Ex Parte Wegbreit et al

Patent Trial and Appeal Board

Mar 29, 2018

13310672 (P.T.A.B. Mar. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/310,672 12/02/2011
80641 7590 03/29/2018
Gard & Kaslow LLP
4 Main Street, Suite 20
Los Altos, CA 94022
FIRST NAMED INVENTOR
Eliot Leonard Wegbreit
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
PA1144US 8550
EXAMINER
LIU, ZHENGXI
ART UNIT PAPER NUMBER
2611
MAILDATE DELIVERY MODE
03/29/2018 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 ELIOT LEONARD WEGBREIT and GREGORY D. HAGER
Appeal2017-006595
Application 13/310,672 1
Technology Center 2600
Before CARL W. WHITEHEAD JR., HUNG H. BUI, and
AMBER L. HAGY, Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1-27, which are all the claims pending
in this appeal. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE. Pursuant to our authority under 37 C.F.R. § 41.50(b),
we also enter a NEW GROUND OF REJECTION for claims 1, 17, and 22-
27. 2
1 According to Appellants, the real party of interest is Strider Labs, Inc.
2 Our Decision refers to Appellants' Reply Brief filed March 17, 201 7
("Reply Br.") and Appeal Brief filed September 20, 2016 ("App. Br.");
Examiner's Answer mailed January 19, 2017 ("Ans."); Final Office Action
mailed October 6, 2015 ("Final Act."); and original Specification filed
December 2, 2011 ("Spec.").
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Application 13/310,672
STATEMENT OF THE CASE
Appellants 'Invention
Appellants' invention relates to "a method for constructing one or
more 3D scene models comprising 3D objects and representing a scene,
based upon a prior 3D model, and a model of scene changes." Spec. i-f 7,
Abstract.
Claims 1, 17, and 22-27 are independent. Claim 1 is illustrative of
the claimed subject matter, as reproduced below:
1. A method for computing one or more 3 D scene
models comprising 3D object models and representing a scene,
based upon a prior 3D scene model, the method comprising the
steps of:
(a) acquiring by a processor an image of the scene;
(b) initializing by the processor the set of 3D scene
models to the prior 3D scene model; and
( c) modifying by the processor the set of 3D scene
models to be consistent with the image, by:
(i) comparing by the processor data of the
image with 3D object models of the 3D scene model,
resulting in differences between the value of the image
data and the corresponding value of the 3D scene model,
in associated data corresponding to 3D object models in
the 3D scene model, and in unassociated data not
corresponding to 3D object models in the 3D scene
model;
(ii) using the results of the comparison by the
processor to detect 3D object models that are inconsistent
with the image and removing by the processor the
inconsistent 3D object models from the 3D scene models;
and
(iii) using the unassociated data by the processor
to compute new 3D object models that are not in the prior
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3 D scene model and adding by the processor the new 3 D
object models to the 3D scene models.
App. Br. 53 (Claims Appx.).
Evidence Considered
Wolberg et al. US 2008/0310757 Al Dec. 18, 2008
Tuzel et al. US 2006/0262959 Al Nov. 23, 2006
Hager et al. US 2005/0286767 Al Dec. 29, 2005
Tinker et al. US 2004/0130549 Al July 8, 2004
Sawhney et al. US 2001/0043738 Al Nov. 22, 2001
Snyder et al. US 6,215,503 Bl Apr. 10, 2001
Jenkins us 6,057,847 May 2, 2000
Hai Tao, Harpreeet A Sampling Algorithm for Jan. 1999
Sawhney, and Rakesh Tracking Multiple Objects,
Kumar ("Tao") Sarnoff Corporation, 201
Washington Rd., Princeton
NJ 08543
Examiner's Rejections
(1) Claims 1, 2, 8, 16, 22, and 24--27 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Wolberg, Sawhney, and Tinker.
Final Act. 2-27.
(2) Claims 3, 9, 10, and 12 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Wolberg, Sawhney, Tinker, and Jenkins. Final
Act. 28-34.
(3) Claims 4 and 14 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wolberg, Sawhney, Tinker, and Tao. Final Act.
34--39.
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(4) Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wolberg, Sawhney, Tinker, and Hager. Final Act. 39-44.
(5) Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wolberg, Sawhney, Tinker, Hager, and Tuzel. Final Act.
44--45.
(6) Claims 11 and 13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wolberg, Sawhney, Tinker, Jenkins, and Snyder.
