Ex Parte Tu et al

Patent Trial and Appeal Board

Oct 15, 2012

11003229 (P.T.A.B. Oct. 15, 2012)

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.
11/003,229 12/03/2004 Peter Henry Tu PA0014472U-U71.12-125KL 3807
164 7590 10/15/2012
KINNEY & LANGE, P.A.
THE KINNEY & LANGE BUILDING
312 SOUTH THIRD STREET
MINNEAPOLIS, MN 55415-1002
EXAMINER
JOHNS, ANDREW W
ART UNIT PAPER NUMBER
2665
MAIL DATE DELIVERY MODE
10/15/2012 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 PETER HENRY TU, TIMOTHY PATRICK KELLIHER,
JENS RITTSCHER, and NILS OLIVER KRAHNSTOEVER
____________

Appeal 2010-003367
Application 11/003,229
Technology Center 2600
____________

Before DENISE M. POTHIER, JEFFREY S. SMITH, and JOHN A.
EVANS, Administrative Patent Judges.

EVANS, Administrative Patent Judge

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134 involving claims to systems
and methods for passive face recognition. We have jurisdiction under 35
U.S.C. § 6(b). We affirm.

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Application 11/003,229

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STATEMENT OF THE CASE
The invention relates to a system and method for biometric
authentication via face recognition. (See Spec. 1).1
Claims 1-19 are on appeal. Claims 1, 6-13, 16, 18 and 19 are currently
under final rejection, claims 2-5, 14, 15 and 17 are objected to, claims 20
and 21 have been canceled. (App. Br. 2). For each ground of rejection, the
claims have not been argued separately and therefore stand or fall together.
37 C.F.R. § 41.37(c)(1)(vii).

Claim 1 is representative and reads as follows:
1. A method of face recognition, comprising:
capturing an image including a face;
registering features of the image to fit with a model face
to generate a registered model face;
transforming the registered model face to a desired
orientation to generate a transformed model face; and
comparing the transformed model face against a plurality
of stored images to identify a number of likely candidates for
the face.

The Examiner relies on the following as evidence of unpatentability:
Giefing US 5,864,363 Jan. 26, 1999
Geng US 2003/0123713 A1 Jul. 3, 2003
Huang US 2005/0147291 A1 Jul. 7, 2005
(filed Nov. 5, 2004)

The claims stand rejected as follows:

1 Throughout this opinion, we refer to the Appeal Brief filed August 17,
2009 (App. Br.), the Examiner’s Answer mailed October 15, 2009 (Ans.),
and Appellants’ Reply Brief, filed December 15, 2009 (Reply Br.).
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 Claims 1, 10-12, and 16 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Geng. (Ans. 3-6). Claims 1, 11, and 16 are
independent. (App. Br. 7).
 Claims 6-9, 13, and 18 stand rejected under 35 U.S.C. §103(a) as
being unpatentable over Geng and Giefing. (Ans. 7-8).
 Claim 19 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Geng and Huang. (Ans. 8).

Contentions and Issue
The Examiner has rejected claims 1, 10-12, and 16 under 35 U.S.C.
§ 102(b) as anticipated. The Examiner finds that Geng discloses each
claimed limitation (Ans. 3-6).
Appellants contend that Geng does not teach or disclose registering
features of the image to fit with a model face to generate a registered model
face; and transforming the registered model face to a desired orientation to
generate a transformed model face as recited in representative claim 1.
(App. Br. 9).
The issue with respect to this rejection is whether Geng fairly
discloses registering the image features that fit with a model face to generate
a registered model face and transforming the registered model face to a
desired orientation.
Analysis
Appellants’ Reply Brief argues that the passage cited by the Examiner
“provides an example when a software registers correspondence between a
set of feature points on a 2-Dimensional image and a 3D model face. This
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example is not the same as registering features of the image to fit with a
model face.” (Reply Br. 3)(emphasis in original). Appellants argue:
One of ordinary skill in the art would most likely interpret the
written blocks of text to mean point-to-point matching between
a 2D texture or image laid over or wrapped over a 3D face
model. Such an interpretation is completely different from
what is recited in the claim elements of the current
Application. . . . Appellants respectfully restate that
scientifically, features and feature points are entirely different;
and again, producing a subject-specific 3D face model by
texture overlay and generating a registered model face are
entirely different.

