Ex Parte Baker et al

Patent Trial and Appeal Board

Jan 29, 2018

13164783 (P.T.A.B. Jan. 29, 2018)

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.
13/164,783 06/21/2011 Nicholas Robert Baker 332688-US-NP 2478
69316 7590 01/31/2018
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
EXAMINER
BRUMFIELD, SHANIKA M
ART UNIT PAPER NUMBER
2487
NOTIFICATION DATE DELIVERY MODE
01/31/2018 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):
u sdocket @ micro soft .com
chriochs @microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NICHOLAS ROBERT BAKER, JOHN ALLEN TARDIF,
RAGHU MURTHI, and STEVEN BATHICHE
Appeal 2017-001519
Application 13/164,783
Technology Center 2400
Before JASON V. MORGAN, BRUCE R. WINSOR, and
PHILLIP A. BENNETT, Administrative Patent Judges.
WINSOR, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the final rejection
of claims 1—18, 21, and 22, which constitute all the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b). Claims 19 and 20
are cancelled. App. Br. 2.
We affirm-in-part and institute a new ground of rejection within the
provisions of 37 C.F.R. § 41.50(b).
1 Microsoft Technology Licensing, LLC, is identified by Appellants as the
real party in interest. App. Br. 2.
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Application 13/164,783
RELATED PROCEEDINGS
Application 13/164,785 (Attorney Docket 332699.01; filed June 21,
2011; the “’785 Appl.”), is related to the present application (Attorney
Docket 332688.01). See Spec. 11; ’785 Appl. Spec. 11. The ’785
Application is the subject of Appeal 2017-001222 (Notice of Appeal filed
December 28, 2015; the “’222 Appeal”). Although not identified as such by
Appellants (see App Br. 2), we conclude the ’222 Appeal is related to the
present appeal. The ’222 Appeal is decided concurrently with the present
appeal.
STATEMENT OF THE CASE
Modem multimedia environments generally employ a
variety of sensor or data inputs. For example, a gaming
environment may include a red-green-blue (RGB) camera to
capture an image of a player in a gaming scene and a depth
camera to detect the distance between the depth camera and
various points in the gaming scene, including points on the
player. In this manner, the multimedia environment can
determine and interpret characteristics in the captured scene.
Spec. 12. Appellants’ disclosed invention relates to conserving the
bandwidth and power consumed by such capture devices. Spec. 14.
Claim 1, which is illustrative, reads as follows:
1. A method comprising:
determining, using a thermal sensor device communicatively
connected to a computing device, a region of interest as a
narrowed subset of a field of view of a capture device,
the capture device being in wireless communication with
the computing device, based on signals captured within
the field of view, predetermined parameters for the
signals captured, a plurality of signal types associated
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with the signals, corresponding fields of view associated
with the signal types, and an object of interest disposed
within the region of interest, the field of view comprising
the corresponding fields of view; and
directing, using the thermal sensor device, a capture device to
adjust operational parameters of the capture device to
conserve at least one resource by limiting capture to the
determined region of interest.
The Examiner relies on the following prior art in rejecting the claims:
Rechsteiner et al. US 6,246,321 B1 June 12, 2001
Ahiska et al. US 2006/0056056 Al Mar. 16, 2006
Wang et al. US 2007/0076947 Al Apr. 5, 2007
Morin US 2009/0225189 Al Sept. 10, 2009
Tsai US 2010/0238344 Al Sept. 23,2010
Singh et al. US 2012/0044226 Al Feb. 23, 2012
Claims 1, 6, 9, 14, 17, and 22 stand rejected under 35 U.S.C. § 103(a)2
as being unpatentable over Morin and Rechsteiner et al. (hereinafter
“Rechsteiner”). See Final Act. 5—11.
Claims 2, 3, 8, 10, 11, 16, and 18 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Morin, Rechsteiner, and Wang et al.
(hereinafter “Wang”). See Final Act. 11—20.
Claims 4, 5, 12, and 13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Morin, Rechsteiner, and Singh et al. (hereinafter
“Singh”). See Final Act. 20-25
2 All rejections are under the provisions of 35 U.S.C. in effect prior to the
effective date of the Feahy-Smith America Invents Act of 2011 (pre-AIA).
