Ex parte Taylor et al.

Board of Patent Appeals and Interferences

Dec 4, 1997

07946226 (B.P.A.I. Dec. 4, 1997)

Application for patent filed September 16, 1992.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 19
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte ROY Y. TAYLOR and
ROGER A. MORTON
_____________
Appeal No. 95-4722
Application 07/946,2261
______________
ON BRIEF
_______________
Before THOMAS, JERRY SMITH and BARRETT, Administrative Patent
Judges.
JERRY SMITH, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 95-4722
Application 07/946,226
2
This is a decision on the appeal under 35 U.S.C. § 134
from the examiner's rejection of claims 1-24, which constitute
all the claims in the application. An amendment after final
rejection was filed on December 21, 1994 and was entered by
the examiner. This amendment overcame a rejection of the
claims under the second paragraph of 35 U.S.C. § 112 [Advisory
Action, Paper #15].
The claimed invention pertains to a method and
apparatus for producing a depth image of a scene based on a
plurality of two-dimensional views of the scene.
Specifically, the depth image is created by processing the
apparent viewing positions of the various two-dimensional
views in a manner which changes the apparent viewing positions
of these views.
Representative claim 1 is reproduced as follows:
1. A method of producing a depth image, comprising
the steps of:
(a) capturing views of a scene from various positions using
convergent perspective axis imagers producing apparent viewing
positions;
(b) processing the views changing the apparent viewing
positions; and
(c) creating the depth image from the views.
Appeal No. 95-4722
Application 07/946,226
3
The examiner relies on the following references:
Wah Lo 4,800,407 Jan. 24, 1989
Hiraoka 4,870,600 Sep. 26, 1989
Travis 5,132,839 July 21, 1992
Claims 1-24 stand rejected under 35 U.S.C. § 103. As
evidence of obviousness the examiner offers Wah Lo in view of
Travis with respect to claims 1-17 and 21-24, and Hiraoka in
view of Travis with respect to claims 18-20.
Rather than repeat the arguments of appellants or the
examiner, we make reference to the brief and the answer for
the respective details thereof.
OPINION
We have carefully considered the subject matter on
appeal, the rejections advanced by the examiner and the
evidence of obviousness relied upon by the examiner as support
for the rejections. We have, likewise, reviewed and taken
into consideration, in reaching our decision, the appellants'
arguments set forth in the brief along with the examiner's
rationale in support of the rejections and arguments in
rebuttal set forth in the examiner's answer.
Appeal No. 95-4722
Application 07/946,226
4
It is our view, after consideration of the record
before us, that the collective evidence relied upon and the
level of skill in the particular art would not have suggested
to one of ordinary skill in the art the obviousness of the
invention as set forth in claims 1-24. Accordingly, we
reverse.
We consider first the rejection of claims 1-17 and 21-
24 under 35 U.S.C. § 103 as unpatentable over Wah Lo in view
of Travis. In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine,
837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In
so doing, the examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S.
1, 17, 148 USPQ 459, 467 (1966), and to provide a reason why
one having ordinary skill in the pertinent art would have been
led to modify the prior art or to combine prior art references
to arrive at the claimed invention. Such reason must stem
from some teaching, suggestion or implication in the prior art
as a whole or knowledge generally available to one having
ordinary skill in the art. Uniroyal Inc. v. Rudkin-Wiley
Appeal No. 95-4722
Application 07/946,226
5
Corp., 837 F.2d 1044, 1051, 5 USPQ2d 1434, 1438 (Fed. Cir.),
cert. denied, 488 U.S. 825 (1988); Ashland Oil, Inc. v. Delta
Resins & Refractories, Inc., 776 F.2d 281, 293, 227 USPQ 657,
664 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017 (1986); ACS
Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572,
1577, 221 USPQ 929, 933 (Fed. Cir. 1984). These showings by
the examiner are an essential part of complying with the
burden of presenting a prima facie case of obviousness. Note
In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992).
For each of the independent claims subject to this
rejection, the examiner has presented a similar rationale in
formulating the rejection. More particularly, the examiner’s
rejection takes the position that Wah Lo teaches the claimed
method and apparatus for producing a depth image except for
the step of creating views between the captured views. The
examiner views this function as being met by the process of
interpolating between captured views. The examiner cites
Travis as a teaching that interpolation can be used to
generate additional pictures if desired. The examiner
concludes that it would have been obvious to the artisan to
Appeal No. 95-4722
Application 07/946,226
6
use the interpolation teachings of Travis with the image
capture system of Wah Lo [answer, pages 4-17]. Although each
of the independent claims recites a variation on the manner in
which apparent image positions are changed, each of the
independent claims recites the property that the apparent
viewing positions of the captured views are changed.
Although appellants argue each of the claims
separately, there are some arguments which apply to all the
claims subject to this rejection. First, appellants argue
that the broad reference to interpolation in Travis is
unrelated to the creation of a depth image so that the artisan
would not have used this reference as a basis to modify the
teachings of Wah Lo to include interpolation [brief, pages 9-
11]. Second, appellants argue that Travis provides no
guidance as to how interpolation should be applied to a
lenticular projection system [brief, pages 11-12]. Third,
appellants argue that the broad concept of interpolation as
suggested by Travis would not meet the requirement of the
