Ex Parte Bourdev et al

Patent Trials and Appeals Board

May 16, 2018

13408889 - (D) (P.T.A.B. May. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/408,889 02/29/2012
108982 7590 05/18/2018
Wolfe-SBMC
116 W. Pacific A venue
Suite 200
Spokane, WA 99201
FIRST NAMED INVENTOR
Lubomir D. Bourdev
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.
2087US02 7542
EXAMINER
KIM,SANGH
ART UNIT PAPER NUMBER
2141
NOTIFICATION DATE DELIVERY MODE
05/18/2018 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):
docket@sbmc-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LUBOMIR D. BOURDEV, SHMUEL A VIDAN,
and KEVIN T. DALE
Appeal2017-009692
Application 13/408,889
Technology Center 2100
Before JOHN A. JEFFERY, ELENI MANTIS MERCADER, and
JASON M. REPKO, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 21--40. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
1 Appellants identify the real party in interest as Adobe Systems, Inc. App.
Br. 3.
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Application 13/408,889
STATEMENT OF THE CASE
Appellants' invention labels images to identify image content or
elements, such as backgrounds or faces. Unlabeled images may be
positioned in the same display area as labeled images such that the size and
position of the unlabeled elements depends on their similarity to displayed
labeled images. See generally Abstract; Spec. ,r,r 62-65; Fig. 3. Claims 21,
30, and 36 are illustrative:
21. A method for enabling collections of images to be
labeled, the method comprising:
receiving a gesture input selecting one or more unlabeled
images displayed within a user interface;
receiving input that moves said selected one or more
unlabeled images into a display region within the user interface,
the display region being located closer to a first labeled image
than to another labeled image; and
based, at least in part, on receiving the input that moves
said selected one or more unlabeled images into the display
region, labeling said selected one or more unlabeled images
with a label associated with the first labeled image.
30. A non-transitory computer-readable storage medium
storing program instructions executable on a computer to
perform operations comprising:
receiving a user input selecting a labeled image displayed
within a user interface;
receiving another user input selecting at least one
unlabeled image displayed within the user interface, said
another user input indicating a request to assign a label of the
labeled image to said at least one unlabeled image; and
responsive to receiving said another user input, assigning
the label of the labeled image to said at least one unlabeled
image.
36. A system, comprising:
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a memory; and
one or more processors coupled to the memory, the
memory storing program instructions executable by the one or
more processors to perform operations comprising:
receiving a gesture input selecting one or more unlabeled
images displayed within a user interface;
responsive to receiving the gesture input selecting the
one or more unlabeled images, determining which one of
multiple labeled images, displayed within the user interface, is
most similar to the one or more selected, unlabeled images; and
labeling said one or more unlabeled images with a label
associated with the labeled image most similar to the one or
more selected, unlabeled images.
THE REJECTIONS
The Examiner rejected claims 30 and 34 under 35 U.S.C. § I02(e) as
anticipated byNagaoka (US 2010/0310135 Al; Dec. 9, 2010). Final Act. 6-
7_2
The Examiner rejected claims 36 and 40 under 35 U.S.C. § I02(b) as
anticipated by Wen (US 2008/0298766 Al; Dec. 4, 2008). Final Act. 7-8.
The Examiner rejected claims 21-23 and 27 under 35 U.S.C. § 103 as
unpatentable over Wen and Aguera y Areas (US 2010/0278435 Al; Nov. 4,
2010) ("Areas"). Final Act. 9-11.
The Examiner rejected claims 24--26, 28, and 29 under 35 U.S.C.
§ 103 as unpatentable over Wen, Areas, and Saund (US 2003/017923 5 Al;
Sept. 25, 2003). Final Act. 11-14.
2 Throughout this opinion, we refer to (1) the Final Rejection mailed June
30, 2016 ("Final Act."); (2) the Appeal Brief filed January 10, 2017 ("App.
