Ex Parte LukkDownload PDFPatent Trial and Appeal BoardDec 15, 201713742230 (P.T.A.B. Dec. 15, 2017) Copy Citation 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. 13/742,230 01/15/2013 Howard Lukk DISNEY-0630-US 3624 94468 7590 12/19/2017 DTSNFY FNTFRPRTNFN TNC EXAMINER c/o Patent Ingenuity, P.C. 9701 Wilshire Blvd., Suite 1000 HASAN, MAINUL Beverly Hills, CA 90212 ART UNIT PAPER NUMBER 2489 NOTIFICATION DATE DELIVERY MODE 12/19/2017 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): ssimpson@patentingenuity.com patents@patentingenuity.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HOWARD LUKK Appeal 2017-007604 Application 13/742,2301 Technology Center 2400 Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and DAVID J. CUTITTA II, Administrative Patent Judges. GALLIGAN, Administrative Patent Judge. DECISION ON APPEAL Introduction Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1, 5-13, and 16-30, which are all of the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). Claims 2—4, 14, and 15 have been cancelled. We AFFIRM.2 1 According to Appellant, the real party in interest is Disney Enterprises, Inc. App. Br. 2. 2 Our Decision refers to Appellant’s Appeal Brief filed November 29, 2016 (“App. Br.”); Appellant’s Reply Brief filed April 24, 2017 (“Reply Br.”); Examiner’s Answer mailed March 6, 2017(“Ans.”); Advisory Action mailed October 28, 2016 (“Adv. Act.”); and Final Office Action mailed July 28, 2016 (“Final Act.”). Appeal 2017-007604 Application 13/742,230 STATEMENT OF THE CASE Claims on Appeal Claims 1, 9, 21, and 26 are independent claims. Claim 1 is reproduced below: 1. An image capture device comprising: a lens that receives light; an optical beam splitter that receives the light from the lens; a focus element that is positioned such that the light is received by the optical beam splitter before passing through the focus element; a first image sensor that receives a first portion of the light from the optical beam splitter through the focus element, converts the first portion of the light into a first plurality of electrical signals corresponding to image data, and sends the image data to a processor; a plenoptic lens that is a synthetic aperture and that receives a second portion of the light from the optical beam splitter without passing through the focus element; and a second image sensor that receives the second portion of the light from the plenoptic lens, converts the second portion of the light into a second plurality of electrical signals corresponding to depth data, and sends the depth data to a processor that edits one or more objects in the image data based upon the depth data. References Drazic Pitts US 2011/0080491 A1 US 8,279,325 B2 US 2014/0168401 A1 Apr. 7,2011 Oct. 2, 2012 June 19,2014De Bruijn 2 Appeal 2017-007604 Application 13/742,230 Examiner’s Rejections Claims 1, 5-13, and 16-203 stand rejected under 35 U.S.C. § 112 second paragraph as being indefinite. Final Act. 2. Claims 1, 5-11, 16-23, and 26-28 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Drazic and De Bruijn. Id. at 3-16. Claims 12, 13, 24, 25, 29, and 30 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Drazic, De Bruijn, and Pitts. Id. at lb- 20. Our review in this appeal is limited only to the above rejections and the issues raised by Appellant. Arguments not made are waived. See MPEP § 1205.02; 37 C.F.R. §§ 41.37(c)(l)(iv) and 41.39(a)(1). ANALYSIS 35 U.S.C. ft112, second paragraph Independent claim 1 recites “a focus element that is positioned such that the light is received by the optical beam splitter before passing through the focus element” (emphasis added). The Examiner determines “the term ‘such that’ renders the [subsequent] recitation as a ‘for example’ type of recitation instead of [an] actual claimed element” and concludes the claims are indefinite. Final Act. 2 (citing MPEP § 2173.05(d)); Ans. 4. Appellant argues “the phrase ‘such that’ would not be understood by those skilled in the art to refer to an example” (App. Br. 7) and instead “defines the claim language” (Reply Br. 2). 3 The Examiner rejects claims 1-20 under 35 U.S.C. § 112 (Final Act. 2); however, claims 2—4, 14, and 15 have been cancelled (id. ). 