Final Act. 45-55.
(7) Claim 15 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wolberg, Sawhney, Tinker, Tao, and Tuzel. Final Act.
53.
(8) Claims 17 and 23 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Sawhney and Tinker. Final Act. 55-61.
(9) Claims 18 and 21 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Sawhney, Tinker, and Jenkins. Final Act. 61---64.
(10) Claim 19 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Sawhney, Tinker, and Hager. Final Act. 64---67.
(11) Claim 20 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Sawhney, Tinker, Hager, and Tuzel. Final Act. 67---69.
Issues on Appeal
Based on Appellants' arguments, the dispositive issues on appeal are:
( 1) whether the cited prior art discloses all limitations of Appellants'
independent claims 1, 17, and 22-27; and (2) whether the Examiner has
provided articulated reasoning with rational underpinning to combine the
prior art references. App. Br. 16-50; Reply Br. 6-24.
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ANALYSIS
Independent Claims 1, 22, and 24-27
In support of the obviousness rejection of claims 1, 22, and 24--27, the
Examiner finds Wolberg teaches Appellants' method for computing one or
more 3D scene models comprising 3D object models and representing a
scene, based upon a prior 3D scene model, including:
(a) acquiring by a processor an image of the scene;
(b) initializing by the processor the set of 3D scene
models to the prior 3D scene model; and
( c) modifying by the processor the set of 3D scene
models to be consistent with the image, by:
(i) comparing by the processor data of the
image with 3D object models of the 3D scene model,
resulting in differences between the value of the image
data and the corresponding value of the 3D scene model,
in associated data corresponding to 3D object models in
the 3D scene model, and in unassociated data not
corresponding to 3D object models in the 3D scene
model.
Final Act. 2-5 (citing Wolberg i-fi-f 17-18, 22, 53, 55---61, Figs. 2, 4).
The Examiner then relies on Sawhney for teaching substeps:
(ii) using the results of the comparison by the
processor to detect 3D object models that are inconsistent
with the image and removing by the processor the
inconsistent 3D object models from the 3D scene models;
and
(iii) using the unassociated data by the processor
to compute new 3D object models that are not in the prior
3D scene model and adding by the processor the new 3D
object models to the 3D scene models.
Final Act. 5-7 (citing Sawhney i-fi-169-70, Figs. 5, 9, 13). To the extent
necessary, the Examiner also relies on Tinker for teaching the initialization
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step (b) - a feature that is also disclosed by W olberg - to support the
conclusion of obviousness. Final Act. 7-8 (citing Tinker i-f 8).
Appellants dispute the Examiner's factual findings regarding W olberg
and Sawhney, as well as the Examiner's rationale to make the combination.
In particular, Appellants argue Wolberg does not teach (1) "computing one
or more 3D scene models comprising 3D object models and representing a
scene, based on a prior 3D scene model" and (2) "comparing ... data of the
image with 3D object models of the 3D scene model" as recited in claim 1
(similarly, claims 22 and 24--27), because "the concept of 3D object models
as part of a 3D scene is simply not present in Wolberg" and Wolberg "does
not use or describe 3D object models" and, as such, does not make any
comparison. App. Br. 16-19; Reply Br. 6-9. According to Appellants,
"[t]he issue is whether Wolberg even has the concept of a 3D object model
as a separate part of the 3D scene model. The answer is no: Wolberg has no
such teaching." Reply Br. 8 (emphasis omitted).
Appellants also argue Sawhney does not teach (1) "adding an object
to, and deleting an object from, a 3D model," and (2) the use of
"unassociated data to compute new 3D object models that are not in the prior
3D scene model and adding the new 3D object models to the 3D scene
model" as recited in claim 1 (similarly, claims 22 and 24--27). App. Br. 19-
33; Reply Br. 9-14. According to Appellants, the cited paragraphs 69-70 of
Sawhney describe updating a 3D model based on image data and changing
existing objects (i.e., objects may be added or deleted) in context of
"detailed refinement of a three dimensional model ... with definition of
local surface shape and text," but not in context of a 3D model of a scene.
App. Br. 21-28.
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In response, the Examiner takes the position that: ( 1) W olberg
teaches "a 3D model of a scene" and "3D object models" (Ans. 4--6 (citing
Wolberg's title)); and (2) "[t]he 'detailed refinement' of the 3D model of the
scene will better approximate the true shape and surfaces that reflect
changed, added, and deleted objects in the scene" and, as such, "according to
Sawhney, object models are added to or deleted from the 3D scene model."