Br."); (3) the Examiner's Answer mailed May 3, 2017 ("Ans."); and (4) the
Reply Brief filed July 3, 2017 ("Reply Br.").
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The Examiner rejected claims 31-33 and 35 under 35 U.S.C. § 103 as
unpatentable over Nagaoka and Saund. Final Act. 14--16.
The Examiner rejected claims 37-39 under 35 U.S.C. § 103 as
unpatentable over Wen and Saund. Final Act. 18-19.
THE ANTICIPATION REJECTION OVER NAGAOKA
The Examiner finds that Nagaoka discloses every recited element of
independent claim 30 including receiving a user input selecting a labeled
image, namely a folder, displayed within a user interface. Final Act. 6-7;
Ans. 7-8.
Appellants argue that selecting a folder in Nagaoka, which is said to
be a container for objects, differs from selecting an image as claimed. App.
Br. 20-23; Reply Br. 9-11. Appellants add that modifying N agaoka to
enable selecting images instead of folders would impermissibly change
Nagaoka's principle of operation and render it inoperative for its intended
purpose. App. Br. 23-24; Reply Br. 11.
ISSUE
Under§ 102, has the Examiner erred in rejecting claim 30 by finding
that Nagaoka's system enables receiving a user input selecting a labeled
image displayed within a user interface?
ANALYSIS
We begin by noting, as does the Examiner, that independent claim 30
does not specify particulars of the recited labeled image apart from its
labeling, and the fact that it is displayed and selected. Therefore, we agree
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with the Examiner that recited "labeled image" covers any labeled image
that is displayed and selectable within a user interface. See Ans. 7-8.
Given this construction, we see no error in the Examiner's mapping
Nagaoka's selectable folder 402 in Figure 6 to the recited labeled image.
Final Act. 6-7; Ans. 7-8. Although the folders on the left side ofNagaoka's
Figure 6 are containers for objects as Appellants indicate (App. Br. 22;
Reply Br. 10), these folders are nonetheless represented by labeled images
displayed on the graphical user interface. On this interface, then, the user
selects a labeled image of a particular folder to select that folder.
To the extent that Appellants contend that the recited labeled image
must be afacial image (see App. Br. 22; Reply Br. 10), such an argument is
not commensurate with the scope of the claim that recites no such images.
We also find unavailing Appellants' contention that modifying Nagaoka to
enable selecting images instead of folders would impermissibly change
Nagaoka's principle of operation and render it inoperative for its intended
purpose. See App. Br. 23-24; Reply Br. 11. In short, this argument is
inapposite to the Examiner's anticipation rejection that is not based on
modifying Nagaoka, but rather the fact that Nagaoka's displayed folders in
Figure 6 are selectable labeled images.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 30, and claim 34 not argued separately with particularity.
THE ANTICIPATION REJECTION OVER WEN
The Examiner finds that Wen discloses every recited element of
independent claim 36 including determining which of multiple labeled
images displayed within a user interface, namely those images associated
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with name tags 312, 322, is most similar to one or more selected unlabeled
images responsive to receiving a gesture input selecting the unlabeled image,
namely by right-clicking a thumbnail image 330 or 340. Final Act. 7-8;
Ans. 9-10. According to the Examiner, the unlabeled image is labeled with
a label associated with the labeled image most similar to the selected
unlabeled image, such as "Tom" from context menu 310. Ans. 10.
Appellants argue that Wen's Figure 3 embodiment merely ranks
suggested names-not images----of previously tagged people in a context
menu, nor are these names equivalent to the recited labeled images displayed
within the user interface. App. Br. 25-28; Reply Br. 12-13. According to
Appellants, modifying Wen to display images rather than names would
impermissibly change Wen's operating principle and render Wen
inoperative for its intended purpose. App. Br. 28; Reply Br. 13. Appellants
add that the Examiner's reliance on Wen's embodiment in Figure 5 in
connection with the recited labeling function is improper because, among
other things, the embodiments of Wen's Figures 3 and 5 are mutually
exclusive and not combinable. App. Br. 28-29.
