Ex Parte Gilley et al

Patent Trial and Appeal Board

May 31, 2016

12567541 (P.T.A.B. May. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/567,541 0912512009
61947 7590 06/02/2016
Apple - Blank Rome
c/o Blank Rome LLP
717 Texas Avenue, Suite 1400
HOUSTON, TX 77002
FIRST NAMED INVENTOR
Greg Gilley
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
P7336USX1 4546
(l 19-0375USX1)
EXAMINER
CARTER, AARON W
ART UNIT PAPER NUMBER
2665
NOTIFICATION DATE DELIVERY MODE
06/02/2016 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):
mbrininger@blankrome.com
houstonpatents@blankrome.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREG GILLEY, JOSHUA PAGANS, NIKHIL BHATT,
JEFF ALBOUZE, SIMEON LEIFER, TIMOTHY B. MARTIN, and
GREGORY CHARLES LINDLEY1
Appeal2014-006972
Application 12/567,541
Technology Center 2600
Before ALLEN R. MacDONALD, KEVIN C. TROCK, and
MICHAEL M. BARRY, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-26. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellants identify Apple Inc. as the real party in interest. App. Br. 3.
Appeal2014-006972
Application 12/567,541
Introduction
Appellants state their "disclosure relates to organizing images, such as
digital images, by correlating one or more faces represented in the images."
Spec. i-f 2 ("Technical Field"). Claims 1 and 15 are illustrative:
1. A computer-implemented method for organizing images,
the computer-implemented method comprising:
generating a correlation value indicating a likelihood that
a face included in a test image corresponds to a face associated
with a pre-determined base image;
determining that a correlation threshold exceeds the
correlation value and that the correlation value exceeds a non-
correlation threshold;
generating a similarity score based on one or more
exposure values and one or more color distribution values
corresponding to the test image and the base image;
combining the similarity score with the correlation value
to generate a weighted correlation value; and
determining that the test image and the base image are
correlated when the weighted correlation value exceeds the
correlation threshold.
15. A computer-implemented method comprising:
presenting an image in a user interface;
receiving user input identifying a face region in the
image depicting a face that was not automatically detected;
altering one or more facial detection criteria; and
performing a facial detection process for the identified
face region using the altered facial detection criteria.
App. Br. 12, 14--15 (Claims App'x).
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Application 12/567,541
Rejections2
Claims 15-19 and 21-26 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Calia et al. (US 5,450,504; Sept. 12, 1995). Final Act. 7-10.
Claims 1---6, 8-14, and 20 stand rejected under 35 U.S.C. § 103(a) as
obvious over Calia and Zhang (US 2008/0122944 Al; May 29, 2008). Final
Act. 11-18.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as obvious over
Calia, Zhang, and Corcoran et al. (US 2007/0110305 Al; May 17, 2007).
Final Act. 19-20.
ANALYSIS
Claim 1
Pre-Determined Base Image
Appellants argue the Examiner errs in finding Calia teaches or
suggests claim l's "generating a correlation value indicating a likelihood
that a face included in a test image corresponds to a face associated with a
pre-determined base image" because the Examiner's citations to Calia
"explicitly require that the base image is not predetermined (i.e., decided in
advance) before the generation of a correlation value indicating a likelihood
that a face in the test image corresponds with a face in the base image, as is
recited." App. Br. 7. Appellants contend all cited passages from Calia are
deficient on this requirement because they "make it clear that 'all' of the
target images in Calia are examined." Id. at 8.
2 Page 6 of the Final Action rejects claim 1under35 U.S.C. § l 12(b) "as
being indefinite for failing to particularly point out and distinctly claim the
subject matter". The Advisory Action delivered electronically to Appellants
on September 25, 2013 (Adv. Act. 1), withdraws that rejection.
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Application 12/567,541
The Examiner answers that "[t]he basic definition for the term 'pre-
determined' is to decide in advance, therefore the [E]xaminer is interpreting
a predetermined base image as the base image that has been decided
(acquired and stored) in advance." Ans. 4. We agree with the Examiner's
interpretation. Appellants' argument in reply that Calia, notwithstanding
that its "PVP [(Potential Value Process)] will order the database images for
likely fit to the target images," "explicitly require[s] that the base image is
not predetermined" (Reply 8), does not persuasively explain why Calia's
determination of the order of all images that may be used as a base image
does not teach a predetermined base image. We also find unpersuasive
Appellants' reply that Calia differs from the use of "a 'bucket' of confirmed
images" in Appellants' Specification, because such an argument is not
commensurate with the scope of the claims. See Reply 9 (citing Spec.
iTiT 62---63).
Generating a Similarity Score
Appellants argue the Examiner errs in finding the combination of
Calia and Zhang teaches or suggests claim 1 's "generating a similarity score
based on one or more exposure values and one or more color distribution
values corresponding to the test image and the base image." App. Br. 8-9.
Appellants specifically argue "Zhang fails to recite using color distribution
values or exposure values/or generating a similarity score." Id. at 8. We
find this unpersuasive because, as the Examiner answers, the rejection
"relies on Calia for disclosing [generating] a similarity score and on Zhang
for using exposure values as part of the similarity calculation." Ans. 5.
Appellants also argue Zhang fails to teach the claimed use of color
distribution values because "Zhang works to calculate a color value of a
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Application 12/567,541
particular pixel(s) making up an object within an image, and does not relate
to evaluating the color distribution of an entire image." App. Br. 9; Reply 9.
This argument is unpersuasive because it is not commensurate with the
scope of claim, which recites "color distribution values corresponding to the
test image and the base image." Id. We also note the test for obviousness
"is what the combined teachings of the references would have suggested to
those of ordinary skill in the art." In re Keller, 642 F.2d 413, 425 (CCPA
