Ex Parte Greiner et alDownload PDFPatent Trial and Appeal BoardJun 8, 201613197713 (P.T.A.B. Jun. 8, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/197,713 08/03/2011 31824 7590 06/10/2016 MCDERMOTT WILL & EMERY LLP The McDermott Building 500 North Capitol Street, N.W. Washington, DC 20001 FIRST NAMED INVENTOR Douglas H. GREINER 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. SW-00912 (086712-0682) 6350 EXAMINER CASEY, LIAM R ART UNIT PAPER NUMBER 2863 NOTIFICATION DATE DELIVERY MODE 06/10/2016 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): mweipdocket@mwe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DOUGLAS H. GREINER, BRIANT. HOLM-HANSEN, and JOHN P. MOREHEAD 1 Appeal2015-001767 Application 13/197, 713 Technology Center 2800 Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and JAMES W. DEJMEK, Administrative Patent Judges. FISHMAN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-34.2 We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify Lockheed Martin Corporation as the real party in interest. Appeal Brief 3. 2 In this Decision, we refer to Appellants' Appeal Brief ("Br.," filed May 20, 2014); the Final Office Action ("Final Act.," mailed December 17, 2013); the Examiner's Answer ("Ans.," mailed on September 3, 2014); and the original Specification ("Spec.," filed August 3, 2011). Appeal2015-001767 Application 13/197, 713 THE INVENTION Appellants' invention is directed to "a ballonet volume measurement system." Spec. i-f 2. Independent claim 1, reproduced below, is representative: 1. A system for measuring a volume of a ballonet, the system compnsmg: a plurality of sensors configured to transmit a plurality of signals toward an interior surface of the ballonet and to receive the plurality of signals reflected off of the interior surface of the ballonet; a distance calculating module configured to calculate a plurality of distances from the plurality of sensors to the interior surface of the ballonet using the received plurality of signals; a mapping module configured to create a three-dimensional surface using the calculated plurality of distances; and a measurement module configured to calculate the volume of the ballonet using the three-dimensional surface. THE REJECTIONS Claims 1-4, 6-8, 11, and 12 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hunter (Mapping with 3D Lasers, PositionIT 54- 57 (2007)), Bilaniuk (US 2011/0101692 Al; May 5, 2011), and Tomslev (3D Scanning using Multibeam Laser, Technical University of Denmark 14 (2005)). Final Act. 2-7. Claims 5 and 14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hunter, Bilaniuk, Tomslev, and Holz et al. (Holz, Schnabel, Droeschel, Stiickler, and Behnke, Towards Semantic Scene Analysis with Time-of-Flight Camera, In Proceedings of RoboCup International Symposium 1-12 (2010)) ("Holz"). Final Act. 7-8. 2 Appeal2015-001767 Application 13/197, 713 Claims 9 and 10 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hunter, Bilaniuk, Tomslev, and O'Loughlin et al. (US 2006/0044544 Al; Mar. 2, 2006) ("O'Loughlin"). Final Act. 8-9. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Hunter, Bilaniuk, Tomslev, and Haunschild (US 5,090,637; Feb. 25, 1992). Final Act. 9-10. Claims 15-18, 20, 21, 24, 25, 28, and 30-32 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hunter and Bilaniuk. Final Act. 10-16. Claims 19, 27, 29, and 34 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hunter, Bilaniuk, and Holz. Final Act. 16-18. Claims 22 and 23 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hunter, Bilaniuk, and O'Loughlin. Final Act. 18-19. Claims 26 and 33 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hunter, Bilaniuk, and Haunschild. Final Act. 19-20. ANALYSIS Only those arguments actually made by Appellants have been considered in this Decision. Arguments that Appellants did not make in the Briefs have not been considered and are waived. See 37 C.F.R. § 41.37(c)(l)(iv). We are not persuaded by Appellants' contentions of Examiner error (Br. 10-16). We adopt as our own the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2-22) and as set forth by the Examiner in the Answer (Ans. 2-7). However, we 3 Appeal2015-001767 Application 13/197, 713 highlight and address specific arguments and findings for emphasis as follows. A. Regarding the rejection of independent claim 1, Appellants contend the Examiner erred in finding Tomslev teaches or suggests "a plurality of sensors," as recited in claim 1. In particular, Appellants argue "Tomslev discloses a single 'multibeam laser."' Br. 12 (citing Tomslev, p. 14) (emphasis in original). We are not persuaded by Appellants' argument at least because the argument is not responsive to the Examiner's rejection. The Examiner relies on the combination of Hunter and Tomslev for the suggestion of "a plurality of sensors." Specifically, the Examiner finds one "sensor" is taught by Hunter's laser transmitter and receiver. Ans. 2-3 (citing Hunter pg. 54). The Examiner finds the suggestion/motivation for using a plurality of Hunter's sensors in Tomslev's teaching of increasing from one laser beam to multiple simultaneous laser beams to reducing sensor movement for mapping a surface. Ans. 3. The Examiner finds if Hunter's laser "transmitted multiple light pulses simultaneously in different directions to reduce the necessary movement of the device for mapping a surface, the use of multiple sensors to receive the reflected pulses would have been considered obvious." Ans. 3. In other words, by using multiple spaced apart sensors instead of one sensor that moves a large distance, the multiple sensors will not need to be moved or moved as much. Moreover, merely duplicating Hunter's sensor to use multiple sensors with each sensor performing its usual function is obvious. "A mere duplication of parts is not