invention that the entire apparent position be changed.
According to appellants, the changed viewing positions of the
claims requires that both the physical position be changed and
Appeal No. 95-4722
Application 07/946,226
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that the perspective axis of the view be changed. This result
is not accomplished by the simple interpolation of captured
values according to appellants [brief, pages 12-14].
Based on the record established in this case, we agree
with appellants that the teachings of Wah Lo and Travis do not
collectively suggest the invention of claims 1-17 and 21-24.
Wah Lo has nothing to do with changing apparent viewing
positions in creating a depth image. Rather, Wah Lo teaches
that a depth image on a lenticular photograph should have
precisely three image bands under a lenticular screen of
approximately thirty degrees [column 4, lines 34-37]. The
three image bands result from a picture taken of a scene
through three different lenses. The apparent viewing position
of each view is established by the fixed relationship between
the lenses. Wah Lo does nothing in creating the photograph to
change these apparent viewing positions [note that the
apparent viewing positions remain unchanged in going from FIG.
6 to FIG. 7]. Whatever the apparent viewing position is in
Wah Lo when the image is captured is retained in producing the
lenticular photograph.
Appeal No. 95-4722
Application 07/946,226
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Wah Lo does absolutely no processing of the captured
images. In addition, Wah Lo also suggests that an increased
number of captured images would be undesirable [column 2,
lines 19-48]. An interpolated view in Wah Lo would be
equivalent to having placed a lens at that same perspective
axis on the camera. In other words, interpolated views would
be the same as capturing additional original views in the
first place. But Wah Lo specifically teaches against
providing any more than three images because the eye will then
focus on non-adjacent images which is not desirable.
Therefore, interpolated views between the three captured views
in Wah Lo would present the very problems which Wah Lo is
trying to eliminate. The artisan would have absolutely no
motivation to attempt to change the apparent viewing positions
of the captured views in Wah Lo.
We also agree with appellants that the mere mention of
interpolation in Travis would not justify using interpolation
in Wah Lo. The examiner’s position is tantamount to holding
that since interpolation was known in the art, it would have
been obvious to use it. The examiner’s position also assumes
that interpolation would always be a desirable thing to do.
Appeal No. 95-4722
Application 07/946,226
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The examiner’s rejection fails to consider the claimed
invention as a whole and fails to ascertain whether the
artisan would have been motivated to use interpolation in the
Wah Lo device.
Since we are of the view that the artisan would have
no motivation to use Travis’ broad interpolation suggestion in
the Wah Lo depth image producing device, we conclude that the
invention recited in each of the claims on appeal would not
have been obvious within the meaning of 35 U.S.C. § 103 in
view of the teachings of Wah Lo and Travis. Therefore, we do
not sustain the rejection of any of claims 1-17 and 21-24.
We now consider the rejection of claims 18-20 as
unpatentable over the teachings of Hiraoka in view of Travis.
For each of these claims, the examiner’s rejection takes the
position that Hiraoka implicitly teaches specific recitations
of the claims. That is, with respect to claim 18, the
examiner asserts that “Hiraoka implicitly teaches identifying
a volume with the greatest number of image edges and shifting
the perspective of the views to rotate around the volume”
[answer, page 17]. With respect to claims 19 and 20, the
examiner asserts that “Hiraoka implicitly teaches shifting the
Appeal No. 95-4722
Application 07/946,226
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apparent viewing positions” [answer, page 18]. The examiner
again determines that the main reference (Hiraoka) teaches all
the features of the claimed invention except for creating
views between the captured views. The examiner again cites
Travis as providing the teaching that interpolation can be
used to provide additional images if desired. The examiner
concludes that it would have been obvious to use the Travis
interpolation suggestion in the Hiraoka device [answer, page
18].
Appellants argue that Hiraoka does not implicitly
teach the specific recitations of claims 18-20, and the
examiner has not identified any specific passage of Hiraoka
which teaches the steps recited in claim 18, steps (b) and
(c), claim 19, steps (b)-(e), and claim 20, steps (b) and
(c)[brief, pages 21-23]. We agree with appellants’ arguments
with respect to each of claims 18-20. We are unable to find
the teachings the examiner asserts are implicit in Hiraoka.
There appears to be no reason why the specific recitations of
claims 18-20 must implicitly be carried out by Hiraoka. The
examiner’s position represents a conclusion which is not
supported by the applied prior art. Therefore, the examiner
Appeal No. 95-4722
Application 07/946,226
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has failed to establish a prima facie case of the obviousness
of claims 18-20. Accordingly, we do not sustain the rejection
of claims 18-20.
In summary, we have not sustained either of the
examiner’s rejections of the claims on appeal. Therefore, the
decision of the examiner rejecting claims 1-24 is reversed.
REVERSED
)
JAMES D. THOMAS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JERRY SMITH )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
LEE E. BARRETT )
Administrative Patent Judge )

Thomas H. Close
EASTMAN KODAK CO.
343 State Street
Patent Department
Appeal No. 95-4722
Application 07/946,226
12
Rochester, NY 14650-2201