Ex Parte Leroy

Patent Trial and Appeal Board

Jan 25, 2018

12613613 (P.T.A.B. Jan. 25, 2018)

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.
12/613,613 11/06/2009 Luc Leroy 58083/394891 (B1116) 6684
72058 7590 01/29/2018
Kilpatrick Townsend & Stockton LLP
Adobe Systems, Inc. 58083
Mailstop: IP Docketing - 22
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
EXAMINER
PATEL, NEHA
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
01/29/2018 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):
ipefiling@kilpatricktownsend.com
KT S Docketing2 @ kilpatrick. foundationip .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LUC LEROY
Appeal 2016-007652
Application 12/613,613
Technology Center 3600
Before MICHAEL J. STRAUSS, JON M. JURGOVAN, and
AARON W. MOORE, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-007652
Application 12/613,613
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-10, 12-18, and 20-27. Claims 11 and 19 have been cancelled. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The claims are directed to compression of a collection of images using
pattern separation and re-organization. Spec., Title. Claim 1, reproduced
below with argued limitations emphasized in italics, is illustrative of the
claimed subject matter:
1. A computer-implemented method to perform
preprocessing, compression, and archiving of a collection of
digital image files, the method comprising:
with a processor, receiving a plurality of digital image
files from a collection of digital image files;
in response to receiving the digital image files, extracting
blocks, with the processor, from each of the digital image files,
wherein each block comprises a subset of the pixels of the
respective image file;
analyzing, with the processor, each of the blocks to
determine a corresponding frequency of pixel data variation for
each of the blocks;
creating, with the processor, a plurality of new digital
image files each comprising a plurality of the blocks extracted
from at least two of the received digital image files, wherein the
blocks selected for each particular new digital image file are
those of the blocks with substantially similar frequencies of
pixel variation;
identifying, with the processor, a level of image
compression to apply to each particular new digital image file
such that the level of image compression is substantially
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optimized for the frequencies of pixel data variation of the
blocks in the particular new digital image file;
compressing, with the processor, each particular new
digital image file using the level of image compression
identified to apply to the particular new digital image file; and
with the processor, creating an image archive comprising
the plurality of compressed new digital image files and storing
the image archive to a memory.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Ostrovsky US 6,128,406
deQueiroz US 6,373,981 B1
Yeung US 2010/0104221 A1
Gu US 7,865,479 B2
REJECTIONS
The Examiner made the following rejections:
Claims 1-10, 12-18, and 20-27 stand rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite. Final Act. 2.
Claims 1-9, 12-18, 20, and 22-27 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Gu and de Queiroz. Id. at 3-18.
Claim 10 stands rejected 35 U.S.C. § 103(a) as being unpatentable
over Gu, de Queiroz, and Ostrovsky. Id. at 18-19.
Claim 21 stands rejected 35 U.S.C. § 103(a) as being unpatentable
over Gu and Yeung. Id. at 19-21.
Oct. 3, 2000
Apr. 16, 2002
Apr. 29, 2010
Jan. 4,2011
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Application 12/613,613
ANALYSIS
35 U.S.C. § 112, second paragraph
Appellant requests “the Board [remand] this application to the
[EJxaminer with instruction to enter the previously presented amendments
that the [EJxaminer has already agreed would overcome the § 112
rejections.” App. Br. 16. We take this opportunity to direct Appellant’s
attention to MPEP § 1201, which states:
The line of demarcation between appealable matters for the
Board [of Patent Appeals and Interferences (“Board”)]
and petitionable matters for the Director of the U.S. Patent and
Trademark Office (Director) should be carefully observed. The
Board will not ordinarily hear a question that should be decided
by the Director on petition, and the Director will not ordinarily
entertain a petition where the question presented is a matter
appealable to the Board.
In the present case, it appears Appellant has not filed a petition to
resolve the Examiner’s refusal to enter proposed amendments prior to the
matter reaching the Board. The Examiner’s refusal to enter an amendment is
reviewable by petition under 37 C.F.R. § 1.181 and, thus, not within the
jurisdiction of the Board. 37 C.F.R. § 1.127 (2009); In re Mindick, 371 F.2d
892, 894 (CCPA 1967) (holding that the refusal of an Examiner to enter an
amendment after final rejection of claims is a matter of discretion, and any
abuse of discretion is remedied by a Rule 181 petition to the Commissioner
of Patents, and not by appeal to the Board of Appeals). Therefore, we do not
address this procedural issue.
Substantively, Appellant contends the disputed term “substantially
similar” is disclosed by “numerous examples of ascertaining substantial
similarity, including at least non-numeric similarity, numeric similarity
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Application 12/613,613
based on a scale of variation, and numeric similarity based on percentages.”
App. Br. 17 (citations to Specification omitted.). Appellant argues “the
guidelines for examination [provide] that ‘ [t]he claim is not indefinite if the
[Specification provides examples or teachings that can be used to measure a
degree even without a precise numerical measurement.’” Id. (citing the
Manual of Patent Examination Procedure, § 2173.05(b)). The Examiner
responds “[the] Specification does not provide any example or scale that
describes ‘substantially similar’ is how much similar.” Ans. 3. Appellant
replies arguing that multiple examples of how to ascertain numeric similarity
in frequencies of pixel variations between blocks based on percentages
“render definite the claim limitation ‘substantially similar frequencies of
pixel variation’ for claims 1, 7, 13, and 20-22, by providing an example of a
numeric range as a standard by which similarity may be determined.” Reply
Br. 4.
Appellant’s argument is not persuasive. The examples given in the
Specification disclose methods and metrics for determining similarity, but
