Ex Parte Shintani

Patent Trial and Appeal Board

Jun 9, 2017

13532945 (P.T.A.B. Jun. 9, 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.
13/532,945 06/26/2012 Peter Rae Shintani 201104083.01 7866
36738 7590 06/13/2017
ROrTTT7 fr ASSOPTATRS
EXAMINER
750 B STREET RICHER, AARON M
SUITE 3120
SAN DIEGO, CA 92101 ART UNIT PAPER NUMBER
2614
NOTIFICATION DATE DELIVERY MODE
06/13/2017 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):
Noelle@rogitz.com
eofficeaction @ appcoll.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER RAE SHINTANI
Appeal 2016-006389
Application 13/532,9451
Technology Center 2600
Before JASON V. MORGAN, KEVIN C. TROCK, and
MICHAEL J. ENGLE, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—3, 5—10, 12—18, and 20-25. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
Invention
Appellant discloses a method that allows a viewer to control a gamma
correction factor such that the intensities of an ordered range of colors
change in most equal steps. Abstract.
1 Appellant identifies Sony Corp. as the real party in interest. App. Br. 2.
Appeal 2016-006389
Application 13/532,945
Claims 1
are illustrative:
Exemplary Claims
below with key limitations ei
1. A method comprising:
presenting a plurality of images on a display, each of which is
characterized by a respective brightness of a primary color of
the display from a brightest image to a least bright image;
presenting a prompt on the display to move a cursor until
image intensity from the brightest image to the least bright
image appears to be evenly spaced between each of the images
from the brightest image to the least bright image;
receiving a signal generated by cursor movement in response to
the prompt; and
based at least in part on the signal, establishing at least one
gamma correction factor for the primary color.
3. The method according to claim 1, where the images include
an ordered set of rectangular boxes with each successive box
having increased brightness, each box being a single rectangle.
Rejections
The Examiner rejects claims 1—3, 5, 9, 10, 12—14, 18, and 20-22
under 35 U.S.C. § 103(a) as being unpatentable over Kuo et al. (US 2003/
0025711 Al; Feb. 6, 2003) and Murashita et al. (US 6,850,245 Bl; Feb. 1,
2005). Final Act. 3—6.
The Examiner rejects claims 6—8, 15—17, and 23—25 under 35 U.S.C.
§ 103(a) as being unpatentable over Kuo, Murashita, and Burkhardt et al.
(US 2007/0013725 Al; Jan. 18, 2007). Final Act. 6-7.
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Application 13/532,945
ANALYSIS
Claims 1, 2, 5—10, 13—18, and 20—25
Kuo discloses a human perception response function curve creation
process that involves repeatedly prompting a tester with symbols displayed
against a background to ascertain the just noticeable differences between
colors of varying intensities. Kuo 50—52. The Examiner relies on this
process to teach or suggest presenting a prompt on the display to select an
image intensity from the brightest image to the least bright image that
appears to be evenly spaced between each of the images from the brightest
image to the least bright image, in the manner of claim 1. Final Act. 3^4
(citing Kuo 50—52). The Examiner does not rely on Kuo to teach or
suggest selecting an image intensity by moving a cursor. Rather, the
Examiner relies on Murashita’s use of a color intensity adjusting slide bar
160—depicted as a scrollbar with a moveable thumb—to teach or suggest
the selection of an image intensity by moving a cursor. Final Act. 4 (citing,
e.g., Murashita col. 23,11. 14—23, Fig. 20).
Appellant contends the Examiner erred because “Kuo simply prompts
a person to indicate whether he can see any of the symbols 34, 36, and 38
from left to right, without asking the user to indicate anything about
brightness as between any two symbols.” App. Br. 5 (emphases added).
The Examiner acknowledges that Kuo prompts a user as to whether the user
“can see a difference between the background and the symbols” (Ans. 2),
but finds that “the method continues to run through [color] brightnesses until
all of the value range is covered” {id. at 3). The Examiner notes that, after
the method of Kuo has completed, the brightnesses resulting from the user
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Application 13/532,945
prompts are separated by their just noticeable difference (i.e., an even
spacing between brightnesses). Id. at 4.
Appellant’s argument is unpersuasive because the broadest reasonable
interpretation of the disputed recitation encompasses presenting a prompt
until the desired state has been achieved (i.e., until image intensity from the
brightest image to the least bright image appears to be evenly spaced
between each of the images from the brightest image to the least bright
