Ex Parte Moroney et alDownload PDFPatent Trial and Appeal BoardMay 25, 201713722854 (P.T.A.B. May. 25, 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. 13/722,854 12/20/2012 Nathan Moroney 83096985 1375 22879 HP Tnr 7590 05/30/2017 EXAMINER 3390 E. Harmony Road Mail Stop 35 ZHU, RICHARD Z FORT COLLINS, CO 80528-9544 ART UNIT PAPER NUMBER 2675 NOTIFICATION DATE DELIVERY MODE 05/30/2017 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): ipa.mail@hp.com barbl@hp.com y vonne.bailey @ hp. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NATHAN MORONEY, NINA BHATTI, KOK-WEI KOH, and MELANIE M. GOTTWALS Appeal 2016-008522 Application 13/722,854 Technology Center 2600 Before CAROLYN D. THOMAS, AMBER L. HAGY, and KARA L. SZPONDOWSKI, Administrative Patent Judges. HAGY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1—20, which are all of the pending claims. We have jurisdiction over these claims under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify the real party in interest as Hewlett-Packard Development Company, LP. (App. Br. 2.) Appeal 2016-008522 Application 13/722,854 Introduction According to Appellants, the present Application describes and claims the following: A method for colorimetric rendering[, which] includes receiving, by a display device, an image that has been preprocessed for adjusting color and disregarding, by the display device, the preprocessing for adjusting color. The display device performs a colorimetric rendering transform at the time of display or print of the image by using an embedded colorimetric reference. A display device for colorimetric rendering of digital images is also provided. (Abs.) Exemplary Claim Claims 1, 9, and 10 are independent. Claim 1, reproduced below with the disputed limitations italicized, is exemplary of the claimed subject matter: 1. A method for colorimetric rendering comprising: receiving, by a display device, an image that has been preprocessed for adjusting color, the image including an embedded colorimetric reference; disregarding, by the display device, the preprocessing for adjusting color, and performing, with the display device, a colorimetric rendering transform at the time of display or print of the image by using the embedded colorimetric reference. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Rolleston US 5,592,591 Jan. 7, 1997 Baker et al. (“Baker”) US 2007/0058859 A1 Mar. 15, 2007 2 Appeal 2016-008522 Application 13/722,854 REJECTIONS Claim 1—8 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Baker. (Final Act. 3—6.) Claims 9-20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Baker and Rolleston. (Final Act. 6—10.) ISSUES (1) Whether the Examiner erred in finding Baker discloses all limitations of independent claim 1, including “the image including an embedded colorimetric reference” and “disregarding, by the display device, the preprocessing for adjusting color.” (2) Whether the Examiner erred in finding the combination of Baker and Rolleston teaches or suggests “wherein unknown colors in the image are identified by interpolating between known colors of the embedded colorimetric reference such that all the colors of the image are then adjusted to be more accurate based on the known colors of the embedded colorimetric reference,” as recited in independent claim 9. (3) Whether the Examiner erred in finding Baker teaches or suggests “the colorimetric reference comprises a distinctive colored border to aid in identification of the colorimetric reference by the color reference identification module,” as recited in dependent claim 15. (4) Whether the Examiner erred in finding Baker teaches or suggests with the display device, displaying an image of article of clothing for sale, the article being displayed using the colorimetric rendering transform so that the displayed image of the article of clothing more accurately depicts actual coloring of 3 Appeal 2016-008522 Application 13/722,854 the article of clothing so that a potential purchaser can make a more informed decision about purchasing the article of clothing[,] as recited in dependent claim 16. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments the Examiner has erred. Except as noted herein, we disagree with Appellants’ conclusions and we adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2—10) and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief. (Ans. 3—13.) Except as noted herein, we concur with the conclusions reached by the Examiner, and we highlight the following for emphasis.2 A. Claim 1 The Examiner rejects claims 1—8 under 35 U.S.C. § 102(b) as anticipated by Baker. (Final Act. 3—4.) Appellants argue the Examiner’s findings regarding claim 13 are in error for two reasons: (1) Baker does not disclose an “embedded colorimetric reference” (App. Br. 10-11); and (2) Baker also does not disclose “disregarding, by the display device, the preprocessing for adjusting color.” {Id. at 11—12; Reply Br. 4—5.) We disagree with both arguments. 