Ex Parte Drimbarean et al

Patent Trial and Appeal Board

Apr 20, 2016

12112586 (P.T.A.B. Apr. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/112,586 04/30/2008
72104 7590 04/22/2016
DigitalOptics/Hickman Palermo Becker Bingham
1 Almaden Boulevard
Floor 12
San Jose, CA 95113
Alexandru Drimbarean
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
FN-217-US 9483
EXAMINER
SPINKS, ANTOINETTE T
ART UNIT PAPER NUMBER
2663
NOTIFICATION DATE DELIVERY MODE
04/22/2016 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):
usdocket@h35g.com
patentlegal@tessera.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEXANDRU DRIMBAREAN and
ERAN STEINBERG1
Appeal2014-005722
Application 12/112,586
Technology Center 2600
Before JEFFREYS. SMITH, JOHN F. HORVATH, and
AMBER L. HAGY, Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify DigitalOptics Corporation Europe Limited as the real
party in interest. (App. Br. 1.)
Appeal2014-005722
Application 12/112,586
Introduction
According to Appellants, "[t]he present invention relates to a method
and apparatus for controlling the moment of exposure of an image
acquisition device, particularly using face tracking technology." (Spec. 1.)
Exemplary Claim
Claim 1, reproduced below with the disputed limitations italicized, is
exemplary of the claimed subject matter:
1. A method operable in an image acquisition device for
controlling a decisive moment of exposure including detecting
one or more faces in a monitored scene, determining a change in
the monitored scene by addition of a new face in the scene, and
then automatically acquiring an image of the scene after
postponing an instant of exposure until said new face is located
between or otherwise in the vicinity of said one or more faces
initially detected in said monitored scene, and not occluding any
of said one or more faces initially detected in said monitored
scene.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Oren
Ishiwata et al. ("Ishiwata")
US 2007/0195174 Al
US 2007 /0286589 Al
REJECTION
Aug. 23, 2007
Dec. 13, 2007
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Oren and Ishiwata. (Final Act. 3-14.)
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Application 12/112,586
ISSUE
Whether the Examiner erred in finding the combination of Oren and
Ishiwata teaches or suggests "determining a change in the monitored scene
by addition of a new face in the scene" and "said new face is located
between or otherwise in the vicinity of said one or more faces initially
detected in said monitored scene, and not occluding any of said one or more
faces initially detected," as recited in independent claim 1.
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellants'
arguments the Examiner has erred. We disagree with Appellants'
conclusions and we adopt as our own: (1) the findings and reasons set forth
by the Examiner in the action from which this appeal is taken (Final Act. 2-
14) and (2) the reasons set forth by the Examiner in the Examiner's Answer
in response to Appellants' Appeal Brief. (Ans. 2-14.) We concur with the
conclusions reached by the Examiner, and we highlight the following for
emphasis.2
Claims 1-20 are rejected under the same ground of rejection. (Final
Act. 3.) Appellants argue the patentability of claim 1 (see App. Br. 7-11;
Reply Br. 2-8), but do not separately argue the patentability of claims 2-19
with particularity (see App. Br. 12). Therefore, we select claim 1 as the
representative claim pursuant to our authority under 37 C.F.R.
§ 41.37(c)(l)(iv). Claims 2-19 stand or fall with claim 1.
2 Only those arguments made by Appellants have been considered in this
Decision. Arguments Appellants did not make in the Briefs have not been
considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv).
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Appeal2014-005722
Application 12/112,586
The Examiner finds Oren teaches or suggests:
a method operable in an image acquisition device for controlling
a decisive moment of exposure including detecting one or more
faces in a monitored scene (i-f 41 ), determining a change in the
monitored scene (i-f4 l ), and then automatically acquiring an
image of the scene after postponing an instant of exposure until
said face is located between or otherwise in the vicinity of said
one or more faces initially detected in said monitored scene (i-122-
23, 41 ), and not occluding any of said one or more faces initially
detected in said monitored scene (i-122-23, 41 ).
(Final Act. 3--4.) The Examiner also finds "Oren fails to explicitly disclose
determining a change in the monitored scene by addition of a new face in the
scene," but further finds "Ishiwata et al. teaches an imaging apparatus
includes a face detecting unit that detects a face area from an input image
inputted in the imaging apparatus .... " (Final Act. 4 (citing Ishiwata i1i127,
34, 37, 111).)
Appellants challenge the Examiner's findings regarding Ishiwata on
the basis that Ishiwata is limited to detecting a new face that is "significantly
closer to the camera, and as such the new face is not 'in the vicinity' of nor
'in-between' other faces in the image." (App. Br. 11 (emphasis added); see
also Reply Br. 2-6.) As the Examiner finds, however, "[b ]eing that the
multiple faces are in the same shot, they are inherently 'in the vicinity' of
each other." (Ans. 14.) Appellants counter that "vicinity" should be
