Ex parte Koike et al.

Board of Patent Appeals and Interferences

Aug 22, 2000

08288194 (B.P.A.I. Aug. 22, 2000)

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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today was
not written for publication in a law journal and is not
binding precedent of the Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte HIDEKI KOIKE, SATOSHI SHIMADA, AKIRA TOMONO,
KENICHIRO ISHII and TOSHIKI ISO
__________
Appeal No. 1998-0618
Application 08/288,194
___________
ON BRIEF
___________
Before HAIRSTON, FLEMING, and HECKER, Administrative Patent
Judges.
HECKER, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final
rejection of claims 6, 7, 9, 11, 12, 14, 19, 20, 22, 23, 24,
26, 28, 29 and 32 through 37, all claims pending in this
application at the time. Appellants have subsequently
Appeal No. 1998-0618
Application 08/288,194
Note page 2 of the brief.1
Note page 2 of the answer.2
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canceled claims 6, 20, 22 and 26 . The Examiner has1
subsequently withdrawn the rejection of claims 7, 9, 11, 12,
14, 19, 23, 24, 28 and 29 . Thus, the remaining claims under2
rejection are claims 32 through 37, being all the independent
claims in this application.
The invention relates to a method and apparatus for
automatically identifying persons by comparing an image of the
face of such a person with a dictionary or library of images
previously generated. The library images are taken from
different angular directions, with the angle between two
adjacent directions being equal to or greater than 10E, but no
greater than 40E. In addition to the 10E/40E angular aspect,
different embodiments include mosaic processing, normalization
of intensity, and geometrical transform of matching regions.
Representative independent claim 32 is reproduced as
follows:
32. A method for detecting a face image in an input
test image as a face region by matching each of successive
Appeal No. 1998-0618
Application 08/288,194
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regions of said input test image with dictionary images IDn
which are produced from images obtained by taking images of
reference faces belonging to L categories from predetermined M
directions, where L is an integer equal to one or greater, M
is an integer equal to two or greater and is so selected that
an angle between two adjacent directions from which images of
said references faces are taken is equal to or greater than
10E and no greater than 40E, and n=1, 2, ..., N, and N=LXM,
said method comprising the steps of:
(a) updating a matching position (X, Y) of said
input test image and outputting said updated matching position
(X, Y);
(b) cutting out, as a matching region image, an
image of a region of a predetermined size on the basis of said
matching position (X, Y) in said input test image;
(c) computing a degree of similarity r(n) between
said matching region image and an n-th dictionary image;
(d) repeating the computation of said degree of
similarity r(n) with said matching position (X, Y) and said n
varied thereby obtaining the degree of similarity r(n) between
said matching region image and each of respective dictionary
images of said L categories and M directions;
(e) detecting said face region in said test image by
obtaining the matching position where said degree of
similarity obtained by said step (d) becomes the maximum as a
face position (Xmax, Ymax); and
(f) comparing said degree of similarity r(n) with a
predetermined threshold value to determine, based on the
comparison, whether or not the face image in said test image
belongs to at least one of said categories;
wherein each said dictionary image is generated as a
series of dictionary block image information consisting of q
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Application 08/288,194
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pieces of block image information, each composed of a
representative pixel value of a corresponding one of q blocks
obtained by dividing the matching region in the image of said
reference face into w pieces in a longitudinal direction and v
pieces in a lateral direction, where q=vxw, and wherein said
step of computing the degree of similarity is a step of
generating a series of test block image information consisting
of q pieces of block information, each composed of a
representative pixel value of a corresponding one of q blocks
obtained by dividing said matching region at the matching
position (X, Y) in said test image into w pieces in the
longitudinal direction and v pieces in the lateral direction
and computing the degree of similarity between the series of
test block image information and the n-th series of dictionary
block image information as the degree of said similarity r(n).
The Examiner relies on the following references:
Rothfjell 3,805,238 Apr. 16,
1974
Kado et al. 5,410,609 Apr. 25, 1995
(filed Aug. 7,
1992)
Claims 32 through 37 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Kado in view of
Rothfjell.
Rather than reiterate the arguments of Appellants
and the Examiner, reference is made to the brief and answer
for the respective details thereof.
OPINION
After a careful review of the evidence before us, we
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will not sustain the rejection of claims 32 through 37 under
35 U.S.C. § 103.
The Examiner has failed to set forth a prima facie
case. 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). "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) (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)).
The Examiner reasons that Kado teaches the claimed
