Ex Parte Buelow et al

Patent Trial and Appeal Board

Jan 3, 2018

14356394 (P.T.A.B. Jan. 3, 2018)

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UNITED STATES DEPARTMENT OF COMMERCE
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/356,394 05/06/2014 Thomas Buelow 2011P01858WOUS 3165
24737 7590 01/05/2018
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue NGUYEN, LUU-PHUONG T
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2177
NOTIFICATION DATE DELIVERY MODE
01/05/2018 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS BUELOW, KIRSTEN REGINA MEETZ, and
MARTIN BERGTHOLDT
Appeal 2017-008247
Application 14/356,394
Technology Center 2100
Before JOSEPH L. DIXON, ERIC S. FRAHM, and DENISE M. POTHIER,
Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge FRAHM.
Opinion Concurring filed by Administrative patent Judge POTHIER.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-008247
Application 14/356,394
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-14 and 16-21. Claim 15 has been canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.
The Examiner has rejected (i) claims 1-5, 9-14, and 16-20 under 35
U.S.C. § 102(b) as being anticipated by Pershing (US 2010/0114537 Al;
published May 6, 2010) (Final Act. 3-8; Ans. 3-9); and (ii) claims 6-8 and
21 under 35 U.S.C. § 103(a) as being unpatentable over Pershing and Liu
(US 2012/0088981 Al; published Apr. 12, 2012) (Final Act. 9-12; Ans. 10-
13).
We have reviewed Appellants’ arguments in the Briefs (App. Br. 7-14
and Reply Br. 2-7), the Examiner’s rejection (Final Act. 3-12; Ans. 3-13),
and the Examiner’s response (Ans. 13-28) to Appellants’ arguments.
Independent claims 1,14, and 16 on appeal recite a system for interactive
annotation including a user input and a processor (claim 1), a method of
enabling interactive annotation of an image (claim 14), and a non-transitory
computer-readable medium having a program executable by a processing
system, to (1) receive a command from a user indicative of a first placement
location of a marker in the image; (2) apply an image processing algorithm
to a region in an image to determine match degrees between a marker and
image portions within the region; (3) determine a second placement location
of the marker in the image; and (4) place the marker at the second placement
location in the image.
Based on Appellants’ arguments (App. Br. 10-11), we conclude the
Examiner erred in applying Pershing as an anticipating reference for
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Appeal 2017-008247
Application 14/356,394
Appellants’ claims 1, 14, and 16. Specifically, we agree with Appellants
(App. Br. 10-11) that Pershing (]fl| 65-73) fails to disclose “determining a
second placement location ” of a marker in an image, and “placing the
marker at the second placement location ” in the image by determining
match degrees between the marker in the image and image portions within a
region of the image, as recited in independent claim 14 and similarly recited
in independent claims 1 and 16. Our review of paragraphs 60-73 of
Pershing reveals a description of a first marker 410, and of an image
registration and image lean correction process; however Pershing is silent as
to determining a location for, and placing, a second marker.
Although paragraphs 34 and 35 of Pershing describe a reconstruction
algorithm that operates on reference points in a roof modeling engine 102 to
correct the pitch/skew of an aerial image of a building (caused by pitch, roll,
or yaw angles of an aircraft from which the picture is taken), this does not
meet the requirement of claims 1, 14, and 16 on appeal that a second
placement location be determined, and a marker placed at that location.
We find no such disclosure in Pershing to support the Examiner’s
position that this claimed subject matter (i.e., determining a second
placement location and placing a marker at that location) is anticipated by
Pershing. We will not resort to speculation or assumptions to cure the
deficiencies in the Examiner’s fact finding. See In re Warner, 379 F.2d
1011, 1017 (CCPA 1967). As such, based on the record, we find that the
Examiner improperly relies upon Pershing to disclose and anticipate the
disputed claim limitations. See Warner at 1017.
In view of the foregoing, we do not sustain the Examiner’s
anticipation rejection of independent claims 1,14, and 16, as well as
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Appeal 2017-008247
Application 14/356,394
dependent claims 2-5, 9-13, and 17-20 depending respectively therefrom.
And for similar reasons, and because as a result the Examiner’s obviousness
rejection is based on the Examiner’s erroneous anticipation findings with
regard to Pershing discussed supra, we likewise do not sustain the
Examiner’s obviousness rejection of remaining dependent claims 6-8 and 21
over Pershing in view of Liu.
CONCLUSION
Appellants have persuaded us of error in the Examiner’s decision to
reject claims 1-14 and 16-21.
DECISION
We reverse the decision of the Examiner to reject claims 1-14 and
16-21.
REVERSED
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UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS BUELOW, KIRSTEN REGINA MEETZ, and
MARTIN BERGTHOLDT
Appeal 2017-008247
Application 14/356,394
Technology Center 2100
Before JOSEPH L. DIXON, ERIC S. FRAHM, and DENISE M. POTHIER,
Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
I agree with the Majority’s decision. I write separately to address the
Examiner’s discussion concerning the operator’s involvement/feedback with
marker placement and limitations in claim 1. See, e.g., Ans. 15-18, 22
(citing Pershing ^ 65-73). To be sure, the cited passages discuss an
operator placing markers (e.g., 410-413) on an image and adjusting the
origin markers’location. See Pershing 65, 69; Figs. 4C, E. I further
agree with the Examiner that Pershing teaches a processor is involved with
the disclosed, automatic-orientation adjustment addressed by Pershing. See
Appeal 2017-008247
Application 14/356,394
Ans. 15-16, 22; see also Pershing 65 (discussing “automatically adjusted
by the roof estimation system.”)
However, as Appellants indicate (Reply Br. 2, 5), claim 1 recites the
processor—not an operator—(1) “applies an image processing algorithm . .
., the image processing algorithm determining a plurality of match degrees
between the marker and a plurality of image portions within the region” and
(2) “determines a second placement location in dependence on the plurality
of match degrees and the respective plurality of image portions for matching
the marker to the region in the image.” App. Br. 15 (Claims App’x)
(emphases added). Granted, this recitation does not exclude user interaction
but the processor in claim 1 performs the above functions. See id. Thus, to
the extent Pershing teaches an operator determining the recited match
degrees and the second placement location for a marker (see Ans. 15-18,
22), Pershing does not address the claimed “processor” is configured (1) to
apply an image processing algorithm to determine the match degrees and (2)
to determine a second placement location as recited in claim 1. Moreover,
whether automating such operator steps would have been obvious to one
skilled in the art is not before us, given that the rejection is based on
anticipation. See Ans. 3-5.
For these additional reasons, I would not sustain the rejection as
presented.
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