Final Act 2.
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Claims 7 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Morin, Rechsteiner, and Ahiska et al. (hereinafter
“Ahiska”). See Final Act. 25—28.
Claim 21 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Morin, Rechsteiner, and Tsai. See Final Act. 28—30.
Rather than repeat the arguments here, we refer to the Briefs (“App.
Br.” filed Feb. 3, 2016; “Reply Br.” filed Nov. 7, 2016 ) for the positions of
Appellants; the Final Office Action (“Final Act.” mailed Sept. 3, 2015) and
Examiner’s Answer (“Ans.” mailed Sept. 6, 2016) for the reasoning,
findings, and conclusions of the Examiner; and the Specification (“Spec.”
filed June 21, 2011, as amended Dec. 2, 2013). Only those arguments
actually made by Appellants have been considered in this decision.
Arguments that Appellants did not make in the Briefs have not been
considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv).
ISSUES
The issues presented by Appellants’ arguments are as follows:
Does the Examiner err in finding the combination of Morin and
Rechsteiner teaches or suggests “directing, using [a] thermal sensor device, a
capture device to adjust operational parameters of the capture device to
conserve at least one resource by limiting capture to the determined region
of interest” (the “directing limitation”), as recited in claim 1 and similarly
recited in claims 9 and 17?
Does the Examiner err in finding the combination of Morin,
Rechsteiner, and Ahiska teaches or suggests the “at least one conserved
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resource include[es] . . . bandwidth of a communication link,” as recited in
claim 7?
ANALYSIS
Claim 1
The Examiner finds that Morin teaches determining a region of
interest and directing a capture device to adjust operational parameters of the
capture device to conserve at least one resource. Final Act 5—6 (citing
Morin || 18—20, 25—26, Fig. 3). The Examiner then finds that Morin does
not teach using a thermal device to identity the region of interest and direct
the capture device to adjust operational parameters. Final Act. 6—7. The
Examiner finds that Rechsteiner, read in view of Morin, teaches using a
thermal sensor to identify a region of interest and “directing, using [a]
thermal sensor device, a capture device to adjust operational parameters of
the capture device to conserve at least one resource by limiting capture to the
determined region of interest,” as recited in claim 1. Final Act. 7—8 (citing
Rechsteiner col. 2,11. 49-57, col. 3,11. 41—44, col. 4,1. 63—col. 5,1. 21).
Appellants contend that Rechsteiner does not disclose the directing
limitation of claim 1. See generally App. Br. 8—10; Reply Br. 2—3.
However, “the test [for obviousness] is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.” In re
Keller, 642 F.2d 413, 425 (CCPA 1981). “[0]ne cannot show non­
obviousness by attacking references individually where, as here, the
rejections are based on combinations of references.” Id. at 426. Appellants’
argument is unpersuasive because it does not address the entirety of the
rejection articulated by the Examiner. In particular, other than stating that
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the Examiner concedes that Morin does not disclose the directing limitation
(App. Br. 9 (citing Final Act. 6—7)) and making the conclusory assertion that
“Morin and Rechsteiner do not disclose, alone or in any sort of hypothetical
combination, the limited capture feature recited in the independent claims”
(App. Br. 9), Appellants do not address the Examiner’s findings regarding
Morin as they relate to the directing limitation. We note that in quoting the
Examiner’s findings, Appellants omit the entirety of the Examiner’s findings
regarding Morin’s applicability to the directing limitation. See App. Br. 7.
In particular, the Examiner finds Morin teaches
adjusting operational parameters of the capture device to
conserve at least one resource based on the determined region
of interest (e.g. par. 18—20: describing that based on the
determination of at least one region of interest, operational
parameters of the imaging sensor system are adjusted to
conserve power consumption, and amount of processing
completed by the image processor, wherein the conservation of
both power and the amount of processing completed by the
image processor is the equivalent of conserving at least one
resource; see also par. 26: describing that once the regions of
interest are identified, resolution, exposure, and/or gain of each
region may be independently adjusted).
