Ex Parte Kaushal

Board of Patent Appeals and Interferences

Sep 23, 2008

10503069 (B.P.A.I. Sep. 23, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte TEJ PAUL KAUSHAL
____________

Appeal 2007-3654
Application 10/503,069
Technology Center 2800
____________

Decided: September 23, 2008
____________

Before KENNETH W. HAIRSTON, JOSEPH F. RUGGIERO, ALLEN R.
MACDONALD, JOHN A. JEFFERY, and KEVIN F. TURNER,
Administrative Patent Judges.

RUGGIERO, Administrative Patent Judge.

ON REQUEST FOR REHEARING

Appellant requests that we reconsider the Panel’s Decision of April
21, 2008 wherein we sustained the Examiner’s 35 U.S.C. § 103(a) rejection
of claims 1, 3-9, and 13 based on the combination of Breed ’453 and Breed
’782, the 35 U.S.C. § 103(a) rejection of claims 2, 10, and 11 based on the
combination of Breed ’453, Breed ’782, and Tanaka, and the 35 U.S.C.
Appeal 2007-3654
Application 10/503,069

§ 103(a) rejection of claim 12 based on the combination of Breed ’453,
Breed ’782 and Kumagai.
We have reconsidered the Panel’s Decision of April 21, 2008 in light
of Appellant’s arguments in the Request for Rehearing, and we find no error
therein. We, therefore, decline to make any changes in the prior Decision
for the reasons which follow.
The following discussion addresses Appellant’s arguments in the
order in which they are enumerated in the Request for Rehearing:

I. The Board Decision provides no evidence to support the
Board’s conclusion that Breed ’453 describes several
“passive” embodiments of a head position sensor.

Appellant contends that the Board erred in their reliance on the
disclosure in the paragraph at column 8, lines 24-34 of Breed ’453 as
providing support for the conclusion that Breed ’453 discloses a passive
sensor system which senses thermal radiation naturally emanating from a
human. According to Appellant (Request 2-4 and 6), the Breed ’453
reference uses the terms “occupant” and “object” to mean completely
different things and, accordingly, the sensing of naturally emanating
radiation from objects in Breed ’453 must be referring to non-human
objects.
We do not find Appellant’s argument to be persuasive. It is apparent
to us from our reading of Breed ’453 that “occupants” are considered to be a
subset of “objects.” If this were not the case, there would be no reason for
Breed ’453 to use the word “other” in the disclosure at column 8, lines 24-26
2
Appeal 2007-3654
Application 10/503,069

which states “identify, locate, and monitor occupants, including their parts,
and other objects in the passenger compartment . . . .” (Emphasis added).
Further, in order to accept Appellant’s position, the suggestion of the
passive sensing embodiments in Breed ’453, such as by turning illumination
sources off, would have to be interpreted as applying to the sensing of
non-human objects only, not human occupants. We simply find no basis in
Breed ’453 to support this interpretation. To the contrary, the only
reasonable interpretation of Breed ’453 would be to conclude that each time
human objects in a vehicle passenger compartment are being sensed, they
are referred to as “occupants.” This is confirmed, for example, by the
discussion at column 36, lines 33-37 of Breed ’453 which states:
[a] further consideration to this invention is to use
the motion of the occupant, as determined from successive
differential arrays, for example, to help identify that there is
in fact a living object occupying the seat, or for other purposes.
(Emphasis added).

We further find to be without merit Appellant’s argument (Request
3-4) that “there is no reference or disclosure suggesting any ‘head position
sensor’ anywhere in the Breed ’453 reference.” We are frankly puzzled by
this statement of Appellant since the Breed ’453 reference is replete with
discussions of occupant head position sensing in relation to an airbag, for
example, at column 11, lines 21-28, column 14, line 43, column 19, lines
29-59, and column 28, lines 6-11. In addition, contrary to Appellant’s
contention, Breed ’453 discloses (e.g., column 19, lines 10-15 and column
28, lines 7-11), as pointed out by the Examiner (Ans. 4), a lens system which
images a seat occupant and the location of an airbag.
3
Appeal 2007-3654
Application 10/503,069

