Ex Parte Schneider et al

Patent Trial and Appeal Board

Nov 27, 2017

12988284 (P.T.A.B. Nov. 27, 2017)

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.
12/988,284 10/15/2010 Ron Schneider 28553/54 8999
21710 7590 11/29/2017
BROWN RUDNICK LLP
ONE FINANCIAL CENTER
BOSTON, MA 02111
EXAMINER
HUANG, FRANK F
ART UNIT PAPER NUMBER
2485
NOTIFICATION DATE DELIVERY MODE
11/29/2017 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):
ip @brownrudnick.com
usactions@brownrudnick.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RON SCHNEIDER, OFER DAVID, and
DROR YAHAV
Appeal 2016-004260
Application 12/988,284
Technology Center 2400
Before JEAN R. HOMERE, MICHAEL J. STRAUSS, and
MICHAEL M. BARRY, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-004260
Application 12/988,284
STATEMENT OF THE CASE
Appellants1 appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—31. We have jurisdiction under 35 U.S.C. § 6(b). We heard oral
arguments on October 24, 2017.
We affirm.
THE INVENTION
The claims are directed to multispectral enhanced vision for aircraft
landing in inclement weather conditions. Spec., Title. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. Apparatus for detecting airfield light emitters, the apparatus
comprising:
a plurality of light detection cameras, each detecting at
least one respective waveband of electromagnetic radiation
within the electromagnetic spectrum, each of said light detection
cameras producing a plurality of respective spectral images; and
a processor, coupled with said light detection cameras,
thereby generating a multispectral image of said airfield light
emitters from said spectral images, said multispectral image
comprising a multi-dimensional set of spectral values,
wherein said processor further determines for at least one
part in said multispectral image, which combination of spectral
values in said multi-dimensional set of spectral values
corresponds with a plurality of distinct light emission
characteristics of said airfield light emitters, by identifying a
particular spectral signature corresponding to said multi­
dimensional set of spectral values of said airfield light emitters,
wherein said processor produces an enhanced image from
those said spectral values of said multi-dimensional set of
spectral values which correspond to said determined
combination.
1 According to Appellants, “[t]he real party in interest is Elbit Systems
LTD.” App. Br. 2.
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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Luk US 2005/0232512 A1 Oct. 20,2005
Molteni US 2008/0035859 A1 Feb. 14,2008
Denvir US 7,609,311 B2 Oct. 27, 2009
Kerr et al., “New Infrared and Systems Technology for
Enhanced Vision Systems,” Max-Viz, Inc., public release
(2002) (hereinafter “Kerr”2).
REJECTIONS
The Examiner made the following rejections:
Claims 1—7, 9-19, and 21—31 stand rejected under 35 U.S.C. § 103(a)3
as being unpatentable over Luk and Kerr. Final Act. 8—11; Ans. 3—14.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Luk, Kerr, and Denvir. Final Act. 11; Ans. 14—15.
Claim 20 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Luk, Kerr, and Molteni. Final Act. 11—12; Ans. 15—16.
2 Although admitting “Richard J. Kerr [sic (recte, J. Richard Kerr)] is also a
co-inventor in the Luk reference,” i.e., the Luk ’512 publication, Appellants
complain the Examiner’s reference to the publication as “Kerr-Luk” (see
Final Act. 8) is improper (App. Br. 9). The Examiner appears to make
reference to the publication simply as “Kerr” in the subsequently filed
Answer although occasional use of “Kerr-Luk” remains. While potentially
confusing, we find no resultant reversible Examiner error.
3 At page 8, paragraph 6 of the Final Action, under the heading “Claim
Rejection — 35 USC § 103” and after quoting the language of that section of
the statute, the Examiner mistakenly indicates the claims are rejected under
35 U.S.C. § 102(b). Because the application of art clearly indicates the
rejection is under § 103 and Appellants address the rejections accordingly,
we find such error to be harmless.
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APPELLANTS’ CONTENTIONS
1. In connection with the independent claims Appellants contend the
following:
a. neither Luk nor Kerr teaches generation of a multispectral image that
comprises a multi-dimensional set of spectral values as required by
claim 1. App. Br. 6—7, 9.
b. neither Luk nor Kerr teaches determining which combination in the
multi-dimensional set of spectral values corresponds to a plurality of
distinct light emission characteristics of the airfield light emitters by
identifying a particular spectral signature corresponding to the multi­
dimensional set of spectral values of the airfield light emitters as
required by claim 1. App. Br. 7—8, 9-10, 12—14.
c. neither Luk nor Kerr teaches producing an enhanced image from the
multi-dimensional set of spectral values that correspond to the
determined combination as required by claim 1. App. Br. 8, 14—17.
d. Kerr fails to teach identifying a particular spectral signature
corresponding to the multi-dimensional set of spectral values of the
airfield light emitters as required by claim 1. App. Br. 10—11.
e. “the Examiner has failed to show . . . how a person skilled in the art
would find it obvious to arrive from Luk and Kerr to the terms of the
pending claims.” App. Br. 11.
