Ex Parte McCoyDownload PDFPatent Trial and Appeal BoardMay 9, 201612508925 (P.T.A.B. May. 9, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/508,925 0712412009 David F. McCoy 33164 7590 05/11/2016 RAYTHEON COMPANY C/O DALY, CROWLEY, MOFFORD & DURKEE, LLP 354A TURNPIKE STREET SUITE 301A CANTON, MA 02021 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. RTN-749PUS (08E257-US-NP) 8945 EXAMINER WIENER, ERIC A ART UNIT PAPER NUMBER 2142 NOTIFICATION DATE DELIVERY MODE 05/11/2016 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): docketing@dc-m.com amk@dc-m.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID F. MCCOY Appeal2014-008053 Application 12/508,925 Technology Center 2100 Before ST. JOHN COURTENAY III, CATHERINE SHIANG, and LINZY T. McCARTNEY, Administrative Patent Judges. SHIANG, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's rejection of claims 1-20, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal2014-008053 Application 12/508,925 STATEMENT OF THE CASE Introduction The present invention relates to handling voluminous data. See generally Spec. 1. Claim 1 is exemplary: 1. A method for facilitating interactive review of image data, compnsmg: receiving a plurality of examples of a target associated with a set of image data; comparing the plurality of examples of the target to the set of data to identify a plurality of potential matches; assigning, for each respective potential match, a priority value to the respective potential match based on a comparison of the plurality of examples of the target to the respective potential match; displaying the plurality of potential matches in a first display area, wherein the first display area organizes the plurality of potential matches according to the priority value assigned to each respective potential match; receiving a selection of at least one of the plurality of potential matches displayed in the first display area; and displaying, in response to the selection, the selected potential matches in a second display area, wherein the second display area organizes the selected potential matches according to a relationship between the selected potential matches. References and Rejections Claims 14--20 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to non-statutory subject matter. Claims 1-20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Cannon (US 2007 /0219964 Al; publ. Sept. 20, 2007) and Trepess (US 2008/0313179 Al; publ. Dec. 18, 2008). 2 Appeal2014-008053 Application I2/508,925 ANALYSIS The Non-Statutory Subject Matter Rejection Claim I 4 recites "[l]ogic for facilitating interactive review of image data, the logic encoded in non-transitory computer-readable media enabling machine to: receive .... " Claim I4. The Examiner concludes the claimed logic could be solely software and therefore, claim I 4 and its corresponding dependent claims encompass unpatentable abstract software per se. See Ans. 2. Appellant contends because the logic is "encoded in non-transitory computer-readable media enabling machine," it is not software per se. See App. Br. 20. Appellant's argument is unpersuasive because Appellant has not demonstrated the claimed logic is not software per se. Software can be encoded in a non-transitory computer-readable media-enabling machine. Therefore, Appellant has not demonstrated claim I belongs to any of the four patentable categories of 35 U.S.C. § IOI-process, machine, manufacture, or composition of matter. See 35 U.S.C. § IOI; Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 449 (2007) (noting "[a]bstract software code is an idea without physical embodiment ... "). Accordingly, we sustain the Examiner's 35 U.S.C. § IOI rejection of claim I4, and corresponding dependent claims I5-20. The Obviousness Rejection We disagree with Appellant's arguments (App. Br. 4--20; Reply Br. 2-I 5), and agree with and adopt the Examiner's findings and conclusions in 3 Appeal2014-008053 Application 12/508,925 the Final Otlice Action and Answer to the extent they are consistent with our analysis below. Therefore, we limit our discussion to the following points for emphasis. On this record, we find the Examiner did not err in rejecting claim 1. Issue 1 Appellant contends: Applicant submits that techniques for searching text, such as those disclosed by Cannon, are useless for searching "image data," as claimed .... . . . claim 1 requires "compare the plurality of examples of the target to the set of image data to identify a plurality of potential matches." Applicant submits that a search in a text document for a particular string results in a binary determination, i.e., the string was found, or