invention except for “taking images of reference faces in M
directions wherein M is an integer equal to two or greater and
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Application 08/288,194
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is so selected that an angle between two adjacent directions
from which images of the references faces are taken is equal
to or greater than 10 degrees and no greater than 40 degrees.”
(Answer-pages 4 and 5.)
The Examiner notes that Rothfjell teaches capturing
reference faces, from one on up, at different angles depending
on different specific embodiments. Thus, the Examiner
contends,
[I]t would have been obvious to one skilled in the
art at the time the invention was made to capture
such reference faces at different angles in Kado’s
system to derive different and distinguishable
characteristics, from more than one view, for
accurate recognition as taught by Rothfjell.
Because the identification becomes more accurate
with an increased number of images, it is clear that
an increased number of images reduces the relative
angle between them. Therefore, Rothfjell suggests
that additional images (along with corresponding
reduced angles) would provide better identification,
so that one of ordinary skill would have found it
obvious to utilize a larger number of images.
Absent any teaching or criticality, providing the
images are captured at different angles is a matter
of design choice as it is taught by Rothfjell that
any number of images can be captured, from one on
up, depending on a specific embodiment. (Answer-
page 5.)
Appellants argue that an important feature of their
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Application 08/288,194
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claimed invention is the 10E/40E angular interval aspect, and
that this aspect is recited in all independent claims (brief-
page 15). We note that the Examiner acknowledges Kado does
not mention image direction or angular interval aspect.
Appellants also argue that Rothfjell does not teach or suggest
the claimed 10E/40E angular interval aspect, that Rothfjell’s
0E, 45E and 90E teaches away from Appellants’ 10E/40E angular
aspect, and that the Examiner has used improper hindsight to
revise Rothfjell. (Brief-pages 15 and 16.)
We agree with Appellants. At first blush, the
Examiner’s position seems logical. The Examiner notes that
Rothfjell teaches any number of images can be captured, “from
one on up”, and that identification becomes more accurate with
an increased number of images. If the number of images were
increased, the logical result would be reduced angles. As we
note, this would reduce Rothfjell’s 45E angle to something
less, easily within Appellants’ claimed 40E. (Answer-page 7.)
However, upon closer inspection, this logic does not
hold water. First, neither Rothfjell nor Kado states that
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more images provide more accuracy. Rothfjell states “any
number of such photographs (from one on up) may be sufficient
in various embodiments” (column 3, lines 40-42, emphasis
added). Thus, “any number” can be 1 as well as the more than
3 required by the Examiner’s logic. There is no suggestion
that more (greater than 3) is better. Rothfjell only states
that a different number “may be sufficient”. The only
suggestion that more is better comes from Appellants’
disclosure.
Second, assuming the number of photographs is
increased in Rothfjell, there is no suggestion that these
would be taken between the suggested 0E, 45E and 90E disclosed,
resulting in 0E, 22.5E, 45E, 67.5E and 90E, and thus within
Appellants’ claimed 40E. One could just as easily take the
additional photographs at 0E, 45E, 90E, 135E, 180E, etc., and
thus still exceed Appellants’ claimed 40E.
Third, assuming the photograph angles were a matter
of design choice (answer-page 5), why would one skilled in the
art decide to decrease Rothfjell’s angle size to less than 45E
instead of increasing the angle size. And, if somehow one
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were to decide to decrease Rothfjell’s 45E angle, why would
one stop at 10E. Nothing in Rothfjell (nor Kado) suggests
additional photographs at decreased angles, nor a lower limit
of the claimed 10E. Only Appellants’ disclosure makes these
suggestions.
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). "Obviousness may
not be established using hindsight or in view of the teachings
or suggestions of the inventor." Para-Ordnance Mfg. v. SGS
Importers Int’l, 73 F.3d at 1087, 37 USPQ2d at 1239, citing W.
L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d at 1551,
1553, 220 USPQ at 311, 312-13.
As pointed out above, there is no teaching or
suggestion of record to take images at the claimed 10E/40E
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Application 08/288,194
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angular interval aspect. Since the 10E/40E angular interval
aspect is recited in all rejected claims, we need not comment
on Appellants’ additional arguments. Thus, we will not
sustain the Examiner’s rejection of any claims.
We have not sustained the rejection of claims 32
through 37 under 35 U.S.C. § 103. Accordingly, the Examiner's
decision is reversed.
REVERSED
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
MICHAEL R. FLEMING )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
STUART N. HECKER )
Administrative Patent Judge )
SNH:pgg
Elliott I. Pollock
Appeal No. 1998-0618
Application 08/288,194
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Pollock, Vande Sande & Priddy
1990 M Street, N.W.
Washington, DC 20036-3425