Occipital, Inc.Download PDFPatent Trials and Appeals BoardApr 1, 20212020000114 (P.T.A.B. Apr. 1, 2021) Copy Citation 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. 14/216,010 03/17/2014 Jeffrey Powers O049-0007US 8658 29150 7590 04/01/2021 LEE & HAYES, P.C. 601 W. RIVERSIDE AVENUE SUITE 1400 SPOKANE, WA 99201 EXAMINER ITSKOVICH, MIKHAIL ART UNIT PAPER NUMBER 2483 NOTIFICATION DATE DELIVERY MODE 04/01/2021 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): lhpto@leehayes.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JEFFREY POWERS and PATRICK O'KEEFE Appeal 2020-000114 Application 14/216,010 Technology Center 2400 Before ROBERT E. NAPPI, JAMES R. HUGHES, and JENNIFER L. McKEOWN, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Claims 2, 4, 13–16, 22, 24, 25, 28, 29, 31–35, and 39–42 are pending, stand rejected, are appealed by Appellant, and are the subject of our decision under 35 U.S.C. § 134(a).1 See Non-Final Act. 1; Appeal Br. 23–27.2 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Occipital, Inc. Appeal Br. 3. 2 We refer to Appellant’s Specification (“Spec.”), filed Mar. 17, 2014 (claiming benefit of US 61/792,728, filed Mar. 15, 2013); Appeal Brief Appeal 2020-000114 Application 14/216,010 2 CLAIMED SUBJECT MATTER The claimed subject matter, according to Appellant, “relates generally to the 3D imaging field, and more specifically to new and useful methods for reducing power consumption of a 3D image capture system.” Spec. ¶ 2. Appellant’s claims recite image capture and processing methods for reducing power consumption of a three-dimensional (3D) image capture system. The method captures two-dimensional (2D) image data (representing an object) using a red-green-blue (RGB) camera while in a first power state, and captures depth data (representing an object) using a depth camera also while in the first power state. The method then generates 3D image data (first 3D image data) using (based on) the 2D image data without using the depth data, and generates a second set of 3D image data (second 3D image data) simultaneously (in parallel) with the generation of the first 3D image data using (based on) a combination of the 2D image data and the depth data, all while in the first power state. The method compares the first 3D image data with the second 3D image data to determine whether an image tracking technique (the first image tracking technique) is successful. The method also identifies an imaging target (i.e., the object being tracked) based on the 2D image data and the depth data and determines a distance between the object and the 3D image capture system while in the first power state. The method determines a threshold (distance threshold) based on measured historical values of the distance between the (“Appeal Br.”), filed June 10, 2019; and Reply Brief (“Reply Br.”), filed Oct. 4, 2019. We also refer to the Examiner’s Non-Final Office Action (“Non-Final Act.”), mailed Jan. 25, 2019; and Answer (“Ans.”) mailed Aug. 6, 2019. Appeal 2020-000114 Application 14/216,010 3 image target and the 3D image capture system. When the method determines that the distance between the image target and the 3D image capture system is below the threshold and the first image tracking technique is successful, the method switches from the first power state to a second power state that consumes less power. See Spec. ¶¶ 8–18; Abstract. Independent claims 14, 25, and 28 are directed to a method for reducing power consumption of a 3D image capture system. Claim 14, reproduced below, is illustrative of the claimed subject matter: 14. A method for reducing power consumption of a three-dimensional (3D) image capture system comprising: capturing, in a first power state, by a red-green-blue (RGB) camera two-dimensional (2D) image data, at least a portion of the image data representative of an object; capturing, in the first power state, by a depth camera depth data, at least a portion of the depth data representative of the object; generating first 3D image data, in the first power state, based on the 2D image data without the depth data; generating second 3D image data, in the first power state and substantially simultaneously with generating the first 3D image data, based at least in part on a combination of the 2D image data and the depth data; comparing the first 3D image data and the second 3D image data to determine the first image tracking technique is successful; identifying, in the first power