Ex Parte Bataller et alDownload PDFPatent Trials and Appeals BoardMay 20, 201914011173 - (D) (P.T.A.B. May. 20, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/011,173 08/27/2013 Cyrille Bataller 79340 7590 05/22/2019 MANNA VA & KANG, P.C. 3201 Jermantown Road SUITE 525 FAIRFAX, VA 22030 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. D l 2-153-02582-00-US 1056 EXAMINER ABDOU TCHOUSSOU, BOUBACAR ART UNIT PAPER NUMBER 2489 NOTIFICATION DATE DELIVERY MODE 05/22/2019 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): ASHOKM@MANNA V AKANG.COM docketing@mannavakang.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte CYRILLE BATALLER, ALASTAIR PARTINGTON, ANDERS ASTROM, ALESSIO CA VALLIN!, and DAVID MARK IRISH Appeal2018-003104 Application 14/011, 173 Technology Center 2400 Before DENISE M. POTHIER, JAMES W. DEJMEK, and JOYCE CRAIG, Administrative Patent Judges. POTHIER, Administrative Patent Judge. DECISION ON APPEAL Appellants 1,2 appeal under 35 U.S.C. § 134(a) from the Examiner's rejections of claims 1-5 and 7-21. Claim 6 has been canceled. See Appeal Br. 33--43; see Final Act. 2. We affirm in part. 1 Throughout this opinion, we refer to the Final Action (Final Act.) mailed April 17, 2017, the Appeal Brief (Appeal Br.) filed September 18, 2017, the Examiner's Answer (Ans.) mailed November 28, 2017, and the Reply Brief (Reply Br.) filed January 29, 2018. Appeal2018-003104 Application 14/011, 173 BACKGROUND Appellants' invention concerns the "[d]etection and control of entry of people into a secured area" (Spec. ,r 1; id. ,r 34) using a virtual access control (id., Abstract). Virtual access control includes counting people entering a virtual controlled zone to detect overcrowding, such as more than one person in the zone. Id. ,r,r 31, 39-40, Figs. 4--5. The system may include "alerting the person to stop, exit from, or continue through the virtual controlled zone based on the determined authorization" and generating an alarm if a person violates a directive. Id. ,r,r 31, 39-40, Abstract. Independent claim 1 reads as follows: 1. A method for virtual access control, the method comprising: detecting entry of a person into a virtual controlled zone; at least one of counting and identifying people including the person entering into the virtual controlled zone; determining, by a processor, an authorization of the person to continue through the virtual controlled zone based on a facial identification of the person; alerting the person to stop, exit from, or continue through the virtual controlled zone based on the determined authorization by determining whether a number of people inside the virtual controlled zone exceeds a predetermined threshold, wherein the predetermined threshold is at least one, the number of people is at least one person, and the exceeding of the predetermined threshold represents an overcrowded state of the virtual controlled zone, wherein the overcrowded state of the virtual controlled zone represents a state of the virtual controlled zone for which the number of people inside the virtual controlled zone exceeds the predetermined threshold that 2 Appellants identify the real party in interest as Accenture Global Services Limited. Appeal Br. 4. 2 Appeal2018-003104 Application 14/011, 173 represents a specified number of the people that are to be allowed inside the virtual controlled zone, and in response to a determination that the number of people inside the virtual controlled zone exceeds the predetermined threshold, displaying a symbol on a graphical user interface (GUI) to indicate the overcrowded state of the virtual controlled zone; and generating an alarm if the person violates directions provided by the alert. Appeal Br. 33-34 (Claims App'x). THE LACK OF WRITTEN DESCRIPTION REJECTION Claims 10 and 19 are rejected under 35 U.S.C. § 112(a) orpre-AIA first paragraph as failing to comply with the written description requirement. Final Act. 8-9. Specifically, the Examiner determined the limitations determining a total measured area of the virtual controlled zone that is obscured by heads of the plurality of the people including the person entering into the virtual controlled zone, dividing the total measured area of the virtual controlled zone that is obscured by the heads of the plurality of the people including the person entering into the virtual controlled zone by the average area of the head in the downward direction, and determining, based on the dividing of the total measured area of the virtual controlled zone that is obscured by the heads of the plurality of the people including the person entering into the virtual controlled zone by the average area of the head in the downward direction, a number of people in the virtual controlled zone in claims 10 and 19 are not described in the Specification. Id. Appellants disagree and rely on Paragraph 42 for support. Appeal Br. 11-15 (citing Spec. ,r 42); Reply Br. 5-10 (same). 