Ex Parte Hubel et al

Patent Trial and Appeal BoardSep 26, 2012

10119795 (P.T.A.B. Sep. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte PAUL HUBEL, GRAHAM D. FINLAYSON, and STEVEN D. HORDLEY ____________________ Appeal 2009-013639 Application 10/119,795 Technology Center 2600 ____________________ Before ERIC S. FRAHM, TREVOR M. JEFFERSON, and MICHAEL J. STRAUSS, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-013639 Application 10/119,795 2 STATEMENT OF THE CASE Introduction Appellants appeal under 35 U.S.C. § 134 from a final rejection of claims 1-12, 14-23, and 25-34.1 The Supplemental Appeal Brief filed August 22, 2007 unambiguously states that only claims 1, 3, 4, 8, 20, 22, 23, and 32-34 are being appealed (Suppl. App. Br. 2). However, Appellants present arguments with respect to claims 1, 3, 4, 8, 18, 20-22, 30, and 32-34 on appeal (see App. Br. 5-8; Reply Br. 1-3). Accordingly, we confine our decision to claims 1, 3, 4, 8, 18, 20-22, 30, and 32-34 which have been separately argued. See In re Ghuman, 88 USPQ2d 1478 (BPAI 2008) (precedential). Following our decision, the Examiner should cancel non- appealed claims 2, 5-7, 9-12, 14-17, 19, 23, 25-29, and 31. See id.; see also Manual of Patent Examining Procedure (MPEP) § 1215.03, Rev. 8, July 2010. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.2 Exemplary Claim Exemplary independent claim 1 under appeal, with emphasis added, reads as follows: 1. A method of determining the white point of scene illumination, the method comprising using a chromaticity histogram that is weighted for brightness. 1 Claims 13 and 24 have been objected to as being dependent upon a rejected base claim, but allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims (see Final Rej. 9; Ans. 8). 2 Throughout our decision, we refer to the Appeal Brief filed June 14, 2006 (“App. Br.”), Reply Brief filed October 2, 2006 (“Reply Br.”), and the Examiner’s Answer mailed January 18, 2008 (“Ans.”). Appeal 2009-013639 Application 10/119,795 3 Rejection The Examiner rejected claims 1-12, 18-23, and 29-34 under 35 U.S.C. § 102(e) over Cooper (US 2003/0035156 A1; filed Aug. 13, 2002 and claiming priority to provisional application No. 60/312,626 filed Aug. 15, 2001). Ans. 3-6.3 Appellants’ Contentions (1) Appellants contend, inter alia (App. Br. 5-7; Reply Br. 1-3), that Cooper fails to disclose using a chromaticity histogram that is weighted for brightness as recited in claim 1, and similarly recited in claims 18 and 30. (2) With regard to claims 3, 20, and 32, Appellants contend (App. Br. 7) that Cooper fails to teach that each entry in a chromaticity histogram represents a likelihood that an associated chromaticity corresponds to a white surface. (3) With regard to claims 4, 21, 22, and 33, Appellants contend (App. Br. 8) that Cooper fails to teach histogram entries as a function of brightness. (4) With regard to claims 8, 22, and 34, Appellants also contend (App. Br. 8) that Cooper does not compute weights for histogram entries, and that Cooper’s luminance range is global and not local, since Cooper simply computes a luminance range for an entire bin. Issue on Appeal Did the Examiner err in rejecting claims 1, 3, 4, 8, 18, 20-22, 30, and 32-34 as being anticipated because Cooper fails to disclose using a 3 Separate patentability is only argued for claims 1, 3, 4, 8, 18, 20-22, 30, and 32-34 (see App. Br. 5-8; Reply Br. 1-3). As discussed supra, we confine our decision to claims 1, 3, 4, 8, 18, 20-22, 30, and 32-34. Appeal 2009-013639 Application 10/119,795 4 chromaticity histogram that is weighted for brightness as recited in claim 1, and similarly recited in claims 18 and 30? ANALYSIS4 We agree with Appellants’ contentions (1) through (4) specifically set forth above. While Cooper discloses (i) identifying a scene illuminant (¶ [0027]), (ii) calculating