Ex Parte Schroeder et al

Patent Trial and Appeal Board

Sep 14, 2016

12420111 (P.T.A.B. Sep. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/420, 111 04/08/2009 John Howison Schroeder
36787 7590 09/16/2016
BL YNN L SHIDELER
THE BLK LAW GROUP
3500 BROKKTREE ROAD
SUITE 200
WEXFORD, PA 15090
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.
Neuro-0801 1871
EXAMINER
V ANCHY JR, MICHAEL J
ART UNIT PAPER NUMBER
2666
NOTIFICATION DATE DELIVERY MODE
09/16/2016 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):
patents@BLKLawGroup.com
cbelleci@BLKLawGroup.com
blynn@BLKLawGroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN HOWISON SCHROEDER and
ALEXANDER D. KIDERMAN
Appeal2015-005074
Application 12/420, 111
Technology Center 2600
Before JOHN A. EV ANS, LINZY T. McCARTNEY, and
ALEX S. YAP, Administrative Patent Judges.
YAP, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1--4 and 6--20, which are all the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b)
We affirm-in-part.
Appeal2015-005074
Application 12/420, 111
STATEMENT OF THE CASE
Introduction
Appellants' invention relates "generally to eye tracking technologies,
and more particularly to precision eye tracking through use of relative iris
edge based landmarks in eye geometry." (Specification (Apr. 8, 2008)
("Spec.") i-f 3.) Claim 1 is illustrative, and is reproduced below:
1. A method of identifying at least one landmark in the eye
comprising the steps of:
digitizing an image of the eye;
identifying at least a portion of the edge of the iris from
the digitized image of the eye; and
calculating a centroid of an area defined by the identified
edge portion of the iris wherein the centroid forms at least one
landmark in the eye.
Prior Art and Rejections on Appeal
The following table lists the prior art relied upon by the Examiner in
rejecting the claims on appeal:
Steinert et al
US 2005/0278004 Al Dec. 15, 2005
("Steinert")
Bickert et al.
US 2006/0039583 Al Feb.23,2006
("Bickert")
Deering US 2006/0167670 Al July 27, 2006
Hamza US 2007/0140531 Al June 21, 2007
Lonky US 2009/0198148 Al Aug. 6, 2009
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Application 12/420, 111
Claims 1, 3, 6, 7, 18, and 20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Steinert in view ofBickert. (See Final Office
Action (mailed Aug. 19, 2013) ("Final Act.") 4--6.)
Claims 2, 4, 8, 17, and 19 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Steinert in view of Bickert, and further in view of
Hamza. (See Final Act. 6--8.)
Claims 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Steinert in view of Bickert, and further in view of
Deering. (See Final Act. 8-9.)
Claims 10---12, 14, and 15 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Steinert in view of Bickert and Deering, and further
in view of Lonky. (See Final Act. 9-12.)
Claims 13 and 16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Steinert in view of Bickert, Deering, and Lonky, and
further in view of Hamza. (See Final Act. 12-13.)
Claim 17 stands rejected under 35 U.S.C. § 112(d) as being as being
of improper dependent form for failing to further limit the subject matter of
the claim upon which it depends. (See Final Act. 2-3.)
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Appeal2015-005074
Application 12/420, 111
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments 1 that the Examiner has erred. We are persuaded that the
Examiner erred in rejecting claims 1-4 and 6--20 under 35 U.S.C. § 103(a).
We affirm the Examiner's 35 U.S.C. § 112(d) rejection with regard to claim
17.
Claims 1-4 and 6-20
Rejections Under 35 U.S.C. § 103
Claim 1 recites "identifying at least a portion of the edge of the iris
from the digitized image of the eye; and calculating a centroid of an area
defined by the identified edge portion of the iris wherein the centroid forms
at least one landmark in the eye." The Examiner finds that Steinert teaches
or suggests "calculating a centroid of an area defined by the identified edge
portion of the iris" but "Steinert does not explicitly teach identifying at least
a portion of the edge of the iris from the digitized image of the eye." (Final
Act. 4.) However, according to the Examiner, Bickert teaches or suggests
the limitation and "[i]t would be obvious to one or ordinary skill in the art to
modify Steinert to include" the teachings of Bickert. (Id.) Appellants
contend that the combination of Steinert and Bickert actually teaches away
from the claimed invention because Bickert's technique (for "identifying at
least a portion of the edge of the iris") is based on an approximation of a
1 As an initial matter, we remind Appellants that under 37 CPR 1.3,
"Applicants and their attorneys or agents are required to conduct their
business with the United States Patent and Trademark Office with decorum
and courtesy [and c]omplaints against examiners and other employees must
be made in correspondence separate from other papers." (See, e.g., Reply
1.)
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Application 12/420, 111
circle, which according to Appellants, goes against the teachings of the
Specification. (App. Br. 12-13.) The Examiner does not dispute that
