Ex Parte Jaffe et al

Patent Trial and Appeal Board

Sep 29, 2014

11559660 (P.T.A.B. Sep. 29, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CHARLES JAFFE and ALFRED H. STILLER
____________

Appeal 2012-007576
Application 11/559,660
Technology Center 2600
____________

Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
The Examiner finally rejected claims 1–31 and 33–38. (App. Br. 2).
Claim 32 stands objected to. (Id.). Appellants appeal from the final
rejection under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm-in-part.

INVENTION
This invention relates to "global quantitative characterization of
patterns using fractal analysis." (Title). Claim 1, reproduced below, is
representative of the claimed subject matter:
1. A method for characterization of patterns, comprising the
steps of:
[a] obtaining, in a computer system, a pattern;
[b] performing, in the computer system, a fractal analysis on the
pattern; and
[c] generating, in the computer system, a global quantitative
characterization of the pattern based at least in part upon a
fractal.
(Steps lettered).
REJECTIONS
R1. Claims 1–6, 9–16, 19–28, 30, and 33–38 stand rejected under
35 U.S.C. § 102(b) as anticipated by Su et al. ("Fingerprint Classification
Based on Fractal Analysis," Proc. 5th Int'l Conference on Signal Processing
(WCCC-ICSP 2000), Volume 3, 1471–1474 (Aug. 21–25, 2000)) ("Su").
R2. Claims 7, 17, 29, and 31 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Su and Lin et al. ("Locating the eye in human face
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images using fractal dimensions," IEEE Proc.-Vis. Image Signal Process.,
Vol. 148, No. 6, 413–421 (Dec. 2001)) ("Lin").
R3. Claims 8 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Su and Arneodo et al. ("Characterizing long-range
correction in DNA sequences from wavelet analysis," Physical Review
Letters, American Physical Society, Vol. 74, No. 16, 3293–3296
(Apr. 1995)) ("Arneodo").

RELATED PRIOR DECISION
Appeal No. 2012-003799 (Application No. 11/559,671), mailed
August 29, 2014 (Examiner Affirmed-in-part).
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GROUPING OF CLAIMS
Based on Appellants' arguments, we decide the appeal of:
Rejection of claims: on the basis of representative claim:
R1. 1, 3–6, 9, 10, 12, 14–16, 19, 20,
22, 23, 25, 26, and 33
1
R1. 13 13
R1. 34–37, and 38 34
R1. 2, 11, 21, 24, 27, and 28 individually (Reverse)
R1. 30 individually (Reverse)
R2. 7 and 17 7
R2. 29 and 31 individually (Reverse)
R3. 8 and 18 8
See 37 C.F.R. § 41.37(c)(1)(vii) (2004).1
PRINCIPLES OF LAW
Anticipation "is not an 'ipsissimis verbis' test." In re Bond, 910 F.2d
831, 832–33 (Fed. Cir. 1990) (citing Akzo N.V. v. United States Int'l Trade
Comm'n, 808 F.2d 1471, 1479 n.11 (Fed. Cir. 1986)). "An anticipatory
reference . . . need not duplicate word for word what is in the claims."

