Ex Parte 7343220 et al

Patent Trial and Appeal Board

Sep 27, 2013

95000606 (P.T.A.B. Sep. 27, 2013)

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.
95/000,606 02/04/2011 7343220 CRAN01-00526 7023
42624 7590 09/27/2013
DAVIDSON BERQUIST JACKSON & GOWDEY LLP
4300 WILSON BLVD., 7TH FLOOR
ARLINGTON, VA 22203
EXAMINER
FETSUGA, ROBERT M
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
09/27/2013 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
________________

CRANE CO.
Respondent, Requestor

v.

AUTOMATED MERCHANDISING SYSTEMS, INC.
Appellant, Patent Owner
________________

Appeal 2013-007855
Inter Partes Reexamination Control 95/000,606
Patent No. US 7,343,220 C1
1

Technology Center 3900
________________

Before STEVEN D.A. McCARTHY, DANIEL S. SONG and
JEREMY M. PLENZLER, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge

DECISION ON APPEAL

1
Issued March 11, 2008 to James M. Hair, III and Kyriakos P.
Spentzos (the “′220 patent”). The ′220 patent issued from Appl. 11/639,231,
filed Dec. 15, 2006.
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STATEMENT OF THE CASE 1
The Appellant/Patent Owner, Automated Merchandising 2
Systems, Inc., appeals under 35 U.S.C. § 134(b) (2011) and 35 U.S.C. 3
§ 315(a) (2011) from a final rejection of claims 1-37. We have jurisdiction 4
under 35 U.S.C. § 134(b) (2011) and 35 U.S.C. § 315(a) (2011). We 5
AFFIRM the Examiner’s decision rejecting claims 1-37 on the basis of three 6
grounds of rejection set forth in both the Right of Appeal Notice (“RAN”) 7
mailed May 11, 2012 and the Answer (“Answer” or “Ans.”) mailed 8
January 23, 2013. Since these three grounds of rejection are dispositive of 9
the appeal, we do not reach the remaining grounds of rejection set forth in 10
the Answer. See 37 C.F.R. § 41.77(a) (2011).
2
11
The ′220 patent was the subject of prior Reexamination 90/009,232, 12
filed July 31, 2008, in which the Patent Owner amended claims 10, 16, 24 13
and 34. (See Ex Parte Reexamination Certificate US 7,343,220 C1, issued 14

2
The Patent Owner also “respectfully renews [its] previous request
filed on April 4, 2011 that the Order Granting this inter partes
Reexamination, 95/000,606 be reversed and the inter partes Reexamination
be vacated.” (App. Br. 30). The Patent Owner’s request already has been
addressed in a “Decision on Petition under 37 C.F.R. § 1.181(a) Requesting
Vacatur of the Proceedings” mailed April 14, 2011. The Patent Owner has
not made any showing that the denial of the request is appealable to the
Patent Trial and Appeal Board.

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Jun. 1, 2010).
3
It does not appear that any claims were added or amended 1
during the current reexamination proceeding. (See RAN 5). 2
The Patent Owner and the Requester, Crane Co., were parties to 3
concurrent litigation involving the ′220 patent as well as other patents in the 4
same family. The concurrent litigation, styled Automated Merchandising 5
Systems Inc. v. Crane Co., Case Nos. 3:03-CV-88 (L); 3:08-CV-97; 3:04-6
CV-80; 3:04-CV-75; and 3:04-CV 48, was conducted before Chief 7
Judge John Preston Bailey in the U.S. District Court for the Northern 8
District of West Virginia. (Ans. 2). A preliminary injunction and a stay of 9
the litigation pending the concurrent reexamination proceedings were the 10
subject of an opinion by the Court of Appeals for the Federal Circuit in 11
Automated Merchandising Systems Inc. v. Crane Co., 357 Fed. Appx. 297 12
(Fed. Cir. 2009). The litigation involving the ′220 patent was terminated by 13
consent judgment on June 11, 2012 (Ans. 3; App. Br. 2 n.1), on or about the 14
date of the Notice of Appeal in this appeal. The Requester has not filed any 15
briefs in this appeal. (See Ans. 2). 16
The claims on appeal relate to a glass front vending machine 17
including an optical system for sensing when the vending machine 18
successfully vends a selected product. (′220 patent, col. 3, ll. 13-15). In the 19
Appeal Brief (“Appeal Brief” or “App. Br.”) dated August 13, 2012, the 20

3
The Requester also has requested reexamination of four other related
patents. Two of those requests involving other related patents were the
subjects of prior appeals to the Board of Patent Appeals and Interferences
(now the Patent Trial and Appeal Board). The two appeals were Appeal
2008-005966, mailed June 26, 2009 (addressing patent US 6,794,634 B2,
issued Sep. 21, 2004); and Appeal 2008-005779, mailed June 26, 2009
(addressing patent US 6,384,402 B1, issued May 7, 2002).
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Patent Owner asserts that the claimed subject enables the machine to sense 1
the delivery of a selected product by 2
equipping [the] glass front vending [machine] with 3
an optical sensor system using a plane of 4
electromagnetic radiation that substantially spans 5
the vend space through which [the] selected 6
product will freely fall into a bin for retrieval by a 7
consumer[.] . . . [T]o detect that product as it 8
freely falls through the vend space, the optical 9
sensor system calibrates for and adjusts to 10
changing ambient light conditions faced by 11
transparent front vending machines. 12
(App. Br. 2-3). 13
Claims 1, 6, 10, 16, 28 and 34 are independent. Claim 1 recites: 14
1. A vending machine, comprising: 15
a transparent front; 16
a dispensing mechanism configured to 17
perform vending operations and dispense a product 18
upon selection by a consumer, 19
a vend space comprising a portion of space 20
in said vending machine through which said 21
selected product will freely fall, independent of a 22
product lowering elevator, into a bin portion for 23
retrieval by the consumer, and 24
an optical vend-sensing system configured 25
to sense when said selected product freely falls 26
through said vend space, 27
said optical vend-sensing system 28
comprising: 29
30
31
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an emitter mechanism configured to 1
generate electromagnetic radiation 2
that substantially spans said vend 3
space, 4
a detector mechanism configured to 5
receive electromagnetic radiation 6
generated by said emitter mechanism 7
and to detect changes in said 8
electromagnetic radiation caused by 9
said selected product as it freely falls 10
through said vend space, the emitter 11
mechanism and the detector 12
mechanism being positioned above a 13
customer accessible portion of the 14
retrieval bin portion, and 15
a calibration circuit for calibrating the 16
optical vend-sensing system based on 17
ambient light entering the vending 18
machine through the transparent front. 19
(See App. Br. 31-32 (Claims App’x)). 20
The Examiner’s findings, reasoning and conclusions are set forth in an 21
Action Closing Prosecution (“ACP”) mailed November 18, 2011; the RAN; 22
and the Answer. The Examiner relies on the following references: 23
Endl US 3,742,222 Jun. 26, 1973 24
Schuller US 3,901,366 Aug. 26, 1975 25
Levasseur US 4,359,147 Nov. 16, 1982 26
Friend US 4,634,855 Jan. 6, 1987 27
Tanaka
4
JP H04-52284 U May 1, 1992 28

