Ex Parte 7190834 et al

Board of Patent Appeals and Interferences

Sep 1, 2011

95001180 (B.P.A.I. Sep. 1, 2011)

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
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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
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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
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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
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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
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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
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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.
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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.
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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. . . .

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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