Ex Parte Eames et al

Patent Trial and Appeal BoardAug 23, 2016

13072217 (P.T.A.B. Aug. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/072,217 03/25/2011 63759 7590 08/25/2016 DUKEW, YEE YEE & AS SOCIA TES, P.C. P.O. BOX 802333 DALLAS, TX 75380 FIRST NAMED INVENTOR Patrick Jan Eames 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. 11-0057-US-NP 5516 EXAMINER ZALALEE, SULTANA MARCIA ART UNIT PAPER NUMBER 2614 NOTIFICATION DATE DELIVERY MODE 08/25/2016 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): ptonotifs@yeeiplaw.com mgamez@yeeiplaw.com patentadmin@boeing.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PATRICK JAN EAMES, BRENT LOUIS HADLEY, STEPHEN PAUL MILLER, and JOSEPH FRANK FLOYD Appeal2015-000266 Application 13/072,217 Technology Center 2600 Before JEAN R. HOMERE, JOSEPH P. LENTIVECH, and KARA L. SZPONDOWSKI, Administrative Patent Judges. SZPONDOWSKI, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134(a) from the Examiner's final rejection of claims 1--40. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. Appeal2015-000266 Application 13/072,217 STATEMENT OF THE CASE Appellants' invention is directed to managing and displaying a number of images for an object. (Spec. i-f 2). Claim 1, reproduced below, is representative of the claimed subject matter: 1. A method for managing a plurality of images comprising: identifying, by a processor, a plurality of resolutions in which the plurality of images are to be stored and a style of presentation for the plurality of images using a policy; storing, in a non-transitory computer readable storage medium, a plurality of copies of the plurality of images in the plurality of resolutions; and selecting, by the processor, a copy of a particular image in the plurality of images for a selected location in a layout defining a presentation for the plurality of images using the style of presentation, wherein the copy of the particular image has a desired resolution in the plurality of resolutions for the selected location in the layout. REJECTIONS Claims 1-12, 14, 15, 30, and 32-39 stand rejected under 35 U.S.C. Â§ 103 (a) as being unpatentable over the combination of Gerhard et al. (US 2009/0317010 Al; published Dec. 24, 2009) and Bergman, President Barack Obama 's Inaugural Address, available at http://gigapan.com/gigapans/15374/, Jan. 21, 2009 (hereafter "Bergman"). Claims 13, 16 19, 24, 25, 29, 31, and 40 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Gerhard, Bergman, and Chiu et al. (US 2011/0252365 Al; published Oct. 13, 2011). 2 Appeal2015-000266 Application 13/072,217 Claims 17, 18, and 20-23 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Gerhard, Bergman, Chiu, and Abello et al. (US 2002/0154175 Al; published Oct. 24, 2002). Claim 26 stands rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Gerhard, Bergman, Chiu, and Cleeves et al. (US 2005/0283740 Al; published Dec. 22, 2005). Claim 27 stands rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Gerhard, Bergman, Chiu, and Baum et al. (US 6,606,731 Bl; issued Aug. 12, 2003). Claim 28 stands rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Gerhard, Bergman, Chiu, and Ahl et al. (US 2003/0187823 Al; issued Oct. 2, 2003). ANALYSIS After considering of each of Appellants' arguments, we agree with the Examiner. We refer to and adopt the Examiner's findings and conclusions as set forth in the Examiner's Answer and in the action from which this appeal was taken. (Ans. 4--26; Final Act. 2-31 ). Our discussion here will be limited to the following points of emphasis. Claim 1 Issue 1: Did the Examiner err in finding the combination of Gerhard and Bergman teaches or suggests "a style of presentation for the plurality of images using a policy," as recited in independent claim 1? Appellants argue Gerhard describes a method of image storage, not a style of presentation for the plurality of images using a policy. (App. Br. 13-14, 16). Specifically, Appellants contend the "schema" taught in 3 Appeal2015-000266 Application 13/072,217 Gerhard is not analogous to the "policy" as recited in claim 1, and provide a variety of dictionary definitions for the term "schema." (App. Br. 14--15; Reply Br. 4--5). According to Appellants, to an ordinary artisan, a "schema" is a "form of data organization or specific formatting of computer code." (App. Br. 15). We are not persuaded by Appellants' arguments. In the Specification, Appellants have broadly defined a "style of presentation" as "an organization for placement and sizing of number of images 310 ... [ f]or example ... a hierarchy, a grid, or another suitable form." (Spec. i-f 48). Appellants also broadly define a "policy" as "a number of rules and may include data used to apply the rules. The number