Ex Parte Friedhoff et al

Patent Trial and Appeal Board

Feb 28, 2017

14321141 (P.T.A.B. Feb. 28, 2017)

United States Patent and Trademark Office
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.
14/321,141 07/01/2014 Richard Mark FRIEDHOFF 590.1030CON2 8179
23280 7590 03/02/2017
Davidson, Davidson & Kappel, LLC
589 8th Avenue
16th Floor
New York, NY 10018
EXAMINER
THOMAS, MIA M
ART UNIT PAPER NUMBER
2669
NOTIFICATION DATE DELIVERY MODE
03/02/2017 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):
ddk @ ddkpatent .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD MARK FRIEDHOFF, CASEY ARTHUR SMITH,
BRUCE ALLEN MAXWELL, NEIL ALLDRIN, STEVEN JOSEPH
BUSHELL, and TIMOTHY KING RODGERS JR.
Appeal 2016-004373
Application 14/321,141
Technology Center 2600
Before THU A. DANG, JAMES HUGHES, and
TERRENCE McMILLIN, Administrative Patent Judges.
DANG, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claim 16, which is the only remaining claim. Claims 1—15 have been
canceled (Final Act. 2). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2013-004373
Application 14/321,141
A. INVENTION
According to Appellants, the invention relates to “image processing
techniques that utilize spatio-spectral information relevant to an image, to
perform image modifications and manipulations” (Spec. 13).
B. CLAIM 16
Claim 16 is reproduced below:
16. A computer program product, disposed on a non-transitory
computer readable media, the product including computer
executable process steps operable to control a computer to:
provide an image file depicting an image, in a coputer memory,
perform an image segregation operation on the image file,
according to a spatio-spectral operator/constraint/solver model,
to generate a set of intrinsic images corresponding to the image,
wherein each one of the set of intrinsic images comprises a
representation of one of material or illumination, expressed as a
separate, multi-band representation for the one of material or
illumination, independent of the other of the material or
illumination, wherein each band corresponds to a segment of
the electro-magnetic spectrum, and modify at least one of the
set of intrinsic images, separately, to accommodate separate
intrinsic characteristics of material and illumination, for a more
accurate result.
C. REJECTIONS
Claim 16 stands rejected under 35 U.S.C. § 112, 2nd paragraph;1 and
1 Although, as the Appellants point out, the Examiner checked the box in
Advisory Action stating “Applicant’s reply has overcome the following
rejection(s)... 112, 2nd rejection” (Reply Br. 2), the Examiner has not
withdrawn the rejection. Accordingly, the rejection of claim 16 under 35
USC 112 stands.
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Application 14/321,141
Claim 16 stands rejected under 35 U.S.C. § 102(b) as being
anticipated by Smith et al. (US 2007/0177797 Al; pub. Aug. 2, 2007).
II. ISSUES
The principal issues before us are whether the Examiner has erred in
finding:
1) The term “spatio-spectral operator/constraint/solver model” is
unclear (claim 16).
2) Smith discloses a “spatio-spectral operator/constraint/solver
model” (id.)
III. ANALYSIS
35 U.S.C. 112, 2ndParagraph
The Examiner rejects claim 16 under § 112, second paragraph,
rejection, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which the inventor regards as the
invention (Final Act. 2; Ans. 2). In particular, the Examiner concludes the
limitation “a spatio-spectral operator/constraint/solver model” is “unclear”
(id.).
Although Appellants acknowledge the Examiner’s reliance on the
Webster Dictionary and Wikipedia for construing the “/” as meaning “or”
(Reply Br. 5), Appellants points out that “there is no definitive meaning for
the 7’ notation,” wherein the referenced construction only “characterizes the
meanings as ‘typical,’ ‘common,’ and ‘informal’” (id.). Appellants contend
“the position taken by the Examiner in the captioned, child application,
ignores the many varied and different meanings commonly given to the slash
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Application 14/321,141
punctuation,” and instead “the position of the Examiner here is arbitrary and
“ignores the many varied alternative meanings for the 7’ notation” (id.).
We agree with Appellants that there is no definitive meaning for the
notation, wherein there are “many varied and different meanings
commonly given to the slash punctuation” (id.). However, because the
scope of the claim covers any number of possible meanings, we conclude the
claim is amenable to two or more plausible claim interpretations, depending
on how the developer may choose to define the claimed function. See Ex
parte Miyazaki, 89 USPQ2d 1207, 1211 (BPAI 2008) (precedential) (“[I]f a
claim is amenable to two or more plausible claim constructions, the USPTO
is justified in requiring the applicant to more precisely define the metes and
bounds of the claimed invention by holding the claim . . . indefinite.”).
