Ex Parte BERGEN et al

Board of Patent Appeals and Interferences

Sep 27, 2004

08970889 (B.P.A.I. Sep. 27, 2004)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
Paper No. 22
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte JAMES RUSSELL BERGEN, CURT R. CARLSON,
RAKESH KUMAR and SAWHNEY S. HARPREET
____________
Appeal No. 2003-1967
Application No. 08/970,889
____________
ON BRIEF
____________
Before THOMAS, FLEMING, and BLANKENSHIP, Administrative Patent
Judges.
FLEMING, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 1-11, 13, 14 and 17-26, all the claims pending in the
instant application. Claims 12, 15 and 16 have been canceled.
Invention
The invention relates to a method and apparatus for
efficiently storing and accessing video information. See page 1
of Appellants' specification. Figure 7 is a graphical
representation of the relative memory requirements of two scene
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Application No. 08/970,889
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storage methods. Specifically, structure and memory contents of
a two-dimensional mosaic representation of a scene. A video
program 710 includes a plurality of scenes denoted as S1 through
Sn. The scene comprises a plurality of video frames denoted as
F1 through Fm, where F1 is the most recent frame. The video
content of frames F1 and Fm are shown as respective pictures 730
and 740. Note that both pictures include a boat 732, 742
floating in a body of water 738, 748 beneath at least a portion
of a cloud cover 736, 746. Picture 730 also contains a dock 739,
while picture 740 contains the sun 744 but not the dock 739.
Frames F2 through Fm-1 are the intervening frames of scene 720.
Frame sequence 750 represents a two-dimensional mosaic of the
scene. The two-dimensional mosaic comprises a background image
related to all the frames in a particular scene, and a plurality
of foreground images related to respective foreground portions of
each frame of the scene. Thus, background frame 760 is shown as
a panoramic picture comprising all the background information in
the scene including a dock 769, a body of water 768, a cloud 766
and the sun 764. Frames F1 and Fm show only the respective
foreground portions comprising the boat 732, 742. See page 20 of
Appellants' specification.
Appeal No. 2003-1967
Application No. 08/970,889
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Independent claim 1 present in the application is
representative of Appellants' claimed invention and is reproduced
as follows:
1. A method for comprehensively representing video information
in a manner facilitating indexing of the video information,
comprising the step of:
segmenting a video stream into a plurality of scenes, each
of said scenes comprising at least one video frame;
dividing, using intra-scene motion analysis, at least one of
said plurality of scenes into at least one scene foreground layer
and a scene background layer;
representing each scene background layer as a mosaic, said
background layer mosaic defining a key frame of a respective
scene; and
representing each of said at least one video frames forming
said scene as a difference between initial video frame imagery
and a respective portion of said key frame.
References
Zhang et al. (Zhang) 5,635,982 Jun. 3, 1997
Adelson 5,706,417 Jan. 6, 1998
(filed May 24, 1995)
Barber et al. 5,751,286 May 12, 1998
(Barber) (filed Jan. 24, 1997)
Yeo et al. (Yeo) 5,821,945 Oct. 13, 1998
(filed May 15, 1997)
Jaillon et al. (Jaillon) ("Image Mosaicing Applied to Three-
Dimensional Surfaces": 1051-4651/94 - 1994 IEEE).
Shibata et al. (Shibata) ("Content-Based structuring of video
information": 0-8186-7436-9/9, 1996 IEEE).
Appeal No. 2003-1967
Application No. 08/970,889
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Rejections at Issue
Claims 1-3, 11 and 21-23 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Adelson in view of Yeo and
Shibata.
Claims 4-8 and 24-26 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Adelson in view of Yeo, Shibata and
Jaillon.
Claims 9 and 10 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Adelson in view of Yeo, Shibata and
Barber.
Claims 13 and 14 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Adelson in view of Yeo, Shibata and
Zhang.
Claims 17-20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Barber in view of Yeo and Shibata.
OPINION
With full consideration being given to the subject matter on
appeal, the Examiner's rejections and the arguments of Appellants
and Examiner, for the reasons stated infra, we reverse the
Examiner's rejection of claims 1-11, 13, 14 and 21-26 under
35 U.S.C. § 103 and we affirm the Examiner's rejection of claims
17-20 under 35 U.S.C. § 103.
Appeal No. 2003-1967
Application No. 08/970,889
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In rejecting claims under 35 U.S.C. § 103, the Examiner
bears the initial burden of establishing a prima facie case of
obviousness. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
1444 (Fed. Cir. 1992). See also In re Piasecki, 745 F.2d 1468,
1472, 223 USPQ 785, 788 (Fed. Cir. 1984). The Examiner can
satisfy this burden by showing that some objective teaching in
the prior art or knowledge generally available to one of ordinary
skill in the art suggests the claimed subject matter. In re
Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
Only if this initial burden is met does the burden of coming
forward with evidence or argument shift to the Appellants.