3 Appeal2018-003104 Application 14/011, 173 ISSUE Under§ 112(a) or pre-AIA first paragraph, has the Examiner erred in rejecting claims 10 and 19 by determining the Specification fails to describe determining a total measured area of the virtual controlled zone that is obscured by heads of the plurality of the people including the person entering into the virtual controlled zone in sufficient detail that an ordinary skilled artisan can reasonably conclude that the inventor had possession of the above claimed invention? ANALYSIS Based on the record before us, we agree with the Examiner. To satisfy the written description requirement, a patent specification must describe the claimed invention in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed invention. See Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010). "[T]he test requires an objective inquiry into the four comers of the specification from the perspective of a person of ordinary skill in the art. Based on that inquiry, the specification must describe an invention understandable to that skilled artisan and show that the inventor actually invented the invention claimed." Id. Specifically, Appellants contend the Specification supports the recitation "determining a total measured area of the virtual controlled zone that is obscured by heads of the plurality of the people including the person entering into the virtual controlled zone" in claims 10 and 19. Appeal Br. 13 (citing Spec. ,r 42); Reply Br. 6 (same). Paragraph 42 describes a technique for detecting and counting people using unicity module 108. Spec. ,r 42, 4 Appeal2018-003104 Application 14/011, 173 Figs. 1, 5. This technique includes "the unicity module 108 may determine the number of people in the central zone 183 by determining how much of the total area of the central zone 183 is obscured and dividing by the average area covered by a person's head." Paragraph 42 further states unicity module 108 may alternatively use an average area covered by other body parts, such as a person's torso, to detect and count people. Id. Notably, Paragraph 42 describes the total area as "the total area of the central zone 183 [that] is obscured" without any qualifier that this total area relates to a specific body part, including people's heads as claims 10 and 19 recites. Id. The Specification also does not describe the total area obscured in central zone 183 employed by the alternative approaches dividing the total area by an average area covered by body parts differs from the approach dividing the total area by a predetermined average head area. Id. Thus, Paragraph 42 may suggest the total area obscured is an area "obscured by the heads of the plurality of the people including the person entering into the virtual controlled zone" (see id.) as claims 10 and 19 recite. However, Paragraph 42 may also suggest the total area obscured is an area obscured by other body parts or multiple body parts. See id.; see also Ans. 6 (indicating the total obscured area may include various objects in the image). "[A] description that merely renders the invention obvious does not satisfy the requirement." See Ariad, 598 F.3d at 1352. Thus, the discussed "total area of the central zone 183 [that] is obscured" in Paragraph 42 does not describe the claimed invention in sufficient detail that an ordinary skilled artisan can reasonably conclude that the inventor had possession of the claimed invention "determining a total measured area of the virtual controlled zone that is obscured by heads of the plurality of the people 5 Appeal2018-003104 Application 14/011, 173 including the person entering into the virtual controlled zone" in claims 10 and 19. Appeal Br. 36 (Claims App'x). Because the remaining, disputed limitations include the recitation, "the total measured area of the virtual controlled zone that is obscured by the heads of the plurality of the people including the person entering into the virtual controlled zone," we agree with the Examiner that they too lack written description support. On the other hand, we disagree with the Examiner that Paragraph 42 does not describe in sufficient detail "dividing the total measured area of the virtual controlled zone that is obscured ... by the average area of the head in the downward direction" and "determining, based on the dividing of the total measured area of the virtual controlled zone that is obscured ... , a number of people in the virtual controlled zone" (Final Act. 8-9) recited in claim 10 and 19. Appeal Br. 36, 40-41 (Claims App'x). Paragraph 42 