Ex Parte Drummy et al

Patent Trial and Appeal Board

Apr 9, 2014

11757564 (P.T.A.B. Apr. 9, 2014)

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.
11/757,564 06/04/2007 Michael Drummy P/4779-15 2911
77924 7590 04/09/2014
Ostrolenk Faber Gerb & Soffen, LLP (Olympus NDT)
1180 Avenue of the Americas
New York, NY 10036
EXAMINER
SUAREZ, FELIX E
ART UNIT PAPER NUMBER
2865
MAIL DATE DELIVERY MODE
04/09/2014 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 PATENT TRIAL AND APPEAL BOARD
________________

Ex parte MICHAEL DRUMMY,1
Fabrice Cancre, John Skidmore, and Jason Toomey
________________

Appeal 2012-003576
Application 11/757,564
Technology Center 2800
________________

Before ADRIENE LEPIANE HANLON, MARK NAGUMO, and
KAREN M. HASTINGS, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL
Michael Drummy, Fabrice Cancre, John Skidmore, and Jason Toomey
(“Drummy”) timely appeal under 35 U.S.C. § 134(a) from the final
rejection2 of claims 1, 2, and 4-20, which are all of the pending claims.
We have jurisdiction. 35 U.S.C. § 6. We affirm.

1 The real party in interest is listed as Olympus NDT. (Appeal Brief,
filed 24 May 2011 (“Br.”), 1.)
2 Office action mailed 19 January 2011 (“Final Rejection,” cited as “FR”).
Appeal 2012-003576
Application 11/757,564

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OPINION
A. Introduction3
The appealed claims relate to a datalogging nondestructive-testing
(“NDT”) or -inspection (“NDI”) instrument. The instrument launches test
signals (e.g., ultrasound) at the test object and receives echo signals that are
analyzed for “structural abnormalities.” 4 The location of the sensor and the
time the measurement is made are determined via a Global Positioning
System (“GPS”) receiver physically associated with the sensor. According
to the 564 Specification, there are practical problems in the inspection of
large, often very remote structures such as oil pipelines or railroad tracks. In
particular, it is said to be cumbersome and difficult to record where and
when an abnormality has been detected, along with all the relevant
measurements, in ways that can provide verification that the inspection was
done, as well as verification of the collected data itself. (Spec. 2, ll. 9-21.)
According to the Specification, the claimed invention provides a method of
organizing and storing the measurement data (i.e., “datalogging” (Spec. 1,
l. 11)), including time and location information acquired by a GPS device
embedded with the sensor, dynamically, i.e., in real time. (Id. at 3,
ll. 11-18.)

3 Application 11/757,564, GPS enabled datalogging system for a non-
destructive inspection instrument, filed 4 June 2007. We refer to the
“564 Specification,” which we cite as “Spec.”
4 The 564 Specification does not define the term “structural abnormality.”
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Claim 1 is representative and reads:
A system operable with a portable non-destructive
test/non-destructive inspection instrument, wherein the
inspection instrument is operable to store test data taken along
and respectively associated with at least one measurement point
along at least one test object, the test data including information
that enables identification of structural abnormalities of the test
object, the system comprising:
a processing unit;
a portable sensor apparatus including
a contact surface placeable against the test object and
configured to launch into the test object test signals and
receive echo signals representative of said structural
abnormalities when present, and further configured to
obtain the test data and being movable to provide the test
data for the measurement points and
coupled to the processing unit, wherein the processing unit
is physically coupled to the portable sensor apparatus;
a digital storage medium accessible to the processing unit;
a GPS receiver communicatively coupled with the processing
unit and configured to provide spatial location information,
the GPS receiver being located in close proximity to and
being movable with the sensor apparatus and being
operable to dynamically provide the spatial location
information to the processing unit for the measurement
points of the portable sensor apparatus; and
an analyzer which aggregates and associates elements of the
test data with corresponding measurement points identified by
the spatial location information provided by the GPS receiver,
and which is configured to dynamically store the spatial
location information corresponding to said structural
abnormalities in said test object, and to report said
aggregated test data and spatial location information.
(Claims App., Br. 9; some indentation, paragraphing, and emphasis added to
highlight the disputed limitations.)
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The Examiner maintains the following grounds of rejection:5
A. Claims 1, 2, and 4-20 stand rejected under
35 U.S.C. §112(1), for lack of adequate written description.
B. Claims 1, 2, 4-16, and 18-20 stand rejected under
35 U.S.C. § 103(a) in view of the combined teachings of
Merewether6 and Walker.7
B1. Claim 17 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Merewether, Walker, and
Kawakita.8
B. Discussion
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
Written Description
Whether the written description requirement has been met is a
question of fact. Ariad Pharmaceuticals, Inc. v. Eli Lilly and Co., 598 F.3d
1336, 1351 (Fed. Cir. 2010)(en banc). As the court has explained, “[t]he
purpose of the written description requirement is to prevent an applicant
from later asserting that he invented that which he did not; the applicant for
a patent is therefore required to recount his invention in such detail that his