Final Act. 6 (bold facing omitted). In other words, the Examiner finds, and
Appellants do not appear to dispute, that Morin teaches “directing ... a
capture device to adjust operational parameters of the capture device to
conserve at least one resource by limiting capture to the determined region
of interest,” as recited in claim 1. Thus, when read in light of the
Examiner’s findings regarding Morin, the Examiner’s purported concession
is that Morin does not explicitly teach using a thermal sensor device to
perform the directing step. See Final Act. 6—7.
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The Examiner finds that Rechsteiner teaches that a region of interest
is determined by a thermal sensor device. Final Act. 7—8 (citing
Rechsteiner, col. 3,11. 41—44, col. 4,1. 63—col. 5.1. 21). The Examiner
further finds that Rechsteiner further teaches using the thermal sensor device
to adjust the operation parameters of a capture device to conserve a resource.
Final Act. 8 (citing Rechsteiner, col. 2,11. 40-57, col. 4,1. 63—col. 5.1. 21).
The Examiner concludes it would have been obvious to incorporate
Rechsteiner’s thermal sensor into Morin’s system. Final Act. 8 (citing
Rechsteiner, col. 5,11. 6—11). We agree with the Examiner.
Appellants contend that “[njowhere does Rechsteiner disclose that the
image-providing sensor limits its capture to [a] region of interest” but rather
Rechsteiner teaches that “generation of the image, by the evaluation section,
is limited to the region of interest.” App. Br. 9 (citing Rechsteiner, Abstract,
col. 1,1. 60-col. 2,1. 23, col. 3,11. 31^10, col. 4,11. 21-25, 63-64, col. 5,11.
6—11). Appellants argue “Rechsteiner does not disclose the thermal-image
sensor directing the image-providing sensor to do anything.” Id.
Appellants’ argument is not commensurate with the scope of the claim or the
Examiner’s rejection. The claim does not recite that the image-providing
sensor is directed by the thermal-image sensor. Rather it recites adjusting
the operational parameters of a capture device 400, which Appellants
Specification discloses includes a thermal-image sensor 410, image­
providing sensors 406, 408, and electronics separate from the sensors in the
form of a sensor manager 402. See Spec. 58—65, Fig. 4. Appellants’
claim 3, which depends from claim 1 and is, therefore, encompassed by
claim 1, describes that the adjusting of operational parameters of the capture
device may comprise “processing less than the captured raw data, the
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processed data being identified based on the determined region of interest.”
See also Spec. 163. Therefore, we conclude that Appellants claim does not
preclude using electronics separate from the sensors, such as Rechsteiner’s
evaluation section, to perform the adjusting portion of the directing
limitation. Put another way, the aggregate of Rechsteiner’s evaluation
section and sensors falls within the broadest reasonable interpretation of a
“capture device” and limiting the output of Rechsteiner’s evaluation section
to data inside the region of interest falls within the broadest reasonable
interpretation of “limiting capture [of the capture device] to the determined
region of interest.” Thus, it is irrelevant that “Rechsteiner records entire
images and then reads out only a region of interest.” App. Br. 10; see also
Reply Br. 2—3.
Furthermore, as discussed above, Appellants do not substantively
address the Examiner’s reliance on Morin, in combination with Rechsteiner,
to teach “adjusting] operational parameters of the capture device ... by
limiting capture to the determined region of interest,” as recited in the
directing limitation of claim 1.
Appellant has not shown error in the rejection of claim 1.
Accordingly, we sustain the rejections over various combinations of Morin,
Rechsteiner, Wang, Singh, Ahiska, and Tsai of (1) claim 1; (2) independent
claims 9 and 17, which were argued together with claim 1 (see generally
App. Br. 7—10); and (3) claims 2—6, 8, 10-16, 18, 21, and 22, which
variously depend from claims 1, 9 and 17 and were not separately argued
with particularity, other than contending that Wang, Singh, Ahiska, and Tsai
do not cure the alleged deficiencies Morin and Rechsteiner.
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Claim 7
Rejection over Morin, Rechsteiner, and Ahiska
The Examiner finds Morin teaches a zoom operation within the field
of interest, i.e., that Morin teaches “narrowing the field of view based on a
location and size of the determined region of interest,” as recited in claim 7.
