Ex Parte Becker et al

Patent Trial and Appeal Board

Nov 29, 2017

10564607 (P.T.A.B. Nov. 29, 2017)

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.
10/564,607 06/05/2006 Guido Becker 8527-3001-1 3237
29318 7590 12/01/2017
TA1UFS n NTFVFNN EXAMINER
REISING ETHINGTON P.C. SHERWIN, RYAN W
P.O. BOX 4390
TROY, MI 48099 ART UNIT PAPER NUMBER
2686
NOTIFICATION DATE DELIVERY MODE
12/01/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
stevens@reising.com
U S PTOmail @ reising. com
USPTOmail@gmx.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GUIDO BECKER,
THIERRY MOUSEL, and PAUL SCHOCKMEL
Appeal 2017-002280
Application 10/564,6071
Technology Center 2600
Before BRUCE R. WINSOR, BARBARA A. BENOIT,
and DAVID C. McKONE, Administrative Patent Judges.
WINSOR, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 9-12, 15, and 16, which constitute all the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b). Claims 1—8, 13,
and 14 are cancelled. App. Br. 2.
We reverse and institute a new ground of rejection within the
provisions of 37 C.F.R. § 41.50(b).
1 The real party in interest identified by Appellants is IEE
INTERNATIONAL ELECTRONICS & ENGINEERING S.A. App. Br. 2.
Appeal 2017-002280
Application 10/564,607
RELATED PROCEEDING
Although Appellants state there are no related proceedings (App. Br.
2), the instant application was the subject of previous Appeal 2010-010059,
decided April 16, 2013, request for rehearing denied June 26, 2013,
affirming the Examiner. See Ex parte Becker, Appeal 2010-010059 (PTAB
Apr. 16, 2013), reh ’g denied Appeal 2010-010059 (PTAB June 26, 2013).
The instant appeal comes to us after further prosecution of the application.
STATEMENT OF THE CASE
Appellants’ disclosed invention relates to “a safety device for a
vehicle and, in particular, to a seat-belt warning device.” Spec. 1:5—6.
Claim 9, which is the only independent claim and is illustrative of the
invention, reads as follows:
9. A seat-belt warning system comprising a device for
sensing a seat occupancy by a passenger of a plurality of
seats, said device for sensing seat occupancy comprising
an optical imaging device structured to record a
situation image of the plurality of seats, and
an image evaluation unit structured to evaluate the
recorded situation image of the plurality of seats, said
optical imaging device being configured for sensing said
plurality of seats,
a device for sensing a buckling status of a seat belt
associated with said plurality of seats; and
a device structured to output a warning signal,
wherein the device for sensing a buckling status of a seat
belt comprises the optical imaging device, and
wherein the seat belt has one or more markings
which are detectable by the optical imaging device.
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Appeal 2017-002280
Application 10/564,607
The Examiner relies on the following prior art in rejecting the claims:
Schofield et al. US 5,877,897 Mar. 2, 1999
Okada et al. US 6,239,695 B1 May 29, 2001
Ertl et al. US 6,775,606 B1 Aug. 10,2004
Mahbub US 6,961,443 B2 Nov. 1,2005
Claims 9—12, 15, and 16 stand rejected under 35 U.S.C. § 35 U.S.C.
103(a) as being unpatentable over Mahbub, Schofield et al. (hereinafter
“Schofield”), Okada et al. (hereinafter “Okada”), and Ertl et al. (hereinafter
“Ertl”).2 See Final Act. 2-7.
Rather than repeat the arguments here, we refer to the Briefs (“App.
Br.” filed Mar. 21, 2016; “Reply Br.” filed Nov. 28, 2016) and the
Specification (“Spec.” filed Jan. 12, 2006) for the positions of Appellants
and the Office Actions (“Final Act.” mailed Nov. 4, 2015; “Adv. Act.”
mailed Jan. 22, 2016) and Examiner’s Answer (“Ans.” mailed Sept. 27,
2016) for the reasoning, findings, and conclusions of the Examiner.
ISSUE
The dispositive issue presented by Appellants arguments is whether
the Examiner errs in concluding it would be obvious to combine Schofield
with Mahbub, Okada, and Ertl so that “an optical imaging device [is]
structured to record a situation image of [a] plurality of seats,” as recited in
claim 9.3
2 All rejections are under the provisions of 35 U.S.C. in effect prior to the
effective date of the Leahy-Smith America Invents Act of 2011 (“pre-AIA
first to invent”). Final Act 2.
3 Appellants’ arguments raise additional issues. Because the identified issue
is dispositive of the appeal, we do not reach the additional issues.
