Ex Parte Homma et al

Patent Trial and Appeal Board

Sep 7, 2016

13320506 (P.T.A.B. Sep. 7, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/320,506 11/14/2011
20151 7590 09/09/2016
HENRY M FEIEREISEN, LLC
HENRY M FEIEREISEN
708 THIRD A VENUE
SUITE 1501
NEW YORK, NY 10017
FIRST NAMED INVENTOR
Christian Homma
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.
HOMMA 9113
EXAMINER
ZHOU, ZHIHAN
ART UNIT PAPER NUMBER
2482
NOTIFICATION DATE DELIVERY MODE
09/09/2016 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):
INFO@FEIEREISENLLC.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTIAN HOMMA and MAX ROTHENFUSSER
Appeal2015-002700
Application 13/320,506
Technology Center 2400
Before ALLEN R. MacDONALD, JOHN P. PINKERTON, and
GARTH D. BAER, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2015-002700
Application 13/320,506
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from an Examiner's Final
Rejection of claims 14--18, 21-23, 26-28, 30, 31, and 33. Claims 1-13, 19,
20, 24, 25, 29, and 32 have been cancelled. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
Exemplary Claim
Exemplary claim 14 under appeal reads as follows (emphasis added):
14. An apparatus for capturing thermal images of an
object, comprising:
an excitation unit producing mechanical excitation
of the object using a periodic excitation signal;
a camera capturing the thermal images of the
object with each thermal image having a plurality of
pixels respectively representing heat signals captured
from the object; and
means for matching the capturing of the thermal
images of the object to the periodic excitation signal such
that a set of the thermal images captured in multiple
periods of the periodic excitation signal contain
information regarding the heat signals, respectively
represented by the pixels, over a period of time, wherein
the means for matching the capturing of the
thermal images of the object to the periodic excitation
signal includes a pulse transmitter unit generating
sampling pulses and the camera and the pulse
transmitter unit are coupled together so that capturing
one of the thermal images is triggered by one of the
sampling pulses, and
the pulse transmitter unit generates the sampling
pulses with a continuously increasing delay relative to
the excitation signal.
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Application 13/320,506
Rejection on Appeal
The Examiner rejected claims 14--18, 21-23, 26-28, 30, 31, and 33
under 35 U.S.C. § 103(a) as being unpatentable over the combination of J.
Rantala et al., (Amplitude-Modulated Lock-In Vibrothermography for NDE
of Polymers and Composites, Research in Nondestructive Evaluation 7 :215-
28 (1996)) ("Rantala"), Thomas (US 5,287,183; Feb. 15, 1994), and Keating
III (US 2008/0012850 Al; Jan. 17, 2008) ("Keating-III"). 1
Appellants' Contentions
1. Appellants contend that the Examiner erred in rejecting claim 14
under 35 U.S.C. § 103(a) because:
In the final Office Action, the Examiner acknowledges
that Rantala fails to disclose the claimed features of the means
for matching the capturing of the thermal images of the object to
the periodic excitation signal including a pulse transmitter unit
generating sampling pulses and the camera and the pulse
transmitter unit being coupled together so that capturing one of
the thermal images is triggered by one of the sampling pulses.
The Examiner attempts to make up for these deficiencies in
Rantala with Thomas and points to col. 6, lines 24-44 and 49-51,
col. 7, lines 45-65, and col. 10, lines 32-44 and 45-56. However,
this is submitted to be incorrect, as none of these portions of
Thomas, nor any of the remaining portions, disclose a pulse
transmitter unit that generates sampling pulses and that is
coupled to the camera so that capturing one of the thermal
images is triggered by one of the sampling pulses.
According to claim 14, the generation of a sampling pulse
by the pulse transmitter triggers the camera to capture a thermal
1 The patentability of claims 15-18, 21-23, 26-28, 30, 31, and 33 is not
separately argued from that of claim 14. See Appeal Br. 11-13. Except for
our ultimate decision, claims 15-18, 21-23, 26-28, 30, 31, and 33 are not
discussed further herein.
