Ex Parte Andrade et al

Patent Trial and Appeal BoardOct 31, 2012

09841644 (P.T.A.B. Oct. 31, 2012)

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. 09/841,644 04/23/2001 David de Andrade 007412.01065 6427 71867 7590 10/31/2012 BANNER & WITCOFF , LTD ATTORNEYS FOR CLIENT NUMBER 007412 1100 13th STREET, N.W. SUITE 1200 WASHINGTON, DC 20005-4051 EXAMINER SALTARELLI, DOMINIC D ART UNIT PAPER NUMBER 2421 MAIL DATE DELIVERY MODE 10/31/2012 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 ____________ Ex parte DAVID de ANDRE and RANJIT SAHOTA ____________ Appeal 2010-003701 Application 09/841,644 Technology Center 2600 ____________ Before, JOSEPH F. RUGGIERO, SCOTT R. BOALICK, AND BRIAN J. McNAMARA , Administrative Patent Judges. McNAMARA, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appeal 2010-003701 Application 09/841,644 2 SUMMARY Appellants request rehearing of the Decision on Appeal mailed July 20, 2012 by the Board of Patent Appeals and Interferences in Appeal No. 2010-003701 concerning Application Serial Number 09/841,644. Appellants’ Request for Rehearing is denied. ANALYSIS Appellants agree with the Board’s finding that claim 1 encompasses any "broadcast datastream" whether that data stream is generated from signals provided by a single device or from signals assembled from multiple devices. (Rhg. Req. 2).1 Appellants assert that the source of the data stream is irrelevant as long as the datastream in which the trigger is inserted and the datastream in which the one or more patterns are recognized are one and the same, but contend that this is not the case in Kikinis. (Id.) In in their Request for Rehearing Appellants' reference the embodiments in Kikinis which describe an object communicating URL and position data using infrared transmission, a radio beacon transmission, X-Rays and UHF. (Rhg. Req. 4-5). Kikinis discloses that an object or person to be URL associated needs to be equipped with an apparatus capable of informing a separate imaging apparatus of the association and position. (Col. 11, ll. 2-4). Kikinis further discloses that “In one embodiment, this apparatus takes the form of a broadcaster, such as an infra- red transmitter or a radio beacon broadcast.” (Col. 11, ll. 4-6, emphasis added). However, this embodiment is not the basis of the Examiner’s rejection or the 1 Throughout we refer to Appellants’ Request For Rehearing filed on September 6, 2012, the Decision On Appeal mailed on July 20, 2012, Appellants’ Reply Brief filed on April 17, 2009, the Examiner’s Answer mailed on February 18, 2009, and Appellants Appeal Brief filed on July 22, 2009. Appeal 2010-003701 Application 09/841,644 3 Board’s decision. The Examiner’s Final Rejection and the Board’s Decision are based on Kininis’ disclosure of a separate embodiment in which an imaging apparatus is capable of reading bar codes which appear in a captured image. (Dec. 6-7). Referring to the disclosure in Kikinis of an embodiment using barcodes on players’ clothing, Appellants argue that Kikinis provides no basis for concluding that the architecture of the barcode example would be any different from the infrared, radio beacon, X-ray or UHF examples in Kikinis. (Rhg. Req. 5- 6). This argument, which concerns the transmission of the barcode, not only ignores that Kikinis discloses the use of a bar code as a separate embodiment, but also departs somewhat from Appellants’ previous arguments on appeal. In their Appeal Brief, Appellants argued that Kikinis discloses the need for separate data processing equipment by associating an object in a frame with a URL in either of two ways: “[e]ither the person or object to be associated with the URL must be equipped with special devices to signal the data processing equipment (Kikinis col. 11, ll. 2-5), or the object or individual must be barcoded (Kikinis at col. 11, 23-25).” (App. Br. 5). Appellants argued that “[I]n the former case, transmitting a signal to the data processing equipment…makes use of external signaling to indicate the need for URL insertion.” (Id.). Appellants then argued “[I]n the latter case, recognizing bar coded clothing or objects, the same is true…the bar code reader or scanner would be external to the broadcast system and would be used to read codes directly from the objects or individuals that are the subject of the television broadcast.” (Id.).2 Appellants now argue that in the different examples at column 11, lines 2-13 Kikinis teaches that a third device at the object may communicate the URL and 2 As discussed further herein, Kikinis makes no mention of a bar code reader or scanner. Appeal 2010-003701 Application 09/841,644 4 position data to the imaging apparatus in various forms, such as an infra-red, radio beacon, X-Ray and bar code transmission. (Rhg. Req. 4-5). Appellants’ attempt to lump the bar codes on players’ clothing with some form of electromagnetic wave transmission is different from their arguments centering on separate data processing equipment and ignores the very distinction which they acknowledged in their Appeal Brief exists between Kikinis’ barcode embodiment and the embodiments involving signal transmissions in the infrared or radio spectrums. Arguments not made in the briefs before the Board and evidence not previously relied upon in the brief and any reply brief are not permitted in the Request For Rehearing, except to present a new argument based on a recent relevant decision of