state, an imaging target based at least in part on the 2D image data and the depth data; determining, in the first power state, a distance between the object and the 3D image capture system; determining a threshold based at least in part on historical values between the image target and the 3D image capture system; Appeal 2020-000114 Application 14/216,010 4 determining that the distance between the image target and the 3D image capture system is below the threshold; and switching from the first power state to a second power state, in response to determining that the distance between the image target and the 3D image capture system is below the threshold and that the first image tracking technique is successful, the 3D image capture system consuming less power in the second power state than in the first power state. Appeal Br. 23–24 (Claims App.). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Nasiri US 2009/0184849 A1 July 23, 2009 Wagner US 2014/0139639 A1 May 22, 2014 REJECTIONS3 1. The Examiner rejects claims 14–16 under 35 U.S.C. § 112 (pre- AIA), first paragraph, as failing to comply with the written description requirement. See Non-Final Act. 11–12. 2. The Examiner rejects claims 2, 4, 13–16, 22, 24, 25, 28, 29, 31– 35, and 39–42 under 35 U.S.C. § 112 (pre-AIA), second paragraph, as being indefinite. See Non-Final Act. 13–16. 3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112–29, 125 Stat. 284 (2011), amended 35 U.S.C. § 112 and 35 U.S.C. § 103. Because the present application has an effective filing date after the AIA’s effective (March 16, 2013), this decision refers to 35 U.S.C. § 112, first paragraph; 35 U.S.C. § 112, second paragraph; and 35 U.S.C. § 103(a). Appeal 2020-000114 Application 14/216,010 5 3. The Examiner rejects claims 2, 4, 13–16, 22, 24, 25, 28, 29, 31– 35, and 39–42 under 35 U.S.C. § 103(a) as being unpatentable over Wagner and Nasiri. See Non-Final Act. 18–39. ANALYSIS Written Description Rejection of Claims 14–16 The Examiner rejects claims 14–16 as failing to comply with the written description requirement. See Non-Final Act. 12; Ans. 8–9. Specifically, the Examiner rejects claim 14 because the claim recites “determining a threshold based at least in part on historical values between the image target and the 3D image capture system” (Non-Final Act. 12 (emphasis omitted)), for which the Examiner finds no written description support in Specification. See Non-Final Act. 12; Ans. 8–9. Appellant contends that support for the disputed features of claim 14 (and claims 15 and 16)—“determining a threshold” based on “historical values” of the image target distance (Appeal Br. 24 (Claims App.))—can be found in at least paragraphs 35 and 41 of the Specification, and that “[o]ne skilled in the art would understand that the specification supports historical values of image target distances being used in conjunction with power state triggers” (Appeal Br. 9), as well as “the use of thresholds (e.g., distance thresholds) with respect to the imaging target distance” (Appeal Br. 10). See Appeal Br. 9–10 (citing Spec. ¶¶ 35, 41); Reply Br. 3. The test for sufficiency under the written description requirement “is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Ariad Pharms., Inc. v. Eli Lilly and Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010). Appeal 2020-000114 Application 14/216,010 6 Appellant’s cited support (Spec. ¶¶ 35, 41) describes a process for changing power states triggered by, for example, detecting an imaging target distance change using a “historical value” (Spec. ¶ 35) and a process for detecting an imaging target distance change by “detecting that the distance between the 3D image capture system and an imaging target has crossed a threshold” using, for example, a calculated table of emitter intensities (Spec. ¶ 41). We find the above-described subject matter from Appellant’s Specification provides sufficient written description support for the claimed features the Examiner found lacking in such support. We, therefore, find the Examiner erred in rejecting claims 14–16 as lacking sufficient written description support. Indefiniteness Rejection of Claim 14 The Examiner rejects independent claim 14 as being indefinite. See Non-Final Act. 13–15; Ans. 10–13. Specifically, the Examiner concludes that “substantially simultaneously” and “values between the image target and the 3D image capture system” are “relative terms which render the claim indefinite” because