14391439 (P.T.A.B. Jan. 28, 2019)

Ex Parte Tytgat et al

Patent Trial and Appeal BoardJan 28, 2019

14391439 (P.T.A.B. Jan. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/391,439 10/09/2014 47382 7590 01/30/2019 McCracken & Gillen LLC - NOK 1315 W. 22nd Street Suite 225 Oak Brook, IL 60523 FIRST NAMED INVENTOR Donny Tytgat 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. ALU-192/810621 US 9181 EXAMINER WANG,YI ART UNIT PAPER NUMBER 2611 NOTIFICATION DATE DELIVERY MODE 01/30/2019 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): docket@mfgip.com nokia.ipr@nokia.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DONNY TYTGAT, SAMMY LIEVENS, and MAARTEN AERTS Appeal 2018-003611 Application 14/391,439 Technology Center 2600 Before JOHN A. JEFFERY, DENISE M. POTHIER, and JUSTIN BUSCH, Administrative Patent Judges. POTHIER, Administrative Patent Judge. Opinion Concurring-in-part filed by JEFFERY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants 1,2 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision to reject claims 1, 3---6, 15, 17-21, and 23-31. Br. 2. Claims 2, 1 Throughout this opinion, we refer to the Final Action (Final Act.) mailed June 12, 2017; the Appeal Brief (Br.) filed August 1, 2017; and the Examiner's Answer (Ans.) mailed November 22, 2017. No Reply Brief has been filed. 2 The real party in interest is listed as Alcatel-Lucent, Inc. now known as Nokia. Br. 2. 1 Appeal 2018-003611 Application 14/391,439 7-14, 16, 22 have been canceled. Id. at 16-19 (Claims App'x). We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. Invention Appellants' "invention relates to a method for generating a three- dimensional ... model, based on one or more two-dimensional ... image input data together with their associated depth or disparity information." Spec. 1:3-7. The invention describes "a simple, yet accurate method allowing real-time processing" (Spec. 2: 18-19), involving generating the three-dimensional (3D) surface using a distance function applied at an octree structure's comer points. 3 Spec. 2: 14--17; 8:4--15, 12: 14--18, Fig. 5a. Independent claim 1 exemplifies the claims at issue and reads as follows: 1. A method for generating a 3 D model from at least one image data, said method comprising the steps of: receiving, at a processor, said at least one image data as an input from one or more cameras, said at least one image data comprising 2D+z data and reliability information; 3 An octree structure is a well-known tree data structure, often used to partition a three dimensional space by recursively subdividing it into eight octants. An octree splits a cube into 8 sub-cubes as long as a split condition is fulfilled, which split condition is defined in our embodiment as a function of distance metrics on the 8 points of the cube. Spec. 7:11-15; see Spec. 4:7-9, 11:3-12:13, Figs. 3--4, 6a---d. 2 Appeal 2018-003611 Application 14/391,439 building, at said processor, a 3D surface using said 2D+z data and said reliability information from said at least one image data input; and performing, at said processor, a meshing operation in 3D on said 3 D surface to generate said 3 D model; wherein said step of building, at said processor, said 3D surface comprises calculating distance function values by applying a distance function at comer points of an octree structure, such that said comer points of said octree structure with a predetermined value of said distance function, will form said 3D surface. Br. 16 (Claims App'x). The Examiner relies on the following as evidence of unpatentability: Smith Pavlovskaia Tian US 2009/0052760 Al US 2011/0282473 Al US 2012/0039525 Al Feb.26,2009 Nov. 17, 2011 Feb. 16,2012 Lutz Falkenhagen, 3D Object-Based Depth Estimation from Stereoscopic Image Sequences, PROC. INT'L WORKSHOP ON STEREOSCOPIC AND 3D IMAGING 81-86 (1995). Hansung Kim et al., A Real-Time 3D Modeling System Using Multiple Stereo Cameras for Free-Viewpoint Video Generation, IMAGE ANALYSIS AND RECOGNITION LECTURE NOTES IN COMP. SCIENCE 23 7- 49 (2006) ("Kim"). The Rejections Claims 1, 3, 4, 15, 17, 18, 21, 23, 4 24, and 27-31 are rejected under 35 U.S.C. Â§ I03(a) as being unpatentable over Pavlovskaia, Tian, Falkenhagen, and Kim. Final Act. 8-15. 4 The Examiner mistakenly includes canceled claim 22 in the rejection's heading. Final Act. 8. 