Ex Parte Bornemann et al

Patent Trial and Appeal Board

Aug 24, 2017

12673205 (P.T.A.B. Aug. 24, 2017)

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.
12/673,205 12/21/2010 Christian Bornemann PAT014141US(BCM81) 6611
48394 7590 08/28/2017
SFRVTT T A WHTTNFY T T C EXAMINER
33 WOOD AVE SOUTH BALDORI, JOSEPH B
SUITE 830
ISELIN, NJ 08830 ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
08/28/2017 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):
docket @ dsiplaw. com
j escobar @ dsiplaw. com
lmurphy @ dsiplaw .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTIAN BORNEMANN,
HEINER CLOPPENBURG, CARLOS VIGNOLO,
JURGEN LOHMANN, and STUART KENDALL SCOTT
Appeal 2016-002616
Application 12/673,205
Technology Center 3700
Before MICHELLE R. OSINSKI, ERIC C. JESCHKE, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-002616
Application 12/673,205
STATEMENT OF THE CASE
Appellants Christian Bomemann et al.1 appeal under 35 U.S.C.
§ 134(a) from the Examiner’s decision, as set forth in the Final Office
Action dated November 17, 2014 (“Final Act.”), rejecting claims 1—7 under
35 U.S.C. 102(b) as being anticipated by Graf (US 6,870,614 B2, issued
March 22, 2005). We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
THE CLAIMED SUBJECT MATTER
The claims are directed to a process for formulating a color match of
pigmented shades to a target shade. Claims 1 and 7 are the independent
claims on appeal. Claim 1, reproduced below with disputed limitations
italicized for emphasis, is illustrative of the claimed subject matter:
1. A process for formulating a color match of pigmented shades
to a target shade, comprising:
i) using suitable calibration scales to compile an effect
matrix for each of the ingredients included in a coloring system,
the effect matrix being determined by varying amounts of one or
more pigments for a specified formula around a setpoint
concentration and an associated coloristic effect being calculated
in a reflection space or in CIELab space angle-dependently
using optical materials parameters, the coloring system being a
composition of at least two different pigments and/or binders, the
calibration scales being compiled using information related to
variations between raw material batches of the ingredients used
in the coloring system, wherein information content of the effect
matrix is utilized for tinting a reference formula toward a target
point deviating from a reference point in the reference formula,
ii) determining the optical materials parameters of the
target shade,
1 Appellants identify BASF Coatings GmbH as the real party in
interest. Appeal Brief, dated July 15, 2015, at 3 (“Appeal Br.”).
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Application 12/673,205
iii) selecting a suitable starting formula,
iv) determining the color difference between the starting
formula and the target shade,
v) calculating a first matched color formula while taking
account of the effect matrices,
vi) using the first matched color formula to produce a
coloring system matched to a target shade, and
vii) repeating steps iv) v) and vi) until an acceptable
remaining color difference is reached, so as to continually update
the effect matrices with shade-relevant information during
ongoing production of the coloring system, the shade-relevant
information comprising the entirety of the dependences of shade
changes in the form of differentials of the effect matrix that is to
be drawn up from them, wherein the shade changes are
expressed by dL * da * and db * for achromatic shades and dL *
c/C* and dH*for chromatic shades.
DISCUSSION
The Rejection of Claims 1—7 As Anticipated By Graf
Appellants argue that the Examiner’s findings that Graf discloses all
of the limitations of claims 1—7 are erroneous. Appeal Br. 9—17; Reply
Brief, dated January 6, 2016, at 2—7 (“Reply Br.”). Appellants argue that
Graf does not disclose the claimed “calibration scales” and “effect matrix”
for three primary reasons: “[Graff’s] set of bi-directional formulae does not
need to have data related to [1] variations in amounts of one or more
pigments on the specified formula; [2] calibration scales compiled by using
information related to variations between raw material batches; or [3]
differentials for the dependencies of shade changes.” Reply Br. 2; see also
Appeal Br. 12.
With respect to Appellants’ first argument, the Examiner finds that
Graff discloses “using a database of formulas (calibration scales) to
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determine a starting formula that contains a set of variables (effect matrix)”
Ans. 7 (citing Graf 2:42-47), and “a stored set of color formulas and the
starting formula variables function identically in the overall process as
[Appellants’] ‘calibration scales’ and ‘effect matrix’ as claimed.” Ans. 7—8.
Appellants’ argument that Graf does not disclose the terms
“calibration scales” and “effect matrix” is not persuasive. See, e.g., Appeal
Br. 11-13, 15; Reply Br. 2^1, 6-7; In re Bond, 910 F.2d 831, 832 (Fed. Cir.
