Ex Parte Mkrtchyan et al

Patent Trial and Appeal Board

Feb 27, 2017

13160330 (P.T.A.B. Feb. 27, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/160,330 06/14/2011 Armen Mkrtchyan 0260307 3119
63649 7590 03/01/2017
DISNEY ENTERPRISES, INC.
C/O FARJAMI & FARJAMI LLP
26522 LA ALAMEDA AVENUE, SUITE 360
MISSION VIEJO, CA 92691
EXAMINER
RETALLICK, KAITLIN A
ART UNIT PAPER NUMBER
2482
NOTIFICATION DATE DELIVERY MODE
03/01/2017 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 @ farj ami. com
farj amidocketing @ yahoo, com
ITarj ami @ farj ami. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARMEN MKRTCHYAN and CHRISTOPHER W. HEATHERLY
Appeal 2016-003158
Application 13/160,3301
Technology Center 2400
Before JASON V. MORGAN, KARA L. SZPONDOWSKI, and
SHARON FENICK, Administrative Patent Judges.
FENICK, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 1—24. (Appeal Br. 2.) We have jurisdiction under 35
U.S.C. § 6(b)(1).
We affirm.
Invention
Appellants’ invention relates to object recognition, authentication, and
tracking using infrared distortion produced by patterned materials affecting
an infrared light, such as a tag placed on a physical object. (Spec. 1:8—10,
4:2—15, Abstract.)
1 Appellants identify Disney Enterprises, Inc., a wholly owned subsidiary of
The Walt Disney Company, as the real party in interest. (Appeal Br. 2.)
Appeal 2016-003158
Application 13/160,330
Exemplary Claim
Claim 1, reproduced below, is exemplary:
1: A method comprising:
projecting an infrared pattern onto a physical
environment having a physical object;
capturing an infrared image of the physical environment
using an infrared camera;
detecting, in the infrared image, an infrared distortion
caused by at least a portion of the physical object, the at least a
portion of the physical object comprising a tag including
patterned infrared absorbing dyes affecting an infrared light,
wherein a size of the tag creates a uniquely recognizable
infrared distortion for identifying the physical object;
identifying the physical object based on the size creating
the uniquely recognizable infrared distortion;
in response to the detecting of the infrared distortion
caused by the at least portion of the physical object, modifying
a virtual environment by replacing the identified physical object
with a virtual object in the virtual environment; and
rendering the modified virtual environment on a display.
Rejection
The Examiner rejects claims 1—24 under pre-AlA 35 U.S.C. § 103(a)
as unpatentable over Margolis (US 2010/0303291 Al; pub. Dec. 2, 2010),
Masalkar (US 2009/0200384 Al; pub. Aug. 13, 2009), and Foxlin et al. (US
2007/0081695 Al; pub. Apr. 12, 2007). (Final Action 5—23.)
Issues
Appellants raise the following issues:
(A) Did the Examiner err in finding that the combination of
Margolis, Masalkar, and Foxlin teaches or suggests, “a tag including
patterned infrared absorbing dyes,” as recited in claim 1 ?
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Appeal 2016-003158
Application 13/160,330
(B) Did the Examiner err in finding that Foxlin, in combination
with other cited prior art, teaches or suggests “a size of the tag creates a
uniquely recognizable infrared distortion for identifying the physical object,”
as recited in claim 1?
ANALYSIS
(A) “a tag including patterned infrared absorbing dyes”
The Examiner finds that Masalkar includes the teaching or suggestion
of infrared-reflecting material and/or infrared absorbing dyes comprising a
code or pattern. (Final Action 3, 6—7, citing Masalkar 126; Answer 22.)
Additionally, the Examiner finds that Margolis discusses the deformation of
an infrared pattern to determine a distance to the location on the garget or
objects. (Final Action 5—6; Answer 22.) The Examiner finds that the
combination of the teachings of these prior art references with Foxlin’s
teachings regarding a tag creating a uniquely recognizable infrared distortion
(through active LEDs in the IR spectrum) for identifying the physical object
teaches or suggests the limitations of Claim 1. (Final Action 5—8; Answer
22-24.)
Appellants argue that the limitation in claim 1 of “a tag including
patterned infrared absorbing dyes affecting an infrared light” would not be
taught or suggested by a combination including Foxlin, which teaches light­
generating markers. (Appeal Br. 9—10.) Appellants contend that because
“the function and purpose of the tag of independent claim 1 is quite different
than the function and purpose of the LED marker of Foxlin,” any
combination of Masalkar and Foxlin would use light-generating markers in
order to produce a recognizable distortion, as opposed to the claimed use of
infrared absorbing dyes. {Id. at 9—10, emphasis deleted.)
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Appeal 2016-003158
Application 13/160,330
We agree with the Examiner. While infrared absorbing dyes and
LEDs have different properties, it is not the LEDs of Foxlin that the
Examiner uses in the combination of the prior art. The function and purpose
of the LED marker of Foxlin and the infrared patterns of Masalkar are
similar—both are meant to be optically readable. (Masalkar 11; Foxlin
Abstract.) Thus, we are persuaded that it would have been obvious to an
artisan of ordinary skill to substitute infrared absorbing dye generating
infrared patterns in place of light-generating markers.
(B) ■ ‘a size of the tag creates a uniquely recognizable infrared distortion
for identifying the physical object, ”
Appellants argue that, “there is no disclosure, teaching or suggestion
in Foxlin that it is the size of LED marker that creates ‘a uniquely
recognizable infrared distortion for identifying the physical object.’”
(Appeal Br. 10.) Appellants argue that, “Foxlin merely states that markers
come in different types, and that depending on the type of the markers, they
may be different in size. That is all.” (Id. at 11.)
However, the Examiner does not map the claimed tag to an individual
marker in Foxlin, but rather to Foxlin’s pattern of markers. (Final Action 3,
7; Answer 24—25). While the Appellants focus on the Examiner’s citation of
Foxlin’s paragraph 8 in the rejection of claim 1, the Examiner also cites
paragraphs 15, 17 and 45, noting “the distances and positions of the markers
. . . create a pattern” and “a group of markers are arranged in a pattern that is
uniquely identifiable by a camera.” (Final Action 7.)
In the Reply Brief, Appellants make new arguments regarding the
distance between end markers in collinear groups of markers in Foxlin.
These arguments are presented for the first time in the Reply Brief. Absent a
showing of good cause, which is not present, we do not consider such
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Application 13/160,330
arguments. 37 C.F.R. § 41.41(b)(2) (2015); See also Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI 2010) (Informative) (“[T]he reply brief [is not]
an opportunity to make arguments that could have been made in the
principal brief on appeal to rebut the Examiner's rejections, but were not.”).
We, therefore, are not persuaded of error in the Examiner’s rejection
of claim 1 as unpatentable over the combination of Masalkar, Margolis, and
Foxlin, or in the rejection of independent claims 11 and 21, or dependent
claims 2—10, 12—20, and 22—24, argued on the same basis (Appeal Br. 11—
12.)
DECISION
We affirm the Examiner’s decision rejecting claims 1—24 as
unpatentable over Masalkar, Margolis, and Foxlin.
Pursuant to 37 C.F.R. § 1.136(a)(l)(iv), no time period for taking any
subsequent action in connection with this appeal may be extended.
AFFIRMED
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