12798122 (P.T.A.B. Apr. 28, 2014)

Ex Parte Ferman

Patent Trial and Appeal BoardApr 28, 2014

12798122 (P.T.A.B. Apr. 28, 2014)

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. 12/798,122 03/30/2010 A. Mufit Ferman SLA1346.1 (7146.0442) 1624 55648 7590 04/29/2014 CHERNOFF VILHAUER MCCLUNG & STENZEL, LLP 601 SW Second Ave., Suite 1600 PORTLAND, OR 97204 EXAMINER AHMED, SAMIR ANWAR ART UNIT PAPER NUMBER 2665 MAIL DATE DELIVERY MODE 04/29/2014 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 PATENT TRIAL AND APPEAL BOARD ____________ Ex parte A. MUFIT FERMAN ____________ Appeal 2012-000039 Application 12/798,122 Technology Center 2600 ____________ Before JEAN R. HOMERE, ELENI MANTIS MERCADER, and JEFFREY S. SMITH, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-000039 Application 12/798,122 2 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-20, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Illustrative Claim 1. A method to identify sub-regions of a multi-channel image as containing red-eye, said method comprising the steps of: (a) a processor converting said multi-channel image to a modified multi-channel image wherein at least one of said channels is an enhanced luminance channel that has more than 60% of the luminance information of said multi-channel image and at least one of said channels is a saturation channel; (b) said processor deriving a flash mask by applying a luminance threshold operation to said enhanced luminance channel, said flash mask identifying spatial boundaries around regions of said multi-channel image potentially affected by a flash; (c) said processor masking said saturation channel with said spatial flash mask to derive a masked saturation channel; (d) said processor deriving a saturation mask by applying a saturation threshold to said masked saturation channel; (e) said processor identifying red-eye using said saturation mask and removing the identified said red eye from said multi-channel image. Prior Art Benati US 5,748,764 May 5, 1998 Koga US 5,848,185 Dec. 8, 1998 Liang US 6,678,413 B1 Jan. 13, 2004 Appeal 2012-000039 Application 12/798,122 3 Examiner’s Rejections Claims 1-8 and 10-14 stand rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the enablement requirement. Claims 1, 6-11, and 15-20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Benati. Claims 2-5 and 12-14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Benati and Koga. ANALYSIS Section 112, first paragraph rejection of claims 1-8 and 10-14 “Although the statute does not say so, enablement requires that the specification teach those in the art to make and use the invention without ‘undue experimentation.’ That some experimentation may be required is not fatal; the issue is whether the amount of experimentation required is ‘undue.’” In re Vaeck, 947 F.2d 488, 495 (Fed. Cir. 1991) (citations omitted). “Whether undue experimentation is needed is not a single, simple factual determination, but rather is a conclusion reached by weighing many factual considerations.” In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988). The factors to be considered in determining whether a disclosure would require undue experimentation include: (1) the quantity of experimentation necessary, (2) the amount of direction or guidance presented, (3) the presence or absence of working examples, (4) the nature of the invention, (5) the state of the prior art, (6) the relative skill of those in the art, (7) the predictability or unpredictability of the art, and (8) the breadth of the claims. Id. Appeal 2012-000039 Application 12/798,122 4 The examiner bears the initial burden of setting forth a reasonable explanation as to why the scope of protection provided by the claims is thought to be not adequately enabled by the description of the invention provided in the specification. If that burden is met, the burden then shifts to the applicant to provide proof that the specification is indeed enabling. In re Wright, 999 F.2d 1557, 1561-62 (Fed. Cir. 1993). The Examiner finds “masking said saturation channel with said spatial flash mask to derive a masked saturation channel; deriving a saturation mask by applying a saturation threshold to said masked saturation channel” as recited in claim 1 is not enabled by Appellant’s Specification. Ans. 4-5. The Examiner also finds “determining a mask from the masked said saturation channel, and using said saturation mask to mask said hue channel so as to determine, from said masked hue channel, which said pixels represent red-eye” as recited in claim 10 is not enabled by Appellant’s Specification. Ans. 5. Appellant contends paragraphs 21 and 22 of the Specification disclose applying the flash mask to another component of the image, and paragraph 26 discloses applying a threshold to the saturation channel. App. Br. 6-7. The Examiner finds that paragraphs 21, 22, and 26 do not enable masking the saturation channel with the spatial flash mask. Ans. 13-14. Appellant contends applying a flash mask to a channel such as a saturation channel is simply overlaying the mask on the saturation channel, then applying the saturation threshold to the masked regions. Reply Br. 4-5. However, paragraphs 21, 22, and 26 of Appellant’s Specification do not disclose overlaying the flash mask on the saturation channel, then applying the saturation threshold to the masked regions. Rather, paragraph Appeal 2012-000039 