Ex Parte Fukazawa et alDownload PDFPatent Trial and Appeal BoardDec 19, 201613217069 (P.T.A.B. Dec. 19, 2016) Copy Citation 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. 1946-0039 5327 EXAMINER SULLIVAN, TYLER ART UNIT PAPER NUMBER 2487 MAIL DATE DELIVERY MODE 13/217,069 08/24/2011 60803 7590 12/19/2016 Paratus Law Group, PLLC 1765 Greensboro Station Place Suite 320 Tysons Corner, VA 22102 Ryo Fukazawa 12/19/2016 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 RYO FUKAZAWA, TAKASHI KIT AO, YUSUKE KUDO, and MAKI MORI Appeal 2015-008010 Application 13/217,069 Technology Center 2400 Before ELENI MANTIS MERCADER, CARL W. WHITEHEAD JR., and ADAM J. PYONIN, Administrative Patent Judges. PYONIN, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1—11. See App. Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2015-008010 Application 13/217,069 STATEMENT OF THE CASE Introduction Appellants’ disclosure relates to an image processing apparatus that calculates “a drawing position of each image of a group of at least two images in a shape being divided at [a] predetermined distance in the depth direction” and displays the shape “on a screen as a stereoscopic imag[e].” Abstract. Claims 1,10, and 11 are independent. Claim 1 is reproduced below for reference (with formatting and emphasis added): 1. An image processing apparatus comprising: at least one processor; a drawing position calculation unit for calculating a drawing position of each image of a group of at least two images of a shape divided at a predetermined distance in the depth direction so that each of the images is to be displayed on a screen as a stereoscopic image, wherein the shape is displayed on a screen as the stereoscopic image using the at least one processor; and an image drawing unit for drawing each image of the group of images at the drawing position calculated by the drawing position calculation unit using the at least one processor. 2 Appeal 2015-008010 Application 13/217,069 The Examiner’s Rejections1 Rl: Claims 1, 5, 8, and 9 stand rejected under 35 U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter. Advisory Act. 3; Final Act. 9. R2: Claim 4 stands rejected under 35 U.S.C. § 112, fourth paragraph, for failing to further limit the subject matter of the claim. Advisory Act. 3; Final Act. 11. R3: Claim 1 stands rejected under 35 U.S.C. § 101 as directed to non- statutory subject matter. Advisory Act. 4; Final Act. 11—12. R4: Claims 1—11 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Harman (US 2002/0118275 Al; Aug. 29, 2002), Fang (US 2010/0053307 Al; Mar. 4, 2010), Nomura (JP 2008-108198; July 8, 2008), and Agurok (US 2011/0032482 Al; Feb. 10, 2011). Advisory Act. 4; Final Act. 12. ANALYSIS Regarding rejections Rl—R3, we agree with Appellants that the Examiner erred. Regarding rejection R4, we disagree with Appellants that the Examiner erred and adopt as our own the findings and reasons set forth by the Examiner in the action from which this appeal is taken, the Advisory 1 Additionally, the Examiner objects to the drawings and the disclosure. See Advisory Act. 2; Final Act. 4—5. Such objections are petitionable matters that we do not consider on appeal. See MPEP § 706.01 (“The practical difference between a rejection and an objection is that a rejection, involving the merits of the claim, is subject to review by the Patent Trial and Appeal Board, while an objection, if persisted, may be reviewed only by way of petition to the Director of the USPTO.”) 3 Appeal 2015-008010 Application 13/217,069 Action, and the Examiner’s Answer. We highlight and address specific findings and arguments for emphasis as follows. A. Rejection Rl: Indefiniteness Appellants argue the Examiner erred in rejecting claims 1, 5, 8, and 9 as indefinite because, for each claim rejection, Appellants are “unable to identify anything objectionable” in each claim recitation (App. Br. 16) and “the plain language of a ‘processor’, ‘information’, and ‘predetermined disparity’ has a clear ordinary meaning that does not require a lexicographical analysis of the specification” {id. at 17). We are persuaded the Examiner erred. Regarding claim 1, the Examiner finds “the claim is drawn towards an indefinite number of processors.” Final Act. 9. Regarding claims 5 and 8, the Examiner finds “the claims are drawn towards ‘information’ which is not specifically defined when considering the Specification Paragraphs 51—53.” Final Act. 10. Regarding claim 9, the Examiner finds the term “predetermined disparity” to have insufficient antecedent basis. Final Act. 10. We find one skilled in the art, after reading the disclosure, would understand the claim terms, including “at least one processor” and “information,” as being broad, but not indefinite. “Breadth of a claim is not to be equated with indefmiteness.” MPEP § 2173.04, citing In re Miller, 441 F.2d 689, 693 (CCPA 1971). We also do not find the claim 9 limitation “with predetermined disparity” to be indefinite; we find one skilled in the art would read the limitation as “with a predetermined disparity,” because this is the first recitation of the phrase in the claims. 