1990) (There is no ipsissimis verbis test for determining whether a reference
discloses a claim element, i.e., identity of terminology is not required). The
Examiner correctly finds that the recited “calibration scale” is the same as
the stored set of color formulas in the Graf’s color database. Ans. 7—8; Final
Act. 2—3. The Examiner’s definition of “calibration scale” is consistent with
the Specification, which describes a calibration scale as the color formula for
pigments and other raw materials in the formula database. See, e.g., Spec.
5:11—14 (“The pigment-specific and wavelength-dependent materials
parameters of the scattering and absorption coefficients must be determined
experimentally via a calibration scale in a manner known to the skilled
worker.”); see also id. at 2:4—7, 3:4—8, 3:26—34. Like the calibration scale
recited in claims 1 and 7, Graf discloses:
a color database 16 containing a variety of color information.
Some of the information stored in the color database 16
comprises a plurality of previously used bi-directional color
formulations and their respective spectrophotometer
measurements, wherein each formulation contains the pigments,
dyes and platelet-shaped pigments used in the formula along with
their respective concentrations. In addition, each color
formulation comprises a plurality of optical parameters
associated with each of the pigments, dyes and platelet-shaped
pigments used in the bi-directional color formula. The plurality
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of optical parameters for the platelet-shaped pigments comprise
items such as the pigment's complex refractive index by
wavelength, the type or shape of platelet-shaped pigments used
in the formula, the particle dimensions and thicknesses, the size
distributions of the platelet-shaped pigments in the formula, the
composition of the platelet-shaped pigments in the formula (e.g.,
aluminum, metal oxides, Ti02 coated mica), the orientation
distribution function of the platelet-shaped pigments, the
adsorption and scattering coefficients by wavelength for the
platelet-shaped pigments, and the scattering re-distribution
function for the platelet-shaped pigments. The optical parameters
for the pigment and dye colorants include items such as the
complex refractive index by wavelength for the pigments and
dyes, the particle diameter and size distribution of the pigments
in the formula, the adsorption and scattering coefficients by
wavelength for the pigments and dyes, and the scattering phase
function for the pigments. One of ordinary skill in the art will
recognize that the color database 16 may include other color data
such as tristimulus color coefficients, scattering phase functions,
and concentrations for pigment concentrates, mixtures, or
composites.
Graf 4:38-5:3.
The Examiner also correctly finds that the recited “effect matrix” is
the same as Grafs starting color formula for the target color. Ans. 7.
According to the Specification, the effect matrix is calculated using the
calibration scales in the formula database, and “describes the coloristic effect
of the individual formulas in the reflection space or color space, as a
function of angle, for varying pigment concentrations.” See, e.g., Spec. 3:5—
11 (The effect matrix “is compiled by means of experimentally determined
calibration scales of the reflection parameters of the pigments on which the
formula is based, and is likewise stored in the formula database.”); see also
id. at 2:26—3:3. Similar to the Specification, Graf discloses that the target
color formula is calculated by computing unit 18 which “searches the color
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database for a set of color formulas that approximates the target bi­
directional color and determines from the set of color formulas a color
formula that best matches the target bi-directional color measured by the
spectrophotometers under a multiple of angles.” Graf 5:4—10. Appellants’
argument that Graf calculates the color formula only from “previously used
bi-directional color formulations” is misleading because it refers only to one
of several Graf embodiments. See, e.g., Reply Br. 4.
For the reasons above, the Examiner correctly finds that Graf
discloses a “calibration scale” and “effect matrix” as recited in the claims,
and Appellants do not identify error in the Examiner’s findings.
In their second argument, Appellants contend that Graf does not
disclose that the calibration scales are compiled by using information related
to variations between raw material batches. Reply Br. 3^4; Appeal Br. 11.
According to Appellants, “[s]ince no process is perfect, every batch of raw
material will be slightly different from every other batch of the same raw
material.” Reply Br. 3.
In response, the Examiner correctly finds that Graf’s “[sjtored color
formulations inherently contain raw ingredients, and, as such, contain data
about those raw ingredients.” Final Act. 7—8. As discussed above, in
column 4, line 38 to column 5, line 3 of Graf, Graf measures numerous and
detailed optical parameters of all of the raw materials used in its color
formulation process. If, as argued by Appellants, the optical parameters of
raw material batches are different, Graf’s color database measurement
system captures and stores such information. Appellants do not identify any
error in the Examiner’s finding.
In their third argument, Appellants contend that Graf does not
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continually update the effect matrices with shade-relevant
information during ongoing production of the coloring system
. . . , the shade-relevant information comprising the entirety of
the dependences of shade changes in the form of differentials of
the effect matrix that is to be drawn up from them, wherein the
shade changes are expressed by dL*, da* and db* for achromatic
shades and dL*, dC* and dH* for chromatic shades.