the terminology “is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.” Non-Final Act. 13 (emphasis omitted). The Examiner also concludes that “determining that the distance between the image target and the 3D image capture system is below the threshold” lacks antecedent basis. Non-Final Act. 13 (emphasis omitted). The Examiner further concludes that the recited image capture techniques (first image capture technique and second image capture technique) are indefinite because the claim “omits any definition or limits (broad or narrow) on such Appeal 2020-000114 Application 14/216,010 7 techniques, and omits critical relationships of image capture/tracking techniques to the processing steps or the camera use steps” (Non-Final Act. 14) and, therefore, the claim is “incomplete for omitting essential steps” (Non-Final Act. 15). Finally, the Examiner concludes that the term “technique” is a “relative term which renders the claim indefinite” because the terminology “is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.” Non-Final Act. 15. Substantially Simultaneously Appellant contends that the specification states that “[t]he technique tracking algorithm is preferably run in parallel with the primary capture techniques, but may additionally or alternatively be run at any suitable time.” Specification, Para. [0032]. One skilled in the art would see this disclosure and know that “substantially simultaneously” means in parallel or nearly in parallel to accommodate minor variations that would be appropriate when processors perform in parallel. As such, Appellant’s use of “substantially simultaneously” is definite. Appeal Br. 10. We agree with Appellant. The essence of the requirement under 35 U.S.C. § 112, second paragraph, is that the language of the claims must make clear what subject matter the claims encompass—i.e., “whether those skilled in the art would understand what is claimed when the claim is read in light of the specification.” Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 655 F.3d 1364, 1380 (Fed. Cir. 2011) (quoting Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986)); see In re Packard, 751 F.3d 1307, 1310–14 (Fed. Cir. 2014). Appeal 2020-000114 Application 14/216,010 8 “[W]e apply the approach for assessing indefiniteness approved by the Federal Circuit in Packard, i.e., ‘[a] claim is indefinite when it contains words or phrases whose meaning is unclear.’ Put differently, ‘claims are required to be cast in clear—as opposed to ambiguous, vague, indefinite— terms.’” In re McAward, Appeal 2015-006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017) (precedential) (quoting In re Packard, 751 F.3d at 1310, 1313–14) (citations omitted). We find the disputed language of claim 14, when properly construed, would be understood by those skilled in the art, and the language is not unclear. In particular, we disagree with the Examiner that one of ordinary skill in the art “would not be reasonably apprised of the scope of the invention” or be able to ascertain “a standard for . . . the requisite degree.” Non-Final Act. 13; see Ans. 10–11. As pointed out by Appellant (supra), the Specification provides a description of parallel processing of the captured image data and the technique tracking algorithm. See Spec. ¶¶ 27– 30, 32. The Examiner does not sufficiently explain why, in view of Appellant’s Specification, the disputed language would be unclear to one of ordinary skill in the art. In light of our findings and Appellant’s arguments, we find the Examiner fails to adequately explain why one of ordinary skill in the art would not understand what is claimed by Appellant. Values Appellant also contends that “values between the image target and the 3D image capture system” (claim 14), “historical values,” and distance values are discussed in the Specification, and based on the disclosure “[o]ne having ordinary skill in the art would understand that values, such as Appeal 2020-000114 Application 14/216,010 9 distance values, change between an image target and the 3D image capture system, and that those values may be utilized to determine a threshold.” Appeal Br. 11 (citing Spec. ¶¶ 35, 41). We again agree with Appellant, and find the disputed language of claim 14, would be understood by those skilled in the art, and the language is not unclear. In particular, we disagree with the Examiner that the “historical values” recited in claim 14 or the relationship of these values to the image