describes if an average area covered by a person's head is X m2, then the uni city module 108 may determine the number of people in the central zone 183 by determining how much of the total area of the central zone 183 is obscured and dividing by the average area covered by a person's head (Spec. ,r 42), which can be "a predetermined average area of a person's head from a downward pointing camera 109." Id. 3 Also, to the extent the Examiner indicates claim 10 recites "functional language" (see Ans. 5), we disagree. Claims 10 recites method steps. Appeal Br. 36 (Claims App'x). In contrast, claim 19 may be considered to 3 Appellants discuss the step of "ascertaining an average area of a head in a downward direction" in claims 10 and 19. Appeal Br. 12-13. But, the Examiner did not include this limitation in the lack of written description rejection. Final Act. 8-9. 6 Appeal2018-003104 Application 14/011, 173 cast its limitations as functional language by reciting "[a] virtual access control system comprising: a memory storing machine readable instructions to" perform various functions, including "determining a total measured area of the virtual controlled zone that is obscured by heads of the plurality of the people including the person entering into the virtual controlled zone." Appeal Br. 40-41 (Claims App'x); see also the Manual of Patent Examining Procedure (MPEP) § § 2114, entitled "Apparatus and Article Claims - Functional Language," 2114(!) ( discussing the difference between structural and functional recitations in an apparatus claim), 2114(IV) ( discussing computer-implemented functional claim language in the context of a computer or device). As such, the above quoted limitation in claim 19 may lack written description support for the additional reason set forth by the Examiner. See Final Act. 9; see also Ans. 5-7 (citing MPEP § 2161.01). 4 For the above reasons, Appellants have not persuaded us of error in the rejection of claims 10 and 19. 4 Paragraph 42 does not describe a process to determine "the total measured area of the virtual controlled zone that is obscured" in the image. This paragraph simply states "determining how much of the total area of the central zone 183 is obscured" with no further details, including any specific model or algorithm for determining the total measured area. Spec. ,r 42. The figures do not provide further details. See also id., Figs. 1-25. Even so, "[ t ]he level of detail required to satisfy the written description requirement varies depending on the nature and scope of the claims and on the complexity and predictability of the relevant technology." See Ariad, 598 F.3d at 1351. 7 Appeal2018-003104 Application 14/011, 173 OBVIOUSNESS REJECTION OVER SCHOCKMEL, ATICK, AND MATSUDA Claims 1--4, 7-9, 11, and 12 are rejected under 35 U.S.C. § I03(a) as unpatentable over Schockmel (WO 2011/128408 Al, published Oct. 20, 2011), Atick (U.S. 6,111,517, issued Aug. 29, 2000) and Matsuda (US 2009/0167857 Al, published July 2, 2009). Final Act. 9-17. Because Appellants argue claims 1--4, 7-9, 11, and 12 as a group (Appeal Br. 15-23), we select claim 1 as representative. See 37 C.F.R. § 4I.37(c)(l)(iv). Appellants argue that Schockmel, Atick, and Matsuda do not teach "determining whether a number of people inside the virtual controlled zone exceeds a predetermined threshold" or "an overcrowded state" as recited in claim 1. Appeal Br. 16-21. Appellants also assert Schockmel, Atick, and Matsuda do not teach "displaying a symbol on a graphical user interface (GUI) to indicate the overcrowded state of the virtual controlled zone" in response to determining the people inside the virtual controlled zone exceeds the predetermined threshold. Id. at 21-23 ( emphasis omitted). ISSUES Under§ I03(a), has the Examiner erred by determining Schockmel, Atick, and Matsuda collectively would have taught or suggested: (I) determining whether a number of people inside the virtual controlled zone exceeds a predetermined threshold, wherein the predetermined threshold is at least one ... and the exceeding of the predetermined threshold represents an overcrowded state of the virtual controlled zone, wherein the overcrowded state of the virtual controlled zone represents a 8 Appeal2018-003104 Application 14/011, 173 state of the virtual controlled zone for which the number of people inside the virtual controlled zone exceeds the predetermined threshold that represents a specified number of the people that are to be allowed inside the virtual controlled zone (the "determining step"); and (II) in response to a determination that the number of people inside the virtual controlled zone exceeds the predetermined threshold, displaying a symbol on a graphical user interface ( GUI) to