Ex Parte Moroney et al

Patent Trial and Appeal Board

May 25, 2017

13722854 (P.T.A.B. May. 25, 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.
13/722,854 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
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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
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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).
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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).)
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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
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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,
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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).
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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
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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
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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).
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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
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