The Government of the United States, as represented by the Secretary of the ArmyDownload PDFPatent Trials and Appeals BoardApr 30, 20212020000753 (P.T.A.B. Apr. 30, 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. 15/274,060 09/23/2016 Dennis Bushmitch CECOM 5649 1053 79380 7590 04/30/2021 U.S. ARMY CECOM LCMC, LEGAL OFFICE 6565 Surveillance Loop Third Floor, Legal Office Aberdeen Proving Ground, MD 21005 EXAMINER AMINI, JAVID A ART UNIT PAPER NUMBER 2613 NOTIFICATION DATE DELIVERY MODE 04/30/2021 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): kirsten.j.hiera.civ@mail.mil ronald.c.krosky.civ@mail.mil PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DENNIS BUSHMITCH and MICHAEL BADGER ___________ Appeal 2020-000753 Application 15/274,060 Technology Center 2600 ____________ Before CARL W. WHITEHEAD JR., MICHAEL J. STRAUSS and JAMES B. ARPIN, Administrative Patent Judges. WHITEHEAD JR., Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Appellant2 appeals the final rejection of claims 17, 19, 21–23, 26, 27, 29, 30, 34–37 and 39–41 under 35 U.S.C. § 134(a). See Appeal Brief 3. Claims 17, 35 and 36 are independent. Claims 1–16, 18, 20, 28, 31–33 and 38 are cancelled. Dependent claims 24, 25, 42 and 43 are not rejected and, 1 Rather than reiterate Appellant’s arguments and the Examiner’s determinations, we refer to the Appeal Brief (filed June 24, 2019), the Reply Brief (filed November 7, 2019), the Final Action (mailed January 24, 2019), and the Answer (mailed September 11, 2019), for the respective details. 2 Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies “The Government of the United States, as represented by the Secretary of the Army” as the real party in interest. Appeal Brief 2. Appeal 2020-000753 Application 15/274,060 2 therefore, we do not considered those claims in this appeal. See Final Action 3. We have jurisdiction under 35 U.S.C. § 6(b). We reverse and enter a new ground of rejection. Introduction According to Appellant, the claimed subject matter relates to “using a stitched image to help the solider” wherein “six images of sixty degrees can be taken with slight overlap by the small projectile” and, subsequently, the “six images can be stitched together to form a stitched image covering 360 degrees.” Specification ¶¶ 18, 19. Representative Claim3 17. A system, comprising: a processor; and a non-transitory computer-readable medium configured to store computer-executable instructions that when executed by the processor cause the processor to perform a method, the method comprising: comparing a real-time stitched image of a vicinity against a non-real-time stitched image of the vicinity or a map of the vicinity to produce a comparison result, where the stitched image results from stitching a set of sub- images together to increase the field of view; identifying a position of the vicinity through use of the comparison result; and causing an information set that is indicative of the position to be disclosed on an interface. 3 Appellant’s arguments are directed towards independent claim 17. See, e.g., Appeal Brief 6. Accordingly, we select independent claim 17 as representative. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2020-000753 Application 15/274,060 3 References Name4 Reference Date Croasdale US 2003/0020829 A1 January 30, 2003 Eden US 2008/0196578 A1 August 21, 2008 Sorek US 2009/0022422 A1 January 22, 2009 Olsson US 9,465,129 B1 October 11, 2016 Pesti Low-Cost Orthographic Imagery November 5, 2008 Rejections on Appeal5 Claims 17, 21–23, 35–37, 40 and 41 stand rejected under 35 U.S.C. § 102(b) as anticipated by Pesti. Final Action 4–7. Claims 17 and 37 stand rejected under 35 U.S.C. § 102(b) as anticipated by Sorek. Final Action 10–12. Claims 19, 26, 27, 29 and 34 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Pesti and Eden. Final Action 7–9. Claims 30 and 39 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Pesti, Eden and Croasdale. Final Action 9–10. Claims 19, 21, 26, 27 and 34–36 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Sorek and Eden. Final Action 12–14. Claims 22, 23 and 29 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Sorek and Olsson. Final Action 14–16. Claims 30 and 39 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Sorek, Eden and Croasdale. Final Action 17. 