Ex Parte Chandrasekaran et al

Patent Trial and Appeal Board

Aug 16, 2016

12470673 (P.T.A.B. Aug. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/470,673 0512212009
92556 7590
HONEYWELL/HUSCH
Patent Services
115 Tabor Road
P.O.Box 377
MORRIS PLAINS, NJ 07950
08/18/2016
FIRST NAMED INVENTOR
Jayaprakash Chandrasekaran
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
H0023314 4350
EXAMINER
DULANEY, KATHLEEN YUAN
ART UNIT PAPER NUMBER
2666
NOTIFICATION DATE DELIVERY MODE
08/18/2016 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):
patentservices-us@honeywell.com
amy.hammer@huschblackwell.com
pto-chi@huschblackwell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAY APRAKASH CHANDRASEKARAN,
BALAJI BADHEY SIV AKUMAR, and SACHIN J
Appeal2015-002544
Application 12/470,673
Technology Center 2600
Before ST. JOHN COURTENAY III, CATHERINE SHIANG, and
JOYCE CRAIG, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Non-
Final Rejection of claims 1-18. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
Invention
The invention on appeal pertains to video surveillance systems.
"More particularly, the invention pertains to such systems and methods
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Application 12/470,673
which provide automatic reviewing of previously collected video
information." (Spec. i-f 1 ).
Representative Claim
9. An apparatus comprising:
control circuits having an input port to receive a sequence
of video-type images where the control circuits carry out shape
and color detection of at least one selected object in a respective
initial image and store shape and color specifying indicia in a
computer readable storage medium;
instructions, stored on a computer readable storage
medium, executable by the control circuits to scan a plurality of
other images for at least one item, to detect the shape and color
of the selected object in the other images, [L] to evaluate
differences in shape and color between the selected object and
the at least one item in the other images, to identify available,
lost, and occluded states of the selected object in the other
images and to raise an alarm or inform a user based upon at
least one of the identified available, lost and occluded states of
the object. 1
1 Claim 9 recites "a computer readable storage medium" twice. It is
therefore unclear whether the claim refers to the same medium or two
different mediums. "[I]f a claim is amenable to two or more plausible claim
constructions, the USPTO is justified in requiring the applicant to more
precisely define the metes and bounds of the claimed invention by holding
the claim ... indefinite." Ex parte Miyazaki, 89 USPQ2d 1207, 1211 (BPAI
2008) (precedential). In the event of further prosecution, we leave it to the
Examiner consider a rejection of at least claim 9 under 35 U.S.C. § 112,
second paragraph, as being indefinite. Although the Board is authorized to
reject claims under 37 C.F.R. § 41.SO(b), no inference should be drawn
when the Board elects not to do so. S'ee Afanual (~/Pal.en/ Examining
Procedure (MPEP) § 1213. 02.
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Application 12/470,673
(Emphasis and bracketed lettering added regarding the contested limitation,
labeled as L).
Rejections
A. Claims 9 and 11 are rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Grech-
Cini (US 2002/0024446 Al; pub. Feb. 28, 2002) and Oppelt et al.
(US 2006/0202847 Al; pub. Sept. 14, 2006) ("Oppelt").
B. Claims 1-8 are rejected under 35 U.S.C. § 103(a) as being obvious
over the combined teachings and suggestions of Grech-Cini, Zhou
et al. (US 2005/0036690 Al; pub. Feb. 17, 2005) ("Zhou"), and
Oppelt.
C. Claim 10 is rejected under 35 U.S.C. § 103(a) as being obvious
over the combined teachings and suggestions of Grech-Cini,
Oppelt, and Jones et al. (US 2003/0039389 Al; pub. Feb. 27,
2003) ("Jones").
D. Claims 12, 13, and 16 are rejected under 35 U.S.C. § 103(a) as
being obvious over the combined teachings and suggestions of
Grech-Cini, Oppelt, and Finn et al. (US 2010/0073477 Al; pub.
Mar. 25, 2010) ("Finn").
E. Claims 14, 17, and 18 are rejected under 35 U.S.C. § 103(a) as
being obvious over the combined teachings and suggestions of
Grech-Cini, Oppelt, Finn, and Jones.