3 Appeal 2018-003611 Application 14/391,439 Claims 5, 6, 19, 20, 25, and 26 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Pavlovskaia, Tian, Falkenhagen, Kim, and Smith. Final Act. 15-18. We review the appealed rejections for error based upon the issues identified by Appellants in their Appeal Brief, and in light of the arguments and evidence produced. Cf Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). "Any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal." 37 C.F.R. Â§ 4I.37(c)(l)(vi). THE OBVIOUSNESS REJECTION OVER PA VLOVSKAIA, TIAN, FALKENHAGEN, AND KIM For this rejection, Appellants argue claims 1 and 29 separately. Br. 6-13. We address these claims below and select claim 1 as representative of claims 1, 3, 4, 15, 17, 18, 21, 23, 24, 27, 28, 30, and 31. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). CLAIMS 1, 3, 4, 15, 17, 18, 21, 23, 24, 27, 28, 30, AND 31 Regarding independent claim 1, the Examiner finds Pavlovskaia teaches many recited elements including, among other things, receiving at least one image data comprising 2D+z data as an input from one or more cameras. Final Act. 9 (citing Pavlovskaia ,r 275). The Examiner also finds that Pavlovskaia teaches using the 2D+z data to build a 3D surface. Id. ( citing Pavlovskaia ,r,r 275-276). Although acknowledging Pavlovskaia's at least one image data does not comprise reliability information, the Examiner cites Tian in combination 4 Appeal 2018-003611 Application 14/391,439 with Pavlovskaia for teaching this feature. Id. at 9-10 (citing Tian ,r,r 1, 12, 22-24). The Examiner also acknowledges that Pavlovskaia/Tian's resulting 3D surface is not built using the reliability information as claimed, but cites Falkenhagen in combination with Pavlovskaia and Tian to teach this feature. Id. at 10-11 ( citing Falkenhagen Â§ 1). The Examiner further indicates the combined Pavlovskaia/Tian/Falkenhagen system does not teach calculating distance function values by applying a distance function at comer points of an octree structure, such that the comer points of the octree structure with a predetermined value of the distance function form the 3 D surface. Id. at 11. The Examiner relies on Kim in combination with the Pavlovskaia/Tian/Falkenhagen system for teaching this feature in concluding that the claim would have been obvious. Id. at 11-12 (citing Kim Abstract, 238, 239 (Â§ 2.2), 242--43, Fig. 5). Appellants present many arguments. Br. 7-11. Appellants argue Kim does not teach "comer points of said octree structure with a predetermined value of said distance function" as recited in claim 1. Br. 8 ( citing Kim 242). Appellants further argue Falkenhagen does not teach the reliability data recited in claim 1 because Falkenhagen's reliability data is not provided by one or more cameras. Id. (citing Falkenhagen Â§ Â§ 2 and 3. 1). Appellants further assert that because Falkenhagen and Tian disclose different and conflicting techniques for determining reliability information, the proposed combination of Falkenhagen and Tian would not be a properly functioning system. Id. at 8-9. Appellants contend Falkenhagen and Tian provide no guidance indicating their reliability information are equivalent. Id. at 10. Appellants also argue that, because Pavlovskaia and Kim disclose differences in the number of computers used, the proposed combination of 5 Appeal 2018-003611 Application 14/391,439 Pavlovskaia and Kim would not be a properly functioning system. Id. at 10. Appellants further assert Falkenhagen and Kim disclose different and conflicting techniques for determining reliability information. Id. at 10-11. MAIN ISSUES I. UnderÂ§ 103, has the Examiner erred by finding Pavlovskaia, Tian, Falkenhagen, and Kim collectively would have taught or suggested: (A) "said comer points of said octree structure with a predetermined value of said distance function" as recited in claim 1? (B) "receiving ... at least one image data as an input from one or more cameras, said at least one image data comprising ... reliability information" as recited in claim 1? II. Would combining the references as proposed destroy the operation principle of the prior art invention being modified? ANALYSIS Based on the record before us, we are not persuaded of error in the Examiner's rejection of independent claim 1. I. A. Predetermined Value We begin by construing the key disputed limitation of claim 1, "a predetermined value" within the recitation "said comer points of said octree structure with a predetermined value of said distance function, will form said 3D surface." Br. 16 (Claims App'x). A claim is given its broadest reasonable construction "in light of the specification as it would be interpreted by one of ordinary skill in the art." In re Am. Acad. of Sci. Tech. 6 Appeal 2018-003611 Application 14/391,439 Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citation omitted). We presume that claim terms have their ordinary and customary meaning. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Appellants' Specification does not define the term "predetermined value." See generally Spec. In fact, as noted by Appellants in their summary of the invention (Br. 3 (citing Spec. 8:4--15, Fig. 3)), the Specification discusses a distance function but does not address a predetermined value. Spec. 8:4--15. The Specification later states the distance metric d'=O shown in Figure 5b is "particularly interest[ing]" (Spec. 9:22) for generating the ISO surface, but this metric is not described as a predetermined value. Spec. 9: 15-24, Fig. 5b. We therefore construe the term in accordance with its plain or ordinary meaning. The term "predetermined" is defined as "to determine beforehand," MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 917 (vt. def. 1 b) (10th ed. 1993); the term "value" is defined as "numerical quantity that is assigned," id. at 1305 (n. def. 4a). Under its broadest reasonable interpretation, therefore, the phrase "predetermined value" encompasses an assigned numerical quantity that is determined beforehand. Appellants contend Kim discloses "pseudo codes that refer to a range of values for the distance function rather than 'a predetermined value of said distance function' as recited in [the] claim." Br. 8 (citing Kim 242). But Appellants do not provide any specific portion of Kim's pseudocode on page 242 that refers to a "range of values." Nor is value range apparent upon reviewing the pseudo-code. See Kim 242. Although Kim at page 241 discloses checking if a voxel exists behind a "range of depth" from a disparity, Appellants have not provided technical reasoning or evidence that 7 Appeal 2018-003611 Application 14/391,439 Kim's "range of depth" on page 241 is "a range of values" in Kim's pseudocode on page 242 as argued. See Br. 8. Turning to the Examiner's findings related to the disputed "predetermined value," Kim discusses 3D modeling. Kim 242--43, cited in both Final Act. 11-12 and Ans. 13-14. Kim's dvoxel is a distance from a camera to a projected point M (Kim 241--42, Fig. 4) and dsurris the distance from the camera to a surface (id. at 240--42). Kim's pseudo-code (id. at 242) is used to determine if checking points (e.g., comers) of a voxel are (a) included or excluded from an object and (b) made part of the 3D surface by using the formula "if (dvoxel > dsurf)." Id. at 242--43. The Examiner finds "dvoxel > dsur?' in pseudo-code is equivalent to a distance function "dvoxel - dsurf> O." Final Act. 11; Ans. 14. Similar to the Specification previously discussed, Kim at least suggests to an ordinary artisan that its octree structure's comer points are used to form the 3D surface and are associated with a predetermined value ( e.g., an assigned numerical quantity "O" that is determined beforehand) of a distance function (e.g., defined by dvoxel - dsurf) (the claimed "distance function"). See Final Act. 11-12; see also Ans. 13-14. Thus, when combined with Pavlovskaia, Tian, and Falkenhagen, the resulting system teaches or suggests the disputed limitation. B. Reliability Information Provided by Camera(s) Next, Appellants contend "Falkenhagen's reliability information is invalid" because it is not provided by one or more cameras. Br. 8 ( citing FalkenhagenÂ§Â§ 2 and 3.1). This argument is unavailing. Tian teaches receiving reliability data from one or more cameras. See Final Act. 9-10 and Ans. 14 (both citing Tian ,r,r 22-23, Fig. 1). Falkenhagen was cited for a limited purpose, namely that it was known to an ordinarily skilled artisan to 8 Appeal 2018-003611 Application 14/391,439 use reliability information to build a 3D surface. See Final Act. 10. The rejection proposes to combine this limited teaching to the Pavlovskaia/Tian system to teach the disputed limitation. Final Act. 10-11. In short, Appellants' argument regarding the individual shortcoming of Falkenhagen does not show nonobviousness where, as here, the rejection is based on Pavlovskaia, Tian, and Falkenhagen's collective teachings. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Appellants further cite the Manual of Patent Examiner Procedure (MPEP) Â§ 2144.06 and contend "the proposed combination is improper" because "the cited references provide no guidance to indicate the reliability information allegedly disclosed in Tian nor Falkenhagen references are equivalent." Br. 10. We are not convinced. Contrary to Appellants' contention, the Examiner does not rely on equivalence as a rationale5 to support a conclusion that the claim would have been obvious. Br. 10. Rather, Tian teaches or suggests capturing image data from cameras that includes reliability information. Final Act. 9-10 ( citing Tian ,r,r 1, 12, 22-23, Fig. 1). Falkenhagen teaches it is known to use reliability information, such as that taught by Tian, to build a 3D surface. See Final Act. 10-11. The Examiner has not proposed substituting Falkenhagen's reliability information for Tian's reliability information or combining the reference's reliability information as Appellants suggest. See Br. 10. 