Ex Parte Chiu

Board of Patent Appeals and Interferences

Aug 5, 2008

10850210 (B.P.A.I. Aug. 5, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LIHU CHIU
____________

Appeal 2008-0478
Application 10/850,210
Technology Center 2800
____________

Decided: August 5, 2008
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Before MAHSHID D. SAADAT, JOHN A. JEFFERY, and CARLA M.
KRIVAK, Administrative Patent Judges.

KRIVAK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 22-27, 29, 30, 55, and 56.1 We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.

1 Claims 1-21, 28, and 31-54 were cancelled during prosecution.
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Application 10/850,210

STATEMENT OF CASE
Appellant’s claimed invention is directed to a printer that provides
information from a print head to a read after printer (RAP) controller after a
print operation. The information is correlated with an image that has been
sensed by an image sensing module (Spec. 9:2-8). Appellant’s invention
also provides analysis to determine criticality of blemishes or character
readability and the quality of a particular label using a weighing system
(Spec. 9: 21-27). An output is then provided so that the label is qualified as
being acceptable (Spec. 10: 1-3).
Claim 22, reproduced below, is representative of the subject matter on
appeal.
22. A printer for printing labels comprising:
a read after print (RAP) controller for performing label analysis and
weighing blemishes against a pre-established standard, wherein the
pre-established standard comprises an American National Standards
Institute (ANSI) qualification or other bar code standard; and
a processor in said RAP to weigh a blemish in relationship to
criticality as to a pre-established criteria of quality, wherein printing is
halted if the weighing indicates a bad label.

REFERENCES
Ackley US 6,042,279 Mar. 28, 2000
Meyer US 6,170,747 B1 Jan. 9, 2001
Stephens US 2002/0181021 A1 Dec. 5, 2002
Nedblake US 6,592,693 B1 Jul. 15, 2003

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The Examiner rejected the claims as follows:
Claims 22-24, 27, 28, 30, 55, and 56 stand rejected under
35 U.S.C. § 103(a) based upon the teachings of Ackley and Meyer;
Claim 25 stands rejected under 35 U.S.C. § 103(a) based upon
the teachings of Ackley, Meyer, and Nedblake; and
Claim 26 stands rejected under 35 U.S.C. § 103(a) based upon
the teachings of Ackley, Meyer, and Stephens.
Appellant contends that none of the cited references teaches or
suggests weighing blemishes in relation to criticality against pre-established
criteria of quality (Br. 6 and 9-10).

ISSUES
Did the Examiner err in rejecting claims 22-24, 27, 28, 30, 55, and 56
under 35 U.S.C. § 103(a) as obvious over Ackley and Meyer?
Did the Examiner err in rejecting claim 25 under 35 U.S.C. § 103(a)
as obvious over Ackley, Meyer, and Nedblake?
Did the Examiner err in rejecting claim 26 under 35 U.S.C. § 103(a)
as obvious over Ackley, Meyer and Stephens?

FINDINGS OF FACT
1. Appellant’s invention relates to a printer for determining
whether a printed label meets a pre-established standard for print quality by
comparing and weighing a printed blemish against a pre-established criteria
of quality (Spec. 9; 21-27; Br. 3; cl. 1). This allows different printed images
within a printer system and printed images from different printer systems to
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have consistent quality as each image is compared with the same standard
(Br. 4).
2. Ackley teaches a printer and method for real-time print quality
and correction. It includes a feedback mechanism including an image head
for imaging, digitizing, or sampling at least a portion of a symbol,
comparing the imaged portion to a desired image, and updating a print logic
in response to the comparison (col. 2, ll. 42-46). It updates the print logic
before all the elements of a bar code or other symbol are printed (cl. 1).
3. Meyer teaches inspecting print quality on a series of barcodes
on at least one side of a moving web (Abstract). If an erroneous print
quality value at a threshold amount is indicated, the printing apparatus stops
the web until the problem is corrected (col. 1, ll. 65-67).
4. Nedblake teaches a device in which a preprinted label-bearing
web is separated from its liner (col. 1, ll. 13-15). Sensors are employed to
detect the existence of any gaps in misprinted label images on the web and
control a laser cutter to prevent cutting the web at such locations (col. 1, ll.
18-22).
5. Stephens teaches techniques for printing an image on a print
medium (Abstract). A printer controller digitally shifts and rotates an image,
if necessary, to optimally align it with another image (¶[0023]).

PRINCIPLES OF LAW
“[T]here must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” KSR Int’l v.
Teleflex, Inc., 127 S. Ct. 1727, 1740-41 (2007). Such reasoning can be
based on interrelated teachings of multiple patents, the effects of demands
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known to the design community or present in the marketplace, and the
background knowledge possessed by a person having ordinary skill in the
art. KSR, 127 S. Ct. at 1740-41.
“[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability.” In
re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). If the Examiner’s burden
is met, the burden then shifts to the Appellant to overcome the prima facie
case with argument and/or evidence. Obviousness is then determined on the
basis of the evidence as a whole and the relative persuasiveness of the
arguments. Id. at 1445.
Claims in a patent application are to be given their broadest
reasonable interpretation consistent with the specification during prosecution
of a patent application. This interpretation, in addition to being reasonable,
must also be consistent with the specification. In re Zletz, 893 F.2d 319, 321
(Fed. Cir. 1989).
The Examiner need not give patentable weight to descriptive material
absent a new and unobvious functional relationship between the descriptive
material and the method. See In re Lowry, 32 F.3d 1579, 1583-84 (Fed. Cir.
1994); In re Ngai, 367 F.3d 1336, 1338 (Fed. Cir. 2004) and Ex parte Curry,
84 USPQ2d 1272, 1274 (BPAI 2005), aff'd (Fed. Cir. Appeal No. 2006-
1003, aff’d Rule 36 June 12, 2006).