indicate the overcrowded state of the virtual controlled zone" ( the "displaying step") recited in claim 1? ANALYSIS Based on the record, we find no error. I. The Examiner relies on both Schockmel and Matsuda to teach the determining step in claim 1. Final Act. 10-12 (citing Schockmel ,r,r 33, 49, 54, Fig. 6 (reference numerals 13-15) and Matsuda ,r,r 40, 104). More specifically, the Examiner relies on Schockmel for most of the disputed recitation, turning to Matsuda in combination with Schockmel to teach a known predetermined threshold that "is at least one" to detect and prevent tailgating. See id. However, other than generally asserting the combination does not teach the determining step (Appeal Br. 16-17, 21), Appellants' arguments do not fully address the collective teachings. Rather, the arguments focus on Schockmel (id. at 16-20) and Matsuda (id. at 20-21) individually. Regarding Schockmel, Appellants argue this reference does not teach or suggest asking people to leave a mantrap based on a predetermined 9 Appeal2018-003104 Application 14/011, 173 threshold analysis of the number of people in the mantrap or an overcrowded state. Appeal Br. 17. This argument is not persuasive for several reasons. First, claim 1 's determining step does not recite asking people to leave a mantrap (e.g., the claimed "virtual controlled zone.") Appeal Br. 33 (Claims App 'x). Second, as noted above, the rejection turns to Matsuda in combination with Schockmel to teach "the predetermined threshold is at least one" in claim 1. Final Act. 12. Thus, attacking Schockmel individually without considering Matsuda's teachings is unavailing. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Third, Schockmel teaches keeping track of people's presence inside a mantrap (e.g., "the virtual controlled zone") (Schockmel ,r,r 33, 54) by counting the number of people (id. ,r 49). This teaching suggests a process involving determining the number of people inside a "virtualized controlled zone" as recited. Moreover, Schockmel teaches an access control device prevents a second doorway from opening "if more than one person has entered the mantrap" and "counts the people leaving through the first doorway ... until the mantrap is empty." Schockmel ,r 49 (emphasis added); see id. ,r 48, Fig. 6 (reference numerals 11 and 12). In order to assess whether to prevent the second doorway (e.g., 12) from opening, Schockmel must further determine in some manner the number of people in the mantrap and whether this number exceeds one (e.g., "determin[e] whether a number of people inside the virtual controlled zone exceeds a predetermined threshold" as recited in claim 1 ). In this regard, Appellants contend Schockmel does not teach or suggest a "threshold based analysis of a number of people in the mantrap." Appeal Br. 17-18 (underlining omitted). But, this contention does not fully consider Schockmel's 10 Appeal2018-003104 Application 14/011, 173 discussion in Paragraph 49 and what these teachings collectively suggest to an ordinarily skilled artisan. See Appeal Br. 17-18 ( discussing only Schockmel ,r 33). Likewise, Appellants' assertion that Schockmel does not teach or suggest "an overcrowded state" (id. at 18-19 ( discussing only Schockmel ,r 33)) does not fully consider Paragraph 49, which prevents a doorway from opening when more than one person is located in the mantrap and thus suggests to an ordinary skilled artisan two or more people "represents an overcrowded state of the virtual controlled zone" as recited in claim 1. Given that Schockmel's process also counts the people leaving through the first doorway until the mantrap is empty (see Schockmel ,r 49), Schockmel further suggests having more than one person in the mantrap "represents an overcrowded state" in claim 1. Appeal Br. 33 (Claims App'x) (emphasis added). We therefore disagree with Appellants that Schockmel' s Paragraph 49 "appears to merely describe an access control device that prevents opening of a 2nd doorway if more than one person has entered the mantrap" (Appeal Br. 19; Reply Br. 18) and does not at least suggest "a predetermined threshold" or "an overcrowded state" (Appeal Br. 19-20) as claim 1 recites. The Examiner indicated Schockmel does not teach the recitation "the predetermined threshold is at least one" within the determining step, relying on Matsuda. Final Act. 12 ( citing Matsuda ,r,r 40, 104). In the Answer, the Examiner explained Schockmel teaches "a predetermined threshold" is zero. Ans. 8. Nonetheless, Schockmel's Paragraph 49 cited by the Examiner in the actual rejection (id. at 11) suggests two different thresholds. Schockmel ,r 49. First, as explained above, Schockmel discusses a scenario for preventing opening a second doorway if more