5 In order to rely on equivalence as a rationale for supporting an obviousness rejection, the equivalency must be recognized in the prior art, and cannot be based on applicant's disclosure or the mere fact that the components at issue are functional or mechanical equivalents. In re Ruff, 256 F. 2d 590 (CCPA 1958); see MPEP Â§ 2144.06. 9 Appeal 2018-003611 Application 14/391,439 Moreover, the Examiner concludes it would have been obvious to one of ordinary skill in the art "to combine Pavlovskaia in view of Tian with Falkenhagen .... The suggestions/motivations to improve the Pavlovskaia and Tian's method with ... Falkenhagen 'reduces the temporal incoherence and increases the accuracy of depth estimation."' Final Act. 10-11 ( citing Falkenhagen Â§ 1, ,r 2) ( emphasis added). The Examiner thus has provided some reason with a rational underpinning for combining the references, consistent with KSR International Co. v. Teleflex Inc., 550 U.S. 398, 416- 421 (2007), such that the combination is proper. II. Tian and Falkenhagen Next, Appellants cite MPEP Â§ 2143.02 6 and assert that, because Tian and Falkenhagen disclose different and conflicting techniques for determining the reliability information, "the proposed combination would not be a properly functioning system based on Tian." Br. 9 (citing Tian ,r,r 17, 23 and FalkenhagenÂ§Â§ 2 and 3.1). In particular, Appellants argue Falkenhagen's reliability measures are provided by computing a depth map from a disparity map and a depth estimation approach, whereas Tian's reliability measures are provided by a range camera that generates a 6 Notably,Â§ MPEP 2143.01 contains a sub-section titled "The Proposed Modification Cannot Change the Principle of Operation of a Reference." MPEP Â§ 2143.0l(IV) (9th ed. Rev. 08.2017, Jan. 2018). Section 2143.02 of the MPEP is titled "Reasonable Expectation of Success Is Required." Id. Â§ 2143.02. 10 Appeal 2018-003611 Application 14/391,439 confidence map reflecting confidence of a depth map's accuracy. Id. We are not persuaded. Appellants' arguments concerning modifying Tian and Falkenhagen (Br. 9) do not address the Examiner's proposed rejection. Notably, as discussed above, the Examiner proposes including particular features of Falkenhagen into "Pavlovskaia in view of Tian" (Final Act. 1 O}-not incorporating features of Falkenhagen into Tian or vice versa. Appellants also fail to present persuasive evidence or technical reasoning explaining why Tian and Falkenhagen conflict. Besides identifying purported differences between Falkenhagen and Tian (Br. 9-10), Appellants have not convincingly shown that Tian's confidence map (Tian ,r,r 1, 12, 22-23, cited in Final Act. 9-10) discredits the technique of Falkenhagen's depth estimation (Falkenhagen, Abstract, Â§ 1, cited in Final Act. 10) such that the references cannot be combined as proposed. Other than general assertions (Br. 9), Appellants have also not presented sufficient evidence or technical reasoning explaining why combining Tian and Falkenhagen with Pavlovskaia as proposed (Final Act. 9-11) would amount in a "resultant system [that] would not be a properly functioning system based on Tian" (Br. 9), such as identifying an operation principle for a reference the proposed modification changes. Both Tian and Falkenhagen disclose reliability information. See Tian ,r,r 1, 12, 22-23 and Falkenhagen, Abstract, Â§ 1, both cited in Final Act. 9-10. The Examiner finds both Tian and Falkenhagen's reliability information represent depth values. Ans. 15. The fact that Tian and Falkenhagen compute the depth map differently (see Ans. 15) does not change Tian's or Falkenhagen's principle of operation as proposed by the 11 Appeal 2018-003611 Application 14/391,439 Examiner. The rejection does not propose to incorporate Falkenhagen's depth map technique with Tian. Rather, as previously stated, the rejection cites to Falkenhagen for the limited purpose of using the resulting reliability information (see Ans. 15) to form a 3D surface, which was known to ordinarily skilled artisans. See Final Act. 10-11. Pavlovskaia and Kim Next, Appellants assert that