Id. (emphasis in original).
Appellants’ argument is not well taken. Appellants have not
provided a definition from a recognized source in the art, nor have
Appellants provided evidence, such as in the Specification, a citation to
literature, or an expert declaration, to establish how the terms “feature
points” and “features” are recognized and distinguished by the ordinary
skilled worker. In the absence of evidence, Appellants merely provide
unsupported attorney argument, which is not evidence. See In re Pearson,
494 F.2d 1399, 1405 (CCPA 1974). Arguments of counsel cannot take the
place of evidence. See In re Huang, 100 F.3d 135, 139-40 (Fed. Cir. 1996);
In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Figure 11 of Geng is a process flow diagram, the third box of
which is labeled “Overlay the 2D Image onto a 3D Face Model.” The box
includes additional text which describes this operation as “[s]oftware register
corresponding feature points between 2D face image and 3D face model . . .
to produce a subject-specific 3D face model.” See Fig. 11. This
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corresponds to the “registration of any features of an image to fit with a
model face to generate a registered model face” element argued by
Appellants. (App. Br. 11 (emphasis in original)). In particular, the prior art
registers features (i.e., “corresponding feature points”) of an image (i.e., “2D
face image”) with a model face (i.e., “3D face model”) to generate a
registered model face (i.e., “produce a subject-specific 3D face model”), as
required by the claimed invention. (Ans. 9). Geng further discloses:
a face transformation module operable to transform (i.e.,
“manipulate” in the second-to-last box in the flow diagram in
Figure 11) the registered model face (i.e., “the subject-specific
textured 3D face model” in the second-to-last box in the flow
diagram in Figure 11) from the facial orientation to a desired
orientation (i.e., "frontal") to generate a transformed model face
(i.e., “frontal 2D face image” in the second-to-last box in the
flow diagram of Figure 11).

(Ans. 6) (See text matter recited in Geng Figure 11).. Thus, we disagree
with Appellants that Geng fails to disclose transforming the registered model
face to a desired orientation.
Because Appellants’ arguments are not persuasive, we sustain the
rejection of claims 1, 10-12, and 16 as anticipated.

Additional Contentions and Issue
The Examiner has rejected claims 6-9, 13, and 18 under 35 U.S.C.
§103(a) as being unpatentable over Geng as applied to claims 1, 10-12, and
16 above, and further in view of Giefing. (Ans. 7-8).
Appellants repeat the argument that Geng does not teach the
registering and transforming steps in claim 1 and additionally simply state
that Giefing does not overcome the deficiencies of Geng with respect to the
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“registering” step. (App. Br. 17). This ground is not addressed in
Appellants’ Reply Brief.
Analysis
Appellants’ arguments regarding “features” and “feature points” are
not found to be persuasive for the reasons discussed above when addressing
Geng. We therefore need not address whether Giefing cures any purported
deficiency. Claims 6-9, 13, and 18 are not separately argued. App. Br.
17-18. We sustain the rejection of claims 6-9, 13, and 18 as obvious.

Further Contentions and Issue
The Examiner has rejected claim 19 as obvious over Geng as applied
to claims 1, 10-12, and 16 above, and further in view of Huang. (Ans. 8).
Appellants repeat the argument that Geng does not teach the
registering and transforming steps in claim 1 and additionally simply state
that Huang does not overcome the deficiencies of Geng with respect to
“registering” step. (App. Br. 18-19). This ground is not addressed in
Appellants’ Reply Brief.
Analysis
Appellants’ arguments regarding “features” and “feature points” are
not found to be persuasive for the reasons discussed above when addressing
Geng. We therefore need not address whether Huang cures any purported
deficiency. We sustain the rejection of claim 19 as obvious.

ORDER

We affirm the rejection of claims 1, 10-12, and 16 as anticipated and
of claims 6-9, 13, 18, and 19 as obvious.
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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

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