ISSUE
Under§ 102, has the Examiner erred in rejecting claim 36 by finding
that Wen ( 1) determines which of multiple labeled images displayed within a
user interface is most similar to one or more selected unlabeled images
responsive to receiving a gesture input selecting the one or more unlabeled
images, and (2) labels unlabeled images with a label associated with the
labeled image most similar to the selected unlabeled image?
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ANALYSIS
We begin by noting that, in rejecting claim 36, the Examiner relies on
the functionality of Wen's Figure 3 for all but the labeling function in the
claim's last clause, but relies on the functionality of Wen's Figure 5 for
disclosing that function. See Final Act. 7-8. In the Answer, however, the
Examiner relies solely on the functionality of Wen's Figure 3 for teaching
the recited labeling function. See Ans. 10.
Despite this shift, we nonetheless see no harmful error in the
Examiner's rejection given these revised findings. As shown in Wen's
Figure 3, a pop-up context menu 310 or 320 appears when the user right
clicks a thumbnail 330 or 340. Wen ,r 48. As the Examiner indicates, this
right-click-based selection fully meets receiving a gesture input selecting
one or more unlabeled images displayed within a user interface, particularly
in view of the "???" label associated with these selected thumbnails in
Wen's Figure 3. See Final Act. 7-8.
As noted in Wen's paragraph 49, context menus 310 and 320 include
suggested name tags 312 and 322 that are ranked according to the similarity
between faces in the selected cluster and faces of the tagged person.
Notably, these context menus 310 and 320 include not only suggested name
tags 312 and 322, but also these tags' corresponding images as shown in the
partial detail views of context menus 310 and 320 in Wen's Figure 3
reproduced below:
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.... \\···.·.·.·.···· .. · .. :··:: ... : ....
. '· .·.
Partial detail views of Wen's Fig. 3 showing context menus 310 and 320
As shown above, the images in the context menus are labeled "Tom,"
"Kate " "Jim" and "Jackson" respectively and therefore are "labeled
' ' ' ' '
images" as the Examiner indicates. Ans. 10. And because these images'
name tags are ranked according to facial similarity to selected unlabeled
images as noted above, these tags' corresponding images, namely the
"labeled images," are likewise so ranked and displayed within the user
interface. That is, this displayed ranking indicates which labeled image is
most similar to the selected unlabeled images, namely the image having the
highest ranking which, in Wen's Figure 3, is Tom's image.
Because this context menu and similarity ranking appears responsive
to the user right-clicking unlabeled images to select them, Wen's similarity
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determination occurs responsive to receiving this right-click-based gesture
input. Notably, the user can select the label associated with the most similar
image, namely the label "Tom," to use as the label for the selected unlabeled
images as the Examiner indicates. Ans. 10 (citing Wen ,r 49).
The functionality of Wen's Figure 3, then, anticipates claim 36.
Appellants' contention that Wen's context menu merely ranks suggested
names-not images----of previously-tagged people (App. Br. 25-28; Reply
Br. 12-13) is unavailing, for this argument ignores the images corresponding
to the context menu's facial similarity ranking noted above.
We also find unavailing Appellants' contention that modifying Wen to
display images rather than names would impermissibly change Wen's
principle of operation and render Wen inoperative for its intended purpose.
See App. Br. 28; Reply Br. 13. In short, this argument is inapposite to the
Examiner's anticipation rejection that is not based on modifying Wen, but
rather the fact that Wen's similarity determination in Figure 3 displays both
images and names within the user interface as noted above.
Lastly, Appellants' arguments regarding the Examiner's reliance on
Wen's Figure 5 for teaching the recited labeling function (App. Br. 28-29)
are not germane to the Examiner's reliance on Wen's Figure 3 for teaching
that function on page 10 of the Answer. As noted above, we see no error in
the Examiner's revised findings in this regard.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 36 and claim 40 not argued separately with particularity.
