Ex Parte Geng

Patent Trial and Appeal Board

Dec 27, 2012

10728393 (P.T.A.B. Dec. 27, 2012)

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.
10/728,393 12/04/2003 Z. Jason Geng 40398-0005 9234
20480 7590 12/27/2012
STEVEN L. NICHOLS
Van Cott, Bagley, Cornwall & McCarthy
36 South State Street
SUITE 1900
SALT LAKE CITY, UT 84111
EXAMINER
PETERSON, CHRISTOPHER K
ART UNIT PAPER NUMBER
2661
MAIL DATE DELIVERY MODE
12/27/2012 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 Z. JASON GENG
____________________

Appeal 2011-002269
Application 10/728,393
Technology Center 2600
____________________

Before THU A. DANG, JAMES R. HUGHES, and
GREGORY J. GONSALVES, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

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I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 32-36, 61, 62, and 65-73 (App. Br. 4). Claims1-31 and 40-59 have
been cancelled and claims37-39 and 60-64 have been withdrawn (id.). We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

A. INVENTION
Appellant’s invention is directed to a high speed three dimensional
(3D) camera includes a monochromatic sensor configured to receive a
reflected light pattern from an object, a plurality of optical pattern filters
configured to capture multiple separate sequential images of the object, and
a computing device configured to combine the sequential images to generate
a single frame image of the object; wherein, the single frame image provides
sufficient information to generate a 3D image of the object (Abstract; Spec.
¶ [0009]).

B. ILLUSTRATIVE CLAIM
Claim 32 is exemplary:
32. A high speed 3D surface imaging camera
comprising:

a light projector for selectively illuminating an object,
said light projector being configured to project three sequential
light beam projections having different colors and different
spatially varying intensity patterns from said projector onto said
object; and

an image sensor configured to receive reflected light
from said object and to generate three separate color image data
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sets based on said three sequential, differently colored, variable
intensity pattern light beam projections, said three separate
color image data sets providing said 3D image data of said
object.

C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Hasegawa US 5,014,121 May 7, 1991
Yukhin US 2003/0235335 A1 Dec. 25, 2003

Claims 32-36, 61, 62, and 65-72 stands rejected under 35 U.S.C.
§ 102(e) as being anticipated by Yukhin.
Claim 73 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yukhin in view of Hasegawa.

II. ISSUE
The dispositive issue before us is whether the Examiner has erred in
determining that Yukhin teaches a “light projector being configured to
project three sequential light beam projections having different colors and
different spatially varying intensity patterns from said projector onto said
object” (claim 32, emphasis added).
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III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Yukhin
1. Yukhin discloses a wide area security system having a 3D data
collection method of capturing objects or persons including light sources
510A-510N project light of similar spectral ranges and spatial light
modulators (SLM) 515A-515N which act as spectral filters of different
spectral ranges, such that light from one to N spectral ranges is projected on
object 560 from the exemplary illuminating unit (¶ [0062]).
2. “Illuminating unit 401 may be any suitable light emitting device
such as, for example, laser, light-emitting diode (‘LED’), inert gas lamp,
incandescent lamp or other working in visible, ultraviolet or infrared range”
(¶ [0053]). A control unit 402 transmits timing and control signals to the
illuminating unit 401 to control temporal functions of the light transmitted,
such as the length of time or frequency of the illumination (¶ [0054]).
3. Composite “3D images are formed using structured
illumination using N different sources of optical radiation, each of a
different radiation spectral range, and N photodetectors, each of which has
an area of spectral sensitivity conterminous to a radiation spectral range of
one of the N radiation sources” (¶ [0043]).
4. Detectors 642A-642N may be one or more of, for example,
Charge Coupled Devices (CCDs), Complementary Metal-Oxide
Semiconductor (CMOSs), or any other suitable sensor array detecting device
(¶ [0068]).
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5. A multi-channel detection system for acquiring and processing
3D images may include a main lens 610, a beam splitter 615, lenses 620A-
620N, detectors 642A-642N, analog-to-digital converters (ADC) 644A-
644N, signal processors 660A-660N and memory 680 (¶¶ [0066] and
[0068]).
Hasegawa
6. Hasegawa discloses an image pickup system with an
illuminating device capable of sequentially irradiating three kinds of color
lights different from each other onto an object, an objective lens system
forming images of the object with the color lights, a solid-state image sensor
receiving the images of the object, and a signal processing device producing
individual color images of the object based on electric signals supplied from
the solid-state image sensor (Abstract). The image pickup device includes a
filter disc 8 that transmits only Red (R), Green (G), and Blue (B) light (col.
5, l. 65- col. 6, l.2).

