Ex Parte 7190834 et alDownload PDFBoard of Patent Appeals and InterferencesSep 1, 201195001180 (B.P.A.I. Sep. 1, 2011) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 95/001,180 06/08/2009 7190834 M2058-6000 2085 23459 7590 09/01/2011 COGNEX CORPORATION INTELLECTUAL PROPERTY DEPARTMENT 1 VISION DRIVE NATICK, MA 01760-2077 EXAMINER LAROSE, COLIN M ART UNIT PAPER NUMBER 3992 MAIL DATE DELIVERY MODE 09/01/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ MVTec SOFTWARE GmbH Requester and Appellant v. COGNEX CORPORATION Patent Owner and Respondent ____ Appeal 2011-006583 Reexamination Control No. 95/001,180 Patent 7,190,834 B2 Technology Center 3900 ____________ Before SALLY C. MEDLEY, KEVIN F. TURNER, and STEPHEN C. SIU, Administrative Patent Judges. SIU, Administrative Patent Judge. DECISION ON APPEAL This proceeding arose from a third party request on behalf of MVTec Software GmbH for an inter partes reexamination of U. S. Patent 7,190,834 B2 (the ‘834 patent) assigned to Cognex Corporation and issued to Jason Appeal 2011-006583 Reexamination Control 95/001,180 Patent 7,190,834 B1 2 Davis (March 13, 2007). We have jurisdiction under 35 U.S.C. §§ 134(b) and 306. An oral hearing of this appeal was held on June 1, 2011. The ‘834 patent describes a system for searching for a pattern in an image (col. 1, ll. 8-9). Claim 1 on appeal reads as follows: 1. A method for finding a deformed pattern in an image, the method comprising: providing a plurality of features that represent the deformed pattern in the image; dividing the plurality of features into a plurality of sub-pluralities, each sub-plurality representing a sub-pattern in the image, a plurality of the sub-patterns representing the deformed pattern; determining a distance between each pair of sub-patterns of the plurality of sub-pluralities; selecting a first sub-pattern to locate in the image; locating the first sub-pattern in the image so as to provide a first sub- pattern location; using the first sub-pattern location to select a second sub-pattern to locate in the image; and locating the second sub-pattern in the image so as to provide a second sub-pattern location; and using the first sub-pattern location and the second sub-pattern location to determine a location of the deformed pattern. (Supp. App. Br. 29, Claims Appendix.) The Examiner confirms patentability of the claims over the following prior art references: Fukasawa US 6,111,984 Aug. 29, 2000 W. Eric L. Grimson, “On the Recognition of Parameterized 2D Objects,” International Journal of Computer Vision, 3, 353-372 (1988) (“Grimson”). Daniel Tretter, Charles A. Bouman, Khalid W. Khawaja, and Anthony A. Maciejewski, “A Multiscale Stochastic Image Model for Automated Appeal 2011-006583 Reexamination Control 95/001,180 Patent 7,190,834 B1 3 Inspection,” IEEE Transactions on Image Processing, Vl. 4, No. 12, December 1995 (“Tretter”). Christian Balkenius and Lars Kopp, “Elastic Template Matching as a Basis for Visual Landmark Recognition and Spatial Navigation,” Lund University Cognitive Science, 1997 (“Balkenius”). Appellant appeals the Examiner’s confirmation of patentability of the following claims with respect to the following proposed rejections: Claims 1-4 and 7-9 as being anticipated by Balkenius. Claims 5 and 6 as being obvious over Balkenius. Claims 1, 2, 4, 8, and 9 as being anticipated by any one of Fukasawa, Grimson, or Tretter. Claims 3 and 5-7 as being obvious over any one of Fukusawa, Grimson, or Tretter. ISSUE Did the Examiner err in making a final decision favorable to the patentability of claims 1-9? ANALYSIS We have reviewed the Examiner’s confirmation of patentability of claims 1-9 in light of Appellant’s arguments. Claims 1-9 –Anticipation and obviousness over Balkenius Balkenius discloses representing landmarks as “a set of features [sub- patterns] together with their spatial relations” (Section 3, l. 9; Fig. 3a). Appellant argues that the “spatial relations” of Balkenius constitute the Appeal 2011-006583 Reexamination Control 95/001,180 Patent 7,190,834 B1 4 claimed “distance.” Patent owner argues that “Balkenius’ ‘spatial relations’ are neither the same as nor equivalent to ‘distances’” (Respondent Br. 4). We agree with Patent Owner because Balkenius discloses that the “spatial relations” of Balkenius merely provide “the approximately correct relative positions” (Section 3, l. 11) of the sub-patterns or “features.” One of skill in the art would have understood a “distance” to include, for example, a specific measurement of length of space between elements. In contrast, a “correct relative position” (or “spatial relation”) merely includes the orientation of one element to another. Appellant has not adequately demonstrated that the “spatial relations” of Balkenius