F. Claim 15 is rejected under 35 U.S.C. § 103(a) as being obvious
over the combined teachings and suggestions of Grech-Cini,
Oppelt, Finn, Jones, and Hildreth et al. (US 7,058,204 B2; iss. June
6, 2006) ("Hildreth").
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Application 12/470,673
Grouping of Claims
Based on Appellants' arguments, we decide the appeal of rejection A
of claims 9 and 11 on the basis of representative claim 9. We address the
remaining claims rejected under rejections B-F, infra. See 37 C.F.R.
§ 41.37(c)(l)(iv).
ANALYSIS
We disagree with Appellants' contentions regarding the Examiner's
rejections of the claims. We adopt as our own: (1) the findings and reasons
set forth by the Examiner in the Non-Final Office Action from which this
appeal is taken, and (2) the reasons set forth by the Examiner in the
Examiner's Answer in response to arguments made in Appellants' Appeal
Brief. (Ans. 13-15). We highlight and address specific findings and
arguments below.
Combinability under 35 U.S.C. § 103(a)
As a threshold matter, we decide the question of whether the
Examiner erred by improperly combining the cited references under 35
U.S.C. § 103(a).
Appellants advance the following contentions in the Appeal Brief: ( 1)
"modifying Grech-Cini from measuring smoke to detect static or otherwise
solid objects would change a principle of operation of Grech-Cini" (App. Br.
8, 9, and 10) 2; (2) "there is no teaching or suggestion whatsoever in Grech-
Cini, and Oppelt et al. or Grech-Cini, Zhou et al. and Oppelt et al. or Grech-
Cini, Oppelt et al. and Finn et al. ... because there is no common object
among images" (id. at 12-13, see also Reply Br. 4); and (3) "Grech-Cini,
2 This argument is made separately on each of these pages.
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Application 12/470,673
and Oppelt et al. or Grech-Cini, Zhou et al. and Oppelt et al. or Grech-Cini,
Oppelt et al. and Finn et al. do not recognize the problem solved by the
claimed invention" (id. at 13).
Regarding Appellants' first contention, each time this is presented, it
is merely asserted without any explanation or evidence to support it.
Attorney arguments and conclusory statements that are unsupported by
factual evidence are entitled to little probative value. In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997).3 Therefore, we do not find Appellants' first
contention persuasive.
Appellants' second contention regarding the common "object" is not
persuasive for the reasons that will be discussed in regards to rejection A,
infra. We do not find Appellants' third contention persuasive because the
reference need not recognize the same problem solved by the Appellants.
See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996).
Therefore, we find Appellants' arguments unavailing regarding the
comb inability of the cited references. Accordingly, we find the Examiner
did not err in combining the cited references under§ 103(a).
3 See also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold
that the Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art").
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Appeal2015-002544
Application 12/470,673
Rejection A of claims 9 and jj under 35 U.S.C. § j03(a)
Issue: Under 35 U.S.C. § 103(a), did the Examiner err in finding the
combination of Grech-Cini and Oppelt would have taught or suggested
contested limitation L:
to evaluate differences in shape and color between the selected
object and the at least one item in the other images, to identify
available, lost, and occluded states of the selected object in the
other images and to raise an alarm or inform a user based upon
at least one of the identified available, lost and occluded states of
the object,
within the meaning of claim 9? 4
The Examiner finds Grech-Cini teaches instructions to identify
available and lost states of the selected object and to raise an alarm based
upon the available state of the object. (Non-Final Act. 4 (citing Grech-Cini
i-fi-18, 13, and 26)). The Examiner further finds Oppelt's smoke detection
system teaches using a change detection system to determine an "occluded
state," within the meaning of claim 1. (l'..Jon-Final Act. 4 (citing Oppelt 11
33)).
4 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997). See e.g., Spec. i18 ("the present disclosure is
to be considered as an exemplification of the principles of the invention, as
well as the best mode of practicing same, and is not intended to limit the
invention to the specific embodiment illustrated."); see also Spec. i122 ("It is
to be understood that no limitation with respect to the specific apparatus
illustrated herein is intended or should be inferred. It is, of course, intended
to cover by the appended claims all such modifications as fall within the
scope of the claims.") (emphasis added).
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Application 12/470,673
Appellants urge:
the combination of [Grech-Cini] and Oppelt et al. does not
disclose identifying an object among images based upon its
shape or raising an alarm or informing a user based upon at least
one of the identified available, lost and occluded states of the
object ... because there is no common object among images.
