Ex Parte Kaushal

Board of Patent Appeals and Interferences

Apr 21, 2008

10503069 (B.P.A.I. Apr. 21, 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: April 21, 2008
____________

Before JOSEPH F. RUGGIERO, JOHN A. JEFFERY, and KEVIN F.
TURNER, Administrative Patent Judges.

RUGGIERO, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Final Rejection of
claims 1-13. We have jurisdiction under 35 U.S.C. § 6(b). An Oral Hearing
was conducted on this appeal on April 10, 2008.
We affirm.
Appeal 2007-3654
Application 10/503,069

Appellant’s claimed invention relates to a method and apparatus for
sensing the position of a vehicle driver’s head to control the deployment of
vehicle safety airbags. A thermal image of a driver is provided by an array
of thermal imaging detectors which detect the position of the driver’s head
in relation to the airbags. Movement of the driver’s head toward the airbags
is measured and used to control the amount of airbag deployment.
(Specification 3-4).
Claim 1 is illustrative of the invention and reads as follows:
1. A passive head position sensor for use in a vehicle in conjunction
with controls for deployment of safety restraint airbags, comprising:
an array of thermal infra red detectors,
a lens system for imaging a seat occupant and a location of at least
one airbag, and
a processor for determining the existence of an occupant in a seat and
the position of the occupants head relative to at least one airbag from a
thermal image from the array.
The Examiner relies on the following prior art references to show
unpatentability:
Kumagai US 5,572,595 Nov. 05, 1996
Breed US 5,829,782 Nov. 03, 1998
Tanaka US 6,027,138 Feb. 22, 2000
Breed US 6,324,453 B1 Nov. 27, 2001

Claims 1, 3-9, and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Breed ’453 in view of Breed ’782.
2
Appeal 2007-3654
Application 10/503,069

Claims 2, 10, and 11 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Breed ’453 in view of Breed ’782 and further in view of
Tanaka.
Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Breed ’453 in view of Breed ’782 and further in view of
Kumagai.
Rather than reiterate the arguments of Appellant and the Examiner,
reference is made to the Briefs and Answer for the respective details. Only
those arguments actually made by Appellant have been considered in this
decision. Arguments which Appellant could have made but chose not to
make in the Briefs have not been considered and are deemed to be waived
[see 37 C.F.R. § 41.37(c)(1)(vii)].

ISSUES
(i) Under 35 U.S.C. § 103(a), with respect to appealed claims 1, 3-9,
and 13, would one of ordinary skill in the art at the time of the invention
have found it obvious to combine Breed ’453 and Breed ’782 to render the
claimed invention unpatentable?
(ii) Under 35 U.S.C. § 103(a), with respect to appealed claims 2, 10,
and 11, would one of ordinary skill in the art at the time of the invention
have found it obvious to modify the combination of Breed ’453 and Breed
’782 by adding the teachings of Tanaka to render the claimed invention
unpatentable?
(iii) Under 35 U.S.C. § 103(a), with respect to appealed claim 12,
would one of ordinary skill in the art at the time of the invention have found
it obvious to modify the combination of Breed ’453 and Breed ’782 by
3
Appeal 2007-3654
Application 10/503,069

adding the teachings of Kumagai to render the claimed invention
unpatentable?
PRINCIPLES OF LAW
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). “[T]he examiner bears
the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). Furthermore, “‘there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness’ . . . [H]owever, the 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.” KSR Int’l Co. v. Teleflex Inc., 127
S. Ct. 1727, 1741 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)).

ANALYSIS
With respect to the Examiner’s 35 U.S.C. § 103(a) rejection of
appealed independent claims 1 and 8 based on the combination of Breed
’453 and Breed ’782, Appellant’s arguments assert a failure to set forth a
prima facie case of obviousness since the claimed limitations are not taught
or suggested by the applied prior art references. Appellant’s arguments
initially focus on the contention that, in contrast to the claimed invention, the
4
Appeal 2007-3654
Application 10/503,069

