Ex Parte Giunta

Board of Patent Appeals and Interferences

Sep 7, 2012

11198793 (B.P.A.I. Sep. 7, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte SALVATORE JOHN GIUNTA
__________

Appeal 2010-008926
Application 11/198,793
Technology Center 3600
__________

Before TONI R. SCHEINER, DEMETRA J. MILLS, and
LORA M. GREEN, Administrative Patent Judges.

MILLS, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b).
Appeal 2010-008926
Application 11/198,793

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STATEMENT OF THE CASE
The following claim is representative of the claims on appeal and reads
as follows:
1. A method comprising:

obtaining and storing way-points for a first period of time, wherein
said way-points track a monitored animal's movements; and
developing a first correlation between a first repetitive behavior and a
likelihood that said monitored animal will breach a containment perimeter,
wherein said first repetitive behavior is evidenced by said stored way-points
and said correlation is developed by analyzing said stored waypoints.

Cited References
The Examiner relies on the following prior art references:
Dalland et al. US 6,581,546 B1 Jun. 24, 2003
Ciccolo et al. US 6,614,348 B2 Sep. 2, 2003
Giunta et al. US 2005/0000469 A1 Jan. 6, 2005

Grounds of Rejection
 Claims 1- 5 and 8 -19 are rejected under 35 U.S.C. §103(a) as being
unpatentable over Dalland in view of Ciccolo.
 Claims 1, 6, 7, 16, and 20 are rejected under 35 U.S.C. §103(a) as
being unpatentable over Giunta in view of Ciccolo.

We affirm.
FINDINGS OF FACT
The Examiner‟s findings of fact are set forth in the Answer at pages 3-
7.

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Discussion
ISSUE
The Examiner concludes that
[i]t would have been obvious to one having ordinary skill in the art at
the time the invention was made to substitute the animal behavior
monitoring system used by Dalland et al '546 with the behavior
pattern monitoring system taught by Ciccolo et al '348 in order to
distinguish between alarming and non-alarming behavior patterns
(Col. 2; Lines 63 - 65).

(Ans. 4.)
Appellant argues that, “Ciccolo et al. discloses a system for catching
someone in the „act;‟ appellant's claimed invention is for preventing the „act‟
from occurring.” (App. Br. 10.) “Ciccolo et al. does not teach predicting a
future event to prevent it from occurring; in Ciccolo et al., the event is
actually happening.” (id. at 11.)
The issue is: Does the cited prior art suggest the invention as
claimed?

PRINCIPLES OF LAW
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed.
Cir. 1993) (citations omitted). In order to determine whether a prima facie
case of obviousness has been established, we consider the factors set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966): (1) the scope and content
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of the prior art; (2) the differences between the prior art and the claims at
issue; (3) the level of ordinary skill in the relevant art; and (4) objective
evidence of nonobviousness, if present.
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Moreover,
When there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this
leads to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense.

Id. at 421.

ANALYSIS
We agree with the Examiner‟s fact finding, statement of the rejection
and responses to Appellant‟s arguments as set forth in the Answer. We find
that the Examiner has provided evidence to support a prima facie case of
obviousness. We provide the following additional comment.
Appellant argues that, “Ciccolo et al. discloses a system for catching
someone in the „act;‟ appellant's claimed invention is for preventing the „act‟
from occurring.” (App. Br. 10.) “Ciccolo et al. does not teach predicting a
future event to prevent it from occurring; in Ciccolo et al., the event is
actually happening.” (App. Br. 11.)
The Examiner responds, arguing that “Appellant's claim 1 does not
specifically recite „predicting a future event‟ or to „prevent it from
occurring‟, but simply recites a need to develop a correlation (i.e. any type
of association or mutual relationship between two events) between the
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repetitive behavior and the likelihood of an event due to said behavior.”
(Ans. 8.) The Examiner argues that “the repetitive behavior of the employee
in the Ciccolo et al reference would allow for a prediction to be made about
the potential of a theft occurring after a few repetitions and allow the theft
(or a future theft) to be prevented before being carried out.” (Id.)
Ciccolo discloses “[a] system and method for monitoring behavior
patterns which effectively distinguishes between alarming and nonalarming
behavior patterns” (Ciccolo Abstract). The processor of Ciccolo “may be
an adaptive processor programmed with a learning algorithm so that the
system "learns" new standard behavior patterns while it operates and
"forgets" old standard behavior patterns that may no longer be considered
alarming.” (Ciccolo, col. 3, ll. 19-24.) The method of Ciccolo monitors
behavior patterns, “includes storing standard behavior patterns, detecting
behavior patterns, comparing detected behavior patterns to standard behavior
patterns, and activating a response when a detected behavior pattern and at
least one standard behavior pattern have a predetermined relationship, such
as when the detected data matches the standard data, or which the detected
data differs from standard data.” (Id. at ll. 30-37.) Thus, Ciccolo compares
detected behavior patterns (alarming patterns) with a standard pattern (non-
alarming patterns) which have a “correlation” or predetermined relationship,
which is all that the claims require. For example, the system and method of
Ciccolo can learn that a repetitive approach of a way-point is associated with
the alarming behavior of breach of a way-point as indicated by stored data.
We agree with the Examiner that “[i]t would have been obvious to one
having ordinary skill in the art at the time the invention was made to
substitute the animal behavior monitoring system used by Dalland et al '546
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with the behavior pattern monitoring system taught by Ciccolo et al '348 in
order to distinguish between alarming and non-alarming behavior patterns
(Col. 2; Lines 63 - 65).” (Ans. 4.) Under the principles of KSR, a person of
ordinary skill would have had a good reason to pursue the known monitoring
system of Ciccolo to address the known alarming behavior of breach of a
known virtual fencing barrier. Appellant has not shown with evidence that
Ciccolo‟s method of distinguishing between alarming and non-alarming
behavior patterns based on comparing stored data is not a “correlation”
suggested by the combination of Dalland and Ciccolo. The rejection is
affirmed for the reasons of record.
The second obviousness rejection over Giunta and Ciccolo is
essentially the same as that of Dalland over Ciccolo, with Ciccolo being
relied on for the disclosure of a behavior pattern monitoring system. Figure
9 of Giunta teaches a second correlation between a second repetitive
behavior and a likelihood that said monitored animal will breach a
containment perimeter (Ans. 6). This rejection is also affirmed for the
reasons of record.

CONCLUSION OF LAW
The cited references support the Examiner‟s obviousness rejections,
which have not been adequately rebutted by Appellant.

Appeal 2010-008926
Application 11/198,793

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TIME PERIOD
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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