Ex Parte Dunik et al

Patent Trials and Appeals Board

Jun 4, 2019

13242701 - (D) (P.T.A.B. Jun. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/242,701 09/23/2011
89953 7590
HONEYWELL/FOGG
Patent Services
115 Tabor Road
P.O. Box 377
MORRIS PLAINS, NJ 07950
06/06/2019
FIRST NAMED INVENTOR
Jindrich Dunik
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.
H0030643-5603 7977
EXAMINER
PARK,HYUND
ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
06/06/2019 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
docket@fogglaw.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JINDRICH DUNIK and JAN LUKAS
Appeal2018-001612
Application 13/242,701
Technology Center 2800
Before DONNA M. PRAISS, N. WHITNEY WILSON, and
MICHELLE N. ANKENBRAND, Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1 and 9-20 as anticipated and/or obvious over cited
prior art references, as well as for being directed to patent-ineligible subject
matter. We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our Decision refers to the Specification ("Spec.") filed Sept. 23, 2011, the
Examiner's Final Office Action ("Final") dated July 29, 2016, Appellants'
Appeal Brief ("Appeal Br.") filed Apr. 3, 2017 as corrected June 2, 2017,
the Examiner's Answer ("Ans.") dated Sept. 29, 2017, and Appellants'
Reply Brief ("Reply Br.") filed Nov. 29, 2017.
2 Appellants identify Honeywell International Inc. as the real party in
interest. Appeal Br. 1.
Appeal2018-001612
Application 13/242,701
STATEMENT OF THE CASE
The invention relates to determining the movement and position of
other objects or of an electronic sensor. Spec. ,r 5. Appellants describe
analyzing plane similarity using a statistical function known as divergence.
Id. ,r 27. According to Appellants, divergence measures the distance
between two different probability distributions. Id. Planes in two separate
frames of data are represented as probabilistic distributions of points and a
statistical distance between the two planes can be determined with a
divergence calculation. Id. If the divergence calculation is low enough, the
planes can be said to represent the same plane. Id. Using divergence to
compare probability distributions is said to be theoretically justified and
assessable in safety critical systems. Id.
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal ( emphasis added).
1. A system for determining plane similarity, the system
compnsmg:
a sensor configured to acquire a plurality of frames of data;
and
a processing unit coupled to the sensor, the processing unit
configured to process
the plurality of frames of data, wherein the processing unit
is further configured to
store the plurality of frames of data on at least one
memory device;
read a first frame of data from the plurality of
frames stored on the at least one memory device;
read a second frame of data from the plurality of
frames stored on the at least one memory device;
extract a first plane from the first frame of data;
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extract a second plane from the second frame of
data; and
calculate a divergence to measure a similarity
between the first plane and the second plane, wherein the
divergence determines a statistical distance between
probability distribution representations of the first plane
and the second plane, wherein the probability distribution
representations of the first plane and the second plane
represent probability distributions of points comprised in
the first plane and the second plane, the points
characterized by normal vectors and orthogonal distance
that are respectively acquired from the extracted first plane
and the extracted second plane.
Independent claim 9 recites a processing device comprising a sensor
and a processing unit wherein the processing unit is configured to extract a
first plane set and a second plane set from a first and second frame in a
plurality of frames of data acquired by the sensor, and it is also configured to
"identify a transformation hypothesis" and "create a transformed plane by
applying the transformation hypothesis to a first plane in the first plane set"
so that a divergence value is determined by applying a divergence formula to
the transformed plane and a second plane in the second plane set.
Independent claim 16 recites a system comprising a processor coupled
to a sensor and at least one data storage device having stored thereon a first
plane set and a second plane set "wherein the processor forms a first merged
plane set from the first plane set and a second merged plane set from the
second plane set by applying a primary merge algorithm" and "the processor
applies a transformation hypothesis to a first plane in the first merged plane
set." The processor also "calculates a divergence value between the
transformed first plane and a second plane in the second merged plane set"
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to determine a "statistical distance between probability distribution
representations of the first plane and the second plane."