4
References to “Tanaka” will be to a translation verified by Kevin M.
Kelley, Jr. of Transperfect on or about June 3, 2010. A copy of the
translation is in the reexamination file.
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Vogelpohl US 5,505,332 Apr. 9, 1996 1
Dragne US 5,883,383 Mar. 16, 1999 2
(Ans. 4-5). Although the Requester has not filed any briefs in this appeal, 3
reference will be made to the Corrected Original Inter Partes Request 4
(“Request”) dated April 4, 2011. 5
The Examiner adopts, or adopts with modification, six rejections 6
proposed by the Requester under 35 U.S.C. § 103(a) (2011): 7
A. the rejection of claims 1-4, 6-10, 12-26, 28-32, 8
34 and 35 as being unpatentable over Schuller and Dragne (see 9
Ans. 5-7; RAN 7-9); 10
B. the rejection of claims 1, 5, 28 and 33 as being 11
unpatentable over Schuller and Friend (see Ans. 8-9; RAN 9-12
11); 13
C. the rejection of claims 6, 10, 11, 16, 27, 34, 36 and 14
37 as being unpatentable over Schuller, Dragne and Friend (see 15
Ans. 9-10; RAN 11-12); 16
D. the rejection of claims 1-4, 6-10, 12-26, 28-32, 34 17
and 35 as being unpatentable over Vogelpohl, Levasseur, 18
Tanaka and Dragne (see Ans. 10-13; RAN 12-15); 19
E. the rejection of claims 1, 5, 28 and 33 as being 20
unpatentable over Vogelpohl, Levasseur, Tanaka and Friend 21
(see Ans. 13-16; RAN 16-18); and 22
F. the rejection of claims 6, 10, 11, 16, 27, 34, 36 and 23
37 as being unpatentable over Vogelpohl, Levasseur, Tanaka, 24
Dragne and Friend (see Ans. 16; RAN 18-19). 25
The Examiner proposes and adopts an additional rejection under § 103(a): 26
G. the rejection of claims 1-37 as being unpatentable 27
over Schuller, Levasseur, Dragne, Endl and Friend (see 28
Ans. 16-18; RAN 19-21). 29
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In addition to the Appeal Brief, the Patent Owner also relies on a 1
Rebuttal Brief dated February 25, 2013 (“Reb. Br.”). The Appeal Brief 2
includes the following Attachments: 3
Attachment 1: a Declaration of Sharon F. Shull dated 4
May 17, 2011 (“Shull Decl.”); 5
Attachment 2: an undated Crane Merchandising Systems 6
advertisement for a SUREVEND product delivery sensor; 7
Attachment 3: a 2002 Crane Merchandising Systems 8
advertisement for a SNACKCENTER 1 machine, promoting a 9
SUREVEND product delivery system; 10
Attachment 4: pages 1, 2 and 61-65 of the Deposition of 11
Len Beckring (“Beckring Depo.”), taken on April 5, 2004 in 12
Crane Co. v. Automated Merchandising Systems, Inc., Case 13
No. 4:03CV1848 CEJ (E.D. Mo.); 14
Attachment 5: a Declaration of John Hens (“Hens 15
Decl.”) dated March 16, 2009; 16
Attachment 6: a Declaration of Joseph C. McAlexander, 17
III dated May 24, 2011 (“McAlexander Decl.”); 18
Attachment 7: Percy (US 5,651,476, issued 19
Jul. 29, 1997); 20
Attachment 8: Truitt (US 5,927,539, issued 21
Jul. 27, 1999); 22
Attachment 9: a Notice of Intent to Issue Ex Parte 23
Reexamination Certificate in Reexamination 90/009,569,
5
24
mailed October 7, 2010; 25
Attachments 10-14: drawing figures reproduced from 26
Schuller, Dragne, Friend and the ′220 patent; and 27

5
The subject of Reexamination 90/009,569 was related patent
US 6,384,402, issued May 7, 2002.

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Attachment 15: Mertins (US 5,847,389, issued 1
Dec. 8, 1998). 2
We sustain grounds of rejection A, C and G. Since these grounds of 3
rejection address all of the claims on appeal, they are dispositive of the 4
appeal. Therefore, we do not reach the remaining grounds of rejection. 5
6
ISSUES 7
With the exception of ground of rejection C, the Patent Owner argues 8
the patentability of all of the claims as a group without specifically referring 9
to the language of any particular claim. We group all of the appealed claims 10
together for purposes of grounds of rejection A and G; and specifically 11
address only the language of representative claim 1. See 37 C.F.R. 12
§ 41.67(c)(1)(vii) (2011). With respect to ground of rejection C, the Patent 13
Owner quotes or paraphrases particular limitations of claims 6, 10, 11, 16, 14
27, 34, 36 and 37 (see App. Br. 23-24) and then states that “Schuller in view 15
of Dragne and Friend collectively fail to show the foregoing claim features.” 16
(App. Br. 24). Although this argument overlaps other arguments put 17
forward by the Patent Owner, we will address it separately. 18
Only issues and findings of fact contested by the Appellant/Patent 19
Owner have been considered. See 37 C.F.R. § 41.67(c)(1)(vii) (2011); In re 20
Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011); Ex parte Frye, 94 USPQ2d 21
1072, 1075-76 (BPAI 2010). Five issues are dispositive of the appeal: 22
First, is Dragne or Friend non-analogous art? (See 23
App. Br. 18-19; Ans. 27-28; Reb. Br. 10). 24
Second, would the proposed combination of the teachings 25
of the prior art as set forth in grounds of rejection A and G have 26
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been obvious? (See App. Br. 13-14 and 18-19; Ans. 6 and 22; 1
Reb. Br. 9-10). 2
Third, would the proposed combination of the teachings 3
of Schuller and Dragne have included a detector mechanism 4
configured to detect changes in electromagnetic radiation 5
received by the mechanism caused by a selected product as it 6
freely falls through said vend space? (See App. Br. 14; Ans. 7
23-24; Reb. Br. 2-3). 8
Fourth, does Dragne teach including in an optical sensing 9
system a calibration circuit for calibrating the system based on 10
ambient light? (See App. Br. 16-17; Ans. 7 and 24-25; Reb. Br. 11
12-13). 12
Fifth, do Schuller, Dragne and Friend collectively show 13
claim features listed on pages 23 and 24 of the Appeal Brief? 14
15
FINDINGS OF FACT 16
The record supports the following findings of fact (“FF”) by a 17
preponderance of the evidence. 18
19
Schuller 20
1. The Examiner correctly finds that: 21
The Schuller reference discloses a product vending 22
machine comprising: a transparent (col. 3, 23
lns. 34-37) front 11; a dispensing mechanism 3; a 24
vend space 13; a bin portion 19 including a 25
customer accessible portion 23; a sensing system 26
29; a control mechanism/unit [CM] (col. 10, lns. 27
47-52) including control circuitry (Figs. 13-16); 28
and a product storage and display area 9, 71. The 29
vending machine does not include a product 30
lowering/guiding mechanism. 31
(Ans. 5). 32
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2. More specifically, Schuller describes a machine for vending 1
cartons of cigarettes or other cartoned merchandise. (Schuller, col. 1, ll. 5-7 2
and 14-22). 3
3. Schuller’s vendor includes a bank of dispensing modules D1-4
D4 sharing a common control module CM. (Schuller, col. 2, ll. 62-67 and 5
fig. 1). 6
4. Each dispenser module D1-D4 of Schuller’s vendor includes a 7
cabinet 9 having a front door 11 and a plurality of vertically-arranged article 8
dispensers or dispensing mechanisms 3 within the cabinet 9. Each dispenser 9
3 holds a row of cigarette cartons to be vended. (Schuller, col. 3, ll. 21-26 10
and figs. 3 and 4). 11
5. As the Examiner correctly finds, the front door 11 of the cabinet 12
9 is windowed (that is, the cabinet 3 has a transparent front) to permit the 13
purchaser to view the forward-most cigarette cartons held in the dispensers 14
3. (Schuller, col. 3, ll. 34-37 and fig. 3). 15
6. Schuller describes the dispensers 3 as being spaced rearwardly 16
from the front 11 of the cabinet 3 to provide a vertical passage 13 in the 17
cabinet 9. (Schuller, col. 3, ll. 31-34). The vertical passage 13 defines a 18
“vend space” in the vending machine. 19
7. Each dispenser 3 includes means for feeding cartons forward 20
and dropping the forward-most carton off the front end of the dispenser 3 21
into the vertical passage 13 when the forward-most carton is purchased and 22
selected by a consumer. (Schuller, col. 3, ll. 31-34 and 47-51). 23
8. Schuller describes a gate 25 extending into the vertical 24
passage 13 and a mechanism 27 for moving the gate 25 between a closed 25
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position and an open position. (Schuller, col. 3, ll. 42-47 and 52-57; see also 1
id., fig. 6). 2
9. Schuller’s cabinet includes a delivery chamber or retrieval 3
bin 19. The delivery chamber 19 is customer accessible through a delivery 4
opening 21. (Schuller, col. 3, ll. 37-51 and figs. 3 and 6). 5
10. When a consumer using Schuller’s vending machine purchases 6
and selects the forward-most carton held in one of the dispensers 3 and the 7
dispenser drops the forward-most carton into the vertical passage 13, the 8
gate 25 moves from its closed position to its open position. This movement 9
enables the carton dropping down the vertical passage 13 to drop into the 10
delivery chamber 19. (Schuller, col. 3, ll. 47-51). 11
11. Schuller also describes an electromechanical sensing means in 12
the form of a vend flap 29 located above the gate 25 and the delivery 13
chamber 19. (Schuller, col. 3, ll. 57-62; col. 7, ll. 27-32 and fig. 6). The 14
vend flap 29 includes a rocker bar 217 supported for pivotal movement 15
about a horizontal axis parallel to a width of the vertical passage 13. Fingers 16
219 project from the rocker bar 217 into the vertical passage 13 above the 17
delivery chamber 19. Spring means 225 bias the rocker bar 217 toward a 18
horizontal position. (Schuller, col. 7, ll. 32-39 and fig. 8). 19
12. Schuller’s vend flap 29 also includes a pair of switches 227, 20
229. When a cigarette carton dropping (that is, freely falling) through the 21
vertical passage strikes the fingers 219, downward pivotal movement of the 22
rocker bar 217 actuates switches 227, 229 to generate an electrical signal 23
indicating that the carton has been vended. (Schuller, col. 3, ll. 57-62 and 24
col. 7, ll. 42-47). 25
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13. The Examiner concludes that it would have been obvious “to 1
associate electromagnetic radiation operation with the Schuller sensing 2
system in order to replace the wear and failure prone mechanical system 3
with an accurate electronic system.” (Ans. 6 (italics added); see also RAN 4
8). This reasoning is consistent with the Examiner’s earlier finding that 5
Schuller’s vend flap 29 was a “wear and failure prone mechanical system” 6
because 7
it [was] generally understood that “mechanical” 8
systems, i.e., systems with moving parts, [were] 9
subject to wear and potential failure due to 10
interaction between those parts (e.g. friction). 11
Furthermore, it [was] also generally understood 12
that “electronic” systems, i.e. systems without 13
moving parts or with few moving parts, [were] less 14
subject to wear and potential failure compared to 15
“mechanical” systems, due to an absence of such 16
wear and failure prone parts. 17
(Action Closing Prosecution mailed Nov. 18, 2011 at 34; see also Ans. 21-18
22). The Examiner’s adoption of the proposed finding is a reasonable 19
exercise of official notice, since the fact that interacting moving parts are 20
subject to frictional wear is susceptible of instant and unquestionable 21
demonstration as being well-known. 22
14. The Examiner’s reasoning, which speaks of replacing a 23
mechanical system with an “accurate electronic system,” also adopts the 24
Requester’s proposed finding that “impact sensors of the type disclosed in 25
Schuller ‘366 are known to suffer from (a) insufficient sensitivity range, for 26
detecting light products as well as heavy ones, and (b) deformation of the 27
mechanical sensor element, causing failure of operation. Optical delivery 28
sensing systems are thus preferred.” (Request 28, citing Kawarazuka (JP 29
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H10-11639 A, publ. Jan. 16, 1998),
6
paras. 0004-07, internal footnotes 1
omitted). The finding is consistent with the McAlexander Declaration. (See 2
McAlexander Decl. 8, Attachment 6 to the Appeal Brief). 3
4
Dragne 5
15. Dragne describes optical sensing units 11 for counting seeds 6
moving through seed transport ducts 12 of a planter. (Dragne, col. 1, ll. 4-7 7
and col. 4, l. 66 – col. 5, l. 7). 8
16. Each of Dragne’s optical sensing units 11 includes a light 9
transmitter 15 and a receiver 16. A microprocessor 13 controls the light 10
transmitter 15 and the light receiver 16. (Dragne, col. 5, ll. 18-25 and fig. 3). 11
An optical system such as that described by Dragne counts seeds by sensing 12
pulses generated by momentary reductions in light intensity from a steady 13
state intensity caused by the passage of seeds falling between the light 14
transmitter 15 and the receiver 16; and then by counting the pulses to obtain 15
a seed count value. (See Dragne, col. 1, ll. 8-14). 16
17. Dragne is not non-analogous art. More specifically, the 17
Examiner correctly finds that Dragne is reasonably pertinent to a problem 18