1 Appellants filed a Notice of Appeal on September 26, 2011. The date of
filing the Notice of Appeal determines which set of rules applies to an Ex
Parte appeal. If a Notice of Appeal is filed prior to January 23, 2012, then
the 2004 version of the Board Rules last published in the 2011 edition of
Title 37 of the Code of Federal Regulations (37 C.F.R. § 41.1 et seq.) applies
to the appeal. See also Manual of Patent Examining Procedure (MPEP) 8th
ed., Rev. 8, July 2010.
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Standard Havens Prods. v. Gencor Indus., 953 F.2d 1360, 1369 (Fed. Cir.
1991).
ANALYSIS
R1.
R1. CLAIM 1 UNDER §102
Regarding the claim 1 limitation [c] "generating . . . a global
quantitative characterization of the pattern based at least in part upon a
fractal," Appellants contend, "Su [(Section 2, page 1472)] discloses that
images of natural shapes (i.e., fingerprints) may be analyzed using fractal
dimensions, and NOT that the images are fractals." (Reply Br. 3).
Appellants' contentions are unpersuasive because they fail to address
the full disclosure of the reference, as cited by the Examiner (Ans. 5–6, 15–
17). See In re Bond, 910 F.2d at 832–33. Specifically, Su's sub-image
includes a surface intensity that is a "fractal." (Ans. 15–17). The sub-
image's intensity surface is a fractal because the intensity surface along the
ridges is a Fractal Brownian function. (Su p. 1472, right column, last
paragraph; p. 1472, left column, first paragraph, Abstract; see Ans. 17).
Regarding limitation [c], Su's generated character string ("global quantitative
characterization of the pattern") that is "based at least in part upon" the sub-
image's intensity surface ("a fractal") discloses claim 1 limitation [c]. (Id.).
Moreover, we also agree with the Examiner that Su's sub-image of the
fingerprint is a fractal because Su determines the fractal dimensions of the
sub-image including the global directions of the ridges ("fractal"). (Ans. 17;
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Su p. 1473, left column, Section 3.1). Fractal dimensions are an index for
characterizing fractals.2
For these reasons, on this record, we are not persuaded the Examiner
erred. Accordingly, we sustain rejection R1 of representative claim 1, and
the grouped claims rejected under rejection R1 that fall therewith. (See
Grouping of Claims, supra).
R1. CLAIMS 2, 11, 21, 24, 27, AND 28 UNDER §102
Claim 2. The method of claim 1, [a] wherein the global
quantitative characterization of the pattern comprises at least
one scaling parameter associated with a gradation of the fractal,
[b] the at least one scaling parameter expressing a ratio of a
number of points in a portion of the fractal that is
approximately similar to the entire fractal relative to a total
number of points in the fractal.
(Emphasis added).
The Examiner finds:
(3) the at least one scaling parameter expressing a ratio of a
number of points in a portion of the fractal that is
approximately similar to the entire fractal relative to a total
number of points in the fractal, e.g. the number of four (4)
blocks determines a ratio of a number of points in a portion of
the fractal (i.e., 128x128) to a total number of points in the
fractal (i.e., 256x256), See section 3.1, paragraph 5 pg.1473.
(Ans. 18).

2 Balay-Karperien, Audrey, Defining microglial morphology: Form,
Function, and Fractal Dimension, pp. 70-71, Charles Sturt University,
(2004), http://researchoutput.csu.edu.au/R/-?func=dbin-jump-full&object_
id=31797&local_base=GEN01-CSU01, PDF download (last visited
Sept. 24, 2014).

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Appellants contend:
[W]hile Su teaches a sub-image size of 256x256 divided into
four blocks of size 128x128, Su does not disclose or suggest
that the blocks are approximately similar to the entire sub-
image. Even though 1/4 is the ratio of the number of points in a
block of the sub-image to the number of points in the sub-
image, Su does not disclose or suggest that 1/4 is "a ratio of a
number of points in a portion of the [sub-image] that is
approximately similar to the entire [sub-image] relative to a
total number of points in the [sub-image]."
(Reply Br. 5).
Appellants' contentions are persuasive. The Examiner fails to make a
finding that Su discloses limitation [b]. Specifically, the Examiner does not
show how Su determines [b] "a number of points in a portion of the fractal
that is approximately similar to the entire fractal relative to a total number
of points in the fractal." (Ans. 18). The Examiner finds Su includes all
points in a block, not as the claim requires, the "points . . . that [are]
approximately similar to the entire fractal" (Id.).
For these reasons, on this record, we are persuaded the Examiner
erred. Accordingly, we reverse rejection R1 of claim 2, and of claims 11,
21, 24, and 27, which recite commensurate limitations. We also reverse the
rejection of claim 28, which depends from claim 27.
R1. CLAIMS 34, 35, 36, 37, AND 38 UNDER §102
Claim 34. The method of claim 1, wherein the step of
performing the fractal analysis on the pattern further comprises
a step of generating the fractal from the pattern.
Appellants contend: "Su does not disclose or suggest that sub-images
of fingerprints are fractals." (Reply Br. 6).
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Appellants' contentions are unpersuasive because Su generates the
fractal from the pattern by measuring fingerprint sub-image's surface
intensity. (Su p. 1472–1473, section 3.1 feature extraction; Ans. 15, 17–18).
As discussed above in the claim 1 analysis, the sub-image's intensity surface
is a fractal because the intensity surface along the ridges is a Fractal
Brownian function.
Therefore, on this record, we are not persuaded the Examiner erred.
Accordingly, we sustain rejection R1 of representative claim 34, and the
grouped claims rejected under rejection R1 that fall therewith. (See
Grouping of Claims, supra).
R1. CLAIM 13 UNDER §102
Claim 13. The system of claim 10, wherein the pattern
comprises a repeated motif.
Appellants contend, "the Examiner's Answer does not indicate any
teachings of Su (or any other prior art reference) that support an 'assumption'
that there are self-similar structures in fingerprint images . . . ." (Reply
Br. 6).
Appellants' contentions are unpersuasive because Appellants do not
address the full disclosure of Su's fingerprint image (e.g., Fig. 1). (Ans. 21).
Specifically, Su's fingerprint image (e.g., Fig. 1) discloses "a repeated motif"
because Su's fingerprint image comprises at least repeated ridges and
repeated concentric circles or spiral whorls, arches, and loops.
Therefore, on this record, we are not persuaded the Examiner erred.
Accordingly, we sustain rejection R1 of claim 13.

