CYCLOPS TECHNOLOGY GROUP, LLC

Patent Trials and Appeals Board

Apr 21, 2021

2020005130 (P.T.A.B. Apr. 21, 2021)

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.
13/939,438 07/11/2013 Robert Sebastian Dietl CYZ0001US2 (100US2) 8067
23413 7590 04/21/2021
CANTOR COLBURN LLP
20 Church Street
22nd Floor
Hartford, CT 06103
EXAMINER
REN, ZHUBING
ART UNIT PAPER NUMBER
2483
NOTIFICATION DATE DELIVERY MODE
04/21/2021 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):
usptopatentmail@cantorcolburn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT SEBASTIAN DIETL
Appeal 2020-005130
Application 13/939,438
Technology Center 2400
Before JAMES R. HUGHES, JOHN A. EVANS, and LARRY J. HUME,
Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1–19 and 21–23, which are all claims
pending in the application. Appellant has canceled claim 20. See Final
Act. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Cyclops
Technology Group, LLC. Appeal Br. 3.
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Application 13/939,438

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STATEMENT OF THE CASE2
The claims are directed to a surveillance system and associated
methods of use. See Spec. (Title). Specifically, Appellant’s disclosed
embodiments and claimed invention “relate[] to video surveillance systems
and in particular to self-contained surveillance systems having a camera
array configured to allow 360° live remote monitoring, and video archiving
features.” Spec. ¶ 2.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
Appeal (emphases added to contested prior-art limitations):
1. A device for surveillance imaging approximately
360 degrees comprising:
a housing defining an internal chamber and including a
viewing window on each side wall, wherein the internal
chamber of the housing comprises,
(a) a mounting platform having a top surface and a
bottom surface and a plurality of two-dimensional slots
extending therethrough;
(b) a plurality of camera mounting brackets comprising
one end having a camera mount configured to adjustably affix a
camera, and another end configured to be slidably and/or
adjustably affixed to the mounting platform through the
plurality of two-dimensional slots having a two-dimensional
configuration for the camera mounting brackets to slide and/or
adjustably affix along an axis of the mounting platform; and

2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
Mar. 12, 2020); Reply Brief (“Reply Br.,” filed June 30, 2020); Examiner’s
Answer (“Ans.,” mailed Apr. 30, 2020); Final Office Action (“Final Act.,”
mailed Apr. 11, 2019); and the original Specification (“Spec.,” filed
July 11, 2013).
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(c) a camera adjustably affixed to each camera mounting
bracket, wherein the cameras are configured to allow
approximately 360 degree viewing or imaging simultaneously.
REFERENCES
The prior art relied upon by the Examiner as evidence is:
Name Reference Date
Thornhill US 2005/0151846 A1 July 14, 2005
Monroe US 7,023,913 B1 Apr. 4, 2006
Rowen et al. (“Rowen”) US 2010/0104274 A1 Apr. 29, 2010
Jayaram et al. (“Jayaram”) US 2011/0249100 A1 Oct. 13, 2011
REJECTIONS
R1. Claim 1–17 and 21–23 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Jayaram and Rowen.
Final Act. 3.
R2. Claim 18 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Jayaram, Rowen, and Thornhill.
Final Act. 7.
R3. Claim 19 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Jayaram, Rowen, and Monroe.
Final Act. 7.
CLAIM GROUPING
Based on Appellant’s arguments (Appeal Br. 5–15) and our discretion
under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of obviousness
Rejection R1 of claims 1–17 and 21–23 on the basis of representative
claim 1.
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Remaining claims 18 and 19 in Rejections R2 and R3, not argued
separately with specificity, stand or fall with the respective independent
claim from which they depend.3
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. To the extent Appellant has not
advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv).
We disagree with Appellant’s arguments with respect to claims 1–17
and 21–23 and, unless otherwise noted, we incorporate by reference herein
and adopt as our own: (1) the findings and reasons set forth by the Examiner
in the action from which this appeal is taken; and (2) the reasons and
rebuttals set forth in the Examiner’s Answer in response to Appellant’s
arguments. We highlight and address specific findings and arguments
regarding claim 1 for emphasis as follows.
1. 35 U.S.C. § 103(a) Rejection R1 of Claims 1–17 and 21–23
Issue 1
Appellant argues (Appeal Br. 5–14; Reply Br. 3–15) the Examiner’s
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the