4 All reference citations are to the first named inventor only. 5 The Examiner withdraws the 35 U.S.C. § 112(a) and § 112(b) rejections. See Answer 3. Appeal 2020-000753 Application 15/274,060 4 ANALYSIS 35 U.S.C. § 102(b) rejections Claims 17, 21–23, 35–37, 40 and 41 anticipated by Pesti Appellant argues, in response to the Examiner Answer, that the Examiner errs in finding that Pesti discloses claim 17’s limitation “causing an information set that is indicative of the position to be disclosed on an interface.” Reply Brief 2; see Answer 17. The Examiner finds, “The NPL Pesti explicitly [specifies] at [the] second paragraph left column on page 2[, that] the resulting [‘]captured images[’] are stitched into a single ‘panoramic’ image represent[ing] a single theoretical image taken from a single logical viewpoint” and, subsequently, “this image is then related to ground references, and translated to a browser accessible user interface.” Answer 17. Appellant contends “the Office is still focusing on how the stitched image is made” and Pesti “has nothing to do with causing an information set that is indicative of the position, a position of a vicinity of both the real-time stitched image and the non-real-time stitched image, to be disclosed on an interface.” Reply Brief 2; see Pesti 2, Figure 3. We find Appellant’s arguments persuasive of Examiner error and do not agree with the Examiner’s findings. Pesti discloses, “The creation of aerial mosaics to form composite photomaps is described in [Figure 4]. Our method is analogous with the creation of semicontrolled mosaics, where ground reference pairs on a small number of images are combined with tie points between images to compute the transformation parameters.” Pesti 2. Pesti teaches, “Although surveying techniques (e.g., GPS) can be used, the fastest and easiest way is to establish ground reference pairs is to visually compare the newly acquired imagery with the existing imagery that is part of Appeal 2020-000753 Application 15/274,060 5 Microsoft Virtual Earth.” Pesti 3; see Final Action 4. However, Pesti is silent in regard to “comparing a real-time stitched image of a vicinity against a non-real-time stitched image of the vicinity or a map of the vicinity to produce a comparison result,” as recited in claim 17, because while the newly acquired imagery (e.g., real-time stitched image) comprises semicontrolled mosaics, Pesti does not teach comparing the semicontrolled mosaics against a non-real-time stitched image. See Pesti 1–4. “A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987). Accordingly, we reverse the Examiner’s anticipation rejection of independent claim 17, as well as, dependent claims 21–23, 37, 40 and 41. Appellant states support for claim 17’s limitation “comparing a real- time stitched image of a vicinity against a non-real-time stitched image of the vicinity or a map of the vicinity to produce a comparison result” is found in paragraph 60 of the Specification. See Appeal Brief 2. Paragraph 60 (emphasis added) of the Specification discloses, “At 1210 [of Figure 12], identifying a position of the location by comparing the combination image against a non-real-time image of the vicinity occurs” and “At 1215 [of Figure 12], causing an information set that is indicative of the position to be disclosed on an interface occurs” and therefore paragraph 60 is silent in regard to comparing a real-time stitched image against a non-real-time stitched image. In regard to independent claims 35 and 36, the Examiner finds the claims “are rejected with similar reasons as set forth in combination of claim 17, above. Regarding the handheld device Pesti illustrates in fig. 2 a small camera connected to a laptop.” Final Action 6.” Appellant argues that, Appeal 2020-000753 Application 15/274,060 6 “[n]othing in Pesti expressly or inherently states that the information set is disclosed on an interface of the laptop or camera.” Appeal Brief 7. We note that both claims 35 and 36 differ from claim 17 because the claims recite either the use of a handheld device or recite the handheld device structure. Further, neither claim 35 nor 36 requires comparing a real-time stitched image against a non-real-time stitched image as required in claim 17. “‘For a prior art reference to anticipate in terms of 35 U.S.C. § 102, every element of the claimed invention must be identically shown in a single