Ex Parte Kavadeles

Patent Trial and Appeal BoardNov 26, 2018

14299689 (P.T.A.B. Nov. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/299,689 06/09/2014 25700 7590 11/28/2018 F ARJ AMI & FARJAMI LLP 26522 LA ALAMEDA A VENUE, SUITE 360 MISSION VIEJO, CA 92691 FIRST NAMED INVENTOR Bill Kavadeles 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. 0230103 3442 EXAMINER BROWN JR, HOW ARDD ART UNIT PAPER NUMBER 2488 NOTIFICATION DATE DELIVERY MODE 11/28/2018 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): docketing@farj ami. com farjamidocketing@yahoo.com ffarj ami @farj ami. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex Parte BILL KA V ADELES Appeal2018-004654 Application 14/299,689 Technology Center 2400 Before ELENI MANTIS-MERCADER, BETH Z. SHAW, and MATTHEW J. McNEILL, Administrative Patent Judges. SHAW, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant seeks our review under 35 U.S.C. Â§ 134(a) of the Examiner's final rejection of claims 1-21. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. INVENTION Appellant's invention is directed to object recognition using image optical digital media processing. Spec. 2: 1-5. 1 Throughout this Decision we have considered the Appeal Brief filed November 29, 2017 ("App. Br."), the Reply Brief filed March 28, 2018 ("Reply Br."), the Specification filed June 9, 2014 ("Spec."), the Examiner's Answer mailed February 22, 2018 ("Ans.") and the Final Rejection mailed August 4, 2017 ("Final Act."). Appeal2018-004654 Application 14/299,689 Claim 1 is illustrative of the claims at issue and reproduced below: and 1. A system comprising: a user device; and a server; the user device configured to: capture a reference optical data using a capturing device; transmit the reference optical data to the server; capture a subsequent optical data using the capturing device; transmit the subsequent optical data to the server; the server configured to: receive the reference optical data from the user device; receive the subsequent optical data from the user device; compare the subsequent optical data to the reference optical data, wherein comparing the subsequent optical data to the reference optical data includes detecting a material object in the reference optical data, identifying the material object, and comparing at least one of a location of the material object and how many of the material object are present in the subsequent optical data to a corresponding at least one of a location of the material object and how many of the material object are present in the reference optical data; and transmit a notification to the user device, the notification including data corresponding to the comparing of the subsequent optical data to the reference optical data. 2 Appeal2018-004654 Application 14/299,689 REJECTIONS The Examiner rejected claims 1-21 under 35 U.S.C. 103 as being unpatentable over Trundle (US 2013/0215266 Al, published Aug. 22, 2013) and Albertson (US 2008/0169929 Al, published July 17, 2008). Final Act. 3. CONTENTIONS AND ANALYSIS We have reviewed Appellant's arguments in the Briefs, the Examiner's obviousness rejections, and the Examiner's response to the Appellant's arguments. Appellant does not proffer sufficient argument or evidence for us to find error in the Examiner's findings. We agree with and adopt the Examiner's findings and conclusions in the Final Action and Answer. The Examiner finds Trundle teaches the majority of Appellant's claimed limitations, and relies on Albertson as teaching identifying the material object. Final Act. 2---6. Appellant argues Trundle does not teach or suggest wherein comparing the subsequent optical data to the reference optical data includes detecting a material object in the reference optical data identifying the material object, and comparing at least one of a location of the material object and how many of the material object are present in the subsequent optical data lo a corresponding at least one of a location of the material object and how many of the material object are present in the reference optical data as recited by independent claim 1. App. Br. 8. Trundle describes image surveillance technology. Trundle explains various embodiments, including "extracting a subset of image data from each of the one or more images captured by [a] camera unit, comparing the 3 Appeal2018-004654 Application 14/299,689 extracted subset of image data from each of the one or more images captured by the camera unit to image data from a reference image captured by the camera unit, and detecting portions of each of the one or more images captured by the camera unit that have a threshold difference from a corresponding portion of the reference image." Trundle ,r 8. Trundle also describes embodiments that analyze