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THE OBVIOUSNESS REJECTION OVER WEN AND ARCAS
Regarding independent claim 21, the Examiner finds that Wen's drag-
and-drop functionality in Figure 5 (1) receives input that moves selected
unlabeled images into a display region within a user interface, and (2) labels
the selected unlabeled images with a label associated with a first labeled
image. Final Act. 9--10. Although the Examiner acknowledges that Wen
does not explicitly teach that the display region is located closer to the first
labeled image than to another labeled image, the Examiner cites Areas for
teaching this feature in concluding that the claim would have been obvious.
Final Act. 10-11.
Appellants argue that the Examiner's reliance on Areas is improper
because, among other things, Areas lacks the recited display region and does
not label images. App. Br. 11-16; Reply Br. 2---6. Appellants add that the
Examiner's rationale for combining Wen and Areas is misplaced because (1)
Wen's user interface in Figure 5 is well-suited to enable a user to label
unlabeled images, (2) Wen's contextual re-ranking rearranges similar photos
closer to the clicked photo, thus, obviating the need for Areas' teachings, (3)
the cited references have different purposes, and (4) the proposed
combination would render Wen less operable for its intended purpose
because Wen's thumbnail area 520 and group view area 510 would grow
proportionally larger and smaller, respectively, thus providing less options to
label unlabeled images. App. Br. 16-19; Reply Br. 7. Appellants argue
other recited limitations summarized below.
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ISSUES
I. Under§ 103, has the Examiner erred by finding that Wen and
Areas collectively would have taught or suggested:
(1) receiving input that moves selected one or more unlabeled image
into a display region within a user interface, where the display region is
located closer to a first labeled image than to another labeled image, and (2)
labeling the selected unlabeled images with a label associated with the first
labeled image based at least partly on receiving the input as recited in claim
21?
(2) labeling is performed without requiring a user to select the first
labeled image using a selection tool as recited in claim 22?
II. Is the Examiner's proposed combination of Wen and Areas
supported by articulated reasoning with some rational underpinning to
justify the Examiner's obviousness conclusion?
ANALYSIS
Claims 21, 23, and 27
As noted above, the Examiner relies principally on Wen's drag-and-
drop functionality in Figure 5 in connection with claim 21, and, in particular,
the Examiner maps the face group 512 labeled "Tom" to the recited display
region into which a selected unlabeled image (face 522) is moved. Final
Act. 9. As shown in Wen's Figure 5 reproduced below, an unlabeled face
522 is dragged from thumbnail area 520 and dropped to face group 512
labeled "Tom," thus, automatically tagging the face 522 to the name "Tom."
Wen ,r 53.
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512
Fiig~ 5
,---510
/
I
.I
Wen's drag-and-drop functionality in Figure 5
Notably, Appellants do not persuasively rebut the Examiner's finding
that face group 512-a display region-is located closer to photos labeled
with "Tom" than any other labeled photos. Ans. 3. This finding has at least
a rational basis on this record given the relative proximity of the displayed
region associated with face group 512 to the photos labeled with "Tom" as
compared to the proximity of other face groups to those photos as shown in
Wen's Figure 5.
Although Areas is technically cumulative to Wen in this regard, we
nevertheless see no error in the Examiner's reliance on Areas merely to
show that locating a display region closer to one image than to another is
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known in the art, particularly in light of the similarity-based proximity
between images in Areas' Figures 4A to 4D. Final Act. 10-11; Ans. 3-5.
As shown in Areas' Figure 4C, for example, images that are more similar to
the selected center image "O" are located closer to the selected image than
those that are less similar. See Areas ,r 3 8.
