Ex Parte Burns et al

Patent Trial and Appeal Board

Jan 4, 2018

13615035 (P.T.A.B. Jan. 4, 2018)

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.
13/615,035 09/13/2012 Gary P. Burns 72070-0022 1003
20915 7590 01/08/2018
MfTCARRY RATR PC
EXAMINER
45 Ottawa Ave. SW ITSKOVICH, MIKHAIL
Suite 700
GRAND RAPIDS, MI 49503 ART UNIT PAPER NUMBER
2483
NOTIFICATION DATE DELIVERY MODE
01/08/2018 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):
patents @ mcgarrybair. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GARY P. BURNS, PETER PHANEUF, and
MICHAEL ISABELL
Appeal 2017-004416
Application 13/615,035
Technology Center 2400
Before MICHAEL J. STRAUSS, BETH Z. SHAW, and
MICHAEL J. ENGLE, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-004416
Application 13/615,035
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 2—20. Claim 1 is canceled. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
THE INVENTION
The claims are directed to a portal with RFID tag reader and object
recognition functionality. Spec., Title.
Claim 14, reproduced below with a disputed limitation emphasized in
italics, is representative of the claimed subject matter:
14. An object recognition system for identifying at least one
object in a defined space, the system comprising:
at least one radio-frequency identification tag (RFID)
reader disposed in a position relative to a defined space to
effectively read an RFID tag in the defined space and output an
RFID signal representing information on the RFID tag;
at least one 3-dimensional object (3-D) recognition
assembly disposed in a position relative to the defined space to
capture an image of an object in the defined space and output an
image signal representing the image of the object; and
a processor coupled to the at least one RFID reader and the
at least one 3-D recognition assembly;
wherein the processor is configured to receive and process
the RFID signal, to receive and process the image signal, and to
determine whether the information on the RFID tag relates to the
object in the image and if so, then to confirm the information on
the RFID tag.
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Appeal 2017-004416
Application 13/615,035
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Tsikos et al. (“Tsikos”) US 2003/0019933 A1 Jan. 30, 2003
Derenne et al. (“Derenne”) US 2012/0075464 Al Mar. 29, 2012
REJECTIONS
The Examiner made the following rejections:
Claims 17 and 19 stand rejected under 35U.S.C. § 112, second
paragraph, as being indefinite. Final Act. 3.
Claims 2—20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Derenne and Tsikos. Final Act. 5—14.
ANALYSIS
35 U.S.C. § 112, second paragraph
The Examiner finds “[i]n Claims 17 and 19 the phrase ‘or a number of
expected items in the defined space’ renders the claims indefinite because
the claims include elements not actually disclosed, thereby rendering the
scope of the claims unascertainable.” Final Act. 3. Appellants contend the
phrase “defined space” would have been understood to correspond to the
field of view of a camera. Ans. 5. The Examiner responds that “[a]
suggestion that the defined space may be a field does not define what
Appellant considers ‘expected items’ or their number.” Ans. 8—9.
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Application 13/615,035
Claims 17 and 19 recite “wherein the pattern recognition determines
whether the object is one [of1] a shipping container, a pallet, personnel, a
lift-truck with or without a load, livestock, or a number of expected items in
the defined space.” The Speciation does not define or make specific
reference to “expected items” other than to disclose “[pjattern recognition
can also be used to estimate the number of expected tagged items in the
field.” Spec. 127 (emphasis added). Thus, it is unclear what is meant by
expected items versus, for example, unexpected items. Furthermore, it is
unclear how “the object” can be “a number.”2 For example, it is not clear if
the word “number” means: (i) a count value such that there is a
determination of how many objects are in the defined space (consistent with
the Specification), or; (ii) an undefined quantity, e.g., a plurality of expected
items. Therefore, because claims 17 and 19 are amenable to two or more
plausible constructions, they are further rendered indefinite. See Ex parte
Miyazaki, 89 USPQ2d 1207, 1211 (BPAI 2008) (precedential); Ex parte
McAward, Appeal No. 2015-006416, 2017 WL 3669566, at *4, *12 (PTAB
Aug. 25, 2017) (precedential).