of rules relates to the storage and/or presentation of number of images 310. Policy 314 may be located in a file, a database, or another suitable data source that contains one or more rules." (Spec. i-f 49). We agree with the Examiner that under the broadest reasonable interpretation in light of the Specification, Gerhard teaches or suggests "a style of presentation for the [plurality of] images using a policy." (See Ans. 5, citing Gerhard i-fi-148, 53, 81, 82, Table III). Moreover, as Appellants recognize (App. Br. 16), Gerhard describes that "other schemas and/or formats can alternatively be used." (Gerhard i-f 81, emphasis added). Thus, Appellants' emphasis on Gerhard's use of the term "schema" is unpersuasive. Accordingly, we are not persuaded the Examiner erred in finding Gerhard teaches or suggests the disputed limitation. 4 Appeal2015-000266 Application 13/072,217 Issue 2: Did the Examiner err in finding the combination of Gerhard and Bergman teaches or suggests selecting, by the processor, a copy of a particular image in the plurality of images for a selected location in a layout defining a presentation for the plurality of images using the style of presentation, wherein the copy of the particular image has a desired resolution in the plurality of resolutions for the selected location in the layout, as recited in independent claim 1? Appellants contend Gerhard does not teach or suggest a selected location in a layout defining a presentation for a number of images. (App. Br. 16, 18). Rather, Appellants contend Gerhard "only generates an image and displays it at some position on the screen irrespective of any layout" and "does not have a desired resolutionfor the selected location in the layout." (App. Br. 18). Put another way, Appellants contend Gerhard and Bergman teach selecting the resolution of the image based on receiving input to increase or decrease the resolution of the image, rather than tying the resolution of the image to the selected location in the layout, as claimed. (App. Br. 19; Reply Br. 3--4). Appellants also argue Gerhard does not teach the disputed limitation because Gerhard "only describes displaying a portion of a single variable resolution image at an initial resolution." (App. Br. 16- 17). We are not persuaded by Appellants' arguments. Gerhard discloses an image pyramid with multiple levels, where each level is a different version of the same image, the different versions having different resolutions. (Gerhard i-f 25). Gerhard describes displaying different parts (also referred to as portions, quadrants, or tiles) of a level of an image at a 5 Appeal2015-000266 Application 13/072,217 particular time, such as by zooming in. (Gerhard if 35). For example, Gerhard discusses "obtain[ing] [a] portion of the variable resolution image [to be] displayed at an initial resolution," followed by "[a] request to display a portion of the variable resolution image at a higher resolution." (Gerhard iii! 53, 54). In Table III and its accompanying description, Gerhard describes two different portions of the image pyramid for which higher resolutions are available, shown using XML. (Gerhard iii! 81, 82, Table III). Appellants broadly define in the Specification a "layout" as "a collection of position and size information for displaying [a] number of images" where "[i]n an advantageous embodiment, layout 322 is stored in a file, such as an Extensible Markup Language (XML) file." (Spec. if 51 ). Under the broadest reasonable interpretation in light of the Specification, we agree with the Examiner that Gerhard teaches or suggests "layout" in Table III and its accompanying description. (See Ans. 10-11). Therefore, we agree with the Examiner that a request to display a portion of the variable resolution image at a higher resolution teaches or suggests a selected location in a layout defining a presentation, and further a desired resolution for the selected location in the layout. (See Ans. 9-10, citing Gerhard iii! 25, 35, 52-57). Moreover, we are unpersuaded by Appellants' argument that Gerhard does not teach the disputed limitation because it only displays a portion of a single variable resolution image. Appellants' argument does not take into account the Examiner's reliance on Bergman, as combined with Gerhard. (See Ans. 10-12). See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). We, therefore, are not persuaded the Examiner erred in finding Gerhard teaches or suggests the disputed limitation. 