Ex Parte MaedaDownload PDFPatent Trial and Appeal BoardNov 13, 201713315016 (P.T.A.B. Nov. 13, 2017) Copy Citation 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. 20110068U SO 1/CBS .002A1 7819 EXAMINER SCHWARTZ, RAPHAEL M ART UNIT PAPER NUMBER 2665 MAIL DATE DELIVERY MODE 13/315,016 12/08/2011 144855 7590 11/13/2017 Hollingsworth Davis, LLC 8000 W. 78th Street, Suite 450 Minneapolis, MN 55439 Patrick Yasuo Maeda 11/13/2017 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 PATENT TRIAL AND APPEAL BOARD Ex parte PATRICK YASUO MAEDA Appeal 2017-000001 Application 13/315,016 Technology Center 2600 Before JOSEPH L. DIXON, STEPHEN C. SIU, and CATHERINE SHIANG, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2017-000001 Application 13/315,016 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. The claims are directed to a vehicle occupancy detection using time- of-flight sensor. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method comprising: projecting modulated light onto an occupant from a light source outside of a vehicle; receiving reflections of the light source at a detector located outside of the vehicle, the vehicle moving relative to the light source and the detector; determining three-dimensional data based on a time-of- flight of the reflections; and detecting the occupant using the three-dimensional data. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Aoki et al. US 2008/0048887 A1 Feb. 28, 2008 Wood, Jack W., Gary G. Gimmestad, and David W. Roberts. “Covert camera for screening of vehicle interiors and HOV enforcement.” AeroSense 2003. International Society for Optics and Photonics, 2003. 2 Appeal 2017-000001 Application 13/315,016 Meers, Simon, and Koren Ward. “Face recognition using a time-of- flight camera.” Computer Graphics, Imaging and Visualization, 2009. CGIV'09. Sixth International Conference on IEEE, 2009. Auto focus (Wikipedia: the free encyclopedia, to December 2010) REJECTIONS The Examiner made the following rejections: Claim 20 stands rejected under 35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the Specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. In particular the Specification does not appear to mention “focusing the detector on the occupants using the location of a window.” Rather the Specification, such as in paragraph 0021 simply mentions a window as the point of focus for the detector. Claims 1 and 4—6 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Aoki in view of Wood.1 Claims 2, 3, and 7—19 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Aoki in view of Wood in view of Meers. Claim 20 stands is rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Aoki in view of Wood in view of Autofocus (Wikipedia). 1 We note that the Examiner included the Meers reference in the grounds of rejection for independent claims 7 and 13, but we note the claim scope is similar to independent claim 1. 3 Appeal 2017-000001 Application 13/315,016 ANALYSIS We concur with the conclusions reached by the Examiner, and adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Non-Final Act. 2—13; Ans. 2—15), and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief (Ans. 11—15). We highlight and amplify certain teachings and suggestions of the references, as well as certain ones of Appellant’s arguments as follows. 35 U.S.C. § 112, first paragraph The Examiner maintains “the invention is directed to detecting occupants in a vehicle, but notes that the claim amendments specifically require ‘focusing the detector on the occupants’ for which there is no direct support in the [Specification.” Focusing a camera is a term in the art to denote the activity of selecting an area of focus for an imaging system.” (Ans. 15). Appellant contends that paragraphs 15 and 21 of the Specification evidence written description support for focusing the camera. Appellant further contends: As also shown in Fig. 1, detector 106 is focused on an occupant 112 and receives light reflected from the occupant 105, not the windshield 110. Paragraph [0015] teaches that the sensing arrangement, including detector 106, “is pointed towards a front of the oncoming vehicle 108 (e.g. through windshield 110).” In view of an occupant’s alignment with a vehicle window, paragraph [0021 ] teaches that a separate imaging device may be used to determine an approximate location of windows/windshields of vehicles as a point/area of focus for the 4 Appeal 2017-000001 Application 13/315,016 detector 106. However, as shown in Fig. 1, the detector uses the window location to focus on the occupant, not the window itself. (App. Br. 10; Reply Br. 6—7). We disagree with Appellant and find no disclosure of focusing the camera on the occupant based upon window location. As a result, we sustain the Examiner’s written description rejection of dependent claim 20. 