We also find to be unpersuasive Appellant’s argument (Request 6-8)
that the Board erred in their reliance on the disclosure at column 36, lines
27-29 of Breed ’453 to support the conclusion that Breed ’453 provides a
suggestion to use a passive system to sense naturally emanating thermal
radiation from sensed occupants. The true import of this cited portion of the
disclosure of Breed ’453 can only be determined when it is read in the entire
context of the disclosure in which it appears.
The Breed ’453 reference provides a summarization of the previously
discussed various applications and embodiments (“[i]n the applications
discussed and illustrated above …”) which begins at column 34, line 53. In
keeping with the tenor of the disclosure of Breed ’453, the summarization
primarily discusses active sensing systems in which illumination sources are
used to provide electromagnetic radiation to sense the position of objects in
a vehicle such as “the head of the occupant” (column 34, line 67).
It is equally true, however, that, while Breed ’453 undisputedly
focuses primarily on active sensing systems, passive sensing systems, in
which no illumination source is used and which naturally emanating thermal
radiation from objects is sensed, are also suggested. Precisely such a
suggestion appears at the cited portion of Breed ’453 at column 36, lines
27-29 (“[a]nother variant on the invention is to use no illumination source at
all”), as well as a suggestion to use “the entire visible and infrared
spectrum,” which, as discussed in the Panel’s original Decision (Dec. 6),
would encompass the thermal range of the infrared spectrum.

4
Appeal 2007-3654
Application 10/503,069

II. The Board’s Decision misinterpreted Appellant’s statement at
page 8 of the Reply Brief which agrees that Breed ’453 suggests
the possibility of passive infrared sensing.

We find no error in the Panel’s original Decision which, contrary to
Appellant’s present contention, did in fact consider the entirety of the
sentence setting forth Appellant’s qualified admission that Breed ’453
discloses passive infrared measurement. In fact, the Panel’s original
Decision (Dec. 6) clearly recognizes that, while Appellant’s statement at
page 8 of the Reply Brief admits that Breed ’453 suggests the possibility of
passive infrared measurement, Appellant did not agree that the use of
passive thermal infrared detectors is suggested in Breed ’453.
In further point of fact, Appellant’s statement at page 8 of the Reply
Brief led to an attempt at the oral hearing conducted on April 10, 2008 to
determine Appellant’s position with regard to the Examiner’s stated position
that radiation naturally emitted by an object (i.e. without illumination) would
include thermal radiation. As set forth by the Examiner (Ans. 16-17), it
would follow that, since the detector array used to sense naturally emitting
radiation from objects in the passive infrared sensing embodiment of Breed
’453 would necessarily sense thermal radiation, the detectors would
therefore be considered to be thermal infrared detectors. A discussion of this
issue appears in the next section infra.

5
Appeal 2007-3654
Application 10/503,069

III. The Board’s Decision misrepresented Appellant’s response to
the question posed at the oral hearing on April 10, 2008 as to
whether radiation naturally emanating from an object would
necessarily include thermal radiation.

Appellant argues (Request 9-11) that footnote 2 appearing at page 6 of
the Board Decision misinterpreted Appellant’s representative’s answer to the
question “Aren’t there suggestions in Breed ’453 that you could just turn off
the source and use naturally emanating radiation?” We agree that
Appellant’s representative’s affirmative response to this question was a
qualified one with an explanation.1
The important point to note, however, is that this is not the question
that was being referenced at footnote 2 of the Panel’s original decision. The
statement at footnote 2 of the original decision, instead, is referring to the
inquiry posed at the oral hearing “Let me ask you another question now.
The examiner seems to take the position that radiation that naturally
emanates from a body is thermal radiation. Do you agree with that?”2
Appellant’s answer was an unambiguous “Sure. That is the definition of
thermal.”3
As discussed in Section II, supra, this inquiry and response is critical
to the determination as to whether the Panel’s original decision erred in
concluding that the Examiner provided proper basis for the posited
conclusion that Breed ‘453’s disclosure of a infrared detector array in a
passive infrared sensing system that senses naturally emanating radiation
from an object would therefore sense thermal infrared radiation and the