3 “Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv).
In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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combination of Jayaram and Rowen is in error. These contentions present us
with the following issue:
Did the Examiner err in rejecting claim 1 over the combination of
Jayaram and Rowen because the features of the reference combination are
not compatible for their intended purposes and, even if combined, the
resulting combination would result in a system that lacks the claimed
features and connectivity?
Principles of Law
“[O]ne cannot show non-obviousness by attacking references
individually where . . . the rejections are based on combinations of
references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). “The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference. . . . Rather,
the test is what the combined teachings of those references would have
suggested to those of ordinary skill in the art.” Keller, 642 F.2d at 425.
The test for obviousness is what the combined teachings of the prior
art would have suggested to the hypothetical person of ordinary skill in the
art. Id.
As explained in In re McLaughlin:
Any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level
of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant’s
disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
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In KSR, the Court stated “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
416 (2007).
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill . . . . [A] court
must ask whether the improvement is more than the predictable
use of prior art elements according to their established
functions.
KSR, 550 U.S. at 417.
Further, the relevant inquiry is whether the Examiner has set forth
“some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006) (cited with approval in KSR, 550 U.S. at 418).
Analysis
The Examiner rejects claim 1 as being obvious over the combination
of Jayaram and Rowen and, in particular, the Examiner finds Rowen teaches
or suggests the detailed structure of the claimed mounting brackets. Final
Act. 4. The Examiner specifically finds:
Rowen teaches the well-known concept of a mounting platform
having a plurality of two-dimensional slots [e.g. FIG. 3; 22]
extending therethrough and a plurality of camera mounting
brackets [e.g. FIG. 1; 4 and 6] comprising one end having a
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camera mount [e.g. FIG. 4] configured to adjustably affix a
camera [e.g. FIG. 1; camera 1], and another end [e.g. FIG. 3
and 4; e.g. 8 and 20] configured to be slidably and/or adjustably
affixed to the mounting platform through the plurality of two
dimensional slots having a two-dimensional configuration for
the camera mounting brackets to slide and/or adjustably affix
along an axis [e.g. FIG. 4; horizontal direction and vertical
direction adjusting] of the mounting platform.
Id. (emphasis omitted).
In response to the Examiner’s rejection, Appellant initially contends:
[T]he asserted combination of references fails to teach or
suggest the claimed connectivity and adjustability of the
mounting platform and the camera mounting brackets, which
has observed commercial success in the market place and
praise by others. The claimed apparatus allows for a single
device to surveil a large area (such as, a parking lot), which was
not heretofore possible.
Appeal Br. 7–8 (emphasis added).4

