Avaya Inc.

Patent Trials and Appeals BoardNov 30, 2020

2019002897 (P.T.A.B. Nov. 30, 2020)

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. 14/921,652 10/23/2015 John F. Buford 648.0145 5571 93379 7590 11/30/2020 Setter Roche LLP 1860 Blake Street Suite 100 Denver, CO 80202 EXAMINER KHAN, USMAN A ART UNIT PAPER NUMBER 2696 NOTIFICATION DATE DELIVERY MODE 11/30/2020 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): pair_avaya@firsttofile.com sarah@setterroche.com uspto@setterroche.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN F. BUFORD and MEHMET C. BALASAYGUN Appeal 2019-002897 Application 14/921,652 Technology Center 2600 Before JAMES R. HUGHES, JOYCE CRAIG, and MATTHEW J. McNEILL, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Claims 1–20 are pending, stand rejected, are appealed by Appellant, and are the subject of our decision under 35 U.S.C. § 134(a).1 See Final Act. 1; Appeal Br. 2.2 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Avaya Inc. See Appeal Br. 2. 2 We refer to Appellant’s Specification (“Spec.”), filed Oct. 23, 2015 (claiming benefit of U.S. Provisional Application No. 62/137,921, filed Mar. 25, 2015); Appeal Brief (“Appeal Br.”), filed Nov. 1, 2018; and Reply Brief (“Reply Br.”), filed Feb. 28, 2019. We also refer to the Examiner’s Final Office Action (“Final Act.”), dated May 31, 2018; and Answer (“Ans.”), dated Dec. 31, 2018. Appeal 2019-002897 Application 14/921,652 2 CLAIMED SUBJECT MATTER The invention, according to Appellant, generally relates “to video image manipulation and, in particular, to replacing background portions of a video image.” Spec. ¶ 2. The invention uses a plenoptic camera with an array of micro lenses that can be used to calculate a relative distance for each pixel in an image. Id. ¶ 25. In particular, the invention generates a range image that indicates pixel distances from the camera, where a pixel distance may correspond to an individual pixel or a group of pixels. Id. ¶ 28. Based on a pixel distance threshold, the invention determines pixels that correspond to background pixels. Id. ¶ 29. Once identified, the invention replaces background pixels with replacement background pixels. Id. ¶ 31. Claim 1 (directed to a method) and claim 11 (directed to a video processing system) are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of replacing a video background in real- time, wherein the video comprises a plurality of image frames, the method comprising: generating a range image from a subject image frame of the plurality of image frames, wherein the range image indicates pixel distances from a plenoptic camera that captured the plurality of image frames; identifying background pixels that represent a background portion of the subject image frame based on the range image; and replacing the background pixels with replacement background pixels in the subject image frame. Appeal Br. 10 (Claims App.). Appeal 2019-002897 Application 14/921,652 3 REFERENCE The prior art relied upon by the Examiner is: Name Reference Date Cutler et al. (“Cutler”) US 2014/0176663 A1 June 26, 2014 REJECTION3 The Examiner rejects claims 1–20 under 35 U.S.C. § 102(a)(1) as being anticipated by Cutler. See Final Act. 4–12. ANALYSIS The Examiner rejects independent claim 1 (as well as independent claim 11, and dependent claims 2–10 and 12–20) as anticipated by Cutler. See Final Act. 4–12; Ans. 3. In particular, the Examiner finds Cutler discloses “generating a range image . . . wherein the range image indicates pixel distances.” Final Act. 4; Ans. 4–9; Appeal Br. 10 (Claims App.) (claim 1). Appellant contends that “Cutler does not disclose anything analogous to the range image of claim 1” and “Cutler fails to disclose anything related to pixel distances from a plenoptic camera.” See Appeal Br. 6–7. We agree with Appellant that the Examiner-cited portions of Cutler do not disclose 3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112–29, 125 Stat. 284 (2011), amended 35 U.S.C. § 102. Because the present application has an earliest effective filing date (Mar. 25, 2015) after the AIA’s effective date (March 16, 2013), the AIA version of § 102 applies. In the Final Rejection, the Examiner refers to “pre-AIA 35 U.S.C. 102(a)(1)” in finding claims 1–20 to be anticipated. Final Act. 4 (emphasis added). We deem this to be harmless error. The section of law the Examiner quotes is in fact from § 102(a)(1) under the AIA. See id.; AIA, 125 Stat. at 285–286. Appeal 2019-002897 Application 14/921,652 4 “generating a range image . . . wherein the range image indicates pixel distances.” Appeal Br. 10 (Claims App.) (claim 1). Cutler describes a privacy camera “configured to record images and includes a privacy mode that displays a region/object(s) of interest in focus and other objects, such as objects in a background, not in focus (e.g., blurred) and/or the background replaced with an image/fill.” Cutler ¶ 16. In an embodiment, the privacy camera “is a light field (plenoptic) camera.” Id. For background replacement, “the min/max foreground depth is determined and the background is replaced with an image and/or fill.” Id. ¶ 35. “For example, the foreground depths (min, max) may be determined automatically by detecting the persons(s) participating in the video conference and/or manually by receiving the selections from a user.” Id. The Examiner has not shown that Cutler’s process of replacing the background in an image captured by a plenoptic camera involves generating a range image that indicates pixel distances, as claimed. The Examiner asserts “that the Range image is nothing more than collection of data representing distances.” Ans. 5. It is true that the range image “may never actually be displayed but, instead, may merely exist as data in [a] video communication environment.” Spec. ¶ 47. Nevertheless, the Examiner has not pointed to, and we see no disclosure of, using data indicating distances of pixels or groups of pixels from the plenoptic camera to identify background pixels in Cutler. The Examiner points to Cutler’s description of “a failure rate of pixels within one or more of the cameras may be compensated for based on the other cameras in the array” (Cutler ¶ 23) to show that Cutler’s “system captures data in pixels hence the distances deal with pixels” (Ans. 8). We agree with Appellant (see Reply Br. 2–3), Appeal 2019-002897 Application 14/921,652 5 however, that the mere fact that a camera may capture pixel data does not in itself show generating a range image with pixel distances to identify background pixels. Consequently, we are constrained by the record before us to find that the Examiner erred in finding that Cutler anticipates Appellant’s claim 1. Independent claim 11 includes limitations of commensurate scope. Claims 2–10 and 12–20 depend from and stand with claims 1 and 11. Accordingly, we do not sustain the Examiner’s anticipation rejection of claims 1–20 based on Cutler. CONCLUSION Appellant has shown that the Examiner erred in rejecting claims 1–20 under 35 U.S.C. § 102(a)(1). We, therefore, do not sustain the Examiner’s rejection of claims 1–20. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–20 102(a)(1) Cutler 1–20 REVERSED