Ex Parte 7490576 et al

Board of Patent Appeals and Interferences

Apr 27, 2012

90011255 (B.P.A.I. Apr. 27, 2012)

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.
90/011,255 09/24/2010 7490576 11395.0001 6438
22862 7590 04/30/2012
GLENN PATENT GROUP
3475 EDISON WAY, SUITE L
MENLO PARK, CA 94025
EXAMINER
GELLNER, JEFFREY L
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
04/30/2012 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
____________________

Ex parte LMI TECHNOLOGIES, INC.,
Patent Owner and Appellant
____________________

Appeal 2012-005160
Reexamination control 90/011,255
Patent 7,490,576 B2
Technology Center 3900
____________________

Before SALLY G. LANE, RICHARD M. LEBOVITZ, RAE LYNN P.
GUEST, Administrative Patent Judges.

GUEST, Administrative Patent Judge.

DECISION ON APPEAL
I. STATEMENT OF CASE
LMI Technologies, Inc., (hereinafter “Appellant”), the real party in
interest1 of Patent 7,490,576 B2 (hereinafter the “‘576 patent”), appeals
under 35 U.S.C. §§ 134(b) and 306 from the Examiner’s decision to reject
claims 1-3 under 35 U.S.C. § 103(a) as unpatentable over Cop2 in view of

1 See Appellant’s Appeal Brief filed September 27, 2011 (hereinafter “App.
Br.”) at 4.

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Schwarte3 or, alternatively, over Montalescot4 in view of Bamji5 (Final
Office Action, mailed June 6, 2011, pages 2-9). We have jurisdiction under
35 U.S.C. §§ 134(b) and 306.
We AFFIRM.
This reexamination proceeding arose from a third-party request for ex
parte reexamination filed by Anthony C. Tridico (Request for Ex Parte
Reexamination, filed September 24, 2010).
The ‘576 patent relates to automated detection of animal teats for the
purpose of controlling an automated milking apparatus (‘576 patent, col. 1,
ll. 11-13).
Representative claim 1 on appeal reads as follows (Claims App’x,
App. Br. 53):
1. In an automated milking system having milking
apparatus for extracting milk from a plurality of teats on a live
animal, use of a light source for simultaneously illuminating
said plurality of teats and of a two-dimensional array camera
having a plurality of pixels that are capable of individually
providing time of flight data for capturing and delivering data
for determining the location of said teats in three dimensions.
Appellant’s arguments are directed to all of the rejected claims on
appeal, as such we direct our comments toward representative claim 1.

2 Cöp et al., WO 02/00011 A1, published January 3, 2002 (hereinafter
“Cop”).

3 Schwarte, Rudolph, “Dynamic 3D-Vision,” Proceedings EDMO
2001/VIENNA, pp. 241-248 (2001).

4 Montalescot, et al., US 4,867,103, issued September 19, 1989.

5 Bamji, et al., US 6,323,942 B1, issued November 27, 2001.
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II. DISPOSITIVE ISSUE
The issue with respect to each rejection is substantially the same. The
Examiner finds that Cop and Montalescot teach the use of conventional
cameras in automated milking apparatuses for providing 3D imaging (see
Examiner’s Answer, mailed December 3, 2011 (hereinafter “Ans.”) at 4 and
7). The Examiner acknowledges that neither Cop nor Montalescot disclose
using the particular claimed camera (id.). The Examiner finds that Schwarte
and Bamji teach the claimed “two-dimensional array camera having a
plurality of pixels that are capable of individually providing time of flight
data” as an improvement over conventional 3D imaging cameras (see id.).
The Examiner finds that neither Schwarte nor Bamji specifically disclose the
use of the claimed cameras in animal husbandry, or specifically in automated
milking applications.
Appellant does not dispute the Examiner’s findings with respect to the
prior art. Nonetheless, Appellant contends that the Examiner’s conclusion
that one of ordinary skill in the art would have used the cameras taught by
Schwarte or Bamji in the milking apparatuses of Cop or Montalescot is
contrary to the evidence of record, namely (1) the teachings of Schwarte, (2)
the testimony provided by Leonard Metcalfe,6 (3) Kriesel,7 and (4)

6 The Declaration under 37 C.F.R. § 1.132 of Leonard Metcalfe, dated May
2, 2011, and entered into the record on May 4, 2011 (hereinafter “Metcalfe
Declaration” or “Metcalfe Decl.”).