reference.’” In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (quoting Diversitech Corp. v. Century Steps, Inc., 850 F.2d 675, 677 (Fed. Cir. 1988)); see Manual Patent Examining Procedure § 2131 (9th ed. Rev. 10.2019, June 2020)) (“A claimed invention may be rejected under 35 U.S.C. [§] 102 when the invention is anticipated (or is ‘not novel’) over a disclosure that is available as prior art. To reject a claim as anticipated by a reference, the disclosure must teach every element required by the claim under its broadest reasonable interpretation.”). The Examiner fails to provide adequate support for rejection of claims 35 and 36 under anticipation. Accordingly, we also reverse the Examiner’s anticipation rejection of independent claims 35 and 36. Claims 17 and 37 anticipated by Sorek Appellant argues that Sorek does not anticipates claim 17. See Appeal Brief 14. The Examiner determines that Sorek teaches means that identify: a position of the vicinity through use of the comparison result (at [0133] discloses the seamless panorama mode more image frames with greater overlapping may be captured as compared to mosaic panorama mode, that would be equated as the comparison result of the claimed limitation); and causing an information set Appeal 2020-000753 Application 15/274,060 7 that is indicative of the position to be disclosed on an interface (figs. 8 illustrate the step of the claim). Answer 21. Appellant contends Sorek’s paragraph 133 “relates to constructing a panoramic image. Constructing a panoramic image does not teach comparing one stitched image to another or comparing one stitched image to a map.” Appeal Brief 15. We find Appellant’s argument persuasive of Examiner error. Sorek teaches, “According to some embodiments of the present invention, the composite image is a panoramic image. In some exemplary embodiments, the panoramic image is a substantially seamless panoramic image. In other exemplary embodiments, the panoramic image is a mosaic panoramic image.” Sorek ¶ 17. Sorek further teaches, “Typically, for the seamless panorama mode more image frames with greater overlapping may be captured as compared to mosaic panorama mode.” Sorek ¶ 133. Accordingly, we do not agree with the Examiner finding that Sorek discloses, “comparing a real-time stitched image of a vicinity against a non-real-time stitched image of the vicinity or a map of the vicinity to produce a comparison result,” as recited in claim 17. See Answer 21; Final Action 11. We reverse the Examiner’s anticipation rejection of independent claim 17, as well as, dependent claim 37. 35 U.S.C. § 103(a) rejections We reverse the Examiner’s obviousness rejections of dependent claims 19, 21–23, 26, 27, 29, 30, 34 and 39 because neither Croasdale nor Olsson is used to reject any of the independent claims 17, 35 or 36 in combination with Pesti or Sorek and therefore, does not address the noted deficiency of either Pesti or Sorek. See Final Action 7, 9, 12, 17. Eden also is not used to reject independent claim 17 in combination with Sorek and, Appeal 2020-000753 Application 15/274,060 8 therefore, does not address the noted deficiency of Sorek; however, Eden is used to reject independent claims 35 and 36 in combination with Sorek. See Final Action 12. The Examiner determines in regard to the obviousness rejection of claims 35 and 36 over the combined teachings of Sorek and Eden that “[c]laims 35 and 36 are rejected with similar reasons as set forth in combination of claims 17 and 26, above.” Final Action 14. “[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” KSR Int’l, Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Consequently, we reverse the Examiner’s obviousness rejection of independent claims 35 and 36 because the Examiner fails to articulate reasoning with some rational underpinning as to why the combined teachings of Sorek and Eden teach or suggest the claimed invention. See Final Action 14. New Ground of Rejection under 35 U.S.C. § 103(a) References Name6 Reference Date Filed Jing US 8,131,118 B1 March 6, 2012 January 31, 2008 Janky US 8,942,483 B1 January 27, 2015 September 14, 2009 Claim 17 is rejected under 35 USC. § 103(a) as being unpatentable over Janky and Jing.7 6 All reference citations are to the first named inventor only. 7 The Board may rely on newly cited references in a new ground of Appeal 2020-000753 Application 15/274,060 9 Janky teaches: A