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ANALYSIS
Claims 22-24, 27, 28, 30, 55, and 56
With respect to independent claims 22, 55, and 56, we direct our
analysis to claim 22 as these claims are substantially similar and Appellant
has provided the same arguments for each of these claims (Br. 10). The
Examiner asserts that Ackley teaches all the features of Appellant’s
invention except for printing being halted if a weighing indicates a bad label
(Ans. 4). The Examiner then asserts Meyer discloses this function and it
would be obvious to one having ordinary skill in the art at the time of the
invention to modify the teachings of Ackley by stopping printing if a
weighing indicates a bad label (Ans. 4).
We first consider Appellant’s contention that Ackley does not read on
the claim language related to weighing blemishes against a “pre-established
standard” as it is “clearly distinguished from ‘desired image as coded of
Ackley’” (Br. 7; Ans. 8). The Examiner countered that this is the same as
what is taught by Ackley in column 3, lines 1-18 (Ans. 9) in which a
comparison is used to identify any deviations between digitized images of
the most recently printed element and the desired image as encoded. We
further note that Ackley also teaches “[w]hile the digitized image 43 is
compared to the print command 65 in the first exemplary embodiment, the
digitized image 43 could equally have been compared against any other
defined standard.” (Col. 8, ll. 21-25).
The term “pre-established standard,” as the Examiner correctly
asserts, is broadly interpreted to mean any standard. What that value is or
can be does not distinguish the claims as this language is merely descriptive
with no specific function recited. Additionally, the alternative language in
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the claims states “wherein the pre-established standard comprises an
American National Standards Institute (ANSI) qualification or other bar
code standard (emphasis added)” leaves us no choice but to interpret this
language as including any bar code standard (emphasis added). Further, the
language regarding standards is non-functional and no patentable weight is
given this descriptive material in distinguishing over the prior art. Even if
this language were considered functional, due to the alternative language
used in the claims, its broadest interpretation would cover the standard set in
the analysis and weighing (comparison) of Ackley.
Appellant further contends that Ackley does not teach halting a
printing operation only when the system determines that a blemish is critical
to the readability of the label (Br. 9). Appellant argues Ackley teaches
taking action on any blemish and as a result, a detected blemish “may be
sufficient to halt printing, while the same detected blemish or defect in
Applicant’s invention may be acceptable if it is not considered critical” (Br.
9). Appellant maintains that Meyer does not disclose any type of weighting
or comparison with a pre-established standard, therefore it does not remedy
the deficiencies of Ackley (Br. 10). We disagree.
The analysis, weighing, and criticality in Appellant’s invention are
based on threshold values. Any value that is “critical” could have and does
have a threshold value—a value above (or below) which something occurs.
Meyer teaches that if there is an erroneous print quality value or contrast
value at a threshold amount, the apparatus stops a web until the problem is
corrected (Fact 3). The Examiner cited Meyer for halting the operation of a
printing apparatus when a threshold (critical) amount is indicated and thus
solves the deficiency of Ackley (Ans. 10). Thus, it would have been
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obvious to one of ordinary skill in the art at the time of the invention to
combine Ackley and Meyer to obtain Appellant’s invention.
We therefore find that Appellant has not persuasively rebutted the
Examiner’s prima facie case of obviousness. Since we find that all the
limitations of claims 22, 55, and 56 are taught or suggested by the collective
teachings of Ackley and Meyer, we are not persuaded of error in the
Examiner’s rejection of these claims. With respect to claims 23, 24, 27, 28,
and 30, these claims depend from claim 22. Because Appellant did not
separately argue these claims, Appellant has likewise not persuaded us of
error in the Examiner’s rejection of these claims over the collective
teachings of Ackley and Meyer for the reasons set forth above.

Claim 25
The Examiner cited Ackley, Meyer, and Nedblake in rejecting claim
25. The Examiner asserted that Ackley and Meyer teach all the elements of
the claimed invention except for a processor determining gaps printed on a
label but Nedblake teaches this feature. According to the Examiner, it
would have been obvious to modify Ackley to include such a processor
(Ans. 7).
Appellant merely contends that Nedblake does not remedy the
deficiencies of Ackley or Meyer and provided no arguments to rebut the
Examiner’s findings. Thus, for the reasons set forth above with respect to
claim 22, Appellant has not persuaded us of error in the Examiner’s rejection
of claim 25 over the collective teachings of Ackley, Meyer, and Nedblake.

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Claim 26
The Examiner cited Ackley, Meyer, and Stephens in rejecting claim
26. The Examiner asserted that Ackley and Meyer teach all the elements of
the claimed invention except for a processor determining the alignment of a
printed label but Stephens teaches this feature. Thus, according to the
Examiner, it would have been obvious to modify Ackley to include such a
processor (Ans. 7).
Appellant merely contends that Stephens does not remedy the
deficiencies of Ackley or Meyer and provided no arguments to rebut the
Examiner’s findings. Thus, for the reasons set forth above with respect to
claim 22, Appellant has not persuaded us of error in the Examiner’s rejection
of claim 26 over the collective teachings of Ackley, Meyer, and Stephens.

CONCLUSION
We therefore conclude that the Examiner did not err in rejecting
claims 22-27, 29, 30, 55, and 56 under 35 U.S.C. § 103(a).

DECISION
The decision of the Examiner rejecting claims 22-27, 29, 30, 55, and
56 is affirmed.
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)(iv).

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AFFIRMED

eld

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