Final Act, 26 (citing Morin 126). The Examiner relies on Ahiska to teach
that by narrowing the field of view “one or more of bandwidth of a
communication link, processor computation cycles per captured frame, and
power consumed by the capture device” (claim 7) is conserved. Final Act.
26—27 (citing Ahiska Tflf 14, 16, 82, Fig. 5). The Examiner explains that “it
[was] known to those of ordinary skill in the art at the time of the invention
that transmitting only the region of interest necessarily conserves bandwidth
of a communication link.” Final Act. 27 (emphasis omitted).
Appellants contend as follows:
[A]s understood by one of ordinary skill, zooming to the region
of interest would not reduce the amount of data available in the
region of interest. Instead, zooming would increase the amount
of data available within the region of interest. Thus,
transmitting only the region of interest would not necessarily
conserve bandwidth of a communication link.
App. Br. 14.
We agree with Appellants for the reasons stated by Appellants. The
Examiner appears to be relying on the optical zoom capability of Ahiska’s
slave pan-tilt-zoom camera. See Ahiska Fig. 5. We agree with Appellants
that the skilled person would have understood that the output of a camera
that zooms optically requires approximately the same bandwidth before,
during, and after zooming.
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Accordingly, we do not sustain the rejection of claim 7 as articulated
by the Examiner.
New Ground of Rejection over Morin and Rechsteiner
Claims 7 is rejected on a new ground of rejection under 35 U.S.C.
§ 103(a) as unpatentable over Morin and Rechsteiner. We adopt the
Examiner’s findings regarding claim 1 (Final Act. 5—8), from which claim 7
depends, and the Examiner’s undisputed findings applying Morin to claim 7
(Final Act. 27). In addition to the passages cited by the Examiner (Ahiska
1114, 16, 82, Fig. 5) Ahiska at least suggests digital zooming (Ahiska
1120), which the skilled person would have recognized could be
implemented in such a way as to reduce the utilization of bandwidth.
That said, however, Morin teaches that by “narrowing the field of
view based on a location and size of the determined region of interest”
(claim 7; see Morin H 18—20, 26) various resources are conserved (Morin
119). A bus transporting data falls within the broadest reasonable
interpretation of a “communication link.” Morin teaches that “reducing the
rate at which pixel data is transported on bus 130 [as taught by Morin]
reduces bus bandwidth . . . requirements for bus 130” id., i.e., “bandwidth of
a communication link” (claim 7) is conserved. Morin further teaches that
narrowing the field of view “reduces the power consumption ... of image
sensor 105” (Morin 119), i.e., “power consumed by the capture device”
(claim 7) is conserved. Accordingly, contrary to the Examiner’s findings
(Final Act. 26), Morin teaches that “the at least one conserved resource
include[es] one or more o/bandwidth of a communication link, processor
computation cycles per captured frame, and power consumed by the capture
device” (emphasis added), as recited in claim 7.
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DECISION
The decision of the Examiner to reject claims 1—6, 8—18, 21, and 22 is
affirmed.
The decision of the Examiner to reject claim 7 is reversed.
We enter a new ground of rejection for claim 7 under 35 U.S.C.
§ 103(a).
Regarding the affirmed rejection(s), 37 C.F.R. § 41.52(a)(1) provides
“Appellants] may file a single request for rehearing within two months
from the date of the original decision of the Board.”
In addition to affirming the Examiner’s rejection(s) of one or more
claims, this decision contains new grounds of rejection pursuant to 37
C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
Section 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record.
Should Appellants elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(1), in order to preserve the right to
seek review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed
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rejection, the effective date of the affirmance is deferred until
conclusion of the prosecution before the Examiner unless, as a mere
incident to the limited prosecution, the affirmed rejection is overcome.
If Appellants elects prosecution before the Examiner and this does
not result in allowance of the application, abandonment or a second appeal,
this case should be returned to the Patent Trial and Appeal Board for final
action on the affirmed rejection, including any timely request for rehearing
thereof.
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). See 37 C.F.R.
§§ 41.50(f), 41.52(b).
AFFIRMED-IN-PART
37 C.F.R, $ 41.50(b)
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