Ex Parte Ekchian et al

Patent Trial and Appeal BoardApr 12, 2016

12658186 (P.T.A.B. Apr. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 12/658, 186 7590 Dr Jack A. Ekchian POBox429 Belmont, MA 02478 FILING DATE FIRST NAMED INVENTOR 02/03/2010 Gregory J. Ekchian 04/12/2016 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. 7911 EXAMINER JEBARI, MOHAMMED ART UNIT PAPER NUMBER 2482 MAILDATE DELIVERY MODE 04/12/2016 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 GREGORY J. EKCHIAN and JACK A. EKCHIAN Appeal2014-007473 Application 12/658, 186 Technology Center 2400 Before BRUCE R. WINSOR, LINZY T. McCARTNEY, and NATHAN A. ENGELS, Administrative Patent Judges. ENGELS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134(a) from a Final Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. Appeal2014-007473 Application 12/658, 186 STATEMENT OF THE CASE The Claims Appellants' claims 1, 4, 5, 12, and 14 are independent. Claim 1 is illustrative of the subject matter on appeal: 1. Video recording and replay system comprising: a recorder for concurrently recording the output from at least two video cameras, said output including timing information; a video player for playing back recorded output from said at least two cameras and a display device for observing said replayed output; a user interface for generating a signal by an observer watching said display device; a processor configured to determine the time interval between the time of capture of the frame being displayed on said display device when said signal is generated and the time of capture of any frame being displayed subsequently; and a display that exhibits a measure of the extent of said time interval. App. Br. 23. The Examiners Rejections Claims 1, 2, 4--14, and 19 stand rejected under 35 U.S.C. Â§ 102(b) as anticipated by Notea et al. (US 2004/0239763 Al; published Dec. 2, 2004) ("Notea"). See Final Act. 3-5. Claims 3, 15-17, and 20 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Notea and Phillips et al. (US 6,546, 190B1; issued Apr. 8, 2003) ("Phillips"). See Final Act. 6-7. Claim 18 stands rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Notea and Shinoda et al. (US 2004/0153970 Al; published Aug. 5, 2004) ("Shinoda"). See Final Act. 7-8. 2 Appeal2014-007473 Application 12/658, 186 ANALYSIS Claims 1-19 Display Device for Observing Said Replayed Output Appellants argue Notea does not disclose a "display device for observing said replayed output" as recited in claim 1 because Notea displays synthesized video produced by combining raw video from multiple cameras, rather than "unsynthesized" video captured by individual cameras. See App. Br. 9-12. Appellants illustrate the purported shortcomings ofNotea with the following example: Notea does not explain what would happen in a situation where two cameras are used to simultaneously record a football game, wherein one of the cameras can "see" something, such as a football, while the second video camera cannot "see" the football because its view is blocked, for example, by a player. .. Yet resolving this problem is precisely one of the key functions served by the Claimed Invention. . .. It is not clear how Notea would address this problem relying exclusively on synthesized images. App. Br. 11. We find Appellants' arguments are not commensurate with the scope of claim 1 and are therefore unpersuasive. Although patent claims are interpreted in light of a patent's specification, limitations from the specification are not read into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Contrary to Appellants' arguments, neither the plain language of claim 1 nor Appellants' Specification limits claim 1 to displaying unmodified or "unsynthesized" video captured by two or more cameras. 3 Appeal2014-007473 Application 12/658, 186 The Examiner finds, and we agree, that a broad but reasonable interpretation of the claimed "display device for observing said replayed output [recorded output from said at least two cameras]" includes Notea's display device that displays video captured by two or more cameras, notwithstanding Notea's additional disclosures regarding joining or synthesizing images from individual cameras. See Final Act. 3; Ans. 11-12 (citing N otea i-f 21 ). Indeed, as cited by the Examiner, N otea discloses a display device that "displays a scene of a specific action space covered simultaneously by a plurality of video cameras where cameras can have a partially or fully shared field of view." Notea i-f 21. We are unpersuaded by Appellants' arguments that claim 1 would exclude such disclosures in Notea. Time Interval Appellants also direct arguments to the limitations of claim 1 that recite a "time interval" such as the following: "a processor configured to determine the time interval between the time of capture of the frame being displayed on said display device when said signal is generated and the time of capture of any frame being displayed subsequently." Appellants argue N otea' s "time-code interval" does not disclose claim 1 's "time interval" because N otea' s time-code interval ( 1) is not the time between the occurrence of two different incidents, at least one of which is selected by the user; and (2) is fixed, not variable. See App. Br. 12-14; Reply Br. 9-10. Appellants also argue Notea does not display the claimed "time interval." See App. Br. 15. We find Appellants' arguments unpersuasive. As cited by the Examiner, Notea discloses that a user can set a beginning time code within a 4 Appeal2014-007473 Application 12/658, 186 video and that subsequent frames of the video will display the time that has elapsed from the beginning time code. See Ans. 12-13 (citing Notea i-fi-126 ("The time-code 112 [of Figure 4] can also show the elapsed period of an event, the elapsed period of a broadcast, ... and the like."), 28); Notea Fig. 5A, item 220 ("Set Beginning Time-Code"); cf Notea i128 ("A time-code interval is defined as the time elapsing between each two consecutive time- codes. "). Claim 1 requires a processor configured to determine the "time interval between [ 1] the time of capture of the frame being displayed ... when [a] signal is generated and [2] the time of capture of any frame being displayed subsequently," and we agree with the Examiner that Notea's display of the time elapsed subsequent to selection of a beginning time code falls within the broadest reasonable interpretation of that limitation. Contrary to Appellants' arguments, this interpretation is consistent with the plain language of claim 1 and Appellants' Specification, which states that a "time interval" can be the time elapsed subsequent to a flagged incident. Spec. i1 7 ("[F]or example, the time interval ... [can be] between the flagged incident and the [frame capture time] of any frame being shown on the monitor at any given moment."). Accordingly, Appellants have not persuaded us of error in the Examiner's finding that N otea discloses the "time interval" limitations as claimed. Having considered the Examiner's rejections in light of Appellants' arguments and the evidence of record, we are unpersuaded of error and adopt as our own the Examiner's findings, conclusions, and reasoning consistent with the above. See Final Act. 3-8; Ans. 11-13. We sustain the Examiner's rejection of independent claim 1, as well as independent claims 5 Appeal2014-007473 Application 12/658, 186 4, 5, 12, and 14, which were not argued in the Appeal Brief with particularity beyond those arguments advanced for claim 1. 1 See App. Br. 9-21; Reply Br. 4--17. We also sustain the rejections of dependent claims 2, 3, 6-11, 13, and 15-19 which, as Appellants acknowledge, stand or fall with claims 1, 4, 5, 12, and 14. See App. Br. 8. Claim 20 The Examiner takes Official Notice with regard to the limitation "wherein said indicator is a light source," as recited in claim 20. See Final Act. 7. Appellants argue the Examiner's Official Notice is improper because 1 In the Reply Brief, Appellants submit additional arguments for claims 1, 4, 5, 12, and 14, in response to the Examiner's claim-by-claim analysis in the Answer's grounds of rejection. See Reply Br. 13-17; Ans. 5-10. These arguments, which are substantially similar to those advanced in the Appeal Brief, are unpersuasive for the reasons discussed above. To the extent any of the additional arguments are new, however, these arguments are untimely and waived because Appellants do not show "good cause" for failing to present such arguments in Appellants' Appeal Brief so that the Examiner would have had the opportunity to address the arguments in the Examiner's Answer. See 37 C.F.R. Â§ 41.41(b)(2); Ex parte Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative) ("Properly interpreted, the Rules do not require the Board to take up a belated argument that has not been addressed by the Examiner, absent a showing of good cause."). Indeed, we find nothing in the Answer's grounds of rejection that differs from that of the Final Rejection such that new arguments would be necessitated. Compare Ans. 5-10, with Final Act. 3-8. Were we to automatically consider such newly raised arguments, "[r]ather than reviewing a record for error, the Board would be considering, in the first instance, findings of fact proposed by the Appellants, but not weighed by the Examiner [in the Examiner's Answer] against the other evidence of record." Borden, 93 USPQ2d at 1475. 6 Appeal2014-007473 Application 12/658, 186 the Examiner provided no supporting evidence and "a light source to indicate the extent of the time interval"2 is not well known. See App. Br. 21-22. We find Appellants' arguments unpersuasive. First, Appellants merely assert, but do not explain why, the officially noticed fact is not well known. See App. Br. 21-22; MPEP Â§ 2144.03(C) (9th ed. 2015) ("To adequately traverse such a finding, an applicant must specifically point out the supposed errors in the examiner's action, which would include stating why the noticed fact is not considered to be common knowledge or well- known in the art."); 37 CPR 1.11 l(b). Moreover, contrary to Appellants' arguments, we find the Examiner provided sufficient evidence to support the taking of Official Notice. Consistent with the Examiner's findings and the discussion of claim 1 above, Notea's display of a time code on a visualization device teaches "an indicator that is a function of the time interval" as required by claim 20. See Ans. 12-13; Notea Fig. 4, i-fi-126, 28. Further, we agree with the Examiner that although Notea does not explicitly teach "wherein said indicator is a light source," using a light source to indicate data on a monitor (such as Notea's visualization device) was a well- known function in the art. See Ans. 13; Notea i-f 22 (describing a visualization device as a TV screen, LCD screen, CRT monitor, or a 3D console projection table). For example, Notea's TV screen and CRT 2Contrary to Appellants' arguments, the claim limitation at issue is not "a light source to indicate the extent of the time interval," but rather "an indicator that is a function of the time interval," "wherein said indicator is a light source." See App. Br. 23-24 (independent claim 4), 26 (claim 20); contra App. Br. 21-22; Reply Br. 18. We conduct our analysis of claim 20 accordingly. 7 Appeal2014-007473 Application 12/658, 186 monitors produce light and are, therefore, "light source[s]." See Ans. 13. For these reasons, we sustain the Examiner's rejection of claim 20. DECISION The decision of the Examiner to reject 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. Â§ 1.136(a)(l ). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 8