1 Transcript of Oral Hearing, at 3.
2 Id., at 6.
3 Id.
6
Appeal 2007-3654
Application 10/503,069

detectors would be considered to be thermal infrared detectors. Based on the
entirety of the record in this case, including Appellant’s responses as
indicated in the transcript of the oral hearing conducted on April 10, 2008,
we find no error in our finding that the Examiner did not err in the stated
position in the Answer.
As a further attempt to qualify and clarify the stated position on the
record as to whether Breed ’453 discloses passive operation, Appellant
(Request 9-10) directs attention to the discussion in the paragraph at column
36, lines 27-28 of Breed ’453 in which, as Appellant agrees, passive sensing
is disclosed (“[a]nother variant on the invention is to use no illumination
source at all.”). Appellant contends, however, that Breed ’453’s reference in
the succeeding sentence to the use of detector arrays with “very good night
vision capabilities” indicates that thermal radiation of an occupant is not
being sensed.
We simply find no basis in Breed ’453 for this assertion by Appellant.
We find no error in our reference in the Panel’s original Decision to the cited
paragraph at column 36, lines 27-32 of Breed ’453 as supporting the
Examiner’s position as to the suggestion of passive infrared thermal sensing
by Breed ’453. In other words, the use of “no illumination source at all”
suggests passive sensing, as Appellant agrees, with the naturally emanating
radiation from the object being sensed. This naturally emanating radiation
includes thermal sensing, as Appellant also agrees, and as Breed ‘453
additionally confirms (“the entire visible and infrared spectrum will be
used,” column 36, lines 28-29). Further, since “the entire visible and
infrared spectrum” would encompass the thermal infrared radiation
7
Appeal 2007-3654
Application 10/503,069

frequencies, the CMOS arrays used by Breed ’453 must therefore be thermal
infrared detectors.4

IV. The Board’s Decision erred in finding that Breed ’453 discloses
“head position sensing” and misinterpreted Appellant’s
statements in the Reply Brief and Oral Hearing to mistakenly
conclude that Appellant admitted to the possibility that Breed
’453 suggested passive infrared sensing.

Initially, we remain puzzled over Appellant’s insistence that Breed
’453 does not disclose “head position sensing” when, as previously
discussed, the disclosure of Breed ’453 is replete with discussions of
occupant head position sensing, particularly in relation to an airbag, for
example, at column 11, lines 21-28, column 14, line 43, column 19, lines 29-
59, and column 28, lines 6-11. We also refer to our earlier discussion which
found no error, for all the reasons supported by the record in this appeal, that
Appellant admitted that Breed ’453 has at least a suggestion of passive
infrared sensing.
Further, while Appellant does not disagree with our finding (Dec. 6)
that Breed ’782 discloses the use of passive infrared thermal sensing to
detect radiation emanating from the occupant of a vehicle, Appellant
contends that the Panel’s original Decision erred in finding that the detected

4 Appellant uses the reference in Breed ’453 (col. 36, ll. 30-32) to CMOS
arrays with “very good night vision capabilities” as supporting Appellant’s
view that thermal radiation is not being sensed in Breed ’453. Even
accepting Appellant’s unsupported allegation that the low light night time
conditions mentioned in the cited portion of Breed ’453 require low light
amplification for special detection equipment such as night vision goggles,
such does not mean that naturally emanating thermal infrared radiation is
being sensed.
8
Appeal 2007-3654
Application 10/503,069