it was not found. In contrast, it is often not readily determined whether a target is in fact contained in "a set of image data." Perhaps the resolution of the image makes it difficult to determine \'l1hether a target is contained in the image data. Or perhaps, the image contains shadows, or strange colors, or pieces, etc., etc., etc. All considerations that are not applicable to searching for text. Applicant submits that Cannon is clearly limited to searching textual data and is irrelevant to image data .... While Cannon does disclose a database of photos, these photos are merely associated with the textual search criteria being searched. The images in Cannon are not searched .... App. Br. 6, 8; see also App. Br. 5-6, 9-10; Reply Br. 3, 8. Appellant has not persuaded us of error. Claim 1 recites "comparing the plurality of examples of the target to the set of data to identify a plurality of potential matches," not " ... the set of image data ... , " as contended by 4 Appeal2014-008053 Application 12/508,925 Appellant. Claim 1 (emphases added). 1 Therefore, Appellant's argument that "[ o ]ne of ordinary skill in the art will readily appreciate the differences between recognizing text in image data and 'comparing ... to identify' an image of a tank" (Reply Br. 3) is not commensurate with the scope of the claim. As pointed out by the Examiner, Appellant has not demonstrated claim 1 requires searching image data. See Ans. 7-8. In short, Appellant has not specifically shown the Examiner's claim interpretation and mapping to the reference is unreasonable. See In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) ("It is not the function of this court [or this Board] to examine the claims in greater detail than argued by an appellant, looking for [patentable] distinctions over the prior art"). Issue 2 Appellant contends the claimed image data "mean[ s] an image, such as a photo, that is represented on media, such as film, or by pixels in an 1 Claim 1 recites "comparing the plurality of examples of the target to the set of data to identify a plurality of potential matches" (emphasis added), but fails to provide the required antecedent basis for "the set of data." See claim 1. If prosecution reopens, we recommend that the Examiner consider whether to reject claim 1 under 35 U.S.C. § 112, second paragraph, because the claim is invalid for indefiniteness. See Nautilus, Inc. v. Biosig Insts., Inc., 134 S. Ct. 2120, 2129 (2014); Ex parte Miyazaki, 89 USPQ2d 1207, 1211 (BP AI 2008) (precedential) ("[I]f a claim is amenable to two or more plausible claim constructions, the US PTO is justified in requiring the applicant to more precisely define the metes and bounds of the claimed invention by holding the claim unpatentable under 35 U.S.C. § 112, second paragraph, as indefinite"). Although the Board is authorized to reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects not to do so. See Manual of Patent Examining Procedure (MPEP) § 1213.02 (9th Ed., Rev. 9, Nov. 2015). 5 Appeal2014-008053 Application 12/508,925 image file" by citing an undated Wikipedia entry. See Reply Br. 2-3. Appellant further cites exemplary discussions from the Specification for the proposed definition. See Reply Br. 4--7. First, Appellant concedes Cannon teaches "image data" even under Appellant's proposed definition of that term. See App. Br. 8 ("Cannon does disclose a database of photos"); Reply Br. 12 (conceding Cannon teaches "photo images" and "photos"). Second, Appellant has not provided adequate support for the proposed definition. It is well established that during examination, claims are given their broadest reasonable interpretation consistent with the specification, but without importing limitations from the specification. See In re Am. A cad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (internal citations omitted); SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). Appellant does not contend the inventors have assigned a special meaning to the term image data. Nor does Appellant provide adequate support for the argued definition, because the cited Wikipedia page is undated and describes "image file formats"-not the claimed image data. See Reply Br. 2-3; Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en bane) (the meaning of a claim term "is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application") (emphasis added). Appellant also cites exemplary discussions from the Specification, which do not define the term. See Reply Br. 4--7. Further, Appellant has not adequately shown the exemplary discussions require Appellant's narrow 6 Appeal2014-008053 Application 12/508,925 