Ex Parte Kettler

Patent Trial and Appeal Board

Jan 6, 2017

12954996 (P.T.A.B. Jan. 6, 2017)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/954,996
111787 7590
LKGlobal (Axalta)
7010 E. Cochise Road
Scottsdale, AZ 85253
11/29/2010
01/10/2017
FIRST NAMED INVENTOR
WILHELM KETTLER
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.
176.0007 (FAl 765USNP) 6644
EXAMINER
MILLER, MICHAEL G
ART UNIT PAPER NUMBER
1712
NOTIFICATION DATE DELIVERY MODE
01/10/2017 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):
docketing@lkglobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILHELM KETTLER
Appeal2016-000295
Application 12/954,996
Technology Center 1700
Before CATHERINE Q. TIMM, DONNA M. PRAISS, and LILAN REN,
Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a rejection2 of
claims 1-10. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The real party in interest is identified as Axalta Coating IP Co., LLC
(Appeal Brief, filed February 11, 2015 ("App. Br."), 1.)
2 Office Action mailed September 11, 2014 ("Act."). Prosecution history
shows that a final rejection and a non-final rejection were previously issued
on December 13, 2013 and March 4, 2013, respectively.
Appeal2016-000295
Application 12/954,996
CLAIMED SUBJECT MATTER
The claims are directed to a method applicable to, for example, "the
instrumentally aided repair of surface coatings defects in body shops[.]"
Spec. 1:9-10.3 Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A method for generating calibrated colour data of a target
using colour measurement instruments distributed in the
network, said method comprising the steps of:
A) generating at least one standard instrument profile for the
colour measurement instruments distributed in the network to
correct photometric and wavelength scale differences, wherein
step A) comprises:
Al) measuring a set of solid reflectance standards at least
two measurement geometry configurations and at each of the
colour measurement instruments distributed in the network to
obtain solid standard reflectance spectra of said solid
reflectance standards, and
A2) generating at least one standard instrument profile for
each of the colour measurement instruments distributed in the
network based on the solid standard reflectance spectra to correct
photometric and wavelength scale differences; and
B) generating at least one geometry instrument profile for the
colour measurement instruments distributed in the network to
correct geometry scale differences, wherein step B) comprises:
B 1) measuring a set of gonioapparent reflectance
standards at least two measurement geometry configurations and
at each of the colour measurement instruments distributed in the
network to obtain gonioapparent standard reflectance spectra,
B2) applying the at least one standard instrument profile
generated in step A) to the gonioapparent standard reflectance
3 Application 12/954,996, Methodfor Generating Calibrated Color Data,
filed November 29, 2010. We refer to the '"996 Specification," which we
cite as "Spec." The '996 Specification, as it was filed, is not paginated. We
therefore provide our own page numbers.
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Appeal2016-000295
Application 12/954,996
spectra obtained in step B 1) to obtain profiled gonioapparent
standard reflectance spectra, and
B3) generating at least one geometry instrument profile
for each of the colour measurement instruments distributed in
the network to correct geometry scale differences based on said
profiled gonioapparent standard reflectance spectra.
(Claims Appendix, App. Br. 12-13 (emphases added).)
REFERENCE
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Dauser DE 10 2008 010 561 Al Sept. 10, 2009
REJECTIONS
Claims 1-10 are rejected under 35 U.S.C. § 101 as directed to an
abstract idea. (Act. 2.)
Claims 1-10 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Dauser. (Act. 3.)
OPINION
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
Subject Matter Eligibility
The Examiner rejects claim 1-10 under 35 U.S.C. § 101 as being
directed to an abstract idea. In particular, the Examiner determines that the
claims "are drawn to the generation and manipulation of mathematical
relationships and formulas, which have been identified in and of themselves
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Application 12/954,996
as a category of abstract idea." (Act. 2.) The Examiner explains that
although claim 1 requires steps such as "measuring" certain data and
"generating" a profile, these steps are "fundamentally the organization of
information through mathematical correlations." (Ans. 3.)4 The Examiner
determines that none of the claims include "any meaning limitations beyond
the general linking [of] the use of the abstract idea to a particular technical
environment" which "in this case [is] automotive painting." (Id. (citation
omitted).)
Appellant, on the other hand, argues that claims 1-10 are directed to
patentable subject matter because they are not directed to a law of nature,
natural phenomenon, or an abstract idea. (App. Br. 8.) Appellant argues
that the claims are instead tied to a specific apparatus and do not preempt a
subject matter other than the particular method using the specific apparatus
recited. (Reply 1; App. Br. 8.)5
Claim 1 recites, among other limitations, a method to "measur[ e] a set
of solid reflectance standards" (e.g., coated panels, ceramic tiles, etc.) for
which a goniospectrophotometer may be used. (Spec. 8:21-27.) These
standards are measured "at each of the colour measurement instruments"
(e.g., "a device to detect light reflected by a target," "multispectral imaging
devices," Spec. 6:3-5, 8:7) as recited in claim 1. Claim 1 goes on to recite
additional limitations such as "measuring a set of gonioapparent reflectance
standards at least two measurement geometry configurations and at each of
the colour measurement instruments."
4 Examiner's Answer mailed July 31, 2015 ("Ans.").
5 Reply Brief filed September 30, 2015 ("Reply").
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Application 12/954,996
Claim 1 therefore requires the use of equipment such as a
goniospectrophotometer and material such as a solid reflectance standard to
carry out at least part of the method. The '996 Specification provides that
claim 1, as a whole, describes a solution to a technological problem for
"correct[ing] measurement results obtained for a tilted measurement
geometry and includes differences in apertures" applicable "in paint
production or colour development environment." (Spec. 7: 8-19.) Because
claim 1 is directed to a specific solution to a technological problem, we find
claim 1 is not directed to an abstract idea. See Diamond v. Diehr, 450 U.S.
175, 187 (1981). As claim 1 is not directed to an abstract idea under the first
step of analysis under Alice Corp. Pty. Ltd. v. CLS Banklnt'l, 134 S. Ct.
2347 (2014), we do not need to proceed to step two of the analysis. See
Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1336, 1339 (Fed. Cir. 2016).
For these reasons, we do not sustain the rejection of claims 1-10
under 35 U.S.C. § 101.
Anticipation6
Appellant argues that Dauser fails to disclose multiple limitations
recited in claim 1 including "standard reflectance spectra," a "standard
instrument profile," and a "geometry instrument profile." (App. Br. 8-11.)
We address each limitation in tum.
Appellant argues that the claim term "standard reflectance spectra" is
defined in the Specification as "those that are 'isotropic' or 'independent on
the viewing angle."' (Reply 1 (citing Spec. 6: 17-23).) Appellant thus
6 Because Appellant does not make separate arguments for claims 2-10 for
the anticipation rejection, these claims stand or fall with claim 1 with respect
to the anticipation rejection. (See App. Br. 9-11.)
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Application 12/954,996
argues that Dauser' s disclosure of "angle-dependent measurements" fails to
anticipate the recited "standard reflectance spectra." (App. Br. 9.)
The '996 Specification defines a "solid reflectance standard" as "a
colour shade with optical property of isotropically reflecting a beam of
collimated or diffuse incident light." (Spec. 6: 17-19.) The '996
Specification goes on to explain that "[ s ]olid reflectance standard can be
coated panels or ... ceramic tiles" having "isotropic reflectance properties."
(Id. at 8:25-26.) That is: "If, e.g., such a colour shade is illuminated by a
collimated beam of light at a constant angle, the level of the reflected light
and with it the colour will be independent on the viewing angle." (Id. at
6: 19-21.) The '996 Specification therefore provides it is the solid
reflectance standards that have "isotropic" optical properties. (See id. 6: 17-
23, 8:25-27.) The '996 Specification further provides that "solid standard
reflectance spectra" are obtained "at all viewing angles." (Id. at 8:28-32
(cited in Reply 1-2).)
Appellant does not explain how the argument that "solid standard
reflectance spectra" are measured independent of viewing angles is
consistent with the disclosure in the '996 Specification that such spectra are
obtained "at all viewing angles." (See Reply 1-2 (citing Spec. 8:28-32).)
Appellant does not dispute the Examiner's finding that the '996
Specification provides only that "solid reflectance standards" have isotropic
properties. (Compare Ans. 4 with Reply 1-2.) No reversible error has been
identified with regard to this claim limitation.
Appellant next argues that the '996 Specification defines the claim
term "standard instrument profile" as "an instrument profile of a color
measurement instrument related to the correction of photometric and
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Application 12/954,996
wavelength scale differences to a primary or reference instrument,"
however, Dauser uses "Gamma, measuring angles" as "the primary basis of
the calculated equation disclosed therein." (App. Br. 9-10.) Appellant
contends that "the interpretation in the Office Action cannot be sustained."
Id.
The Examiner, on the other hand, finds that Dauser discloses
calculations that include an angle-independent measurement BetaO. (Ans.
5.) Other than broadly asserting that "it is impossible to obtain a BetaO
value without performing the angle-dependent" calculation, Appellant does
not present factual evidence explaining why this is the case. (Reply 2.)
"Attorney's argument in a brief cannot take the place of evidence." In re
Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
In addition, Appellant does not dispute the Examiner's finding that
Dauser' s calculations incorporate parameters required for a "standard
instrument profile" as defined by the '996 Specification. (Compare Ans. 5
with Reply 2.) Appellant also does not dispute the Examiner's finding that
Dauser' s calculations are "designed to correctly record the data observed by
the measurement," which would "describe all angle-dependent and all angle-
independent factors." (Compare Ans. 5 with Reply 2.) Appellant therefore
has not identified reversible error with regard to this claim limitation.
Appellant lastly argues that because Dauser discloses a single
regression equation, it cannot anticipate both a "standard instrument profile"
and a "geometry instrument profile" recited in steps A) and B) in claim 1,
respectively. (App. Br. 10.)
Appellant, however, does not respond to the Examiner's reasoning
that claim 1, as it is currently written, does not require steps A) and B) to be
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Application 12/954,996
performed simultaneously. (Compare Ans. 5 with Reply 2.) Appellant also
does not address the Examiner's finding that because Dauser' s regression
equation is applicable to both angle-dependent and angle-independent
measurements, such measurements may be stored for later retrieval.
(Compare Ans. 5 with Reply 2.) Appellant's argument, unsupported by
factual evidence, has not identified reversible error with regard to the
Examiner's analysis of this claim limitation.
Upon careful consideration of Appellant's arguments, we are not
persuaded that the Examiner reversibly erred in finding claim 1 anticipated
by Dauser. The anticipation rejection is therefore sustained.
CONCLUSION
The Examiner's rejection of claims 1-10 under 35 U.S.C. § 101 is not
sustained.
The Examiner's rejection of claims 1-10 under 35 U.S.C. § 102(b) is
sustained.
DECISION
The Examiner's decision is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 ).
AFFIRMED
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