Ex Parte Pollard

Patent Trial and Appeal Board

Feb 28, 2013

11491364 (P.T.A.B. Feb. 28, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte STEPHEN B. POLLARD
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Appeal 2011-007923
Application 11/491,3641
Technology Center 2600
____________

Before THU A. DANG, JAMES R. HUGHES, and
GREGORY J. GONSALVES, Administrative Patent Judges.

HUGHES, Administrative Patent Judge.

DECISION ON APPEAL

1 Application filed on Jul. 24, 2006 claiming benefit of United Kingdom
Patent Application No.: GB 0518278.7, filed September 08, 2005. The Real
Party in Interest is Hewlett Packard Development Company, LP. (App. Br.
1.)
Appeal 2011-007923
Application 11/491,364

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STATEMENT OF CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-8 and 10-20. Claims 9 and 21 have been allowed and
are not before us. (App. Br. 2.) We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm-in-part.
Invention
Appellant’s invention is directed to image data processing. (Spec. 1,
ll. 13-14.)2
Representative Claim
Independent claim 1, reproduced below with the key disputed
limitations emphasized, further illustrates the invention:
1. A method of processing image data generated
using an image capture device comprising a lens, the method
comprising:
generating, by a processor in the image capture device,
metric data for a plurality of segments of an image, the metric
data representing a plurality of focus measures for each of the
segments generated at a plurality of lens positions;
processing, by the processor, the metric data in order to
cluster the segments into at least two groups on the basis of the
respective focus measures of the segments, wherein each of at
least one of the two groups includes multiple ones of the
segments; and
determining, by the processor, a lens position for each of
the groups corresponding to a position of true focus for the
corresponding group.

2 We refer to Appellant’s Specification (“Spec.”); Reply Brief (“Reply Br.”)
filed Apr. 20, 2011; and Appeal Brief (“App. Br.”) filed Oct. 20, 2010. We
also refer to the Examiner’s Answer (“Ans.”) mailed Dec. 14, 2010.
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Application 11/491,364

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Rejections on Appeal
1. The Examiner rejects claims 1-4, 6-8, and 10-20 under 35
U.S.C. § 102(e) as being unpatentable over Kanayama (U.S. Patent No.
7,576,796 B2, issued Aug. 18, 2009 (filed Aug. 18, 2003)). (Ans. 3-9.)
2. The Examiner rejects claim 5 under 35 U.S.C. § 103(a) as being
unpatentable over Kanayama and Kinney (U.S. Patent No. 7,394,943 B2
issued July 1, 2008 (filed June 30, 2004)). (Ans. 10.)
Grouping of Claims
Based on Appellant’s arguments in the Briefs, we will decide the
appeal on the basis of representative claims 1 and 20. See 37 C.F.R.
§ 41.37(c)(1)(iv).

ISSUE
Under § 102, did the Examiner err in in finding that Kanayama would
have disclosed:
processing, by the processor, the metric data in order to cluster
the segments into at least two groups on the basis of the
respective focus measures of the segments, wherein each of at
least one of the two groups includes multiple ones of the
segments.
(emphasis added), within the meaning of independent claim 1 and the
commensurate language of independent claim 20?

FINDINGS OF FACT
We adopt the Examiner’s findings in the Answer and the Final Office
Action mailed March 9, 2010 as our own, except as to those findings that we
expressly overturn or set aside in the analysis as follows.

