10487638 (P.T.A.B. Sep. 10, 2014)

Ex Parte Fertig et al

Patent Trial and Appeal BoardSep 10, 2014

10487638 (P.T.A.B. Sep. 10, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte WERNER FERTIG, DETLEF MATTINGER, and STEFAN UHL ____________ Appeal 2012-008592 Application 10/487,6381 Technology Center 3700 ____________ Before MICHAEL C. ASTORINO, SCOTT A. DANIELS, and GEORGE R. HOSKINS, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 9–14 and 18–21. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 According to the Appellants, “[t]he real party in interest is WELLA AG, of Darmstadt, Germany.” Appeal Br. 3. Appeal 2012-008592 Application 10/487,638 2 Claimed Subject Matter Claim 9, reproduced below, is illustrative of the subject matter on appeal. 9. A method of hair color consultation or hair color simulation, said method comprising the steps of: a) recording current individual images (21) of the person (11) in a continuous image sequence in real time by means of a video camera (12); b) transmitting the current individual images (21) from the video camera (12) to a computer (13) in a continuous image sequence in real time; and c) automatically processing each of the individual images (21) in real time by means of a data processor (31) in the computer for display on at least one screen (14, 15) and/or touch screen (22, 23) in real time; wherein said processing of the individual images (21) comprises continuously marking hair regions (32) of the individual images (21) changing the hair color (33) of the hair regions (32) according to predetermined specifications to produce altered individual images (21) that have changed hair color and displaying the altered individual images (21) in real time on the at least one screen (14, 15) and/or the at least one touch screen (22, 23) and said marking hair regions (32) of the individual images (21) comprises an automatic analysis of close and similar pixel color values, of contiguous texture, and/or of contiguous morphological properties. Rejections Claims 9–14 and 18–20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Munetsugu (US 6,141,431, iss. Oct. 31, 2000), Steir (US 5,060,171, iss. Oct. 22, 1991), and Bartholomew (US 6,412,658 B1, iss. July 2, 2002). Appeal 2012-008592 Application 10/487,638 3 Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable over Munetsugu, Bartholomew, Steir, and Bluth (US 6,403,897 B1, iss. June 11, 2002). ANALYSIS Claim 9 requires, among other things, recording by means of a video camera, transmitting from the video camera, and automatically processing by means of a data processor, individual images of a person, where the images are in a continuous image sequence, in real time. See Appeal Br., Claims Appendix (hereinafter “real time processing of a continuous image sequence”). We note that every appealed claim includes the “real time processing of a continuous image sequence” requirements of claim 9 or substantially similar requirements. See Appeal Br., Claims Appendix. At the outset, we note that the Examiner finds that the Appellants’ Specification does not define the term “real time.” See Ans. 6. However, the Specification is not silent as to the meaning of the term “real time.” Infra. We also note that the scope of claims in patent applications is determined by giving claims “their broadest reasonable interpretation consistent with the specification” and “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). The Appellants assert “[t]he meaning of the wording in claim 9 including the term ‘real time’ . . . should be given the broadest reasonable interpretation --- but only an interpretation that is consistent with the broad description of the claimed method on page 2 of the [A]ppellants’ [S]pecification.” Reply Br. 9. We agree. Appeal 2012-008592 Application 10/487,638 4 The Appellants point to this description of the term “real time” in the Specification at page 2: [t]he invention selectively simulates looking at an image [of the person] either as others would see it or as its own mirror image. To that end, with a video camera, the current picture of the person is taken, automatically prepared [i.e. processed] by a computer, and displayed on a screen. By means of this dynamic display in real time, the screen becomes a mirror . . . . Reply Br. 10–11 (quoting Spec. 2:14–19 (second emphasis added)). Further, the term “real time” is described by the Specification at page 4, lines 11–16, with added emphasis: In this context, real time means a time lag that is imperceptible or only hardly perceptible by the person 11 between the individual pictures 21 taken and their display on the screen 14, 15 or touch screen 22, 23 with a fluid display of the motions.2 The above-recited paragraph begins “[i]n this context,” which refers to the disclosure in the Specification starting at page 3, line 17 and ending at page 4, line 11. This disclosure is directed to Figure 1, which depicts “a schematic sequence of a method for a hair color consultation in the form of a hair color consultation 10 system.” Spec. 3:8–10. Accordingly, the disclosure in the Specification at page 4, lines 11–16 cannot be taken as a strict definition of the term “real-time” because it is in the context of Figure 1. However, the Specification at page 2, lines 15–19 and page 4, 2 See, e.g., Spec. 4:16–18 (“[t]he result, among other effects, is also a minimal picture rate of approximately ten individual pictures 21 per second”) and 8:18–22 (“[t]he next individual pictures 21 in the video recording are processed accordingly and displayed continuously; a frame reproduction rate of approximately 10 to 30 frames per second is provided, creating a fluid, moving image”); see also Appeal