interpreted as "near," and further contend "merely having faces in the same
shot or scene does not guarantee nearness or proximity." (Reply Br. 4.)
Appellants have not persuaded us of Examiner error. It is well settled
that the terms of a claim must be given the broadest reasonable
interpretation, consistent with Appellants' Specification, as they would be
interpreted by one of ordinary skill in this art. In re Morris, 127 F.3d 1048,
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Appeal2014-005722
Application 12/112,586
1054-55 (Fed. Cir. 1997); Jn re Zietz, 893 F.2d 319, 321-22 (Fed. Cir.
1989). Appellants do not cite to any usage appearing in the Specification
that constrains the construction of the term "vicinity" to exclude from the
scope of the claims Ishiwata's teachings of detecting a new face that has
"appeared in a position closer to the imaging apparatus than a position of a
face closest to the imaging apparatus among faces detected before the start
of the focus operation," as found by the Examiner. (Ans. 4, 13-14; Ishiwata
i-f 37.) Nor does Appellants' citation to "Dictionary.com," which
purportedly defines "vicinity" as "state or fact of being near; proximity ... ,"
persuade us of Examiner error. (Reply Br. 4 (emphasis added).) In
particular, Appellants have not persuasively explained how faces "in the
same shot" are not "near" each other.
To support their argument that faces in the same shot are not
necessarily "in the vicinity" or "near" each other, Appellants posit a scenario
in which a photographer is attempting a "group shot of many people, such as
a class of 30 people," and the camera is therefore "zoomed out a fair
distance." (Reply Br. 4.) Appellants argue that if a new person appeared
"off in the distance from where the class is being photographed," that person
would be "in the scene," and hence would be "in the vicinity" according to
the Examiner's construction. (Id.) And, according to Appellants, "[i]f a
picture were to be taken at that time, it would be disastrous as the teacher
would be nowhere near [the] students." (Id.) Appellants' scenario fails,
however, when considered in light of the Examiner's findings regarding the
teachings of Ishiwata, wherein the "new face" detected if it is closer to the
camera than the existing faces. (E.g., Ans. 13 (citing Ishiwata i-fi-127, 34, 37
111 ).) In other words, according to Ishiwata, the "new face" is detected if it
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Application 12/112,586
is betv,;een the original subjects and the camera. Thus, ,,A'"ppellants' posited
scenario of a face "off in the distance" being erroneously considered "in the
vicinity" is not consistent with the teachings of Ishiwata and is not within the
Examiner's findings.
Appellants also argue neither Oren nor Ishiwata teaches or suggests
the limitation of "not occluding any of said one or more faces initially
detected in said monitored scene." (App. Br. 9-10.) In particular,
Appellants argue Ishiwata's teaching of a "new face that is significantly
closer to the camera" is "opposite and contrary to Claim 1," because "the
new face is more likely to be occluding other faces behind it." (App. Br.
10.) This contention amounts to unsupported attorney argument, which is
entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). This
argument is also unpersuasive as amounting to a piecemeal attack on the
cited references. Where, as here, the rejections are based upon the teachings
of a combination of references, "[ n ]on-obviousness cannot be established by
attacking references individually." In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). In
addition, a reference "must be read, not in isolation, but for what it fairly
teaches in combination with the prior art as a whole." Id.
The Examiner relies on the combination of Oren and Ishiwata as
teaching avoiding occlusion between a new face and existing faces. (Final
Act. 2-3; Ans. 14.) In so doing, the Examiner finds Oren teaches or
suggests "face location and occlusion." (Ans. 3; see Oren ,-r 23: "The Facial
Occlusion 150 attribute allows the user to ensure that the full face of the
photographed person is visible."; see also Oren ,-r 41: "Having identified the
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Application 12/112,586
faces the system can then analyze ... face occlusion 640 of each
individual." (Emphasis added.)) In that regard, Appellants' argument that
"Oren is silent with regard to any condition that faces should be in-between
or in the same vicinity as other faces" is contrary to the teachings of Oren.
Being that multiple faces are in a shot, Oren's teaching of avoiding facial
occlusion of "each individual" at least suggests avoiding one face blocking
another. (See Ans. 13.)
In short, Appellants' arguments on appeal have failed to persuade us
of error in the Examiner's findings regarding the teachings or suggestions of
the cited references. For the foregoing reasons, we sustain the Examiner's
35 U.S.C. § 103(a) rejection of claim 1, and we also sustain the rejection of
claims 2-19, which are not argued separately.
DECISION
For the above reasons, the Examiner's 35 U.S.C. § 103(a) rejection of
claims 1-20 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)(l)(iv).
AFFIRMED
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