IV. ANALYSIS
Claim 32, 33, 35, 36, 61, and 65-72
Appellant contends that “Yukhin teaches using a light source in each
of the ultraviolet, visible and infra-red spectra, not three different colors as
claimed” (App. Br. 9-10). Appellant further argues that “Yukhin never
teaches or suggests the claimed light projector that projects the light beams
sequentially” (App. Br. 10).
However, the Examiner finds that “Yukhin reference teaches: one or
more light source 510A-510N can generate light of a different spectral
range, for example, ranges of the ultraviolet, visible and infra-red spectra of
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electromagnetic radiation” (Ans. 13). The Examiner finds further that the
“Yukhin reference teaches the control unit 402 may also control temporal
functions, such as the length of time or frequency of the illumination” (Ans.
15) (emphasis omitted).
We give the claim its broadest reasonable interpretation consistent
with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). Claim 32 does not place any limitation on the “light projector” other
than having a certain “configur[ation].” We, however, find that “light
projector being configured to project” (claim 32) (emphasis added) merely
represents an intended use of the light projector. That is, such “being
configured to” language merely represents a statement of intended use of the
light projector. An intended use will not limit the scope of the claim because
it merely defines a context in which the invention operates. Boehringer
Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345
(Fed. Cir. 2003).
Thus, we give “light projector being configured to project three
sequential light beam projections having different colors” its broadest
reasonable interpretation as the light projector is capable of sequentially
projecting light beams, as consistent with the Specification and claim 32.
Yukhin discloses a wide area security system having light sources that
project light of similar spectral ranges and spatial light modulators that
project light from one to a plurality of spectral ranges; wherein, composite
3D images are formed by summing illuminated projections of differing
radiation spectral range (FF 1 and 3). A control unit transmits timing and
control signals to control the time or frequency of illumination for each
projection from an illuminating unit (FF 2). We find that the light sources
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comprise a light projector that projects beams of different colors. We also
find that the light source of Yukhin is capable of projecting these beams
sequentially since the control unit has the capability of controlling the time
and frequency of each projection. That is, we find that Yukhin’s system
comprises a “light projector being configured to project three sequential
light beam projections having different colors and different spatially varying
intensity patterns from said projector onto said object” (claim 32).
Accordingly, we find that Appellant has not shown that the Examiner
erred in rejecting claim 32 under 35 U.S.C. § 102(e) over Yukhin. Further,
independent claim 65 having similar claim language and claims 33, 35, 36,
61, and 66-72 (depending from claims 32 and 65) which Appellant raises
similar arguments, fall with claim 32.
Claim 34
Appellant contends that “Yukhin teaches light sources operating in
three different spectral ranges, i.e., ultraviolet, visible and infrared” which
“clearly teaches away from the claimed ‘3 CCD monochromatic sensors’”
(App. Br. 14).
After reviewing the record on appeal, we agree with Appellant.
Though we agree with the Examiner that Yukhin does disclose the use of
CCDs as detecting devices (FF 4), we cannot find any teaching in the
Examiner’s recited portion of Yukhin of a “said plurality of CCD sensors
comprises 3 CCD monochromatic sensors” as required by claim 34. That is,
although Yukhin disclose the use of CCDs, there is no mention of whether
the CCDs are monochromatic sensors in Yukhin.
Accordingly, we find that Appellant has shown that the Examiner
erred in rejecting claim 34 under 35 U.S.C. § 102(e) over Yukhin.
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Claim 62
Appellant contends that “[a] beam splitter is not a narrow-band
spectral filter” and “[a] single beam splitter is not three separate narrow-