fail to provide objective standards for determining whether sufficient
similarity is detected such that appropriate blocks are selected for each
particular new digital image file as required by claim 1. For example,
Appellant describes using a similarity scale “from zero to 100” (Spec. col.
13,11. 1-5) but does not disclose a specific threshold value required to
satisfy the substantial similarity criteria recited by claim 1. Similarly, the
description of using variation value, range, and/or color as a criteria for
determining similarity {id. at col. 14,11. 5-7) nonetheless fails to disclose
what degree of similarity constitutes substantial similarity. Furthermore, the
argued numeric example of “blocks having a variation of 0-2%” (Reply Br. 4
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Application 12/613,613
(quoting Spec. col. 20,11. 28-30)) fails to describe how the variation is
determined and, therefore, also fails to adequately define the disputed
“substantially similar” limitation. Accordingly, in the absence of an
objective criteria for determining whether the disputed “substantially
similar” limitation is satisfied, we agree with the Examiner in concluding
claims 1-10, 12-18, and 20-27 are rendered indefinite and sustain the
rejection under 35 U.S.C. § 112, second paragraph.
35 U.S.C. § 103(a) Rejections
The Examiner finds Gu’s steps 204, 206, and 208 of “split[ing]
received images using information of image blocks to split the images into
portions,” “determin[ing] differences between content of images using
differences between the portions of the images,” and “generat[ing] [a] delta
file that includes the differences for at least one portion” (Gu, Fig. 2) teach
or suggest the disputed limitation of extracting blocks, with the processor,
from each of the digital image files. Final Act. 4-5. Appellant contends
Gu discloses “updating static file system images using
difference files and more particularly updating compressed
read-only memory file system (CRAMPS) format images[.]”
Gu further discloses “a real-time operating system (RTOS) in
which all software components of the device are linked as a
single large executable image.'1'’ Gu does not disclose image
files that are related to graphical image files as disclosed by the
[Specification. The concept of an executable file system image
is entirely distinct from a digital image made up of pixels, as is
clear to one skilled in the art. The [Specification, prosecution
history, and currently entered claims make perfectly clear that
the recited “digital image files” are graphical digital images that
include pixels, not an executable file system image including
linked software components of a real-time operating system.
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App. Br. 18 (footnotes omitted). Appellant argues that, rather than
disclosing the extraction of blocks from received images, Gu merely
discloses that information within the blocks could be compared to determine
differences. Id. at 21. Appellant concludes Gu fails to teach or suggest the
disputed limitation. Id.
Appellant’s argument is persuasive of reversible Examiner error.
It is well settled that the PTO’s “construction [must] be ‘consistent
with the specification, . . . and . . . claim language should be read in light of
the specification as it would be interpreted by one of ordinary skill in the
art.”’ See, e.g., In re Suitco Surface, Inc., 603 F.3d 1255, 1259-60 (Fed. Cir.
2010) (quoting In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990)).
Although Gu uses the term “image” in describing files, the meaning
ascribed by Gu to the term is different from that associated with and required
by claim 1. Here, the plain meaning of “digital image files” as recited in the
claims would have indicated to one skilled in the relevant art that the files
include graphical image information files. That understanding or usage is
consistent with the description found in the Specification and other language
of the claims which require, for example, each of the extracted blocks
comprise a subset of picture elements, i.e., pixels. App. Br. 27 (Claim 1).
In particular, the term “image” may be used to describe two different
items:
Image n. 1. A stored description of a graphic picture, either as a
set of brightness and color values of pixels or as a set of
instructions for reproducing the picture. See also bit map, pixel
map. 2. A duplicate, copy, or representation of all or part of a
hard or floppy disk, a section of memory or hard drive, a file, a
program, or data. For example, a RAM disk can hold an image
of all or part of a disk in main memory; a virtual RAM program
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Application 12/613,613
can create an image of some portion of the computer’s main
memory on disk. See also RAM disk.
Microsoft Computer Dictionary 267 (5th ed. 2002). It is clear from
Appellant’s Specification that claim 1 ’s recitation of an image incorporates
the first definition, i.e., a graphic picture. Spec., passim. In contrast, Gu’s
use of the term “image” is with reference to copies of files or systems as per
definition 2. Gu, passim. For example, Gu’s step 202 includes “receiv[ing]
images of static file system, the images including an original image and a
new image.” Id. at Fig. 2. The original and new images are described as
static file systems (SFS) images, not files representing graphic image
information. Id. at col. 4,11. 10-12.
Because we agree with at least one of the arguments advanced by
Appellant, we need not reach the merits of Appellant’s other arguments.
Therefore, because Gu fails to teach or suggest the disputed limitation of
extracting blocks, with the processor, from each of the digital image files,
we do not sustain the rejection of claim 1 or, for the same reasons, the
rejections of independent claims 7, 13, and 20-22 under 35 U.S.C. § 103(a)
or that of dependent claims 2-6, 8-10, 12, 14-18, and 23-27.
DECISION
We affirm the Examiner’s decision to reject claims 1-10, 12-18, and
20-27 under 35 U.S.C. § 112, second paragraph, as being indefinite.
We reverse the Examiner’s decision to reject claims 1-10, 12-18, and
20-27 under 35 U.S.C. § 103(a).
Because we affirm at least one ground of rejection with respect to
each claim on appeal, we affirm the Examiner’s decision rejecting
claims 1-10, 12-18, and 20-27. See 37 C.F.R. § 41.50(a)(1)
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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). See
37 C.F.R. § 41.50(f).
AFFIRMED
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