Despite Appellants' arguments to the contrary (App. Br. 11-18; Reply
Br. 2-7), we see no reason why Wen's face-group-based display regions
could not be located closer to similar labeled images than to other labeled
images that are less similar given Areas' teachings. Appellants' arguments
regarding Areas' alleged individual shortcomings, including Areas allegedly
lacking the recited display region and labelled images (App. Br. 11-16;
Reply Br. 2---6) are not germane to the limited purpose for which Areas was
cited, namely merely to show that locating a display region closer to one
image than to another image based on their relative similarity is known in
the art, and that providing such a relative location in Wen would have been
at least an obvious variation. Final Act. 10-11; Ans. 3-5. Such an
enhancement uses prior art elements predictably according to their
established functions-an obvious improvement. See KSR Int 'l Co. v.
Teleflex, Inc., 550 U.S. 398, 417 (2007).
We reach this conclusion even assuming, without deciding, that the
Examiner's proposed combination would somehow necessitate changing the
relative sizes of the display regions as Appellants seem to suggest. App. Br.
1 7. Not only is this contention unsubstantiated on this record, making
similar display regions larger than less similar display regions in a manner
suggested by Areas' Figure 4C could improve the user's ability to more
easily identify similar display regions in Wen, thus, at least contributing to
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improved accuracy and efficiency in labelling images associated with those
regions as the Examiner indicates. See Ans. 4--5. To the extent that such
relative regional size differences somehow reduce labelling options in Wen
as Appellants contend (App. Br. 17}-a contention that is likewise
unsubstantiated on this record-such purported drawbacks could very well
be outweighed by the above-noted benefits of the Examiner's proposed
enhancement to Wen. In short, such considerations amount to an
engineering trade-off well within the level of ordinarily skilled artisans.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 21, and claims 23 and 27 not argued separately with particularity.
Claim 22
We also sustain the Examiner's rejection of claim 22 reciting, in
pertinent part, that labeling is performed without requiring a user to select
the first labeled image using a selection tool. Despite Appellants' arguments
to the contrary (App. Br. 19--20; Reply Br. 7-8), we see no error in the
Examiner's finding that the user selects only an unlabeled image, namely
face 522, by dragging and dropping it into the face group 512 labeled "Tom"
to automatically label that image. Final Act. 11; Ans. 5---6 (citing Wen ,r 53;
Fig. 5).
Although there are four images shown in that face group in Wen's
Figure 5, none of those images is selected as the Examiner indicates, let
alone using a selection tool as claimed. Ans. 5. Even assuming, without
deciding, that face group 512 is selected with a selection tool by dropping
the selected face 522 in that group as Appellants seem to suggest (App. Br.
19--20; Reply Br. 7-8), that does not mean that the images in that group,
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including its four images shown in Figure 5, are selected, let alone with a
selection tool as claimed. Appellants' arguments to the contrary are
unavailing and not commensurate with the scope of the claim.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 22.
THE OBVIOUSNESS REJECTION OVER WEN, ARCAS, AND SAUND
We also sustain the Examiner's rejection of claim 24 over Wen,
Areas, and Saund. Final Act. 12-13. Despite Appellants' arguments to the
contrary (App. Br. 20; Reply Br. 8), we see no error in the Examiner's
reliance on Saund's paragraphs 10 and 26 merely to show that using
rectangles to select displayed images is known in the art, and that providing
such a feature in the W en/Saund system would have been obvious to, among
other things, improve selecting similar images for annotation (Final Act. 12-
13; Ans. 6-7}-a predictable result given the user's ability to bound
particular displayed elements of interest within a rectangular selection region
as shown, for example, in the region 160 in Saund's Figure 1. Such an
enhancement uses prior art elements predictably according to their
established functions-an obvious improvement. See KSR, 550 U.S. at 417.
On this record, then, the Examiner's proposed combination of the
cited references is supported by articulated reasoning with some rational
underpinning to justify the Examiner's obviousness conclusion. We reach
this conclusion not only for claim 24, but also claims 25, 26, 28, and 29 as
well. Although Appellants nominally argue that the Examiner did not offer
a motivation to combine the references for claims 25, 26, 28, and 29 (App.
