Ex Parte 6959112 et al

Patent Trial and Appeal Board

Nov 13, 2012

95001173 (P.T.A.B. Nov. 13, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
95/001,173 04/24/2009 6959112 M2058-6000 1578
23459 7590 11/14/2012
COGNEX CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
1 VISION DRIVE
NATICK, MA 01760-2077
EXAMINER
LAROSE, COLIN M
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
11/14/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

MVTEC SOFTWARE GMBH
Requester and Cross-Appellant

v.

COGNEX CORPORATION AND COGNEX TECHNOLOGY AND
INVESTMENT CORPORATION
Patent Owner and Appellant
____________

Appeal 2012-004132
Reexamination Control 95/001,173
Patent 6,959,112 B1
Technology Center 3900
____________

Before KEVIN F. TURNER, STEPHEN C. SIU, and GLENN J. PERRY,
Administrative Patent Judges.

SIU, Administrative Patent Judge

DECISION ON APPEAL
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Reexamination Control 95/001,173
Patent 6,959,112 B1

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Patent Owner and Appellant appeals under 35 U.S.C. §§ 134(b) and
315(a) the Examiner’s decision to reject claims 1-3, 6, 7, 10, 12, and 13.
Requester and Cross-Appellant cross-appeals under 35 U.S.C. §§ 134(c) and
315(b) the Examiner’s decision not to reject claims 1-3, 6, 7, 10, 12, and 13
on alternative grounds. We have jurisdiction under 35 U.S.C. §§ 134(c) and
315(b).

STATEMENT OF THE CASE
This proceeding arose from a request by MVTec Software GmbH for
an inter partes reexamination of U.S. Patent 6,959,112 B1, titled “Method
for Finding a Pattern Which May Fall Partially Outside an Image,” and
issued to Adam Wagman on October 25, 2005 (hereinafter “the ‘112
patent”). An oral hearing was conducted on September 12, 2012.
The ‘112 patent describes a system and method for finding a pattern in
an image (col. 1, ll. 7-9).

Claim 1 reads as follows:
1. A method for finding a whole pattern, a portion of the whole
pattern falling outside the boundary of an image, the method including:
for each candidate pose, from a sequence of candidate poses, of a
search model of the whole pattern that results in a transformed search model
that falls partially outside the boundary of the image, applying a match-
quality metric to only a subset of search model features and corresponding
image features, the subset being uniquely determined by the pose, wherein
the model features comprise geometric features or edge elements.

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The Examiner rejects claims 1-3, 6, 7, 10, 12, and 13 under:
1) 35 U.S.C. § 102(b) as anticipated by Chandra Shekhar, Venu
Govindu, Rama Chellappa, “Multisensor image registration by feature
consensus,” Pattern Recognition 32 (1999) (hereinafter “Shekhar”); and
2) 35 U.S.C. § 103(a) as unpatentable over the combination of
Adrian Philip Whichello and Hong Yan, “Document Image Mosaicing,”
IEEE Xplore (hereinafter “Whichello”) and William K. Pratt, “Digital Image
Processing,” 2nd Edition (hereinafter “Pratt”).

The Examiner confirms patentability of claims 1-3, 6, 7, 10, 12, and
13 under the proposed rejection of those claims under 35 U.S.C. § 102(b) as
anticipated by any one of:
1) Takeshi Masuda, “A Robust Method for Registration and
Segmentation of Multiple Range Images,” Computer Vision and Image
Understanding, Vol. 61, No. 3, May, 1995 (hereinafter “Masuda”); or
2) Philippe Thevanaz, “Optimization of Mutual Information for
Multiresolution Image Registration,” IEEE Transactions on Image
Processing, Vol. 9, No. 12, December 2000 (hereinafter “Thevenaz”); or
3) M. E. Alexander and R.L. Somorjai, “The Registration of MR
Images Using Multiscale Robust Methods,” Magnetic Resonance Imaging,
Vol. 14, No. 5, 1996 (hereinafter “Alexander”).1

1 The Examiner states that “Alexander does not raise a substantial new
question of patentability” for claims 1-3, 6, 7, and 10 (Right of Appeal
Notice 6).
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ISSUE

Did the Examiner err in rejecting claims 1-3, 6, 7, 10, 12, and 13?