than one person is within a 11 Appeal2018-003104 Application 14/011, 173 mantrap, which suggests some process to determine whether the number of people inside a virtual controlled zone exceeds a first predetermined threshold ( e.g., one). Id. Second, Schockmel further discusses another scenario for "count[ing] the people leaving through the first doorway ... until the mantrap is empty" (id.), suggesting another process to count the number of people inside a virtual controlled zone until the mantrap is empty. This second scenario that counts until the number of people is zero suggests determining whether the people number has exceeded a second predetermined threshold of zero. See id. For this reason, we determine Schockmel at least suggests to one skilled in the art the "predetermined threshold" limitation in dispute and that such a position is supported by the record contrary to Appellants' contentions. See Reply Br. 14--17. Even so, the Examiner additionally turns to Matsuda. Final Act. 12 (citing Matsuda ,r,r 40, 104). Matsuda teaches transmitting an alarm signal when two or more people "move to/from the detection area on prescribed direction" to prevent tailgating. Matsuda ,I40; id. ,r 39. Thus, assuming, without agreeing, Schockmel does not teach "the predetermined threshold is at least one" as claim 1 recites, the combination of Schockmel and Matsuda would have yielded no more than the determining step in claim 1, including determining whether the number of people inside the virtual control zone exceeds a predetermined threshold that "is at least one" as recited. See Final Act. 12. Appellants contend Matsuda "appears to describe occurrence of a tailgate based on a determination of whether a number of persons detected through the object detection stage 16 is two or more" (Appeal Br. 20 ( citing Matsuda ,r 104, (emphasis omitted)) and claim 1 "instead pertains to 'a 12 Appeal2018-003104 Application 14/011, 173 specified number of the people that are to be allowed inside the virtual controlled zone' (id. at 21). Reply Br. 20. Notably, a threshold that is two or more does not conflict with claim 1 's "predetermined threshold is at least one." Appeal Br. 33 (Claims App'x) (emphasis added). Also, Appellants do not address Paragraph 40 (Appeal Br. 20-21 ), which discusses detecting the number of people moving to ( or from) a detection area in a certain direction and thus inside a specific zone. Matsuda ,r 40, Figs. 1-2. We thus disagree Matsuda does not overcome any alleged deficiency in Schockmel. II. For the disputed displaying step, the Examiner relies on Schockmel and Matsuda. See Final Act. 11-12 (citing Schockmel ,r,r 54, Fig. 6 (reference numerals 13-15) and Matsuda ,r,r 40, 104). Appellants repeat the arguments addressed above related to Schockmel, including the reference does not teach or suggest a predetermined threshold analysis associated with mantrap or an overcrowded state. Appeal Br. 22. We are not persuaded for reasons previously discussed. Notably, Schockmel teaches people's presence can drive status indicators (e.g., 13-15 in Fig. 6). Additionally, Schockmel teaches presenting a status indicator inside the mantrap (e.g., 14) asking people to leave an area (Schockmel ,r 54, Fig. 6), such as through the first doorway (id. ,r 33, Fig. 6 (reference 11)). These collective teachings in Schockmel at least suggest "displaying a symbol on a graphical user interface ( GUI) to indicate the overcrowded state of the virtual controlled zone" in response to determining "the number of people inside the virtual controlled zone 13 Appeal2018-003104 Application 14/011, 173 exceeds the predetermined threshold" ( e.g., more than one) as recited in claim 1 and as explained previously. For the foregoing reasons, Appellants have not persuaded us of error in the rejection of independent claim 1 and claims 2--4, 7-9, 11, and 12, which are not argued separately. OBVIOUSNESS REJECTION OVER SCHOCKMEL, ATICK, MATSUDA, AND XU Claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable over Schockmel, Atick, Matsuda, and Xu (Xiao-Wei Xu et al., A Rapid Method for Passing People Counting in Monocular Video Sequences, PROC. OF 6TH INT'L CONF. ON MACHINE LEARNING AND CYBERNETICS 1657-1662 (Aug. 2007)). Final Act. 18-20. The Examiner finds Schockmel, Atick, and Matsuda do not teach the limitations in claim 10, turning to Xu. Final Act. 18-20 (citing Xu 1660-61, § 4.3, Fig. 4); Ans. 11-12. Among other arguments, Appellants assert Xu describes a technique for identifying people by identifying heads but does not suggest dividing the total measured area obscured by plural people's heads by an average head area. Appeal Br. 25-26; Reply Br. 25. ISSUE Under§ 103(a), has the Examiner erred in rejecting claim 10 by determining Schockmel, Atick, Matsuda, and Xu collectively would have taught or suggested "dividing the total measured area of the virtual controlled zone that is obscured by the heads of the plurality of the people .. 