Ex Parte KIMURADownload PDFPatent Trial and Appeal BoardNov 30, 201814198690 (P.T.A.B. Nov. 30, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/198,690 03/06/2014 Seiji KIMURA 60803 7590 12/03/2018 Paratus Law Group, PLLC 1765 Greensboro Station Place Suite 320 Tysons Corner, VA 22102 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. 1946-0625 9178 EXAMINER PRINGLE-PARKER, JASON A ART UNIT PAPER NUMBER 2618 MAIL DATE DELIVERY MODE 12/03/2018 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 SEIJI KIMURA Appeal 2018-005141 Application 14/198, 690 1 Technology Center 2600 Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and JOHN P. PINKERTON, Administrative Patent Judges. PINKERTON, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1-20 and 23-26, which constitute all the claims pending in this application. Claims 21-22 were cancelled. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm. 1 The real party in interest identified by Appellant is Sony Corporation. App. Br. 3. Appeal 2018-005141 Application 14/198,690 STATEMENT OF THE CASE Introduction Appellant's described and claimed invention relates generally to an image processing apparatus and method of generating a wide-view image considering characteristics of an input image. See Spec. 1: 10-14. 2 Claim 1 is representative and reads as follows (with the disputed limitations emphasized): 1. An image processing apparatus, comprising: a center generation section configured to generate a central image being an image of a central part on a screen by performing scaling processing on an image based on characteristics of the image; a periphery generation section configured to generate a peripheral image by extrapolation of the central image, the peripheral image being a part that is peripheral to the central image and partially overlapping the central image; an extrapolation section configured to identify a level of extrapolation reliability that indicates accuracy of the extrapolation; an adjustment section configured to adjust the peripheral image based on the level of extrapolation reliability; and an image combination section configured to generate a combined image by combining the central image and the peripheral image, the central image being generated by the center generation section, the peripheral image being generated by the periphery generation section, 2 Our Decision refers to the Final Office Action mailed July 12, 2017 ("Final Act."), Appellant's Second Supplemental Appeal Brief filed February 1, 2018 ("App. Br.") and Reply Brief filed April 18, 2018 ("Reply Br."), the Examiner's Answer mailed February 21, 2018, and the original Specification filed March 6, 2014 ("Spec."). 2 Appeal 2018-005141 Application 14/198,690 wherein the center generation section, the periphery generation section, the extrapolation section, the adjustment section, and the image combination section are each implemented via at least one processor. App. Br. 15 (Claims App'x.). Rejection on Appeal Claims 1-20 and 23-26 stand rejected under 35 U.S.C. § 112(a) as failing to comply with the enablement requirement. ANALYSIS We have reviewed the Examiner's rejection in light of Appellant's arguments in the Appeal Brief (see App. Br. 11-13) and the Reply Brief (see Reply Br. 4---6), and are not persuaded the Examiner has erred. Unless otherwise noted, we adopt as our own the findings and reasons set forth by the Examiner in the Office Action from which this appeal is taken (Final Act. 2---6), and in the Examiner's Answer (Ans. 2-9), and we concur with the conclusions reached by the Examiner. For emphasis, we consider and highlight specific arguments as presented in the Appeal Brief and Reply Brief. The "enablement requirement is satisfied when one skilled in the art, after reading the specification, could practice the claimed invention without undue experimentation." AK Steel Corp. v. Sollac, 344 F.3d 1234, 1244 (Fed. Cir. 2003) ( citation omitted). Whether undue experimentation is required is a legal conclusion reached by weighing several underlying factual inquiries. In re Wands, 858 F.2d 731, 736-37 (Fed. Cir. 1988) (holding that whether undue experimentation is required is a "conclusion reached by weighing many factual considerations ... includ[ ing] ( 1) the 3 Appeal 2018-005141 Application 14/198,690 quantity of experimentation necessary, (2) the amount of direction or guidance presented, (3) the presence or absence of working examples, (4) the nature of the invention, ( 5) the state of the prior art, ( 6) the relative skill of those in the art, (7) the predictability or unpredictability of the art, and (8) the breadth of the claims."). With respect to the Wands factors, the Examiner finds: (A) The breadth of the claims[:] The claims are broad in comparison to the actual steps the ordinary artisan would have to undertake to fulfil the generation of an extrapolation reliability value since the claim merely recites an extrapolation section which identifies the value, with no further limitations. (B) The nature of the invention[:] The use of extrapolation in computer graphics is a well-known technique, however it is not known to use