PRINCIPLES OF LAW

In rejecting claims under 35 U.S.C. § 102, “[a] single prior art
reference that discloses, either expressly or inherently, each limitation of a
claim invalidates that claim by anticipation.” Perricone v. Medicis Pharm.
Corp., 432 F.3d 1368, 1375 (Fed. Cir. 2005) (citation omitted).
The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, and
(3) the level of skill in the art. Graham v. John Deere Co. of Kansas City,
383 U.S. 1, 17-18 (1966).
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007).

ANALYSIS

Shekhar

As the Examiner and Requester point out, Shekhar discloses “that the
search model and the search image may overlap only partially” with “much
of the search model [falling] outside [the] target image when an initial
alignment is attempted” (Respondent Br. of Third-Party Requester 4, citing
Shekhar, Fig. 7) such that “only features that fall in the overlap region [are
used] to compute the quality of the match at a given pose” (Respondent Br.
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of Third-Party Requester 5). Also as the Examiner and Requester point out,
Shekhar discloses “initial estimates are used to determine the initial overlap
[of images], and features in this overlapping region are then used to refine
the parameter estimates” (p. 45, col. 1, ll. 3-5 – Sec. 5.3).
We agree with the Examiner and Requester that Shekhar discloses a
subset of search model features and corresponding image features (i.e., the
subset of features in the overlapping region of the images being registered)
that is “uniquely determined by the [candidate] pose” as recited in claim 1.
As Shekhar discloses (and as Requester states), the “subset” of features (i.e.,
the overlapping features) are “uniquely determined” by the candidate pose as
illustrated in Figs. 7(a) and 7(b), and corresponding Figs. 3(a) and 3(b)2 and
as further described in Section 5.3.3
Appellant argues that Shekhar fails to disclose “using a subset . . . of
model features that are selected based on the particular candidate pose”
(App. Br. 9)4 because “the consensus function does not, by itself,
focus on or concern itself with . . . features ‘uniquely determined’ by the
particular input-parameter , because “the consensus function in all cases is
still calculated for the entire range of transformation parameters” (App. Br.
12-13), or because “the features that are used at the nth step in the consensus
function are not uniquely determined by or based on the input-

2 E.g., illustrating that a specific “pose” or orientation of an image being
registered with another corresponding image creates a unique set of features,
the unique set of features being the features that are overlapping.
3 E.g., overlapping regions (or features) are used in an estimation – but not
non-overlapping regions.
4 Corrected Appellant Brief in Inter Partes Reexamination filed by
Appellant on August 16, 2011.
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parameter , but are rather determined by the maximum parameter
/ that was determined in the previous (n-1)th step” (App. Br. 14).
Even assuming Appellant’s contentions to be correct that the
consensus function does not concern itself with particular features, that the
consensus function is calculated for an entire range of transformation
parameters, and that features are determined by a maximum parameter
determined in a previous step, Appellant does not indicate how Shekhar also
fails to disclose a subset of features selected based on a candidate pose. As
described above, Shekhar explicitly discloses a set of features (i.e.,
overlapping regions of images) that are uniquely determined by an
orientation or location (since the overlapping regions of the images in
Shekhar are “uniquely determined” during initial registration of the images –
i.e., determined based on alignment of the images as shown in Figs. 7(a) and
7(b) and described in Sec. 5.3). Appellant does not provide an adequate
showing of a difference between this disclosure of Shekhar and the disputed
claim elements.
Appellant also argues that Shekhar “necessarily results in non-
overlapping regions of the image features being included” (App. Br. 14),
but does not adequately explain how Shekhar’s disclosure of using “features
in this overlapping region” (p. 45, col. 1, ll. 3-4) would necessarily result in
“non-overlapping regions” being included. In fact, since Shekhar explicitly
discloses that features in “overlapping” regions are utilized (and does not
disclose that features in “non-overlapping” regions are utilized), one of
ordinary skill in the art would have understood that features in “overlapping”
regions are utilized and not features in “non-overlapping regions.” In any
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event, aside from whether Shekhar discloses utilizing overlapping or non-
overlapping features, Appellant does not adequately demonstrate that
Shekhar fails to disclose a “subset” of features determined by a “pose” as
recited in claim 1 for at least the reasons set forth above and provided by the
Examiner and Requester.
Appellant does not provide additional arguments in support of claims
6, 10, 12 or in support of dependent claims 2, 3, 7, and 13.

