Ex Parte Herdle

Patent Trial and Appeal Board

Sep 22, 2016

13078660 (P.T.A.B. Sep. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/078,660 04/01/2011
23409 7590 09/26/2016
MICHAEL BEST & FRIEDRICH LLP (Mke)
100 E WISCONSIN A VENUE
Suite 3300
MILWAUKEE, WI 53202
FIRST NAMED INVENTOR
David Kevin Herdle
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.
051077-9006-USOO 7999
EXAMINER
TROOST, AARON L
ART UNIT PAPER NUMBER
3668
NOTIFICATION DATE DELIVERY MODE
09/26/2016 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):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID KEVIN HERDLE
Appeal2014-009826
Application 13/078,6601
Technology Center 3600
Before JOHN C. KERINS, STEP AN ST AI CO VICI, and LEE L. STEPINA,
Administrative Patent Judges.
ST AI CO VICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
David Kevin Herdle (Appellant) appeals under 35 U.S.C. § 134(a)
from the Examiner's final decision rejecting claims 1--4, 7, 8, 10-19, 22, 23,
25-29, 31, 32, and 35.2 We have jurisdiction over this appeal under 35
U.S.C. § 6(b).
According to Appellant, the real party in interest is Joy MM
Delaware, Inc. Appeal Br. 2 (filed Apr. 24, 2014).
2 Claims 5, 6, 9, 20, 21, 24, 30, 33, and 34 are canceled. Id. at 13 and
15-17 (Claims App.).
Appeal2014-009826
Application 13/078,660
We REVERSE.
SUMMARY OF DECISION
THE INVENTION
Appellant's invention relates to "methods and systems for controlling
a mining machine." Spec. para. 1.
Claims 1, 16, and 28 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. A system for controlling a mining machine, the system
compnsmg:
an image sensor for capturing an image of a cutting face
of a mine;
an interface sensing and control system for obtaining the
image, identifying an anomaly in the image by comparing the
image to a plurality of images of known anomalies, calculating
a distance between the anomaly and a reference using a known
distance between the image sensor and the cutting face and a
known size of pixels in the image, and using the distance to
automatically instruct a mining machine control system to keep
a cutter head of the mining machine within a seam.
THE REJECTIONS
The following rejections are before us for review:
I. The Examiner rejected claims 1--4, 7, 10, 13-19, 22, 25, 28, 31, and
35 under 35 U.S.C. § 103(a) as being unpatentable over Hargrave (US
2009/0212216 Al, pub. Aug. 27, 2009), Landwehr (US 7,496,228 B2, iss.
Feb. 24, 2009), and Nakamura (US 2002/0150308 Al, pub. Oct. 17, 2002). 3
3 Appellant states that the "present application never included a [c]laim
25." Appeal Br. 5, footnote 1. However, in Appellant's "Response after
Final," filed March 25, 2013, claim 25 is listed as "currently pending" on
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Application 13/078,660
II. The Examiner rejected claims 8, 23, and 32 under 35 U.S.C. § 103(a)
as being unpatentable over Hargrave, Landwehr, Nakumara, and Barrett (US
3,421,796, iss. Jan. 14, 1969).
III. The Examiner rejected claims 11, 26, and 29 under 35 U.S.C. § 103(a)
as being unpatentable over Hargrave, Landwehr, Nakamura, and King (US
5,310,248, iss. May 10, 1994).
IV. The Examiner rejected claims 12 and 27 under 35 U.S.C. § 103(a) as
being unpatentable over Hargrave, Landwehr, Nakamura, and Ollis (US
6,296,317 B 1, iss. Oct. 2, 2001 ).
ANALYSIS
The Examiner finds that "Hargrave discloses a mining method and
apparatus including an image sensor (camera 41 - see Fig. 7) for capturing
an image of a cutting face of a mine." Final Act. 9 (citing Hargrave, para.
59) (emphasis omitted). The Examiner relies on Landwehr as disclosing "a
method and system for detecting and classifying objects in images including
identifying an anomaly in an image by comparing an image to a plurality of
images of known anomalies." Id. (citing Landwehr, col. 2, 11. 18--44, col.
18, 11. 33-39). The Examiner then concludes that it would have been
obvious to a person of ordinary skill in the art "to have provided the mining
method and apparatus of Hargrave with the object classifying method and
page 8 and is presented in the "Amendments to the Claims" section on page
5. Claim 25 is also listed as "currently pending" on page 8 of Appellant's
Response filed July 12, 2013, but is omitted from the "Listing of Claims"
section on page 4. We thus consider the omission of claim 25 as a
typographical error and, like the Examiner, consider it as part of this
rejection. See Final Act. 9.
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Application 13/078,660
system as taught by Landwehr [in order] to provide timely, practical and
accurate detection and classification of objects. Id. (citing Landwehr, col. 1,
11. 27-28).