Bickert teaches or suggests "circular approximation" but states that the
rejection is appropriate based on the broadest reasonable interpretation of the
claim language. (Ans. 17.) Appellants respond that the Examiner erred
because the claim language ("the area defined by the identified edge portion
of the iris") clearly does not allow approximation. (Reply 1-2, emphasis in
original.)
We agree with Appellants that the Examiner's interpretation is not
reasonable. When construing claims, a court must begin by "look[ing] to the
words of the claims themselves ... to define the scope of the patented
invention." Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005)
(en bane). However, "claims must be read in view of the specification, of
which they are a part." Id. at 1315 (internal quotations omitted). Hence, the
specification "is the single best guide to the meaning of a disputed term.''
Id. Importantly, "[i]n examining the specification for proper context,
however, this court will not at any time import limitations from the
specification into the claims." CollegeNet, Inc. v. Apply Yourself, Inc., 418
F.3d 1225, 1231 (Fed.Cir.2005). The limitations at issue recite "identify at
least a portion of the edge . . . and calculating a centroid of an area defined
by the identified edge .... " It is clear from the claim language that the
identified portion of the edge and the calculation based on the identified
edge is not based on an approximation. This reading is supported by the
Specification, which states that the claimed invention has advantages over
prior art because it is not based on calculating the centroid of the pupil by
approximating a circle of the pupil:
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Application 12/420, 111
[0018] As discussed above, most eye tracking devices digitize an
image of the, define the pupil using the high contrast difference
between the pupil and the rest of the eye, and then define the
center of the pupil by approximating a circle of the same size or
calculating the centroid of the pupil itself For relatively large-
scale eye movements, such as saccades and nystagmus, this
method is appropriate despite of the fact that the pupil changes
in size and, to a lesser degree, shape. However, greater accuracy
or even resolution in monitoring the movement of the eye can be
gained by digitizing the eye, and tracking the movement of a
landmark with fixed size and a fixed location relative to the eye's
local coordinate system.
[0020] The concepts of the present invention can be explained in
connection with figures 1-2. In these figures the wide variation
in the pupil size (and shape) will illustrate that the pupil
monitoring methods results in a certain amount of error. The
pupil center is established typically by approximating the shape
as a circle, and, the center of the circle (the assumed center of
the eye), in theory remains unchanged as the circle expands in
diameter. Due to changes in pupil diameter. lfowever these are
merely approximations that lead to noise in the system that
prevents the system from identifYing small eye movements, such
as micro-tremors.
(Spec., i-fi-f 18, 20, emphasis added.) As discussed above, because the
Examiner does not dispute that the cited portions of Bickert teaches or
suggests "circular approximation," (Ans. 17), and in light of our above
discussions, we are persuaded of Examiner error in the rejection of claim 1.2
Independent claims 3 and 12 recite substantively similar limitations:
2 Because we do not sustain the Examiner's rejection for the reasons
discussed herein, we need not address Appellants' further arguments. See
Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984) (finding an
administrative agency is at liberty to reach a decision based on "a single
dispositive issue").
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Application 12/420, 111
"identifying at least a portion of the edge of the iris ... establishing ...
based upon the identified portion of the edge of the iris." The Examiner also
relies on the same portions of Steinert and Bickert with respect to these
limitations of claims 3 and 12. Thus, we are persuaded that the Examiner's
rejections of claims 3 and 12 are deficient for the same reasons discussed
above with respect to claim 1. For the foregoing reasons, we do not sustain
the 35 U.S.C. § 103 rejection of claims 1, 3, and 12, as well as claims 2, 4,
6--11, and 13-20, which depend on either claims 1, 3, or 12.
Claim 17
Rejection Under 35 U.S.C. § 112
The Examiner rejects claim 17 under 35 U.S.C. 112(d) because the
"claim claims the same limitations as claim 2, which it depends from, with
no limiting limitation." (Final Act. 2-3.) Appellants do not respond. We
are not persuaded of Examiner error in the rejection of claim 1 7 and
therefore sustain the 35 U.S.C. 112 rejection of claim 17.
DECISION
We reverse the decision of the Examiner to reject claims 1--4 and 6--20
under 35 U.S.C. § 103(a). We affirm the decision of the Examiner to reject
claim 17 under 35 U.S.C. § 112(d).
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-IN-PART
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