Ex parte Khani

Board of Patent Appeals and Interferences

Mar 24, 1999

08112535 (B.P.A.I. Mar. 24, 1999)

Application for patent filed August 27, 1993.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 31
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte DARA T. KHANI
_____________
Appeal No. 97-2699
Application 08/112,5351
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HEARD: MARCH 10, 1999
_______________
Before THOMAS, FLEMING and LALL, Administrative Patent Judges.
FLEMING, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of claims 1 through 30, all of the
claims pending in the application.
Appeal No. 97-2699
Application 08/112,535
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The invention relates to an apparatus and method for extracting robust, prominent
features for target tracking.
Independent claim 1 is reproduced as follows:
1. A method of analyzing a region of interest in an original image having at least one
feature to extract at least one robust feature, comprising the steps of:
passing signals representing the original image through a first filter to obtain signals
representing a smoothed image;
performing a profile analysis on the signals representing the smoothed image to
determine a signal representing a size value for any feature in the original image;
performing an analysis on the signals representing the size values determined by the
profile analysis to determine a signal representing a most frequently occurring size value;
selecting an optimal filter based on the determined signal representing the most
frequently occurring size value; and
passing the signals representing the original image through the optimal filter to obtain
signals representing an optimally filtered image having an optimally high signal-to-noise ratio.
The references relied on by the Examiner are as follows:
Barry 4,482,970 Nov. 13, 1984
Toriu et al. (Toriu) 4,908,872 Mar. 13, 1990
Moorehead et al. (Moorehead) 5,253,765 Oct. 19, 1993
Gonzales et al. (Gonzales), Digital Image Processing; Addison-Wesley 1992, pp. 559-560.
Claims 1, 2, 6 through 8, 12 through 15 and 27 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Barry, Moorehead and Gonzales. Claims 3 through 5, 9
Appeal No. 97-2699
Application 08/112,535
Appellant filed an appeal brief on April 10, 1996. We will refer to this appeal brief as simply2
the brief. Appellant filed a reply appeal brief on September 11, 1996. We will refer to this reply
appeal brief as the reply brief. The Examiner stated in the Examiner’s letter mailed December 23, 1996
that the reply brief has been entered and considered but no further response by the Examiner is deemed
necessary.
3
through 11, 16 through 26 and 28 through 30 stand rejected under 35 U.S.C. § 103 as being
unpatentable Barry, Moorehead, Gonzales and Toriu.
Rather than repeat the arguments of Appellant or the Examiner, we make reference to
the briefs and the answer for the details thereof.2
OPINION
After a careful review of the evidence before us, we agree with the Examiner that
claims 28 through 30 are properly rejected under 35 U.S.C. § 103. Thus, we will sustain
the rejection of these claims but we will reverse the rejection of remaining claims on appeal for the
reasons set forth infra.
Claims 28 through 30 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Barry, Moorehead, Gonzales and Toriu. At the outset, we note that Appellant has indicated on
page 10 of the brief the claims 28 through 30 do not stand or fall together. However, on pages 4
through 6 of the brief, we note that Appellant does not argue why claims 29 and 30 are separately
patentable over the art applied by the Examiner, but instead Appellant merely repeats the claim
language in the Appellant's arguments on pages 25 of the brief. 37 CFR § 1.192 (c)(7)(July 1, 1995)
Appeal No. 97-2699
Application 08/112,535
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as amended at 60 Fed. Reg. 14518 (March 17, 1995), which was controlling at the time of
Appellant's filing the brief, states:
For each ground of rejection which appellant contests and which applies to a group of two or
more claims, the Board shall select a single claim from the group and shall decide the appeal as
to the ground of rejection on the basis of that claim alone unless a statement is included that the
claims of the group do not stand or fall together and, in the argument under paragraph (c)(8) of
this section, appellant explains why the claims of the group are believed to be separately
patentable. Merely pointing out differences in what the claims cover is not an
argument as to why the claims are separately patentable. Emphasis added.