also provides the determination of the “distance” between components as would have been understood by one of skill in the art. Claims 1-9 –Anticipation and obviousness over Grimson Patent Owner argues that Grimson fails to disclose or suggest determining a distance between sub-patterns (Respondent Br. 8-9). We agree with Patent Owner. Appellant argues that Grimson discloses scissors with two subparts that have a same reference point that indicates “that the distance between them is determined to be zero” (App. Br. 19). However, Appellant has not adequately demonstrated that a distance is determined between the two subparts. Rather, the two subparts of the scissors of Grimson merely share a reference point to generate a pair of scissors. We do not find where Grimson determines the distance between the two parts of the scissors. Appellant states that the “distance between [the subparts of the scissors] is determined Appeal 2011-006583 Reexamination Control 95/001,180 Patent 7,190,834 B1 5 to be zero” (App. Br. 19). At best, this appears to be a determination made by Appellant in view of the claims as opposed to a determination made by or suggested by Grimson. In fact, Grimson does not appear to make any such determination, nor does Appellant sufficiently indicate that Grimson does make this determination. Appellant also argues that Grimson discloses breaking an object model into rigid subparts that are connected to a global model-based coordinate frame (App. Br. 19; Grimson, p. 358, col. 2). Based on Appellant’s arguments, we do not understand how breaking an object model into subparts is the same as determining a distance between the subparts even if the subparts are connected to a coordinate frame. Nor has Appellant provided adequate arguments indicating how an object model broken into subparts indicates determining a distance between the subparts. It appears that breaking up an object model into subparts that are connected to a coordinate frame would merely result in parts of an object model that are separated from each other without regard to any specific distances or determinations thereof. Appellant also argues that Grimson discloses that “we can first solve for the location of one of the subparts, and then use that position to restrict the possible positions of the second part” (p. 363, col. 1; App. Br. 19). However, Appellant has not sufficiently demonstrated how restricting the positioning of a second part based on a first part relates to determining a distance between sub-parts. Instead, it appears that restricting the position of a second part based on a first part would merely result in positioning the second part at a particular location that is influenced in some way by the first Appeal 2011-006583 Reexamination Control 95/001,180 Patent 7,190,834 B1 6 part. This does not appear to relate to determining a distance between sub- parts, nor has Appellant sufficiently demonstrated a relationship. Claims 1-9 –Anticipation and obviousness over Tretter The Examiner finds that Tretter fails to disclose determining a distance between sub-patterns (Right to Appeal Notice 17). Patent Owner concurs (Respondent Br. 10). We agree with the Examiner and Patent Owner. Appellant argues that Tretter discloses “the parameter X(c) [that] models the position of the part of the image. . . . [and] includes translation, rotation, and scale [of the part of the image]:” (App. Br. 23). However, even assuming Appellant’s contention to be correct that Tretter’s “parameter X(c)” “includes translation, rotation, and scale” of a sub-pattern, Appellant does not assert or adequately demonstrate that Tretter’s “parameter X(c)” also determines the distance between different sub-patterns as recited in claim 1. Given the plain and customary meanings of the term, one of ordinary skill in the art would have understood “determining a distance” between two elements to include measuring and ascertaining a specific length of a space separating the two elements and “translation” of an element to include, for example, moving the element from one location to another. Appellant has not adequately demonstrated how moving an element from one location to another (“translation” of the element) is the same as determining a distance between that element and another element. Similarly, given the plain and customary meanings of the terms, one of ordinary skill in the art would have understood the term “rotation” of an Appeal 2011-006583 Reexamination Control 95/001,180 Patent 7,190,834 B1 7 element to including turning the element around an axis and the term “scaling” of an element to include changing the proportionate size of the element. In either case, Appellant has not sufficiently demonstrated how determining a distance between one element and