2 Only those arguments made by Appellants have been considered in this decision. Arguments Appellants did not make have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). 3 Appellants do not separately argue dependent claims 2—8. (App. Br. 10, 12.) Therefore, based on Appellants’ arguments, we decide the appeal of claims 1—8 based on claim 1 alone. See 37 C.F.R. § 41.37(c)(l)(iv). 4 Appeal 2016-008522 Application 13/722,854 1. “colorimetric reference” Appellants’ arguments are premised on the contention that Appellants’ Specification “defines” a “colorimetric reference,” as recited in claim 1, as follows: [T]he colorimetric reference may include a variety of blocks with different hues, saturation, and lightness. Ideally, these blocks would describe specific color points within the gamut of colors in the target scene. Because the optical characteristics of the blocks are known, they can be used to identity colors within the target scene. (App. Br. 10 (citing Spec. 125).) Appellants then argue Baker does not disclose a “colorimetric reference” as recited because Baker “is silent as to the use of a colormetric [sic] reference that, by definition, includes ‘blocks with different hues, saturation, and lightness.’” (App. Br. 11.) Contrary to Appellants’ characterization of the Specification as “defm[ing]” a “colorimetric reference,” we find the cited language in Appellants’ Specification to be exemplary, permissive and open-ended, stating the colorimetric reference “may include” a variety of blocks with “different hues, saturation, and lightness.” (Spec. 125.) The Examiner concludes, and we agree, claim 1, afforded its broadest reasonable interpretation, does not require “different hues, saturation, and lightness.” (Ans. 3 4.) We further agree with the Examiner’s finding “Baker discloses [a] reference color set comprising a plurality of color patches arrayed in 3 rows of 8 color patches each that are representative of a selected range of colors,” which “reads on the limitation ‘colorimetric reference’.” (Ans. 4 (citing Baker || 45 46) (footnote omitted).) 5 Appeal 2016-008522 Application 13/722,854 2. “disregarding, by the display device, the preprocessing for adjusting color ” The Examiner finds: According to Baker, processing parameters of the image capture and image display devices are pre-set by the manufacturers. However, these processing parameters distort the color spectra of images captured or displayed by the image capture device and display device. Specifically, a camera introduces alteration in the perceived coloration of captured images through physical characteristics of its design and internal processing characteristics. . . . To solve this problem, when a device captures an image of a subject, the captured image comprises a set of embedded reference colors. Further, Baker determines a transformation from the observed color space of the captured image to a reference “true” color space that is independent of the image processing capabilities of the camera which captures the image. (Ans. 5 (footnotes omitted) (citing Baker || 2, 3, 19).) The Examiner further finds: By computing a color correction/transformation function, Baker eliminates discrepancies between the reference colors in the reference color set and corresponding control colors in the control reference color set. In this manner, Baker eliminates or disregards manufacturer specified image processing capabilities of the camera to achieve a more accurate color representation of the subject captured by the camera. {Id. at 6 (footnotes omitted) (citing Baker H 21, 23) (emphasis added).) Appellants argue the Examiner’s findings are in error because Baker is not “disregarding. . . the preprocessing for adjusting color; ” rather, Baker just teaches “producing a preprocessed image in which color has been adjusted.” (Reply Br. 4.) Appellants further argue: [jjust because the camera hardware produces an image, it is unreasonable to say that the camera, in producing the image 6 Appeal 2016-008522 Application 13/722,854 in the first place, has already “preprocessed” the image “for adjusting color.” (Claim 1). One of skill in the art would never twist the language of the art to say that a camera, in simply producing an image, also preprocesses that image for color adjustment. (Id. at 5.) We disagree. The Examiner finds, and we agree, “[according to Baker, an image capturing device has preset processing