Accordingly we sustain the rejection of claims 17 and 19 under 35
U.S.C. § 112, second paragraph, as being indefinite.
1 For purposes of this appeal, we presume the word “of’ was unintentionally
omitted. In the event of further prosecution, the Examiner may want to
consider requiring correction of the apparent omission.
2 We note that as presently written, “one [of]” indicates picking one item
from the recited list (e.g., “the object is ... a shipping container” or “the
object is ... a number of expected items in the defined space”).
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Appeal 2017-004416
Application 13/615,035
35 U.S.C. § 103(a)
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred in rejecting claims 2—20 under 35
U.S.C. § 103(a) as being unpatentable over Derenne and Tsikos. We agree
with Appellants’ conclusions as to this rejection of the claims.
The Examiner finds Derenne’s “radio frequency identification (RFID)
tags, which may be attached to [related to] either personnel or objects, or
both” teaches the disputed limitation of determining whether the information
on the RFID tag relates to the object in the image and if so, then to confirm
the information on the RFID tag. Final Act. 7 (quoting Derenne 1150)
(brackets in original). Appellants contend none of the analyses or functions
in Derenne disclose the disputed determining limitation. App. Br. 8. The
Examiner responds, explaining
the rejection cites Derenne as tracking and identifying the
object using image and sensor data in [paragraph 137, and
using RFID sensor data in [paragraph 150. And if that was not
an obvious inference of the claimed feature, Tskicos [sic]
explains that RFID tags can be used to track objects and to
identify objects and their information.
Ans. 11. Appellants reply, arguing
[t]he Examiner nowhere articulates with clarity how this
element is disclosed in Derenne or why it would have been
obvious to one of ordinary skill to program the computer 24 of
Derenne to compare the information on an RFID tag to an
object in the image, and if a relationship is determined to
confirm the information on the RFID tag.
Reply Br. 3—A.
Appellants’ argument is persuasive of reversible Examiner error. The
disputed limitation requires “determin[ing] whether the information on the
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Appeal 2017-004416
Application 13/615,035
RFID tag relates to the object in the image.” It is not clear why the
Examiner finds Derenne’s attachment of an RFID tag to an object teaches
the disputed “processor configured to . . . determine whether the information
on the RFID tag relates to the object in the image.” See Final Act. 7. We
disagree that Derenne’s disclosure of identifying an object using image and
sensor data constitutes an “obvious inference” of the disputed limitation.
See Ans. 11. The Examiner fails to explain how such an inference is arrived
at and why the inference supports the finding that Derenne, alone or in
combination with Tsikos, teaches or suggests the disputed limitation. That
is, although Derenne discloses both RFID and image data, we are unable to
ascertain from either the cited portions of the reference or from the
Examiner’s explanation, where and how a determination is made of whether
the information on the RFID tag relates to the object in the image.
Because we agree with at least one of the arguments advanced by
Appellants, we need not reach the merits of Appellants’ other arguments.
For the above reasons, we do not sustain the rejection of independent claims
9 and 14 together with dependent claims 2—8, 10-13, and 15—20 which stand
with their respective parent claims.
Our decision is limited to the findings and conclusions before us for
review. See 37 C.F.R. § 41.50(a)(1). We express no opinion as to whether
independent claims 9 and 14 would be obvious over Derenne and Tsikos if
supported by additional explanation or references. We leave any such
further consideration to the Examiner. Although the Board is authorized to
reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn
when the Board elects not to do so. See Manual of Patent Examining
Procedure (MPEP) § 1213.02 (9th Ed., Mar. 2014).
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DECISION
We affirm the Examiner’s decision to reject claims 17 and 19 under 35
U.S.C. § 112, second paragraph.
We reverse the Examiner’s decision to reject claims 2—20 under 35
U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED-IN-PART
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