target distance (distance values) would be unclear to one of ordinary skill in the art. See Non-Final Act. 13. As pointed out by Appellant (supra), and discussed with respect to the written description rejection (supra), the Specification provides a description of determining an imaging target distance using a “historical value.” See Spec. ¶¶ 35, 41. The Examiner does not sufficiently explain why, in view of Appellant’s Specification, the disputed language would be unclear to one of ordinary skill in the art. The Distance Appellant further contends that “the distance” recited in claim 14 “has appropriate antecedent basis” in that claim 14, prior to the recitation of “the distance,” recites “‘determining, in the first power state, a distance between the object and the 3D image capture system.’” Appeal Br. 11 (quoting claim 14). Appellant accurately explains and quotes the recitations of claim 14. Accordingly, we agree with Appellant that there is proper antecedent basis for the disputed claim language and the disputed language is not unclear. Appeal 2020-000114 Application 14/216,010 10 The Image Capture and Image Tracking Techniques As previously discussed, the Examiner determined that the image capture and image tracking techniques of claim 14 are indefinite because the claim does not define the techniques, “omits critical relationships” (Non- Final Act. 14) of the techniques to the processing steps in the claim, and “omit[s] essential steps” (Non-Final Act. 15), and the terminology itself is relative and not adequately defined (Non-Final Act. 15). Appellant contends the Examiner fails to present a prima facie rejection in that the Examiner does not explain what is missing or omitted in the claim (Appeal Br. 12) and does not explain how the recitations would require undue experimentation (Reply Br. 4–5). Appellant also contends the term “technique” is not indefinite and the Specification details various techniques. See Appeal Br. 12. We agree with Appellant that the Examiner does not make the requisite findings to show omitted essential steps and does not sufficiently explain why the disputed language would be unclear to one of ordinary skill in the art. Claim 14 recites capturing “two-dimensional (2D) image data,” “camera depth data,” “generating first 3D image data . . . based on the 2D image data without the depth data,” “generating second 3D image data . . . based . . . on a combination of the 2D image data and the depth data,” and “determin[ing] that [a] first image tracking technique is successful” based on a comparison of the first and second 3D image data. Although not defined in claim 14, the image tracking techniques and image capture techniques are discussed in Appellant’s Specification and “technique” is used interchangeable to describe image capture and image tracking. See Spec. Appeal 2020-000114 Application 14/216,010 11 ¶¶ 10, 11, 15, 16, 18, 27–30. In light of our findings and Appellant’s arguments, we find the Examiner fails to adequately explain why one of ordinary skill in the art would not understand what is claimed by Appellant. Indefiniteness Rejection of Claim 25 The Examiner rejects independent claim 25 as being indefinite. See Non-Final Act. 14–15; Ans. 10–13. Specifically, the Examiner concludes that “different than” in the limitation “‘the second image capture technique different than the first image capture technique’” (Non-Final Act. 14 (quoting claim 25 (Appeal. Br. 26 (Claim App.))) (emphasis omitted)) is a “relative term which renders the claim indefinite” because the term “is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.” Non-Final Act. 14. Also, the Examiner rejects the various recitations of “techniques” as being indefinite for the same reasons set forth with respect to claim 14. See Non-Final Act. 14–15. Appellant contends that different image capture techniques are described in the Specification, and that based on the disclosure “one of ordinary skill in the art would see the image capture techniques described in the specification and would understand that claim 25 recites generating 3D image data utilizing two of those techniques, and specifically two different techniques as claim 25 recites.” Appeal Br. 13. Appellant also contends, as with claim 14 (supra), that the various techniques and terminology are not indefinite. See Appeal Br. 13–14; Reply Br. 4–5. We agree with Appellant, and find the disputed language of claim 25, would be understood by those