ANALYSIS
We review the appealed rejections for error based upon the issues
Appellants identify, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
("[I]t has long been the Board's practice to require an applicant to identify
the alleged error in the examiner's rejections.")). After considering the
argued claims in light of the case law presented in this Appeal and each of
Appellants' arguments, we are not persuaded of reversible error in the
Examiner's rejections.
Rejection 1: Patent Eligible Subject Matter
The Examiner rejects claims 1 and 9-20 under 35 U.S.C. § 101 as
being patent ineligible because they are directed to mathematical concepts,
which is an abstract idea and a judicial exception to patentable subject
matter. Final 2. The Examiner further finds that the claims do not include
additional elements sufficient to amount to significantly more than the
judicial exception because they add only data collection and general
computer functions. Id. at 2-3.
Appellants do not separately argue the patentability of claims 9-20.
App. Br. 9. Therefore, claims 9-20 stand or fall with independent claim 1.
See 37 C.F.R. § 4I.37(c)(l)(iv). Appellants contend that the Examiner erred
in rejecting claim 1 because the Examiner does not identify the abstract idea
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to which the claim is directed. App. Br. 7. Appellants additionally contend
that the sensor is an integral element of claim 1, making claim 1
significantly more than an abstract idea itself because it is not merely
performing conventional activities previously known to the pertinent
industry. Id. at 8. According to Appellants, the "divergence determining
statistical distance between probability distribution representations of the
first plane and the second plane acquired by the sensor as recited in claim 1
enable[ s] a more accurate determination of the movement and position of the
sensor than conventional systems." Id.
In the Reply Brief, Appellants contend that claim 1 is not abstract
because "the claim recites an improvement that allows a sensor, e.g. for
safety critical applications, to determine that movement and evaluation of
the movement of the sensor or other objects are theoretically justified and
assessable." Reply Br. 1-2 (citing Spec. ,r,r 5---6, 27; McRO, Inc. v. Bandai
Namco Games Am. Inc., 837 F.3d 1299, 1315 (Fed. Cir. 2016)). Appellants
additionally assert that the Examiner failed to consider the claim as a whole,
but, rather, discussed only the sensor, processing unit, and at least one
memory device. Id. at 3 ( citing Ans. 5-6).
We are not persuaded by Appellants' arguments. Our reasons follow.
Legal Framework
An invention is patent eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101. The
Supreme Court has long interpreted 35 U.S.C. § 101 to include implicit
exceptions: "[l]aws of nature, natural phenomena, and abstract ideas" are
not patentable. E.g., Alice Corp. v. CLS Bank Int 'l, 573 U.S. 208, 216
(2014).
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In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include mathematical formulas. E.g., Parker v. Flook, 437 U.S. 584, 594--95
(1978). However, not every claim that recites a mathematical formula is
patent ineligible. In Diamond v. Diehr, 450 U.S. 175, 191 (1981), the claim
at issue recited a mathematical formula, but the Supreme Court held that "[a]
claim drawn to subject matter otherwise statutory does not become
nonstatutory simply because it uses a mathematical formula." Diehr, 450
U.S. at 176; see also id. at 191 ("We view respondents' claims as nothing
more than a process for molding rubber products and not as an attempt to
patent a mathematical formula."). The Supreme Court also indicated that a
claim "seeking patent protection for that formula in the abstract ... is not
accorded the protection of our patent laws, ... and this principle cannot be
circumvented by attempting to limit the use of the formula to a particular
technological environment." Id. (citing Flook and Gottschalk v. Benson, 409
U.S. 63, 69 (1972)); see also, e.g., id. at 187 ("It is now commonplace that
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an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.").
If the claim is found to be "directed to" an abstract idea, we tum to the
second step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 ( quotation marks omitted). "A
claim that recites an abstract idea must include 'additional features' to
ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea]."' Id. ( quoting Mayo 566 U.S. at 77).
"[M]erely requir[ing] generic computer implementation[] fail[ s] to transform
that abstract idea into a patent-eligible invention." Id.
The USPTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) ("Guidance"). Under Step 1 of the Guidance, we
determine whether the claimed subject matter falls within the four statutory
categories: process, machine, manufacture, or composition of matter. Step
2A of the Guidance is two-pronged, under which we look to whether the
claim recites:
( 1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activities such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a}-(c), (e}-(h)).
See Guidance 54--55. Only if a claim (1) recites a judicial exception
and (2) does not integrate that exception into a practical application,
do we then, under Step 2B of the Guidance, look to whether the claim:
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(3) adds a specific limitation beyond the judicial exception that
is not "well-understood, routine, conventional" in the field (see
MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Guidance 56.
Claim Construction
Because there is a dispute over what claim 1 is directed to, we begin
our analysis with a claim construction. Accenture Glob. Servs., GmbH v.
Guidewire Software, Inc., 728 F.3d 1336, 1345 (Fed. Cir. 2013) ("[T]he
important inquiry for a§ 101 analysis is to look to the claim."). We construe
the claim as a whole giving it the broadest reasonable construction as one of
ordinary skill in the art would have interpreted it in light of the Specification
at the time of filing. Guidance 53 n.14 ("If a claim, under its broadest
reasonable interpretation . ... " (emphasis added)).
Claim 1 calls for a "system" comprising a "sensor" and a "processing
unit" as discussed in detail below. The system as claimed nominally
involves five data or information components: ( 1) "a plurality of frames of
data" (INFORMATION A); (2) "a first frame of data" (INFORMATION
Al); (3) "a second frame of data" (INFORMATION A2); (4) "a first plane"
(INFORMATION Bl); and (5) "a second plane" (INFORMATION B2).
Thus, the information involved in the system of claim 1 can be separated
from the other elements of the claim as follows:
1. A system for determining plane similarity, the system comprising:
a sensor configured to acquire [INFORMATION A]; and
a processing unit coupled to the sensor, the processing unit configured
to process [INFORMATION A],
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wherein the processing unit is further configured to
store [INFORMATION A] on at least one memory device;
read [INFORMATION Al] from [INFORMATION A] stored on the
at least one memory device;
read [INFORMATION A2] from [INFORMATION A] stored on the
at least one memory device;
extract [INFORMATION Bl] from [INFORMATION Al];
extract [INFORMATION B2] from [INFORMATION A2]; and
calculate a divergence to measure a similarity between
[INFORMATION Bl] and [INFORMATION B2],
wherein the divergence determines a statistical distance between
probability distribution representations of [INFORMATION B 1] and
[INFORMATION B2],
wherein the probability distribution representations of
[INFORMATION Bl] and [INFORMATION B2] represent probability
distributions of points comprised in the [INFORMATION B 1] and
[INFORMATION B2],
the points characterized by normal vectors and orthogonal distance
that are respectively acquired from [INFORMATION Bl] and
[INFORMATION B2].
According to the Specification, stored data is grouped according to the
data's associated frame of sensor-captured data (Spec. ,r 28) or, alternatively,
the sensor captures two- or three-dimensional data frames (id. ,r 29). The
data is not limited to rectangular coordinates, but may be in spherical
coordinates (i.e. a horizontal angle, a vertical angle, and a distance). Id.
,r 3 7. The Specification discloses that plane extraction is performed on sets
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of data a sensor captures in order to evaluate plane similarity using
divergence, however, when three-dimensional data is gathered, it may be by
a sensor or by combining data from multiple two-dimensional sensors. Id.
,r 34. A planar feature is extracted from the data and is made up of a set of
points (referred to as inlier data points because they are statistically
consistent with points that would likely be found within the plane) from
which normal vector and orthogonal distance estimates are calculated. Id.
,r,r 35-36.
Processing time of the plane extraction is said to be improved by
dividing the data into cells and processing the cells in parallel with separate
processors. Id. ,r 41. However, this is optional, and the entire data-set of
data the sensor captures can be processed as a single cell. Id.