radiation in Breed ’782 provides an indication of the condition of the
occupant. This contention is also puzzling since, while Appellant contends
that Breed ’782 is merely sensing the temperature of an occupant to
determine whether the occupant is sitting in a vehicle seat, Appellant
nonetheless agrees (Request 12) that occupant temperature is a condition of
the occupant, which is all that is stated in the Panel’s original Decision.
Appellant’s further argument (Request 12) stands in contrast to
Appellant’s previously discussed contention that the Board erred in the
stated finding that Breed ’782 discloses the use of thermal sensing to
determine the condition of an occupant. In this further argument, Appellant
contends that the Panel’s original Decision was in error because of the
absence of a finding that Breed ’782 discloses a detector array and a lens
system for imaging the position of an occupant relative to an airbag by
sensing the position of an occupant’s head relative to an airbag. The
absence of any such finding, however, does not show error in the original
Decision, since, as the record shows, the Examiner relied on Breed ’453, not
Breed ’782, for such a disclosure, a position for which we find clear support.

V. While the Board’s Decision correctly concluded that Breed
’782’s limited teaching of occupant temperature detection using
thermal sensing does not negate the suggestion in Breed ’782 to
use thermal infrared sensing to sense naturally emanating
thermal radiation of a vehicle occupant, the Decision erred in
combing such a suggestion with Breed ’453.

Appellant argues (Request 13) that the Panel’s original Decision erred
in supporting the Examiner’s conclusion of obviousness to the skilled artisan
in combining Breed ’782’s passive infrared thermal sensing teachings with
9
Appeal 2007-3654
Application 10/503,069

the passive infrared head position sensing system of Breed ’453. Appellant
directs attention to the fact that Breed ’782 makes no mention of occupant
head position sensing but, rather, is concerned only with sensing a vehicle
occupant’s body temperature.
It is apparent from a reading of the Panel’s original Decision,
however, that Breed ’782 is not relied upon for a teaching of vehicle
occupant head position sensing since, as previously discussed, such vehicle
occupant head position is discussed in multiple instances in the disclosure of
Breed ’453. (Breed ’453, column 11, lines 21-28, column 14, line 43,
column 19, lines 29-59, and column 28, lines 6-11). As also previously
discussed, other critical features of Appellant’s claimed invention are also
disclosed by Breed ’453 including the suggestion of passive sensing using a
detector array to sense naturally emanating radiation from a vehicle
occupant, which, as established by the record in this appeal, is thermal
radiation. In addition, contrary to Appellant’s contention (Request 14),
Breed ’453 also has a disclosure of a lens system which images a seat
occupant and the location of an airbag. (Breed ’453, column 19, lines 10-15
and column 28, lines 7-11).
Although Appellant’s arguments have not convinced us of any error in
the conclusion reached in the Panel’s original Decision that, since naturally
emanating body radiation includes thermal radiation, the array of infrared
detectors used to sense naturally emanating body radiation in Breed ’453
would be considered to be infrared thermal detectors, the original Decision
recognizes that Breed ’453 makes no explicit mention of the word thermal.
It is for this reason that the Examiner turned to Breed ’782’s explicit
teaching (col. 3, ll. 46-63) of using thermal sensing to passively sense
10
Appeal 2007-3654
Application 10/503,069

naturally emanating radiation from a vehicle occupant. We simply find no
error in the conclusion reached in the original Decision (Dec. 7) that the
collective teachings of Breed ’453 and Breed ’782 establish the obviousness
to the skilled artisan of using infrared thermal detectors to sense naturally
emanating radiation from a vehicle occupant.
Appellant further calls attention (Request 13-14) to the Supreme
Court decision in KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727 which sets
forth the requirement for “articulated reasoning with some rational
underpinning” to support a conclusion of obviousness. The Panel’s original
Decision (Dec. 6) did in fact make reference to precisely such a reasoned
analysis by the Examiner (Ans. 5, 18, and 19) and concluded that Appellant
did not provide any convincing arguments that showed any error in the
Examiner’s reasoning.

CONCLUSION
Based on the foregoing, we have granted Appellant’s request to the
extent that we have reconsidered the Panel’s decision of April 21, 2008, but
we deny the request with respect to making any changes therein.
11
Appeal 2007-3654
Application 10/503,069

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CFR § 1.136(a)(1)(iv).

REHEARING DENIED

eld

NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON VA 22203
12