We will, thereby, consider Appellant's claims 28 through 30 to stand or fall together, with claim 28
being considered the representative claim
On page 24 of the brief, Appellant argues that claim 28 recites a method of starting an
ending point identification, pairing and size determination which is not taught by the art of record.
Appellant further states that "the cited art fails to suggest the combination of recited features recited in
claim 28."
The Examiner argues on page 12 referring to page 9 of the answer that Toriu teaches
an ending point identification and pairing. In particular, the Examiner argues that Toriu teaches ending
point identification by determining the x and y gradients to find the edges and then performing the
pairing step by the grouping of x and y points. The Examiner then points out that the size of the object
may be determined by an elementary calculation. We note that the rejection as set forth in the final
action relies on Moorehead for the teaching of calculating size.
Appeal No. 97-2699
Application 08/112,535
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As pointed out by our reviewing court, we must first determine the scope of the claim.
"[T]he name of the game is the claim.” In re Hiniker Co., 150 F.3d 1362, 1369, 47 USPQ2d 1523,
1529 (Fed. Cir. 1998). Unlike Appellant's claims 1 through 27, Appellant's claim 28 does recite
limitation directed to selecting an optimal filter based upon the most frequently occurring size.
Appellant's claim 28 is directed to a method of performing a profile analysis for determining size of a
feature by identifying positions of the feature starting points and ending points, identifying the feature by
pairing the starting and ending points and determining size of the identified feature by subtracting the
position of the starting point and ending point.
Toriu teaches in column 4, line 64, through column 5, line 63, a simplified discrimination
method of selecting the pixels located by an X-axis and Y-axis point that define a pattern contour.
Toriu teaches that the grey level gradient vectors of the pixels are determined in X-axis and Y-axis
direction. The magnitude of the grey level gradient of each pixels is compared with those of neighboring
pixels located in either direction of X-axis or Y-axis. The pixel which has the maximum magnitude of
gray level gradient among those of adjacent pixel is discriminated from each group as a contour line.
Thus, we find that Toriu teaches identifying positions of feature starting points in the region of interest
and identifying positions of feature ending points in the region of interest as recited in Appellant's claim
28.
Turning to Moorehead, we find that Moorehead teaches in Figures 8 and 9 and in
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column 5, line 45, through column 6, line 26, that the minimum and maximum dimensions of a
mushroom are determined by pairing the determined border pixels and by determining the minimum and
maximum dimension by subtracting the position of the paired positions. Therefore, Moorehead teaches
identifying features in said region of interest by pairing and determining the size of the identified features
as recited in Appellant's claim 28.
It is the burden of the Examiner to establish why one having ordinary skill in the art
would have been led to the claimed invention by the reasonable teachings or suggestions found in the
prior art, or by a reasonable inference to the artisan contained in such teachings or suggestions. In re
Sernaker, 702 F.2d 989, 995, 217 USPQ 1, 6 (Fed. Cir. 1983). In addition, the Federal Circuit
states that "[t]he mere fact that the prior art may be modified in the manner suggested by the Examiner
does not make the modification obvious unless the prior art suggested the desirability of the
modification." In re Fritch, 972 F.2d 1260, 1266 n.14, 23 USPQ2d 1780, 1783-84 n.14 (Fed. Cir.
1992), citing In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984).
"Additionally, when determining obviousness, the claimed invention should be considered as a whole;
there is no legally recognizable 'heart' of the invention." Para-Ordnance Mfg. v. SGS Importers
Int’l, Inc., 73 F.3d 1085, 1087, 37 USPQ2d 1237, 1239 (Fed. Cir. 1995), cert. denied, 117 S.Ct.
80 (1996), citing W. L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1548, 220 USPQ
303, 309 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984). In addition, the Federal Circuit
Appeal No. 97-2699
Application 08/112,535
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reasons in Para-Ordnance Mfg. v. SGS Importers Int'l, Inc., 73 F.3d at 1087-88, 37 USPQ2d at
1239-40, that for the determination of obviousness, the court
must answer whether one of ordinary skill in the art who sets out to solve the problem, and who had
before him in his workshop the prior art, would have been reasonably expected to use the solution that
is claimed by Appellant.
We note that Moorehead teaches a method of determining the contour line or boundary
of a mushroom image in column 5, lines 10-45. Toriu teaches a much improved method of determining
the boundary line that is simple and more accurate. In fact, Toriu teaches in columns 1 through 3 that
their invention is an improvement of prior art boundary line determination methods which includes the
method used by Moorehead. Therefore, we find that those skilled in the art having the teachings of
Toriu before them would have modified the Moorehead method of profile analysis for determining sizes
of features appearing in a region of interest in an original image to use the Toriu boundary line (pattern
contours) extracting method as recited in Appellant's claim 28.
Turning to the claims 1 through 27, Appellant argues on pages 14 through 17 of the
brief that none of the references teach or suggest a process for selecting an optimized filter based on the
most frequently occurring size. Appellant further argues on pages 4 through 6 of the reply brief that
Appeal No. 97-2699
Application 08/112,535
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Appellant's particular claimed combination of method steps or apparatus for selecting and using an
optimized filter based on a most frequently occurring size appearing in an image is not taught or
suggested in the prior art cited in the Examiner's answer.
On page 7 of the answer, the Examiner argues that Barry teaches the concept of a
matched filtering in column 1. The Examiner provides a quote from Barry which is found in column 1,
lines 40-43.
Upon a review of Barry, we find that Barry does teach that an ideal filter is a matched
filter where the output signal-to-noise ratio is maximized. However, Barry does not provide any
teaching on how an ideal filter may be obtained or in particular a method or apparatus for selecting an
optimal filter based on most frequent occurring size of features in an original image. Furthermore, we
fail to find any suggestion in Moorehead, Gonzales and Toriu to provide a method or apparatus which
passes the original image through a first filter to smooth the image, performing a profile analysis of the
smoothed image to determine the size of any feature in the original image, performing an analysis to
determine the most frequently occurring size, selecting an optimal filter based on the most frequently
occurring size and using the optimal filter to filter the original image to extract the most frequently
occurring feature as recited in Appellant's claims 1 through 27. Therefore, we will not sustain the
Examiner's rejection claims 1, 2, 6 through 8, 12 through 15 and 27 under 35 U.S.C. § 103 as being
Appeal No. 97-2699
Application 08/112,535
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unpatentable over Barry, Moorehead and Gonzales as well as the Examiner's rejection of claims 3
through 5, 9 through 11 and 16 through 26 under 35 U.S.C. § 103 as being unpatentable over Barry,
Moorehead, Gonzales and Toriu.
In view of the foregoing, the decision of the Examiner rejecting claims 28 through 30
under 35 U.S.C. § 103 is affirmed; however, the decision of the Examiner rejecting claims 1 through 27
under 35 U.S.C. § 103 is reversed.
No time period for taking any subsequent action in connection with this appeal may be
extended under 37 37 CFR § 1.136(a).
AFFIRMED-IN-PART
JAMES D. THOMAS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
MICHAEL R. FLEMING ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
Appeal No. 97-2699
Application 08/112,535
10
PARSHOTAM S. LALL )
Administrative Patent Judge )
MRF/dal
FREDERICK G. MICHAUD, JR.
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