Br. 20), the Examiner's rejection of these claims is based on the same
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references cited in connection with claim 24, and the Examiner's articulated
reason to combine those references likewise applies to those claims despite
the references teaching or suggesting additional recited features. In short,
these additional features use prior art elements predictably according to their
established functions-an obvious improvement. See KSR, 550 U.S. at 417.
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 24--26, 28, and 29.
THE OBVIOUSNESS REJECTION OVER NAGAOKA AND SAUND
We also sustain the Examiner's rejection of claim 31 over Nagaoka
and Saund. Final Act. 14--15. Despite Appellants' arguments to the
contrary (App. Br. 24; Reply Br. 11-12), we see no error in the Examiner's
reliance on Saund's paragraphs 10 and 26 merely to show that using
rectangles to select displayed images is known in the art, and that providing
such a feature in Nagaoka's system would have been obvious to, among
other things, improve selecting similar images for annotation (Final Act. 14--
15; Ans. 8-9}-a predictable result given the user's ability to bound
particular displayed elements of interest within a rectangular selection region
as shown, for example, in the region 160 in Saund's Figure 1. Such an
enhancement uses prior art elements predictably according to their
established functions-an obvious improvement. See KSR, 550 U.S. at 417.
On this record, then, the Examiner's proposed combination of the
cited references is supported by articulated reasoning with some rational
underpinning to justify the Examiner's obviousness conclusion. We reach
this conclusion not only for claim 31, but also claims 32, 33, and 35 as well.
Although Appellants nominally argue that the Examiner did not offer a
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motivation to combine the references for claims 32, 33, and 35 (App. Br.
24--25), the Examiner's rejection of these claims is based on the same
references cited in connection with claim 31, and the Examiner's articulated
reason to combine those references likewise applies to those claims despite
the references teaching or suggesting additional recited features. In short,
these additional features use prior art elements predictably according to their
established functions-an obvious improvement. See KSR, 550 U.S. at 417.
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 31-33 and 35.
THE OBVIOUSNESS REJECTION OVER WEN AND SAUND
We also sustain the Examiner's rejection of claim 37 over Wen and
Saund. Final Act. 18-19. Despite Appellants' arguments to the contrary
(App. Br. 30; Reply Br. 13-14), we see no error in the Examiner's reliance
on Saund's paragraphs 10 and 26 merely to show that using rectangles to
select displayed images is known in the art, and that providing such a feature
in Nagaoka's system would have been obvious to, among other things,
improve selecting similar images for annotation (Final Act. 14--15; Ans. 8-
9}-a predictable result given the user's ability to bound particular displayed
elements of interest within a rectangular selection region as shown, for
example, in the region 160 in Saund's Figure 1. Such an enhancement uses
prior art elements predictably according to their established functions-an
obvious improvement. See KSR, 550 U.S. at 417.
On this record, then, the Examiner's proposed combination of the
cited references is supported by articulated reasoning with some rational
underpinning to justify the Examiner's obviousness conclusion. We reach
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this conclusion not only for claim 37, but also claims 38 and 39 as well.
Although Appellants nominally argue that the Examiner did not offer a
motivation to combine the references for claims 38 and 39 (App. Br. 30), the
Examiner's rejection of these claims is based on the same references cited in
connection with claim 3 7, and the Examiner's articulated reason to combine
those references likewise applies to those claims despite the references
teaching or suggesting additional recited features. In short, these additional
features use prior art elements predictably according to their established
functions-an obvious improvement. See KSR, 550 U.S. at 417.
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 37-39.
CONCLUSION
The Examiner did not err in rejecting (1) claims 30, 34, 36, and 40
under§ 102, and (2) claims 21-29, 31-33, 35, and 37-39 under§ 103.
DECISION
We affirm the Examiner's decision to reject claims 21--40.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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