Br. 29, Reply Br. 10; but see Ans. 6–7. Appeal 2012-008592 Application 10/487,638 5 lines 11–16 provides guidance as to the meaning of the term “real time,” as recited in the appealed claims. Notably, the Examiner and the Appellants look to evidence outside of the Specification to define the term “real time.” Ans. 6. More specifically, the Examiner looks to “Webster II New Riverside University Dictionary” and Golightly (US 2003/0046130, pub. Mar. 6, 2003) (Ans. 6–7), and the Appellants look to “Merriam-Webster free on-line dictionary” (Appeal Br. 21, Reply Br. 6) to provide evidence of the meaning for the term “real time.” However, the definitions provided need to be viewed through the guidance provided in the Specification for the term “real time.” Turning to the Examiner’s rejection, the Examiner relies on Munetsugu to disclose the aforementioned requirements of claim 9, i.e., the “real time processing of a continuous image sequence.” See Office Act. 4–5 (mailed Aug. 2, 2011), Ans. 5–6. The Examiner finds Munetsugu describes an image processing “apparatus . . . capable of displaying the hair style by replacing with other automatically in real time without strange feel, in computer graphics of human figures.” Ans. 7; see Munetsugu, col. 1, ll. 5– 8. Although Munetsugu uses the term “real time,” the meaning of the term “real time” in Munetsugu must be understood through its disclosure. Notably, Munetsugu discloses different embodiments, and image processing for these embodiments include processing times of about 3 seconds, about 5 seconds, about 8 seconds, and about 10 seconds. See Munetsugu, col. 9, l. 62–64, col. 18, ll. 39–41, col. 24, ll. 35–37, col. 28, ll. 8–11. Furthermore, although Munetsugu discloses simultaneously displaying multiple still images (see Munetsugu, col. 25, ll. 6–38), there is no disclosure of processing, by data processor, a continuous image sequence in real time or Appeal 2012-008592 Application 10/487,638 6 sufficient evidence to support a finding that such processing is inherent in Munetsugu’s disclosure. See Appeal Br. 22, 26; but see Ans. 5. Accordingly, the lengths of time as disclosed in Munetsugu do not correspond to “real time” as it pertains to appealed claims, e.g., “a time lag that is imperceptible or only hardly perceptible by the person 11 between the individual pictures 21 taken and their display on the screen 14, 15 or touch screen 22, 23 with a fluid display of the motions.” Supra. Thus, the Examiner’s rejection of claims 9–14 and 18–20 as unpatentable over Munetsugu, Bartholomew, and Steir, is reversed. The remaining rejection based on Munetsugu, Bartholomew, Steir, and Bluth rely on the same erroneous finding discussed above. See Office Act. 6–7. As such, we cannot sustain the rejection of claim 21 as unpatentable over Munetsugu, Bartholomew, Steir, and Bluth. DECISION We REVERSE the rejections of claims 9–14 and 18–21. REVERSED mls UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte WERNER FERTIG, DETLEF MATTINGER, and STEFAN UHL ____________ Appeal 2012-008592 Application 10/487,6381 Technology Center 3700 ____________ Before MICHAEL C. ASTORINO, SCOTT A. DANIELS, and GEORGE R. HOSKINS, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 9–14 and 18–21. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 According to the Appellants, “[t]he real party in interest is WELLA AG, of Darmstadt, Germany.” Appeal Br. 3. Appeal 2012-008592 Application 10/487,638 2 Claimed Subject Matter Claim 9, reproduced below, is illustrative of the subject matter on appeal. 9. A method of hair color consultation or hair color simulation, said method comprising the steps of: a) recording current individual images (21) of the person (11) in a continuous image sequence in real time by means of a video camera (12); b) transmitting the current individual images (21) from the video camera (12) to a computer (13) in a continuous image sequence in real time; and c) automatically processing each of the individual images (21) in real time by means of a data processor (31) in the computer for display on at least one screen (14, 15) and/or touch screen (22, 23) in real time; wherein said processing of the individual images (21) comprises continuously marking hair regions (32) of the individual images (21) changing the hair color (33) of the hair regions (32) according to predetermined specifications to produce altered individual images (21) that have changed hair color and displaying the altered individual images (21) in real time on the at least one screen (14, 15) and/or the at least one touch screen (22, 23) and said marking hair regions (32) of the individual images (21) comprises an automatic analysis of close and similar pixel color values, of contiguous texture, and/or of contiguous morphological properties. Rejections Claims 9–14 and 18–20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Munetsugu (US 6,141,431, iss. Oct. 31, 2000), Steir (US 5,060,171, iss. Oct. 22, 1991), and Bartholomew (US 6,412,658 B1, iss. July 2, 2002). Appeal 2012-008592 Application 10/487,638 3 Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable over Munetsugu, Bartholomew, Steir, and Bluth (US 6,403,897 B1, iss. June 11, 2002). ANALYSIS Claim 9 requires, among other things, recording by means of a video camera, transmitting from the video camera, and automatically processing by means of a data processor, individual images of a person, where the images are in a continuous image sequence, in real time. See Appeal Br., Claims Appendix (hereinafter “real time processing of a continuous image sequence”). We note that every appealed claim includes the “real time processing of a continuous image sequence” requirements