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Appeal 2017-002280
Application 10/564,607
ANALYSIS
The Examiner finds Mahbub teaches a seat-belt warning system
“wherein [a] device for sensing a buckling status of a seat belt comprises
[an] optical imaging device” (claim 9). Final Act. 3^4 (citing Mahbub,
col. 2,11. 35—49, col. 8,11. 49-51, col. 14,11. 41^17, col. 15,11. 5-14). The
Examiner finds Schofield teaches “an optical imaging device [is] structured
to record a situation image of [a] plurality of seats” (claim 9). Final Act. 4
(citing Schofield, col. 16,11. 40—56, Figs. 1A—B, 2A). The Examiner
concludes as follows:
It would have been obvious to one of ordinary skill in the art at
the time the claimed invention was made to modify the optical
imaging device of Mahbub with the image of Schofield to
provide for an image of a plurality of seats because Mahbub
teaches a system that can view the passenger seat or the driver
seat such that it would have been obvious to try imaging both
seats together and because providing an image of a plurality of
seats yields the predictable result of detecting multiple seats in
one image to efficiently determine the conditions of multiple
seats to increase the safety of all persons within a vehicle.
Final Act. 4—5. The Examiner explains as follows:
As to the combination of Mahbub in view of Schofield,
both references are directed to vehicle interior imaging systems.
Although the intended use of the imaging system of Mahbub may
differ from the intended use of the imaging system of Schofield,
modifying the image of Mahbub to include a plurality of seats as
in the image of Schofield would have been obvious to one of
ordinary skill in the art at the time the claimed invention was
made because imaging multiple seats in a single image yields the
predictable result of increased processing efficiency since
multiple images are not required.
Ans. 3.
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Application 10/564,607
Appellants contend that the system described in the cited passages of
Schofield generates a mirror control signal rather than recording a situation
image. See App. Br. 5; Reply Br. 2—5. In particular, Appellants contend
“the rearview mirror system disclosed by Schofield does not record an
image of the scene in the field of view” (Reply Br. 4), i.e., does not record a
“situation image” (claim 9). Appellants explain as follows:
With respect to Figure 2A and Col. 16, Lines 40-56 of
Schofield that are relied upon by the Examiner for teaching “an
image of the driver, passenger, and rear seats,” Appellant submits
that there is no portion of Schofield that teaches, or represents in
any way, that the view of the vehicle interior shown in Figure 2 A
is a recorded situation image. Figure 2A illustrates no more than
a representation of the field of view that is possible “as focused
by the lens 30 and as viewed by a 160x120 photosensor array
32;” however, there is no disclosure whatsoever in Schofield that
the field of view shown in Figure 2A represents “a recorded
situation image.” ([See] Schofield, Col. 16, Lines 42^43.)
Reply Br. 4—5.
We agree with Appellants for the reasons stated by Appellants.
Although the cited passages of Schofield may use the term “image”
(Schofield, col. 16,1. 50), it is in the context of “provid[ing] sufficient image
information for providing effective automatic rearview mirror control”
rather than providing an image capable of detecting seat occupancy, i.e., a
“situation image” (claim 9).
Appellants have demonstrated error in the rejection of claim 9.
Accordingly, we do not sustain the rejection of claim 9, or claims 10-12, 15,
and 16, which depend, directly or indirectly, from claim 9.
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Appeal 2017-002280
Application 10/564,607
NEW GROUND OF REJECTION WITHIN 37 C.F.R. § 41.50(b)
Claim 9 is rejected on a new ground of rejection under 35 U.S.C.
§ 103(a) as unpatentable over Okada and Ertl.4
As an initial matter, we note that claim 9 uses the transition term
“comprising” and is presumptively open-ended. Gillette Co. v. Energizer
Holdings, Inc., 405 F.3d 1367, 1371 (Fed. Cir. 2005). “[Cjourts ha[ve]
repeatedly emphasized that an indefinite article ‘a’ or ‘an’ in patent parlance
carries the meaning of ‘one or more’ in open-ended claims containing the
transitional phrase ‘comprising.’” KCJCorp. v. Kinetic Concepts, Inc., 223
F.3d 1351, 1356 (Fed. Cir. 2000); see also In re Varma, 816 F.3d 1352,
1362—63 (Fed. Cir. 2016). Accordingly, we construe “a device” to
encompass one or more devices.
Okada and Ertl both address the same field of endeavor as Appellants’
invention—detecting whether a seatbelt is in use. See Spec. 1:5—12; Okada,
Abstract; Ertl, col. 3,11. 42-44. Accordingly, Okada and Ertl are analogous
art with regard to Appellants’ invention. See In re Klein, 647 F.3d 1343,
1348 (Fed. Cir. 2011).
Okada teaches “[a] seat-belt warning system comprising a device for
sensing a seat occupancy by a passenger of a . . . seat[].” Okada, col. 2,
11. 47-49 (“A sitting detection switch 3 is provided for detecting a sitting
state of the passenger seat 1, that is for detecting that a person is sitting in
the seat.”). Okada teaches the application of the “device for sensing a seat
occupancy by a passenger” to “a plurality of seats.” Id., col. 4,11. 33—37
4 The new ground of rejection is under the provisions of 35 U.S.C. in effect
prior to the effective date of the Feahy-Smith America Invents Act of 2011
(“pre-AIA first to invent”).