6
On page 22 of the Answer, the Examiner finds that “Dragne does
teach means for sensing falling articles (col. 1, lns. 8-14), which is also
accurate (col. 6, lns. 2-6).” The passage at column 6, lines 2-6 of Dragne
teaches that “any seed or particle passing through the duct in the area of the
transmitter passes through the beam of light generally emerging from the
transmitter element without the possibility of such a seed or particle passing
through a dark area between two of the LEDs.” The Examiner’s citation of
the passage at column 2, lines 2-6 of Dragne as support for the finding that
Dragne’s optical sensing units are “accurate” indicates that the Examiner is
using the term “accurate” in the statement of the rejection to indicate
sensitivity to small objects such as seeds.
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with which the named inventors of the ′200 patent were involved. (See 1
Ans. 27-28). 2
18. The ′220 patent states that: 3
A particularly difficult situation is presented 4
when some of the products to be dispensed are 5
large so that a large transverse cross-sectional area 6
is required for the vend space, but others of the 7
product are so small that an optical beam meant to 8
be broken by the product could be missed due to 9
happenstantial path of movement and changing 10
spatial orientation of the falling product being 11
vended. 12
(′220 patent, col. 2, ll. 43-50). 13
19. The problem of smaller items falling between areas sensed by a 14
delivery sensor was recognized by others in the field of vending machine 15
delivery sensing. (See, e.g., Tanaka 3-4). 16
20. Dragne itself teaches that one problem with prior optical 17
sensing systems was that the light sources and the sensors of the prior 18
systems might leave areas which were not properly monitored. (Dragne, 19
col. 1, ll. 56-59). 20
21. Dragne’s light transmitter 15 includes a plurality of light 21
emitting diodes (“LEDs”) 29 mounted on a base wall 23 of a ceramic 22
transmitter housing 22. (Dragne, col. 5, ll. 39-48 and figs. 3 and 4). 23
22. Dragne teaches fixing the depth of the base wall 23 into the 24
housing 22 such that the conical beams transmitted by the LEDs 29 would 25
tend to intersect within the potting material 31. Dragne additionally teaches 26
that, if the depth of the base wall 23 into the housing 22 were sufficient, the 27
light emerging from the surface of the housing would not contain any dark 28
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sections or blind spots which were less illuminated, and no seed or particle 1
would escape detection by passing through dark areas between beams 2
transmitted by two of the LEDs 29. (Dragne, col 5, l. 62 – col. 6, l. 6). 3
Therefore, Dragne was reasonably pertinent to a problem with which the 4
named inventors were involved.
7
5
23. Dragne teaches that the “frequency range of the LEDs [29] and 6
the receiver [that is, the photo silicon diode 32] is arranged to be in the 7
infrared range so as to be different from the ambient light.” (Dragne. col. 5, 8
ll. 55-57). Dragne also teaches that the “potting material 31 filling the 9
housing of the transmitter contains a pigment which tends to filter light 10
outside the infrared range so as to make the system less responsive to 11
ambient light.” (Dragne, col. 5, ll. 57-61; see also id. at col. 6, ll. 22-24). 12
24. Dragne’s microprocessor 13 along with a control circuit 17, 13
control the intensity of light transmitted by the light transmitter 15. 14
(Dragne, col. 5, ll. 19-21 and col. 7, ll. 9-12). More specifically, the 15
microprocessor 13 modulates the current passing through the control 16
circuit 17 so as to provide current to the LEDs 29 in the form of a train of 17