Application 12/798,122 5 21 discusses obtaining a final flash mask after area-based thresholding and convex hull generation. Paragraph 22 discusses applying the flash mask to the hue component. Paragraph 26 computes a standard deviation of the saturation component for each pixel, then identifies pixels likely to be red- eye artifacts by a thresholding operation to yield a saturation mask. Looking at the Wands factors, Appellant’s Specification does not provide guidance or working examples to show overlaying the flash mask on the saturation channel, then applying a saturation threshold to the masked regions. We agree with the Examiner that Appellant’s Specification does not enable “masking said saturation channel with said spatial flash mask to derive a masked saturation channel; deriving a saturation mask by applying a saturation threshold to said masked saturation channel” as recited in claim 1. Because Appellant’s specification does not teach those in the art how to make and use the invention without ‘undue experimentation, we sustain the rejection of claim 1under 35 U.S.C. § 112, first paragraph for failing to comply with the enablement requirement. Appellant does not provide arguments for separate patentability of claims 2-8 and 10-14, which fall with claim 1. Section 103 rejection of claims 1, 8-11, 18, and 19 The Examiner finds Benati teaches “deriving a flash mask by applying a luminance threshold operation to said enhanced luminance channel, said flash mask identifying spatial boundaries around regions of said multi- channel image potentially affected by a flash” as recited in claim 1. Ans. 9. Appellant contends Benati teaches determining spatial bounds around pixels only after the thresholds of all three luminance channels are applied. App. Appeal 2012-000039 Application 12/798,122 6 Br. 7-8. The Examiner finds all pixels with non-zero scores for the luminance threshold operation identify spatial boundaries around regions of said multi-channel image potentially affected by a flash. Ans. 16. Appellant contends “boundaries around regions” requires identifying two- dimensional areas, which is more than the individual pixels identified by Benati, because pixels do not identify anything. Reply Br. 6-7. Appellant has not provided a definition of “identifying spatial boundaries around regions of said multi-channel image potentially affected by a flash” that excludes deriving the flash mask by applying a luminance operation to an enhanced luminance channel as taught by Benati. Although paragraphs 20 and 21 of Appellant’s Specification disclose post-processing operations to reduce the number of isolated pixels and to group pixels into regions using a convex hull technique, claim 1 does not recite such post- processing operations. Claim 1 only requires applying a luminance operation to derive the flash mask “identifying spatial boundaries around regions.” We agree with the Examiner that the mask of pixels with non-zero luminance values taught by Benati “identif[ies] spatial boundaries around regions” within the meaning of claim 1. We sustain the rejection of claim 1 under 35 U.S.C. § 103. Appellant does not provide arguments for separate patentability of claims 8-11, 18, and 19, which fall with claim 1. Section 103 rejection of claims 6, 15, and 20 Appellant contends Benati teaches away from “said flash mask is derived at least in part by use of a convex hull technique” as recited in claim 6, because Benati would apply thresholds to the luminance, hue, and Appeal 2012-000039 Application 12/798,122 7 saturations channels before applying a region growth method. App. Br. 9; Reply Br. 7-9. The Examiner finds applying the convex hull technique after performing a thresholding operation for the luminance channel as a substitute for the region growth method of Benati yields the predictable result of identifying a region. Ans. 17. Appellant has not identified any portion of Benati that discourages using the convex hull technique after performing the thresholding operation for the luminance channel. We agree with the Examiner for the reasons given in the Examiner’s Answer. We sustain the rejection of claims 6, 15, and 20 under 35 U.S.C. § 103. Section 103 rejection of claims 7, 16, and 17 Appellant contends Benati teaches away from “said flash mask comprises . . . a third set of pixels that does not satisfy said threshold operation” as recited in claim 7. App. Br. 9. The Examiner finds the result of applying a thresholding operation results in pixels that satisfy the operation, and pixels that do not satisfy the operation. Ans. 18. We agree with the Examiner for the reasons given in the Examiner’s Answer. We sustain the rejection of claims 7, 16, and 17 under 35 U.S.C. § 103. Section 103 rejection of claims 2-5 and 12-14 Appellant does not present arguments for separate patentability of claims 2-5 and 12-14, which fall with claim 1. Appeal 2012-000039 Application 12/798,122 8 DECISION The rejection of claims 1-8 and 10-14 under 35 U.S.C. § 112, first paragraph, as failing to comply with the enablement requirement is affirmed. The rejection of claims 1, 6-11, and 15-20 under 35 U.S.C. § 103(a) as being unpatentable over Benati is affirmed. The rejection of claims 2-5 and 12-14 under 35 U.S.C. § 103(a) as being unpatentable over Benati and Koga 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). See 37 C.F.R. § 41.50(f). AFFIRMED rwk