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Application 13/320,506
image. In Thomas, the only part that can be said to correspond
to the claimed pulse transmitter is the stimulus control means 18
(see Fig. 1). However, according to Thomas, the stimulus
control means 18 does not generate pulses that trigger the
camera to capture thermal images, but instead includes a
stimulus means 20 to pulse stimulate the object field 12.
In the final Office Action, the Examiner acknowledges
that Rantala fails to disclose the claimed features of the pulse
transmitter unit generating the sampling pulses with a
continuously increasing delay relative to the excitation signal.
The Examiner attempts to make up for these deficiencies in
Rantala with Thomas and Keating and points to col. 9, line 63
through col. 10, line 5 of Thomas and paragraphs [0108], [0114],
and [0117] of Keating. However, this is submitted to be
incorrect, as neither these portions of Thomas and Keating, nor
any of the remaining portions disclose the pulse transmitter
unit generating the sampling pulses with a continuously
increasing delay relative to the excitation signal.
To begin with, it is noted that the Examiner has failed to
indicate the signal in both Thomas and Keating that supposedly
corresponds to the claimed excitation signal, such that it
cannot be said that either of these references disclose
generating the sampling pulses with a continuously increasing
delay relative to the excitation signal. Nevertheless, there is no
signal disclosed in Thomas or Keating that is used as a base
from which the sampling pulses are varied with respect to. In
Keating, it is merely disclosed that more than one source of
optical pulses can be used to emit pulses of varying frequencies
and time offsets, resulting in pulses of varying frequencies
arriving at the optical mixer at different times. However,
providing more than one source of optical pulses that emit
pulses of varying frequencies that arrive at an optical mixer at
different times does not correspond to the claimed feature of
generating the sampling pulses with a continuously increasing
delay relative to an excitation signal.
Appeal Br. 11-12, Appellants' emphasis omitted, panel's emphasis added.
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Application 13/320,506
2. In the Reply Brief~ further as to above contention 1, Appellants also
contend that the Examiner erred in rejecting claim 14 under
35 U.S.C. § 103(a) because:
The Examiner acknowledges that Rantala fails to disclose
matching the capturing of the thermal images of the object to the
periodic excitation signal including a pulse transmitter unit
generating sampling pulses and the camera and the pulse
transmitter unit being coupled together so that capturing one of
the thermal images is triggered by one of the sampling pulses,
but attempts to make up for these deficiencies in Rantala with
Thomas and points to col. 6, lines 24-44 and 49-51, col. 7, lines
45-65, and col. 10, lines 32-44 and 45-56.
The Examiner also acknowledges that Rantala fails to
disclose the claimed features of the pulse transmitter unit
generating the sampling pulses with a continuously increasing
delay relative to the excitation signal. The Examiner attempts to
make up for these deficiencies in Rantala with Thomas and
Keating and points to col. 9, line 63 through col. 10, line 5 of
Thomas and paragraphs [0108], [0114], and [0117] of Keating.
However, these assertions are submitted to be incorrect, as
one of ordinary skill in the art would not have been motivated
for any reason to modify the lock-in thermography
nondestructive testing method of Rantala and the synchronous
imaging system of Thomas with the imaging system of Keating.
More specifically, the delay of the optical pulses by a succession
of increasing time intervals relative to the optical pulses results
in capturing a succession of different "slices" of the desired
object, i.e. reflections with selected spatial distances from the
pulsed optical source. However, according to claim 14, for
example, the purpose of continuously increasing the delay is to
gather information regarding the heat signals over a period of
time, not over a spatial range.
Reply Br. 4, Appellants' emphasis omitted, panel's emphasis added.
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Appeal2015-002700
Application 13/320,506
Issue on Appeal
Did the Examiner err in rejecting claim 14 as being obvious?
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner has erred. We disagree with Appellants'
conclusions. Except as noted herein, we adopt as our own: (1) the findings
and reasons set forth by the Examiner in the action from which the appeal is
taken (Final Act. 2-12); and, (2) the reasons set forth by the Examiner in the
Examiner's Answer (Ans. 2-14) in response to Appellants' Appeal Brief.