image). That is, under a broad but reasonable interpretation, “until”
modifies “presenting a prompt” rather than “move a cursor.” Therefore, the
claimed prompting must be “to move a cursor” and the prompt must be
presented until the desired state has been achieved, rather than the prompt
itself instructing that the cursor is to be moved “until the desired state is
achieved” (which would permit the prompt to disappear before the desired
state was achieved). See also In re Morris, 127 F.3d 1048, 1056 (Fed. Cir.
1997) (“It is the applicants’ burden to precisely define the invention, not the
PTO’s.”).
The Examiner has articulated an explanation as to how Kuo’s method
produces the same results as those of the claimed method by providing a
prompt until just-noticeable-difference levels of brightness are ascertained
for a plurality of images. See Ans. 3. Appellant does not show error in the
Examiner’s finding, but merely contends that the Examiner has
misunderstood the issue raised by Appellant. Reply Br. 4. However, we
agree with the Examiner that by prompting the user for selections until the
just-noticeable-difference levels of brightness are identified, Kuo teaches or
suggests presenting a prompt on the display until image intensity from the
brightest image to the least bright image appears to be evenly spaced
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Application 13/532,945
between each of the images from the brightest image to the least bright
image. We further agree with the Examiner that Murashita teaches or
suggests making selections through cursor movement. Final Act. 4.
Although Appellant argues that “Kuo asks a yes or no question that is not
susceptile to a cursor movement over images” (App. Br. 6), in addition to
Appellant not sufficiently addressing why a yes or no question could not
entail cursor movement (e.g., moving the cursor to either yes or no, see Ans.
8), the Examiner also correctly finds that Kuo teaches or suggests prompting
for an indication of which symbols are visible, not just a “yes or no
question” (Ans. 7).
Therefore, we agree with the Examiner that the combination of Kuo
and Murashita teaches or suggests “presenting a prompt on the display to
move a cursor until image intensity from the brightest image to the least
bright image appears to be evenly spaced between each of the images from
the brightest image to the least bright image,” as recited in claim 1.
Accordingly, we sustain the Examiner’s § 103(a) rejection of claim 1,
and claims 2, 5—10, 13—18, and 20-22, which contain similar recitations.
In the event of further prosecution, we invite the Examiner to
ascertain in the first instance whether the disputed recitation of presenting a
prompt on the display to provide instructions to move a cursor constitutes
non-functional descriptive material that is not entitled to patentable weight.
See MPEP § 2111.05.
Claims 3 and 12
Appellant further argues the Examiner erred in finding that it would
have been obvious to an artisan of ordinary skill to have the the images
include an ordered set of rectangular boxes with each successive box having
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Application 13/532,945
increased brightness, each box being a single rectangle, as recited in claim
3, because modifying Kuo in the manner recited “would unnecessarily
clutter a row of symbols for use as intended.” App. Br. 8; see also Ans. 5—6.
The Examiner finds that Kuo discloses “a set of E-shaped boxes, which
consist of rectangular boxes, [that] are arranged linearly with a brightness
increasing by delta-x for each successive box.” Final Act. 5 (citing Kuo
48-49, Fig. 5); see also Ans. 8—10. Although the symbols displayed in
Kuo arguably are made up of rectangular boxes (see Kuo Fig. 5), we agree
with Appellant that the symbols are not themselves rectangular boxes.
Nonetheless, we agree with the Examiner that the choice of rectangular
boxes is merely an aesthetic design choice. Final Act. 5; Ans. 9. Kuo
discloses the use of a “randomly generated symbol (e.g., an eye examination
symbol)” (Kuo 148) without any indication that E-shaped boxes “enable[]
the user to better see just-noticeable differences” as argued by Appellant
(App. Br. 8). A rectangular box is merely another example of a randomly
generated symbol. See also Murashita Figs. 9, 12, 18—20 (depicting color
charts as rectangular boxes); Final Act. 5.
Accordingly, we sustain the Examiner’s § 103(a) rejection of claim 3,
and claim 12, which Appellant does not argue separately.
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Application 13/532,945
DECISION
We affirm the Examiner’s decision rejecting claims 1—3, 5—10, 12—18,
and 20—25.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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