3 Appeal 2017-007604 Application 13/742,230 We agree with Appellant (Reply Br. 2) that the limitation reciting that “light is received by the optical beam splitter before passing through the focus element” is not an example or optional limitation because it follows the phrase “such that,” i.e., “such that” does not have the same meaning as “such as.” Rather, we determine the “light” limitation conveys a degree or quality of the positioning. As such, the claimed focus element and the beam splitter arrangement requires light to reach the beam splitter before the focus element. Accordingly, we cannot sustain the rejection of claims 1, 5-13, and 16-20 under 35 U.S.C. § 112, second paragraph as being indefinite. 35 U.S.C. § 103(a) “a focus element ” Appellant contends the Examiner erred in finding Drazic teaches “a focus element that is positioned such that the light is received by the optical beam splitter before passing through the focus element,” as recited in claim 1. App. Br. 8-10; Reply Br. 2-3. Specifically, Appellant argues Drazic “explicitly teaches that the imaging lens 2 is performing focusing functionality” and Drazic’s beam splitter 3 receives light “after passing through the imaging lens 2, which is a focus element.” App. Br. 9; Reply Br. 2-3. We are not persuaded. The Examiner finds (Final Act. 3), and we agree, Drazic teaches an image capturing system which “receive[s] light from objects 1 in an object field” (Drazic ^ 47, Fig. 1). The Examiner further finds (Final Act. 3), and we agree, Drazic’s system “direct[s] a first portion of the received light to a first image field of the imaging lens through a first output of a beamsplitter 3” and further “direct[s] a second portion of 4 Appeal 2017-007604 Application 13/742,230 the received light to a second image field of the imaging lens 2 through a second output of the beamsplitter 3” (Drazic ^ 47, Fig. 1). The Examiner further finds, and we agree, De Bruijn teaches an imaging system in which a focusing element, e.g., LI, is placed after a beam splitter. Ans. 11 (citing De Bruijn 48, Fig. 4); Final Act. 5 (citing De Bruijn Figs. 5A, 7C). The Examiner combines Drazic and De Bruijn so that “the ‘focusing lens’ ... of De Bruijn will simply be put in front of the sensor 6 of Drazic,” i.e., after Drazic’s beam splitter. Ans. 11-12 (emphasis omitted); Adv. Act. 2. Appellant’s argument that Drazic’s imaging lens 2 is a focus element which focuses light before the light reaches Drazic’s beam splitter 3 (Reply Br. 2-3; App. Br. 8-10) does not address the Examiner’s combination. Specifically, the Examiner’s combination does not rely on Drazic’s imaging lens 2 to teach the recited focus element positioned to receive light after the beam splitter receives light. Rather, the Examiner’s combination combines “the ‘focusing lens’ . . . of De Bruijn” with Drazic, placing De Bruijn’s focusing lens after Drazic’s beam splitter 3. Ans. 11-12; Adv. Act. 2. Further, even if we were to agree Drazic’s imaging lens 2, which is placed before beam splitter 2, focuses light, the claim does not recite any limitation precluding the beam splitter 3 from receiving focused light from imaging lens 2. The focused light from imaging lens 2 is nonetheless passed through the beam splitter to then be received by De Bruijn’s focusing element, as required by the claims. See Ans. 12. Accordingly, we are not persuaded the Examiner erred in finding the combination of Drazic and De Bruijn teaches “a focus element that is positioned such that the light is received by the optical beam splitter before passing through the focus element,” within the meaning of claim 1. 5 Appeal 2017-007604 Application 13/742,230 “a plenoptic lens ” Appellant contends the Examiner erred in finding Drazic teaches “a plenoptic lens that is a synthetic aperture and that receives a second portion of the light from the optical beam splitter without passing through the focus element,” as recited in claim 1. App. Br. 10-11; Reply Br. 3—4. Similar to Appellant’s arguments, supra, Appellant argues Drazic’s imaging lens is a focus element and the Examiner’s “interpretation of Drazic relies on the presumption that the imaging lens of Drazic is not a focus element.” App. Br. 10; Reply Br. 3. We are not persuaded. As discussed supra, Appellant’s argument directed to Drazic’s imaging lens does not address the Examiner’s combination of Drazic and De Bruijn. Specifically, the Examiner’s combination of Drazic with De Bruijn results in De Bruijn’s focusing element focusing the first portion of light from Drazic’s beam splitter 3, while the second portion of light from Drazic’s beam splitter 3 is not focused by De Bruijn’s focusing element (Ans. 11-12). Further, as discussed supra, the claim does not preclude Drazic’s beam splitter 3 from receiving focused light from imaging lens 2. Accordingly, we are not persuaded the Examiner erred in finding the combination of Drazic and De Bruijn teaches “a plenoptic lens that is a synthetic aperture and that receives a second portion of the light from the optical beam splitter without passing through the focus element,” within the meaning of claim 1. 