See, e.g., Reply Br. 2 (“differentials for the dependencies of shade
changes”), 7—8; Appeal Br. 15—17; see also id. at 18—19 (Claims App.).
Although the Examiner correctly finds that Graf discloses continually
updating the effect matrix (Final Act. 3 (citing Graf items 54—68, Fig. 4);
Ans. 3), the Examiner does not identify any specific support that Graf
“inherently” discloses the “shade-relevant information comprising . . . the
shade changes are expressed by dF*, da* and db* for achromatic shades and
dF*, dC* and dH* for chromatic shades.”2 Final Act. 4 (“these values are
inherent within a color formula”).
We acknowledge that Appellants’ Specification discloses that the
CIEFab color space is an “established standard” (Spec. 1:1:32—34), and that
“the concept of ‘shade-relevant information’ is understood in the art to refer
to shade changes dL *, da * and <76* for achromatic shades and dL *, <7C*
and <777* for chromatic shades” (Spec. 6:8—10). Thus, these claim
limitations would be known to a person of ordinary skill. However, the
Examiner does determine that it would have been obvious to modify Graf’s
2 Although the dF*, da*, and db* terms originate from the CIEFab
color space, neither the Examiner nor Appellants address whether the
CIEFab color space inherently discloses “shade-relevant information
comprising the entirety of the dependences of shade changes in the form of
differentials of the effect matrix that is to be drawn up from them, wherein
the shade changes are expressed by dF*, da* and db* for achromatic shades
and dF*, dC* and dH* for chromatic shades.”
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color space with the known CIELab color space or known shade-relevant
information. Thus, under the Examiner’s anticipation rejection, the issue is
whether Graf “necessarily” discloses the “CIELab space” and “shade
relevant information” limitations. In re Giuffrida, 527 F. App’x 981, 984—
85 (Fed. Cir. 2013) (“Inherent disclosure requires that the prior-art reference
‘necessarily include the unstated limitation.’ . . . ‘[Probabilities or
possibilities’ are not enough to find that the prior art inherently discloses
something not explicitly present.”) (internal citations omitted); see also In re
Oelrich, 666 F.2d 578, 581 (CCPA 1981).
We understand that there are different methods or models for
measuring color space, including, for example, the “CIELab coordinates”
disclosed in the Specification (Spec. 1:32—34), as well as the CIELab 1976
color space using a cube root transformation, the Hunter 1948 color space
using a square root transformation, the CIE 1994 color difference, the CIE
2000 color difference, the RGB color model, the CMYK color model, the
CIE 1931 XYZ color space, the Munsell color system, and others. See, e.g.,
https://en.wikipedia.org/wiki/Lab_color_space, (last visited August 14,
2017) (hereinafter “Lab Color Space”). We also understand that “CIE
L*a*b* (CIELAB) is a color space specified by the International
Commission on Illumination (French Commission internationale de
Veclair age, hence its CIE initialism). It describes all the colors visible to the
human eye and was created to serve as a device-independent model to be
used as a reference.” Id. We further understand that the “Lab color space
describes mathematically all perceivable colors in the three dimensions L for
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lightness and a and b for the color opponents green—red and blue—yellow.”3
Id.', see also Spec. 1:32—34. In contrast, the RGB and CMYK spaces “model
the output of physical devices rather than human visual perception.” Lab
Color Spaces.
Because numerous possible color spaces are available to one skilled in
the art, the Examiner’s finding that CIELab space is “merely” an expression
of a color formula and is inherently disclosed by Graf is incorrect. Final
Act. 3. Similarly, the Examiner’s findings that “shade relevant information
. . . expressed by dL, da . . . etc.” “are merely further detailed forms of the
same data already discussed,” “[c]olor information is color information,”
and “[s]hade relevant information within the formulas is taught in the prior
art (column 4 line 38-column 5 line 3), within the formulas and within the
multiple different types of color information values within the formulas” are
not inherently supported by Graf. See, e.g., Ans. 8, 9. Graf may use any of
a number of color spaces. It is possible that Graf uses any of numerous
available color spaces, and Graf does not necessarily have to use the recited
“CIELab color space” and the “shade-relevant information” limitations.
Thus, Graf does not “inherently” disclose the two limitations. In re
Giuffrida, 527 F. App’x at 984-85.
For the above reasons, the rejection of independent claims 1 and 7,
and claims 2—6, which depend from claim 1, as anticipated by Graf is not
sustained.
3 According to the Specification, “[cjolor differences dL*, da* and db*
are then produced from the difference between two color loci in terms of the
respective coordinates L*, a* and b * measured for the two shades.” Spec.
1:34—2:2.
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DECISION
For the above reasons, the Examiner’s rejection of claims 1—7 under
35 U.S.C. § 102(b) is REVERSED.
REVERSED
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