Ex Parte Hong et al

Board of Patent Appeals and Interferences

Jan 27, 2011

10675746 (B.P.A.I. Jan. 27, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/675,746 09/30/2003 Brian KwangShik Hong 8008
33376 7590 01/28/2011
KENNETH L. TOLAR
2908 Hessmer Avenue
Metairie, LA 70002
EXAMINER
WONG, ALLEN C
ART UNIT PAPER NUMBER
2482
MAIL DATE DELIVERY MODE
01/28/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BRIAN KWANGSHIK HONG and RAN SOO HONG
____________

Appeal 2009-007290
Application 10/675,746
Technology Center 2400
____________

Before JOHN C. MARTIN, MAHSHID D. SAADAT,
and THOMAS S. HAHN, Administrative Patent Judges.

SAADAT, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304 or for filing a request for rehearing as
recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper
delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode)
shown on the PTOL-90A cover letter attached to this decision.
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Application 10/675,746

2
Appellants appeal under 35 U.S.C. § 134(a) from a Non-Final
Rejection of claims 6-13, which constitute all the claims pending in this
application. Claims 1-5 are cancelled. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part.

STATEMENT OF THE CASE
Appellants’ invention relates to a peripheral viewing and sensing
system for a vehicle, such as an automobile. The system includes a pair of
digital cameras, each positioned on the exterior of the vehicle where a side
view mirror would typically be mounted, and an additional digital camera
mounted on the vehicle roof above the rear window. The driver of the
vehicle can panoramically view trailing traffic by observing video displays
that are associated with each of the cameras and mounted inside the vehicle
passenger compartment. If the driver activates a turn signal for a lane
change, a warning message will be provided within the passenger
compartment if any of one or more phototransistors positioned at the rear of
the vehicle detect another vehicle within a predetermined range of the
vehicle. (See Abstract.) Claims 6 and 9, which are illustrative of the
invention, read as follows:
6. A peripheral viewing system for a vehicle wherein
said vehicle includes two opposing sides, a steering wheel
positioned within a passenger compartment and a rear, the
viewing system comprising:
a pair of cameras, one of said cameras mounted on one of
said sides of the vehicle, another of said cameras mounted on
another of said sides of the vehicle;
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a pair of video displays mounted within said passenger
compartment, and positioned therein to be readily visible by a
driver, each video display in selective communication with a
designated one of said cameras;
a microprocessor means in communication with each of
said cameras and said displays for continuously processing
images received from each of said cameras and for
continuously transmitting said images to each of said displays.
9. The peripheral viewing system according to claim
8 wherein said warning means comprises:
a phototransistor mounted on each side of said vehicle,
adjacent the rear thereof, each of said phototransistors
electrically connected to said microprocessor means;
an audible alarm means electrically connected to said
microprocessor means for audibly alerting a driver if said
phototransistors detect a trailing vehicle within a predetermined
range of said vehicle.
The Examiner relies on the following prior art in rejecting the claims:
Tsuchiya US 5,530,420 Jun. 25, 1996
Shimizu EP 1 065 642 A2 Jan. 3, 2001
Claims 6-8 stand rejected under 35 U.S.C. § 102(b) as anticipated by
Shimizu.
Claims 9-13 stand rejected under 35 U.S.C. § 103(a) as obvious over
Shimizu in view of Tsuchiya.
Rather than repeat the arguments here, we make reference to the Brief
(filed Oct. 10, 2008) and the Answer (mailed Jan. 12, 2009) for the
respective positions of Appellants and the Examiner.2 Only those arguments
actually made by Appellants have been considered in this decision.

2 A previous Appeal Brief (filed Jan. 24, 2008) has not been considered as
the arguments presented therein are obviated by subsequently entered
grounds for rejection.
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Arguments that Appellants did not make in the Brief have not been
considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).

ISSUES
Appellants present substantive arguments for the patentability of
claims 6 and 8-12. Appellants present no substantive arguments for the
patentability of claims 7 and 13, relying on the arguments made for the
claims from which they depend. The issues presented by Appellants’
arguments are:
1. Does Shimizu disclose “a pair of video displays mounted within
said passenger compartment, and positioned therein to be readily visible by a
driver, each video display in selective communication with a designated one
of said cameras,” as recited in claim 6?
2. Does Shimizu disclose “a warning means for alerting a driver
of an approaching vehicle,” as recited in claim 8?
3. Would Shimizu in view of Tsuchiya have made obvious to one
of ordinary skill in the art
a phototransistor mounted on each side of said vehicle,
adjacent the rear thereof, each of said phototransistors
electrically connected to said microprocessor means; [and]
an audible alarm means electrically connected to said
microprocessor means for audibly alerting a driver if said
phototransistors detect a trailing vehicle within a predetermined
range of said vehicle[,]
as recited in claim 9?
4. Would Shimizu in view of Tsuchiya have made obvious to one
of ordinary skill in the art “a turn signal switch means electrically connected
to said microprocessor means for exclusively activating said audible alarm
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means if said trailing vehicle is within the predetermined range of said
vehicle,” as recited in claim 10?