system of Breed ’453 has no disclosure of a “passive” head position sensor.
According to Appellant (App. Br. 13), the head position sensing system of
Breed ’453 is primarily an active system in which reflected radiation from
an illuminated object is focused on an array of detectors.
We do not find Appellant’s arguments to be persuasive. As pointed
out by the Examiner (Ans. 15-16), the disclosure of Breed ’453 describes
several “passive” embodiments of a head position sensor in which no
illuminating radiation source is used but, rather, naturally emanating
radiation from an object is sensed utilizing an array of detectors. (Breed
’453, col. 8, ll. 31-34, col. 12, l. 62-col. 13, l.16, col. 21, ll. 26-30, and col.
36, ll. 27-29). It is apparent to us that, although the Examiner has turned to
Breed ’782 for a teaching of passive infrared imaging, the existing teachings
of Breed ’453 provide for such passive infrared imaging.1
With respect to Appellant’s further contention (App. Br. 15-16; Reply
Br. 8) that Breed ’453 does not provide for “thermal” infrared sensing, we
agree with the Examiner (Ans. 16-17) that any sensed, naturally emanating
radiation from an object, such as occurs in Breed ’453, would necessarily
encompass thermal infrared radiation. Accordingly, we find no error in the
Examiner’s conclusion (id.) that the sensing arrays in Breed ’453, which
function to sense the naturally emanating radiation from an object, would be
recognized as thermal infrared detectors.2 It is also noteworthy that Breed

1 Appellant’s remarks (Reply Br. 8) admit that Breed ’453 “suggests the
possibility of passive infrared measurement….”
2 At the Oral Hearing conducted on April 10, 2008, Appellant’s
representative provided an affirmative response to the question of whether
naturally emanating radiation from an object would include thermal
radiation.
5
Appeal 2007-3654
Application 10/503,069

’453 (col. 36, ll. 37-31), in discussing a passive sensing embodiment (“…use
no illumination source at all”), discloses using sensing arrays which detect
“the entire visible and infrared spectrum,” thereby encompassing the thermal
range of the infrared spectrum.
We recognize that Appellant (Reply Br. 8), while admitting to at least
the possibility of Breed ’453 suggesting passive infrared sensing, has taken
the position that Breed ’453 does not disclose “thermal” infrared array
sensing as claimed. Aside from our previously discussed conclusion that
Breed ’453’s sensing of naturally emanating radiation would necessarily
include thermal sensing, we further find in Breed ’782 (col. 3, ll. 46-63) an
unambiguous teaching of using passive infrared “thermal” sensing to detect
radiation emanating from the occupant of a vehicle and thereby provide an
indication of a condition of the occupant.
While Appellant contends (Reply Br. 8) that Breed ’782’s teaching of
thermal sensing is limited to temperature detection for climate control
purposes, this in no way negates Breed ’782’s suggestion of using thermal
infrared sensing to detect naturally emanating thermal radiation of a vehicle
occupant. In our view, to whatever extent Breed ’453 lacks an explicit
disclosure of using “thermal” sensing to detect naturally emanating radiation
in the described passive infrared head position sensor system, this teaching
is unambiguously provided by Breed ’782. We also find, Appellant’s
arguments (App. Br. 17-18; Reply Br. 9) to the contrary notwithstanding,
that the Examiner has provided (Ans. 5, 18, and 19) an articulated line of
reasoning establishing a proper basis for the proposed combination of
references.
6
Appeal 2007-3654
Application 10/503,069

In view of the above discussion, it is our opinion that the collective
teachings of the Breed ’453 and Breed ’782 references establish a prima
facie case of obviousness which has not been overcome by any convincing
arguments from Appellant. “The combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” Leapfrog Enter., Inc. v. Fisher-Price, Inc.,
485 F.3d 1157, 1161 (Fed. Cir. 2007) (quoting KSR, 127 S. Ct. at 1739).
“One of the ways in which a patent's subject matter can be proved obvious is
by noting that there existed at the time of invention a known problem for
which there was an obvious solution encompassed by the patent’s claims.”
KSR, 127 S. Ct. at 1742. Accordingly, the Examiner’s 35 U.S.C. § 103(a)
rejection of independent claims 1 and 8, as well as dependent claims 3-7, 9,
and 13 not separately argued by Appellant, is sustained.
Turning to a consideration of the Examiner’s 35 U.S.C. § 103(a)
rejections of dependent claims 2, 10, and 11 in which the Tanaka reference
has been added to the combination of Breed ’453 and Breed ’782, and
dependent claim 12 in which the Kumagai reference has been added to the
combination of Breed ’453 and Breed ’782, to address, respectively, the
body mass and three dimension sensing features of these claims, we sustain
these rejections as well. Appellant has made no separate arguments as to the
patentability of these claims and instead has relied upon the previous
arguments attacking the Examiner’s proposed combination of Breed ’453
and Breed ’782, which arguments we found to be unpersuasive as discussed
supra.

7
Appeal 2007-3654
Application 10/503,069

CONCLUSION
In summary, we have sustained the Examiner’s 35 U.S.C. § 103(a)
rejections of all of the claims on appeal. Therefore, the decision of the
Examiner rejecting claims 1-13 is affirmed.
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) (2006).

AFFIRMED

gvw

NIXON & VANDERHYE, PC
901 NORTH GLEDBE ROAD
11TH FLOOR
ARLINGTON, VA 22203
8