Oetiker, 977 F.2d at 1445, 24 USPQ2d at 1444. See also Piasecki,
745 F.2d at 1472, 223 USPQ at 788.
An obviousness analysis commences with a review and
consideration of all the pertinent evidence and arguments. "In
reviewing the [E]xaminer's decision on appeal, the Board must
necessarily weigh all of the evidence and argument." Oetiker,
977 F.2d at 1445, 24 USPQ2d at 1444. "[T]he Board must not only
assure that the requisite findings are made, based on evidence of
record, but must also explain the reasoning by which the findings
are deemed to support the agency's conclusion." In re Lee,
Appeal No. 2003-1967
Application No. 08/970,889
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277 F.3d 1338, 1344, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002). With
these principles in mind, we commence review of the pertinent
evidence and arguments of Appellants and Examiner.
Claims 1-3, 11 and 21-23 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Adelson in view of Yeo and
Shibata. We note that claims 1 and 21 are independent claims.
Claim 1 is a method for comprehensively representing video
information in a manner facilitating indexing of the video
information and claim 21 is a computer-readable medium having
stored thereon a plurality of instructions, the plurality of
instructions including instructions which, when executed by a
processor, cause the processor to perform substantially the same
steps recited in claim 1.
Appellants argue that Adelson, Yeo and Shibata, either
singly or in combination, fail to disclose or suggest the steps
of dividing, using intra-scene motion analysis, at least one of
said plurality of scenes into at least one scene foreground layer
and a scene background layer, representing each scene background
layer as a mosaic, said background layer mosaic defining a key
frame of a respective scene; and representing each of said at
least one video frame forming said scene as a difference between
initial video frame imagery and a respective portion of said key
Appeal No. 2003-1967
Application No. 08/970,889
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frame as recited in Appellants' claims 1 and 21. In particular,
Appellants argue that the references fail to teach combining or
mosaicing layers from a plurality of image frames within a scene
to form a combined or mosaiced background layer. See pages 16-22
of the brief.
Upon our review of Adelson, Yeo and Shibata, we fail to find
that the Examiner has made a prima facie case showing that the
above limitations are taught by these references. Adelson
teaches a technique which operates on the principle that a still
or moving image can be broken down into a plurality of layers.
For instance, an image of a baseball player chasing a flyball
might comprise three layers; 1)a stationary background (i.e., the
field, 2)the baseball player, and 3)the baseball. See column 4,
lines 16-26. However, we fail to find that Adelson teaches or
suggests representing each scene background layer as a mosaic
where the background layer mosaic defines a key frame of a
representative scene. Thus, Adelson does not teach combining or
mosaicing layers from a plurality of image frames within a scene
to form a combined or mosaiced background layer.
Furthermore, we fail to find that Yeo teaches this
limitation as well. Yeo is concerned with automating the
browsing process for browsing of video material. See Yeo, column
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1, lines 11-13. Also, we fail to find that Shibata teaches this
limitation. Shibata is concerned with a component-based scene
description model for computerizing linguistic descriptions
written by the director and a method for extracting a content-
based hierarchical structure for video sequences based on this
model. See Shibata, page 330. However, Neither Yeo nor Shibata
teach combining or mosaicing layers from a plurality of image
frames within a scene to form a combined or mosaiced background
layer as recited in Appellants' claims.
Claims 4-8 and 24-26 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Adelson in view of Yeo, Shibata and
Jaillon. Claims 9 and 10 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Adelson in view of Yeo, Shibata and
Barber. Claims 13 and 14 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Adelson in view of Yeo, Shibata and
Zhang. Claims 25 and 26 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Adelson in view of Yeo, Shibata and
Jaillon. We note that these claims are dependent claims on
either independent claim 1 or independent claim 21. Furthermore,
we note that the Examiner has relied on the combination of
Adelson, Yeo and Shibata for teaching the above limitations.
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Application No. 08/970,889
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Therefore, we will not sustain the Examiner's rejection of these
claims for the same reasons as above.
Claims 17-20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Barber in view of Yeo and Shibata.
At the outset, we note that Appellants state on page 6 of
the brief that claims be considered separately patentable.
However, in the brief and reply brief, we note that Appellants
argued claims 17-20 as a group. No other claims are argued.
37 CFR § 1.192(c)(7) (July 1, 2001) as amended at 62 Fed. Reg.
53196 (October 10, 1997), which was controlling at the time of
Appellants filing the brief, states:
For each ground of rejection which [A]ppellants contest
and which applies to a group of two or more claims, the
Board shall select a single claims from the group and
shall decide the appeal as to the ground of rejection
on the basis of that claim alone unless a statement is
included that the claims of the group do not stand or
fall together and, in the argument under paragraph
(c)(8) of this section, Appellants explains why the
claims of the group are believed to be separately
patentable. Merely pointing out differences in what
the claims cover is not an argument as to why the
claims are separately patentable.