The claim as a whole is not limited to any particular system, field, or
application, including safety-critical applications, but, rather, "improved
systems and methods for theoretically justified transformation hypotheses"
generally (Spec. ,r 6) of which the Specification provides "safety critical
systems" as one example (id. ,r 27). Similarly, the recited "sensor" is not
limited to any particular system, field, or application, including safety-
critical applications, as the Specification indicates that it was known in the
art to use electronic sensors to determine the movement and position of other
objects or of the sensor (id. ,r 5). The Specification describes the sensor
itself as a generic "sensor" in some embodiments (id. ,r 28). In other
embodiments, sensor examples include a camera, a 3D scanning or flash
LiDAR camera, a 3D scanning rotating LiDAR, a radar sensor (such as a
millimeter wave radar or weather radar), a combination of radar and an
electro-optical camera, or other combinations of sensors, sonar sensors, laser
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or radar altimeters, or sensors used for surveying methods, bathymetry, radar
topography, structure from motion methods or interferometry (Spec. ,r 29).
According to the Specification, the "processing unit" can be a general
purpose computer and any form of physical computer data storage hardware
can be used to implement the system. Spec. ,r 133. Claim 1 provides that
the "processing unit is coupled to the sensor" and that it processes "the
plurality of frames of data" the sensor acquires, but does not indicate how
the results of the processed data are used. Thus, the recitations in claim 1 do
not limit the claim to any particular sensor, any particular processing unit, or
any particular application in which the processed data is used. Having
construed the claim, we tum to our analysis of Appellants' arguments under
the legal framework.
Statutory Category
We find, under Step 1 of the Guidance, that the subject matter of
claim 1 falls within the machine or manufacture statutory categories (i.e., a
system comprising a sensor coupled to a processing unit). App. Br. 20-24
(Claims Appendix); Ans. 4. Although each of these claims falls within one
of the four categories of invention recited in the statute, this finding does not
end our inquiry. We tum next to Step 2A, prong 1 of the Guidance to
evaluate whether claim 1 recites a judicial exception.
Judicial Exception
Under Step 2A of the Guidance, we agree with the Examiner's finding
that claim 1 recites a judicial exception in the form of mathematical concepts
(i.e., extracting a first plane from the first frame of data, extracting a second
plane from the second frame of data, and calculating a divergence to
measure a similarity between the first plane and the second plane). Ans. 4--
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5; Final 2; cf App. Br. 7. The recited system collects data in the form of
frames of data and processes the data to extract a first plane and a second
plane to calculate a divergence to measure a similarity between a first plane
and a second plane, wherein a statistical distance between probability
distribution representations of the first plane and the second plane is
determined. Extracting a first plane from the first frame of data, extracting a
second plane from the second frame of data, and calculating divergence to
measure a similarity between the first plane and the second plane, as claim 1
requires, all involve mathematical formulas. Final 2; Ans. 5 (citing e.g.,
Spec. ,r,r 34--36, 49, 65---66); see Spec. ,r 27 ("Divergence is a statistical
function that measures the distance between two different probability
distributions."), ,r 106 (providing equations for calculating the divergence
between the first and second planes). As such, these steps are similar to
other mathematical concepts that the courts have identified as abstract ideas.
Flook, 437 U.S. at 594--95; Diehr, 450 U.S. at 191; Digitech Image Techs. v.
Elecs.for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014).
But the mere fact that the claim recites mathematical concepts does
not automatically render the claim patent-ineligible. Diehr, 450 U.S. at 187
("[A] claim drawn to subject matter otherwise statutory does not become
nonstatutory simply because it uses a mathematical formula.").
Accordingly, we proceed next to Step 2A, prong 2 of the Guidance to
determine whether the recited judicial exception is integrated into a practical
application. Guidance 51.
Integration into a Practical Application
"A claim is not 'directed to' a judicial exception, and thus is patent
eligible, if the claim as a whole integrates the recited judicial exception into
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a practical application." Id. at 53-54. A claim integrates the judicial
exception into a practical application when it applies, relies on, or uses the
judicial exception "in a manner that imposes a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the judicial exception." Id.