FINDINGS OF FACT (FF)
Shimizu
1. Shimizu discloses cameras 10 mounted at the front left and
front right of a vehicle (Fig. 11; ¶ [0283]) and an information display device
4 having segmented display areas in which the images output from these
cameras are simultaneously displayed (Fig. 12 (2); ¶ [0284]), the
information display device being vertically segmented into a front left image
L and a front right image R (Fig. 12 (2); ¶ [0285]).
2. Shimizu discloses a parking assist ECU 76 that detects an
obstructive object by means of an obstacle sensor, such as a back sonar 17 or
a corner sensor 18, that informs the driver of the presence of the obstructive
object (Figs. 2, 19; ¶ [0295]). Corner sensor 18 utilizes ultrasonic waves to
detect an obstructive object (¶ [0257]).
Tsuchiya
3. Tsuchiya discloses a stereoscopic optical system 10 comprising
CCD cameras 11a, 11b, 12a, 12b (Fig. 4; col. 6, ll. 20-24).
4. Tsuchiya discloses that the CCD cameras 11a, 11b measure
positions within 2-20 meters (col. 6, ll. 35-37) and the CCD cameras 12a,
12b measure positions within 10-100 meters (col. 6, ll. 37-38).
5. Tsuchiya discloses that the CCD cameras 11a, 11b, 12a, 12b are
used to detect the distance from the vehicle 1 to an object such as another
vehicle 300 (Fig. 15).