skilled in the art, and the language is not Appeal 2020-000114 Application 14/216,010 12 unclear. In particular, we disagree with the Examiner that the use of “different” recited in claim 25 would be unclear to one of ordinary skill in the art in reference to multiple distinct image capture techniques detailed in Appellant’s Specification. See Spec. ¶¶ 15, 16, 18, 27–30. As pointed out by Appellant (supra), and discussed with respect to the indefiniteness rejections of claim 14 (supra), the Specification provides a description of various distinct (different) imaging techniques. See Spec. ¶¶ 15, 16, 18, 27– 30. The Examiner does not sufficiently explain why, in view of Appellant’s Specification, the disputed language would be unclear to one of ordinary skill in the art. Indefiniteness Rejection of Claim 34 The Examiner rejects claim 34 as being indefinite. See Non-Final Act. 13–14. Specifically, the Examiner concludes that “‘applying a surrogate function to determine that the first tracking techniques can be successfully implemented’” (Non-Final Act. 13 (quoting claim 34 (Appeal. Br. 27 (Claims App.))) (emphasis omitted)) “describes a determination limited by a function, but omits any definition or limits . . . on such a function” and is, therefore, “incomplete for omitting essential steps, such omission amounting to a gap between the steps.” Non-Final Act. 14. Appellant contends the Examiner has not adequately explained the rejection (see Appeal Br. 13), and also contends, as with claims 14 and 25 (supra), that the Examiner has not made the requisite findings concerning an omitted essential step (see Reply Br. 4). We agree with Appellant, and find the disputed language of claim 34, would be understood by those skilled in the art, and the language is not unclear. Appellant’s Specification provides a description of a surrogate Appeal 2020-000114 Application 14/216,010 13 function. See Spec. ¶ 31. For the same reasons as claims 14 and 25, and because the surrogate function is detailed in Appellant’s Specification, the Examiner does not sufficiently explain why, in view of Appellant’s Specification, the disputed language would be unclear to one of ordinary skill in the art. Indefiniteness Rejection of Claim 40 The Examiner rejects claim 40 as being indefinite. See Non-Final Act. 15. Specifically, the Examiner concludes that “estimating future motion” (emphasis omitted) is a “relative term,” that does not “specify a motion” to which the estimate relates, or “the nature of the estimation,” and the “term is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.” Non- Final Act. 15. Appellant contends that estimating future motion is described in the Specification, and that based on the disclosure “one having ordinary skill in the art, when reading this claim in light of the specification would reasonably understand the scope of the invention as claimed.” Appeal Br. 14 (citing Spec. ¶ 43). We agree with Appellant, and find the disputed language of claim 40, would be understood by those skilled in the art, and the language is not unclear. Appellant’s Specification provides a description of estimating future motion, such as by “using a predictive method like Kalman filtering.” Spec. ¶ 43. Thus, the Examiner does not sufficiently explain why, in view of Appellant’s Specification, the disputed language would be unclear to one of ordinary skill in the art. Appeal 2020-000114 Application 14/216,010 14 Indefiniteness Rejection of Claim 41 The Examiner rejects claim 41 as being indefinite. See Non-Final Act. 15–16. Specifically, the Examiner concludes that various determinations are indefinite because the claim “omits any definition or limits [] on” the functions (techniques) used in the determinations “and omits critical relationships between the claimed elements.” Non-Final Act. 15. Appellant contends that the claim need not provide specifics with respect to the functions, that the Examiner’s rationale is inadequate and is not supported by the MPEP, and “[o]ne having skill in this field would understand the particulars and bounds of these [functions] . . . as specifically recited in claim 41.” Appeal Br. 14. We agree with Appellant, and find the disputed language of claim 41, would be understood by those skilled in the art, and the language is not unclear. Appellant’s Specification provides a description of “volumetric integration” and a “truncated signed distance function” used to update a 3D map. See Spec. ¶ 38. Thus, the