7
The Patent Owner characterizes the problem with which the named
inventors were involved far more narrowly on page 19 of the Appeal Brief.
The Patent Owner’s formulation of the problem is too narrow. Those
elements of the problem as formulated by the Patent Owner which relate to
the response of the vending machine to the sensing of a delivery or non-
delivery by the optical sensing system would not have restricted the field of
inquiry by one of ordinary skill in the art seeking to substitute an optical
sensing system for Dragne’s vend flap 29. It is worth noting in connection
with the Patent Owner’s formulation of the problem that Dragne addresses
both the problem of detecting single, freely falling items of various sizes
(see FF 20-22) and the problem of operability in high ambient light
environments (see FF 23 and 30-32).
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square wave pulses. The microprocessor 13 controls the intensity of light 1
emitted from the LEDs 29 by controlling the pulse width and duty cycle of 2
the current pulses. (See Dragne, col. 7, ll. 1-18). 3
25. Dragne teaches that the “microprocessor [13] generates the 4
pulse signal having a duty cycle determined by an algorithm within the 5
microprocessor. The algorithm used determines the condition present at 6
power up and determines the duty cycle to bring the receiver [16] to the 7
optimum level.” (Dragne, col. 7, ll. 14-18). 8
26. Dragne teaches determining the duty cycle needed to bring the 9
receiver 16 to the optimum level by initially generating pulses at a duty 10
cycle providing a minimum level of current to the light transmitter 15 and 11
comparing the output voltage V1 of the receiver 16 with a reference voltage. 12
In the event that the output voltage V1 is less than the reference voltage, 13
Dragne teaches increasing the duty cycle until the output voltage V1 exceeds 14
the reference voltage. (Dragne, col. 7, ll. 19-28). 15
27. The Examiner correctly adopts the Requester’s proposed 16
finding that “the Dragne sensor system includes a calibration circuit (col. 7, 17
lns. 19-28; col. 8, lns. 16-23) which would [have functioned] as intended 18
when installed behind the transparent front of the Schuller vending 19
machine.” (Ans. 7; RAN 8; see also Request 30-31). 20
28. The process disclosed by Dragne at column 7, lines 19-28 is a 21
calibration process in that the voltage V1 is adjusted by comparison with a 22
standard. The calibration taught by Dragne at column 7, lines 19-28 is based 23
on two parameters. One parameter is the voltage V1 and the other parameter 24
is the duty cycle of the current provided to the transmitter 15. 25
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29. During the calibration, the voltage V1 represents a combination 1
of the light transmitted by the light transmitter 15 and of any ambient light. 2
Hence, the voltage V1, and the calibration process as a whole, is based on 3
ambient light. Were an optical sensing unit 11 the type described by Dragne 4
placed in a vending machine near a transparent front, the calibration 5
performed in accordance with the teachings of Dragne at column 7, lines 19-6
28 would be based, at least in part, on ambient light entering through the 7
transparent front. (See Ans. 7). 8
30. Dragne’s receiver 16 includes a photo silicon diode 32 in the 9
form of an elongated strip mounted on a base wall 23 of a ceramic receiver 10
housing 22. (Dragne, col. 6, ll. 7-9 and figs. 3 and 4). Dragne teaches 11
potting the photo silicon diode 32 in the same epoxy polymer potting 12
material 31 used to pot the LEDs 29. (Dragne, col. 5, ll. 22-24 and fig. 3). 13
31. Each of Dragne’s optical sensing units 11 includes the 14
combination of a load resistor 41 and a DC compressor circuit 46 which 15
filters out gradual changes in the steady state current generated by the 16
receiver 16. Dragne teaches that these changes may be due to ambient light 17
or to factors such as dust which interfere with the transmission of light from 18
the transmitter 14 to the receiver 16. (Dragne, col 7, ll. 53-56; col. 8, ll. 20-19
23; and fig. 5). 20
32. Therefore, the combination of Dragne’s load resistor 41 and DC 21
compressor circuit 46 is a calibration circuit in that the voltage V1 output by 22
the receiver 16 is adjusted by comparison with a standard steady state 23
determined by the values of the load resistor and the components making up 24
the DC compressor circuit. 25
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33. Dragne states that, 1
In view of the necessity for analysis of the signal, 2
it is of course not possible to provide a seed count 3
value which is exactly equal to the number of 4
seeds but the above analysis techniques have been 5
developed to provide a seed count value which is 6
as close as possible to the number of seeds while 7
accommodating the variations between different 8
seed types. 9
(Dragne, col. 11, ll. 36-42). The Patent Owner characterizes this statement 10
as an admission that Dragne’s system is “not an accurate system.” (App. 11
Br. 15). Any such inaccuracy would have been due to the difficulty of 12
counting multiple seeds falling through a seed transport duct 12 at 13
approximately the same time. It would have been recognized that this 14
source of inaccuracy would not have affected the application of Dragne’s 15
optical sensing units 11 for the purpose of detecting vended products 16
delivered through a vend space one-at-a-time. 17
18
Friend 19
34. Friend describes an optical sensor for counting small items, 20
such as seeds, flowing through a conduit. (Friend, col. 1, ll. 29-35). 21
35. Friend’s optical sensor module 16 includes a pair of photo 22
diodes 46, 48 for generating electrical signals responsive to received 23
radiation. (Friend, col. 2, l. 67 – col. 3, l. 3). The two photo diodes 46, 48, 24
are active detector mechanisms that are configured to receive 25
electromagnetic radiation generated by at least one emitter mechanism, that 26
is, the array 42 of LEDs CR1-CR7. (Friend, col. 2, ll. 46-52; col. 3, ll. 16-27
20; see also Ans. 9-10). An optical sensor such as that described by Friend 28
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counts seeds by sensing variations in the radiation received by the photo 1
diodes 46, 48 caused by the passage of the seeds through a conduit 12 (see 2
Friend, col. 1, ll. 56-68 and fig. 1); and processing the signal output by the 3
photo diodes 46, 48 to obtain a seed count value (see Friend, col. 2, ll. 1-7). 4
36. Friend is not non-analogous art. More specifically, the 5
Examiner correctly finds that Friend is reasonably pertinent to a problem 6
with which the named inventors of the ′200 patent were involved, namely, 7
the problem of smaller items falling between areas sensed by a delivery 8
sensor was recognized by others in the field of vending machine delivery 9
sensing. (See Ans. 27-28; see also FF 18 and 19). 10
37. Friend teaches that one problem with prior optical sensing 11
systems was the “spatial non-uniformity of the light source and/or of the 12
light detectors so that the signals generated by the light detectors vary, 13
depending upon what portion of the light beam is interrupted.” (Friend, 14
col. 1, ll. 16-19). 15
38. Friend additionally teaches that: 16
As best seen in FIG. 2, this array [42] of 17
LEDs [CR1-CR7] extends substantially across the 18
entire length of the seed flow path 14 and 19
transversely to the direction of seed flow which is 20
downwards, viewing FIG. 1. The radiation beam 21
generated by each LED has a wide angular 22
dispersion approaching that of a point light source 23
mounted on a planar surface. Thus, the beams 24
from adjacent pairs of LEDs intersect with each 25
other well before they reach the nearest 26
window 38. This assures that all areas in the seed 27
flow path between windows 38 and 40 are 28
illuminated. 29
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(Friend, col. 2, ll. 56-66). Therefore, Friend is reasonably pertinent to a 1
problem with which the named inventors of the ′220 patent were involved. 2
39. We adopt and incorporate by reference the Examiner’s findings 3
regarding the teachings of Friend stated at page 10, lines 1-2 and 5-9 of the 4
Answer. 5
6
Levasseur 7
40. Levasseur describes a vend control circuit 20 for controlling a 8
multi-product vending machine. (Levasseur, col. 2, ll. 44-46). Levasseur 9
teaches that construction of the vend circuit 20 “requires a single switch or 10
other vend delivery sensing device positioned to respond to any and all 11
product deliveries regardless of the number of possible vends and vend 12
motors.” (Levasseur, col. 1, ll. 43-49; see also id., col. 2, l. 66 – col. 3, 13
l. 10). 14
41. Levasseur additionally teaches that the single switch or other 15
vend delivery sensing device might be a photoelectric sensor; a mechanical 16
or electromechanical sensor; or an optic sensor. (Levasseur, col. 3, ll. 10-17
14). Levasseur speaks at one point of using a sensor device associated with 18
a product chute (See Levasseur, col. 2, l. 66 – col. 3, l. 5); and spoke at 19
another point of the sensor device 143 having “normally closed 20
contacts 148” (see Levasseur, col. 5, ll. 39-47 and fig. 1). Nevertheless, 21
Levasseur does not appear to criticize the use of optical or photoelectric 22
sensors. Neither does Levasseur appear to suggest any reason why a 23
mechanical or electromechanical sensor might have been superior for 24
purposes of vend sensing than an optical or photoelectric sensor that have 25
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also been suggested as being appropriate. Considered as a whole, 1
Levasseur’s teachings would have suggested that an optical or photoelectric 2
sensor was interchangeable with a mechanical or electromechanical sensor 3
for sensing the delivery of a product in a vending machine. (See Ans. 17). 4
5
Tanaka 6
42. Tanaka describes a product detection device for a vending 7
machine including a receiving tray or bin. The product detection device 8
senses the presence or absence of a vended item in the receiving tray. The 9
product detection device includes a light projector which projects a beam of 10
light parallel to a bottom surface of the receiving tray. The product 11
detection device also includes a light receiver which receives the light from 12
the light projector. (Tanaka 4-5). 13
43. Tanaka teaches that known optical sensing systems might not 14
have been able to sense relatively small products because such products 15
might fall through poorly lit “dead zones” between light beams. (Tanaka 3-16
4). 17
44. Tanaka teaches using a beam reflected off one or more 18
reflectors to reduce dead zones in a receiving tray. (Tanaka 5 and figs. 2 19
and 3). 20
21
Endl 22
45. Endl describes a photoelectric sensing system including 23
multiple light sources 20-24 in the form of LEDs. Endl teaches focusing 24
light beams 30-34 generated by the light sources 20-24 onto light 25
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sensors 41-45 to detect the presence of an object blocking one or more of the 1
beams 30-34. (Endl, col. 1, ll. 2-5; col. 2, ll. 58-64; and fig. 1). 2
46. Endl teaches that, 3
[w]here the system operates in a brightly lighted 4
area, as is usually the situation in a manufacturing 5
operation, it is impractical to screen the photo 6
sensor from all ambient light; and it is necessary to 7
reduce the sensitivity of the system so that it is not 8
triggered by changes in the ambient light level. 9
(Endl, col. 6, ll. 24-29). 10
47. Endl describes operating the light sources 20-24 intermittently 11
by a series of pulses from a signal source 48. The light sources 20-24 are 12
connected in series and actuated simultaneously. (Endl, col. 2, l. 64 – col. 3, 13
l. 2). Endl teaches that any fluctuations in the intensity of ambient light are 14
of relatively low frequency (Endl, col. 6, l. 46); and that the “use of a pulsed 15
light source permits electrical filtering of the sensor output which 16
substantially eliminates all ambient light effects (Endl, col. 6, ll. 29-31). 17
18
Additional Findings 19
48. The Patent Owner asserts that, “about three years after the 20
Patent Owner AMS first introduced its new vend sensor technology to the 21
market, AMS’s competitors, including requester Crane, followed AMS’s 22
lead and introduced their own versions of that same technology.” (App. Br. 23
12, citing Shull Decl., paras. 2-5, Attachment 1 to the Appeal Brief; see also 24
Reb. Br. 1, citing Attachments 2 and 3 to the Appeal Brief). Paragraphs 2-5 25
of the Shull Declaration describe technology in the Patent Owner’s SENSIT 26
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vend sensing systems. Those paragraphs do not address activities by the 1
Requester or other competitors. 2
49. The undated advertisement reproduced as Attachment 2 to the 3
Appeal Brief states that the Requester’s SUREVEND product delivery sensor 4
provides “[a]utomatic [s]elf-calibration” and “[w]orks in [a]ll [l]ighting 5
[c]onditions and [t]emperatures.” The advertisement is entitled to little 6
weight with regard to the unobviousness of the claimed subject matter. 7
Alleged infringers’ “introduction of their own versions” of a patent owner’s 8
“technology” is poor evidence that subject matter specifically claimed is 9
patentable. The 2002 advertisement reproduced as Attachment 3 to the 10
Appeal Brief states only that the SNACKCENTER 1 machine as sold in 2002 11
included “infrared technology [which] detects whether the vended product 12
has dropped.” The 2002 advertisement does not include any further 13
description demonstrating a nexus between the disclosed product and subject 14
matter in the claims of the ′220 patent, or that the disclosed product is a copy 15
of the Patent Owner's SENSIT technology. The assertion that other 16
competitors introduced their own versions of the Patent Owner’s technology 17
is entitled to little weight because the evidence does not establish that the 18
other competitors specifically adopted subject matter claimed in the ′220 19
patent or copied the Patent Owner’s commercial implementation thereof. 20
50. The Patent Owner asserts that the claimed invention has 21
enjoyed commercial success and that the “vending industry, including 22
Crane, is all licensed under [the Patent Owner’s] technology.” (App. Br. 12, 23
citing Shull Decl., Attachment 1 to the Appeal Brief; see also Reb. Br. 2). 24
The Patent Owner submits redacted copies of the licenses, but according to 25
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the Shull Declaration, these licenses cover not only subject matter claimed in 1
the ′220 patent but also the subject matter claimed in at least four other 2
patents. (See Shull Decl., paras. 14 and 15). Furthermore, the Patent Owner 3
does not even provide information regarding the actual value of these 4
licenses in generating royalties, or regarding the number of products in the 5
industry which are manufactured under the licenses, in support of the 6
assertions of commercial success. 7
51. The Patent Owner has introduced declaration testimony of John 8
Hens, a principal at Vendors 1
st
Choice. (Hens Decl., para. 1, Attachment 5 9
to the Appeal Brief; see also App. Br. 12). Vender’s 1
st
Choice is a 10
distributor selling the Patent Owner’s vending machines. (Hens Decl., para. 11
8). Hens declares that he attended a vending machine trade show in early 12
1998 at which the Patent Owner displayed a SENSIT optical vend detector 13
equipped, glass front vending machine. (Hens Decl., para. 6). Hens states 14
that he “immediately perceived the introduction of that optical vend 15
detection system as an industry changing event, a profound step forward. 16
[He] understood that the addition of a reliable vend detection system would 17
make a real difference to vending machine operators and the response [he] 18
saw at the tradeshow was all positive.” (Hens Decl., para. 7). 19
52. In addition, the Patent Owner has introduced an excerpt of 20
deposition testimony by Len Beckring. (See App. Br. 12). The Patent 21
Owner states in the Appeal Brief that Beckring was an independent 22
distributor of vending machines on behalf of both the Patent Owner and the 23
Requester. During the deposition, counsel asked Beckring if he “ever had 24
any discussions with anyone about that issue regarding anyone copying [the 25
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Patent Owner’s SENSIT] technology?” (Beckring Depo. 61, ll. 19-21, 1
Attachment 4 to the Appeal Brief). Beckring responded that: 2
I would say yes, I’ve discussed it with many 3
people throughout the industry because Roy 4
Steely’s invention of [optical vend detectors of the 5
type sold under the SENSIT mark] was a key 6
event, one of the first new things that’s come along 7
in our industry that somebody could really hang 8
their hat on and say we’ve improved a snack 9
machine, and he had done it within five years of 10
doing business. 11
(Beckring Depo., p. 63, ll. 2-8). 12
55. The licensing evidence, as well as the testimonies of John Hens 13
and Len Beckring, are entitled to little weight in concluding whether the 14
subject matter of representative claim 1 would have been unobvious. The 15
Patent Owner has not established a clear nexus between this evidence and 16
the subject matter of any particular claim of the ′220 patent. The Patent 17
Owner owns a family of patents related to the ′220 patent. (See Shull Decl., 18
para. 15, Attachment 1 to the Appeal Brief). Neither the licensing 19
agreements nor the testimonies of the two witnesses differentiate between 20
the subject matter claimed in the five identified patents of the family. In 21
fact, Roy Steely, the individual identified by Len Beckring as the inventor of 22
the technology which Len Beckring praises, is not a named inventor on the 23
′220 patent. While the evidence may say something about the novelty of the 24
broad class of technology claimed by the Patent Owner, it does not tend to 25
show the patentability of the subject matter specifically claimed in the 26
′220 patent. 27
28
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ANALYSIS 1
First Issue 2
Neither Dragne nor Friend is non-analogous art. (FF 17 and 36; see 3
App. Br. 18-19; Ans. 27-28; Reb. Br. 10-12). A reference is within the 4
scope and content of the relevant prior art if it would have been reasonably 5
pertinent to a problem with which the named inventors were involved. “A 6
reference is reasonably pertinent if, even though it may be in a different field 7
from that of the inventor’s endeavor, it is one which, because of the matter 8
with which it deals, logically would have commended itself to an inventor’s 9
attention in considering his problem.” In re ICON Health & Fitness, Inc., 10
496 F.3d 1374, 1379-80 (Fed. Cir. 2007). 11
One problem with which the named inventors were involved related to 12
providing a vending machine capable both of vending large items and of 13
sensing the delivery of small items. That is, an optical sensing system 14
covering a large enough cross-sectional area to allow large items to drop into 15
a delivery bin might miss the delivery of smaller items due to uneven 16
coverage of the area. (FF 18 and 19). While both Dragne and Friend 17
described devices for optically detecting a falling seed, both recognized the 18