system, comprising: a processor (Janky: column 35, lines 3–8, a system includes a multi-processor environment with processors [1706A-B]), and a non-transitory computer-readable medium configured to store computer-executable instructions that when executed by the processor cause the processor to perform a method (Janky: column 35, lines 12–16, memory stores information and instructions for the processors), the method comprising: comparing an image of a vicinity against a non-real-time stitched image of the vicinity or a map of the vicinity to produce a comparison result (Janky: column 20, lines 47–49, a first image is captured (i.e. an image of a vicinity); column 21, lines 42–46, the captured image is then compared against a database [115] of images (i.e. non-real-time stitched image of the vicinity) to geolocate points on physical objects within the captured image; and column 27, lines 46–50, maps [150] may be accessed to identify common reference features of the first image); identifying a position of the vicinity through use of the comparison result (Janky: column 21, lines 42–46, using the database [115], the geolocations of various points in the image are identified, using the comparison result between the captured and database images); and causing an information set that is indicative of the position to be disclosed on an interface (Janky: Figure 9, reproduced below, the information set [904] corresponding to various points of the capture image is displayed). rejection. In re Biedermann, 733 F.3d 329, 338 (Fed. Cir. 2013) (citing In re Boon, 439 F.2d 724, 727–28 (CCPA 1971)). Appeal 2020-000753 Application 15/274,060 10 Janky does not explicitly teach: comparing a real-time stitched image of a vicinity against a non-real-time stitched image of the vicinity or a map of the vicinity to produce a comparison result, where the stitched image8 results from stitching a set of sub-images together to increase the field of view. Nevertheless, we find Jing teaches general concepts related to determining the location where an image was captured (Jing: Abstract). Specifically, Jing teaches that a user may submit images using her smartphone to a server to infer a location within the image (Jing: column 14, 8 There may be an indefiniteness issue as to “the stitched image” recited here, as it may refer to one of or both of the stitched images previously recited. Appeal 2020-000753 Application 15/274,060 11 lines 34–36, the geo-image server [402] receives images from various users). A broadest reasonable interpretation of this would suggest to a person having ordinary skill a “real-time” image. Multiple images, for example including a nearby building, may also be submitted for such identification as well (Jing: column 11, lines 5–10, multiple images of an area may be submitted and combined in consideration (i.e. stitched) for determining the location). We find that considering multiple images, in example of “a nearby building” would result in an increase of field of view. It would have been obvious to a person having ordinary skill in the art at the time of the invention to have modified the Janky device by including computer instructions to utilize real-time images in a stitched manner for the comparison as taught and disclosed by Jing. Such a person would have been motivated to do so, with a reasonable expectation of success, to allow for immediate understanding of one’s location in real-time (Jing: column 1, lines 10–17 (“Being ‘lost’ can be an unpleasant situation that most people try to avoid.”)). CONCLUSION Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Ground 17, 21–23, 35–37, 40, 41 102 Pesti 17, 21–23, 35–37, 40, 41 17, 37 102 Sorek 17, 37 19, 26, 27, 29, 34 103 Pesti, Eden 19, 26, 27, 29, 34 30, 39 103 Pesti, Eden, Croasdale 30, 39 Appeal 2020-000753 Application 15/274,060 12 19, 21, 26, 27, 34–36 103 Sorek, Eden 19, 21, 26, 27, 34–36 22, 23, 29 103 Sorek, Olsson 22, 23, 29 30, 39 103 Sorek, Eden, Croasdale 30, 39 17 103 Janky, Jing 17 Overall Outcome 17, 19, 21– 23, 26, 27, 29, 30, 34– 37, 39–41 17 This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides that “[a] new ground of rejection…, shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the examiner .... (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record .... REVERSED; 37 C.F.R. § 41.50(b) Copy with citationCopy as parenthetical citation