Examiner does not sufficiently explain why, in view of Appellant’s Specification, the disputed language would be unclear to one of ordinary skill in the art. Indefiniteness Rejection of Remaining Dependent Claims The Examiner rejects the remaining dependent claims (claims 2, 4, 13, 16, 22, 24, 29, 31–33, 35, 39, and 42) as being indefinite based on the indefiniteness of independent claims 14 and 25 (and 28, which is not separately discussed by the Examiner). We find the Examiner erred in rejecting these claims for the same reasons as claims 14 and 25, discussed supra. Appeal 2020-000114 Application 14/216,010 15 Obviousness Rejection The Examiner rejects independent claim 14 (as well as independent claims 25 and 28, and dependent claims 2, 4, 13, 15, 16, 22, 24, 29, 31–35, and 39–42) as being obvious over Wagner and Nasiri. See Non-Final Act. 17–39; Ans. 8–19. Appellant contends that Wagner and Nasiri do not teach the disputed limitations of independent claims 14, 25, and 28. See Appeal Br. 15–22; Reply Br. 5–8. Claim 14 With respect to claim 14, Appellant specifically contends, inter alia, “Wagner does not teach or suggest ‘determining a threshold based at least in part on historical values between the image target and the 3D image capture system,’ as recited in claim 14” (Appeal Br. 17 (quoting claim 14)) because the Examiner-cited portions of Wagner and Nasiri (see Non-Final Act. 25 (citing Wagner ¶¶ 120, 121, 125, 126 and Nasiri ¶ 96)) do not teach or suggest the disputed feature of determining an image target distance threshold. See Appeal Br. 17; Reply Br. 5–6. We agree with Appellant that the Examiner-cited portions of Wagner and Nasiri do not teach or suggest determining an image target distance threshold. Appeal Br. 17. As pointed out by Appellant, the Examiner-cited portions of Wagner to teach enabling a depth sensor to update a 3D model with new depth information, and computing a difference between a sample depth and a measured distance (to a sample object). See Appeal Br. 17; Wagner ¶¶ 120, 121, 125, 126. Nasiri, merely discloses motion sensor thresholds. See Nasiri ¶ 96. The Examiner does not sufficiently explain how updating a three- dimensional model with new depth information and computing a distance Appeal 2020-000114 Application 14/216,010 16 difference, in conjunction with a motion sensor threshold teaches or at least suggests a distance threshold, much less “determining a threshold based at least in part on historical values between the image target and the 3D image capture system” as recited in claim 14. Consequently, we are constrained by the record before us to find that the Examiner erred in finding that the combination of Wagner and Nasiri renders obvious at least one feature of Appellant’s claim 14. Claim 25 With respect to claim 25, Appellant specifically contends, inter alia, that “Wagner and Nasiri does not teach or suggest at least ‘processing the RGB data, via a first image capture technique, to generate first 3D image data; processing, in parallel to the first image capture technique, the RGB data and the 3D depth data, via a second image capture technique” (Appeal Br. 19 (quoting claim 25)) because the Examiner-cited portions of Wagner (see Non-Final Act. 19–20 (citing Wagner ¶¶ 47, 57, 110)) do not teach or suggest the disputed feature of parallel processing different 3D image data sets. See Appeal Br. 19; Reply Br. 7. We agree with Appellant that the Examiner-cited portions of Wagner do not teach or suggest parallel processing of different 3D image data sets. Appeal Br. 19. The Examiner-cited portions of Wagner describe processing depth data (Wagner ¶ 47), updating a 3D model (Wagner ¶ 57), and running two modules in parallel (Tracking Module 210 and Reconstruction Module 250) (Wagner ¶ 110), but Wagner does not describe parallel processing of two distinct 3D image data sets (RGB data and RGB data with depth information) processed using two different image processing techniques. Appeal 2020-000114 Application 14/216,010 17 The Examiner does not sufficiently explain how updating a three- dimensional model, processing depth information, and executing software modules in parallel teaches or at least suggests parallel processing of different data sets, much less parallel processing of different 3D image data sets by different techniques as required in claim 25. Consequently, we are constrained by the record before us to find that the Examiner erred in finding that