Appellant asserts that if "the image analysis disclosed in Landwehr
could be used to determine a band or feature in a mining surface, there
would be no need to perform the IR sensing of fresh cut product face to also
determine the band or feature as described in Hargrave." Appeal Br. 9.
Appellant argues that, "the Examiner has failed to show that Hargrave or
Landwehr require such redundancy (e.g., that there are failures or
shortcomings of either reference that would require a back-up or a
redundancy)." Id.; see also Reply Br. 3. Thus, according to Appellant,
"there is no motivation to combine Hargrave and Landwehr." Id.
In the Answer, the Examiner responds:
It would be feasible to operate one camera in the manner taught
by Hargrave and the other camera in the manner taught by
Landwehr to separately track the vein, and then compare the
separate results to verify that the mining machine is following
the vein as intended, therein providing a more robust horizontal
control. For another example, it may be advantageous to direct
one camera at end wall 29 and operate the camera in the manner
taught by Landwehr for providing feedforward control (pre-cut
mining face data) while following the vein, and at the same time,
directing a second camera at upright wall 27 and operating the
camera in the manner taught by Hargrave for providing feedback
control (post-cut mining face data) while following the vein.
Controlling based on both feedforward and feedback control may
more accurately track the vein to provide a more robust datum
for horizontal control.
Ans. 15.
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Application 13/078,660
We agree with Appellant that the Examiner has not adequately
explained why it would have been obvious to combine Hargrave' s imaging
technique, i.e., thermal infrared (IR) imaging, with Landwehr's visible-
wavelength imaging, because Hargrave' s thermal imaging technique already
combines various detection processes "to provide a robust predictive-
reactive sensing capability" and moreover, "to provide a robust datum for
horizontal control." Hargrave, paras. 68, 69. The Examiner has not
provided any findings that Hargrave recognized a problem with thermal IR
imaging in general, and more particularly, that Hargrave would require a
back-up system that uses Landwehr's visible-wavelength imaging sensors.
Moreover, Hargrave specifically discloses that "a thermal infrared camera
has particular advantage over standard visible-wavelength cameras in
mining operations," because such "cameras can also function in total
darkness which further makes IR cameras of this type suitable for practical
implementation," and because "the camera is likely to show important
features of interest that appear in the thermal domain that may not otherwise
appear in the visible domain." Id. para. 48 (emphasis added).
Hence, it is not apparent why it would be desirable to a person of
ordinary skill in the art to use the visible-wavelength camera of Landwehr in
Hargrave' s mining environment of total darkness, and furthermore, the
Examiner does not adequately explain how the camera of Landwehr would
"more accurately track the vein to provide a more robust datum for
horizontal control" in such an environment. Ans. 15. Accordingly, without
persuasive articulated reasoning based on rational underpinnings for
modifying the reference as proposed, the Examiner's rejection appears to be
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Application 13/078,660
the result of improper hindsight analysis. See In re Kahn, 441F.3d977, 988
(Fed. Cir. 2006). The Examiner's use of the disclosure of Nakamura does
not remedy the deficiency of Hargrave and Landwehr, as discussed supra.
See Final Act. 10.
In conclusion, for the foregoing reasons, we do not sustain the
rejection under 35 USC§ 103(a) of claims 1--4, 7, 10, 13-19, 22, 25, 28, 31,
and 35 as being unpatentable over Hargrave, Landwehr, and Nakamura.
Rejections II-IV
The Examiner does not rely on the teachings of Barrett, King, or Ollis
in any manner that would remedy the deficiencies in the rejection based
upon Hargrave, Landwehr, and Nakamura as described supra. See Final
Act. 13-16.
Accordingly, for the same reasons as discussed above, we do not
sustain the rejections under 35 U.S.C. § 103(a) of claims 8, 23, and 32 as
unpatentable over Hargrave, Landwehr, Nakumara, and Barrett; of claims
11, 26, and 29 as unpatentable over Hargrave, Landwehr, Nakamura, and
King; and of claims 12 and 27 as unpatentable over Hargrave, Landwehr,
Nakamura, and Ollis.
DECISION
The decision of the Examiner to reject claims 1--4, 7, 8, 10-19, 22, 23,
25-29, 31, 32, and 35 is reversed.
REVERSED
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