Based on the record before us, we find that the recited "sensor" does
not go beyond its common function. Claim 1 describes the "sensor" and
functionally; that is, via the step it is configured to perform. This step
essentially acquires data, which the "processing unit" manipulates to
calculate a divergence. Thus, contrary to Appellants' argument that claim 1
recites an improvement to the sensor for safety critical applications (Reply
Br. 1-2), the claim provides no structural details that distinguish the
"sensor" from what was known at the time the application was filed (i.e., an
improved sensor). Nor does the claim tie the sensor to safety critical
applications. As we construe claim 1 above, the claim is not directed to any
particular sensor, any particular processing unit, or any particular application
in which the processed data is used. Although computer instructions can be
patentably significant (see Enfish, LLC v. Microsoft Corp., 822 F.3d 1327
(Fed. Cir. 2016), andAncora Tech., Inc. v. HTC America, Inc., 908 F.3d
1343 (Fed. Cir. 2018)), here the cited record on appeal does not sufficiently
support the view that instructions associated with the resulting calculations
as claimed improve the functioning of the recited "sensor." To the contrary,
the record supports viewing these limitations as amounting to mere
instructions to calculate a divergence on generic computer components from
data the generic sensor acquires. See Flook, 437 U.S. at 595-96 (merely
reciting a new and presumably better method for calculating an alarm limit
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as part of a catalytic conversion process with no improvement to the
catalytic process itself rendered a claim to such process patent-ineligible);
Guidance 55 (providing examples in which a judicial exception has not been
integrated into a practical application, including "instructions to implement
an abstract idea on a computer"); cf McRO, 837 F.3d at 1315 (claims
directed to a technical improvement in animation techniques determined to
be patent eligible).
As a result, we find the claim addressed in McRO, a case on which
Appellants rely, distinguishable from Appellants' claim 1 as a whole.
McRO's claim recited not only rules in its claimed computer-automated
process, but also the use of the rules and their application to create desired
results: a sequence of synchronized, animated characters. McRO, 837 F.3d
at 1315. As noted above, Appellants' claim 1 does not recite how the
processed data is used or improves the sensor's function.
Appellants' assertion that calculating the divergence based on the data
the sensor acquires "enable[ s] a more accurate determination of the
movement and position of the sensor than conventional systems" (App. Br.
8) is not supported on this record. Appellants rely on the statement in
paragraph 5 of the Specification that "'the electronic sensor captures
difference scans of real-world scene' to 'determine the movement and
position."' Id. Appellants do not adequately explain why this statement
indicates that the sensor's accuracy is improved over conventional systems.
Moreover, claim 1 does not recite how the calculations the processing unit
performs are used or how accuracy of the sensor is improved.
Accordingly, within the meaning of the Guidance, we find that claim
1 does not integrate the judicial exception into a practical application. In
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other words, the claim is directed to the judicial exception. Thus, we tum to
Step 2B of the Guidance.
Inventive Concept
Under Step 2B of the Guidance, in order to determine whether a claim
provides an inventive concept, the additional elements are considered-
individually and in combination-to determine whether they add a specific
limitation beyond the judicial exception that is not "well-understood,
routine, conventional" in the field, or simply append well-understood,
routine, conventional activities previously known to the industry, specified
at a high level of generality, to the judicial exception. Guidance 56.
Appellants' arguments do not persuade us that the sensor performs
anything other than conventional activities (App. Br. 8) or that the claim
recites an improvement to the sensor for safety critical applications (Reply
Br. 1-2). First, claim 1 recites "a sensor configured to acquire a plurality of
frames of data." Appellants do not adequately explain why the recited
sensor is an improvement (Reply Br. 1-2) and is not conventional (App. Br.
8). Second, the Specification does not support Appellants' argument
because it describes the "sensor" both generically (Spec. ,r 28), as well as
comprising a variety of non-limiting exemplary devices (id. ,r 29). The
Specification is intrinsic evidence that the claimed "sensor" is conventional.