parameters set by [the] manufacturer and these processing parameters automatically adjust[] all captured images without regard to the true colors of the captures images.” (Final Act. 2 (citing Baker 13) (emphases added).) The Examiner also finds, and we agree, “[b]y eliminating any prior adjustment of a captured image due to preexisting image processing capabilities of the image capturing device, Baker disregards preprocessing for adjusting color.'1'’ (Final Act. 3 (citing Baker 123) (emphases added).) Appellants’ arguments do not persuasively rebut the Examiner’s findings. For the foregoing reasons, we are not persuaded of error in the Examiner’s 35 U.S.C. § 102(b) rejection of claim 1 and we, therefore, sustain that rejection, along with the rejection of dependent claims 2—8, which are not separately argued. B. Claim 9 The Examiner finds Baker teaches the limitations of claim 9, including “an embedded colorimetric reference,” except the Examiner finds “Baker does not disclose wherein unknown colors in the image are identified by the color correction module by interpolating between known colors of the embedded colorimetric reference such that all the colors of the image are then adjusted to be more accurate based on the known colors of the embedded colorimetric reference.” (Final Act. 7.) As to that limitation, 7 Appeal 2016-008522 Application 13/722,854 the Examiner additionally relies on Rolleston, finding Rolleston teaches “a color space transformation and color correction unit / module . . . that uses interpolation between known colors within a color correction table / function to interpolate a corrected colors for unknown colors in the image that has no direct correspondence to a corrected color in the color correction table / function.” {Id. at 8 (citing Rolleston Figs. 1—4, 5:26—30, and 6:8—15); see also Ans. 7—9.) Appellants argue the Examiner’s findings regarding claim 94 are in error because “Rolleston is cited as teaching interpolation, but does not teach or suggest anything applying interpolation to an embedded colorimetric reference for subsequent color adjustment of that same image.” (Reply Br. 7 (emphasis added); see also App. Br. 13—14.) Appellants’ arguments are not persuasive of Examiner error because they argue Rolleston individually and ignore the Examiner’s findings regarding the combination of Rolleston with Baker. It is well established that one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981). In particular, the Examiner finds the combination of Rolleston’s interpolation scheme with Baker teaches or suggests the disputed limitation: [I]t would’ve been obvious to one ordinarily skilled in the art at the time of the invention to modify Baker to interpolate between known colors of the embedded colorimetric reference colors to generate a color correction table for 4 Appellants argue independent claim 10 collectively with claim 9, and do not present separate arguments with regard to dependent claims 11—14. Therefore, based on Appellants’ arguments, we decide the appeal of claims 10-14 based on claim 9 alone. See 37 C.F.R. § 41.37(c)(l)(iv). 8 Appeal 2016-008522 Application 13/722,854 converting unknown colors in the captured image so that all colors in the captured image would more accurately convey the true colors of the subject independent of image processing capabilities of the image capturing device (Baker, fl8 and f22). Adopting RoHeston's interpolation scheme would also reduce redundancy in the storage of the color correction table for more efficient operation (Rolleston, Col 1, Rows 7—12) because it is not necessary to store correspondences of every possible permutation of color sets that might exist in a variety of subsequently captured images. (Final Act. 8.) We agree the Examiner’s findings are supported by the cited teachings of the references. For the foregoing reasons, we are not persuaded of error in the Examiner’s 35 U.S.C. § 103(a) rejection of claim 9, and we, therefore, sustain that rejection, along with the rejection of claims 10—14, which are not argued separately. (App. Br. 15.) C. Claim 15 Claim 15 depends from claim 10 and recites “in which the colorimetric reference comprises a distinctive colored border to aid in identification of the colorimetric reference by the color reference identification module.” (App. Br. 23 (Claims App’x) (emphasis added).) The Examiner finds this limitation is disclosed in Baker, which teaches “color patches rested on black and white border against a black background.” (Final Act. 9 (citing Baker 145).) Appellants argue the Examiner’s findings are in error because “Baker describes a black and white border, rather than a colored border, as