problem of small items falling between beams of an optical sensing system. 19
(FF 20 and 37). Both taught the use of intersecting beams to reduce dark 20
areas between beams through which small items might pass undetected. (FF 21
22 and 38). Therefore, both Dragne and Friend were reasonably pertinent to 22
a problem with which the named inventors were involved. Neither is non-23
analogous art. 24
25
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Second Issue 1
Schuller describes a vending machine comprising a transparent front; 2
a dispensing mechanism configured to perform vending operations and 3
dispense a product upon selection by a consumer; a vend space comprising a 4
portion of space in the vending machine through which a selected product 5
will freely fall, independent of a product lowering elevator, into a bin 6
portion for retrieval by the consumer; and a vend-sensing system, that is, the 7
vend flap 29. (FF 1-12). Sculler’s vend-sensing system is positioned above 8
a customer accessible portion of the retrieval bin portion of the vending 9
machine. (FF 11 and 12). The Examiner correctly finds that Schuller does 10
not describe a vending machine including an optical vend-sensing system. 11
(See Ans. 6). 12
Dragne describes an optical sensing system configured to sense when 13
items, specifically seeds, freely fall through a space. (FF 15). Dragne’s 14
optical sensing system comprises an emitter mechanism configured to 15
generate electromagnetic radiation that substantially spans the space through 16
which the seeds fall. (FF 16). Dragne’s optical sensing system also includes 17
a detector mechanism configured to receive electromagnetic radiation 18
generated by the emitter mechanism and to detect changes in the 19
electromagnetic radiation caused by the seeds as they freely fall. (Id.). 20
The Patent Owner contends that the Examiner’s reasoning is not 21
persuasive of the obviousness of the claimed subject matter. Both the 22
Requester’s and the Examiner’s evidence of obviousness, and also the Patent 23
Owner’s evidence and arguments of non-obviousness, must be considered in 24
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determining whether the Examiner correctly concluded that the subject 1
matter of representative claim 1 would have been obvious. 2
The Examiner finds that Dragne describes an “accurate electronic 3
system” capable of reliably detecting both small and large items. (FF 14). 4
In addition, the Examiner finds that Schuller’s vend flap 29 would have been 5
subject to particular types of wear, such as wear due to friction, which an 6
optical system would not have suffered to the same degree. (FF 13). The 7
Examiner concludes that “it would have been obvious to one of ordinary 8
skill in the sensing system art . . . to replace the wear and failure prone 9
mechanical system [such as Schuller’s vend flap 29] with an accurate 10
electronic system.” (Ans. 6). With specific reference to ground of rejection 11
G, the Examiner also finds that Levasseur taught the interchangeability of 12
electromechanical and optical vend detection systems. (FF 41; see also Ans. 13
17). This latter finding implies that it would have been obvious to one of 14
ordinary skill in the art to merely substitute an optical vend detection system 15
for Schuller’s electromechanical system. 16
The Patent Owner responds to the Examiner’s reasoning with several 17
arguments. The Patent Owner argues that one of ordinary skill would not 18
have replaced Schuller’s vend flap 29 with an optical system simply to avoid 19
friction wear. The Patent Owner argues replacement of an 20
electromechanical sensing system with an optical system would have left 21
other moveable parts subject to frictional wear within the vending machine. 22
(See Reb. Br. 9, citing McAlexander Decl. 6, Attachment 6 to the Appeal 23
Brief). According to the Patent Owner, apart from this, optical systems are 24
subject to their own failure modes, such as misalignment. (See 25
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McAlexander Decl. 6; see also Shull Decl., para. 23, Attachment 1 to the 1
Appeal Brief). 2
The Patent Owner also argues that: 3
Ambient light coming through a transparent front 4
machine was a major issue directing one away 5
[from] use of any photoelectric system in such 6
equipment. Instead, the vending art only used 7
optical systems in the dark interiors of a delivery 8
area, of solid front machine, or in chute type 9
vending equipment as evidenced by Percy and 10
Truitt. Thus, the art at the time taught away from 11
the present invention. 12
(App. Br. 11; see also Attachments 7 and 8 to the Appeal Brief). The Patent 13
Owner asserts that in accordance with the Examiner’s reasoning, the solution 14
to the problem of ambient light would have come from the art which, even if 15
not non-analogous, described optical systems designed for use in planters or 16
machine stops rather than in vending machines. 17
To these arguments must be added the Patent Owner’s objective 18
evidence regarding the reaction of the vending machine industry to the 19
introduction of the technology embodied in the Patent Owner’s SENSIT 20
vending machines. The advertisement reproduced as Attachment 2 to the 21
Appeal Brief stated that Crane Merchandising Systems’ SUREVEND product 22
delivery sensor provided “[a]utomatic [s]elf-calibration” and “[w]orks in 23
[a]ll [l]ighting [c]onditions and [t]emperatures.” (FF 49). The remainder 24
of the Patent Owner’s objective evidence fails to establish even this 25
tenuous degree of nexus with any subject matter specifically claimed in the 26
′220 patent. See In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir. 27
1995)(addressing the nexus requirement for objective evidence). 28
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Market forces would have provided one of ordinary skill in the art 1
reason to increase the variety of products which a vending machine of the 2
type described by Schuller was capable of selling. A machine capable of 3
selling a greater variety of products would have been more valuable to a 4
larger customer base. One step in increasing the variety of products which a 5
vending machine of the type described by Schuller is capable of selling 6
would have been to replace Schuller’s vend flap 29 with an accurate 7
electronic system, that is, with an optical delivery sensing system better able 8
to detect smaller, lighter articles. Although the Patent Owner attacks the 9
Examiner’s reliance on the reduction of friction wear as an apparent reason 10
for substituting an optical system for Schuller’s electromechanical system, 11
the Patent Owner does not appear to address the Examiner’s finding that 12
Dragne’s optical system was an “accurate electronic system.” (See FF 13 13
and 14). One of ordinary skill in the art would reasonably have chosen one 14
failure mode over another of a different type of system where there was an 15
independent advantage, in this case improved accuracy, to be had. See 16
Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006)(“[A] 17
given course of action often has simultaneous advantages and disadvantages, 18
and this does not necessarily obviate motivation to combine.”). 19
One of ordinary skill in the art would have had reason to position the 20
replacement optical sensing system in approximately the same position 21
occupied by Schuller’s vend flap 29 in order to maintain the relationships 22
between different components of the vending machine. (See Request 34). 23
Nevertheless, this placement would have exposed the optical sensing system 24
to levels of ambient light greater than those to which the optical systems 25
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might have been exposed as described in references such as Percy and Truitt. 1
(See App. Br. 11). The references cited by the Requester and the Examiner 2
do not show that any optical sensing system previously installed in a 3
vending machine was both capable of reliably detecting smaller, lighter 4
items, in order to increase the variety of products which the machine might 5
sell; and insensitive to changes in ambient light, so as to permit the optical 6
sensing system to be placed in approximately the same position occupied by 7
Schuller’s vend flap 29. 8
That said, Dragne (see FF 20-23 and 30-32) and, as applied to ground 9
of rejection G, Endl (see FF 46 and 47), are evidence that optical sensing 10
systems addressing the same sensitivity range and ambient light problems 11
outside the narrow use in vending machines would have led one of ordinary 12
skill in the art to the subject matter of representative claim 1. Cf. KSR Int’l 13
Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007)(“When a work is available in 14
one field of endeavor, design incentives and other market forces can prompt 15
variations of it, either in the same field or a different one.”). Dragne’s 16
teachings in particular are evidence that optical sensing systems addressing 17
the same sensitivity range and ambient light problems were known outside 18
the narrow application of optical sensing systems in vending machines even 19
if Dragne’s optical sensing units might have seen little ambient light in their 20
native environments. 21
This reasoning is consistent with the evidence as a whole. For 22
example, the Requester’s introduction of a product three years after the 23
Patent Owner’s introduction of the SENSIT vend sensing system (see App. 24
Br. 12), or assertions of commercial success based on licensing, without 25
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corresponding supporting evidence of actual success, are not entitled to 1