Ans. 4--6, 8-10, 12 (citing Wolberg i170, Title)
We agree with the Examiner only in part. At the outset, we note
Appellants' emphasis on "a 3D object model" as "a separate part of a 3D
scene model" ("3D scene models comprising 3D object models" recited in
the preamble of claim 1) is misplaced. Now here in Appellants'
Specification is there any description of "a 3D object model" as being "a
separate part of a 3D scene model" as Appellants argue. App. Br. 16-18.
Instead, Appellants' Specification describes ( 1) "constructing a 3 D scene
model from an image of a scene" and (2) the 3D scene model is a collection
of objects, wherein each of these objects corresponds to a physical object in
the prior physical scene. Spec. i-fi-f l, 11, 18-20. The term "3D object
models" was added in Appellants' Amendment filed on April 9, 2015, to
replace "3D objects" and paragraphs 19-20 of Appellants' Specification
were cited to provide support for the changes. Contrary to Appellants'
averment, the cited paragraphs 19-20 of Appellants' Specification only
describe the 3D scene model as "a collection of objects" and not "3D object
models." Based on Appellants' Specification, the term "3D scene models
comprising 3D object models" recited in the claims can be broadly and
reasonably interpreted to encompass both Wolberg's construction of a 3D
model of a scene and Sawhney's construction of a 3D model of a scene.
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Nevertheless, we agree with Appellants that neither Wolberg nor
Sawhney teaches or suggests (1) the comparison between data of an image
with 3D object models of the 3D scene model (i.e., 3D objects of a 3D scene
model), and (2) the distinction between "associated data" and "unassociated
data" produced as a result of comparison between the image and objects of
the 3D scene model, and then (3) "using the results of the comparison ... to
detect 3D object models (i.e., 3D objects) that are inconsistent with the
image and removing ... inconsistent 3D object models from the 3D scene
models" and (4) "using the associated data ... to compute new 3D object
models that are not in the prior 3D scene model and adding ... new 3D
object models to the 3D scene models" as recited in claims 1, 22, and 24--27.
Contrary to the Examiner's findings, Wolberg describes a method for
automatically aligning 2D images of a scene to a 3D model of the scene.
See Wolberg, Abstract. The cited paragraphs (14 and 55-61) ofWolberg
describe a multiview pose estimation and 3D structure refinement, and do
not teach the disputed limitation:
comparing by the processor data of the image with 3D object
models of the 3 D scene model, resulting in differences between
the value of the image data and the corresponding value of the
3D scene model, in associated data corresponding to 3D object
models in the 3 D scene model, and in unassociated data not
corresponding to 3D object models in the 3D scene model
as recited in claim 1, and similarly, claims 22 and 24--27.
During examination, claim terms are given their broadest reasonable
interpretation consistent with the specification. In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). However, when the
specification of a patent contains a "special definition given to a claim term
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by the patentee," that definition controls interpretation of the term as it is
used in the claim. Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir.
2005) (en bane). Both the terms (1) "associated data" and (2) "unassociated
data" are defined by Appellants' Specification as: (1) "[i]mage data that is
consistent with a corresponding object" and (2) "[i]mage data that is not
consistent with corresponding objects of the scene model" respectively.
Spec. ,-r 40.
Because ( 1) the Examiner has not accounted for these two different
types of data and (2) Wolberg and Sawhney fail to teach or suggest each and
every feature of Appellants' independent claims 1, 22, and 24--27,
particularly the disputed limitations discussed supra, we do not sustain the
Examiner's obviousness rejection of these claims, as well as dependent
claims 2-16. For the same reasons discussed, we also do not sustain the
Examiner's obviousness rejection of independent claims 17 and 23 and
dependent claims 18-21.
NEW GROUNDS OF REJECTION
Pursuant to our authority under 3 7 C.F .R. § 41. 50(b ), however, we
reject independent claims 1, 17, and 22-27 under 35 U.S.C. § 101 as
directed to patent-ineligible subject matter for the following reasons.
Patent eligibility is a question of law that is reviewable de nova.
Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333 (Fed. Cir. 2012). The
Supreme Court has long held that "[l]aws of nature, natural phenomena, and
abstract ideas [e.g., mental processes3] are not patentable." Alice Corp. Pty.