because Pavlovskaia uses one computer and Kim uses four computers, "the resultant system would not be a properly functioning system." Br. 10 (citing MPEP Â§ 2143.02 and Kim 240-43 (Â§Â§ 2.3, 3)). We are not persuaded. Appellants have not presented persuasive evidence or technical reasoning explaining why combining Pavlovskaia and Kim would not amount to a properly functioning system. Appellants identify that Pavlovskaia and Kim use a different number of computers but do not explain how this difference would change these references' operation or preclude a reasonable expectation of success in the combination. Kim, when combined with Pavlovskaia, Tian, and Falkenhagen (Final Act. 11-12), is cited for the limited purpose of teaching building a 3D model using a distance function, not to teach the number of computers used. Based on the record, we find that including Kim's teaching of forming a 3D surface using an octree structure (Kim 242--43, Fig. 5, cited in Final Act. 11) would not change Pavlovskaia's principle of operation or, for that matter, any of Tian's or Falkenhagen's operation principles. Falkenhagen and Kim Appellants assert Falkenhagen and Kim disclose conflicting techniques for disparity estimation. Br. 10-11 (citing FalkenhagenÂ§Â§ 2 and 12 Appeal 2018-003611 Application 14/391,439 3 .1 and Kim Â§ 2 .2). We are not persuaded. Besides identifying purported differences between Falkenhagen and Kim, Appellants have not convincingly shown that Kim's disparity estimation discredits the technique of Falkenhagen's disparity estimation to the extent that it would have led the ordinarily skilled person to reject Kim's technique. Also, as previously stated, the rejection does not propose to use Kim's disparity technique to provide reliability measurements, but rather relies on Kim for the limited purpose of building a 3D surface by calculating a distance function at an octree structure's comer points. Final Act. 11-12. As such, the combination does not propose to alter Falkenhagen's reliability information and its approach to gathering reliability information (Final Act. 10-11 ), such that any conflicting techniques asserted by Appellants exist. Remaining Assertions We have considered Appellant's remaining assertions but are not persuaded. See Br. 11 ( asserting "Tian and Kim require [a] different number of stereo cameras" ( emphasis omitted), "Kim discloses a real-time 3D modeling system for video generation," "Pavlovskaia, Tian and Falkenhagen generate a 3D model but not video," and "their techniques are not disclosed to be real-time 3D modeling."). Appellants point to differences in the prior art, including some unrelated to claim 1, without identifying deficiencies in the Examiner's findings and conclusions. "[I]t has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections." In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). For the foregoing reasons, Appellants' arguments have not persuaded us of error in the rejection of independent claim 1 and claims 3, 4, 15, 17, 18, 21, 23, 24, 27, 28, 30, and 31 which are not separately argued. 13 Appeal 2018-003611 Application 14/391,439 III. Claim 29 The Examiner finds Tian, in combination with Pavlovskaia and Falkenhagen, teaches the features of claim 29. Final Act. 15 ( citing Tian ,r 14, Fig. 1 ); Ans. 19--20. Appellants argue Tian does not teach receiving reliability information as input from stereo cameras but rather from range camera 140. Br. 13-14 (citing Tian ,r,r 13, 15, 23). Claim 1 recites, in pertinent part, "[a] method ... comprising the steps of: receiving ... said at least one image data as an input from one or more cameras, said at least one image data comprising 2D+z data and reliability information" (Br. 16 (Claims App'x)), and claim 29 further recites "[t]he method of claim 1, wherein said one or more cameras comprise stereo cameras" (Br. 21 (Claims App'x)). We emphasize the transitional word, "comprising" in claim 29 here, because this term is presumptively open- ended. Gillette Co. v. Energizer Holdings Inc., 405 F.3d 1367, 1371 (Fed. Cir. 2005). Claim 1 requires the "one or more cameras" ( e.g., a camera system) to receive "at least said one or more image data as an input," and claim 29 requires the "one or more cameras" ( e.g., the camera system) comprises stereo cameras. Given this open-ended "comprising" phrase modifying the "one or more cameras" ( e.g., a camera system) in claim 29, the claim's broadest reasonable construction requires only that at least some of the "one or more cameras" are stereo cameras but, notably, does not require receiving "at least one image data" (i.e., the 2D+z data and reliability information) as an input from only the stereo cameras in claim 29. Nor does claim 29 require receiving the two specifically-recited image data parts (i.e., both 2D+z data and reliability information) as an input from stereo cameras. See Ans. 19. 