14 Appeal2018-003104 Application 14/011, 173 . by the average area of the head in the downward direction" ( the "dividing step")? ANALYSIS Based on the record before us, we find error. For the dividing step, the Examiner states, after binarization segmentation, Xu's binary image Fpb includes dark regions that include heads and other body parts, and these regions are converted to grey information, including grey image D, which is binarized into image A composed of many head candidates Af. Final Act. 19--20 (citing Xu 1660 (§ 4.3), Fig. 4). However, there is insufficient explanation that any of these images Fpb, D, or A represents the total measured area of a virtual controlled zone obscured by plural heads and that one of these images is further divided by an average head area as recited in claim 10. See id. Xu discusses the dark regions of binary image Fpb, which include heads and some other body parts, are analyzed by converting the dark regions into grey information using a distance function to obtain distance grey image D. Xu 1660. This does not discuss division but rather a technique that uses 3x3 templates (e.g., matrices) to arrive at image D. See id. Xu further discuss binarizing image D into image A composed of head candidates. Id. But, the Examiner has not explained sufficiently how this binarizing process involves division, including using the total measured area of a zone obscured by plural heads or dividing the total measured area by an average head area to arrive at image A. See Final Act. 18-20. In the Answer, the Examiner appears to take another position. Ans. 11-12. The Examiner asserted Xu's segmentation is a division, Xu's image 15 Appeal2018-003104 Application 14/011, 173 A is the total measured area of the virtual controlled zone that is obscured by plural heads, and Xu's resulting Ai (i=l, 2, ... n), which uses a local mean, is an average head area as claim 10 recites. See id. ( citing Xu 1660-61 ). The local mean discussed in Xu is used during a Niblack binarization method, which separates the dark head regions from other regions and varies a threshold over the image based on a local mean. Xu 1660. But, Xu does not state this local mean or threshold based on a local mean is used to divide a total measured area obscured by heads. See id. For example, Xu states, after binarization segmentation, the binary image F pb shown in Figure 4 has the dark regions that includes both heads and other body parts and thus is not a "total measured area of the virtual controlled zone that is obscured by the heads of the plurality of the people as recited. Additionally, Xu does not discuss using the local mean when binarizing image D into image A composed of many head candidates Ai (i = 1, 2, ... n ). Nor is Ai described as a typical head size as asserted by the Examiner. See Ans. 12. The Examiner even further discusses using a circum-rectangle, whose center is a point P, to divide the total measured area of the virtual controlled zone that is obscured by heads by the average area of the head in the downward direction. Ans. 12 (citing Xu 1660-61). Xu discusses searching for a point Pi in every head candidate region Ai, and for each point Pi shown in Figure 4, a circum-rectangle is used whose center is at point Pi and has a size of a typical head to segment the head candidate region Ai. Xu 1660-61. Yet, Xu does not describe head candidate region Ai represents the total measured area obscured by plural heads. See id. Rather, this region seems to represent an area obscured by one head. See id. 16 Appeal2018-003104 Application 14/011, 173 Thus, contrary to the Examiner's findings (id.), we disagree the noted teachings in Xu in combination with the other references suggest "dividing the total measured area of the virtual controlled zone that is obscured by the heads of the plurality of the people including the person entering into the virtual controlled zone by the average area of the head in the downward direction" in claim 10. For the foregoing reasons, Appellants have persuaded us of error in the rejection of claim 10. OBVIOUSNESS REJECTION OVER SCHOCKMEL AND XU Claim 19 is rejected under 35 U.S.C. § 103(a) as unpatentable over Schockmel and Xu. Final Act. 28-31. Claim 19 has similar limitations to those in claim 10. Appeal Br. 40-41 (Claims App'x). The Examiner relies on the same findings and conclusions presented for claim 10 related to Xu for this rejection. See Final Act. 30-31 (citing Xu 1660-61); see Ans. 14. Accordingly, Appellants have persuaded