band spectral filters” (App. Br. 16).
After reviewing the record on appeal, we agree with Appellant.
Though we agree with the Examiner that Yukhin does disclose the use of a
beam splitter (a dichroic mirrored prism assembly which uses dichroic
optical coatings to split the incoming light into three beams) (FF 4, Ans. 18),
we cannot find any teaching in the Examiner’s recited portion of Yukhin of a
“a matched narrow-band spectral filter” as required by claim 62. That is,
although Yukhin discloses the use of a beam splitter, there is no mention of a
narrow-band spectral filter in Yukhin or any teaching that discloses that a
beam splitter comprises a narrow-band spectral filter.
Accordingly, we find that Appellant has shown that the Examiner
erred in rejecting claim 62 under 35 U.S.C. § 102(e) over Yukhin.
Claim 73
Appellant contends that since “Hasegawa exclusively teaches a
method of producing a 2D image,” “one skilled in the art [would not be
motivated to] apply the teachings of Hasegawa for producing 2D images to
the teachings of Yukhin” (App. Br. 17).
However, the Examiner finds that “[Hasegawa] reference was used to
teach only an illumination unit which provided visible light spectrum only”
and “Yukhin provides the system to form a 3D image” (Ans. 21).
Although claim 73 claims a “3D imaging camera” in the preamble,
“[w]hether to treat a preamble term as a claim limitation is ‘determined on
the facts of each case in light of the claim as a whole and the invention
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described in the patent.’” Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d
823, 831 (Fed. Cir. 2003) (citation omitted). The Court of Appeals for the
Federal Circuit has held generally that “the preamble does not limit the
claims.” Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1346
(Fed. Cir. 2002) (citation omitted).
We do not find that the body of the claim depends on the preamble
for completeness; since the preamble does not provide more than just “a
descriptive name to the set of limitations in the body of the claim that
completely set forth the invention.” IMS Tech., Inc. v. Haas Automation,
Inc., 206 F.3d 1422, 1434 (Fed. Cir. 2000). Therefore, we find that the
preamble has no separate limiting effect.
Hasegawa discloses an image pickup system with an illuminating
device capable of sequentially irradiating three kinds of color lights different
from each other onto an object (FF 6). We find that the image pickup
system sequentially projects three different color light beams within the
visible spectrum. That is, we find that Hasegawa’s image pickup system
comprises a “light projector [that] is configured to project three sequential
light beam projections each of a different color within the visible spectrum”
(claim 73).
We also agree with the Examiner’s explicit motivation that combining
the references would be obvious since “provid[ing] [the] filter disk as taught
by Hasegawa to the illuminating unit of Yukhin … provide[s] an image
pickup device which eliminates degradation of the integrated color image
brought about by chromatic aberration of the images for the respective
colors” (Ans. 12). The Supreme Court has stated that “[t]he combination of
familiar elements according to known methods is likely to be obvious when
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it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 416 (2007).
Thus, we find no error in the Examiner’s finding that the combination
of Yukhin’s camera system (including a 3D data collection method) with the
image pickup system sequentially projects three different color light beams
within the visible spectrum, as disclosed in Hasegawa, produces a 3D
camera system that sequentially projects three different color light beams
within the visible spectrum which would be obvious (Ans. 21; FF 1 and 4).
Accordingly, we find that Appellant has not shown that the Examiner
erred in rejecting claim 73 under 35 U.S.C. § 103(a) over Yukhin in view of
Hasegawa.

V. CONCLUSION AND DECISION
The Examiner’s rejection of claims 32, 33, 35, 36, 61, and 65-72
under 35 U.S.C. § 102(e) and claims 73 under 35 U.S.C. § 103(a) is
affirmed. The Examiner’s rejection of claims 34 and 62 under 35 U.S.C.
§ 102(e) is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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