Ex Parte Jaffe et al

Patent Trial and Appeal Board

Aug 27, 2014

11559671 (P.T.A.B. Aug. 27, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte CHARLES JAFFE and ALFRED H. STILLER
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Appeal 2012-003799
Application 11/559,671
Technology Center 2600
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Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Examiner rejected claims 1-25. Appellants appeal from the non-
final rejection under 35 U.S.C. § 134(a). We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part.

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INVENTION
This invention relates to "pattern matching based on global
quantitative characterization of patterns." (Title). Claim 1, reproduced
below, is representative of the claimed subject matter:
1. A system, comprising:
[a] a processor circuit having a processor and a memory;
[b] a detection system stored in the memory and executable by
the processor, the detection system comprising:
[c] logic that performs a fractal analysis on a first pattern to
generate a first global quantitative characterization of the first
pattern; and
[d] logic that [d1] compares the first global quantitative
characterization with a second global quantitative
characterization associated with a second pattern
[d2] to determine whether the first pattern matches the second
pattern,
[e] the second global quantitative characterization being
generated from the second pattern.
(Elements steps lettered; paragraph returns added).
REJECTIONS
R1. Claims 1–3, 5, 8–13, 16, 18–21, 23 and 24 stand rejected under
35 U.S.C. § 102(b) as anticipated by Su et a1. ("Fingerprint Classification
Based on Fractal Analysis," Signal Processing Proceedings, 2000, WCCC-
ICSP 2000, 5th International Conference, Volume 3, Pages 1471-1474, Aug.
2000)("Su").
R2. Claims 4 and 14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Su and Lin et a1. ("Locating the eye in human face images
using fractal dimensions," IEE Proc.-Vis. Image Signal Process, 2001)
("Lin").
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R3. Claims 6 and 15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Su and Arneodo et a1. ("Characterizing Long-Range
Correlations in DNA Sequences from Wavelet Analysis," Physical Review
Letters, American Physical Society, 1995) ("Arneodo").
R4. Claims 7, 17, 22, and 25 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Su and U.S. Patent No. 7,366,337 B2 ("Kortum").

GROUPING OF CLAIMS
Based on Appellants' arguments, we decide the appeal of:
Rejection of claims: on the basis of representative claim:
R1. claims 1–3, 5, 9–13, 16, 19–21,
23, and 24.
1
R1. claims 8 and 18 8
R2. claims 4 and 14 4
R3. claims 6 and 15 6
R4. claims 7, 17, 22, and 25 7

(App. Br. 29). See 37 C.F.R. § 41.37(c)(1)(vii)(2004).1

1 Appellants filed a Notice of Appeal on June 1, 2011. The date of filing the
Notice of Appeal determines which set of rules applies to an ex parte
appeal. If a Notice of Appeal is filed prior to January 23, 2012, then the
2004 version of the Board Rules last published in the 2011 edition of Title
37 of the Code of Federal Regulations (37 C.F.R. § 41.1 et seq.) applies to
the appeal. See also Manual of Patent Examining Procedure (MPEP) 8th
ed., Rev. 8, July 2010.
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ANALYSIS
R1. CLAIM 1
A.
Regarding the claim 1 limitation “[e] the second global quantitative
characterization being generated from the second pattern," Appellants
contend, "Su states that the classification masks were predefined as opposed
to 'being generated from the second pattern' as recited in claim 1." (Reply
Br. 2; emphasis added).
Appellants' contentions are not commensurate with the scope of the
claim and are therefore, unpersuasive. Specifically, limitation [e] "being
generated from the second pattern," includes Su's classification masks being
predefined ("generated") from the different fingerprint types. (Ans. 11–12;
Su 1473, § 3.2, ¶ 1). Specifically, the broadest reasonable interpretation of
"generat[ing]" includes Su's producing by predefining.2 Moreover,
Appellants fail to cite a more narrow definition of "generated" in the
Specification.3