3 See Gottschalkv. Benson, 409 U.S. 63, 67 (1972) ("Phenomena of nature,
though just discovered, mental processes, and abstract intellectual concepts
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Ltd. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2354 (2014). The "abstract ideas"
category embodies the longstanding rule that an idea, by itself, is not
patentable. Alice Corp., 134 S. Ct. at 2355 (quoting Gottschalkv. Benson,
409 U.S. 63, 67 (1972)).
In Alice, the Supreme Court set forth an analytical "framework for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts." Id. at 2355 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 79 (2012)). The first step in the analysis is to
"determine whether the claims at issue are directed to one of those patent-
ineligible concepts." Id. If not, the inquiry ends. Thales Visionix Inc. v.
US., 850 F.3d 1343, 1346 (Fed. Cir. 2017); Enfzsh, LLC v. Microsoft Corp.,
822 F.3d 1327, 1339 (Fed. Cir. 2016). If the claims are directed to apatent-
ineligible concept, the second step in the analysis is to consider the elements
of the claims "individually and 'as an ordered combination"' to determine
whether there are additional elements that "'transform the nature of the
claim' into a patent-eligible application." Id. (quoting Mayo, 566 U.S. at
78-79). In other words, the second step is to "search for an 'inventive
concept'-i.e., an element or combination of elements that is 'sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself."' Id. (alteration in original) (quoting
Mayo, 566 U.S. at 72-73).
In applying the framework set out in Alice, and as the first step of the
analysis, we find Appellants' independent claims 1, 17, and 22-27 are
are not patentable, as they are the basic tools of scientific and technological
work."). (Emphasis added).
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directed to a patent-ineligible abstract concept of 3D modeling of an image
involving making modification of a 3D scene model based on an image
obtained from a scene. All the steps of Appellants' claims 1, 17, and 22-27,
including, for example: (i) "comparing ... data of the image with 3D object
models of the 3D scene model, resulting in differences between the value of
the image data and the corresponding value of the 3D scene model, in
associated data corresponding to 3D object models in the 3D scene model,
and in unassociated data not corresponding to 3D object models in the 3D
scene model;" (ii) "using the results of the comparison ... to detect 3D
object models that are inconsistent with the image and removing ...
inconsistent 3D object models from the 3D scene models;" and (iii) ''using
the unassociated data ... to compute new 3D object models that are not in
the prior 3D scene model and adding ... new 3D object models to the 3D
scene models" are 3D abstractions of an image or an abstract concept that
could be performed in the human mind, or by a human using a pen and
paper. CyberSource Corp. 654 F.3d at 1372. "[M]ental processes-or
processes of human thinking-standing alone are not patentable even if they
have practical application." In re Comiskey, 554 F.3d 967, 979 (Fed. Cir.
2009); see also Gottschalk, 409 U.S. at 67 ("Phenomena of nature ... ,
mental processes, and abstract intellectual concepts are not patentable, as
they are basic tools of scientific and technological work." (emphasis
added)). Mental processes remain unpatentable even when automated to
reduce the burden on the user of what once could have been done with pen
and paper. CyberSource, 654 F.3d at 1375 ("That purely mental processes
can be unpatentable, even when performed by a computer, was precisely the
holding of the Supreme Court in Gottschalk v. Benson."). Likewise,
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attaching the claimed "mental process" to a computer or processor, as
Appellants argue (App. Br. 18; Reply Br. 5), does not transform the claimed
"mental process" into a patent-eligible subject matter under 35 U.S.C. § 101
unless the computer or processor is required. See SiRF Tech., Inc. v. Int 'l
Trade Comm 'n, 601 F.3d 1319, 1331 (Fed. Cir. 2010). Appellant has not
presented any argument or evidence that the claimed "mental process" must
be performed by a computer or processor, as per SiRF Tech.
Alternatively, we also find Appellants' claims 1, 17, and 22-27, when
considered in light of Appellants' Specification, are directed to the abstract
idea of 3D modeling of an image involving data manipulation or
organization through mathematical correlations, which is similar to the
computing formula discussed in Parker v. Flook, 437 U.S. 584 (1978), and
the Arrhenius formula in Diamond v. Diehr, 450 U.S. 175 (1981).
Information as such is intangible, and data analysis and algorithms are
abstract ideas. See, e.g., Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 451
n.12 (2007); Alice, 134 S. Ct. at 2355; Flook, 437 U.S. at 589, 594--95
("Reasoning that an algorithm, or mathematical formula, is like a law of
nature, Benson applied the established rule that a law of nature cannot be the
subject of a patent."); and Gottschalk, 409 U.S. at 71-72. Information
collection and analysis, including when limited to particular content, is
within the realm of abstract ideas. See, e.g., Internet Patents Corp. v. Active
Network, Inc., 790 F.3d 1343, 1349 (Fed. Cir. 2015); Digitech Image Techs.,
LLC v. Elecs.for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014); and
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir.
2011 ). That is, "[ w ]ithout additional limitations, a process that employs
mathematical algorithms to manipulate existing information to generate
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additional information is not patent eligible." Digitech, 758 F.3d at 1349-51
("Data in its ethereal, non-physical form is simply information that does not
fall under any of the categories of eligible subject matter under section
101").
As to the second step of the Alice inquiry, we find Appellants' claims
1, 17, and 22-27 do not add significantly more to the abstract idea of 3D
scene modeling and data organization through mathematical relationships or
transform the abstract idea into a patent-eligible application. Alice, 134 S.
Ct. at 2357. Particularly, claims 1, 17, and 22-27 recite well-understood,
routine, and conventional elements that enable the creation of a 3D scene
model using a "generic computer to perform generic computer functions"
that are well-understood, routine, and conventional. Id. at 2359.
As recognized by the Supreme Court, "the mere recitation of a generic
computer cannot transform a patent-ineligible abstract idea into a patent-
eligible invention." See Alice, 134 S. Ct. at 2358; see also id. at 2359
(concluding claims "simply instruct[ ing] the practitioner to implement the
abstract idea of intermediated settlement on a generic computer" not patent
eligible). Likewise, "the use of generic computer elements like a
microprocessor or user interface do not alone transform an otherwise
abstract idea into patent-eligible subject matter." FairWarning IP, LLC v.
Iatric Sys., Inc., 839 F.3d 1089, 1096 (Fed. Cir. 2016) (citing DDR
Holdings, LLC, v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014));
see also Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728
F.3d 1336, 1344--45 (Fed. Cir. 2013) (claims reciting "generalized software
components arranged to implement an abstract concept [of generating
insurance-policy-related tasks based on rules to be completed upon the
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occurrence of an event] on a computer" are not patent eligible); Dealertrack,
Inc. v. Huber, 674 F.3d 1315, 1333-34 (Fed. Cir. 2012) ("Simply adding a
'computer aided' limitation to a claim covering an abstract concept, without
more, is insufficient to render [a] claim patent eligible.").
Because Appellants' claims 1, 17, and 22-27 are directed to a patent-
ineligible abstract concept and do not recite something "significantly more"
under the second prong of the Alice analysis, we issue a new ground of
rejection of independent claims 1, 17, and 22-27 under 35 U.S.C. § 101 as
being directed to patent-ineligible subject matter. In rejecting claims 1, 17,
and 22-27, we note that we are primarily a reviewing body, rather than a
place of initial examination. We, therefore, leave it to the Examiner to
determine whether those claims that depend from claims 1, 17, and 22-27,
respectively, should be rejected on similar grounds to those set forth herein
or in combination with additional prior art. The fact that we did not enter
new grounds of rejection for the dependent claims should not be construed
to mean that we consider the dependent claims to be directed to patentable
subject matter.
DECISION
On the record before us, we conclude Appellants have demonstrated
the Examiner erred in rejecting claims 1-27 under 35 U.S.C. § 103(a). As
such, we REVERSE the Examiner's final rejection of claims 1-27 under 35
U.S.C. § 103(a).
However, pursuant to our authority under 37 C.F.R. § 41.50(b), we
enter a NEW GROUND of rejection for independent claims 1, 17, and 22-
27 under 35 U.S.C. § 101 as being directed to non-statutory subject matter.
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Rule 37 C.F.R. § 41.50(b) states that "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
Further, § 41.50(b) also provides that Appellants, WITHIN TWO MONTHS
FROM THE DATE OF THE DECISION, must exercise one of the
following two options with respect to the new grounds of rejection to avoid
termination of the appeal as to the rejected claims:
( 1) Reopen prosecution. Submit an appropriate amendment
of the claims so rejected or new [ e ]vidence relating to the claims
so rejected, or both, and have the matter reconsidered by the
examiner, in which event the prosecution will be remanded to the
exammer ....
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record ....
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).
REVERSED; 37 C.F.R. § 41.50(b)
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