invention." In re Marcum, 47 F.2d 377, 378 4 Appeal2015-001767 Application 13/197, 713 (CCPA 1931) (citing TopliJlv. T'oplij)~ 145 U.S. 156, 163 (1892)). A duplication of parts does not impart patentability unless a new and unexpected result is produced. See In re Harza, 274 F.2d 669, 671 (CCPA 1960). Appellants fail to address and rebut the Examiner's findings or provide new or unexpected results from a plurality of sensors. Therefore, we agree with the Examiner's findings that the combination of Hunter and Tomslev teaches or suggests "a plurality of sensors," as recited in claim 1. B. Appellants further contend the Examiner erred in finding Hunter teaches or suggests "transmit[ ting] a plurality of signals toward an interior surface of the ballonet," as recited in claim 1. Br. 12 (emphasis added). In particular, Appellants argue Figures 1-8 of Hunter "depict a laser scanner used in the scanning of fixed external slope surfaces." Br. 12 (emphasis in original). We are unpersuaded of Examiner error because Appellants' contentions are not responsive to the rejection as articulated by the Examiner. Specifically, the Examiner relies on the combination of Hunter and Bilaniuk for the teaching or suggestion of the limitation at issue. Final Act. 2-3; Ans. 3-4. The Examiner finds Hunter teaches transmitting and receiving lasers from a surface (Final Act. 2) and further teaches measuring volumes from a three-dimensional model constructed from the laser measurements. Ans. 5; see Hunter 54. The Examiner finds Bilaniuk suggests measuring the volume defined by the interior surface of a ballonet. Final Act. 3. We agree that it would be obvious to try to transmit signals to the interior surface of the ballonet because there are only two possible choices, the interior or the exterior surface. See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (if there are a finite number of identified, 5 Appeal2015-001767 Application 13/197, 713 predictable solutions to solve a problem, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp). For these reasons, we are not persuaded the Examiner erred. c. Appellants contend the Examiner erred in finding the combination of Hunter and Bilaniuk teaches or suggests calculating the volume of a ballonet using a three-dimensional surface, as recited in claim 1. Br. 14-15. Specifically, Appellants argue "Bilaniuk does not disclose or suggest that it would be beneficial to measure a volume of a ballonet because Bilaniuk does not disclose or suggest measuring the 'critical volume' in the dynamically changing ballonet of Bilaniuk." Br. 13. We are not persuaded the Examiner erred. "there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness" .. . . [H]owever, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ. KSR, 550 U.S. at 418 (quoting In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006)). The obviousness inquiry "not only permits, but requires, consideration of common knowledge and common sense." DyStar Textilfarben GmbH & Co. v. CH Patrick Co., 464 F.3d 1356, 1367 (Fed. Cir. 2006); see also KSR, 550 U.S. at 421. Here, Appellants argument that Bilaniuk does not explicitly state the benefit to measuring the ballonet volumes is not persuasive because Appellants do not rebut the Examiner's proffered rational, which takes into account the common sense of a person of ordinary skill in the art. Ans. 6. Specifically, Examiner finds, and we agree, "since the buoyancy of the airship is controlled through inflation or deflation 6 Appeal2015-001767 Application 13/197, 713 of the ballonet, one would want to know where the current volume of the ballonet stands in relation to the 'critical volume' at least for the purposes of take-off and landing." Ans. 4. The Examiner also finds one skilled in the art would be motivated to measure the ballonet volume to control the buoyant airship because Bilaniuk discloses the ballonet volume controls the buoyancy of the airship. Ans. 6. Appellants fail to address and rebut the Examiner's articulated rationales. In view of the above discussion, we are not persuaded the Examiner failed to articulate a reason with some rational underpinning for combining the teachings of Hunter and Bilaniuk. D. Appellants further contend the combination of Hunter and Bilaniuk is improper because Hunter's laser measurements of external surfaces teaches away measuring the internal surfaces of Bilaniuk's ballonet. Br. 14. We are not persuaded by Appellants' argument. A prior art reference does not teach away from the claimed subject matter unless the prior art reference criticizes, discredits or otherwise discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Here, Appellants have not identified any portion of Hunter or Bilaniuk that discourages the claimed measuring the volume of a ballonet using sensors that transmit signals toward the ballonet's internal surfaces. See Br. 14. Moreover, Appellants have not demonstrated that the Examiner's proffered combination of would have been "uniquely challenging or difficult for one of ordinary skill in the art." See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Accordingly, we sustain the Examiner's rejection of independent claim 1. Independent claims 15 and 28 are similar to independent claim 1 7 Appeal2015-001767 Application 13/197, 713 and are rejected for essentially the same reasons as claim 1. Appellants do not argue with particularity the rejection of claim independent 15 and 28 or dependent claims 2-14, 16-27, and 29-34. Br. 16. Thus, for the same reasons as claim 1, we are persuaded the Examiner erred in rejecting claims 2-34 and we sustain the Examiner's rejections of claims 1-34. DECISION We affirm the Examiner's decision to reject claims 1-34. 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 )(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation