Ex Parte Raulerson et al

Patent Trial and Appeal Board

Aug 21, 2018

12844026 (P.T.A.B. Aug. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/844,026 07/27/2010 David A. Raulerson
54549 7590 08/23/2018
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
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.
67097-1346PUSl;PA12918U 7298
EXAMINER
KIM, CHRISTINE SUNG
ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
08/23/2018 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):
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID A. RAULERSON, KEVIN D. SMITH,
and ZHONG OUY ANG
Appeal2018-001602
Application 12/844,026
Technology Center 2800
Before JOHN A. JEFFERY, BRADLEY W. BAUMEISTER, and
DENISE M. POTHIER, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
This application returns to us after we affirmed the Examiner's
decision to reject then-pending claims 1-12, 19, and 20. Ex parte
Raulerson, No. 2013-010174 (PTAB Jan. 11, 2016) ("Bd. Dec'n").
Prosecution reopened after that decision, and Appellants now appeal under
35 U.S.C. § 134(a) from the Examiner's subsequent rejection of claims 1, 3-
6, and 19. 1,2 We have jurisdiction under 35 U.S.C. § 6(b ). We affirm.
1 Appellants identify the real party in interest as United Technologies Corp.
App. Br. 1.
2 Claims 2, 7-18, and 20 have been canceled. Advisory Act. mailed Jan. 30,
2017, at 1 (Boxes 7 and 15).
Appeal2018-001602
Application 12/844,026
STATEMENT OF THE CASE
Appellants' invention is a thermal imaging device with an infrared
(IR) sensor, controller, and flash source, the latter being an array of IR light-
emitting diodes (LEDs) arranged in a substantially cylindrical component.
See generally Abstract; Spec. ,r 4. Claim 1 is illustrative:
1. A thermal imaging device comprising:
an LED flash array having a first opening in a substantially cylindrical
component of said LED flash array and a second opening in a substantially
cup shaped component of said LED flash array, wherein said second
opening has a larger circumference than said first opening, the LED
flash array including a housing body having a plurality of LED sockets, and
an LED installed in each of said LED sockets, each of said LED sockets is
arranged such that each installed LED shares a single focal point, the single
focal point being a single point through which light from each LED in the
LED flash array passes;
a sensor capable of detecting IR radiation; and
a controller coupled to said LED flash array and said sensor, said
controller capable of causing said LED flash array to emit a pulse of
radiation, such that said sensor detects IR radiation radiated off an object in
front of said thermal imaging device.
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Application 12/844,026
THE REJECTION
The Examiner rejected claims 1, 3---6, and 19 under 35 U.S.C. § 103 as
unpatentable over Arnold (US 4,893,223; issued Jan. 9, 1990) and Parani
(US 6,944,323 Bl; issued Sept. 13, 2005). Ans. 3-5. 3
FINDINGS AND CONTENTIONS
Regarding independent claim 1, the Examiner finds that Arnold
discloses, among other things, an LED flash array with LEDs 32 installed in
sockets ( apertures 3 6) arranged such that each LED shares a single focal
point through which light from each LED passes. Ans. 3--4. Although the
Examiner acknowledges that Arnold's LED flash array does not have a first
opening in a substantially cylindrical component, the Examiner cites Parani
for teaching this feature in concluding that the claim would have been
obvious. Ans. 4.
Appellants argue that Arnold and Parani are directed to visual
inspection that differs from thermal imaging in the claimed invention. App.
Br. 3--4; Reply Br. 1-3. According to Appellants, Arnold's arrayed LEDs
do not share a single focal point, but rather are focused on a restricted field
of view; nor is Parani said to cure that deficiency. App. Br. 3--4; Reply Br.
1-3. According to Appellants, the Examiner improperly conflates a zone
associated with Arnold's restricted field of view with a single point, as
claimed. App. Br. 3--4; Reply Br. 1-2.
3 Throughout this opinion, we refer to (1) the Appeal Brief filed May 26,
2017 ("App. Br."); (2) the Examiner's Answer mailed October 5, 2017
("Ans."); and (3) the Reply Brief filed December 4, 2017 ("Reply Br.").
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Application 12/844,026
ISSUE
Under§ 103, has the Examiner erred in rejecting claim 1 by finding
that Arnold and Parani collectively would have taught or suggested a
thermal imaging device with an LED flash array with LEDs installed in each
socket arranged such that each LED shares a single focal point through
which light from each LED passes?
ANALYSIS
Claims 1, 6, and 19
We begin by noting that the obviousness rejection in this appeal
involves the same references that were used to reject then-pending claim 1 in
the earlier appeal, namely Arnold and Parani-an obviousness rejection that
we affirmed. See Bd. Dec'n 2-9.
Claim 1, however, is now narrower than its earlier version that was
before us in the earlier appeal, namely by adding limitations reciting LEDs
installed in each socket of a housing body, where each socket is arranged
such that each LED shares a single focal point through which light from
each LED passes ("the single focal point limitation"). This aspect of the
claimed invention is now the principal basis of the dispute in this appeal.
Turning to the rejection, we see no error in the Examiner's reliance on
Arnold's column 2, lines 13 to 18 for at least suggesting the single focal
point limitation despite Appellants' arguments to the contrary. See Ans. 3.
In that passage, Arnold explains that LEDs may all be operated together to
focus upon the restricted field of view. Arnold, col. 2, 11. 15-16. Our
emphasis on the term "focus" underscores that, as is known in the art,
focusing converges rays to a point. See THE WORDSWORTH DICTIONARY OF
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Application 12/844,026
SCIENCE & TECHNOLOGY 357 (1995) (defining "focus," in pertinent part, as
"[a] point to which rays converge after having passed through an optical
system .... ") ( emphasis added); see also id. ( defining "focusing," in
pertinent part, as "[t]he convergence to a point of (a) beams of
electromagnetic radiation, (b) charged particle beams, ( c) sound or ultrasonic
beams") ( emphasis added).
Another scientific dictionary defines the term "focus" similarly, albeit
more broadly to also include a small region. See McGRAW-HILL
DICTIONARY OF SCIENTIFIC & TECHNICAL TERMS 786 (5th ed. 1994 Sybil P.
Parker ed.) ("McGraw-Hill Dictionary") ( defining "focus," in pertinent part,
as "[t]he point or small region at which rays converge or from which they
appear to diverge") ( emphasis added).
In light of these definitions, we see no error in the Examiner's reliance
on Arnold's focusing upon the restricted field of view in column 2, lines 15
and 16 for at least suggesting focusing the LEDs to a point such that each
LED shares a single focal point. We reach this conclusion even assuming,
without deciding, that Arnold's focusing upon a restricted field of view is
limited to focusing on a small region, such as that shown in restricted field
of view 24 in the detail view of Arnold's Figure 3 reproduced below.
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Application 12/844,026
22
24~. -----
Detail view of Arnold's Figure 3 showing restricted field of view 24
As shown above, the restricted field of view 24 is much smaller than
its associated structure, but is apparently not limited to a single point
(despite Arnold not so indicating). Nevertheless, the fact that Arnold's
LEDs are focused on that restricted field of view, such that light converges
towards that field (see Arnold col. 1, 11. 55-58; col. 2, 11. 15-16; col. 4, 11. 3-
6), at least suggests that focusing each LED to converge to the same point
within that field would have been at least an obvious variation within the
level of ordinarily skilled artisans. To the extent that Appellants contend
otherwise, or that that such convergence would have been uniquely
challenging or otherwise beyond the level of ordinarily skilled artisans, the
record contains no persuasive evidence to prove such a contention. See
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007).
So even assuming, without deciding, that Arnold's LEDs do not share
a single focal point, but rather have multiple focal points within the
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Application 12/844,026
restricted field of view as Appellants content (Reply Br. 2}-a speculative
theory that has not been substantiated on this record-Appellant still has not
shown that focusing each LED to converge to the same point within that
field would have been beyond the level of ordinarily skilled artisans. Rather,
the record before us supports the notion that such a convergence would have
been at least an obvious variation. That focusing is defined alternatively as
converging radiant energy either to a point or small region, as noted
previously, only underscores that each form of convergence would have
been an obvious variation of the other. See McGraw-Hill Dictionary at 786
( defining "focus," in pertinent part, as "[ t ]he point or small region at which
rays converge or from which they appear to diverge") ( emphasis added).
Nor are we persuaded of error in the Examiner's reliance on the
teachings of Arnold and Parani in rejecting claim 1 even assuming, without
deciding, that both references are limited to visual inspection and not
thermal imaging as Appellants contend. See App. Br. 3. To be sure, we
affirmed the Examiner's obviousness rejection of claim 1 in the earlier
appeal based on these very references-a claim that likewise recited thermal
imaging. See Bd. Dec'n 2-9. Nevertheless, since this particular issue was
not raised in the earlier appeal, we did not consider it, for the Board typically
does not review uncontested aspects of rejections. Ex parte Frye, 94
USPQ2d 1072, 1075-76 (BPAI 2010) (precedential). Therefore, raising the
thermal imaging issue in this appeal effectively creates a new record for our
review and, thus, presents a new patentability question, despite claim 1 's
identical thermal-imaging limitation and similar rejection that we affirmed in
the earlier appeal. See In re Russell, 439 F.2d 1228, 1230 (CCPA 1971). In
short, the thermal imaging issue simply was not germane to the issues raised
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in the earlier appeal and, not surprisingly, not discussed by Appellants, the
Examiner, or the Board in connection with that appeal.
Nevertheless, to the extent that Appellants contend that Arnold and
Parani are non-analogous art or otherwise teach away from their
applicability to thermal imaging (see App. Br. 3), the record contains no
persuasive evidence to substantiate such a contention. Even assuming,
without deciding, that Arnold and Parani are not in Appellants' field of
endeavor, namely thermal imaging, we nevertheless see no reason why their
teachings of LED-based radiant energy emission and detection are not at
least reasonably pertinent to Appellants' problem-an independent and
distinct prong of the analogous art test. See In re Bigio, 381 F.3d 1320, 1325
(Fed. Cir. 2004). Nor have Appellants shown as much on this record.
Appellants have also not shown that Arnold and Parani criticize, discredit, or
otherwise discourage investigation into the invention claimed, as required
for teaching away. See Norgren Inc. v. Int'! Trade Comm 'n, 699 F.3d 1317,
1326 (Fed. Cir. 2012); see also In re Kahn, 441 F.3d 977, 990 (Fed.
Cir. 2006).
In short, Appellants' contention that merely because Arnold and
Parani are not directed to thermal imaging, they ostensibly would not render
features of a thermal imager obvious (App. Br. 3) is not only conclusory and
unsubstantiated, it ignores the fact that familiar items may have obvious uses
beyond their primary purposes, and often ordinarily skilled artisans can fit
multiple references' teachings together like puzzle pieces. See KSR Int 'l Co.
v. Teleflex, Inc., 550 U.S. 398, 420 (2007). Nor have Appellants
demonstrated sufficiently that the recitation to "[a] thermal imaging device"
imparts particular structure into the claims.
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Application 12/844,026
Lastly, despite Appellants' arguments to the contrary (App. Br. 3--4;
Reply Br. 2-3), we are unpersuaded of error in the Examiner's reliance on
Parani for the limited purpose for which it was cited in the rejection, namely
merely to show that providing a first opening in a substantially cylindrical
component of an LED flash array is known, and that providing such a
feature in connection with Arnold's system would have been obvious. See
Ans. 4. Appellants do not persuasively rebut these particular findings and
conclusions in the rejection that, notably, were material to our decision to
affirm the Examiner's obviousness rejection of then-pending claim 1 in the
earlier appeal. See Bd. Dec 'n 4--9.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 6 and 19 not argued separately with particularity.
Claims 3-5
We also sustain the Examiner's rejection of dependent claims 3-5.
Claim 3 recites that each LED is an IR LED. Claim 4 recites, in pertinent
part, that the IR is a high intensity relative to radiation emitted across the
remainder of the electromagnetic spectrum. Claim 5 adds that the IR
radiation consists essentially of wavelengths from 770 nm to 1 mm.
To the extent that Appellants intend to argue these claims separately
(see App. Br. 4--5), we find such an argument unavailing. First, Appellants
do not provide the requisite subheading to clearly and unambiguously
identify that any or all of these claims are argued separately-a regulatory
requirement. See 37 C.F.R. § 4I.37(c)(l)(iv) ("Under each heading
identifying the ground of rejection being contested, any claim(s) argued
separately or as a subgroup shall be argued under a separate subheading that
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identifies the claim( s) by number.") ( emphasis added); see also MANUAL OF
PATENT EXAMINING PROCEDURE (MPEP) § 1205.02 (9th ed. Rev. 08.2017,
Jan. 2018) (explaining this rule).
But even if such arguments were properly presented ( which they were
not), we still find them unpersuasive, for they are not commensurate with the
scope of the claims. We reach this conclusion even assuming, without
deciding, that the purported advantages of the recited IR LEDs are not
described in the cited references as Appellants contend (App. Br. 5), for such
arguments are not only not commensurate with the scope of the claims, they
do not squarely address-let alone persuasively rebut-the Examiner's
particular findings in connection with the recited limitations on page 5 of the
Answer.
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 3-5.
CONCLUSION
The Examiner did not err in rejecting claims 1, 3---6, and 19 under
§ 103.
DECISION
We affirm the Examiner's decision to reject claims 1, 3-6, and 19.
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
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