5 Examiner’s Answer mailed 20 September 2011 (“Ans.”).
6 Ray Merewether and Mark S. Olsson, Multi-sensor mapping
omnidirectional sonde and line locators, U.S. Patent 7,336,078 B1
(26 February 2008) based on an application filed 1 October 2004.
7 Richard C. Walker, PRN/TRAC system FAA upgrades for accountable
remote and robotics control, U.S. Patent 6,965,816 B2 (2005.)
8 Kevin Kawakita, U.S. Patent Application Publication 2004/0109059 A1
(2004).
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future claims can be determined to be encompassed within his original
creation.” Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1330
(Fed. Cir. 2003) (internal quote and citation omitted).
Here, the Examiner finds that the 564 Specification, as originally
filed, does not provide an adequate written description of the limitation that
the portable sensor apparatus includes “a contact surface placeable against
the test object and configured to launch into the test object test signals and
receive echo signals representative of said structural abnormalities when
present.” (FR 2.)
Drummy argues that, “[a]s illustrated in Fig. 1, sensor 105[9] includes
a contact surface at its bottom right that may be placed against the test object
to monitor for return signals from the test object received in response to the
impetus signals.” (Br. 4, last para.) Moreover, Drummy continues, “Fig. 2
of the Drawings illustrates instrument sensor 204 tracking the exact point on
the structure 202 where the inspection reading is taken, as explained, for
example at page 6, line 23 — page 7, line 2.” (Id.)
Regarding the datalogging inspection instrument illustrated in
Figure 1, reproduced on the following page, the Specification explains that,
“[i]nspection circuitry 104, controlled by the CPU 101, generates impetus
signals for and monitors return signals from a sensor 105.” (Spec. 6,
ll. 9-11.) It is not apparent from the text or from Figure 1 that sensor 105

9 Throughout this Opinion, for clarity, labels to elements in figures are
presented in bold font, regardless of their presentation in the original
document.
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has a contact surface that both emits impetus signals and monitors return
signals from the structure being inspected.
Figures 1 (left) and Figure 2 (right) are reproduced below:

