Ex Parte Champion

Board of Patent Appeals and Interferences

May 12, 2009

10107118 (B.P.A.I. May. 12, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MARK CHAMPION
____________

Appeal 2009-0690
Application 10/107,118
Technology Center 2600
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Decided:1 May 12, 2009
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Before KENNETH W. HAIRSTON, JOHN A. JEFFERY,
and CARL W. WHITEHEAD, JR., Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-0690
Application 10/107,118

Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1-24 (see App. Br. 1). We have jurisdiction under 35
U.S.C. § 6(b). We affirm.

STATEMENT OF THE CASE
Appellant invented a method and apparatus for correcting image
distortion using pixel pages2
Claim 1 which further illustrates the invention follows:
1. A vertical scaling system, comprising:
a pixel page system, where the pixel page system stores pixel data using
pixel pages according to horizontal rows of pixels in a frame and retrieves
pixel data using pixel pages according to vertical columns of pixels in a
frame;
wherein a plurality of pixels in a first vertical column is consecutively
retrieved before retrieving any pixels in a second vertical column; and
a scaling engine connected to the pixel page system, where the scaling
engine scales pixel data according to vertical columns of pixels in a frame.

The Rejections3
The Examiner relies upon the following prior art references as
evidence of unpatentability:

Hau US 5,587,742 Dec. 24, 1996

2 See generally App. Br. 2.
3 See Ans. 3-8
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Application 10/107,118

Lippincott US 6,724,948 B1 Apr. 20, 2004

The Examiner rejected claims 1-24 under 35 U.S.C. § 103(a) as being
unpatentable over Lippincott and Hau.
Rather than repeat the arguments of the Appellant or the Examiner,
we refer to the Briefs and the Answer for their respective details. In this
decision, we have considered only those arguments actually made by
Appellant. Arguments which Appellant could have made but did not make
in the Briefs have not been considered and are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(vii).

Claims 1-24
Appellant argues that neither Lippincott nor Hau alone or in
combination discloses wherein a plurality of pixels stored in a first vertical
column is consecutively retrieved before retrieving any pixels in a second
vertical column (App. Br. 10). It is the Examiner’s position that Hau teaches
a plurality of pixels in a first vertical column that is consecutively retrieved
before retrieving any pixels in a second vertical column and, therefore, when
combined with Lippincott, discloses the claimed invention (Ans. 6).

ISSUE
Has the Appellant shown that the Examiner erred in finding that the
combination of Lippincott and Hau discloses a vertical scaling system that
retrieves a plurality of pixels in a first vertical column before retrieving any
pixels in a second vertical column?

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Application 10/107,118

FINDINGS OF FACT
Lippincott
1. Figure 4 of Lippincott is reproduced below:

Figure 4 shows a two-pass scaling method
Figure 4 discloses a two-pass scaling technique that vertically and
horizontally scales a 1920x540 1080i HDTV image (22) stored in memory.
A first pass vertically scales (18) the image (22) to a 4:1 vertically scaled
1920x135 image (24). A second pass (20) horizontally scales the vertically
scaled image (24) to a 4:1 vertically and horizontally scaled 480x135 final
image (26) (col. 2, ll. 45-52).
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2. Figure 5 of Lippincott is reproduced below:

Figure 5 shows the vertical scaling portion of the two pass scaling
method
Figure 5 discloses creating a vertically scaled image by having the first pass
read four memory locations to gather four horizontal pixel segments (25)
with each segment having four pixels of the image. The four horizontal
pixel segments (25) are stored in a filter; the first pass compresses the four
vertical pixel segments (29). The remaining horizontal pixel segments (25)
are processed from top to bottom, working from the left column to the right
column (col. 3, ll. 1-16).
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Application 10/107,118

3. Figure 6 of Lippincott is reproduced below:

Figure 6 shows the horizontal scaling portion of the two pass scaling
method
Figure 6 discloses creating the final image by having the second pass read a
horizontal pixel segment (27) of four pixels of the vertically scaled image
(24) and compress them to form one pixel. The horizontal segments are
processed from top to bottom, starting from the left column to the right
column (col. 3, ll. 25-36).

PRINCIPLES OF LAW
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) (citations omitted) (internal
quotation marks omitted). “[T]he words of a claim ‘are generally given their
ordinary and customary meaning.’” Phillips v. AWH Corp., 415 F.3d 1303,
1312 (Fed. Cir. 2005) (en banc) (internal citations omitted).
Office personnel must rely on Appellant's disclosure to properly
determine the meaning of the terms used in the claims. Markman v.
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Application 10/107,118

Westview Instruments, Inc., 52 F.3d 967, 980 (Fed. Cir. 1995) (en banc).
“[I]nterpreting what is meant by a word in a claim is not to be confused with
adding an extraneous limitation appearing in the specification, which is
improper.” In re Cruciferous Sprout Litigation, 301 F.3d 1343, 1348
(emphasis in original) (citations and quotations omitted).
"'A prima facie case of obviousness is established when the teachings
from the prior art itself would appear to have suggested the claimed subject
matter to a person of ordinary skill in the art.'" In re Bell, 991 F.2d 781, 783
(Fed. Cir. 1993) (quoting In re Rinehart, 531 F.2d 1048, 1051 (CCPA
1976)).
If the Examiner’s burden is met, the burden then shifts to the
Appellant to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992).