of claim 9 or substantially similar requirements. See Appeal Br., Claims Appendix. At the outset, we note that the Examiner finds that the Appellants’ Specification does not define the term “real time.” See Ans. 6. However, the Specification is not silent as to the meaning of the term “real time.” Infra. We also note that the scope of claims in patent applications is determined by giving claims “their broadest reasonable interpretation consistent with the specification” and “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). The Appellants assert “[t]he meaning of the wording in claim 9 including the term ‘real time’ . . . should be given the broadest reasonable interpretation --- but only an interpretation that is consistent with the broad description of the claimed method on page 2 of the [A]ppellants’ [S]pecification.” Reply Br. 9. We agree. Appeal 2012-008592 Application 10/487,638 4 The Appellants point to this description of the term “real time” in the Specification at page 2: [t]he invention selectively simulates looking at an image [of the person] either as others would see it or as its own mirror image. To that end, with a video camera, the current picture of the person is taken, automatically prepared [i.e. processed] by a computer, and displayed on a screen. By means of this dynamic display in real time, the screen becomes a mirror . . . . Reply Br. 10–11 (quoting Spec. 2:14–19 (second emphasis added)). Further, the term “real time” is described by the Specification at page 4, lines 11–16, with added emphasis: In this context, real time means a time lag that is imperceptible or only hardly perceptible by the person 11 between the individual pictures 21 taken and their display on the screen 14, 15 or touch screen 22, 23 with a fluid display of the motions.2 The above-recited paragraph begins “[i]n this context,” which refers to the disclosure in the Specification starting at page 3, line 17 and ending at page 4, line 11. This disclosure is directed to Figure 1, which depicts “a schematic sequence of a method for a hair color consultation in the form of a hair color consultation 10 system.” Spec. 3:8–10. Accordingly, the disclosure in the Specification at page 4, lines 11–16 cannot be taken as a strict definition of the term “real-time” because it is in the context of Figure 1. However, the Specification at page 2, lines 15–19 and page 4, 2 See, e.g., Spec. 4:16–18 (“[t]he result, among other effects, is also a minimal picture rate of approximately ten individual pictures 21 per second”) and 8:18–22 (“[t]he next individual pictures 21 in the video recording are processed accordingly and displayed continuously; a frame reproduction rate of approximately 10 to 30 frames per second is provided, creating a fluid, moving image”); see also Appeal Br. 29, Reply Br. 10; but see Ans. 6–7. Appeal 2012-008592 Application 10/487,638 5 lines 11–16 provides guidance as to the meaning of the term “real time,” as recited in the appealed claims. Notably, the Examiner and the Appellants look to evidence outside of the Specification to define the term “real time.” Ans. 6. More specifically, the Examiner looks to “Webster II New Riverside University Dictionary” and Golightly (US 2003/0046130, pub. Mar. 6, 2003) (Ans. 6–7), and the Appellants look to “Merriam-Webster free on-line dictionary” (Appeal Br. 21, Reply Br. 6) to provide evidence of the meaning for the term “real time.” However, the definitions provided need to be viewed through the guidance provided in the Specification for the term “real time.” Turning to the Examiner’s rejection, the Examiner relies on Munetsugu to disclose the aforementioned requirements of claim 9, i.e., the “real time processing of a continuous image sequence.” See Office Act. 4–5 (mailed Aug. 2, 2011), Ans. 5–6. The Examiner finds Munetsugu describes an image processing “apparatus . . . capable of displaying the hair style by replacing with other automatically in real time without strange feel, in computer graphics of human figures.” Ans. 7; see Munetsugu, col. 1, ll. 5– 8. Although Munetsugu uses the term “real time,” the meaning of the term “real time” in Munetsugu must be understood through its disclosure. Notably, Munetsugu discloses different embodiments, and image processing for these embodiments include processing times of about 3 seconds, about 5 seconds, about 8 seconds, and about 10 seconds. See Munetsugu, col. 9, l. 62–64, col. 18, ll. 39–41, col. 24, ll. 35–37, col. 28, ll. 8–11. Furthermore, although Munetsugu discloses simultaneously displaying multiple still images (see Munetsugu, col. 25, ll. 6–38), there is no disclosure of processing, by data processor, a continuous image sequence in real time or Appeal 2012-008592 Application 10/487,638 6 sufficient evidence to support a finding that such processing is inherent in Munetsugu’s disclosure. See Appeal Br. 22, 26; but see Ans. 5. Accordingly, the lengths of time as disclosed in Munetsugu do not correspond to “real time” as it pertains to appealed claims, e.g., “a time lag that is imperceptible or only hardly perceptible by the person 11 between the individual pictures 21 taken and their display on the screen 14, 15 or touch screen 22, 23 with a fluid display of the motions.” Supra. Thus, the Examiner’s rejection of claims 9–14 and 18–20 as unpatentable over Munetsugu, Bartholomew, and Steir, is reversed. The remaining rejection based on Munetsugu, Bartholomew, Steir, and Bluth rely on the same erroneous finding discussed above. See Office Act. 6–7. As such, we cannot sustain the rejection of claim 21 as unpatentable over Munetsugu, Bartholomew, Steir, and Bluth. DECISION We REVERSE the rejections of claims 9–14 and 18–21. REVERSED mls