Our reviewing court guides that if the language of the claim is such
that a person of ordinary skill in the art could not interpret the metes and
bounds of the claim so as to understand how to avoid infringement, a
rejection of the claim under 35 U.S.C. § 112, second paragraph is deemed
appropriate. Morton Int 7, Inc. v. Cardinal Chemical Co., 5 F.3d 1464, 1470
(Fed. Cir. 1993).
On this record, we are unconvinced of error with the Examiner’s
rejection of claim 16 under 35 U.S.C. § 112, second paragraph.
35 U.S.C. 102(b)
Although the Examiner’s position based on finding “Smith is drawn to
a mean shift algorithm or ‘solver model’...,” Appellants contend “the
Examiner is arbitrarily selecting the ‘or’ term” and “ignores the many varied
and different meanings commonly given to the slash punctuation” (App. Br.
4)). According to Appellants, in the context of Appellants’ Specification,
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Application 14/321,141
“the spatio-spectral operator/constraint/solver model is a method wherein
each of the spatio-spectral operator, constraint and solver limitations is an
integral part of a single method for segregating an image” (id.). Thus,
Appellants contend Smith “clearly does not anticipate the spatio-spectral
operator/constraint/solver model” recited in claim 16 (App. Br. 6).
Appellants also contend Smith “depicts calculations performed on an
image, and the output consists of a material field and an illumination field”
but “does not show any further processing of any kind for either the material
field or the illumination field” (id.). Similarly, Appellants contend the
sections of Smith relied upon by the Examiner “relate to descriptions of
calculations and image analysis implemented to achieve the output goal of
generating a material field and an illumination field corresponding to an
image,” but “do not teach any further processing of any kind for either the
material field or the illumination field” (id.).
We have considered all of Appellants’ arguments and evidence
presented. However, we disagree with Appellants’ contentions regarding the
Examiner’s rejections of claim 16. We are unconvinced the Examiner erred
in finding Smith anticipates claim 16 under 35 U.S.C. 102(b).
As a preliminary matter of claim construction, we give the claims
their broadest reasonable interpretation consistent with the Specification.
See In re Morris, 111 F.3d 1048, 1054 (Fed. Cir. 1997). While we interpret
claims broadly but reasonably in light of the Specification, we nonetheless
must not import limitations from the Specification into the claims. See
Phillips v. AWHCorp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc).
Here, we agree with the Examiner that the Specification does not
provide any clear definition for the term “spatio-spectral
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Application 14/321,141
operator/constraint/solver model” as recited in claim 16 (Ans. 6). As
Appellants points out, “there is no definitive meaning for the 7’ notation”
(Reply Br. 5). Thus, we conclude that a sweeping, broad scope of claim 1
covers all possible interpretation for the notion. Because the scope of the
claim covers any possible meaning of “spatio-spectral
operator/constraint/solver model,” we are unconvinced that that the
Examiner’s construction the as meaning “or” is overly broad or
unreasonable.
Here, we agree with the Examiner’s broad and reasonable
interpretation that claim 16 merely requires a model that utilizes a spatio-
spectral operator, or a constraint, or solver.2 Thus, on the record before us,
we are unpersuaded of error with the Examiner’s finding “claim 16 is
anticipated by the Smith reference” (Ans. 12).
Although Appellants contend Smith does not disclose “processing of
any kind for either the material field or the illumination field” (App. Br. 6),
we note claim 16 does not recite any “processing” of the material field or
illumination field. Nevertheless, we find no error with the Examiner’s
reliance on Smith for disclosing “image processing of the material field or
the illumination field” (Ans. 3—5, 11). As the Examiner points out, Smith
discloses, for example, “utilizing the illumination gradient to identify a
material edge in the image,” wherein “an indication of a material field [is]
identified through an analysis of the identified token groups” (id. ).
Based on the record before us, we find no error with the Examiner’s
anticipation rejection of claim 16 over Smith.
2 See In re Johnston, 435 F.3d 1381, 1384 (Fed. Cir. 2006) (“[OJptional
elements do not narrow the claim because they can always be omitted.”).
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IV. CONCLUSION AND DECISION
The Examiner’s rejections of claim 16 under 35 U.S.C. § 112, 2nd
paragraph and 35 U.S.C. § 102(b) are 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)(l)(iv).
AFFIRMED
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