significant weight as evidence that subject matter specifically claimed in the 2
′220 patent was patentable. (FF 48-50). Combining the teachings of 3
Schuller and Dragne as proposed in ground of rejection A, or the teachings 4
of Schuller, Levasseur, Dragne and Endl as proposed in ground of rejection 5
G, one of ordinary skill in the art would have had reason to substitute an 6
optical sensing system of the type described by Dragne for the vend flap 29 7
described by Schuller. 8
9
Third Issue 10
Since Schuller did not disclose control circuitry for an optical sensing 11
system, it would have been obvious for one of ordinary skill in the art to 12
adopt the portion of Dragne’s control circuitry which related to the detecting 13
(as opposed to the counting) of items breaking the light beams. In addition, 14
one of ordinary skill in the art would have had reason to position the 15
replacement optical sensing system in approximately the same position 16
occupied by Schuller’s vend flap 29 in order to maintain the relationships 17
between different components of the vending machine. The proposed 18
substitution would have yielded a vending machine including “an optical 19
vend-sensing system configured to sense when said selected product freely 20
falls through said vend space” as recited in representative claim 1. 21
Despite the Patent Owner’s arguments to the contrary (see App. 22
Br. 14; Reb. Br. 2-3), the Examiner correctly concludes that “the obvious 23
combination of the Schuller and Dragne disclosures would [have resulted] in 24
a falling object passing through an optical beam, rather than mechanical 25
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fingers, in order to operate the vending machine.” (Ans. 23-24). Common 1
sense implies that an optical sensing system, once substituted for Schuller’s 2
vend flap 29, would have sensed vended items as the items fell freely 3
through the light beams of the optical sensing system. 4
One drawback to prior electromechanical sensing systems which the 5
substitution of an optical system overcomes is insufficient sensitivity range 6
due to the interference of the pivotable bars of electromechanical systems 7
with the free fall of vended products toward the delivery chamber. (See FF 8
15). This advantage of overcoming this drawback would have flowed 9
naturally from the placement of an optical sensing system at the same 10
location formerly occupied by Schuller’s vend flap 29 and replaces the 11
electromechanical sensing system of Schuller which includes the pivotable 12
bars. Therefore, the limitation requiring “an optical vend-sensing system 13
configured to sense when said selected product freely falls through said vend 14
space” adds nothing of patentable consequence as compared to the suggested 15
combination of prior art. 16
17
Fourth Issue 18
Despite the Patent Owner’s argument to the contrary (see App. Br. 16-19
17), Dragne also describes control circuitry including a calibration circuit 20
which “calibrates” an optical sensing system “based on ambient light.” The 21
′220 patent differentiates between ambient light and excitation light, stating 22
that “[t]he ambient light is external to the system and excitation light is from 23
the system.” (′220 patent, col. 16, ll. 22-23). Other than this statement, 24
neither the Patent Owner, the Requester nor the Examiner has provided a 25
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persuasive definition of the term “calibrating . . . based on ambient light.” 1
One general purpose dictionary defines the term “calibrate” as sufficiently 2
broad to encompass “[t]o check, adjust, or determine by comparison with a 3
standard.” (THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH 4
LANGUAGE (Houghton Mifflin Co., 4th ed., 2009), available at 5
http://www.thefreedictionary.com/calibrate (last visited September 10, 6
2013)). 7
The Specification of the ′220 patent provides several examples of 8
calibration modes for calibrating the optical vend-sensing system based on 9
ambient light entering the vending machine through the transparent front. 10
(′220 patent, cols. 16 and 17). For example, the ′220 patent teaches 11
performing a “limit-less calibration” when the controller powers up after 12
having been off for longer than about five minutes. (′220 patent, col. 18, 13
ll. 7-11). 14
The system described in the Specification of the ′220 patent detects 15
the delivery of items by sensing perturbations in the intensity of a pulsed 16
band of light through which the items fall. (′220 patent, col. 9, ll. 18-29). 17
The pulsed band of light is produced by a linear array of LEDs driven at 18
high currents, low duty cycles and selected frequencies. (′220 patent, 19
col. 11, ll. 31-33). A limit-less calibration is performed on the basis of three 20
parameters: a measure of the pulse width of the current driving the LEDs 21
(the “PULSE” parameter); a measure of light intensity combining the 22
intensities of the excitation and ambient light (the “BASIS” parameter); and 23
a measure of the pulse width modulation (that is, the duty cycle) of the 24
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current driving the LEDs (the “PWM” parameter). (See the ′220 patent, 1
col. 16, ll. 18-33). 2
Dragne describes a calibration process performed at power up to 3
determine the optimum duty cycle for the current pulses used to drive the 4
LEDs 29 of the light transmitter 15. (FF 27). The calibration process is 5
performed on the basis of two parameters, namely, a voltage V1 representing 6
the combined intensities of the excitation and ambient light; and the duty 7
cycle of the current pulses supplied by the control circuit 17 to the LEDs 29. 8
At the beginning of the calibration process, the microprocessor 13 sets the 9
duty cycle to a minimum current level. (FF 26). The system then generates 10
pulses of light through the LEDs 29; compares the output voltage V1 with a 11
reference voltage; and increases the duty cycle. The calibration process 12
completes when the output voltage exceeds the reference voltage or the duty 13
cycle increases to the point where the total current driving the LEDs 29 14
exceeds a maximum value. (Id.) 15
In short, the Examiner correctly finds that Dragne includes a 16
calibration circuit (including at least one or more of the microprocessor 13 17
and the control circuit 17) calibrates an optical sensing system. (See FF 27). 18
Dragne’s calibration circuit calibrates an optical circuit in that the calibrating 19
circuit adjusts the duty cycle of the current supplied to the LEDs 29 by 20
comparing the output voltage V1 of the receiver 16 with a standard, namely, 21
a reference voltage. 22
In particular, the fact that ambient light enters into both Dragne’s 23
calibration process and the limit-less calibration taught by the ′220 patent 24
only in the form of a parameter combining ambient and excitation light 25
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confirms that Dragne’s calibration circuit is “for calibrating . . . based on 1
ambient light.” Had one of ordinary skill in the art installed an optical 2
sensing system similar to that described by Dragne, including a 3
microprocessor 13 and a control circuit 17 for performing the calibration 4
process described by Dragne, into a vending machine of the type described 5
by Schuller, the optical sensing unit would have performed the calibration 6
process based on ambient light entering the vending machine through the 7
transparent front. (FF 29; see also Ans. 7). 8
The combination of Dragne’s load resistor 41 and DC compressor 9
circuit 46 also is a calibration circuit in that it adjusts the voltage V1 output 10
by the receiver 16 by comparison with a standard steady state determined by 11
the values of the load resistor and the components making up the DC 12
compressor circuit. (FF 32). 13
14
Fifth Issue 15
With respect to ground of rejection C, the Patent Owner quotes or 16
paraphrases particular limitations of claims 6, 10, 11, 16, 27, 34, 36 and 37 17
(see App. Br. 23-24) and then states that “Schuller in view of Dragne and 18
Friend collectively fail to show the foregoing claim features.” (App. Br. 23-19
24). The Examiner has either shown where these limitations are taught by 20
Schuller or Dragne, or why it would have been obvious to modify Schuller’s 21
vending machine to include them. The Patent Owner has not offered a 22
persuasive explanation how the Examiner’s findings or reasoning are 23
24
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erroneous.
8
1
Claim 6 recites a vending machine including both “a control 2
mechanism configured to control said dispensing as a function of when said 3
optical vend-sensing system senses said product freely falling through said 4
vend space; and a calibration circuit for calibrating the optical vend-sensing 5
system based on ambient light entering the vending machine through the 6
transparent front.” The Examiner finds that Schuller describes a control 7
circuit CM at column 10, lines 47-52. (See Ans. 5; RAN 7; Request 40). 8
As noted in the discussion of the third issue above, the Examiner correctly 9
concluded that “the obvious combination of the Schuller and Dragne 10
disclosures would [have resulted] in a falling object passing through an 11
optical beam, rather than mechanical fingers, in order to operate the vending 12
machine.” (Ans. 23-24). As noted in the discussion of the fourth issue 13
above, the Examiner finds that “the Dragne sensor system includes a 14
calibration circuit (col. 7, lns. 19-28; col. 8, lns. 16-23) which would [have 15
functioned] as intended when installed behind the transparent front of the 16
Schuller vending machine.” (Ans. 7; RAN 8; accord Request 40). 17

