Ex Parte Stalenhoef et al

Patent Trial and Appeal Board

Sep 19, 2016

12606221 (P.T.A.B. Sep. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/606,221 10/27/2009
61947 7590 09/21/2016
Apple - Blank Rome
c/o Blank Rome LLP
717 Texas Avenue, Suite 1400
HOUSTON, TX 77002
FIRST NAMED INVENTOR
Thijs Stalenhoef
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.
Pl0795US1
(l 19-0343US1)
CONFIRMATION NO.
2357
EXAMINER
MAHMOOD, REZWANUL
ART UNIT PAPER NUMBER
2164
NOTIFICATION DATE DELIVERY MODE
09/21/2016 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):
mbrininger@blankrome.com
houstonpatents@blankrome.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte THIJS STALENHOEF, JAN ERIK SOLEM,
NIKOLAI NYHOLM, and GEOFF PARKER
Appeal2015-001805
Application 12/606,221
Technology Center 2100
Before BRUCE R. WINSOR, BETH Z. SHAW, and
JOHN R. KENNY, Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellants request rehearing under 37 C.F.R. § 47.52(a)(l) (2013)
("Request") for reconsideration of our Decision on Appeal mailed June 14,
2016 ("Decision"). The Decision affirmed the rejections of claims 27--48.
Appellants contend that the Board misapprehended or overlooked
certain points. Request 3. More particularly, Appellants argue we
misapprehended or overlooked the "capture condition data" or adopted
"contradictory findings by the Examiner about the 'capture condition data'
set forth in claim 2 7." Id.
"' [T]he main purpose of the examination, to which every application
is subjected, is to try to make sure that what each claim defines is patentable
.... [T]he name of the game is the claim .... "' In re Hiniker Co., 150 F.3d
1362, 1369 (Fed. Cir. 1998) (quoting Giles S. Rich, Extent of the Protection
Appeal2015-001805
Application 12/606,221
and Interpretation of Claims-American Perspectives, 21 lnt'l Rev. Indus.
Prop. & Copyright L. 497, 499 (1990)). Moreover, because "applicants may
amend claims to narrow their scope, a broad construction during prosecution
creates no unfairness to the applicant or patentee." In re ICON Health and
Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citing In re Am. Acad.
of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)).
Claim 27 requires a "computation unit" to "divide the first set of
images into two or more image segments based, at least in part, on capture
condition data that represents a change of scene or subject matter between
one or more pairs of sequentially captured images in the first set of images."
We interpret the claim using the broadest reasonable construction in light of
the Specification. As pointed out in the Decision, Appellants' claims and
Specification do not explicitly define "capture condition data" or "a change
of scene or subject matter between one or more pairs of sequentially
captured images in the first set of images," as recited in claim 2 7. Decision
6. Indeed, "capture condition data" does not appear in the Specification.
Moreover, the Specification does not include any figures to aid our
interpretation. Appellants do not point to any particular portion of the
Specification to support their arguments in the Request, nor do Appellants
propose a specific interpretation of "capture condition data" other than to
argue that capture condition data is "necessarily" a "change of scene or
subject matter between one or more pairs of sequentially captured images in
the first set of images." Id. at 4.
As stated in our Decision, "change of scene or subject matter" is also
not explicitly defined in the Specification. The Specification, however, does
mention the term. Decision 6. In particular, the Specification states that
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Appeal2015-001805
Application 12/606,221
"[t]he present invention uses the following indicators of a rapid change of
scene or subject matter in photos taken sequentially" and then refers to 4
indicators: (1) significant shift in shutterspeed, (2) use of flash, (3)
significant shift in ISO speed, and (4) white balance change. Spec. 6-7.
The Specification also refers to this data as "EXIF data (for segmentation)."
Id. at 6. However, the Specification does not elaborate on what constitutes a
"change," a "scene," or a "subject matter." Thus, giving the claims the
broadest reasonable interpretation in light of the Specification, we stated in
the Decision that we found no error in the Examiner's finding that Inoue
teaches capture condition data when Inoue describes information read from
EXIF data used to group similar images, because this EXIF data is consistent
with the Specifications' description of "EXIF data" and indicators "of a
rapid change of scene or subject matter in photos taken sequentially."
Decision 6. In the Decision, we also stated that Gokturk "discloses grouping
using difference metrics and using difference vectors tied to metrics such as
time, location, face etc. to determine if a succession of pictures taken seconds
apart show the same person or subject," which the Examiner interprets as
teaching dividing a set of images into two or more image segments, based on a
change of scene or subject matter between one or more pairs of sequentially
captured images. Decision 4.
Appellants acknowledge in the Request that Inoue groups images
based on automatic exposure, shutter speeds, and f-stop information.
Request 4. Appellants argue in the Request, however, that reliance on both
Inoue and Gokturk is a "contradictory combination." Request 3. Appellants
argue that the claimed "capture condition data" cannot be equivalent to
Inoue's grouping operation and also Gokturk's determination operation
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Appeal2015-001805
Application 12/606,221
because if such a combination is made "then at least one of Inoue or Gokturk
would not function properly or as intended .... " Request 4. However,
Appellants do not elaborate on this argument, and fail to explain
persuasively how or why Inoue or Gokturk would not "function properly or
as intended." Moreover, we did not overlook or misapprehend this argument
because it was not presented in the Appeal Brief.
For these reasons, Appellants have not persuaded us of error in our
finding (Decision 3-8) that the combination of references teaches the
elements recited in claim 27.
DECISION
We have reconsidered our Decision in light of Appellants' Request.
We decline to make any changes in our Decision. Therefore, the Request for
Rehearing is denied.
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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
DENIED
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