14 Appeal 2018-003611 Application 14/391,439 This claim construction is consistent with In re Varma, 816 F.3d 1352 (Fed. Cir. 2016), which states: Although the transitional term "comprising" indicates that the claim is open-ended, the term does not render each limitation or phrase within the claim open-ended .... "Comprising" means that the claim can be met by a system that contains features over and above those specifically required by the claim element, but only if the system still satisfies the specific claim- element requirements: the claim does not cover systems whose unclaimed features make the claim elements no longer satisfied. Id. at 1362. That is, the phrase "said method comprising" in claim 1 does not render the recitation "receiving ... said at least one image data as an input from one or more cameras" open-ended. But, using the term "comprise" in claim 29 to modify "said one or more cameras" renders the phrase, "one or more cameras" in claim 29, originally recited in claim 1 from which claim 29 depends, open-ended. Notably, claim 29 as recited differs from a recitation, such as "said one or more cameras consists of stereo cameras" or "said one or more cameras are stereo cameras."7 Moreover, this construction still gives appropriate weight to claim 29's limitation, which narrows claim 1 to require that the "one or more cameras" (e.g., a camera system) includes stereo cameras, whereas claim 1 need not include stereo cameras. Turning to the proposed rejection, the Examiner finds Tian at least suggests one or more cameras that receive reliability information as an input. 7 In accordance with Varma, such a hypothetical recitation would require the recited "at least one image data" (including both the 2D+z data and the reliability information) to be received from only the stereo cameras because the "one or more cameras" while also allowing for other image data to be received by other cameras. 15 Appeal 2018-003611 Application 14/391,439 Final Act. 9--10 (citing Tian ,r,r 1, 12, 22-24). We agree. Tian's camera system 125 includes range camera 140 and vision cameras 150. Tian ,r 13, Fig. 1. Tian' s range camera 140 provides the image ( e.g. receives image data) and can generate confidence maps based on received light intensity and variance; Tian's vision cameras 150 are a stereo vision pair obtaining other information. Id. ,r,r 13-14, 17, 23. Thus, Tian discloses a camera system 125 that includes range camera 140 and vision cameras 150, which teaches the claimed "one or more cameras." Tian also teaches (1) receiving reliability information "from one or more cameras" (i.e., Tian receives reliability information from range camera 140) and (2) camera system 125 includes other cameras ( e.g., vision cameras 150) that "comprise stereo cameras," as recited in claim 29. To the extent Appellants contend that Tian does not teach receiving reliability information as input from stereo cameras (Br. 12-13), such an argument is not commensurate with claim 29's scope, which does not preclude receiving the reliability information as input from other cameras of the recited "one or more cameras." Accordingly, we sustain the Examiner's rejection of claim 29. THE OTHER OBVIOUSNESS REJECTION Finally, Appellants argue claims 5, 6, 19, 20, 25, and 26 as a group. Br. 14--15. We select claim 5 as representative. See 37 C.F.R. Â§ 41.3 7 ( c )( 1 )(iv). Claim 5 depends from claim 1 and further recites, in pertinent part, "receiving an input 3D model; and projecting said input 3D model to generate model 2D+z data and reliability information; wherein said step of building said 3D model comprises using said model 2D+z data and reliability information." Br. 17 (Claims App'x). 