We concur with the conclusions reached by the Examiner. We highlight the
following.
As to Appellants' above contention 1, we are not persuaded the
Examiner erred. We disagree with Appellants' argument that the
combination of cited references fails to teach or suggest the claimed "pulse
transmitter unit." See Appeal Br. 11-12. Instead, we agree with the
Examiner that Thomas teaches a stimulus control means for producing a
reference signal indicating an occurrence of a synchronizing pulse (or series
of synchronizing pulses) representing a periodicity of an object field, and
further teaches a time delay generation means for triggering a camera at an
appropriate phase or time delay from the reference signal. Ans. 9-10 (citing
Thomas col. 6, 11. 24--44, 49-51; col. 7, 11. 56-65; and col. 10, 11. 32--4456;
Fig. 1 ). As Thomas teaches that the time delay generation means triggers
the camera based on a base excitation signal that includes a pulse (or series
of pulses) we agree with the Examiner that the combination of cited
references teaches or suggests "a pulse transmitter unit generating sampling
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Application 13/320,506
pulses and the camera and the pulse transmitter unit are coupled together so
that capturing one of the thermal images is triggered by one of the sampling
pulses," as recited in claim 14.
We also disagree with Appellants' argument that the combination of
cited references fails to teach or suggest that the pulse transmitter unit
generates the sampling pulses "with a continuously increasing delay relative
to the excitation signal." See Appeal Br. 12. Instead, we agree with the
following findings, as found by the Examiner: (a) Rantala teaches an
excitation signal (Ans. 11 (citing Rantala 217-18)); (b) Thomas teaches a
reference signal indicating an occurrence of a synchronizing pulse
representing a periodicity of an object field, where the reference signal is
used as a base signal to determine a delay (Ans. 11 (citing Thomas col. 9,
1. 54- col. 10, 1. 5)); (c) Keating-III teaches an excitation signal via an
optical pulse (Ans. 12 (citing Keating-III i-fi-f 107-108)); and, (d) Keating-III
teaches increasing delays of one set of optical pulses relative to another set
of optical pulses in which the delays are relative to the original set of optical
pulses (Ans. 12 (citing Keating-III i-fi-f 108, 114, 117)). As Keating-III
teaches generating pulses with a continuously increasing delay relative to an
original pulse (i.e., excitation signal), and as Thomas teaches a pulse
transmitting unit for the reasons previously described above, we agree with
the Examiner that the combination of cited references teaches or suggests
"the pulse transmitter unit generates the sampling pulses with a continuously
increasing delay relative to the excitation signal," as recited in claim 14.
As to Appellants' above contention 2, we decline to consider an
argument raised for the first time in the Reply Brief. This argument was first
set forth in the Reply Brief, and is neither related to the argument in the
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Application 13/320,506
Appeal Brief (i.e., Appellants' contention 1) nor responsive to the
Examiner's Answer. Thus, as the Examiner has not been provided a chance
to respond, and in the absence of a showing of good cause by Appellants,
this argument is deemed waived. See 37 C.F.R. § 41.41(b)(2):
Any argument raised in the reply brief which was not raised in
the appeal brief, or is not responsive to an argument raised in the
examiner's answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of the
present appeal, unless good cause is shown.
Appellants have provided this record with no such showing. Accordingly,
we will not consider this new argument in the Reply Brief. 2
Accordingly, we sustain the rejection of claim 14.
CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 14--18, 21-23, 26-
28, 30, 31, and 33 as being unpatentable under 35 U.S.C. § 103(a).
(2) Claims 14--18, 21-23, 26-28, 30, 31, and 33 are not patentable.
DECISION
We affirm the Examiner's rejections of claims 14--18, 21-23, 26-28,
30, 31, and 33 as being unpatentable under 35 U.S.C. § 103(a).
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
2 Assuming arguendo that Appellants had provided the required showing,
we would not find this argument persuasive because the argument is not
commensurate with the scope of the claim, as claim 14 does not recite or
require that the sampling pulses are generated with a continuously increasing
delay for the purpose of gathering information over a period of time.
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