(App. Br. 8). Appellants aver there is no common object because "smoke
does not have a static shape among images." (Id.).
The Examiner answers that the Appellants "never claim[] that the
object is static." (Ans. 13). The Examiner further maps the recited "object"
to smoke in the Oppelt reference. (Id. at 14).5
In the Reply Brief (2), Appellants aver that a static object is claimed
because a dynamic object, such as smoke "would not have a recognizable
shape and color characteristic from one time instant to the next."
We are not persuaded by Appellants' arguments, which are not
commensurate in scope with the claims. The claims do not require that the
shape, color, or location of the object remain the same; but merely require
that the object have a shape and color.
Further, Appellants do not argue any definition or express disclaimer
in the original Specification that would limit the scope of the contested claim
term "object." 6 (Claim 9). See Spec. i-fi-18-9, 22. Instead, objects are
5 See Ans. 14 ("Oppelt provides the occluded state of the smoke, since
Oppelt provides a state that is detected between images where the smoke
would be occluded by other objects such as paint or dust (page 1, paragraph
11 ). Therefore, smoke is identified among images, and the common object
is the smoke among the images.").
6 It is the Appellants' burden to precisely define the invention, not the
PTO's. Morris, 127 F.3d at 1056. Although a patent applicant is entitled to
be his or her own lexicographer of patent claim terms, in ex parte
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Application 12/470,673
broadly described merely as "items of interest." (Spec. if9). Further, an
"object" is generally understood to refer to "something material that may be
perceived by the senses." 7 We find smoke meets this criteria because it is
material ("smoke is comprised of particles" (App. Br. 8)), and may be
perceived by the senses, especially sight and smell.
Therefore, we are not persuaded the Examiner's broad reading of the
recited "object" as encompassing smoke is overly broad, unreasonable, or
inconsistent with the Specification. 8
For at least these reasons, and on this record, we find a preponderance
of the evidence supports the Examiner's underlying factual findings and
ultimate legal conclusion of obviousness regarding contested limitation L of
claim 9. Because Appellants have not persuaded us the Examiner erred, we
sustain rejection A of representative claim 9. Grouped claim 11, also
rejected under rejection A, falls with claim 9. See Grouping of Claims,
supra.
prosecution it must be within limits. In re Corr, 347 F.2d 578, 580 (CCP A
1965). The applicant must do so by placing such definitions in the
Specification with sufficient clarity to provide a person of ordinary skill in
the art with clear and precise notice of the meaning that is to be construed.
See also In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
7 "Object" definition, Merriam-Webster's Collegiate Dictionary 801 ( 1 Oth
Ed., 1997). See 37 C.F.R. § 41.30, regarding use of dictionaries.
8 Because "applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
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Application 12/470,673
Rejections B-F of claims j--8, j0, and j2-j8 under 35 U.S.C. § j03(a)
Appellants advance the same arguments for independent claims 1 and
16 as were previously raised regarding the Examiner's rejection A of
independent claim 9. (App. Br. 9-10). Therefore, we sustain the
Examiner's rejections Band D of claims 1-8, 12, 13, and 16, for the same
reasons discussed above regarding claim 9.
Additionally Appellants do not advance separate, substantive
arguments and/or supporting evidence demonstrating error regarding the
Examiner's rejections C, E, and F of claims 10, 14, 15, 17, and 18.
Arguments not made are considered waived. See 37 C.F.R.
§ 41.37(c)(l)(iv). Therefore, we sustain the Examiner's rejections C, E, and
F of claims 10, 14, 15, 17, and 18.
Reply Brief
To the extent Appellants advance new arguments in the Reply Brief
not in response to a shift in the Examiner's position in the Answer, we note
arguments raised in a Reply Brief that were not raised in the Appeal Brief or
are not responsive to arguments raised in the Examiner's Answer will not be
considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
Conclusion
For at least these reasons, on this record, we are not persuaded the
Examiner erred. We find a preponderance of the evidence supports the
Examiner's underlying factual findings and ultimate legal conclusion of
obviousness for all claims on appeal.
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Application 12/470,673
DECISION
We affirm the Examiner's rejections of claims 1-18 under 35 U.S.C.
§ 103(a).
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R. § 41.50(±).
AFFIRMED
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