6 Appeal 2017-007604 Application 13/742,230 Improper Combination Appellant contends the Examiner improperly combined Drazic and De Bruijn. App. Br. 11-12; Reply Br. 4-6. Specifically, Appellant argues the combination changes Drazic’s principle of operation because “add[ing] focus elements to Drazic such that Drazic [focuses] light before light passes through the beamsplitter 3 and after beamsplitter 3” “could disrupt the intended distribution of light by Drazic” (App. Br. 11), would “distort the image generated” (Reply Br. 4), or “could actually lead to a lesser quality image” {id. at 5-6). Further, Appellant argues “the principle of operation of Drazic would be modified” by “mov[ing] [Drazic’s] focus element, i.e., imaging lens 2, from the position of being before the beamsplitter 3 to after the beamsplitter 3.” App. Br. 12. Additionally, Appellant argues the Examiner “has not provided any rationale for such use of multiple focus elements.” Id. We are not persuaded. Appellant’s assertions that the additional focusing element “could disrupt [Drazic’s] intended distribution of light” (App. Br. 11; Reply Br. 4) and “could actually lead to a lesser quality image” (Reply Br. 5-6) are supported only by attorney argument. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s argument in a brief cannot take the place of evidence.”). Appellant has not provided sufficient persuasive evidence that an additional focusing lens would result in lower quality images. Nor has Appellant persuaded us that the skilled artisan would have been unable to arrange the additional focusing lens to improve Drazic’s imager as suggested by the Examiner. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 402, 421 (2007) (“a person of ordinary skill 7 Appeal 2017-007604 Application 13/742,230 often will be able to fit the teachings of multiple patents together like pieces of a puzzle” and is “not an automaton”). Appellant’s remaining arguments are also unpersuasive. In particular, Appellant’s argument that the Examiner’s combination changes Drazic’s principle of operation because the combination “move[s]” Drazic’s imaging lens 2 (App. Br. 12) is not persuasive because, as discussed, supra, the Examiner’s combination does not move Drazic’s imaging lens 2 (Adv. Act. 2; Ans. 10). Additionally, Appellant’s argument that the Examiner “has not provided any rationale for such use of multiple focus elements” (App. Br. 12) is not persuasive because the Examiner has articulated reasoning with some rational underpinning for placing a lens after a beam splitter in the combination of Drazic and De Bruijn— specifically, “integrally captur[ing] a complete [field] of light rays, from which it is possible to retrospectively adjust focus or focus range on the basis of a single captured frame” (Final Act. 5-6 (citing De Bruijn 75)). Accordingly, we are not persuaded the Examiner improperly combined Drazic and De Bruijn. Therefore, we sustain the rejections of claim 1 under 35 U.S.C. § 103(a). We likewise sustain the rejections under 35 U.S.C. § 103(a) of claims 5-13 and 16-30, for which Appellant offers no additional persuasive arguments for patentability. See App. Br. 13-14. DECISION We reverse the Examiner’s decision rejecting claims 1, 5-13, and lb- 20 under 35 U.S.C. § 112 second paragraph. 8 Appeal 2017-007604 Application 13/742,230 We affirm the Examiner’s decision rejecting claims 1, 5-11, 16-23, and 26-28 under 35 U.S.C. § 103(a) as being unpatentable over Drazic and De Bruijn. We affirm the Examiner’s decision rejecting claims 12, 13, 24, 25, 29, and 30 under 35 U.S.C. § 103(a) as being unpatentable over Drazic, De Bruijn, and Pitts. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 41.50(f). AFFIRMED 9 Copy with citationCopy as parenthetical citation