4 Appeal 2015-008010 Application 13/217,069 Accordingly, we reverse the Examiner’s rejections of claims 1, 5, 8, and 9 as indefinite. B. Rejection R2: Failure to Further Limit Subject Matter of the Claim Appellants argue the Examiner erred in rejecting claim 4 because “[cjlaim 4 clearly further limits claim 2.” App. Br. 18. We are persuaded of Examiner error. Both parent claim 2 and child claim 4 include reference to the “drawing position calculation unit” introduced in claim 1. In claim 2, the “drawing position calculation unit” calculates with respect to “at least two images generated by the image dividing unit.'” In claim 4, the “drawing position calculation unit” calculates with respect to “at least two images stored in the image storage unit.” Thus, claim 4 further limits claim 2 through the introduction and treatment of the “image storage unit.” Accordingly, we do not sustain the Examiner’s rejection of claim 4 as failing to further limit claim 2. C. Rejection R3: Non-Statutory Subject Matter Appellants argue the Examiner erred in rejecting claim 1 as non- statutory because “the recitations requiring ‘at least one processor’ satisfies all concerns related to patent eligibility under 35 U.S.C. 101.” App. Br. 19. We are persuaded of Examiner error. The Examiner first finds “there is no teaching of ‘processor’ in the Specification” and “the claimed ‘processor’ has not been given definite structure.” Ans. 17. The Examiner then finds under the broadest reasonable interpretation, the claimed processor includes “signal, carrier wares, and software implementations prohibited by 35 USC 101” because the processor could be “virtual / 5 Appeal 2015-008010 Application 13/217,069 simulated/ soft ware-based.” Ans. 18. However, Appellants’ Specification describes a processor such as a central processing unit (“CPU”) or other control device that includes a “medium on which computer programs are recorded.” Spec. 190. One of ordinary skill in the art, having read the disclosure, would consider the recited “processor” to be a physical processor. Accordingly, we find the Examiner erred in finding “the claim thus may encompass signals or carrier waves which are non-statutory subject matter.” Final Act. 12 (emphasis removed). D. Rejection R4: Obviousness Appellants argue the Examiner erred in the rejection of claims 1—11, because “the Examiner’s overbroad interpretations of the claimed invention is unreasonable.” App. Br. 23. Particularly, Appellants contend that with respect to each of Harman, Fang, Nomura, and Agurok individually, “there is no teaching or suggestion” in each reference “of calculating a drawing position of each image of a group of at least two images of a shape divided at a predetermined distance in the depth direction so that each of the images is to be displayed on a screen as a stereoscopic image.” App. Br. 24—26; see also App. Br. 32. We are not persuaded of Examiner error. The Examiner finds the disputed limitation is taught by the combination of Fang, Harman, and Agurok. Final Act. 13. Particularly, the Examiner finds, and we agree that: 1. the claimed “drawing position calculation unit for calculating a drawing position of each image of a group of at least two images of shape” encompasses Fang’s “one or more plane images” combined with Agurok’s “‘zones’ (predetermined distance / depth) and ‘depth 6 Appeal 2015-008010 Application 13/217,069 slice files.’” Final Act. 13, citing Fang || 44-46, 90-91, Fig. 1,; Agurok || 27, 55—61; and additional cites to Harman || 33—35, Figs. 1—3; and 2. the claimed “divided at a predetermined distance in the depth direction so that each of the images is to be displayed on a screen as a stereoscopic image” encompasses Fang’s “relating the width to the depth thus rendering obvious depth adjustments as necessitating width adjustments,” combined with Harman’s “dividing] the table into a number of segments / layers” and “lateral shifts which are synonymous to shifting the width as claimed,” and Agurok’s “‘zones’ (predetermined distance / depth) and ‘depth slice files.’” Final Act. 13, citing Fang || 48, 51—53, 57; Harman || 39-41, 43, 44, 49, 55, 62—66; and Agurok || 27, 55—61. In contrast, Appellants have not provided sufficient evidence or argument to persuade us the Examiner’s erred in finding the combination of references teaches or suggests the claim limitations. For each of Harman, Fang, and Nomura, Appellants provide little more than a one sentence synopsis of each reference accompanied by an assertion that the reference includes “no teaching or suggestion” of the disputed limitation. See App. Br. 24—25. For Agurok, Appellants reproduce one figure and 16 paragraphs of text (see App. Br. 25—31), and assert that one sentence of the quoted text “does not relate” to the disputed limitation. App. Br. 32. Such a response to the Examiner’s findings is insufficient to persuade us of Examiner error. See In reLovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and 7 Appeal 2015-008010 Application 13/217,069 a naked assertion that the corresponding elements were not found in the prior art.”); Accordingly, we sustain the Examiner’s rejection of independent claims 1,10, and 11, and the claims which depend therefrom. See App. Br. 32.2 DECISION We reverse the Examiner’s rejection of claims 1, 5, 8, and 9 under 35 U.S.C. § 112, second paragraph. We reverse the Examiner’s rejection of claim 4 under 35 U.S.C. §112, first paragraph. We reverse the Examiner’s rejection of claim 1 under 35 U.S.C. §101. We affirm the Examiner’s rejection of claims 1—11 under 35 U.S.C. § 103(a). 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 2 Appellants also challenge the Examiner’s finding that claims 1, 2, and 4 are to be treated in accordance with 35 U.S.C. § 112, sixth paragraph. App. Br. 14—15 ; see Advisory Act. 3, Final Act. 6—9. We do not reach this issue because the references teach a processor as claimed, and Appellants do not otherwise present a construction of the remaining limitations that precludes the teachings of the Examiner’s combination of references. See Final Act. 1; Agurok | 52 (disclosing a processor). 8 Copy with citationCopy as parenthetical citation