Whichello and Pratt
Appellant argues that the combination of Whichello and Pratt fails to
disclose or suggest “edge elements” as recited in claim 1 because, according
to Appellant, “Pratt does not use edge elements for matching (nor is it
obvious how Pratt’s equation would even handle the substitution of edge
elements for pixel values” (App. Br. 19). We disagree with Appellant.
The Specification discloses that “[t]he features can be pixels, edge
elements, or higher level features, such as geometric features” (col. 2, ll. 31-
33 and ll. 44-46) but does not otherwise provide a specialized definition of
the term “edge element.” In the absence of a specialized definition of the
term, we construe the term “edge element” broadly but reasonably in light of
the Specification as would have been understood by one of ordinary skill in
the art as including any component (or “element”) pertaining to a border,
margin or line segment representing such a border or margin (i.e., “edge”).
Pratt discloses “the set of binary black line figures . . . as shown in
Figure 20.1-1a” (p. 651, ll. 11-12) and illustrates an “array of objects,” each
containing edges (see, e.g., Fig. 20.1-1(a) and (b) – each object being
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represented by defining or boundary lines). Since a “line,” broadly but
reasonably construed, would be considered an “edge element” (i.e., a “line”
is a component that represents a border or margin or “edge”) – and since
Appellant has not provided an adequate showing that such a “line” or edge
differs from an “edge element” as recited in claim 1 – we are not persuaded
by Appellant’s contention that Pratt fails to disclose or suggest an “edge
element.”
Also, as pointed out by the Examiner and Requester, Pratt discloses
that features “include edges” (joined in a Y or T arrangement) (p. 653).
Given this explicit disclosure by Pratt of “edges,” we are not persuaded by
Appellant’s argument that Pratt fails to disclose or suggest “edge elements”
as Appellant has not provided a sufficient showing of any differences
between the “edges” of Pratt and the “edge elements” as recited in claim 1.
Appellant argues that Pratt discloses “two-dimensional grids of pixel
values” (App. Br. 18) but does not indicate where Pratt discloses only pixels
and does not disclose “edges” or “edge elements” as would have been
understood by one of ordinary skill in the art. As set forth above, Pratt
appears to disclose lines (e.g., Fig. 20.1-1(a) and (b) and “edges joined in a
Y or T configuration” – p. 653) that one of ordinary skill in the art would
have constituted “edge elements” at least because both the “edges” of Pratt
and “edge elements” as recited in claim 1 include an “edge.” In fact,
Appellant does not point to any explicit disclosure in Pratt of “pixels” at all.
Even assuming Appellant’s assertion that Pratt discloses “pixels” to
be correct and that the “edges” disclosed by Pratt are somehow different
from the “edge elements” recited in claim 1, we note that the claims do not
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require and the Specification does not disclose that “pixels” and “edge
elements” are mutually exclusive. That is, while the Specification separately
lists “pixels” and “edge elements” as potential “features,” the Specification
does not disclose that an “edge element” cannot include “pixels.” Indeed,
assuming an “edge element” includes a “line,” and a “line,” as would have
been understood by one of ordinary skill in the art, is composed of a series
of multiple “pixels,” one of ordinary skill in the art would have understood
that the series of pixels making up the “line” would be an “edge element”
since the series of pixels making up the “line” would constitute an “element”
(or component) that represents a border or margin of an object (i.e., an
“edge”).
Appellant does not provide additional arguments in support of 6, 10,
and 12, or of dependent claims 2, 3, 7, and 13.

Masuda, Alexander, and Thevenaz
Affirmance of the rejection of claims 1-3, 6, 7, 10, 12, and 13 based
on Shekhar or the combination of Whichello and Pratt renders it unnecessary
to reach the propriety of the Examiner’s decision not to adopt the proposed
rejections of those claims on a different basis. Cf. In re Gleave, 560 F.3d
1331, 1338 (Fed. Cir. 2009) (not reaching other rejections after finding an
anticipation rejection to be upheld). As such, we need not decide the
propriety of the Examiner’s refusal to adopt the rejection of those claims
over Masuda, Alexander, or Thevenaz.

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CONCLUSION
The Examiner did not err in rejecting claims 1-3, 6, 7, 10, 12, and 13.
DECISION
The Examiner’s decision to reject claims 1-3, 6, 7, 10, 12, and 13 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

rvb

PATENT OWNER

COGNEX CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
1 VISION DRIVE
NATICK, MA 01760-2077

THIRD PARTY REQUESTER

FOLEY & LARDNER LLP
111 HUNTINGTON AVENUE
26TH FLOOR
BOSTON, MA 02199-7610