Ex Parte Maxwell et al

Patent Trial and Appeal BoardFeb 28, 2014

11403764 (P.T.A.B. Feb. 28, 2014)

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. 11/403,764 04/13/2006 Bruce Allen Maxwell 590.1003CIP 9517 23280 7590 02/28/2014 Davidson, Davidson & Kappel, LLC 485 7th Avenue 14th Floor New York, NY 10018 EXAMINER RICHER, AARON M ART UNIT PAPER NUMBER 2614 MAIL DATE DELIVERY MODE 02/28/2014 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 BRUCE ALLEN MAXWELL, RICHARD MARK FRIEDHOFF, and CASEY ARTHUR SMITH ____________ Appeal 2011-003669 Application 11/403,764 Technology Center 2600 ____________ Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and CARLA M. KRIVAK, Administrative Patent Judges. KRIVAK, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-9. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2011-003669 Application 11/403,764 2 STATEMENT OF THE CASE Appellants’ claimed invention is directed to a “bi-illuminant dichromatic reflection model (BIDR model) as a representation of an image to facilitate color correct image manipulation” (Spec. ¶ [0007]). Independent claim 1, reproduced below, is representative of the subject matter on appeal. 1. An automated, computerized method for manipulating an image, comprising the steps of: a computer executing the following steps: providing an image file depicting an image; manipulating the image of the image file to provide an intensity adjusted image; deriving a bi-illuminant dichromatic reflection model representation of correct color of material depicted in the image, to represent correct color values for the image, across multiple materials of the image, within a range extending from fully shaded color value to fully lit color value, the bi-illuminant dichromatic reflection model representation of correct color being expressed by a characteristic spectral ratio consistent across multiple materials of the image; and utilizing the bi-illuminant dichromatic reflection model representation to manipulate the intensity adjusted image of the image file to generate a color correct intensity adjusted image having correct color of material depicted in the image, the correct color being set at any selected degree of adjustment within the range extending from fully shaded color value to fully lit color value and determined as a function of the correct color values represented by the bi-illuminant dichromatic reflection model for the range extending from fully shaded color value to fully lit color value and when an intensity adjustment for the intensity adjusted image causes an intensity beyond the range of Appeal 2011-003669 Application 11/403,764 3 a fully lit color value, adjusting intensity with reference to a fully lit color value determined according to the bi-illuminant dichromatic reflection model. REFERENCES and REJECTIONS The Examiner rejected claims 1, 3, 6, 7, and 9 under 35 U.S.C. § 103 based upon the teachings of Baba (“Shadow Removal from a Real Image Based on Shadow Density,” ACM SIGGRAPH 2004), Wells (US 7,305,127 B2), Watanabe (US 2003/0053689 A1), and Ebner (“On Determining the Color of the Illuminant Using the Dichromatic Reflection Model,” 14 September 2005, p. 1-8, available at http://www.springerlink.com/content/6r7teb3tmfpqSwce/fulltext.pdf). The Examiner rejected claims 2, 4, 5, and 8 under 35 U.S.C. § 103 based upon the teachings of Baba, Wells, Watanabe, Ebner, and Kasson (US 5,774,112). ANALYSIS Appellants principally contend: (1) Baba does not disclose BIDR (App. Br. 6); (2) Wells single material solution teaches away from Appellants multiple material solution (App. Br. 8, 12); and (3) Ebner does not disclose a spectral ratio (App. Br. 13). Additionally, Appellants argue Baba, Wells, and Ebner cannot be combined with Watanabe because Watanabe is directed to range correction not related to BIDR (App. Br. 15). Wells, Appellants assert, provides a single material solution that performs extensive analysis of image characteristics before a ratio can be calculated (App. Br. 8), and Ebner merely “involves multiple materials” using a standard dichromatic reflection model (App. Br. 9). Particularly, Appellants Appeal 2011-003669 Application 11/403,764 4 argue Baba focuses on shadow removal by determining full shadow color and full sunshine color, and only describes a shadow model for image brightness using relative shadow density values expressed by a shadow density factor in the range from 0 to 1. Therefore, Baba does not disclose color variation in a penumbra. Further, Appellants assert, Wells discloses a single material that focuses on a same object analysis and Ebner is concerned with color constancy where all materials are similarly adjusted as a function of a single, uniform illuminant (App. Br. 12). Appellants also contend, contrary to the Examiner’s finding (Ans. 6), Ebner does not teach or suggest a spectral ratio consistent across multiple materials: rather Ebner discloses a scalar scaling factor, i.e., a single value, not a ratio of two numbers, for parameterizing a line (App. Br. 13). In contrast, the spectral ratio of the multiple material solution of Appellants’ invention is an RGB vector (a three-valued number) of a ratio between two color measurements (App. Br. 13). The Examiner agrees with Appellants that Baba is concerned with grayscale brightness information, but also notes “Baba is not limited to grayscale brightness information” (Ans. 11). The Examiner counters Baba explicitly discloses adjusting color (Baba, top of column 2); color average and variance adjustments occur as well as brightness adjustment (id.). Additionally, as noted by the Examiner, Ebner discloses a multiple material choice, and Wells’ extensive analysis of same objects does not teach away from a multiple material solution, thus, a multiple material solution would be an extension of Wells’ teachings (Ans. 12). We agree with the Examiner (Ans. 11-16). Appellants, in their briefs, make numerous conclusory statements without providing supporting Appeal 2011-003669 Application 11/403,764 5 evidence or addressing the Examiner’s specific findings (see, e.g., App. Br. 11; Reply Br. 8).1 For example, with respect to BIDR, Appellants point to paragraphs [0008] and [0034] in their Specification. However, no specific definition of BIDR is provided, merely examples (“exemplary”-¶ [0008]; “for example”-¶ [0034]). Given the non-limiting exemplary supporting embodiments in the Specification (id.), we are not persuaded the Examiner’s interpretation of BIDR is overly broad, unreasonable, or inconsistent with Appellants’ Specification.2 Additionally, we agree with the Examiner that Appellants have not met the standard for showing Wells teaches away from the claimed invention on appeal. (Ans. 8, 12). 3 With respect to Ebner’s spectral ratio, we also agree with the Examiner that repeating Ebner’s “scaling factor s” for multiple surfaces to find a single point would, when integrated into Baba, result in a BIDR represented by a spectral ratio for multiple surfaces (Ans. 14). 1 See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (attorney arguments or conclusory statements are insufficient to rebut a prima facie case). 2 Because “applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citation omitted). 3 "A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant." In re Gurley, 27 F.3d 551,553 (Fed. Cir. 1994). Teaching an alternative or equivalent method, however, does not teach away from the use of a claimed method. See In re Dunn, 349 F.2d 433, 438 (CCP A 1965). Appeal 2011-003669 Application 11/403,764 6 Thus, in light of the broad terms recited in the claims and the arguments presented, Appellants have failed to clearly distinguish their claimed invention over the prior art relied on by the Examiner. For the above reasons, we are not persuaded of Examiner error. We find the weight of the evidence supports the Examiner’s ultimate legal conclusion of obviousness, and therefore sustain the Examiner’s rejection of independent claim 1, independent claims 7 and 9, and dependent claims 3 and 6 argued therewith (App. Br. 6, 8, 15, and 17). Appellants argue claims 2, 4, 5, and 8 based on the arguments asserted for independent claims 1, 7, and 9 (App. Br. 17-18). Thus, for the above reasons we sustain the Examiner’s rejection of these claims. DECISION The Examiner’s decision rejecting claims 1-9 under 35 U.S.C. § 103 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED tj