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PRINCIPLES OF LAW
“The obviousness analysis cannot be confined by a formalistic
conception of the words teaching, suggestion, and motivation, or by
overemphasis on the importance of published articles and the explicit
content of issued patents.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419
(2007). “The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
Id. at 416. “If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability.” Id. at 417. “[T]he 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.” Id. at
418. “A factfinder should be aware, of course, of the distortion caused by
hindsight bias and must be cautious of arguments reliant upon ex post
reasoning. Rigid preventative rules that deny factfinders recourse to
common sense, however, are neither necessary under our case law nor
consistent with it.” Id. at 421 (citation omitted).
[T]he [US]PTO applies to the verbiage of the proposed claims
the broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant’s specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). “Though understanding
the claim language may be aided by the explanations contained in the
written description, it is important not to import into a claim limitations that
are not a part of the claim.” SuperGuide Corp. v. DirecTV Enters., Inc., 358
F.3d 870, 875 (Fed. Cir. 2004).
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ANALYSIS
Claim 6
Appellants contend that Shimizu “does not disclose a pair of displays
but instead a single segmented display for depicting images from the
respective cameras” (Br. 6). Appellants further point to the claimed
invention “combin[ing] the convenience of camera monitoring with the
comfort and familiarity of side view mirrors allowing a driver to observe
trailing vehicles by glancing at the same locations as one would if driving a
vehicle with conventional mirrors” (Br. 6).
The Examiner correctly points out that the claim contains no
limitations relative to positioning the displays to emulate conventional side
view mirrors (Ans. 10). Furthermore, in examining a claim, the Examiner
gives the language of the claim its broadest reasonable interpretation in view
of the specification, see Morris, 127 F.3d at 1054, but may not import
limitations from the specification into the claim, see SuperGuide, 358 F.3d
at 875. Nothing recited in claim 6 requires that the displays be physically
separated from each other or precludes the use of a single physical device
with a partitioned screen for the recited “pair of video displays” as disclosed
by Shimizu (FF 1).
The Examiner’s explanation and findings regarding claim 6 (Ans. 3-5,
9-12) are reasonable and persuasive and we therefore adopt them as our
own. Accordingly, we sustain the rejection of claim 6, as well as claim 7,
not separately argued (Br. 5-7).
Claim 8
Appellants contend that Shimizu’s disclosure of “a device for
detecting the presence of an obstructive objective [sic], [is] not a means for
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alerting a driver of an approaching vehicle, as claimed” (Br. 7-8). The
Examiner responds that an “approaching car,” as recited in claim 8, is an
example of an obstructive object (Ans. 12) that would be detected by
Shimizu’s parking assist ECU (see FF 2), a position to which Appellants did
not respond by filing a Reply Brief. We agree with the Examiner and adopt
the Examiner’s findings as our own. Therefore, we sustain the rejection of
claim 8.
Claim 9
The Examiner concludes that it would have been obvious to one
skilled in the art to combine Shimizu’s parking assist ECU with Tsuchiya’s
vehicle detection means for alerting a driver of an approaching vehicle,
resulting in the invention claimed in claim 9 (Ans. 6-7, 12-17). Appellants
contend that nothing in either Shimizu or Tsuchiya teaches or suggests a
phototransistor mounted on each side of a vehicle, adjacent to the rear of the
vehicle, to detect a trailing vehicle within a predetermined range of the
vehicle (Br. 10). Appellants further argue that the references do not disclose
any suggestion or motivation to make the combination (Br. 9, 11) and that
the Examiner has exercised impermissible hindsight in making the
combination (Br. 11-13).
Shimizu discloses ultrasonic corner sensors 18 to detect obstructive
objects (FF 2). The corner sensors are “mounted on each side of said
vehicle, adjacent the rear thereof,” as recited in claim 9 (see Shimizu Fig. 1).
Consistent with the discussion of claim 8, supra, a trailing vehicle is an
example of an obstructive object that would be detected by such a sensor.
Although Shimizu does not disclose that the corner sensors 18 are
phototransistors , Tsuchiya discloses an optical system with CCD cameras
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(FF 3) used for detecting an obstructive object within a predetermined
distance of a vehicle (FF 4, 5) and that the obstructive object may be another
vehicle (FF 5). Furthermore, the Examiner found that Tsuchiya’s
“photoelectric sensor[] elements 11a, 11 b, 12a and 12b . . . have
photoelectrical components like phototransistors to detect visual data.”
(Ans. 15.) Appellants, who did not file a Reply Brief, have not asserted any
error in this finding.
As found by the Examiner (Ans. 12-13), in view of the overall
teaching value of Shimizu and Tsuchiya, taken as a whole, the use of
photoelectric sensor elements, including phototransistors, to detect the
presence of an obstructive object, such as “a trailing vehicle within a
predetermined range of said vehicle,” as recited in claim 9, would have been
obvious. Furthermore, we find that the selection of the type of photosensor
from among the available options is a selection within the ability of a person
of ordinary skill in the art, see KSR, 550 U.S. at 418. Appellants’ argument
that “[t]he examiner has not presented a convincing line of reasoning as to
why the applicant could readily combine a construction detection means for
calculating positions of nearby objects using triangulation with a parking
assisting device to form the peripheral viewing system according to the
claimed invention” (Br. 11) is unpersuasive because Tsuchiya is being relied
on only for a suggestion of replacing Shimizu’s corner sensor 18, which
employs ultrasonic waves, with an optical corner sensor that employs
phototransistors.
Appellants’ reliance on the asserted absence from the references of a
suggestion or motivation to make the combination is misplaced, see id. at
419. Similarly, we find no impermissible hindsight in the Examiner’s
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reasoning, finding it to be a common sense application of the teaching value
of Shimizu and Tsuchiya, see id. at 421. We find that claim 9 recites a
combination of familiar elements according to known methods that does no
more than yield predictable results, see id. at 416, that can be implemented
by a person of ordinary skill, see id. at 417. Accordingly, we sustain the
rejection of claim 9.
Claim 10
Appellants contend that the Examiner has provided no explanation
directed to the obviousness of the recited limitations of claim 10 (Br. 14).
We agree. In particular the Examiner has provided no explanation regarding
the obviousness of “a turn signal switch means electrically connected to said
microprocessor means for exclusively activating said audible alarm means if
said trailing vehicle is within the predetermined range of said vehicle”
(emphasis added). (See Ans. 7-8, 17-18.) In other words, the Examiner
provides no rationale as to why it would have been obvious to interconnect
the functions of the turn signal switch means and the audible alarm means,
as required by the claim. Accordingly, we do not sustain the rejection of
claim 10 or claims 11-13, dependent thereon.

ORDER
The decision of the Examiner to reject claims 6-9 is affirmed. The
decision of the Examiner to reject claims 10-13 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2010).

AFFIRMED-IN-PART
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KENNETH L. TOLAR
2908 Hessmer Avenue
Metairie, LA 70002