4 It appears that Appellant is attempting to argue patentability of the claims
by relying upon objective indicia of nonobviousness (also known as
“secondary considerations”). However, we see no evidence of record
supporting any assertion of a specific nexus between the recited claim
language and any purported objective indicia of nonobviousness. See
Demaco Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1391–94
(Fed. Cir. 1988) (noting that evidence of objective indicia of nonobviousness
must be considered despite a strong case for obviousness based on prior art,
and laying out an “evidentiary routine” where a patentee must establish a
prima facie case of a nexus between commercial success and the claimed
invention); Simmons Fastener Corp. v. Ill. Tool Works, Inc., 739 F.2d 1573,
1575 (Fed. Cir. 1984) (Explaining that the weight accorded to secondary-
considerations evidence depends on a demonstration of “[a] nexus between
the merits of the claimed invention and the evidence of secondary
considerations.”). Thus, on this record, we are not persuaded that objective
indicia of nonobviousness overcomes the prima facie case of obviousness.
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In particular, Appellant extensively argues that Jayaram does not
teach or suggest the disputed limitation regarding the structure of the
claimed mounting brackets. Appeal Br. 9. However, this argument is not
commensurate with the Examiner’s rejection, which relies upon Rowen for
this teaching.
Appellant primarily argues that a person of ordinary skill in the art
would not be motivated or led to modify Jayaram to include the claimed
two-dimensional mounting system. Appeal Br. 10. This alleged lack of
motivation “to modify Jayaram to include the two-dimensional mounting
system presently claimed [is deficient] because in doing so, it would result in
the cameras not aligning with the port or aperture (18, 118) in the housing
(16, 116) of Jayaram.” Id. (citing Jayaram Figs. 2, 4, 5, 6, and 8).
Appellant further argues:
Jayaram is designed such that a single camera is fixed to each
and every one of the pre-determined mounting positions of the
base plate. The mounting positions in Jayaram are fixed and are
not intended to facilitate repositioning or flexibility in
positioning relative to the support plate (42) because Jayaram
contemplates using a camera at each and every mounting point
(see, e.g., Figures 4-9 of Jayaram). Jayaram does not provide a
mounting system, such as the one instantly claimed, that
provides for the camera to be slidably affixed in a plane parallel
to the mounting platform, which provides for greater flexibility
in coverage, nor would one skilled in the art modify the
apparatus of Jayaram to include such a mounting system as it
would result in a non-functional system—cameras not aligned
with the fixed ports or apertures (18). For at least this reason,
any rejection, including the present rejection that is based on a
combination that includes Jayaram must fail.
Id.
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In addition, Appellant argues the Examiner’s statement of motivation
“once again fails to appreciate that the features of Jayaram and Rowen that
the Office seeks to combine are not compatible and combining said features
would result in a system that lacks each and every feature of the presently
claimed invention.” Appeal Br. 11. Appellant alleges this to be the case
because “the mounting system of Rowen is a single bolt that affixes, not
adjustably affix, a single camera to a plate (4) by clamping the plate
(4) between the knob (20) of the bolt (8) and the camera (1). Thus, Rowen's
mounting system specifically removes the ability to ‘adjustably affix a
camera’ on one end of a mounting bracket that has another end that is
configured to slidably and/or adjustably affix to the mounting platform.” Id.
Appellant also contends:
[C]laims 1 and 22 of the present disclosure required two points
of adjustability—one end of the camera mounting bracket that
has a camera mount that adjustably affixes a camera; and a
second end of the camera mounting bracket that slidably and/or
adjustably affix to a two-dimensional configuration of a slot of
the mounting platform-which Rowen fails to teach or suggest.
As such, Rowen does not teach or suggest to one of ordinary
skill in the art “a plurality of camera mounting brackets
comprising one end having a camera mount configured to
adjustably affix a camera, and another end configured to be
slidably and/or adjustably affixed to the mounting platform
through the plurality of two dimensional slots having a two-
dimensional configuration for the camera mounting brackets to
slide and/or adjustably affix along an axis of the mounting
platform[,]” as is recited in claim[] 1. . . . For at least this
reason, the rejection should be withdrawn, and allowance is