35 U.S.C. § 103(a) Claims 1 and 4—6 With respect to the obviousness rejection of claims 1 and 4—6, Appellant argues the claims together. (App. Br. 5—6; Reply Br. 5—6). As a result, we select independent claim 1 as the representative claim for the group. With respect to representative independent claim 1, Appellant contends that the proposed modification to Aoki would improperly change the principle operation of Aoki's teachings and if the proposed modification would change the principle operation of the prior art being modified, then the teachings of the reference are not sufficient to render the claims prima facie obvious. (App. Br. 5). Appellant further contends that “Aoki teaches that close proximity is needed in order to perform occupant detection, as the detector is located in the vehicle, e.g., rear view mirror, side view mirror, dashboard (Aoki, paragraph [0048]).” (App. Br. 5). We disagree with Appellant and find no express teaching that close proximity is needed in order to perform occupant detection. With respect to the Wood reference, Appellant contends “the proposed modification would also change the principle operation of the teachings of Wood. Wood describes a time-of-flight detector for measuring 5 Appeal 2017-000001 Application 13/315,016 outside dimensions and speed of a vehicle, but explicitly relies on infrared photography to capture occupant images from inside the vehicle” (App. Br. 5). Appellant further contends that the change from conventional photography to time-of-flight based photography “would entirely change the principle operation of Wood’s collection of images from inside a moving vehicle.” (App. Br. 5—6). We disagree with Appellant and find no express requirement of using conventional photography versus time-of-flight photography as proffered by Appellant. Appellant additionally argues that the time-of-flight information in the Wood reference does not produce three- dimensional data, but is a two-dimensional representation of vehicle height. (App. Br. 6). We find Appellant argues the references individually where Autosense is used as a trigger rather than recognition of occupants. (“For the GVOS field demonstration, the illuminator and imager subsystems were triggered by the presence signal from a commercially available, non- intrusive, 1R count/classifier called the Autosense. Schwartz Electro-Optics, Inc. makes the Autosense, ft provided a means of triggering the system,” Wood, p. 417). Appellant attacks the prior art references individually even though the Examiner relied on the combination of the Wood and Aoki references as teaching or suggesting the disputed features. (Non-Final Act. 6—7; Ans. 4— 5). In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)) (“[T]he test [for obviousness] is what the combined teachings of the references would have suggested to those having ordinary skill in the art.”). Consequently Appellant’s argument is not commensurate in scope with the teachings as relied upon by the Examiner in the combination where 6 Appeal 2017-000001 Application 13/315,016 the time-of-flight data would be used for a different function as taught and suggested by the Wood and Aoki references. Appellant further contends: neither of the asserted references has been shown to teach being able to determine three-dimensional data based on time-of-flight of reflections detected outside a vehicle. A skilled artisan would not relocate Aoki’s camera to outside the vehicle where neither reference has been shown to be able to determine three- dimensional data from reflections from an occupant. (App. Br. 6). Appellants further contend that both of the Aoki and Wood references fail to teach three-dimensional data and do not suggest the advantages disclosed in Appellant’s Specification. (App. Br. 6). Again, Appellant argues the individual references and argue advantages not expressly or implicitly found in the language of representative independent claim 1. Therefore, Appellant’s argument does not show error in the Examiner’s factual findings or conclusion of obviousness. Reply Brief Appellant contends: In contrast to the Examiner's contention, neither Wood nor Aoki suggests the proposed modification. Wood explicitly states that “One of the greatest challenges in developing this covert imaging system was capturing clear images of vehicle occupants when viewing vehicles broadside” (Wood, page 412). Wood goes on to describe, in detail, a stroboscopic imaging system developed for capturing images of vehicle occupants. Notably, Wood also utilizes time-of-flight imaging - but not for capturing images of vehicle occupants. Rather, Wood's time-of-flight detection mechanism measures a two-dimensional height profile of each vehicle (Wood, page 417, second paragraph) and does not produce three-dimensional data. Thus, Wood suggests that 7 Appeal 2017-000001 Application 13/315,016 time-of-flight imaging is insufficient to capture images, let alone three-dimensional data, of vehicle occupants from outside the vehicle. Aoki also fails to suggest the proposed modification since Aoki teaches that close proximity is needed in order to perform occupant detection using time-of-flight reflections, as the detector is located in the vehicle, e.g., rear view mirror, side view mirror, dashboard (Aoki, paragraph [0048]). (Reply Br. 5). We find Appellant’s argument is not commensurate with the broad language of “method” independent claim 1. Additionally, Appellant’s argument does not show error in the Examiner’s reliance on a general “substitution” nor does Appellant provide evidence of difficulty in the proposed substitution by the Examiner. Appellant has not identified any specific teaching or suggestion from the Wood reference that “time-of-flight imaging is insufficient to capture images” or that the Aoki reference teaches or suggests “Aoki teaches that close proximity is needed in order to perform occupant detection using time-of-flight reflections.” Id. As a result, Appellant’s arguments do not show error in the Examiner’s findings of fact or conclusion of obviousness. Further, Appellant has not provided persuasive evidence that combining the respective teachings of Aoki and Wood, as proffered by the Examiner, would have been “uniquely challenging or difficult for one of ordinary skill in the art,” or that such a combination would have “represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Nor has Appellant provided any objective evidence of secondary considerations, which our reviewing court guides, “operates as a beneficial 8 Appeal 2017-000001 Application 13/315,016 check on hindsight.” Cheese Systems, Inc. v. Tetra Pak Cheese and Powder Systems, Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013). As a result, Appellant’s arguments do not show error in the Examiner’s findings of fact or conclusion of obviousness of representative independent claim 1, and we sustain the rejection of representative independent claim 1 and dependent claims 4—6 not separately argued. Claim 2, 3, and 7—19 With respect to independent claims 7 and 13, Appellant relies upon the arguments advanced with respect to independent claim 1 and set forth similar arguments including a brief discussion of the Meers reference. (App. Br. 7). Additionally, Appellant contends “[mjodifying Aoki's camera to be located further away from the occupants and to detect reflections from a moving vehicle through the vehicle's windows would entirely change the principle operation of Aoki's, and Meer's, camera and time-of-flight detection.” (App. Br. 8). We disagree with the Appellant and find that Appellant has not identified anything uniquely challenging or difficult for one of ordinary skill in the art in the substitution. Consequently, Appellant’s general argument does not show a change of principle of operation beyond what would have been readily apparent to those of ordinary skill in the art at the time of the invention. With respect to claims 7 and 13, Appellant further sets forth similar arguments as advanced with respect to independent claim 1 that Aoki, Wood, and Meers fail to expressly teach the claimed determining of three- dimensional data based on a time-of-flight of reflections from the exterior of a moving vehicle. (App. Br. 7—9). As discussed above with respect to 9 Appeal 2017-000001 Application 13/315,016 representative claim 1, we find Appellant’s same arguments to be unavailing to the similar claim language of independent claims 7 and 13, and we sustain the rejection of independent claims 7 and 13 and dependent claims 2, 3, 8— 12, and 14—19 not separately argued. Claim 20 With respect to dependent claim 20, Appellant contends: [T]he claim is directed to determining a location of a window of the vehicle using an intensity imaging device and focusing the detector on the occupants using the location of the window. The Examiner acknowledges that Aoki and Wood do not disclose determining the location of a window and focusing the detector using the location. While Autofocus describes determining the location of an object, it describes focusing the device that determined the location (e.g., the camera containing the autofocus optical system). In contrast, the claims recite that an intensity imaging device determines the location and that location is used to focus the detector. Autofocus has not been shown to teach that the autofocus function is used to focus another device, as claimed. Moreover, the asserted combination has not been shown to teach that the detector would be focused on the occupants, and not the object that’s location was determined - the window. (App. Br. 9-10) The Examiner maintains: The prior art does not expressly disclose the vehicle occupants are the subject of the autofocus. However, examiner notes that both the concept and advantage of using a landmark (window) to focus on an intended subject (passenger), both of which share the same location in an image, would have been obvious to incorporate with predictable result and without undue 10 Appeal 2017-000001 Application 13/315,016 experimentation. Official Notice is applied here. One of ordinary skill in the art could have combined the elements in the manner explained above using known engineering design without changing a "fundamental" operating principle of the above combination. (Ans. 10). We agree with the Examiner. Additionally, we note that Appellant does not respond in the Reply Brief to the Examiner’s further clarifications and reliance upon Autofocus (Wikipedia) and Official Notice. As a result, we accept the Examiner’s reasonable explanation of the use of the multiple systems to trigger and focus an imaging detector, and we sustain the Examiner’s obviousness rejection of dependent claim 20. CONCLUSIONS The Examiner did not err in rejecting claim 20 based upon a lack of written description support, and the Examiner did not err in rejecting claims 1—20 based upon obviousness. DECISION For the above reasons, we sustain the Examiner’s rejection of claim 20 based upon a lack of written description support under 35 U.S.C. § 112, first paragraph, and we sustain the Examiner’s obviousness rejection of claims 1—20 based upon 35 U.S.C. § 103. 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 11 Copy with citationCopy as parenthetical citation