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ANALYSIS
Claims 1-4, 6-8, and 10-19
Appellant argues, inter alia;
As purportedly disclosing the "metric data" that represents "a
plurality of focus measures for each of the segments generated
at a plurality of lens positions," the Examiner pointed to focus
evaluation values obtained from image pickup devices 32A and
32B mentioned in column 6 of Kanayama. 05/25/2010 Office
Action at 3. However, it is clear that Kanayama provides
absolutely no hint whatsoever of processing such metric data in
order to cluster the segments (of an image generated at a
plurality of lens positions) into at least two groups on the basis
of a respective focus measures of the segments, where each
group includes multiple ones of the segments. In the rejection,
the Examiner argued that channel A (chA) and B (chB)
constitute the two groups of claim 1. Id. This allegation is
clearly incorrect.
(App. Br. 5-6.) We agree for essentially the same reasons argued by
Appellant.
The Examiner interpreted that adding together the signals in the focus
areas for 86A and 86B, respectively, was equivalent to clustering of
segments into first and second groups. (Ans. 12-13.) However, we agree
with Appellant that Kanyama fails to disclose that each group comprises
multiple segments of an image that are generated at multiple lens positions,
as required by the claim language (App. Br. 5-6).
Based on this record, we conclude that the Examiner erred in rejecting
independent claim 1. Accordingly, we reverse the Examiner’s anticipation
rejection of independent claim 1 and claims 2-4, 6-8, and 10-19 which
depend therefrom.

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Independent Claim 20
Appellant essentially argues that claim 20 is patentable for the same
reasons as claim 1. (App. Br. 7.) The Examiner found that Kanayama
disclosed a lens and a processor. (Ans. 9.) Appellant did not dispute the
Examiners’ findings. We agree with and adopt the Examiner’s findings.
We observe that claim 20 is an apparatus claim that recites functional
language (“a processor configured to: generate metric data . . .; process the
metric data . . .; and determine a lens position . . . .”). The argued limitations
(App. Br. 7) fail to distinguish the claimed invention from the prior art either
structurally or functionally. The claimed metric data, which is generated and
processed, is non-functional descriptive material (data) and the functional
limitations directed to it simply describe intended operations on data.
Therefore, the limitations argued by Appellant are statements of intended
use and non-functional descriptive material and we do not ascribe them
patentable weight.
The data generated and processed by a device is non-functional
descriptive material in that the underlying structure and functionality remain
the same regardless of what the data constitutes, how the data may be
named, or the relationship among the data and do not further limit the
claimed invention either functionally or structurally. The informational
content of the data thus represents non-functional descriptive material,
which “does not lend patentability to an otherwise unpatentable computer-
implemented product or process.” Ex parte Nehls, 88 USPQ2d 1883, 1889
(BPAI 2008) (precedential). See Ex parte Curry, 84 USPQ2d 1272, 1274
(BPAI 2005) (informative) (Fed. Cir. Appeal No. 2006-1003), aff’d, Rule 36
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Application 11/491,364

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(June 12, 2006) (“‘wellness-related’ data in the databases and communicated
on distributed network does not functionally change either the data storage
system or communication system used in the claimed] method . . . .”). See
also In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004); Nehls, 88 USPQ2d at
1887-90 (discussing non-functional descriptive material).
Based on this record, we conclude that Appellant has not shown the
Examiner erred in rejecting claim 20. Accordingly, we affirm the
Examiner’s § 102 rejection of claim 20.
Dependent Claim 5
As noted above, dependent claim 5 is rejected under § 103. We do
not find, nor has the Examiner established, that Kinney cures the
deficiencies of Kanayama discussed above. Accordingly, we reverse the
Examiner’s rejection of claim 5 for the same reasons discussed above
regarding claim 1.

CONCLUSION OF LAW
Appellant has shown that the Examiner erred in rejecting claims 1-4,
6-8 and 10-19 under 35 U.S.C. § 102(e).
Appellant has not shown the Examiner erred in rejecting claim 20
under 35 U.S.C. § 102(e).
Appellant has shown the Examiner erred in rejecting claim 5 under 35
U.S.C. § 103(a)

DECISION
We reverse the Examiner’s rejection of claims 1-4, 6-8 and 10-19
under 35 U.S.C. § 102(e).
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We affirm the Examiner’s rejection of claim 20 under 35 U.S.C.
§ 102(e).
We reverse the Examiner’s rejection of claim 5 under 35 U.S.C.
§ 103(a).

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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