2. “Luk and Kerr both disclose solutions based on at least two cameras,”
not one camera detecting a plurality of respective wavebands as required
by claim 2. App. Br. 17.
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3. Denvir is unrelated to the claimed invention such that “[a] person skilled
in the art using a hypothetical combination of Denvir, Luk and Kerr
would ultimately fail to achieve the results of the . . . invention [of claim
8].” App. Br. 18.
4. the rejection of claim 20 is deficient because the Molteni reference is
drawn to an unrelated field and “the Examiner does not provide any
evidence on how it would be obvious to combine ‘Molteni’s method’
with a hypothetical modification of Luk and Kerr, let alone how to
modify Luk and Kerr, so as to arrive at the . . . invention [of claim 20].”
App. Br. 18.
ANALYSIS
Appellants’ arguments are not persuasive of Examiner error. Instead
we adopt as our own (1) the findings and reasons set forth by the Examiner
in the action from which this appeal is taken (final Act. 2—12; Ans. 3—16)
and (2) the reasons set forth by the Examiner in the Examiner’s Answer in
response to Appellants’ Appeal Brief (Ans. 16—32) and concur with the
conclusions reached by the Examiner. We highlight the following
contentions of error seriatim as they are presented in the Appeal Brief, pages
6-18.
1. Independent Claim 1
a. Generation of a multispectral image comprising a multi-dimensional set
of spectral values (Disputed Limitation and Contention 1 (a))
The Examiner finds Luk’s long and short wave infrared (LWIR and
SWIR) sensor arrays teach light detection cameras generating respective
spectral images. Final Act. 9. The Examiner further finds Kerr’s description
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of a LWIR spectral band of 8—14 microns and medium wave infrared
(MWIR) spectral band of 3—5 microns discloses a multispectral image
comprising a multidimensional set of spectra values. Id. at 10.
Appellants contend the cited paragraph 45 of Luk fails to teach the
disputed limitation of the generation of a multispectral image that comprises
a multi-dimensional set of spectral values. App. Br. 6. Appellants argue Luk
describes the extraction of spatial features from images or the “taking out”
of features “rather [than] the generation (‘building’) of a multispectral image
(i.e., an image from multiple spectra) that comprises a multi-dimensional set
of spectral values.” Id. Addressing Kerr, Appellants contend “[njowhere in
Kerr is it mentioned that the fused image comprises a multi-dimensional set
of spectral values.” App. Br. 12. Appellants argue this feature is absent
from section 2.2 of Kerr cited by the Examiner. Appellants further argue
Kerr’s Figure 5 is merely a graph of the scattering efficiency of a fog droplet
versus a wavelength parameter, not a representation of a multi-dimensional
set of spectral values as required by claim 1. Id.
The Examiner responds, explaining Luk’s sensor array includes both
LWIR and SWIR sensors and “the image combination of the long wave
infrared and short wave infrared sensor array provide a multispectral image
that includes at least two spectral values for each pixel of the images.” Ans.
17.
Appellants’ contention 1(a) is unpersuasive of reversible Examine
error. During examination of a patent application, pending claims are given
their broadest reasonable construction consistent with the specification. In
re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re
Prater, 415 F.2d 1393, 1404—05 (CCPA 1969). Because “applicants may
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amend claims to narrow their scope, a broad construction during prosecution
creates no unfairness to the applicant or patentee.” In re ICON Health &
Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citing Am. Acad., 367
F.3d at 1364). Appellants’ Specification discloses, in relevant part,
[A] multispectral image is composed from a datacube . . .
consisting of a multi-dimensional array of data (i.e., a multi­
dimensional set of spectral values).
Each pixel (i.e., a “hyper-pixel”) in the multispectral
image is effectively, a multi-dimensional array of spectral
data. . . . [CJameras with their respective optical spectral filters
are further utilized for the process of optimizing the recognition
of the spectral characteristics of these radiations through
different types of atmospheric media .... These particular
spectral characteristics typically contain “spectral signatures”. A
spectral signature is a particular wavelength or combination of
wavelengths of EM radiation, which can uniquely identify an
object.