8
As support for this argument, the Patent Owner cites page 19 of the
McAlexander Declaration, Attachment 6 to the Appeal Brief. On page 19,
McAlexander disagrees with the Examiner’s conclusion that the subject
matter of claims 6, 10, 11, 16, 27, 34, 36 and 37 would have been obvious.
McAlexander does not appear to explain how the prior art might fail to show
the particular limitations quoted on pages 23-24 of the Appeal Brief,
however. Without supporting evidence or technical reasoning, a technical
expert’s opinion as to the ultimate question of patentability of a claim is not
entitled to evidentiary weight. Mendenhall v. Cedarapids Inc., 5 F.3d 1557,
1574 (Fed. Cir. 1993) (quoting Nutrition 21 v. United States, 930 F.2d 867,
871 n.2 (Fed. Cir. 1991)).
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Claim 10 recites a vending machine including an “optical vend-1
sensing system configured to sense said selected product as it freely falls 2
through said product delivery path, said optical vend-sensing system” 3
comprising: 4
at least one emitter mechanism configured to 5
generate electromagnetic radiation that 6
substantially covers a cross-section of said product 7
delivery path in a generally horizontal direction, 8
said cross-section having a front-to-rear depth 9
approximately equal to said front-to-rear of said 10
vend space, and 11
two or more active detector mechanisms 12
configured to receive electromagnetic radiation 13
generated by said at least one emitter mechanism 14
and to detect changes in said electromagnetic 15
radiation caused by the free falling passage of said 16
selected product. 17
Claim 16 recites a vending machine including an “optical vend-18
sensing system configured to sense when said selected product passes 19
through a substantially unconstrained portion of said vend space.” The 20
optical vend-sensing system of claim 16 includes “a plurality of 21
emitters . . . ; and a plurality of active detectors configured to receive said 22
electromagnetic radiation generated by each of said emitters.” Claim 34 23
recites a method of controlling a transparent front vending machine having 24
“a product delivery path extending generally in a vertical direction and being 25
the area between the transparent front and the product storage area, the 26
product delivery path extending in substantially unreduced cross-section to a 27
customer accessible product delivery bin.” Schuller teaches this limitation. 28
(See FF 6). Claim 34 also recites: 29
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creating a generally horizontal light detection 1
plane across the substantially unreduced cross-2
section of said product delivery path . . . by pulsing 3
one or more light emitters on one side of said 4
product delivery path at a preselected frequency 5
and using at least two active light detectors 6
provided on an opposite side wall of said product 7
delivery path to monitor interruption of said pulsed 8
light emitted by each of said light emitters 9
whenever said light emitters are active. 10
The Examiner finds that “the Dragne sensor system creates a plane of 11
electromagnetic radiation 37 (Fig. 3) which covers the entire cross-section of 12
a detection region (col. 6, lns. 41-45).” (Ans. 7; RAN 9; see also Ans. 10 13
(citing Friend, col. 2, ll. 64-66 and col. 3, ll. 44-49)). The Request explains 14
that, “[i]n substituting the optical sensing system of Dragne ‘383 for the 15
electro-mechanical sensing system of Schuller ‘366, one skilled in the art 16
would [have arranged] the LEDs and photo silicon diode(s) to substantially 17
cover a cross-section of the vend space.” (Request 45). The Examiner also 18
finds that “the Dragne detector mechanism is active (col. 6, lns. 48-49), and 19
the choice of the number of detecting mechanisms would appear an obvious 20
choice to be made in light of Dragne teaching use of a photo detector 32 in 21
the form of an elongate strip (col. 6, lns. 7-9).” (Ans. 7; RAN 9; accord 22
Request 46). Were an optical sensing system of the type described by 23
Dragne installed in Schuller’s vending machine at approximately the 24
location of the vend flap 29 within the vending machine, the cross-section of 25
a product delivery path would have had a front-to-rear depth approximately 26
equal to the front-to-rear of the vend space 13 of Schuller’s machine. 27
Finally, the Examiner concludes that “the choice of frequency would appear 28
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an obvious choice to be made in order to avoid the effect of ambient light, as 1
suggested by Dragne.” (Ans. 7; RAN 9; see also Request 70). 2
Claim 16 additionally recites “wherein said emitters modulate the 3
electromagnetic radiation generated at a frequency selected to avoid 4
interference caused by ambient light entering said vend space through said 5
transparent front.” The Examiner finds that “the Dragne sensing system 6
emits/transmits a plurality of beams of pulsed, modulated (col. 7, lns. 9-18) 7
infrared (col. 5, lns. 55-57) radiation from a row of LED’s 29.” (Ans. 6; 8
RAN 8; see also Request 33; FF 23). 9
Claim 11 recites a vending machine as in claim 10 including “a 10
reflector mechanism constructed and adapted to direct at least some of the 11
electromagnetic radiation generated by the at least one emitter mechanism 12
towards the two or more active detector mechanisms.” Claims 27, 36 and 37 13
include similar limitations. The Examiner concludes that: 14
the choice of optical sensor components used to 15
create the plane of electromagnetic radiation 16
(Dragne, 37) would appear an obvious choice to be 17
made where Friend teaches use of a reflector 18
mechanism 34,36 to create a plane of 19
electromagnetic radiation “B” which covers the 20
entire cross-section of a free-fall detection region 21
(col. 2, lns. 64-66; col. 3, lns. 44-49). 22
(Ans. 10; RAN 12; see also Request 94). 23
The Patent Owner has not offered a persuasive explanation as to why 24
the Examiner’s findings or reasoning might have been erroneous. 25
26
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CONCLUSIONS 1
We sustain ground of rejection A, that is, the rejection of claims 1-4, 2
6-10, 12-26, 28-32, 34 and 35 as being unpatentable over Schuller and 3
Dragne. The Patent Owner contests ground of rejection C principally on the 4
basis that either ground of rejection A is not sound or that Friend is non-5
analogous art. Since neither argument is persuasive, we also sustain ground 6
of rejection C, that is, the rejection of claims 6, 10, 11, 16, 27, 34, 36 and 37 7
as being unpatentable over Schuller, Dragne and Friend. We additionally 8
sustain ground of rejection G, that is, the rejection of claims 1-37 as being 9
unpatentable over Schuller, Levasseur, Dragne, Endl and Friend. Since 10
these grounds of rejection address all of the claims on appeal, they are 11
dispositive of the appeal. See 37 C.F.R. § 41.67(c)(1)(vii). Therefore, we 12
do not reach the remaining grounds of rejection. 13
14
DECISION 15
We AFFIRM the Examiner’s decision rejecting claims 1-37. 16
Requests for extensions of time in this inter partes reexamination 17
proceeding are governed by 37 C.F.R. § 1.956 (2011). 18
19
AFFIRMED 20
21
ak 22

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Patent Owner: 1
2
Davidson Berquist Jackson & Gowdey, LLP 3
4300 Wilson Blvd., 7th Floor 4
Arlington, VA 22203 5
6
Third Party Requester: 7
8
Munck, Carter, LLP 9
Docket Clerk 10
P.O. Drawer 800889 11
Dallas, TX 75380 12