ANALYSIS
The Appellant argues that the advantage of consecutively retrieving a
plurality of pixels in a first vertical column before retrieving any pixels in a
second vertical column is that the pixels can be directly processed instead of
further rearranging the pixel data prior to processing (App. Br. 10). The
Examiner replies by indicating that the term “directly” is not in the claims
and therefore the claims should be interpreted without any consideration
given to the term (Ans. 6-7). Reviewing independent claims 1, 15, and 23,
we are in agreement with the Examiner’s position with regard to the
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relevance of the term “directly” with respect to determining the scope of the
claims.
The Appellant states that the Examiner has conceded that Lippincott
does not disclose that a plurality of pixels in a first vertical column is
consecutively retrieved before retrieving any pixels in a second vertical
column (App. Br. 9). See also Ans. 3-6. Further, it is the Appellant’s
assessment that Lippincott clearly teaches away from vertically processing
the pixels by retrieving the pixels by horizontal rows and that Hau fails to
make up for Lippincott’s deficiencies (App. Br. 9). We disagree with the
Appellant’s assessment of Lippincott.
Lippincott discloses a two-pass scaling or image resizing technique
wherein the image is vertically scaled via a first pass and is horizontally
scaled during the second pass to achieve the final resized image (FF1). The
vertical scaling of the image is achieved by grouping (29) four horizontal
pixel segments (25) together and then compressing them into a single
horizontal pixel segment (27) of four pixels (FF2-3). The remaining
horizontal pixel segments are processed from top to bottom working from
the left column to the right column (FF2).
The overlay scaling is achieved by employing the same technique
during the second pass wherein the horizontal segments (27) are compressed
to form one pixel (FF3). The horizontal segments are processed from top to
bottom, starting from the left column and proceeding to the columns to the
right (FF3).
Although Lippincott groups the pixel segments horizontally, the
pluralities of pixels are processed vertically and consecutively by column
(FF2-3). Claim 1 states, “wherein a plurality of pixels in a first vertical
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Application 10/107,118

column is consecutively retrieved before retrieving any pixels in a second
vertical column.” Lippincott’s horizontal rows are a plurality of pixels that
are consecutively retrieved from one column before retrieving pixels from a
second vertical column as claimed (FF2-3). We find the Examiner’s
assessment of Lippincott’s deficiency is not accurate.
Therefore, for these reasons, we find that Lippincott actually
anticipates claim 1. Nevertheless, we find no reversible error in the
Examiner's obviousness rejection based on Lippincott and Hau as
obviousness rejections can be based on references that happen to anticipate
the claimed subject matter. See In re Meyer, 599 F.2d 1026, 1031 (CCPA
1979). In sustaining a multiple reference rejection under 35 U.S.C. § 103(a),
the Board may rely on one reference alone without designating it as a new
ground of rejection. In re Bush, 296 F.2d 491, 496 (CCPA 1961); In re
Boyer, 363 F.2d 455, 458 n.2 (CCPA 1966).
Appellant argues that claim 1 and dependent claims 2-14 are
distinguished over the combination of Lippincott and Hau because the
combination fails to disclose a plurality of pixels retrieved in the manner
claimed (App. Br. 10). We find this argument is not persuasive for the
reasons stated previously. Appellant further argues that since independent
claims 15 and 22 contain distinguishing limitations similar to those
discussed in regard to claim 1, claims 15 and 22 and their dependent claims
16-21 and 23-24 are also distinguished over the combination of Lippincott
and Hau for the same reasons. We also find that this argument is not
persuasive for the reasons stated previously.
Appellant further argues that claims 2, 16 and 23 contain limitations
to correct vertical image distortion; claims 3 and 17 contain limitations
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specifying the image distortion is vertical keystone distortion; and claims 4
and 14 contain limitations specifying the vertical distortion is vertical bowtie
distortion (Rep. Br. 8). These arguments were not timely raised in the
Appeal Brief, but were brought up for the first time in the Reply Brief and
because of that, the arguments are considered waived.4
We sustain the Examiner’s obviousness rejection of claims 1-24 over
Lippincott and Hau.
CONCLUSION OF LAW
The Appellant has not shown that the Examiner erred in finding that
the combination of Lippincott and Hau discloses a vertical scaling system
that retrieves a plurality of pixels in a first vertical column before retrieving
any pixels in a second vertical column.

DECISION
We will sustain the decision of the Examiner to reject claims 1-24.

4 See Optivus Tech., Inc. v. Ion Beam Appls. S.A., 469 F.3rd 978, 989 (Fed.
Cir. 2006) (“[A]n issue not raised by an appellant in its opening brief … is
waived.”) (citations and quotation marks omitted).

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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

ELD

SCOTT J. MENGHINI
120 S. LA SALLE STREET, SUITE 1600
CHICAGO, IL 60603-3406
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