respectfully requested.
Id.
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In response to Appellant’s arguments, the Examiner acknowledges
that Jayaram does not teach or suggest camera mounting brackets that are
slidable through a plurality of two-dimensional slots, but finds “in a same or
similar endeavor, FIG. 1 and 3 of Rowen teach the well-known concept of a
camera mounting bracket 4 and 8 including one end to affix camera 1 and
another end sliding and adjustably through the plurality of two-dimensional
slots 22 and 24 having a two-dimensional configuration for the camera
mounting brackets to slide to properly align a camera. This also permits a
camera to be secured to the plate at a variety of positions.” Ans. 7.
With respect to motivation, the Examiner finds, and we agree,
“Rowen provides the motivation that it would have been obvious to the
person of ordinary skill in the art at the time of the invention to modify the
method of adjusting camera position for the surveillance system disclosed by
Jayaram to exploit the well-known concept of camera mounting technique
taught by Rowen as above, in order to properly align a camera to provide
improved positioning of the camera.” Id. (citing Rowen ¶¶ 11, 30).
The Examiner further explains, “[e]ven if the suggestion for
combination is not particularly specified in either Jayaram or Rowen the
question in the test for combining references in a section 103 rejection is not
solely relied on what the individual reference expressly teaches.” Ans. 8
(citing to McLaughlin, 443 F.2d at 1395) (The test for combining references
includes knowledge which was within the level or ordinary skill in the art at
the time of the invention and which does not include knowledge gleaned
only from applicant’s disclosure.).
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Appellants have not demonstrated that the Examiner’s proffered
combination of references would have been “uniquely challenging or
difficult for one of ordinary skill in the art.” See Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550
U.S. at 418). Nor have Appellants provided objective evidence of objective
indicia of nonobviousness (“secondary considerations”) which our reviewing
court guides “operates as a beneficial check on hindsight.” Cheese Sys., Inc.
v. Tetra Pak Cheese and Powder Sys., 725 F.3d 1341, 1352 (Fed. Cir. 2013).
Accordingly, We agree with, and adopt as our own the Examiner’s
findings regarding specific teachings of Rowen and its mounting brackets
that permit the camera to be secured to the plate at a variety of positions
(Ans. 8–9), and further agree with the Examiner’s stated motivation to
combine Jayaram with Rowen. See Ans. 7–8.
Based upon the findings above, on this record, we are not persuaded
of error in the Examiner’s reliance on the cited prior art combination to teach
or suggest the limitations of claim 1, nor do we find error in the Examiner’s
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner’s obviousness rejection of independent claim 1, and grouped
claims 2–17 and 21–23, which fall therewith. See Claim Grouping, supra.
4. Rejections R2 and R3 of Claims 18 and 19
In view of the lack of any substantive or separate arguments directed
to obviousness Rejections R2 and R3 of claims 18 and 19 under § 103 (see
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Appeal Br. 14–15), we sustain the Examiner’s rejection of these claims.
Arguments not made are waived.5
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 3–15) not in response to a shift in the Examiner’s position
in the Answer, arguments raised in a Reply Brief that were not raised in the
Appeal Brief or are not responsive to arguments raised in the Examiner’s
Answer will not be considered except for good cause (see 37 C.F.R.
§ 41.41(b)(2)), which Appellant has not shown.
CONCLUSION
Appellant has not persuasively argued that the Examiner erred with
respect to obviousness Rejections R1 through R3 of claims 1–19 and 21–23
under 35 U.S.C. § 103(a) over the cited prior art combinations of record, and
we sustain the rejections.

5 Appellant merely argues, “[f]or at least the reasons discussed above with
regard to claim 1, as well as the features recited therein, claim 18 is
patentable over the combination of Jayaram, Rowen, and Thornhill,” and
“[f]or at least the reasons discussed above with regard to claim 1, as well as
the features recited therein, claim 19 is patentable over the combination of
Jayaram, Rowen, and Monroe.” Appeal Br. 15.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
References/
Basis Affirmed Reversed
1–17, 21–23 103(a)
Jayaram,
Rowen 1–17, 21–23
18 103(a)
Jayaram,
Rowen,
Thornhill
18
19 103(a)
Jayaram,
Rowen,
Monroe
19
Overall
Outcome 1–19, 21–23
FINALITY AND RESPONSE
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). See 37
C.F.R. § 41.50(f).
AFFIRMED