Third, Appellants' contention that "the sensor as recited in claim 1
enables a more accurate determination of the movement and position of the
sensor than conventional systems" (App. Br. 8) does not find support in the
Specification, nor do Appellants adequately explain how the sensor as
claimed enables a more accurate determination. Therefore, the
preponderance of the evidence cited in this appeal record supports the
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Examiner's determination that the claims do not include additional elements
that are sufficient to amount to significantly more than the abstract idea
because "a sensor configured to acquire a plurality of frames of data," is
merely collection or insignificant extra-solution activity (Final 2-3; Ans. 5-
6).
Conclusion
Accordingly, because we are not persuaded as to error in the
determinations that representative claim 1, and claims 9-20, which stand or
fall with claim 1, are directed to an abstract idea and do not present an
"inventive concept," we sustain the Examiner's conclusion that they are
directed to patent-ineligible subject matter for being judicially excepted from
35 U.S.C. § 101.
Rejection 2: Anticipation
The Examiner rejects claims 1 and 9-20 under 35 U.S.C. § I02(a) as
anticipated by Lukas3 for the reasons provided on pages 3-9 of the Final
Action.
Appellants argue the claims together. App. Br. 10-15. Therefore, we
confine our discussion to claim 1, which we select as representative. Claims
9-20 stand or fall with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner cites to Lukas' paragraphs 42--44 and 48 for disclosing
calculating a divergence to measure a similarity between the first plane and
the second plane and paragraphs 50 and 52 for using rotation and translation
formulas to determine a statistical distance between probability distribution
representations of the first plane and the second plane. Final 4; Ans. 8-9.
3 Lukas et al., EP 2 249 311 Al, published November 10, 2010 ("Lukas").
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Appellants contend that the Examiner erred in finding that Lukas discloses
"divergence [that] determines a statistical distance between probability
distribution representations of the first plane and the second plane." App.
Br. 14 (quoting Final 4). According to Appellants, Lukas does not describe
a distance at all, much less a statistical distance that the computed
divergence determines. Id. Alternatively, Appellants contend that even if
Lukas discloses measuring a statistical distance, the reference is silent as to
measuring a similarity between the first plane and the second plane by
calculating such a divergence. Id. at 15. Appellants conclude that Lukas,
therefore, does not disclose "as complete detail as is contained in the claim."
Id.
The Examiner responds with a hypothetical to explain how the
distances between two sets of data are statistical distances because they do
not represent the true distance between two particular points among the
measured data, but, rather, are part of a statistical distribution. Ans. 10-11.
The Examiner further explains that the distances between the planar features
in Lukas' statistical distribution are likewise statistical distances because
they don't represent the true distance that would have been obtained from
comparison of planar features from a single "cell." Id. at 11.
In the Reply Brief, Appellants maintain that the cited disclosures in
Lukas "disclose neither divergence nor a statistical distance." Reply Br. 5.
Appellants also contend that the Examiner's explanation of statistical
distances in the context of statistical distributions is inconsistent with the
Specification's definition of statistical distance ( a measurement of the
similarity of two planes) and "at most relate[s] to distances between two sets
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of points." Id. And Appellants contend that a divergence is not calculated if
the planar features match because the divergence would be zero. Id. at 4.
Appellants' arguments do not persuade us that the Examiner
reversibly erred in rejecting the claims as anticipated, and, more specifically,
finding that Lukas discloses calculating a divergence to measure a similarity
between the first plane and the second plane, wherein the divergence
determines a statistical distance between probability distribution
representations of the first plane and the second plane, as claim 1 requires.
The preponderance of the evidence in this appeal record supports the
Examiner's finding that the claimed subject matter of representative claim 1
is anticipated within the meaning of Section 102 in view of Lukas.
Accordingly, we will sustain the Examiner's rejection for essentially those
reasons expressed in the Answer, including the Response to Argument
section, and we add the following primarily for emphasis.
In order to anticipate, a reference must identify something falling
within the claimed subject matter with sufficient specificity to constitute a
description thereof within the purview of section 102. In re Schaumann, 572
F.2d 312, 317 (CCPA 1978). It is well established that anticipation under
section 102 is not an ipsissimis verb is test, i.e., identity of terminology is not
required. In re Bond, 910 F.2d 831,832 (Fed. Cir. 1990). The record
supports the Examiner's finding (Ans. 9; Final 4) that Lukas discloses that
the points selected are part of a statistical distribution. Lukas ,r 28.