{Fig. 1 shows sensor 105 emitting impetus and monitoring return signals
Fig. 2 shows GPS unit 203 attached to sensor 204 inspecting structure 202}
The Specification states that “FIG. 2 illustrates a typical portable
NDT/NDI instrument 201 using the methods of the present disclosure to
inspect a structure 202. In this case, the GPS receiver module 203 is situated
directly atop the instrument sensor 204, tracking the exact point on the
structure 202 each inspection reading is taken.” (Id. at 6, l. 23, to 7, l. 2.)
Here also, it is not apparent from the text or from the figure that there is a
contact surface that emits impetus signals and that monitors the return
signals.
Drummy has not directed our attention to disclosure in the originally
filed specification that supports the species of NDT/NDI system now
claimed, namely those embodiments in which a contact surface (perhaps
more precisely, a surface that can make contact with the structure to be
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tested or inspected) that both emits a test signal and that detects an echo of
that signal from the tested structure. There is no doubt—and we do not
understand the Examiner to question—that the broader concept of “echo
sensing” is disclosed. Our reviewing court has explained, however, that
[t]he question is not whether a claimed invention is
[sic: would have been] an obvious variant of that which is
disclosed in the specification. Rather, a prior application
itself must describe an invention, and do so in sufficient
detail that one skilled in the art can clearly conclude that the
inventor invented the claimed invention as of the filing date
sought.
Lockwood v. American Airlines, 107 F.3d 1565, 1572 (Fed. Cir. 1997).
The passages to which Drummy directs our attention do not provide
sufficient detail for the class of emitter-sensors on a contact surface now
recited in the claims. We are not persuaded of harmful error in the
Examiner’s finding that the written description requirement has not been
met.
We affirm the rejection for lack of written description.
Obviousness
With the exception of claim 11, Drummy does not present any
arguments for separate patentability of the appealed claims, including
separately rejected claim 17. All claims therefore stand or fall with claim 1.
Drummy seizes on the Examiner’s finding that “Merewether does not
te[a]ch that the received signals are echo signals representative of said
structural abnormalities when present” (FR 4, ll. 4-5; Ans. 5, ll. 7-8), and
urges that “Merewether and Walker fail completely to disclose or suggest
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NDT/NDI inspection involving test data for identifying structural
abnormalities of a test object, as required by claim 1.” (Br. 6, ll. 22-23.)
“With regard to the recitations of claim 1,” Drummy continues, “Walker,
like Merewether, is silent as to any kind of NDT/NDI inspection instrument
that is operable to store test data from a test object, the test data including
information that enables identification of structural abnormalities of the test
object as required by claim 1.” (Id. at ll. 24-27.)
The Examiner makes extensive and detailed findings (FR 5-13)
regarding the teachings of Merewether. Our reviews of the Examiner’s
findings, and the cited passages in Merewether fail to support Drummy’s
argument.
As Drummy notes (Br. 5, last para.), Merewether discloses a portable
locator “for finding and mapping buried objects such as utilities”
(Merewether, Abstract). Drummy acknowledges Merewether’s disclosure of
the use of a GPS receiver “to provide geographic information to the system
with regard to the structures detected.” (Br. 6, ll. 2-4, citing
Merewether col. 12, ll. 24-48.) But, Drummy neglects to mention that
Merewether also discloses the use of Doppler radar (Merewether, abstract,
ll. 2-3 (2d and final sentence)). Radar (“Radio Detection And Ranging”), as
is well-known to the general public, involves the detection of an
electromagnetic wave echoed from a “test structure.” In particular, the
Examiner finds that Merewether teaches the collection and analysis of
“aggregated test data collection and spatial location information”
corresponding to structural abnormalities such as leaks in piping systems.
(FR 7, l. 1, to 8, l. 1, citing Merewether, col. 19, ll. 36-47, 47-49, ll. 60-66,
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and col. 20, ll. 9-20 and ll. 47-62.) Drummy does not discuss these passages
in Merewether, which disclose the collection and updating of mapping data
in “any system component that is part of the locating system” (Merewether
col. 19, ll. 36-37), as well as the use of listening “to detect leaks in piping
systems” as well as leaks in building foundation slabs (id. at ll. 63-64).
In the Examiner’s Answer, the Examiner explains further that
Merewether teaches:
[i]n another related embodiment, the mapping locator is
provided with a sound source to inject acoustic energy into
the ground at a known location. Tomographic imaging
techniques can thereby be utilized to develop acoustic images
of subsurface structures. The locations of the sound sources
are known relative to the receivers. A ground penetrating
radar (GPR) device can be incorporated into our navigated
mapping locator, SAR,[10] or tomography techniques can be
employed.
(Ans. 22-23, quoting Merewether col. 19, l. 67, to col. 20, l. 8; emphasis
added.)
Merewether’s discussion of leak detection, followed immediately by
the disclosure that sonic or radar sources may be incorporated into the
mapping locator in order to enable the acquisition of acoustic images via
tomographic techniques would have suggested the detection, imaging, and
mapping of such leaks. Such leaks appear to correspond to the “structural
abnormalities” recited in the claims.

10 “SAR” is one of the few acronyms not defined in Merewether. The
context suggests “Synthetic Aperture Radar,” a “reflective” technique, is
intended.
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In the context of the Examiner’s findings regarding the teachings of
Merewether, we view the Examiner’s citations of Walker as illustrations that
persons skilled in the relevant arts would have understood that techniques
disclosed by Merewether involve the “launching” of test signals and the
reception of echo signals from objects of interest. Moreover, Walker
indicates, e.g., in the passages cited by the Examiner (FR 4-5), that skilled
persons would have recognized that a wealth of information can be deduced
from the characteristics of the detected echoes, and that such persons would
have been aware of extremely sophisticated data organizing, reporting, and
storage techniques.
We conclude that Drummy’s characterizations of the alleged
deficiencies of Merewether are not supported by the weight of the evidence,
and that harmful error has not been demonstrated in the Examiner’s rejection
of claim 1.
Drummy argues that claim 11, which requires that “the system is
operable to recall the test data and corresponding spatial location
information upon nearing the test object location” (Claims App., Br. 10), is
not disclosed or suggested by Merewether and Walker. (Br. 7.) The
Examiner finds, however, that Merewether teaches this functionality at
column 6, lines 43-51. (Br., para. bridging 10-11.) In this passage,
Merewether teaches that “[s]imilar to how an optical mouse operates, an
image can be used to track the movement of the locator over the ground,”
and that images of the ground can be stored for later retrieval. (Merewether
col. 6, ll. 43-46.) We are not persuaded by Drummy’s unelaborated
categorical denial that the claimed subject matter would have been obvious.
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The ability to track the locator over ground implies some knowledge of the
ground, i.e., a previous map. The disclosure that currently collected images
(and the data from which such images is created) may be stored for later
retrieval would have suggested that such information would be associated
with the map and that real-time comparison with currently collected data
would be useful. Accordingly, we find no harmful error in the Examiner’s
rejection of claim 11.
Finally, we find that Drummy does not present arguments for
patentability based on secondary considerations such as unexpected results
or commercial success. We therefore affirm the appealed rejections.
C. Order
We affirm the rejection of claims 1, 2, and 4-20.
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

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