us of error in the rejection of claim 19 for reasons similar to those addressed for claim 10, OBVIOUSNESS REJECTION OVER SCHOCKMEL, ATICK, MATSUDA, MEDIONI, AND BLANZ Claim 17 is rejected under 35 U.S.C. § 103(a) as unpatentable over Schockmel, Atick, Matsuda, Medioni (Gerard Medioni et al., Identifying Noncooperative Subjects at a Distance Using Face Images and Inferred Three-Dimensional Face Models, 39 IEEE TRANS. ON SYSTEMS, MAN, AND CYBERNETICS-PART A: SYSTEMS AND HUMANS 12-24 (Jan. 2009)), and Blanz (Volker Blanz & Thomas Vetter, Face Recognition Based on Fitting a 17 Appeal2018-003104 Application 14/011, 173 3D Morphable Model, 23 IEEE TRANS. ON PATTERN ANALYSIS & MACHINE INTELLIGENCE (Sept. 2003)). Final Act. 26-27. Among other arguments, Appellants contend Blanz teaches a uniform texture and shape and not a uniform background as recited and Medioni does not discuss uniform and non-uniform backgrounds. Appeal Br. 27; Reply Br. 31-33. ISSUE Under§ 103(a), has the Examiner erred in rejecting claim 17 by determining Schockmel, Atick, Matsuda, Medioni, and Blanz collectively would have taught or suggested "the predetermined threshold is approximately ±30° relative to the central axis of the camera for a uniform background"? ANALYSIS Based on the record before us, we find error. At the outset, we note "the predetermined threshold" in claim 17 differs from "a predetermined threshold" recited in claim 1. Claim 17 depends from claim 16, which recites another "predetermined threshold" from that in claim 1. As understood, claim 17' s "the predetermined threshold" refers to the "predetermined threshold relative to the" camera's central axis in claim 16. For claim 16, the Examiner relies on Medioni to teach a "determining if the angle of the face of the person for the 2D frontal image is less than or equal to a predetermined threshold relative to the central axis of the camera." Final Act. 25 ( citing Medioni 21 ). In particular, Medioni teaches in Section D, entitled "Experiment II: The Length of the Video Sequence," a condition 18 Appeal2018-003104 Application 14/011, 173 that includes a complete sequence of sides of faces from 45° to +45°. Medioni 21. The Examiner determines this range teaches a threshold relative to the camera's central axis. Final Act. 25. These findings and conclusions are not challenged. Appeal Br. 26-28. Claim 17 adds "the predetermined threshold is approximately ±30° relative to the central axis of the camera for a uniform background" and "approximately ±45° relative to the central axis of the camera/or a non- uniform background." Appeal Br. 40 (Claims App'x) (emphases added). The Examiner relies on both Medioni and Blanz to teach these features. Final Act. 27 (citing Medioni 21-22 and Blanz 1064, 1071-72, Table 4). In the Answer, the Examiner "interpreted 'a background' to include regions of the face" because Appellants do not define the term "background." Ans. 14. Similar to Appellants (see Reply Br. 32), we find this construction unreasonably broad. First, claim 16 from which claim 17 depends, recites "the angle of the face of the person for the 2D frontal image" distinctly from the "background." Appeal Br. 39-40 (Claims App'x). Second, during examination of a patent application, a claim is given its broadest reasonable construction "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) (citation omitted). We presume that claim terms have their ordinary and customary meaning. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Turning to the Specification, the Specification provides an example of a uniform background as "a white, or single color background." Spec. ,r 58. Additionally, Figure 20 shows example of modeling a face obtained from an 19 Appeal2018-003104 Application 14/011, 173 image with a uniform background, and Figure 21 shows an example of modeling a face with a non-uniform background. Spec. ,r,r 58-59, Figs. 20-21. These figures and accompanying discussion inform one skilled in the art that a background is not intended to include parts of a person's face, when the face is in foreground such as those shown in Figures 20 and 21. Moreover, an ordinary meaning for "background" includes "[t]he ground or scenery located behind something" and "[t]he part of a pictorial representation that appears to be in the distance and that provides relief for the principal objects in the foreground." 