7 Kriesel, et al., US 2005/0136819 A1, published June 23, 2005.

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Westberg,8 which allegedly demonstrate that at the time of the invention one
of ordinary skill in the art would have perceived such cameras to be too new
of a technology and unsuitable for use in a milking apparatus (see e.g., App.
Br. 43-46 and 49-51).
The dispositive issue on appeal is: does the evidence of record taken
as a whole support the Examiner’s conclusion that a person of ordinary skill
in the art at the time of the invention would have used time of flight
cameras, as described in Schwarte and Bamji, for the specific purpose of teat
detection in automated milking apparatuses? We answer this question in the
affirmative.
III. ANALYSIS
We adopt the Examiner’s findings in the Answer as our own and add
any additional findings of fact appearing below for emphasis.
The Examiner has provided sufficient reasoning as to why the skilled
artisan would have used the time of flight cameras of Schwarte and Bamji in
the milking apparatuses of Cop and Montalescot.
Specifically, Cop uses two charge coupled device (CCD) type
cameras and relies on the same reference point in both camera images to
deduce a three-dimensional udder pattern using an image processing
program (Cop 3:36-4:3 and 4:24-27). The Examiner describes this as a
“stereo-type sensor system” (Ans. 12) (citing Cop 4:35-37 (generating a
“stereoscopic image”) and the Metcalfe Declaration ¶ 29 (indicating that
Cop teaches a “stereoscopic vision system” as distinguished from “optical
triangulation”)).

8 Westberg, Michael, “Time of Flight Based Teat Detection,” Report
Number LiTH-ISY-EX--09/4151--SE, DeLaval AB Research and
Innovation Department (R&I) (May 5, 2005).
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Schwarte describes the use of its Photonic Mixer Device (PMD) to
provide new pixel array 3D cameras in applications that include “robot
vision for navigation” and “common safety and surveillance tasks”
(Schwarte, Introduction, at 241). Schwarte identifies the PMD system as
alternative to “laser scanners” and “stereo vision,” which are described in
Schwarte as often lacking “appropriately structured scenes” and having “too
time-consuming” signal processing “in fast changing respectively dynamic
scenes” (id.). Thus, the Examiner concludes that one of ordinary skill in
the art would reasonably find Schwarte’s camera applicable to many
applications and particularly “to improve the camera used in the milking
system of Cop” (Ans. 13).
Montalescot teaches using an optical scanning laser and a single CCD
camera in which lines produced by the laser scanner are imaged by the
camera and the coordinates of the teat are worked out by triangulation,
knowing the positions of the scanner and camera (Montalescot, col. 8, line
34 to col. 9, line 16). The Examiner describes this as a “two dimensional
array camera” (Ans. 7) (citing Montalescot, col. 3, ll. 19-32). Appellant
refers to Montalescot’s 3D camera as an “optical triangulation sensor” (App.
Br. 14; Metcalfe Decl. ¶ 30).
Bamji describes the use of its time of flight data optical system as an
improvement over typical systems such as “scanning laser tomography”
systems or “scanning laser range finding systems,” such as those using CCD
cameras (Bamji, col. 1, ll. 31-53 and col. 2, ll. 48-65). The Examiner
concludes that “[i]t would have been obvious to one of ordinary skill in the
art to modify the system of Montalescot by using the camera of Bamji so as
to produce direct 3D images suitable for direct computer use” (Ans. 7-
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8)(citing Bamji, col. 2, ll. 36-47) (“[M]any applications require accurate
distance and velocity tracking, for example an assembly line welding robot
that must determine the precise distance and speed of the object to be
welded. . . . Such applications would benefit from a system that could
directly capture three-dimensional imagery.”).
The Examiner’s conclusions of obviousness are reasonable and
supported by a preponderance of the evidence because the 3D systems that
Schwarte and Bamji improve upon are precisely the same systems taught by
Cop and Montalescot, respectively. One having skill in the art of 3D camera
systems used for robotics of the type taught by Cop and Montalescot would
have been aware of 3D camera technology, as evinced by Schwarte and
Bamji, and would have considered the latter time of flight systems suitable
for all robotic applications using 3D imaging systems, including those of
Cop and Montalescot. Schwarte and Bamji expressly disclose using time of
flight cameras for such robotic and machine uses (see Schwarte, Abstract
and Figure 10; Bamji, col. 2, ll. 36-47). KSR Int'l Co. v. Teleflex, Inc., 550
U.S. 398, 416-17 (2007). “[I]f a technique has been used to improve one
device, and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.” Id. at 417. “A
person of ordinary skill is also a person of ordinary creativity, not an
automaton.” Id. at 421.
Appellant’s evidence does not convince us otherwise. Appellant
argues that Schwarte teaches the immature nature of the technology and thus
would not motivate one skilled in the art to adopt it (App. Br. 33-35). For
example, Schwarte discloses that the PMD technology was described as a
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“principle” that was “under development” and is “going to revolutionize the
capabilities of dynamic 3D-vision” (App. Br. 34; Schwarte, Introduction, at
241-2). The Examiner concluded that Schwarte provides sufficient
description to enable one of ordinary skill in the art to use the PMD based
3D camera of Schwarte as the 3D camera in the milking system of Cop. In
particular, the Examiner finds that Schwarte teaches “different
implementations of PMD-pixels as a basis for new 3D-cameras” (Ans. 12;
Schwarte, Introduction, at 241; see also Schwarte, Conclusion, at 246 (“As
demonstrated the PMD-principle leads like a central thread through a
number of several PMD-implementations. This new technology provides a
wide range of innumerable applications from everyday to industrial and
scientific life.”)). In fact, Schwarte states that the “paper describes proved
and new promising ways to achieve fast and precise three-dimensional
capturing of spatial scenes” (Schwarte, Abstract, at 241). Thus, far from
expressing reservations about the technology, Schwarte characterized it as
“proved.”
There is a strong presumption that the teachings of prior art if used by
one skilled in the art will produce the results alleged therein. See In re
Weber, 405 F.2d 1403, 1406-07 (CCPA 1969). Once one of ordinary skill in
the art is taught that time of flight cameras may be used as an alternative to
conventional cameras in robotic application, it is a routine matter to
determine optimal or workable conditions that will work for that purpose.
Appellant has not overcome that presumption. We have not been directed to
sufficient evidence that the application of Schwarte’s camera to the milking
system of Cop would have been beyond the skill level of the average worker
in the art. The relative age of the technology described in Schwarte provides
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no rationale as to why this skilled artisan would not have used the
technology as a substitute for conventional 3D cameras in known 3D camera
applications.
Appellant relies on the Metcalfe Declaration as evidence of non-
obviousness in the combination of time of flight cameras with automated
milking systems. First, Metcalfe testified that optical triangulation, as
taught by Montalescot, was considered fast and accurate in the field of
automated milking and such systems were used by virtually all in the field
(App. Br. 16-17 and 44; Metcalfe Decl. ¶¶ 17, 20). Second, Metcalfe
testified that time of flight measurements were generally considered by
persons of ordinary skill to be reasonably accurate only over distances in the
order of miles (App. Br. 19 and 44-45; Metcalfe Decl. ¶¶ 33 and 37). Third,
Metcalfe testified as to additional drawbacks to time of flight cameras
known to those of ordinary skill in the art at the time of the invention,
notably a need for exceedingly accurate signal discrimination, temperature-
dependent variations that affect accuracy, and a significant amount of digital
processing due to varying reflectivity of assessed surfaces (App. Br. 19 and
44-45; Metcalfe Decl. ¶¶ 33 and 36). Fourth, Metcalfe testified that a person
of ordinary skill in the art at the time of the invention “would not even
consider the applicability of a time of flight camera to automated milking
applications” that deal with multiple moving teats on a moving animal at
very close range (App. Br. 19 and 45; Metcalfe Decl. ¶¶ 37-38).
Appellant argues that Kriesel and Westberg, in addition to being
references standing on their own, directly support the testimonial evidence in
the Metcalfe Declaration (App. Br. 45).
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Kriesel9 is directed to measuring the physical characteristics of
livestock animals, particularly concerning volumetric, curvilinear (surface)
and linear measurements of full carcasses thereof (see Kriesel, Abstract).
Kriesel identifies Bamji as being among a number of “existing state-of-the-
art for measuring animals or carcasses [relying] upon the acquisition of
images showing silhouettes or profiles of an animal (or carcass)” (Kriesel, ¶¶
[0016], [0018] and [0023]). However, Appellant relies upon a second
portion of Kriesel (App. Br. 35-38), which states as follows (Kriesel, ¶
[0202]) (emphasis added):
Table 2-1 compares the range camera technologies best
suited for the present invention. . . . These are active depth from
defocus, active stereo, active laser stripe triangulation, and
active depth from focus. Pulsed or modulated light (or IR) was
not included in this table since such time-of-flight systems are
slower point or line scan system which may lack axial
resolution due to the high frequency processing required to
measure variations in light propagation times.
Appellant argues that ¶ [0202], recited above, is “a clear
disparagement of time of flight systems, particularly for livestock
applications” that “expressly teaches away from considering time of flight
systems for livestock assessment purposes” (App. Br. 35, 38, and 45).
Appellant also argues that Kriesel explains the distance resolution problem
testified to in the Metcalfe declaration, when it speaks of the “lack of axial
resolution” (App. Br. 37-38 and 45).

9 Though not a basis of non-obviousness for the Examiner’s rejection
of claims 1-3, Kriesel is § 102(e) prior art to the ‘576 patent, as it was
published in June 23, 2005, less than one year before the earliest filing date
relied upon by the ‘576 patent, namely March 15, 2006.

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Appellant argues that Westberg evinces that “(as of three years after
the relevant date) time of flight technology was a brand new technology for
which the author felt he had just established a proof of concept for teat
detection” (App. Br. 39 and 45; see Westberg, “1.1 Introduction,” at 1).
We do not find Appellant’s evidence convincing that one of ordinary
skill in the art would not have had a reasonable expectation of success in
using the known time of flight cameras of Schwarte and Bamji as alternative
cameras to those conventionally used in automated milking systems as
taught by Cop and Montalescot.
In particular, the evidence directed to the known drawbacks to time of
flight cameras at the time of the invention (Kriesel and Metcalfe Decl.) are
not persuasive. For example, Mr. Metcalfe contends that the time of flight
measurements were reasonably accurate only over distances in the order of
miles (Metcalfe Decl. ¶¶ 33 and 37). However, Bamji teaches that “[i]n
practical applications, sensor array 230 has sufficient resolution to
differentiate target distances on the order of 1cm” (Bamji, col. 7, ll. 47-49
and 61-62). Likewise, Schwarte describes applications for its camera, such
as level detection, product monitoring, and machine vision (Schwarte,
Figure 10), which appear to be applications involving similar distances to
those in the claimed subject matter.
Nor are we persuaded by the evidence of record directed to the fact
that conventional optical triangulation or other cameras were considered fast
and accurate, or “best suited.” See In re Gurley, 27 F.3d 551, 552-3 (Fed.
Cir. 1994) (“A known or obvious composition does not become patentable
simply because it has been described as somewhat inferior to some other
product for the same use.”). Considering Schwarte and Bamji disclose time
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of flight cameras as desirable alternatives to conventional cameras, we find
nothing in the known drawbacks or general preference for conventional
cameras in the art to show that the skilled artisan, having all of the evidence,
would not have a reasonable expectation of success in using the cameras of
Schwarte and Bamji as alternatives to the cameras of Cop and Montalescot.
We disagree with Appellant that Kriesel provides a clear teaching
away from the use of time of flight cameras with livestock applications. To
the contrary, we find a clear acknowledgement in Kriesel that time of flight
cameras, Bamji’s camera in particular (Kriesel, ¶ 23), were well known in
the art as particularly relevant to livestock applications. Some known
drawbacks rendered them not “best suited” for the particular livestock
applications sought by Kriesel (Kriesel, ¶ 202), which involved volumetric
and dimensional measurements, not an animal automated milking apparatus
as claimed, which would involve different considerations from those in
Kriesel’s method.
Moreover, Schwarte and Bamji both teach the specific use of time of
flight cameras for robotics applications, which appears to be more
particularly suited to the robotics used in known automatic milking systems
than the general livestock assessment applications of Kriesel. “[T]he
question is whether there is something in the prior art as a whole to suggest
the desirability, and thus the obviousness, of making the combination,” not
whether there is something in the prior art as a whole to suggest that the
combination is the most desirable combination available. In re Fulton, 391
F.3d 1195, 1200, (Fed. Cir. 2004).
We find Westberg the least persuasive evidence of non-obviousness.
Westberg was published in 2009 and describes experiments performed in
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2008. It does not appear to evince what one of ordinary skill in the art
would have known about time of flight cameras at the time of the claimed
invention. Westberg fails to acknowledged the teachings of Kriesel, which
discussed time of flight cameras in livestock applications several years
earlier, or even Appellant’s own application which was of public record as
early as September 20, 2007. Merely because Westberg was unaware that
time of flight cameras were known in the art for livestock applications, and
particularly milking applications as would have been known from
Appellant’s published patent application, does not give it persuasive weight
over other evidence of record as to the knowledge of the skilled artisan.
“[A] prior art reference must be ‘considered together with the knowledge of
one of ordinary skill in the pertinent art.’” In re Paulsen, 30 F.3d 1475,
1480 (Fed. Cir. 1994).
Further, we can ascribe only very little weight to Mr. Metcalfe’s
testimony that a person of ordinary skill in the art at the time of the invention
“would not even consider the applicability of a time of flight camera to
automated milking applications” that deal with multiple moving teats on a
moving animal at very close range. The testimony of Mr. Metcalfe, though
relevant evidence for our consideration, cannot be considered completely
disinterested and objective testimony, as Mr. Metcalfe is a named inventor
on the ‘576 patent. Accordingly, such conclusory statements without
specific supporting evidence that the skilled artisan “would not have
considered” time of flight cameras for close range application, despite the
teachings of Schwarte and Bamji (and further considering what the skilled
artisan would glean from Kriesel), cannot be persuasive of non-obviousness.
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The weight of the evidence taken as a whole supports the Examiner’s
conclusion of obviousness under the law.
IV. CONCLUSION
On the record before us, we affirm the rejections maintained by the
Examiner.
V. TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED
cu

FOR PATENT OWNER:

GLENN PATENT GROUP
3475 EDISON WAY, SUITE L
MENLO PARK, CA 94025

FOR THIRD-PARTY REQUESTER:

ANTHONY C. TRIDICO
FINNEGAN HENDERSON FARABOW
GARRETT & DUNNER LLP
901 NEW YORK AVE., NW
WASHINGTON, DC 20001-4413