1981) (citations omitted).
We agree with, and adopt, the Examiner's findings and reasons for
how the combination of Calia and Zhang teaches all requirements of the
claim 1 's "generating a similarity score ... "step. See Final Act. 12-14;
Adv. Act. 2-3; Ans. 5---6.
Combining Zhang with Calia
Appellants argue "it would not have been within the skill of the
ordinary person to combine Zhang with Calia, at least because Zhang has
nothing to do with determining the similarity between faces detected in
different images." App. Br. 9. We find this unpersuasive in view of the
Examiner's findings to the contrary (see Final Act. 13-14; Adv. Act. 3
(Sept. 25, 2013); Ans. 5---6) and that "[a] person of ordinary skill is also a
person of ordinary creativity, not an automaton." KSR Int'! Co. v. Teleflex
Inc., 550 U.S. 398, 421 (2007).
We accordingly sustain the Examiner's rejection of claim 1, as well as
of claims 2-8, for which Appellants provide no argument separate from
claim 1 (see App. Br. 9-10).
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Claim 9
Independent claim 9 includes all requirements of claim 1, with the
further limitation of "confirming that an elapsed time between the base
image and the test image is below a time threshold." The Examiner finds
Calia teaches this step:
The applicant's attention is directed towards col. 10 lines
46-51 and col 11 lines 54-61 which discuss the time element
being measured as a percentage of the data base to be reached
as well as it having an impact on the quality of the result. If
only a short time is allowed so that using the potential value
sort, [sic] only a smaller percentage of the data base is reached
and the quality of the result will be lower. The first threshold is
the score where the probability of false alarm error is equal to
the probability of a matching score below the first threshold and
since the potential value sort has placed the match (if there is
one) high in order there is a very high likelihood of finding the
match above the threshold before the time cut-off (percentage
of data base) is reached. This implies that there is relationship
between the values, thresholds and time. Therefore a time
threshold.
Adv. Act. 3--4.
Appellants argue the Examiner errs because "Calia is concerned with
cutting down the speed of the matching algorithm and has nothing at all to
do with the 'elapsed time' between the base image and the test image."
App. Br. 9. The Examiner answers with an interpretation of"' elapsed time'
between images as a time period measuring the total processing time that is
related to the images." Ans. 7.
Semantically, any reasonable interpretation of claim 9's "an elapsed
time between the base image and the test image" requires an elapsed time
that is between a time of the base image and a time of the test image. The
Examiner does not persuade us that Calia' s disclosure of a time to process
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images, which is silent as to any time attribute of any particular image,
teaches or suggests such an elapsed time. We accordingly do not sustain the
rejection of claim 9, or of its dependent claims 10-14.
Claim 15
Appellants argue the Examiner errs in finding Calia teaches
"receiving user input identifying a face region in the image depicting a face
that was not automatically detected" as recited in claim 15 because:
Calia's only description of the human intervention is that "some
or all of the points on a particular image can be located by a
human operator." Locating the position of an eye or the tip of a
nose in an image already considered as having a face region
("locat[ing] points in the face" (Col. 5, lines 55-57)) is not the
same as (or the equivalent to) "identifying a face region in the
image depicting a face that was not automatically detected."
Likewise, the cited portion of Calia at Col. 13, lines 46-64 also
describes steps taken by the computer decision algorithm
program to confirm a facial match, not to receive user input to
identify the existence of a face in an image where a face was
not even automatically detected at all.
App. Br. 6-7. The Examiner answers:
The claim does not require "identifying the existence" as
[A ]ppellant[ s] argue[]. Instead, the claim recites "not
automatically detected," which broadly reads on "not
automatically detected" as a match as interpreted by the
[E] xaminer. . . .
[Calia] discusses a human operator locating some or all of the
points on a particular image while the feature extraction process
is being applied to all facial images in the database, therefore
the human operator is the user which is identifying the face
regions when selecting the (feature) points on the selected facial
images which wasn't automatically selected due to poor image
quality.
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Ans. 3--4. Appellants in reply argue Calia's "[human] intervention is
not indicated as 'identifying a face region.'" Reply 5.
Appellants argue that the broadest reasonable interpretation of
the phrase, "receiving user input identifying a face region in the
image depicting a face that was not automatically detected"
would, in fact, imply to a person having ordinary skill in the art,
that the user was identifying the existence (via identifying its
location) of a face that was not automatically detected as
existing in the image. . . . [T]he broadest reasonable
interpretation would be that the user identifies a face region in
an image in which no face was detected, i.e., in which no face
was detected to exist . ...
Reply 7.
Appellants do not persuade us of Examiner error; we adopt the
findings and reasons of the Examiner in the rejection of claim 15. See Final
Act. 7-8; Adv. Act. 2; Ans. 5-8. The Examiner's interpretation of claim
15' s "a face that was not automatically detected" is reasonable in view of
Appellants' Specification and claims; and encompasses images in Calia' s
database that are of poor image quality and for which all points on the image
may be located by a human operator. See Calia 7:41--44.
We accordingly sustain the Examiner's rejection of claim 15, and the
rejections of claims 16-26, which Appellants argue together with claim 15
(see App. Br. 6).
DECISION
For the reasons above, we affirm the Examiner's rejection of claims
1-8 and 15-26, and reverse the rejection of claims 9-14.
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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)(l )(iv).
AFFIRMED-IN-PART
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