FF 3-5) and Cooper (see FF 6-8).
First Issue: Claims 1, 3 to 6, 11, 13, 17, 19, 21 to 23, 25, and 29
Representative claim 1 recites a digital camera which can request the
name of a person whose face appears in an image when the face does not
match faces from a database, “where the name of the person is added to the
meta-data of the image containing the person” (claim 1). The term “the
meta-data of the image” appearing in claim 1 on appeal has no antecedent
basis and occurs for the first time in the first line of the last clause of claim 1
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(see claim 1). Meta-data is described by Appellants in the Specification as
data about image data such as: a person’s name, time and date, and other
information about an image (FF 2).
The term “meta-data” is described at page 3 of the Specification as
“typically” being “additional data” (FF 2). Appellants’ Specification states
at page 4, “for example the names of the people captured in the image may
be stored as meta-data” (FF 2 (emphasis added)). Accordingly, one of
ordinary skill in the art would understand from a reading of the Specification
that other file storage formats are possible, and other types of data may be
meta-data, since the arrangement discussed at pages 3 to 4 of the
Specification is only one example and only describes a typical arrangement
(see FF 2).
The word “file” does not appear in claim 1. Broadly interpreted,
claim 1 only requires that a name of a person be added to meta-data of an
image, not that the meta-data exist in a file or have a particular file format
such as being in the same file as the image data. See Am. Acad. of Sci. Tech
Ctr., 367 F.3d at 1364. The phrase the meta-data of the image broadly
encompasses any data about the image, and does not require by definition
that the meta-data be stored in a particular location (see Ans. 11-12). Id.
Appellants’ arguments that one of skill in the art would understand the
meaning of the term “meta-data of the image” to mean “data contained in the
image file itself” (Reply Br. 4) or “data stored in the same file as the image
data itself” (App. Br. 16) are unconvincing. A proper interpretation of claim
1, giving the claim its broadest reasonable interpretation consistent with the
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Specification as understood by one of ordinary skill in the art, Phillips, 415
F.3d at 1315, has to rely on the plain meaning of “meta-data” since this term
is not specifically defined in the originally filed Specification and claim 1.
We agree with the Examiner that the ordinary meaning is “data that
describes other data” (Ans. 11). Appellants are free to be their own
lexicographer, and to choose the words to be used in the claims. However,
Appellants have chosen to broaden the scope of the claims by omitting the
word “file” from the language of claim 1 (see claim 1). Thus, the particular
file arrangement (e.g., that the meta-data be stored in a file together with the
image data in the same file) described in the Specification (FF 2) is not
required by the claims.
Thus, we find no error in the Examiner’s rejection relying on Berstis
as teaching or suggesting a digital camera capable of adding the name of a
person to the meta-data of an image, at least to the extent this feature is
broadly set forth in claim 1. See Am. Acad. of Sci. Tech Ctr., 367 F.3d at
1364.
Second Issue: Claims 7, 8, 10, 14 to 16, and 26 to 28
Turning to the obviousness rejection of representative claim 7, we
find that Appellants have not persuasively rebutted the Examiner’s prima
facie case of obviousness for this claim (see Ans. 3-5, 12-13), but merely
contend that Cooper fails to teach requesting a name after a face has been
identified in a predetermined number of images (App. Br. 20-22; Reply Br.
4-6). Appellants state that they generally agree with the Examiner’s
interpretation that “it is possible for the Cooper device to request a name for
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a face after the face has been identified in more than one image” (Reply Br.
5). Appellants then argue that “[c]laim 7 clearly specifies that the number of
images required to trigger the request for a name is determined before the
face identification process occurs” (Reply Br. 6 (emphasis added)), and that
Cooper does not use such a predetermined number (Reply Br. 6).
Claim 7 merely recites that the name of a person is requested “after a
face has been identified in a predetermined number of images, said
predetermined number being greater than one” (claim 7). Claim 7 does not
contain the word “trigger” or even the general concept of “triggering.”
Broadly interpreted, claim 7 only requires that a name be requested after a
face has been identified a predetermined number of times. See Am. Acad. of
Sci. Tech Ctr., 367 F.3d at 1364. Claim 7 does not require the details of
page 5 of the Specification of incrementing a count each time face
identification information is detected in an image. Nor does claim 7 require
that the predetermined number be input by a user or established in advance
as argued by Appellants (Reply Br. 6).4
Cooper teaches requesting the name of a person after a face has been
identified in multiple images (FF 8). Although Cooper requests a name each
time a face is identified, Cooper’s operation of requesting a name after a face
has been identified in multiple images is broadly encompassed by claim 7,
which does not specify that a name be requested after some facial
identifications and not after others. For example, in the instance a face is

4 Compare claim 7 with claim 9 (claim 9 provides that a user may set the
predetermined number in advance).
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identified in three images in Cooper, then three requests are made and a face
has been identified a predetermined number of times (e.g., three). In any
event, the selection of an optimum value for the predetermined number
would have been obvious to the ordinarily skilled artisan.5
Taken in this light, Cooper teaches or would have suggested the last
limitation of claim 7 (i.e., requesting a name of a person after a face has
been identified in a predetermined number of images), to the extent broadly
claimed (see FF 6-8). Therefore, we will sustain the rejection of
representative claim 7.
Summary
Appellants have not convincingly demonstrated that the Examiner
erred in rejecting claims 1 and 7 under 35 U.S.C. § 103(a) as being
unpatentable over Berstis and Cooper. Kahn, 441 F.3d at 985-86. For all
the foregoing reasons, we will sustain the Examiner’s obviousness rejection
of representative claims 1 and 7. Since Appellants have chosen to let claims
3 to 6, 11, 13, 17, 19, 21 to 23, 25, and 29 stand or fall with claim 1 (see
App. Br. 16-18), and to let claims 8, 10, 14 to 16, and 26 to 28 stand or fall
with claim 7 (see App. Br. 22), we will sustain the Examiner’s rejection of
claims 3 to 6, 8, 10, 11, 13 to 17, 19, 21 to 23, and 25 to 29 for similar
reasons.

5 Routine optimization of scientific variables by ordinarily skilled artisans
that produce predictable variations are likely (i) the product not of
innovation but of ordinary skill and common sense, and (ii) barred by 35
U.S.C. § 103. See KSR, 550 U.S. at 417, 420; Pfizer, 480 F.3d at 1371.
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CONCLUSIONS OF LAW
Appellants have not shown that the Examiner erred in determining
that the combination of Berstis and Cooper teaches or suggests “the name of
the person is added to the meta-data of the image” as recited in
representative claim 1, when the term “meta-data of the image” is properly
construed in light of the specification.
Appellants have not shown that the Examiner erred in determining
that Cooper teaches or suggests requesting a name of a person “after a face
has been identified in a predetermined number of images, said
predetermined number being greater than one,” as recited in representative
claim 7.

ORDER
The decision of the Examiner to reject claims 1, 3 to 8, 10, 11, 13 to
17, 19, 21 to 23, and 25 to 29 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)(iv).

AFFIRMED

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