the Board or the Federal Circuit or to address a new ground of rejection. (See 37 C.F.R. §41.51.) In any case, the arguments Appellants advance in their Request for Rehearing fail for other reasons. First, Appellants do not identify any such device in Kikinis that communicates a bar code on a player’s clothing. This is because the “apparatus” which communicates the information to the imaging apparatus is the bar code itself, which appears in the image acquired by the camera. Transmission of the bar code by other means would be redundant. Second, Appellants’ position is inconsistent with Kikinis, which distinguishes bar codes readable by the imaging apparatus from information communicated by alternative broadcast techniques, as follows: In some embodiments bar codes on a players clothing may be used, the codes readable by the imaging apparatus. In others, alternative broadcast techniques may be used, such as X-Ray or UHF transmissions. (Col. 11, lines 23-28, emphasis added) Appeal 2010-003701 Application 09/841,644 5 On Appeal, Appellants argued that in Kikinis a barcode reader or scanner external to the broadcast system would be used to read bar codes directly from the objects in the broadcast, rather than from the broadcast data stream. (App. Br. 5). However, the Appeal Brief cites no such disclosure in Kikinis. (Id.). In their Request for Rehearing, Appellants now argue that Kikinis “explicitly discloses that the imaging apparatus, i.e., the ‘associated image and data processing apparatus,’ which is separate from the camera develops the URL and position data to be inserted into the image data stream.” (Rhg. Req. 4). Appellants now assert that the architecture of an embodiment in which bar codes are readable by the imaging apparatus would require bar codes based on separate data acquired by a separate imaging apparatus rather than the camera and that “[t]he data in which the bar codes are recognized is entirely independent from the stream of image data generated by the camera.” (Rhg. Req. 6). Appellants’ current argument concerning an explicit disclosure of an imaging apparatus separate from the camera is another departure from the arguments they advanced in their Reply Brief. There, citing column 11, lines 20- 22 of Kikinis, Appellants argued that “the only imaging apparatus described is a TV camera,” and speculated “it seems likely that Kikinis intended that barcode readers would [] be attached to the cameras.” (Reply Br. 6, n.. 1). In any case, since Kikinis does not mention a separate bar code reader or transmitter, Appellants are speculating about such an implementation. Appellants contend in their Request for Rehearing that the Board assumes an architecture in which the imaging apparatus detects the barcode data from the image data generated by the camera, instead of the imaging apparatus observing the barcode directly from the object. (Rhg. Req. 5). As noted above, on Appeal, Appellants contended that in Kikinis “the only imaging apparatus described is a Appeal 2010-003701 Application 09/841,644 6 TV camera” (Reply Br. 6. n. 1) and Kikinis states that the bar codes are readable by the imaging apparatus. (Col. 11, ll. 24-25). Appellants offer no explanation of why the camera and associated image and data processing apparatus disclosed by Kikinis at column 10, lines 59-67, cannot be configured to recognize the bar code in the object being imaged to insert the appropriate URL. The Board’s Decision states that "the live scene data received by a single imaging apparatus, such as a TV camera, includes barcode information imaged from the barcode attached to a player or other object in the scene.” (emphasis added). (Dec. 6). The Board’s Decision is consistent with Kikinis. Kikinis discloses that “the transmission equipment, meaning a camera and associated image and data processing apparatus, has to have a way of knowing which object or person being imaged is to be a URL associated object or image.” (Col. 10, ll. 63-66). Kikinis discloses "a number of convenient ways that the necessary dynamic URL inclusion may be provided by a person or object being imaged by such as a TV camera” and that “infrared and radio beacon are just two of many.” (Col. 11, ll. 19-22). Kikinis further discloses that "[i]n some embodiments barcodes on a player's clothing may be used, the code readable by the imaging apparatus.” (Col. 11, ll. 22-24). Nothing in Kikinis’ disclosure of a separate embodiment in which an object including a barcode is imaged by a camera suggests that the bar code is transmitted or read in any way by any apparatus other than the camera and its associated image and data processing apparatus. Whether or not the associated image and data processing apparatus is integrated with the TV camera, the fact remains that in the context of inserting the appropriate URL into the broadcast stream Kikinis teaches that the barcodes are readable by the imaging apparatus. Thus, Kikinis teaches imaging the scene, including the bar codes within the scene, recognizing the bar code patterns in the Appeal 2010-003701 Application 09/841,644 7 unmodified stream and inserting an appropriate URL into the broadcast data stream before transmitting it. Therefore, we find no error in the Examiner’s final rejections or the Board’s affirmance of those rejections. ORDER Appellants’ request for rehearing is denied. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R § 1.136(a)(1)(iv). ak