Ex Parte Borden et al

Board of Patent Appeals and Interferences

Aug 29, 2012

10821294 (B.P.A.I. Aug. 29, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/821,294 04/09/2004 George R. Borden IV SLA0179.1 (7146.0214) 1108
55648 7590 08/29/2012
CHERNOFF VILHAUER MCCLUNG & STENZEL, LLP
601 SW Second Ave., Suite 1600
PORTLAND, OR 97204
EXAMINER
CZEKAJ, DAVID J
ART UNIT PAPER NUMBER
2487
MAIL DATE DELIVERY MODE
08/29/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GEORGE R. BORDEN IV, JEFFREY B. SAMPSELL,
and RICHARD QIAN
____________

Appeal 2009-015319
Application 10/821,294
Technology Center 2400
____________

Before JOSEPH F. RUGGIERO, SCOTT R. BOALICK, and
DENISE M. POTHIER, Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 27-29. Claims 1-26 and 30-32 have been canceled. App.
Br. 3. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

Invention
Appellants’ invention relates to an object tracking system. See
Abstract. Claim 27 reads as follows with the key disputed limitation
emphasized:
27. The method of advising an operator of the performance of an
object tracking system comprising the steps of:
(a) monitoring a level of confidence that said tracking system is
tracking a target; and
(b) increasing magnification of an image visible to said operator in
response to a decrease in said level of confidence.

The Examiner relies on the following as evidence of unpatentability:
Yu US 5,434,621 July 18, 1995
Abe US 5,473,369 Dec. 5, 1995

The Rejections
1. The Examiner rejected claims 27-29 under 35 U.S.C. § 101 as
being directed to non-statutory subject matter. Ans. 3.1,2

1 Throughout this opinion, we refer to (1) the Appeal Brief filed January 31,
2009; (2) the Examiner’s Answer mailed June 23, 2009; and (3) the Reply
Brief filed August 21, 2009.
2 We do not reach the merits of the non-statutory subject matter rejection. It
is not further addressed.

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2. The Examiner rejected claims 27-29 under 35 U.S.C. § 103(a) as
unpatentable over Abe and Yu. Ans. 3-5.

THE OBVIOUSNESS REJECTION OVER ABE AND YU
Based on the arguments, we select independent claim 27 as
representative. The Examiner finds that Abe discloses monitoring a
confidence level that the tracking system is tracking a target as recited and
also teaches altering magnification of a visible image in response to change
in confidence level. Ans. 3-4. The Examiner further cites to Yu to teach
specifically “increasing the magnification” of an image in response to a
decrease in confidence level. Ans. 4.
Appellants argue that Abe’s cited teaching determines the boundaries
or the location of the tracked object, rather than monitoring the confidence
level that an object is being tracked. App. Br. 6; Reply Br. 6. Additionally,
Appellants assert that the additionally cited teaching in Abe of altering the
magnification of an object to keep the object the same size is directed to an
object which is already being tracked and thus is not altering magnification
of an image in response to change in confidence that an object is being
tracked. App. Br. 6.
Appellants further contend Yu teaches increasing magnification to
maintain the size of a subject constantly being tracked using an auto-focus
motor, and thus any changes in magnification are in response to detected
movement of an object being tracked and not based on the “uncertainty as to
whether the target is being tracked.” App. Br. 7 (emphasis omitted).
Appellants further argue that Yu is completely irrelevant to Abe’s teaching
to track an object moving laterally (Reply Br. 6) and that Yu never loses
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Application 10/821,294

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confidence that the object is being tracked (Reply Br. 6-7). Lastly,
Appellants assert that combining Abe and Yu does not imply increasing
magnification when a confidence level is decreased. App. Br. 8.

ISSUES
Under § 103, has the Examiner erred in rejecting claim 27 by finding
that Abe and Yu collectively would have taught or suggested:
(1) monitoring a confidence level that the tracking system is tracking
a target?
(2) increasing magnification of image visible to an operator in
response to a decrease in the confidence level?