16 Appeal 2018-003611 Application 14/391,439 The Examiner relies on Falkenhagen and Smith to teach these specific features of claim 5. Final Act. 15-17. Appellants assert that, because Tian and Smith disclose different and conflicting cameras/uses for the cameras, the resultant system would not be a properly functioning system based on Tian. Br. 14--15 (citing MPEP Â§ 2143.02 and KimÂ§Â§ 2.3 and 3). We are not persuaded. First, Appellants' arguments concerning modifying Tian and Smith do not correspond with the Examiner's proposed rejection. Notably, the Examiner proposed including features of Tian into Pavlovskaia (see Final Act. 10) and Smith into "Pavlovskaia in view of Tian, Falkenhagen and Kim" (id. at 17}-not incorporating features of Tian into Smith alone or vice versa. Second, Appellants' arguments concerning Smith's camera and use of the camera is not germane to the limited purpose for which Smith was cited, namely for "receiving an input 3D model and storing it, projecting the stored model into views (corresponding to 2D image data), and generating a 3D model using the 2D views." Final Act. 16-17 (citing Smith ,r 188); Ans. 20-21. Thus, Appellants have not persuasively explained why (1) Tian and Smith cannot be combined to achieve a properly functioning system (Br. 14--15) as the rejection is proposed, (2) Tian discredits Smith's technique to the extent that it would have led the skilled person to reject that technique (id. at 14), or (3) the proposed modification would change the principle of operation of the prior art invention (id. at 15). Therefore, we sustain the Examiner's rejection of claim 5 and claims 6, 19, 20, 25, and 26, which Appellants do not separately argue. 17 Appeal 2018-003611 Application 14/391,439 DECISION We affirm the Examiner's rejections of claims 1, 3---6, 15, 17-21, and 23-31 under 35 U.S.C. Â§ 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 41.50(Â±). AFFIRMED 18 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DONNY TYTGAT, SAMMY LIEVENTS, and MAARTEN AERTS Appeal 2018-003611 Application 14/391,439 Technology Center 2600 JEFFERY, Administrative Patent Judge, CONCURRING-IN-PART: I join the majority in its decision except for its affirming the rejection of claim 29. Claim 29 depends from independent claim 1 that recites, in pertinent part, receiving at least one image data as an input from one or more cameras. Claim 29 adds that the one or more cameras comprise stereo cameras. The majority reasons that because the term "comprise" in claim 29 is open-ended, the image data need not be received from a stereo camera, but rather from some other unrecited camera. See Maj. Dec. 15-16. This construction, however, effectively reads the term "stereo cameras" out of the claim. The words "comprising," "comprises," or "comprise" are terms of art used in claim language to mean that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim. See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. 1 Appeal 2018-003611 Application 14/391,439 Cir. 1997). I emphasize the term "essential" here, for the stereo cameras of claim 29 are just that: they are essential to the claimed invention, but other cameras may be added and still fall within the scope of the claim. The Federal Circuit emphasized this fundamental notion in In re Varma, 816 F.3d 1352 (Fed. Cir. 2016) that noted the following: Although the transitional term "comprising" indicates that the claim is open-ended, the term does not render each limitation or phrase within the claim open-ended .... "Comprising" means that the claim can be met by a system that contains features over and above those specifically required by the claim element, but only if the system still satisfies the specific claim- element requirements: the claim does not cover systems whose unclaimed features make the claim elements no longer satisfied. Id. at 1362. Here, claim 29 requires receiving image data from at least one stereo camera, but the open-ended "comprising" language does not preclude also receiving image data from other cameras. To construe the claim otherwise, as the majority has done, ignores the essential element in the claim-the stereo cameras-in favor of some unrecited element. Not only does this approach effectively read the term out of the claim, it runs counter to the Federal Circuit's mandate to the contrary in Varma. I, therefore, respectfully dissent with the majority's decision to affirm the Examiner's rejection of claim 29, but join the majority's opinion in all other respects. 2 Application/Control No. Applicant(s)/Patent Under Patent Appeal No. Notice of References Cited 14/391,439 2018-003611 Examiner Art Unit 2611 U.S. PATENT DOCUMENTS * Document Number Date Country Code-Number-Kind Code MM-YYYY Name A US- B US- C US- D US- E US- F US- G US- H US- I US- J US- K US- L US- M US- FOREIGN PATENT DOCUMENTS * Document Number Date Country Code-Number-Kind Code MM-YYYY Country Name N 0 p Q R s T NON-PATENT DOCUMENTS * Include as applicable: Author, Title Date, Publisher, Edition or Volume, Pertinent Pages) u Merriam Webster's Collegiate Dictionary Tenth Edition V w X *A copy of this reference is not being furnished with this Office action. 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