an extrapolation reliability. Extrapolation reliability is not a term of art, nor commonly used in the art. A search for "extrapolation reliability" brings up only Applicants own invention, and no other art. (C) The state of the prior art[:] As indicated above, extrapolation reliability is not known in the art, therefore the prior art does not teach how to generate an extrapolation reliability value and map it to a 0-1 value for use with adjusting a peripheral image. (D) The level of one of ordinary skill[:] The skill of the ordinary artisan for computer graphics and image extrapolation is fairly high, with the ordinary artisan holding at least a 4 year degree in computer science, computer engineering, or similar. (E) The level of predictability in the art[:] There are at least some aspects of unpredictability in the art, inasmuch as extrapolation in general is the assumption that existing trends will continue, and a such there is an inherent level of unpredictability compared to a process such as interpolation. With regard to basic image generation and border generation, it 4 Appeal 2018-005141 Application 14/198,690 is a well-known and well-understood area and there is a high predictability. (F) The amount of direction provided by the inventor[:] Minimal, if any, direction is provided by the inventor. As indicated above, no direction is given towards how to determine the reliability value, or how to map it to a 0-1 value. (G) The existence of working examples[:] A working example appears to exist inasmuch as the present specification uses the extrapolation reliability value for numerous purposes related to adjusting the border image. However, examples relate specifically to using the obtained extrapolation reliability value, but not how to obtain the value. (H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure[:] Significant experimentation would be required on the part of the ordinary artisan to develop the extrapolation reliability value and map it to the 0-1 value in order to be able to use it for adjusting images, as neither the prior art nor the present specification provides much guidance on how one would generate these values. Final Act. 5---6 ( emphasis added). Appellant argues that page 19, lines 10-20, of Appellant's Specification provide "explicit support and enablement for identification and utilization of a level of 'extrapolation reliability."' App. Br. 12 (citing Spec. 19: 10-20). Thus, as argued by Appellant, the Examiner's findings are more aptly characterized as allegations that either Appellant's Specification does not provide sufficient examples of how the level or value of extrapolation reliability is determined, or Appellant's claims are too broad with respect to Appellant's Specification, rather than a lack of enablement. 3 See App. Br. 12-13. 3 Appellant also argues the Examiner should have entered the Amendment filed August 21, 2017, as the claim amendments would have overcome the 5 Appeal 2018-005141 Application 14/198,690 We are not persuaded that Appellant has persuasively established error in the Examiner's findings. Instead, we agree with the Examiner's findings regarding the Wands factors. In particular, we agree with the Examiner's findings that Appellant's Specification does not explain how to determine a level of extrapolation reliability (i.e., how reliable or accurate an extrapolation of an image is), or how to map the level of extrapolation to a value within a range ofO to 1. See Final Act. 4--5; see also Spec. 19:10-20. Thus, we agree with the Examiner that the recited subject matter is not enabled because undue experimentation would be required to practice the claimed invention. See Final Act. 6. In Appellants' Reply Brief, Appellant also argued several of the Wands factors actually weigh in favor of enablement, contrary to the Examiner's findings. See Reply Br. 4--5 (citing Spec. 18:18-19:20). Even assuming that Appellant did not waive this argument for failing to explicitly raise the argument in its Appeal Brief, the argument is merely conclusory, and thus, is not persuasive of error. Accordingly, we sustain the Examiner's rejection of claims 1-20 and 23-26 for lack of enablement under 35 U.S.C. § 112(a). enablement rejection. See App. Br. 11. The failure to enter a claim amendment is a petitionable issue, rather than an appealable issue, and Appellant has failed to petition that the rejection be designated a new ground of rejection. See In re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002) ("The refusal of an examiner to enter an amendment after final rejection of claims is a matter of discretion. If there is an abuse of discretion, the matter may be remedied by a Rule 181 petition to the [Director].") ( citations omitted); see also 37 C.F.R. § 1.127 ("From the refusal of the primary examiner to admit an amendment, in whole or part, a petition will lie to the Director under § 1.181."). 6 Appeal 2018-005141 Application 14/198,690 DECISION We affirm the Examiner's rejection of claims 1-20 and 23-26 under 35 U.S.C. § 112(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 7 Copy with citationCopy as parenthetical citation