image data to determine if it is indicative of relevant physical activity, for example to determine if objects exist in images. Trundle ,r 89. Appellant argues Trundle' s reference image data does not include a material object. App. Br. 9. The Examiner finds, however, that Trundle compares image data with reference image data, which includes a material object. Ans. 14. We agree with the Examiner because Trundle describes "detecting portions of each of the one or more images captured by the camera unit that have a threshold difference from a corresponding portion of the reference image." Trundle ,r 8. Trundle also describes a more specific embodiment where its system analysis "a size and shape of detected objects to determine whether the detected objects are indicative of relevant physical activity." Trundle ,r 90. Trundle's system does this comparison, in some examples, by comparing "the size and shape of the detected objects to a size and shape expected when a person is captured in the one or more images." Id. Thus, Trundle compares a size and shape in an image data with reference image data to determine whether a person is in the captured image. The Examiner explains that material objects, as defined by Appellant's Specification, can include people, which Appellant does not dispute. Ans. 4 Appeal2018-004654 Application 14/299,689 14. Thus, we are not persuaded of error in the Examiner's findings with respect to Trundle. Appellant additionally argues Albertson does not disclose the disputed limitations discussed above (App. Br. 9; Reply Br. 3), but the Examiner relies on Trundle, not Albertson, as teaching those limitations. Appellant makes several arguments that the Examiner improperly combined the cited references. See App. Br. 10-11; Reply Br. 3--4. For example, Appellant argues "the disclosure, by Albertson, of object identification using 3D object recognition technology fails to enable one of ordinary skill in the art to adapt the relatively low technology solution disclosed by Trundle so as to render it capable of identifying an object in both reference and subsequent optical data." App. Br. 10. Appellant argues the Office Action does not articulate with any rational underpinning to support its legal conclusion of obviousness because the Examiner did not sufficiently explain what it means to "provide more specified behavior definitions." Id. at 11; Reply Br. 4. Upon reviewing the record before us, we find that the Examiner's suggestion for the proposed modification in the prior art suffices as an articulated reason with a rational underpinning to establish a prima facie case of obviousness. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007). Not only are Appellant's contentions unsubstantiated by any persuasive evidence on this record, it is well settled that "a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements." In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citations omitted). Nor is the test for obviousness whether a secondary reference's features can be bodily incorporated into the 5 Appeal2018-004654 Application 14/299,689 structure of the primary reference. In re Keller, 642 F.2d 413, 425 (CCPA 1981 ). Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. Id. And here, the Examiner's proposed combination ( of Trundle' s image system and Albertson's object detection) uses prior art elements predictably according to their established functions to yield a predictable result. See KSR, 550 U.S. at 417. Therefore, the Examiner's proposed combination of the cited references is supported by articulated reasoning with some rational underpinning to justify the Examiner's obviousness conclusion. See Final Act. 5-6. Because Appellant has not demonstrated that the Examiner's proffered combination would have been "uniquely challenging or difficult for one of ordinary skill in the art," we agree with the Examiner that the proposed modifications would have been within the purview of the ordinarily skilled artisan. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citingKSR, 550 U.S. at 418). Thus, the Examiner's findings are reasonable and we find no reversible error. Accordingly, for these reasons and for the reasons stated in the Final Rejection and Answer, we sustain the Â§ 103 rejection of claim 1. For the same reasons, we sustain the rejection of independent claims 7 and 14, for which Appellant presents the same arguments as claim 1. For the reasons discussed above, we also sustain the rejections of dependent claims 2---6, 8-13, and 15-21. DECISION The decision of the Examiner to reject claims 1-21 is affirmed. No time period for taking any subsequent action in connection with 6 Appeal2018-004654 Application 14/299,689 this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 7