Ex Parte Heller

Patent Trials and Appeals Board

Feb 22, 2019

13668270 - (D) (P.T.A.B. Feb. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/668,270 11/03/2012
70023 7590 02/22/2019
JOHN B. LINDSAY
11700 Preston Rd Ste 660-167
Dallas, TX 75230
FIRST NAMED INVENTOR
Alan C. Heller
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.
febrileRemoteSensor 3736
EXAMINER
W ARSI, YASMEEN S
ART UNIT PAPER NUMBER
3791
MAIL DATE DELIVERY MODE
02/22/2019 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 ALAN C. HELLER
Appeal2017-010784
Application 13/668,270
Technology Center 3700
Before ULRIKE W. JENKS, TIMOTHY G. MAJORS, and
RACHEL H. TOWNSEND, Administrative Patent Judges.
JENKS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from Examiner's
decision to reject2 the claims as obvious. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies the real party in interest as Alan C. Heller. Br. 2.
2 In this Decision, we refer to the Final Office Action, mailed Sept. 28, 2015
("Final Act."); Appeal Brief, filed Feb. 29, 2016 ("Br."); and the Examiner's
Answer, mailed Jul. 12, 2016 ("Ans.").
Appeal2017-010784
Application 13/668,270
STATEMENT OF THE CASE
Claims 11-14 are on appeal, and can be found in the Claims
Appendix of the Appeal Brief. Claim 11 depends on claim 1, and claims 1
and 11 are reproduced below:
1. A system for real time detection of a febrile condition,
the system comprising:
a remote heat sensor configured for orientation towards
the facial region of a person within a zone of detection and
operable to receive thermal radiation.
11. The system of claim 1 further comprising an identity
system.
(Br., Claims Appendix, 9.)
The claims stand rejected as follows:
I. Claim 1 under 35 U.S.C. § I02(b) as being anticipated3 by
Fraden. 4 Final Act. 2.
II. Claims 11-14 under 35 U.S.C. § I03(a) as unpatentable over
Fraden in view of Anderson. 5 Id. at 3.
3 Appellant does not argue the merits of this rejection. See Br. 3 ("The
claims at issue in this Appeal are claims 11-14"). We, therefore, summarily
affirm this rejection. See Manual of Patent Examining Procedure§ 1205.02
(9th Ed., Rev. 08.2017, Jan. 2018). The failure to appeal is a waiver under
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
4 Fraden, US 2007/0153871 Al, published July 5, 2007.
5 Anderson et al., US 2010/0205667 Al, published Aug. 12, 2010
("Anderson").
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Appeal2017-010784
Application 13/668,270
Obviousness over Fraden and Anderson
Examiner finds that "Fraden discloses a camera 6 with the ability to
detect faces . . . [but acknowledges that] Fraden is silent regarding an
identity system." Final Act. 3. Examiner relies on Anderson for teaching an
identity system. Id. Examiner concludes that "[i]t would have been obvious
at the time the invention was made to modify Fraden in view of Anderson
for the purpose of alerting authorized personnel of the identity of person."
Ans. 5.
Appellant contends that the rejection lacks an articulated reason for
combining the references, and that the references are non-analogous art. See
Br. 5-7.
The issue with respect to this rejection is whether the preponderance
of evidence of record supports Examiner's conclusion that the inclusion of
an identification system into Fraden's heat sensor system is an obvious
combination of known parts with no change in their respective functions.
Findings of Fact
We agree with and adopt the Examiner's findings of fact and
reasoning regarding the scope and content of the prior art as set out in the
Final Office Action and Answer. For emphasis only we highlight the
following:
FF 1. Fraden teaches a system that screens subjects for fever. Fraden,
Abstract. Figure 3, reproduced below, shows such a fever screening
system.
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Appeal2017-010784
Application 13/668,270
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Figure 3 shows, target gate 4 with subject 3 standing between the
thermal reference targets 18a and 18b. Id. ,r 32. "[T]arget gate 4 is the
place where a fever detection takes place. The detection is performed
by the thermal imaging camera 5 and signal processing equipment 6.
The equipment 6 is connected to an indicator, for example, an alarm
12 when fever is detected." Id. ,r,r 24, 33.
FF2. Fraden contemplates additional equipment for the system in order to
position the thermal camera so the subject's face is properly
positioned in the camera's field of view. Id. ,r 31.
To force the camera 5 to reposition the filed [sic] of view
( either manually or automatically), a secondary presence
detector 19 may be employed .... Alternatively, the height
of the subject may be determined by a pattern recognition
of the image taken by camera 5 and the camera field of
view adjusted accordingly .... Another alternative way of
positioning a thermal imaging camera is to supplement it
with a conventional visible range video camera with an
appropriate pattern recognition system (these components
are not shown in the figures).
Id. ,I 33.
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Appeal2017-010784
Application 13/668,270
FF3. Anderson teaches "using an image sensor (1400), such as a camera
( e.g., a 'webcam') or a dedicated gaze tracker, electronically coupled
with a security processor (not shown)." Anderson ,r 45. Anderson
teaches using a "user's face and hand gestures by a webcam or other
image sensor ... [for] user identification and authorization dialog ....
[In order to provide] the identification and access of user information
from a database of user profiles." Id. at ,r 28. "[S]uccessful
authentication grants access to the device with the security level
assigned to the identified user." Id. ,r 56.
FF4. Anderson teaches that in addition to "[r]ecognition of the user's face,
entry of a password, presentation of additional authentication ( e.g.,
