Appeal No. 2006-3221
Application No. 09/955,457
When determining obviousness, “the [E]xaminer can satisfy the burden of showing
obviousness of the combination ‘only by showing some objective teaching in the prior art or that
knowledge generally available to one of ordinary skill in the art would lead that individual to
combine the relevant teachings of the references.’” In re Lee, 277 F.3d 1338, 1343, 61 USPQ2d
1430, 1434 (Fed. Cir. 2002), citing In re Fritch, 972 F.2d 1260, 1265, 23 USPQ2d 1780, 1783
(Fed. Cir. 1992). “Broad conclusory statements regarding the teaching of multiple references,
standing alone, are not ‘evidence.’” In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614,
1617 (Fed. Cir. 1999). “Mere denials and conclusory statements, however, are not sufficient to
establish a genuine issue of material fact.” Dembiczak, 175 F.3d at 999-1000, 50 USPQ2d at
1617, citing McElmurry v. Arkansas Power & Light Co., 995 F.2d 1576, 1578, 27 USPQ2d
1129, 1131 (Fed. Cir. 1993).
Further, as pointed out by our reviewing court, we must first determine the scope of the
claim. “[T]he name of the game is the claim.” In re Hiniker Co., 150 F.3d 1362,1369, 47
USPQ2d 1523, 1529 (Fed. Cir. 1998). Therefore, we look to the limitations as recited in
independent claim 1. We find that the claim recites a method of “simulating fill . . . selectively
adjusting the brightness of regions of the photograph based on the distance information.”
From our review of the Examiner’s rejection and responsive arguments, we cannot find
that the Examiner has met the initial burden of establishing a prima facie case of obviousness.
Appellants argue that:
Nishimura et al. do not teach this claim element [selectively adjusting]. In support of the
rejection, the examiner cites column 5 line 52 through column 7 line 17 of Nishimura et
al. While part of the cited passage does describe exposure control, no mention is made of
selectively adjusting the brightness of regions of the photograph. The system of
Nishimura et al. uses a different “detection characteristic” to set exposure depending on
scene “ambience”. (Nishimura et al. column 7 lines 14-17.) Exposure is controlled using
a “stop” (Nishimura et al. colmnn 2 lines 10-14 and column 3 lines 48-49) or an exposure
time (column 4 lines 5-9). As is well known, a controlling exposure using either a stop,
or an exposure time, or both affects the exposure of an entire photograph substantially
uniformly. Different regions of the photograph are not affected selectively by Nishimura
et al.
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