We will consider Appellants' claims 17-19 as standing or falling
together and we will treat claim 17 as a representative claim of
that group. See also In re McDaniel, 293 F.3d 1379, 1383, 63
USPQ2d 1462, 1465 (Fed. Cir. 2002) ("If the brief fails to meet
Appeal No. 2003-1967
Application No. 08/970,889
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either requirement [of 37 CFR § 1.192(c)(7)], the Board is free
to select a single claim from each group of claims subject to a
common ground of rejection as representative of all claims in
that group and to decide the appeal of that rejection based
solely on the selected representative claim.") See also, In re
Watts, 354 F.3d 1362, 1368, 69 USPQ2d 1453, 1457 (Fed. Cir.
2004).
Appellants' sole argument is set forth on page 31 of the
brief. There, Appellants argue that claims 17-20 are patentable
for the reasons discussed with respect to claim 1. See page 31
of Appellants' brief.
As pointed out by our reviewing court, we must first
determine the scope of the claim. "[T]he name of the game is the
claim." In re Hiniker Co., 150 F.3d 1362, 1369, 47 USPQ2d 1523,
1529 (Fed. Cir. 1998). Claims will be given their broadest
reasonable interpretation consistent with the specification, and
limitations appearing in the specification are not to be read
into the claims. In re Etter, 756 F.2d 852, 858, 225 USPQ 1, 5
(Fed. Cir. 1985).
We note that claim 17 is directed to an entirely different
invention than claim 1. In particular, Appellants' claim 17
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Application No. 08/970,889
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recites a method comprising the steps of providing a database
associated with the stored video program, said database
comprising attribute information associated with at least a
representative portion of said plurality of video frames forming
each scene; formulating a query utilizing attribute information
associated with a desired video frame; searching said database to
identify video frames substantially satisfying said query; and
retrieving, from said mass storage unit, one or more of said
identified video frames. We note that Appellants have not argued
that the Examiner has erred in finding that Barber, Yeo and
Shibata teach these method steps as recited in Appellants' claim
17. However, Appellants have argued that Barber, Yeo and Shibata
do not teach a plurality of video frames including a key frame
comprising a mosaic of an intra-scene background layer. However,
the question before us is whether method claim 17 is limited by
this limitation recited in the preamble or is this limitation
simply a suggested intended use for the method steps.
To determine if language in the preamble is limited, a
review of the patent application in its entirety should be made
to determine whether the inventor intended such resolve to
represent an additional structure limitation or merely
introductory language. Corning Glass Works v. Sumitomo Elec.
Appeal No. 2003-1967
Application No. 08/970,889
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U.S.A., Inc., 868 F.2d 1251, 1257, 9 USPQ2d 1962, 1966 (Fed. Cir.
1989). Whether a preamble stating an intended purpose
constitutes a limitation to the claim depends on whether the
language is essential to particularly pointing out the invention.
Diversitech Corp. v. Century Steps, Inc., 850 F.2d 675, 678-79,
7 USPQ2d 1315, 1318 (Fed. Cir. 1988).
We note that the method steps recited may be used on any
video program stored in a mass storage unit. The method steps do
not require that the data stored in the mass storage unit
comprises of a mosaic of intra-scene background layers.
Therefore, we find that the language found in the preamble is not
essential to particularly pointing out the invention as claimed
and constitutes introductory language of intended use.
Therefore, we will sustain the Examiner's rejection.
37 CFR § 1.192(a) states:
Appellant must, within two months from the date of the
notice of appeal under § 1.191 or within the time
allowed for reply to the action from which the appeal
was taken, if such time is later, file a brief in
triplicate. The brief must be accompanied by the fee
set forth in § 1.17(c) and must set forth the
authorities and arguments on which appellant will rely
to maintain the appeal. Any arguments or authorities
not included in the brief will be refused consideration
by the Board of Patent Appeals and Interferences,
unless good cause is shown.
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Application No. 08/970,889
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Thus, 37 CFR § 1.192 provides that only the arguments made
by Appellants in the brief will be considered and that failure to
make an argument constitutes a waiver on that particular point.
Support for this rule has been demonstrated by our reviewing
court in In re Berger, 279 F.3d 975, 984, 61 USPQ2d 1523, 1528-29
(Fed. Cir. 2002), wherein the Federal Circuit Court stated that
because the Appellants did not contest the merits of the
rejections in his brief to the Federal Circuit Court, the issue
is waived.
In view of the foregoing, we have not sustained the
Examiner's rejection of claims 1-11, 13, 14 and 21-26 under
35 U.S.C. § 103. However, we have sustained the Examiner's
rejection of claims 17-20 under 35 U.S.C. § 103.
Appeal No. 2003-1967
Application No. 08/970,889
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
JAMES D. THOMAS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
MICHAEL R. FLEMING ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
HOWARD B. BLANKENSHIP )
Administrative Patent Judge )
MRF/lbg
Appeal No. 2003-1967
Application No. 08/970,889
15
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