claimed.” (App. Br. 16.) We disagree. The Examiner finds, and we agree, “a black border is a distinctively colored border since black is an achromatic color,” and claim 15 does not specify “whether the colored border is a chromatic 9 Appeal 2016-008522 Application 13/722,854 color or an achromatic color.” (Ans. 10.) We further note Appellants’ Specification does not require any particular color for the border (nor does it expressly exclude the color black), but merely states that “[t]he colorimetric reference may also include features such as distinctive borders that allow it to be more easily identified within an image.” (Spec. 129 (emphasis added).) The Examiner implicitly concludes, and we agree, the broadest reasonable interpretation of “colored border,” as recited in claim 15, encompasses a black border as taught by Baker. (See Baker Fig. 3 and 145 (describing “a plurality of color patches (e.g., 301—324)” within a “black border 350”).) Appellants do not address this conclusion or persuasively rebut the Examiner’s findings. We are not persuaded of error in the Examiner’s 35 U.S.C. § 103(a) rejection of claim 15 and we, therefore, sustain that rejection. D. Claim 16 Claim 16 depends on claim 1, and recites: with the display device, displaying an image of article of clothing for sale, the article being displayed using the colorimetric rendering transform so that the displayed image of the article of clothing more accurately depicts actual coloring of the article of clothing so that a potential purchaser can make a more informed decision about purchasing the article of clothing. (App. Br. 24 (Claims App’x).) The Examiner finds, and we agree, Baker broadly discloses “accurately capturing and conveying the color of a subject,” without limitation as to the content of the subject. (Baker 11; see also Ans. 11.) Appellants, however, argue the limitation of claim 16 is not taught or suggested by Baker because Baker does not disclose that the subject being 10 Appeal 2016-008522 Application 13/722,854 displayed is specifically an “article of clothing for sale.” (App. Br. 18; Reply Br. 10.) Although we agree that Baker does not teach or suggest that the subject of an image may specifically be an item for sale (such as an article of clothing), Appellants’ arguments distinguishing over Baker based on the specific type of content are predicated on non-functional descriptive material and are therefore unpersuasive of reversible error. In particular, the recited “article of clothing for sale” is nonfunctional in the context of claim 16 because the content type, i.e., article of clothing, does not perform any function, but merely provides descriptive information. Stated differently, whether the image is of clothing will not affect how the colorimetric rendering transform is used. Therefore, such non-functional descriptive material is not accorded patentable weight.5 In addition, we note the following statement of intended purpose recited in claim 16: “so that a potential purchaser can make a more informed decision about purchasing the article of clothing.” (App. Br. 24 (Claims App’x).) Under a broad but reasonable interpretation, we conclude this phrase merely expresses a purpose. Our reviewing court guides that “[a]n intended use or purpose usually will not limit the scope of the claim because such statements usually do no more than define a context in which the invention operates.” Boehringer Ingelheim Vetmedica, Inc. v. Schering- Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). Although “[s]uch 5 The informational content of non-functional descriptive material is not entitled to weight in the patentability analysis. See Ex parte Nehls, 88 USPQ2d 1883, 1887—90 (BPAI 2008) (precedential); Ex parte Curry, 84 USPQ2d 1272 (BPAI 2005) (informative) (Federal Circuit Appeal No. 2006-1003, aff’d, Rule 36 (June 12, 2006)); Ex parte Mathias, 84 USPQ2d 1276 (BPAI 2005) (informative), aff’d, 191 Fed. Appx. 959 (Fed. Cir. 2006). 11 Appeal 2016-008522 Application 13/722,854 statements often . . . appear in the claim’s preamble,” a statement of intended use or purpose can appear elsewhere in a claim. In re Stencel, 828 F.2d 751, 754 (Fed. Cir. 1987). Thus, the final clause of claim 16 (“so that. . .”) does not limit the scope of the claim and need not be disclosed by the prior art to render the claim obvious. For the foregoing reasons, we are not persuaded of error in the Examiner’s 35 U.S.C. § 103(a) rejection of claim 16, and we, therefore, sustain that rejection. DECISION For the above reasons, the Examiner’s rejection of claims 1—20 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)(l)(iv). AFFIRMED 12 Copy with citationCopy as parenthetical citation