the combination of Wagner and Nasiri renders obvious at least one feature of Appellant’s claim 25. Claim 28 Claim 28 recites, in part: analyzing, by the processing resource, additional active depth data and additional image data to detect a number of updates to the 3D map; determining, by the processing resource, that the number of updates is greater than a threshold number of updates and that individual updates of the number of updates change the 3D map by less than a threshold amount; and in response to determining that the number of updates is greater than the threshold number of updates, reducing power to the sensor. Appeal Br. 26 (Claims App.). With respect to claim 28, Appellant contends that “[t]he combination of Wagner and Nasiri does not teach or suggest the above [referenced] features of claim 28.” Appeal Br. 20. Specifically, Appellant contends that the Examiner-cited portions of Wagner (see Non-Final Act. 29–31 (citing Wagner ¶¶ 61, 62, 82)) do not teach either determining that the number of updates is greater than a threshold number of updates, or determining that Appeal 2020-000114 Application 14/216,010 18 individual updates change the 3D map by less than a threshold amount. See Appeal Br. 20; Reply Br. 7. Wagner describes updating a 3D model and that the model may be updated “even in situations where there are no new points,” and setting a threshold limit for updates (“a threshold . . . may be set to limit the number of times the same surface element is updated”). Wagner ¶ 61; see Wagner ¶¶ 62, 82. Although Wagner may suggest a threshold related to updates, the Examiner-cited portions of Wagner do not describe analyzing depth data to determine a number of updates to a 3D map and determining that the number of updates is greater than (exceeds) an update threshold. Wagner’s disclosed threshold is used to limit the number of updates (the number of times information may be updated), not to determine if a threshold number of updates has been exceeded as required by claim 28. Further, nothing in the cited portions of Wagner describes a determination that the updates to the 3D map change the 3D map less than a threshold amount. We agree with Appellant that the Examiner-cited portions of Wagner do not teach determining whether a computed number of updates to a 3D map exceeds an update threshold or changes the map less than a threshold amount (i.e., a different threshold). At most the Examiner-cited portions of Wagner describe limiting (stopping) the update process when a set number of updates have occurred. The Examiner does not sufficiently explain how setting an update limit teaches or at least suggests determining a number of updates exceeds a threshold and that a 3D map is not changed by a threshold amount by the updates as required in claim 28. Consequently, we are constrained by the record before us to find that the Examiner erred in finding Appeal 2020-000114 Application 14/216,010 19 that the combination of Wagner and Nasiri renders obvious at least one feature of Appellant’s claim 28. Dependent Claims Claims 2, 4, 13, 15, 16, 22, 24, 29, 31–35, and 39–42 depend from and stand with claims 14, 25, and 28, respectively. Therefore, we do not sustain the Examiner’s obviousness rejection of dependent claims 2, 4, 13, 15, 16, 22, 24, 29, 31–35, and 39–42 for the same reasons set forth for claims 14, 25, and 28 (supra). CONCLUSION Appellant has shown that the Examiner erred in rejecting claims 14– 16 under 35 U.S.C. § 112, first paragraph. Appellant has also shown that the Examiner erred in rejecting claims 2, 4, 13–16, 22, 24, 25, 28, 29, 31–35, and 39–42 under 35 U.S.C. § 112, second paragraph. Further, Appellant has shown that the Examiner erred in rejecting claims 2, 4, 13–16, 22, 24, 25, 28, 29, 31–35, and 39–42 under 35 U.S.C. § 103(a). We, therefore, do not sustain the Examiner’s rejection of claims 2, 4, 13–16, 22, 24, 25, 28, 29, 31–35, and 39–42. DECISION SUMMARY In summary: Appeal 2020-000114 Application 14/216,010 20 Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 14–16 112, first paragraph Written Description 14–16 2, 4, 13–16, 22, 24, 25, 28, 29, 31– 35, 39–42 112, second paragraph Indefiniteness 2, 4, 13–16, 22, 24, 25, 28, 29, 31– 35, 39–42 2, 4, 13–16, 22, 24, 25, 28, 29, 31– 35, 39–42 103(a) Wagner, Nasiri 2, 4, 13–16, 22, 24, 25, 28, 29, 31– 35, 39–42 Overall Outcome 2, 4, 13–16, 22, 24, 25, 28, 29, 31– 35, 39–42 REVERSED Copy with citationCopy as parenthetical citation