another element is the same as either turning (or “rotating”) one element around its axis or changing the proportionate size (i.e., “scaling”) of one element. Without such a showing, we do not agree with Appellant that determining a distance between two elements is the same as either moving one element from one location to another (“translation”), turning the element around its axis (“rotation”) or changing the proportionate size of the element (“scaling”). New Grounds of Rejection We disagree with the Examiner’s favorable final decision as to the patentability of claims 1-9 for reasons set forth below. Claims 1, 2, 4, 8, and 9 –Anticipation by Fukasawa We reject claims 1, 2, 4, 8, and 9 under 35 U.S.C. § 102(b) as being anticipated by Fukasawa for at least the reasons set forth at pages 27-34 and Exhibit R of the Corrected Request for Inter Partes Reexamination filed June 8, 2009 subject to the following. The Examiner finds that Fukasawa fails to disclose “determining a distance between each pair of sub-patterns” (Right of Appeal Notice 7). However, as Appellant points out, Fukasawa discloses “small blocks [that] are scaled according to the distance between each small block” (col. 16, l. Appeal 2011-006583 Reexamination Control 95/001,180 Patent 7,190,834 B1 8 59-61; App. Br. 15), where each of the “small blocks” in Fukasawa corresponds to a sub-pattern as claimed. Since Fukasawa processes each “sub-pattern” (i.e., “small block”) according to the distance between each “small block” or “sub-pattern,” Fukasawa determines the distance between each of the small blocks. Without determining the distance between the small blocks, Fukasawa would be unable to process the small blocks as disclosed. Patent Owner argues that while Fukasawa discloses determining “the positions of each of the ‘small square blocks’ [sub-pattern location],” Fukasawa fails to disclose “determining the location of the reference image as a whole” (Respondent Br. 7). We disagree with Patent Owner’s contention for at least the reasons set forth by Appellant (Rebuttal Br. 5). For example, if Fukasawa determines the locations of each of the sub- patterns as Patent Owner states, then the location of the “deformed pattern,” which is the overall pattern that includes the “sub-patterns” would also be determined since the location of the sub-patterns, which was determined, would indicate the location of the overall pattern which is made up of the sub-patterns themselves. Nor has Patent Owner sufficiently demonstrated otherwise. Claims 3 and 5-7 –Obviousness over Fukasawa We reject claims 3 and 5-7 under 35 U.S.C. § 103(a) as being obvious over Fukasawa for at least the reasons set forth at pages 31-33 and Exhibit R of the Corrected Request for Inter Partes Reexamination filed June 8, 2009 subject to the following. Appeal 2011-006583 Reexamination Control 95/001,180 Patent 7,190,834 B1 9 Each of claims 3 and 5-7 recite features that Appellant argues would have been obvious to one of ordinary skill in the art because, according to Appellant, claim 3 recites that using a Sobel Edge detector “was well-known at the time of the claimed invention of the ‘834 patent” (Corrected Inter Partes Request dated June 8, 2009 page 31) and claims 5-7 each recite features that “does not describe anything unique about these selections or that any one results in any unexpected advantage” (see, e.g., Corrected Inter Partes Request dated June 8, 2009, pg. 32). Patent owner does not refute these statements or provide a sufficient showing that any of the recited features of claims 3 or 5-7 would not have been obvious to one of ordinary skill in the art. Without such a showing, we agree with Appellant. New Ground of Rejection This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.77(b). 37 C.F.R. § 41.77(b) provides “a new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.77(b) also provides that Appellant, WITHIN ONE MONTH FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. The owner of the patent may file a response reopening of prosecution before the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.79 by the Board upon the same record. . . . Appeal 2011-006583 Reexamination Control 95/001,180 Patent 7,190,834 B1 10 CONCLUSION The Examiner erred in making a final decision favorable to the patentability of claims 1-9. DECISION The Examiner’s final decision favorable to the patentability of claims 1-9 is reversed. REVERSED 37 C.F.R. § 41.77(b) rvb PATENT OWNER COGNEX CORPORATION INTELLECTUAL PROPERTY DEPARTMENT 1 VISION DRIVE NATICK, MA 01760-2077 PROSKAUER ROSE, LLP ONE INTERNATIONAL PLACE BOSTON, MA 02110-2600 THIRD PARTY REQUESTER FOLEY & LARDNER LLP 111 HUNTINGTON AVENUE 26TH FLOOR BOSTON, MA 02199-7610 Copy with citationCopy as parenthetical citation