Ex Parte Lukk

Patent Trial and Appeal Board

Dec 15, 2017

13742230 (P.T.A.B. Dec. 15, 2017)

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):
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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
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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. ).
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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
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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.
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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.
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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
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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.
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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
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