6 Appeal2015-000266 Application 13/072,217 Issue 3: Did the Examiner err in combining Gerhard and Bergman? Appellants argue "the Graham factual inquiries have not all been resolved or sufficiently identified." (App. Br. 20). Specifically, Appellants contend the Examiner failed to state or adequately establish the level of ordinary skill of one in the pertinent art and that the prior art references lack sufficient disclosure to provide this information. (App. Br. 20-21; Reply Br. 1-2). Appellants argue that due to the alleged differing subject matter of Gerhard and Bergman, there is "the distinct possibility that one of ordinary skill in the art regarding storage of multiple resolution layers of single image pyramids is not also one of ordinary skill in the art of forming Gigapan images." (App. Br. 21). According to Appellants, because the Examiner has failed to establish the level of ordinary skill in the art, the Examiner's rationale for combining the references cannot be used to support a conclusion of obviousness. (App. Br. 21-22). Although the Examiner did not make an explicit finding regarding the level of ordinary skill in the art, an express definition of the level of ordinary skill is not required in all situations, as the level of ordinary skill in the art can be reflected in the cited prior art references. See Okajima v. Bourdeau, 261F.3d1350, 1355 (Fed. Cir. 2001) ("the absence of specific findings on the level of skill in the art does not give rise to reversible error where the prior art itself reflects an appropriate level and a need for testimony is not shown.") (internal quotations and citations omitted); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995). Beyond a bald assertion of error that there is a "possibility" that the level of ordinary skill in the art might differ, Appellants do not provide arguments or evidence that the level of ordinary 7 Appeal2015-000266 Application 13/072,217 skill in the art is different than that represented by the cited references. Nor do the Appellants, who are in the best position to know the level of ordinary skill in the art set forth anv level of ordinarv skill in the art difforent than . . ~ that indicated by the cited references. Further; Appellants have provided no proposal regarding an alternative level of ordinary skill and no explanation as to how an alternative level of ordinary skill changes the analysis in this case. We, therefore, find the level of ordinary skill in the art to be reflected in the cited references, and we determine that no express statement of the level of ordinary skill in the art is required. See In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995) ("The person of ordinary skill in the art is a hypothetical person who is presumed to know the relevant prior art." (citing Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962 (Fed. Cir. 1986)). Appellants further contend Gerhard and Bergman cannot be combined because doing so would change the principle of operation of Gerhard. (App. Br. 22; Reply Br. 5). Appellants argue Gerhard's current principle of operation is to store many different resolution versions of the same image, so adding a 1,474 megapixel Gigapan image (as in Bergman) comprising 220 separate and different images would not fall within the principle of operation. (App. Br. 23; see also Reply Br. 5). Appellants further argue substantial reconstruction and redesign of Gerhard's multi-level pyramid structure would be required to accommodate storage of Bergman's image. (App. Br. 23). We are not persuaded by Appellants' arguments. While we agree with Appellants that Gerhard seeks to decrease download time (Reply Br. 5; Gerhard i-f 1 ), we agree with the Examiner that Gerhard's method is not 8 Appeal2015-000266 Application 13/072,217 limited to storage and display of only a single image. (Ans. 17). Rather, we agree with the Examiner that Gerhard's method could be applied to any number of images to store or display any desired image with multi variable resolution (i.e., multiple image pyramids for multiple images). (Ans. 17). Moreover, we are not persuaded accommodating additional storage to store a plurality of images would pose unique challenges to a person of ordinary skill in the art. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Accordingly, we are not persuaded the Examiner erred in combining Gerhard and Bergman. For the foregoing reasons, we sustain the Examiner's 35 U.S.C. Â§ 103(a) rejection of independent claim 1. For the same reasons, we sustain the Examiner's 35 U.S.C. Â§ 103(a) rejections of dependent claims 3-12, 14 and 15, which were not argued separately. Claims 13, 16, 19, 24, 25, 29, 31, and 40 Appellants contend the additional references, Chiu, Ahl, Abello, Cleeves, and Baum, "do not cure the deficiencies of Gerhard and Bergman." (App. Br. 26-27). Appellants present arguments that each of Chiu, Ahl, Abello, Cleeves, and Baum do not teach or suggest the claim limitations discussed above, with respect to claim 1. (App. Br. 26-32). For the same reasons as discussed above, we find the combination of Gerhard and Bergman teaches or suggests the disputed claim limitations, and, therefore, we sustain the Examiner's 35 U.S.C. Â§ 103(a) rejection of claims 13, 16, 19, 24, 25, 29, 31, and 40. 