a chromaticity vector 634 (as shown in Fig. 6) for each selected pixel (see ¶¶ [0042]-[0045]), (iii) using color manager 416 to calculate a histogram 710 (¶ [0076]), and (iv) using color manager 416 to compare neutral core (NC) vectors 814 and reference vectors 818(a) and 818(b) to determine the reference vector 818 that most corresponds to the scene illuminant (¶¶ [0061]-[0063]; Fig. 8), Cooper is silent with respect to using a chromaticity histogram that is weighted for brightness to determine a white point of scene illumination. Cooper fails to describe calculating a histogram based on brightness, and the Examiner fails to provide persuasive 4 We note that Cooper has a filing date of August 13, 2002 and claims priority to Provisional application No. 60/312,626 filed August 15, 2001. Therefore, even if we were to consider Cooper as disclosing determining the white point of scene illumination using a chromaticity histogram that is weighted for brightness as recited in claims 1, 18, and 30, Cooper’s Provisional application must provide written description support for the subject matter for which it is relied upon. Our close review of the Provisional application filed August 15, 2001 reveals that while various scene illuminants (e.g., D50, D65, Cool White fluorescent, Horizon daylight, U30 fluorescent, and incandescent A) are identified using a histogram (see p. 8 of Provisional application No. 60/312,626), the principal algorithm and basic workflow shown in Figure 2 on computes a two dimensional histogram for each pixel (Fig. 2, flow chart box labeled “Compute 2D color histogram for accepted core pixels”). Thus, Cooper’s Provisional application supports using a chromaticity histogram weighted by chroma values a* and b*, but not for brightness. Appeal 2009-013639 Application 10/119,795 5 evidence or argument in support of how the cited language would have been understood by one of ordinary skill in the art to disclose calculating a histogram based on brightness. Because we agree with Appellants’ arguments that Cooper, applied by the Examiner as an anticipatory reference, fails to disclose using a chromaticity histogram that is weighted for brightness to determine a white point of scene illumination as recited in claim 1, we will not sustain the Examiner’s anticipation rejection of independent claim 1. For similar reasons, we will not sustain the Examiner’s anticipation rejection of claims 18 and 30, as well as claims 3, 4, 8, 20-22, and 32-34 which ultimately depend from claims 1, 18, and 30, respectively. CONCLUSIONS (1) Appellants have established that the Examiner erred in rejecting claims 1, 3, 4, 8, 18, 20-22, 30, and 32-34 as being unpatentable under 35 U.S.C. § 102(e). (2) On this record, claims 1, 3, 4, 8, 18, 20-22, 30, and 32-34 have not been shown to be unpatentable. Appeal 2009-013639 Application 10/119,795 6 DECISION5 The Examiner's rejections of claims 1, 3, 4, 8, 18, 20-22, 30, and 32- 34 is reversed. REVERSED msc 5 The Patent Trial and Appeal Board is a review body, rather than a place of initial examination. We leave to the Examiner to consider the appropriateness of further rejections under 35 U.S.C. § 103(a) over the cited reference applied in combination with additional references. We note that Fuss (US 5,581,370; Dec. 3, 1996) discloses creation of a histogram based on a white point (see Abs.; col. 3, ll. 42-52); Trajkovic (US 2002/0176001 A1; March 11, 2001) shows creating a composite histogram from color hue, saturation, and gray intensity characteristics that relies upon an intensity characteristic (Fig. 3; see also ¶¶[0020] and [0022]); and Hubel (US 7,200,264 B2) filed by the same inventive entity as the instant application on appeal discloses creating a chromaticity histogram based on the probability of being a white point of scene illumination (see claim 1; Fig. 1).