2 Of course, anticipation "is not an 'ipsissimis verbis' test." In re Bond, 910
F.2d 831, 832–33 (Fed. Cir. 1990) (citing Akzo N.V. v. United States Int'l
Trade Comm'n, 808 F.2d 1471, 1479 n.11 (Fed. Cir. 1986)). "An
anticipatory reference . . . need not duplicate word for word what is in the
claims." Standard Havens Prods. v. Gencor Indus., 953 F.2d 1360, 1369
(Fed. Cir. 1991).
3 Any special meaning assigned to a term "must be sufficiently clear in the
specification that any departure from common usage would be so understood
by a person of experience in the field of the invention." Multiform
Desiccants, Inc. v. Medzam Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see
also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381
(Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to
a term a unique definition that is different from its ordinary and customary
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B.
Regarding limitations: "[d1] compares the first global quantitative
characterization with a second global quantitative characterization associated
with a second pattern [d2] to determine whether the first pattern matches the
second pattern," Appellants contend:
Appellants submit that determining if the character string (i.e.,
the alleged first global quantitative characterization) fits a mask
(i.e., the alleged second global quantitative characterization) is
not the same as determining whether the first pattern used to
generate the alleged first global quantitative characterization
matches the second pattern used to generate the alleged second
global quantitative characterization as recited in claim 1.
(Emphasis added; App. Br. 7).
Appellants' contentions are unpersuasive because Appellants do not
address and rebut the specific findings relied on by the Examiner. (App.
Br. 7, Ans. 5–6). Specifically, regarding limitation [d2], Su describes
determining whether the fingerprint image ("first pattern") is classified in
("matches") a fingerprint type ("the second pattern"). (Ans. 11–12; Su 1473,
§ 3.2, ¶ 2).
Regarding limitation [d2], Appellants contend: "Su does not disclose
or suggest one-to-one matching of fingerprint patterns, but rather group
classification of fingerprints." (Emphasis added; App. Br. 7). Appellants'
contention is unpersuasive because the contention is not commensurate with
the scope of the claim. Specifically, the claim does not recite "one-to-one
matching" as argued by Appellants. (Id.).

meaning; however, a patentee must clearly express that intent in the written
description.")
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For these reasons, on this record, we are not persuaded the Examiner
erred. Accordingly, we sustain the rejection R1 of claim 1 and of the claims
that fall therewith. (See Grouping of Claims, supra).
R1. CLAIM 8
Claim 8 recites "[t]he system of claim 1, wherein the first pattern
comprises a portion of the second pattern."
Appellants contend:
While the fingerprint classification of Su is based upon
common characteristics such as whorls, loops, and arches (see
tables 1 and 2), Su does not disclose or suggest that if two
fingerprint images have the same directional fractal dimensions
then the first fingerprint image includes a portion of the second
fingerprint image.
(Reply Br. 4–5).
Appellants' contentions are persuasive. The Examiner fails to make a
finding of fact in Su to show that when two fingerprint images ("patterns")
have partially matched shapes, the first fingerprint image ("first pattern")
"comprises a portion of the" second fingerprint image or the fingerprint type
("second pattern"). (Ans. 12).
For these reasons, on this record, we are persuaded the Examiner
erred. We reverse the rejection R1 of claim 8 and of claim 18, which recites
the same limitation in commensurate form.
R2–R4. CLAIMS 4, 6, AND 7
Regarding claims 4, 6, and 7, Appellants contend the Examiner's
combination of references is improper because the Examiner has not
explained exactly how Su's specific teachings of fractal analysis and
characterization of fingerprints shapes, such as whorls, loops and arches,
can be incorporated with the secondary references. (App. Br. 7–12).
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Appellants' contentions are unpersuasive because Appellants attack
the references individually, and do not consider the teaching and suggestions
of the combined references.4 The Examiner does not rely upon Su's fractal
analysis and characterization of fingerprint shapes. Instead, the Examiner
relies upon Su's general teaching or suggestion of fractal analysis and
characterization of measurable properties of patterns. (See Ans. 12–15).
Further, the Examiner provides reasoning with sufficient rational
underpinning for combining the references. (Ans. 12–15). Moreover, we
find the Examiner’s proffered combinations would have yielded predictable
results: Su's general teaching of using fractal analysis to characterize a
pattern and to compare the characterization with a second characterization as
applied to the pattern forms of the secondary references.5 (Ans. 12–15).
Appellants fail to provide any evidence or argument why the Examiner’s
proffered combinations would have been “uniquely challenging or difficult

4 “The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference . . . . Rather, the test 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, 208 USPQ 871, 881 (CCPA 1981). See
also In re Sneed, 710 F.2d 1544, 1550, 218 USPQ 385, 389 (Fed. Cir. 1983)
(“[I]t is not necessary that the inventions of the references be physically
combinable to render obvious the invention under review.”).
5 “The combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.”
KSR Int'l. Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.” Id. at 417
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for one of ordinary skill in the art,” 6 or would have produced unexpected
results.
For these reasons, on this record, we are not persuaded of Examiner
error. Accordingly, we sustain the rejections R2-R4 of representative claims
4, 6, and 7, respectively, and of the claims that fall therewith. (See Grouping
of Claims, supra).

DECISION
We affirm the Examiner's rejections of claims 1–7, 9–17, and 19–25
under § 102 and §103.
We reverse the Examiner's rejection R1 of claims 8 and 18 under
§ 102.
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 41.50(f).

AFFIRMED-IN-PART

tj

6 See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed.
Cir. 2007) (citing KSR, 550 U.S. at 418).