definition. For example, Appellant highlights an excerpt of the Specification, which states the following: "While illustrated with respect to image data, the principles of the present disclosure are applicable to a broad range of data mining and review tasks, whether or not related specifically to images." Spec. 11 (emphasis added); see Reply Br. 6. But Appellant has not shown how that excerpt requires Appellant's narrow definition. Further, Appellant's unsupported definition is unreasonably narrow. Instead, the broadest reasonable interpretation of "image data" is data related to an image, and that interpretation is consistent with the Specification. For example, the Specification excerpt highlighted by Appellant states: "While illustrated with respect to image data, the principles of the present disclosure are applicable to a broad range of data mining and review tasks, whether or not related specifically to images." Spec. 11 (emphasis added). Under the proper interpretation of image data, the Examiner has shown-and Appellant does not dispute---Cannon teaches the claimed image data. See Ans. 3; Cannon i-f 14. While not relied on for our analysis, we note Appellant concedes "image data" were well known in the art. See Reply Br. 4--5 (citing Background of the Invention). Issue 3 Appellant contends: claim 1 requires "assigning, for each respective potential match, a priority value to the respective potential match based on a comparison of the plurality of examples of the target to the respective potential match; displaying the plurality of potential matches in a first display area, wherein the first display area 7 Appeal2014-008053 Application 12/508,925 organizes the plurality of potential matches according to the priority value assigned to each respective potential match." It is not clear to Applicant how "a potential match," a "priority value to the respective potential match," "displaying the plurality of potential matches," or "the first display area organizes the plurality of potential matches," as claimed, are applicable to a text match. It seems to Applicant that a particular text word is either found or not found. It is not clear how a text string would be a ''potential match" with regard to a criteria-based keyword search. In contrast, it may be unclear as to whether a potential match is a football or a blimp, for example. App. Br. 6. Appellant's general assertion is inadequate, and Appellant has not demonstrated the claim requires "whether a potential match is a football or a blimp, for example [an image]" (App. Br. 6). Further, Appellant does not critique the Examiner's specific findings. Nor does Appellant analyze the prior art portions cited by the Examiner. Therefore, Appellant fails to show the Examiner's findings are unreasonable. See Baxter Travenol Labs., 952 F.2d at 391. Issue 4 Appellant contends: Applicant submits that Trepess does not teach any of the claimed steps of "displaying the plurality of potential matches in a first display area, wherein the first display area organizes the plurality of potential matches according to the priority value assigned to each respective potential match; receiving a selection of at least one of the plurality of potential matches displayed in the first display area; and displaying, in response to the selection, the selected potential matches in a second display area, wherein the second display area organizes the selected potential matches according 8 Appeal2014-008053 Application 12/508,925 to a relationship between the selected potential matches," as claimed. App. Br. 16. The Examiner points to paragraphs [0088] and [0104] to teach the claimed steps of receiving and displaying the selected potential matches. Applicant respectfully points out that paragraph [0088] relates to FIG. 7 in Trepess in which "the user types a key word search enquiry into the enquiry area 250." (paragraph [0086]). Trepess further explains that "a standard keyword search technique" is used. Similarly, paragraph [0104] relates to "results of the search on the keyword 'show."' (paragraph [0098]). As explained in detail in Trepess, the keyword search results can be clustered and processed using hierarchical techniques, all of which are irrelevant to the claimed invention. While Trepess does disclose searching on video data using a "colour histogram" and a RKS (representative key stamp), Trepess does not teach or suggest the claimed invention. A -- -- T\ -- 1 1 1 I"\ fiPP· DI. 11-lL .. Contrary to Appellant's assertion, the Examiner also cites paragraphs 15, 87, 89, 99-103, and 105---06 (Final Act. 3), which Appellant fails to analyze. Further, Appellant's general assertion that Trepess' teachings of "keyword search results ... are irrelevant to the claimed invention" and "Trepess does not teach or suggest the claimed invention" (App. Br. 12) is unpersuasive, because Appellant does not adequately show why the Examiner's specific findings are unreasonable with respect to the disputed claim limitations. See Baxter Travenol Labs., 952 F .2d at 391. Because Appellant has not persuaded us of error, we sustain the Examiner's rejection of claim 1, and corresponding dependent claims (2 and 6) that Appellant does not separately argue. 