5 Thus, construing the phrase "background" broadly, but reasonably in light of the Specification as would be interpreted by one skilled in the art, we determine a "uniform background" means uniform scenery located behind something or a uniform part of an image that appears to be in the distance and provides relief for its principal objects in the foreground. Given the above understanding, we disagree with the Examiner that Blanz's face region where its texture and shape are almost uniform teach a uniform background (Ans. 14) and thus "the predetermined threshold is approximately ±30° relative to the central axis of the camera for a uniform background" as recited. Appeal Br. 40 (Claims App'x). Rather, as noted by Appellants (Appeal Br. 27), Blanz discusses face regions that have almost uniform shape and texture but does not discuss the face regions are part of the background. Blanz 1072. In fact, Blanz shows faces in the foreground of various studied images rather than part of the scenery located behind the 5 Background, The American Heritage Dictionary, available at https://www.ahdictionary.com/word/search.html?q= background ( defs. 1, 2a) (last visited May 3, 2019). 20 Appeal2018-003104 Application 14/011, 173 something else or a part of an image that appears to be in the distance. See, e.g., Blanz 1065, 1070, Figs. 2, 9. As such, Blanz does not teach or suggest "the predetermined threshold is approximately ±30° relative to the central axis of the camera for a uniform background" in claim 17. The rejection also cites Medioni to teach the non-uniform background in claim 1 7 but is not relied upon for the recited "uniform background" in the claim. Final Act. 27 (citing Medioni 21-22). In the Answer, the Examiner states Medioni also discloses varying the threshold "for both uniform and non-uniform backgrounds." Ans. 13. Even though Medioni's images may include both uniform and non-uniform backgrounds (see Medioni 19), Medioni does not teach or suggest different predetermined thresholds for uniform and non-uniform backgrounds as claim 17 requires. Thus, combining Medioni's with Blanz's teachings does not sufficiently teach or suggest "the predetermined threshold is approximately ±30° relative to the central axis of the camera for a uniform background" in claim 1 7. For the foregoing reasons, Appellants have persuaded us of error in the rejection of claim 17. OBVIOUSNESS REJECTION OVER SCHOCKMEL, MEDIONI, AND BLANZ Claims 20 and 21 are rejected under 35 U.S.C. § 103(a) as unpatentable over Schockmel, Medioni, and Blanz. Final Act. 31-36. Claim 20 has limitations with similarities to those in claim 17. In particular, claim 20 recites "the predetermined threshold relative to the central axis of the camera for a uniform background is less than the predetermined 21 Appeal2018-003104 Application 14/011, 173 threshold relative to the central axis of the camera for a non-uniform background." Appeal Br. 42 (Claims App'x). The Examiner relies on the same findings and conclusions in Medioni and Blanz for this rejection as was presented for claim 1 7. See Final Act. 34--36 (citing Medioni 21-22 and Blanz 1064, 1071-72); see Ans. 14. As previously discussed neither Medioni, Blanz, or its combination teaches or suggests the recited "predetermined threshold ... for a uniform background" differs from the recited "predetermined threshold ... for a non-uniform background." We refer to the discussion of claim 17 for more details. As such, the rejection as proposed fails to teach or suggest "the predetermined threshold relative to the central axis of the camera for a uniform background is less than the predetermined threshold relative to the central axis of the camera for a non-uniform background" in claim 20. Accordingly, for reasons similar to those for claim 17, Appellants have persuaded us of error in the rejection of claim 20. Because claim 21 depends from claim 20, we likewise find error. THE REMAINING OBVIOUSNESS REJECTIONS Claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable over Schockmel, Atick, Matsuda, and Bligh (US 2002/0057204, published May 16, 2002). Final Act. 17-18. Claims 13-16 and 18 are rejected under 35 U.S.C. § 103(a) as unpatentable over Schockmel, Atick, Matsuda, and Medioni. Final Act. 20-26. Claims 5, 13-16, and 18 depend directly or indirectly from claim 1, and their rejections have not been argued separately. See generally Appeal Br. We sustain these rejections for reasons discussed above related to claim 1. 22 Appeal2018-003104 Application 14/011, 173 10 and 19 § 112 1--4, 7-9, 11, § 103 and 12 5 § 103 13-16 and 18 § 103 10 § 103 19 § 103 17 § 103 20 and 21 § 103 Summary DECISION 10 and 19 Schockmel, 1--4, 7-9, 11, Atick, and and 12 Matsuda Schockmel, Atick, 5 Matsuda, and Bli h Schockmel, Atick, 13-16 and 18 Matsuda, and Medioni Schockmel, Atick, 10 Matsuda, and Xu Schockmeland 19 Xu Schockmel, Atick, Matsuda, 17 Medioni, and Blanz Schockmel, 20 and 21 Medioni, and Blanz 1-5, 7-16, 18, 17,20,21 and 19 No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED-IN-PART 23 Copy with citationCopy as parenthetical citation