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Application 10/564,607
(“[Although the seat belt warning device of the present invention is adopted
for the passenger seat 1, the device may be adopted for the driver’s seat 2 or
a rear seat. In this case the indicator lamp 7 may be made common.”).
Okada teaches “a device for sensing a buckling status of a seat belt
associated with said plurality of seats.” Id., col. 2,11. 53—57 (“[A] well
known fastening detection switch 5 is provided for detecting the operation of
the seat belt mechanism of the passenger seat 1. The fastening detection
switch 5 detects whether or not the seat belt is fastened.”), col. 4,11. 33—37.
Okada teaches “a device structured to output a warning signal.” Okada,
col. 2,11. 59-63 (“[A]n indicator lamp 7 of a known type provides an
indication of the unfastening of the seat belt mechanism of the passenger
seat 1. This indicator lamp 7 is disposed in a display portion 6 of an
instrument panel facing the driver’s seat 1 of the vehicle.”), Fig. 3.
Okada teaches a system that provides the functionality described in
claim 9, but uses “a pressure sensitive switch” {id., col 2,11. 64—65) to sense
seat occupancy by a passenger and a switch of a “well known” unspecified
type {id., col. 2,11. 53—54) to sense seat belt buckling status. Okada does not
teach the use of an optical imaging device and markers for sensing seat
occupancy and seat belt buckling status.
Ertl teaches “a device for sensing a seat occupancy by a passenger of
a . . . seat[], said device for sensing seat occupancy comprising an optical
imaging device structured to record a situation image of the . . . seat[].” Ertl,
col. 1,11. 52—56 (“A suitable camera . . . supplies the contour of an object on
a vehicle seat by means of a range image. The volume distribution of the
object on the seat can be extracted from the contour of the object by
subtracting the contour of the seat surface.”), col. 2,11. 37—39 (“This can
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Application 10/564,607
additionally be analyzed and e.g. provide indications of seat occupancy, a
child seat on the seat or a seat cover.”). Ertl teaches applying the “optical
imaging device” to a “plurality of seats.” Id., col. 4,11. 31—35 (“[TJhere is
provided a plurality of cameras 1 for capturing a plurality of image areas in
the vehicle interior, e.g. for detecting the area of the driver’s seat and of the
passenger seat 2.”). Ertl teaches “an image evaluation unit structured to
evaluate the recorded situation image of the plurality of seats, said optical
imaging device being configured for sensing said plurality of seats.” Id.,
col. 4,11. 31—35, 37—38 (“An evaluation unit 110 is connected downstream
of the camera 1 and analyses the images captured by the camera 1.”). Ertl
teaches a “device for sensing a buckling status of a seat belt [that] comprises
the optical imaging device.” Id., col. 1,11. 42-46 (“On elements of the
vehicle, e.g. on a vehicle seat, there is provided an optical marking. In a
vehicle there is provided a camera which detects the marking(s). An
evaluation unit is connected downstream of the camera and determines the
positions of the markings.”), col. 3,11. 42-44 (“[MJarkings can be disposed
on the seatbelt in order to determine the rolled-out belt length and to detect
whether the belt has been put on.”). Ertl teaches that “the seat belt has one
or more markings which are detectable by the optical imaging device.” Id.
It would have been obvious to a person of ordinary skill in the art at
the time of the invention to substitute Ertl’s optical imaging system with
markers for Okada’s switches because it is merely the substitution of one
known element for another, with predictable results. “[W]hen a patent
‘simply arranges old elements with each performing the same function it had
been known to perform’ and yields no more than one would expect from
such an arrangement, the combination is obvious.” KSR Int’l Co. v. Teleflex
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Appeal 2017-002280
Application 10/564,607
Inc., 550 U.S. 398, 417 (2007) (quoting Sakraida v. AgPro, Inc., 425 U.S.
273, 282 (1976)). Furthermore, utilizing Ertl’s optical imaging system and
markers in place of Okada’s switches would have facilitated providing
additional functionality not available with Okada’s switches. Compare Ertl,
col. 1,1. 40-col. 3,1. 63, with Okada, Abstract.
Dependent Claims
We have entered new grounds of rejection for independent claim 9.
We leave to the Examiner to consider the patentability of dependent claims
10—12, 15, and 16 in light of our findings and conclusions supra regarding
independent claim 9. The fact that we did not enter new grounds of rejection
for the dependent claims should not be construed to mean that we consider
the dependent claims to be directed to patentable subject matter or to be
patentable over the prior art of record.
DECISION
The decision of the Examiner to reject claims 9—12, 15, and 16 is
reversed.
We enter a new ground of rejection for claim 9 under 35 U.S.C.
§ 103(a).
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). Section 41.50(b) provides that “[a] new ground of rejection . . .
shall not be considered final for judicial review.”
Section 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
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Appeal 2017-002280
Application 10/564,607
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record.
37 C.F.R. §41.50(b).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§§ 41.50(f), 41.52(b).
REVERSED
37 C.F.R, $ 41.50(b)
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