ANALYSIS
Based on the record before us, we find no error in the Examiner’s
rejection of claim 27. Before we discuss Abe and Yu, we construe the
limitation, “a level of confidence that said tracking system is tracking a
target,” as broad as reasonable in light of the disclosure. See In re Am. Acad.
of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (internal citations
omitted).
The Specification uses the terms, “confidence” and “confidence
level,” in the disclosure in various locations but does not define the terms.
See generally Specification; see also Ans. 5. Some discussions merely
repeat or track the claim language found in claim 27. See Spec. 3:14-16,
8:4-5. Other portions of the disclosure discuss an “algorithm” used to
measure a confidence level that the target is being correctly tracked. Spec.
7:10-18. While this algorithm is not discussed in any detail (see id.),
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Appellants state that “changing magnification of the image . . . notifies the
user that the confidence level of the algorithm is low. Increasing the
magnification of the image may cause the algorithm’s confidence level to
increase.” Spec. 7:13-15. Appellants further provide an example of when
the system’s confidence can be low, such as when you lose the target
completely. Spec. 7:27-29. Thus, in light of the disclosure, we find that
“confidence [level] that said tracking system is tracking a target” as recited
in claim 27 can be associated with the location of an object within a
viewfinder as well as the size of the object in the viewfinder.
Appellants first contend that Abe does not teach or suggest monitoring
a confidence level that the tracking system is tracking a target. While we
recognize that the Examiner discusses two different confidence levels when
addressing Abe (App. Br. 7-8), we ultimately disagree that Abe fails to teach
monitoring a confidence level as recited.
First, the Examiner discusses Abe’s confidence level that the system
is tracking a target is based on a determination as to whether a tracked object
has disappeared from the screen or not. Ans. 3 (citing Abe, column 10).
Second, in the context of discussing the second limitation in claim 27 or “in
response to a decrease in” the confidence level, the Examiner also cites to
column twelve. Ans. 4 (citing Abe, col. 12, ll. 5-13). Column twelve in Abe
teaches a technique for automatically tracking an object and coping with
changes in the object’s size such that tracking apparatus is capable of
filming the target object to a desired size by controlling the camera lens.
Col. 12, ll. 5-15. Additionally, Appellants admit as much. App. Br. 6
(stating Abe “discloses that magnification changes are made merely to keep
the object the same size in the viewfinder . . . .”) This teaching, at
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minimum, suggests that Abe determines whether or not an object has moved
farther away from view (e.g., determines the object’s size) so that the size of
the object can be maintained. See id. As stated above, a determination as to
an object’s size in the viewfinder can reasonably, but broadly, be considered
the confidence level as recited.
Similar to Abe’s discussion in column twelve, the Examiner points to
Yu’s teaching (col. 6, ll. 36-43) that the confidence level is based on a
determination of whether or not an object has moved farther away from view
or is associated with the object’s size in the viewfinder. Ans. 4, 7. Also,
Appellants indicate that “[b]oth references teach automatically adjusting
magnification of an object that is being tracked as it moves towards or away
from a user . . . .” App. Br. 8. Thus, regarding column twelve of Abe, the
Examiner discusses a confidence level consistent with Yu’s, such that the
Examiner’s rejection as whole does not redefine the confidence level. App.
Br. 8.
Additionally, Appellants assert that column twelve’s discussion in
Abe of altering the magnification of an object to keep object the same size
does not use a zoom function for tracking and also fails to distinguish
between using the zoom to regain confidence that an object is being tracked
and adjusting the zoom to keep track of something assumed to be tracked.
App. Br. 6. As the Examiner notes (Ans. 6), the rejection does not rely on
Abe to teach the “increasing magnification” step. Yet, as discussed above
and as discussed in the Response to Argument section (Ans. 6), Abe teaches
and suggests changing magnification of an image visible to an operator (e.g.,
changing size) in response to the object’s size in the viewfinder. See col. 12,
ll. 5-15. That is, if an image in the viewfinder begins to appear smaller in
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Abe, Abe suggests the system will increase magnification so that the size of
the object is maintained at a desired size. See id. Also, notably, claim 27
does not recite zooming in on an object “to regain confidence that an object
is being tracked.” App. Br. 6. Claim 27 also fails to recite an “uncertainty
as to whether the target is being tracked” (App. Br. 7) (emphasis omitted) or
“doubt about whether the camera is tracking the object” (Reply Br. 7).
Yu also teaches such a technique of increasing magnification of an
image visible to an operator (e.g., zooming in on an object) based on a focus
position count. Col. 6, ll. 36-43. Specifically, Yu teaches that if the focus
present count is smaller than the initial focus position count, then the present
object is farther away in distance than the initial object and the object
appears smaller. Col. 6, ll. 36-40; Fig. 4. Yu’s focus position count is thus
based on the object’s size in the viewfinder and, as explained above, relates
to a confidence level. Additionally, Yu teaches zooming in on the image
(e.g., increase magnification) when the focus position count is smaller than
the initial focus position count. Col. 6, ll. 36-43. Consistent with the
disclosure (Spec. 7:13-14), changing the magnification of the image notifies
the user that the confidence level is low or has decreased. Contrary to
Appellants’ assertions (Reply Br. 7), we therefore find Yu teaches increasing
the magnification of an image in response to a decrease in the confidence
level as recited.
Appellants further contend that both Abe and Yu already track the
object and thus do not alter or increase magnification of an image in
response to change in confidence that an object is being tracked. App.
Br. 6-7. We disagree. There is nothing in the disclosure that excludes a
“confidence level” from being tied to an object already being tracked. See
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generally Specification. Also, as stated above, a “confidence level” that the
tracking system is tracking a target as recited can be measured based on an
object’s size in a viewfinder. Both Abe (col. 12, ll. 5-15) and Yu’s (col. 6,
ll. 36-43) confidence level, as explained above, relate to an object in
viewfinder changing size, such that magnification is necessary.
Lastly, we find Appellants’ contentions about other prior art
techniques, such as Loveland (App. Br. 8-9), to be unpersuasive because the
Examiner’s rejection does not rely on the other discussed prior art in
formulating the obviousness rejection.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of independent claim 27 and claims 28 and 29 not separately
argued with particularity.

CONCLUSION
The Examiner did not err in rejecting claims 27-29 under § 103.
We do not reach the merits of the rejection under § 101.

DECISION
The Examiner’s decision rejecting claims 27-29 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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