biometric data input, smart card, token-based key access, RFID
presence or a combination of some or all of these or others) can be
required." Id. ,r 7 4.
FF5. Anderson teaches that the "video capture device data [can be used] to
perform object recognition processing and identify objects in view in
the local environment (curtains, filing cabinets, television, etc.), and
... this information [is used] to determine current location." Id. ,r 84.
In addition to using objects, bar code labels can also be present in the
video capture device data and used for identification purposes in order
to set the security policy, as "OFFICE," "HOME," or "in public.". Id.
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Appeal2017-010784
Application 13/668,270
Analysis
Fraden teaches a system that screens subjects for fever using a thermal
camera and processing equipment. FF 1. Fraden' s system can include
additional equipment, such as a video camera in order to properly position
the thermal camera onto the subject's face. FF2.
Anderson teaches using an imaging system, such as a webcam, for
identifying a user. FF3. In addition to facial recognition, Anderson teaches
using other authentication methods, such as RFID to provide additional
identification metrics. FF4. Anderson also contemplates using bar code
reader labels as a way of identifying the location of the webcam and
associated device in order to set the appropriate security level. FF5.
The KSR Court noted that a combination of old elements has been
held to be obvious when "[ t ]he two [elements] in combination did no more
than they would in separate, sequential operation." KSR Int'! Co. v. Teleflex
Inc., 550 U.S. 398, 417 (citing Anderson's-Black Rock, Inc. v. Pavement
Salvage Co., 396 U.S. 57 (1969)). Applying the KSR standard of
obviousness to the findings of fact here, we agree with Examiner that it
would have been obvious to an ordinary artisan of ordinary creativity to
include the video identification system of Anderson with the fever detection
system of Fraden in order to arrive at the claimed detection system. See
Ans. 7.
We are not persuaded by Appellant's contention that the rejection
lacks an articulated reason for the combination. See Br. 4--5. Examiner
explained that "one of ordinary skill in the art could have combined the
elements as claimed by known methods, and that in combination, each
element merely performs the same function as it does separately and the
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Appeal2017-010784
Application 13/668,270
results of the combination were predictable." Ans. 7. As Examiner explains,
claim 11 "does not require any interplay and/or structural/functional
connection between the identity system and other claimed components." Id.
at 8. We agree with Examiner that adding Anderson's image sensor (FF3)
that allows for identification of the subject and incorporating it into Fraden's
thermal sensor system (FF 1) allows each system to work independently with
the added benefit that each subject is now authenticated as they move
through the system.
In addition, we note that Fraden already teaches a system that utilizes
both a thermal camera in addition to a conventional visible range video
camera. FF2. The video camera in Fraden is used to position the thermal
camera onto the subject's face. FF2. Here, the video camera of Fraden
already captures the subject's face, adding Anderson's subject recognition
processing would have been obvious to one of ordinary skill in the art in
order to link the thermal image information with a particular subject. We
agree with Examiner that it would have been obvious to the ordinary artisan
to identify the subject being tested for fever in order to further communicate
the health status with the subject or authorities. See Ans. 5 ("It would have
been obvious at the time the invention was made to modify Fraden in view
of Anderson for the purpose of alerting authorized personnel of the identity
of person to determine whether they are a threat to the security of the area
such as an airport or not."). After all, the person having ordinary skill in the
art is presumed to have ordinary creativity and intelligence. KSR 550 U.S. at
421; see also In re Sovich, 769 F.2d 738, 743 (Fed. Cir. 1985).
We are also not persuaded by Appellant's non-analogous art
argument. See Br. 7. Art is analogous if it is (1) from the same field of
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Appeal2017-010784
Application 13/668,270
endeavor, regardless of the problem addressed, or (2) reasonably pertinent to
the particular problem with which the inventor is involved. In re Clay, 966
F.2d 656, 658-59 (Fed. Cir. 1992). "[E]xaminer considered the problem
faced by the inventor, as reflected in the specification and notes that the
examiner's understanding of the problem as using a system to identify an
individual and their health status e.g. fever to safeguard other individuals
from any possibly communicable disease or infection." Ans. 11. Here, both
Fraden and Anderson are involved in the identification of subjects. See FFl,
FF3. Fraden identifies subjects having fever, while Anderson identifies
subjects having certain security clearances. Because the art is reasonably
pertinent with the problem of identifying individuals, we agree with the
Examiner that Fraden and Anderson are analogous art for this purpose.
We conclude that the evidence cited by the Examiner supports a prima
facie case of obviousness with respect to claim 11. Claims 12-14 were not
separately argued and fall with claim 11. 37 C.F.R. § 41.37 (c)(l)(iv).
SUMMARY
The rejection of claims 11-14 under 35 U.S.C. § 103(a) over Fraden
and Anderson is affirmed.
TIME PERIOD FOR RESPONSE
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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