Ex Parte Gallup et al

Patent Trial and Appeal BoardSep 21, 2018

14278471 (P.T.A.B. Sep. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/278,471 05/15/2014 78792 7590 09/25/2018 GOOGLE Lerner, David, Littenberg, Krumholz & Mentlik, LLP 600 South Avenue West Westfield, NJ 07090 David Gallup 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. GOOGLE 3.0F-1157 CON 9384 (E) EXAMINER AN,SHAWNS ART UNIT PAPER NUMBER 2483 NOTIFICATION DATE DELIVERY MODE 09/25/2018 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): eOfficeAction@ldlkm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID GALLUP, FU YU, and STEVEN MAXWELL SEITZ Appeal2017-001865 1 Application 14/278,471 2 Technology Center 2400 Before JOHN A. EVANS, LARRY J. HUME, and JOHN D. HAMANN, Administrative Patent Judges. HAMANN, Administrative Patent Judge. DECISION ON APPEAL Appellants file this appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1, 2, 4--9, 11-16, and 18-23. We have jurisdiction under 35 U.S.C. Â§ 6(b). We heard oral arguments on September 13, 2018. A transcript of the hearing will be added to the record in due course. We affirm. 1 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed July 8, 2016), Reply Brief ("Reply Br.," filed Nov. 16, 2016), and Specification ("Spec.," filed May 15, 2014), as well as the Examiner's Answer ("Ans.," mailed Sept. 21, 2016), Advisory Action ("Adv. Act.," mailed Mar. 10, 2016), and the Final Office Action ("Final Act.," mailed Dec. 23, 2015). 2 According to Appellants, the real party in interest is Google Inc. App. Br. 1. Appeal2017-001865 Application 14/278,471 THE CLAIMED INVENTION Appellants' claimed invention "relate[s] generally to generating depth [map] data from a video." See Abstract. Claim 1 is illustrative of the subject matter of the appeal and is reproduced below. 1. A computer-implemented method for generating depth maps compnsmg: capturing, by one or more computing devices having one or more processors, a plurality of image frames; tracking, by the one or more computing devices, features between a first image frame of the plurality of image frames and each of the other image frames of the plurality of image frames; generating, by the one or more computing devices, a set of 3D points corresponding to the tracked features using a set of assumptions, the set of assumptions including an initial assumption that each image frame of the plurality of image frames was captured by a camera having at a same location and same orientation; after capturing the plurality of image frames, receiving an input initiated by a user, via the one or more computing devices, to capture another image; and generating, by the one or more computing devices, a depth map for the another image based at least in part on the set of 3D points. REJECTIONS ON APPEAL ( 1) The Examiner rejected claims 1, 5, 8, 12, 15, and 18 under 35 U.S.C. Â§ 103 as being unpatentable over the combination of Zhao et al. (US 2007 /0031064 Al; published Feb. 8, 2007) (hereinafter "Zhao") and Morgan-Mar et al. (US 2013/0063566 Al; published Mar. 14, 2013) (hereinafter "Morgan-Mar"). Final Act. 2--4. (2) The Examiner rejected claims 2, 9, and 16 under 35 U.S.C. Â§ 103 as being unpatentable over the combination of Zhao, Morgan-Mar, 2 Appeal2017-001865 Application 14/278,471 and Grossmann et al. (US 2014/0064607 Al; published Mar. 6, 2014) (hereinafter "Grossmann"). Final Act. 4--5. (3) The Examiner rejected claims 4 and 11 under 35 U.S.C. Â§ 103 as being unpatentable over the combination of Zhao, Morgan-Mar, and Zitnick, III et al. (US 2005/0286758 Al; published Dec. 29, 2005) (hereinafter "Zitnick"). Final Act. 5. (4) The Examiner rejected claims 6, 7, 13, 14, 19, and 20 under 35 U.S.C. Â§ 103 as being unpatentable over the combination of Zhao, Morgan-Mar, and Taniguchi et al. (US 2004/0058715 Al; published Mar. 25, 2004) (hereinafter "Taniguchi"). Final Act. 5---6. (5) The Examiner rejected claims 21-23 under 35 U.S.C. Â§ 103 as being unpatentable over the combination of Zhao, Morgan-Mar, and Jin (US 8,934,677 B2; issued Jan. 13, 2015) (hereinafter "Jin"). Final Act. 6-7. ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' contentions the Examiner erred. We disagree with Appellants' contentions for the reasons discussed below. (1) After Capturing the Plurality o(Image Frames Claim 1 recites (i) "capturing ... a plurality of image frames," (ii) "tracking ... features between a first image frame of the plurality of image frames and each of the other image frames of the plurality of image frames," and (iii) "generating ... a set of 3D points corresponding to the tracked features." App. Br. 9. Appellants argue that the combination of Zhao and Morgan-Mar fails to teach or suggest the next element in claim 1 (i.e., "after capturing the plurality of image frames, receiving an input 3 Appeal2017-001865 Application 14/278,471 initiated by a user ... to capture another image"). See App. Br. 5---6; Reply Br. 2-3. Appellants argue Zhao teaches "generat[ing] a depth map of a scene from [a] video sequence, and then convert[ing] that depth map into [a] three- dimensional point cloud." Id. at 5 (citing Zhao ,r,r 34--35). As to Morgan- Mar, Appellants argue that it teaches "that a single input from a user causes the capture of multiple images, which images are then used to create a depth map." Id. at 6 (citing Morgan-Mar ,r 124). Appellants contend that "[a]t best, the combination of Morgan-Mar with Zhao might lead to the user input disclosed in Morgan-Mar being used to initiate a video sequence from which Zhao discloses generating a depth map," rather than teaching claim 1. Id. In addition, Appellants argue that to the extent "Morgan-Mar's input initiated by a user can be an additional way of capturing another image frame in the video processing system of Zhao," "it is not clear what kind of system the resulting combination would be." Reply Br. 2. In particular, Appellants argue that "there are no images captured in Morgan-Mar before the user depresses the capture button, so the images captured in response to depressing the capture button cannot be characterized as ( and would not be considered by a person having ordinary skill in the art to be) 'another image."' Reply Br. 3. Nor is there anything in the combination "that would suggest generating depth maps for the images captured by the user based on data from image frames that were captured before the user's request to capture those images," according to Appellants. Reply Br. 3; see also App. Br. 6. The Examiner finds that the combination of Zhao and Morgan-Mar teaches or suggests the disputed limitation. See Final Act. 3--4; Ans. 8-10. 4 Appeal2017-001865 Application 14/278,471 The Examiner finds that Zhao teaches capturing a plurality of image frames via Zhao' s teaching of video processor 106 ( and its associated video processing software 116) processing a sequence of two-dimensional images from a video camera. Ans. 8 ( citing Zhao Fig. 1 ); Final Act. 2-3 ( citing Zhao ,r 26, Fig. 1 ). The Examiner finds that Zhao teaches after capturing the plurality of image frames (i.e., a first portion of the sequence, such as the images used to estimate camera pose), "further receiving an input initiated by the video processor (106) to capture another image" (i.e., an image from the sequence after the first portion of the sequence, such as an image used for motion stereo computations). Ans. 9 ( citing Zhao ,r,r 26-27, 30, Figs. 2-3); see also Final Act. 3 ( citing Zhao ,r 27, Figs. 2-3). In other words, Zhao "discloses receiving the input initiated by the video processor as opposed to a user," for the "another image." Id. The Examiner finds Morgan-Mar teaches "a user capturing the another image as opposed to the video processor (106) capturing the another image." Id. More specifically, the Examiner finds that Morgan-Mar teaches "receiving an input initiated by a user ... to capture a plurality of images ( which clearly includes [the] recited another image)." Id. (citing Morgan-Mar ,r 124, Fig. 14A). The Examiner finds that these combined teachings of Zhao and Morgan-Mar (i.e., substituting Morgan-Mar's user initiated image capture for Zhao's processor capture for the "another image") teach or suggest the disputed limitation. See Ans. 9-10; see also Final Act. 4. We agree with the Examiner's findings and adopt them as our own. For example, we agree that Zhao teaches capturing a sequence of images, such as those images used for estimating camera pose. See Zhao ,r 26, Fig. 1. Zhao also teaches that its video processor captures another image, 5 Appeal2017-001865 Application 14/278,471 such as an image used for motion stereo computations. See Zhao ,r,r 26-27, 30, Figs. 2-3. When combining these teachings with Morgan-Mar's teaching of a user initiating image capture, the combination teaches or suggests capturing Zhao' s "another image" by having a user initiate the capture. See Morgan-Mar ,r 124, Fig. 14A; Zhao ,r,r 26-27, 30, Figs. 1-3. We are not persuaded by Appellants' arguments that suggest the Examiner's combination requires bodily incorporation of Morgan-Mar's user initiated capture of all images in lieu of Zhao' s video processor initiated image capture. See In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) ("It is well-established that a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements.") (citing In re Keller, 642 F.2d 413,425 (CCPA 1981) ("The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference.")). The Examiner relies on Morgan-Mar only for its teaching of a user initiating an image capture for the "another image." We also are not persuaded by Appellants' argument (Reply Br. 3) that there is nothing in Zhao or Morgan-Mar that teaches or suggests "generating depth maps for the images captured by the user based on data from image frames that were captured before the user's request to capture those images." The Examiner (see Final Act. 3; Ans. 8-9) clearly finds that Zhao' s teaching of using earlier images to estimate the camera pose teaches or suggests this generating limitation. Appellants do not provide a substantive response as to why they contend that this teaching from Zhao does not teach the generating limitation. See 37 C.F.R. Â§ 4I.37(c)(l)(iv); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that "the Board 6 Appeal2017-001865 Application 14/278,471 reasonably interpreted Rule 41.3 7 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art"). (2) Combining Zhao and Morgan-Mar The Examiner finds that one of ordinary skill in the art would have employed, as an alternative arrangement, capturing the "another image" by using user input, so as to provide improved accuracy, greater tolerance to image mis-alignment, better tolerance to image exposure, improved tolerance to imaging noise, improved tolerance to differences of object texture in the image, and faster calculation speed. See Ans. 10. We find the Examiner provides "articulated reasoning with some rational underpinning to support the legal conclusion of obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). Using user input to select the "another image" in lieu of processor selection is a predictable design variation that would have been obvious to one of ordinary skill in the art. See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) ("When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, Â§ 103 likely bars its patentability. "). Furthermore, Morgan-Mar's paragraph 124 does not criticize, discredit, or otherwise discourage using other means for image capture in lieu of user initiated capture, and thus, does not teach away from the Examiner's findings. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) ("The prior art's mere disclosure of more than one alternative does not constitute a teaching away from any of the[] [ disclosed] alternatives because such disclosure does not criticize, discredit, or otherwise discourage 7 Appeal2017-001865 Application 14/278,471 the solution claimed .... "). In addition, Appellants focus on Morgan-Mar's teachings rather than Zhao' s teachings - Zhao is the reference being modified. We also are not persuaded by Appellants' arguments (see App. Br. 6-7) that the Examiner's rationale "ha[ s] nothing to do with the purported obviousness of performing certain actions before receiving a user request for the capture of an image, as indeed Morgan-Mar does not teach that concept." Again, the Examiner relies on Morgan-Mar only to teach having a user initiate a selection of an image for capture (i.e., the "another image") and not all images of the video sequence. See supra Section 1. Accordingly, we are not persuaded by Appellants' arguments that the Examiner errs. CONCLUSION Based on our reasoning above, we sustain the Examiner's Â§ 103 rejection of independent claim 1, as well as independent claims 8 and 15, and dependent claims 5, 12, and 18, as Appellants do not provide separate arguments for their patentability. We also sustain the Examiner's rejection of dependent claims (i) 2, 9, and 16; (ii) 4 and 11; (iii) 6, 7, 13, 14, 19, and 20; and (iv) 21-23, as Appellants do not provide separate arguments for their patentability. DECISION We affirm the Examiner's decision rejecting claims 1, 2, 4--9, 11-16, and 18-23. 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 8