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R1. CLAIM 30 UNDER § 102 AND DEPENDENT CLAIM 31
Claim 30. The system of claim 26, wherein the logic that
performs the fractal analysis of the pattern at the different scales
further comprises logic that performs a random walk through
the pattern to obtain a plurality of sets of data values at each of
the scales.
Appellants contend:
Su does not teach or suggest that the Fractal Brownian Function
"performs a random walk through the pattern" as recited in
claim 30. While the last paragraph on page 1472 of Su states
that "the intensity surface along the ridges is a Fractal Brownian
Function," the Examiner's Answer does not explain how Su
teaches that the Fractal Brownian Function "performs a random
walk through the pattern," as alleged.
(Reply Br. 7–8).
Appellants' contentions are persuasive. We find that the Examiner has
not shown that Su at page 1472 discloses that Su's logic performs a fractal
random walk analysis during the fingerprint classification. (Ans. 27–29).
Therefore, we are persuaded the Examiner erred. We reverse the
rejection R1 of claim 30 and the rejection R2 of claim 31, which depends
therefrom.
R2. CLAIMS 7 AND 17 UNDER §103
Claim 7. The method of claim 5, wherein the pattern comprises
an image of a face of a human being.
Regarding claims 7 and 17, Appellants contend the Examiner's
combination of references is improper because the Examiner has not
explained exactly how Su's specific teachings of fractal analysis and
characterization of fingerprints shapes can be incorporated with Lin's
teaching of using fractal analysis on a human face image. (Reply Br. 9–11).
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Appellants' contentions are unpersuasive because Appellants attack
the references individually, and do not consider the combined teachings and
suggestions of the references.3 The Examiner does not rely upon Su's fractal
analysis and characterization of fingerprint shapes, but upon Su's general
teaching or suggestion of fractal analysis and characterization of a pattern.
(See Ans. 29–30). Lin suggests applying fractal analysis and
characterization to patterns of an image of a human being. Specifically, Lin
teaches analyzing patterns of eyes and corresponding facial regions within
an image of a person. (Lin Abstract; see also Ans. 29–30).
Further, the Examiner provides reasoning with sufficient rational
underpinning for combining the references. (Ans. 11–12, 29–30). We find
the Examiner’s proffered combination of familiar elements would have
yielded predictable results. Specifically, Su's teaches using fractal analysis
on a pattern and generating a characterization of the pattern using a fractal.
We find combining Su's general teachings with Lin's fractal analysis of
patterns from a human face would have yielded predictable results, because
Lin performs a fractal analysis on human facial eye patterns.4 (Ans. 11–12).

3 “The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference . . . . Rather, the test is what the combined teachings of those
references would have suggested to those of ordinary skill in the art.” In
re Keller, 642 F.2d 413, 425 (CCPA 1981). See also In re Sneed, 710 F.2d
1544, 1550 (Fed. Cir. 1983) (“[I]t is not necessary that the inventions of the
references be physically combinable to render obvious the invention under
review.”).
4 “The combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.”
KSR Int'l. Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person of
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Moreover, on this record, we are not persuaded the Examiner’s proffered
combination would have been “uniquely challenging or difficult for one of
ordinary skill in the art.” 5
For these reasons, we are not persuaded the Examiner erred.
Accordingly, we sustain the rejection R2 of claim 7, and of claim 17, which
falls therewith. (See Grouping of Claims, supra).
R2. CLAIM 29 UNDER §103
29. The system of claim 26, [i] wherein global quantitative
characterization system further comprises logic that generates at
least one scaling parameter from the fractal analysis performed
at each respective one of the scales, thereby generating a
plurality of the scaling parameters, [ii] wherein the global
quantitative characterization of the pattern comprises a curve
generated from the scaling parameters.
(Elements labeled; emphasis added).
Regarding claim 29 limitation [ii], the Examiner finds:
Lin teaches that the values plotted in FIG.[]3 are generated by
estimating fractal dimension (see section 2), which means that
the values plotted in FIG. 3 are the same as the directional
fractal dimensions of Su. So, both Su and Lin are intended to
solve the same problem in pattern recognition in images using
fractal analysis.
(Ans. 31).
Appellants contend:
Lin does not disclose or suggest that the values plotted in FIG. 3
are fractal dimensions as alleged, but instead teaches that "The

ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.” Id. at 417.
5 Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007) (citing KSR, 550 U.S. at 418).
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fractal dimension can then be estimated from the least square fit
of log(Nr) against log(1/r)" (see p. 414, sect. 2). In fact, as such
Lin discloses a completely different method for estimating the
fractal dimension than is used in Su. Accordingly, Su in view
of Lin does not disclose or suggest that the alleged global
quantitative characterization (i.e., character string C1C2C3C4)
"comprises a curve generated from the [alleged] scaling
parameters."
(Reply Br. 12).
Appellants' contentions are persuasive. We agree with Appellants Su
teaches "'[t]he fractal dimension can then be estimated from the least square
fit of log(Nr) against log(1/r)' (see p. 414, sect. 2)," not that Lin's values
plotted in the curve (Lin Fig. 3) log(Nr) and log(1/r) correspond to fractal
dimensions ("global quantitative characterization"). (Reply Br. 12; Lin p.
414, sect. 2; Fig. 3).
For these reasons, we are persuaded the Examiner erred. Accordingly,
we reverse rejection R2 of claim 29.
R3. CLAIMS 8 AND 18 UNDER § 103
Claim 8. The system of claim 5, wherein the pattern comprises
the DNA of a human being.
Appellants contend:
While the Examiner's Answer alleges on page 13 that "Arneodo
does teach that the fractal theory can be applied to DNA
sequences analysis," Arneodo does not disclose or suggest that
directional fractal dimensions or the dominant directions (i.e.,
the alleged global quantitative characterization) may be
compared to match images including a sample of DNA. While
DNA can include patterns, they do not include fingerprint
whorls, loops, and arches that are utilized for classification in
Su.
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(Reply Br. 13).
Appellants' contention that Arneodo's teachings cannot be bodily
inserted into Su is unpersuasive. (Id.). Appellants do not address the
combined teachings and suggestions of the references, as relied on by the
Examiner.6 We agree with the Examiner that Arneodo's teaching of
performing fractal analysis on DNA patterns, when combined with Su's
general teaching of performing fractal analysis and global quantitative
characterization on patterns, would have taught or suggested the contested
limitations of claims 8 and 18. Both Su and Arneodo teach their respective
patterns can be analyzed using Fractal Brownian Motion (Arneodo p. 3269,
left column; Su. p. 1472–1437). Further, Su evidences it was well known in
the art to characterize patterns using fractal dimensions. (Su p. 1473).
For these reasons, on this record, we are not persuaded the Examiner
erred. Accordingly, we sustain rejection R3 of claim 8 and of claim 18,
which recites commensurate limitations.
DECISION
We affirm the Examiner's rejection R1 of claims 1, 3–6, 9, 10, 12–16,
19, 20, 22, 23, 25, 26, and 33–38 under § 102.
We reverse the Examiner's rejection R1 of claims 2, 11, 21, 24, 27, 28,
and 30 under § 102.

6 The test of non-obviousness is not whether one reference can be bodily
inserted into another, but, rather, what the references, when considered
together, would suggest to one of ordinary skill in the art, Keller, 642 F.2d at
425, who is a person of ordinary creativity and not an automaton, KSR, 550
U.S. at 421, and whose inferences and creative steps we may consider, id. at
418.
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We affirm the Examiner's rejection R2 of claims 7 and 17 under
§ 103.
We reverse the Examiner's rejection R2 of claims 29 and 31 under
§ 103.
We affirm the Examiner's rejection R3 of claims 8 and 18 under
§ 103.
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 41.50(f).

AFFIRMED-IN-PART

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