Appellants' position (Reply Br. 4--5) that the cited portions of Lukas
compare the location of planar features extracted from a first set of 3D data
points with the planar features from a second set of 3D data points, rather
than the statistical distance between two different probability density
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functions is unpersuasive because Appellants fail to explain adequately why
the distance between points in a Gaussian distribution, as Lukas determines,
is not a "statistical distance." In other words, on this record, Appellants do
not rebut the Examiner's finding (Ans. 9) that the distances between points
that are part of a statistical distribution ( as Lukas discloses) are "statistical
distances."
Accordingly, we sustain the Examiner's rejection of claims 1 and 9-
20 under 35 U.S.C. § 102(a) as anticipated by Lukas.
Rejections 3-5: Obviousness
The Examiner rejects claims 1 and 9-20 under 35 U.S.C. § 103(a)
over the combination of Lo4 and Lukas alone or together with secondary
references for the reasons provided on pages 9-23 of the Final Action.
Specifically, and as noted above in connection with the anticipation
rejection, the Examiner cites paragraphs 42--44 and 48 of Lukas for
disclosing calculating a divergence to measure a similarity between the first
plane and the second plane and paragraphs 50 and 52 for using rotation and
translation formulas to determine a statistical distance between probability
distribution representations of the first plane and the second plane. Final 11;
Ans. 8-9.
Appellants contend that the Examiner erred because none of the cited
references disclose "calculating a divergence to measure a similarity
between the first plane and the second plane, wherein the divergence
4 Tsz-Wai Rachel Lo & J. Paul Siebert, Local feature extraction and
matching on range images: 2.5D SIFT, 113 COMPUTER VISION AND IMAGE
UNDERSTANDING 1235-50 (2009) ("Lo").
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determines a statistical distance between probability distribution
representations of the first plane and the second plane" as recited in claim 1.
App. Br. 17-19.
Appellants' arguments do not persuade us that the Examiner
reversibly erred in rejecting the claims over the cited prior art references.
Appellants' arguments are based on the Examiner's finding that Lukas
discloses calculating a divergence to measure a similarity between the first
plane and the second plane, wherein the divergence determines a statistical
distance between probability distribution representations as required by the
claims. For the same reasons discussed above in connection with the
anticipation rejection over Lukas, we find the preponderance of the evidence
supports the Examiner's rejections over the combination of Lukas with the
secondary prior art references.
Even assuming that Lukas does not explicitly teach determining a
statistical distance between probability distribution representations of the
first plane and the second plane, contrary to the Appellants' position, a
person having ordinary skill in the art would have drawn a reasonable
inference from Lukas' teachings that the planar location information that is
compared is part of a statistical distribution and, therefore, a statistical
distance is determined. The record supports the Examiner's finding
(Ans. 10) that Lukas describes the point parameters for a plane to be spread
around an ideal value in a Gaussian like distribution. Lukas ,r 28. The
distance Lukas determines would have been reasonably expected to be based
on values selected from a statistical distribution and, therefore, a statistical
distance. In re Preda, 401 F.2d 825, 826 (CCPA 1968) ("[I]n considering
the disclosure of a reference, it is proper to take into account not only
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specific teachings of the reference but also the inferences which one skilled
in the art would reasonably be expected to draw therefrom."); KSR Int 'l Co.
v. Teleflex Inc., 550 U.S. 398,421 (2007) ("A person of ordinary skill is also
a person of ordinary creativity, not an automaton.").
For these reasons and those the Examiner provides, we uphold the
Examiner's rejection of claims 1 and 9-20 under 35 U.S.C. § 103(a) as
obvious over Lo and Lukas alone or together with secondary references.
DECISION
Upon consideration of the record, and for the reasons given above and
in the Final Office Action and the Examiner's Answer, the decision of the
Examiner rejecting claims 1 and 9-20 under 35 U.S.C. §§ 101, 102(a), and
103(a) 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)(l).
AFFIRMED
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