9 Appeal2015-000266 Application 13/072,217 Claim 2 Issue 4: Did the Examiner err in finding the combination of Gerhard and Bergman teaches or suggests "wherein the style of presentation is a hierarchy in which the particular image on a first level of the hierarchy comprises additional detail about a second image on a second level of the hierarchy, wherein the second level is higher than the first level in the hierarchy," as recited in dependent claim 2? Appellants contend claim 2 requires the presentation, not the storage of multiple images, to have a hierarchy. (App. Br. 25). Appellants further argue "Gerhard still does not have any teaching or suggestion that these images are displayed together in a particular level of hierarchy." (Id.) We are not persuaded by Appellants' arguments. Appellants' arguments are not commensurate with the scope of the claim limitation, which does not require that multiple images are displayed together. As set forth above, Gerhard describes a multi-level image pyramid, where each level is a different version of the same image having different resolutions. (Gerhard i-f 25). Different parts or portions of the level of an image may be obtained and displayed. (Gerhard i-f 35). A portion may be displayed at an initial resolution, or at a higher resolution if a higher resolution version can be obtained from another level of the pyramid. (Gerhard i-fi-152-57). We, therefore, find Gerhard's multi-level pyramid teaches or suggests the hierarchy as recited in claim 2. Accordingly, we sustain the Examiner's 35 U.S.C. Â§ 103(a) rejection of dependent claim 2. 10 Appeal2015-000266 Application 13/072,217 Claim 27 Issue 5: Did the Examiner err in finding Baum to be analogous art in applying Baum in combination with Gerhard, Bergman, and Chiu to find dependent claim 27 obvious? Appellants contend Baum is not in the same field of endeavor of the invention. (App. Br. 33). Appellants argue Baum "is directed towards electronic wiring diagrams and more particularly to a system for automatically converting legacy wiring diagrams into 'intelligent wiring diagrams[,]'" while claim 1 is directed towards "managing the display of a number of images for an object." (App. Br. 33, 36). Appellants further argue Baum is not reasonably pertinent to the problem being solved. (App. Br. 38). Specifically, Appellants argue the problem being solved by claim 1 is "presenting multiple images at multiple levels of resolution in a particular layout" while the problem to be solved by Baum is rendering wiring diagrams in electronic data products in a way to make the diagrams easily comprehensible or useful for mechanics. (App. Br. 38). Appellants argue the determinations of the fields of endeavor and the pertinence of the problem are construed narrowly, not broadly. (App. Br. 33-37). We are not persuaded by Appellants' arguments. Each claim must be considered as defining a separate invention. Jones v. Hardy, 727 F.2d 1524, 1528 (Fed. Cir. 1984); 35 U.S.C. Â§ 282; Altoona Publix Theaters, Inc. v. American Tri-Ergon Corp., 294 U.S. 477, 487 (1935). Appellants' arguments regarding Baum, including the field of endeavor and the problem being solved, are directed to claim 1. As the Examiner notes, Baum was not relied upon to teach or suggest the features of claim 1. (Ans. 23-26). The 11 Appeal2015-000266 Application 13/072,217 Examiner relied on Baum to teach or suggest the limitations in dependent claim 2 7, which states [t]he method of claim 25, wherein the particular image depicts a first portion of a wiring system and the other images depict other portions of the wiring system, wherein the first portion comprises a first plurality of wires that connects to a second plurality of wires in at least one portion in the other portions. Claim 27 depends from claim 25, which depends from independent claim 19. In order for a reference to be properly used in an obviousness rejection, the reference must be analogous art to the claimed invention. In re Bigio, 381F.3d1320, 1325 (Fed. Cir. 2004). Appellants' arguments regarding Baum do not address the invention claimed in claim 27; rather, they address the invention claimed in claim 1. Accordingly, on this record, we are not persuaded the Examiner erred in finding Baum is analogous art. We, therefore, sustain the Examiner's 35 U.S.C. Â§ 103(a) rejection of dependent claim 2 7. DECISION For the above reasons, the Examiner's rejection of claims 1--40 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 12