9 Appeal2014-008053 Application 12/508,925 Appellant argues "[t]or at least the same reasons, [Appellant] submits that claims 2-20 are patentable." App. Br. 16. Because Appellant's arguments about claim 1 are unpersuasive, we also sustain the Examiner rejection of independent claims 8 and 14, and corresponding dependent claims (9, 13, 15, and 19) that Appellant does not separately argue. Separately Argued Dependent Claims Regarding claims 3, 10, and 16, Appellant argues "Trepess ... does not teach or suggest 'displaying representations of the plurality of potential matches" for "a target associated with a set of image data,' as claimed. The passages in Trepess identified by the Examiner merely show the results of keyword searches." App. Br. 17. Appellant's assertion is unpersuasive because Appellant fails to critique the Examiner's specific findings, and fails to show why the results of keyword searches render the Examiner's findings unreasonable. Regarding claims 4, 11, and 17, Appellant contends: keyword search results associated with FIG. 11 have no bearing on a "priority value above the threshold value" or "wherein each of the plurality of potential matches in the remaining set also has a priority value above the threshold priority value," for "examples of a target associated with a set of image data ... to identify a plurality of potential matches," as claimed. Nor does Trepess have any relation to "displaying the plurality of potential matches in a first display area" where the potential matches are images. App. Br. 18. Again, Appellant's assertion is unpersuasive because Appellant fails to critique the Examiner's specific findings, and fails to show why the results of keyword searches render the Examiner's findings unreasonable. 10 Appeal2014-008053 Application 12/508,925 Further, Appellant's argument is not commensurate with the scope of the claim, as claim 4 does not require "the potential matches are images," as contended by Appellant. Regarding claims 5, 12, and 18, Appellant contends the term radius magnitude "relates to the size of a particular target in image data" by quoting an excerpt from the Specification. App. Br. 19. But Appellant has not shown how that excerpt's general and exemplary discussions require the definition argued by Appellant. Further, Appellant general assertion that "paragraph [0120] in Trepess, to which the Examiner points, is entirely irrelevant to the claimed 'radius magnitude"' (App. Br. 19) is unpersuasive, regardless of the definition of radius magnitude. In contrast, the Examiner reasonably finds Trepess teaches radius magnitude because it states "positions in the array within a predetermined radius of the array positions for A and B can then be returned as identified as a result of the search query." Trepess i-f 120; see Ans. 14. Regarding claims 7 and 20, Appellant merely asserts "neither Cannon nor Trepess teach or suggest [']displaying an image for each selected potential match,' as claimed." App. Br. 19. Appellant's general assertion is unpersuasive because Appellant does not explain why that is the case, let alone show error in the Examiner's rejection. See 37 C.F.R. § 41.37(c)(l)(iv) ("A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim"); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding 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 11 Appeal2014-008053 Application 12/508,925 a naked assertion that the corresponding elements were not found in the prior art"). Accordingly, and for similar reasons discussed above, we sustain the Examiner's rejection of dependent claims 3-5, 7, 10-12, 16-18, and 20. Reply Brief To the extent Appellant advances new arguments in the Reply Brief without showing good cause, Appellant has waived such arguments. See 37 C.F.R. § 41.41(b)(2). DECISION We affirm the Examiner's decision rejecting claims 14--20 under 35 U.S.C. § 101. We affirm the Examiner's decision rejecting claims 1-20 under 35 U.S.C. § 103. 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 12 Copy with citationCopy as parenthetical citation