Spec. 17,11. 2—12. By disclosing the use of both LWIR and SWIR sensors,
Luk teaches or suggests the use of both wavebands to form an image.
Although Appellants argue Luk combines outputs using a “K-Winners-Take-
All (K-WTA)” operation to generate a single fused feature image, the
Examiner does not rely on the argued combining technique used by Luk.
The combination of references is not limited to Luk’s disclosed
implementation but also would have been understood to teach or suggest
retaining the separate image values of the individual LWIR and SWIR
images to form a composite image without discarding spectral information.
Furthermore, the Examiner relied on Kerr, not Luk as argued, for
disclosing a multispectral image comprising a multi-dimensional set of
spectral values. Final Act. 9 (citing Kerr § 2.2, Fig. 5). For example, Kerr’s
disclosure of “boresight[ing] and electronically scaling] the SWIR and
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LWIR images for precise coincidence, and then to use image processing to
separate the lights and other objects of interest from the SWIR background
and to fuse these items onto the LWIR scene” (Kerr § 2.2) further supports a
finding that Kerr teaches or suggests the disputed multispectral image as
claimed. See also Kerr’s description of the “broad advantages of [an]
uncooled SWIR/LWIR combination” and Figures 3 depicting “combined
SWIR/LWIR imagery.” Id. Although some embodiments may lose spectral
information, the teachings and suggestions of the prior art are not limited to
such lossy techniques and include their simple combination, retaining
information of both bands. Therefore, based on a preponderance of the
evidence, we agree with the Examiner in finding the combination of Luk and
Kerr teaches or suggests the disputed limitation of generating a multispectral
image of the airfield light emitters from the spectral images, the
multispectral image comprising a multi-dimensional set of spectral values.
b. Identifying a particular spectral signature corresponding to the multi­
dimensional set of spectral values of the airfield light emitters (Disputed
Limitation and Contention 1 (b))
The Examiner finds Kerr’s disclosure of images having a LWIR of 0
and MWIR of 1 teaches or suggests the disputed limitation of identifying a
particular spectral signature as claimed. Final Act. 10. Appellants contend
neither Luk (App. Br. 7—8) nor Kerr (App. Br. 9-10) teaches or suggests the
disputed limitation. The Examiner responds, explaining “Kerr was relied on
for the ground of rejection, not Luk.” Ans. 18. Therefore, Appellants’
arguments based on the argued deficiencies of Kerr do not address the
Examiner’s finding and are not persuasive of error.
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Addressing the Kerr reference, Appellants contend “Kerr does not
search for and determine a combination of spectral values but fuses items
that are present in one spectral range (LWIR) with items in another spectral
range (LWIR) [sic. MWIR] into a single image.” App. Br. 9—10. In
contrast, Appellants argue the disputed limitation requires “searching for a
combination of spectral values (specific wavelengths) in a multi-dimensional
set of spectral values that correspond with the distinct light emission
characteristics of the airfield light emitters.” App. Br. 10.
Appellants’ argument is not commensurate in scope with claim 1 and
is, therefore, unpersuasive. See In re Self, 671 F.2d 1344, 1348 (CCPA
1982) (limitations not appearing in the claims cannot be relied upon for
patentability). The disputed claim limitation does not require searching or
comparing spectral values, only identifying a particular signature
corresponding to spectral values of the airfield light emitters. Appellants’
Specification discloses, although it can be a “combination of wavelengths,”
the signature can also be “a particular wavelength,” e.g., a single identifying
frequency or monochromatic color. Spec. 16,11. 20—22. Kerr discloses
“[w]ith judicious use of spectral filters and image processing techniques, the
desired airport and landmark lighting can be derived while avoiding
background illumination clutter.” Kerr § 2.2. Under a broad but reasonable
interpretation, filtering out radiation from background illumination clutter to
transmit only the desired airport and landmark lighting teaches or suggests
identifying a particular spectral signature (e.g., a particular wavelength
passed by judicious use of spectral filters) corresponding to said multi­
dimensional set of spectral values of said airfield light emitters (the desired
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airport and landmark lighting). Accordingly, Appellants’ contention 1(b) is
not persuasive of reversible Examiner error.
c. Producing an enhanced image from those spectral values from the multi­
dimensional set of spectral values that correspond to the determined
combination (Disputed Limitation and Contention 1 (c))
The Examiner finds Kerr’s disclosure of providing a multi-sensor
output generated by the best features of both LWIR and SWIR wavelengths
teaches or suggests the disputed limitation of producing an enhanced image
from the spectral values of the multi-dimensional set of spectral values
which correspond to the determined combination (of spectral values in said
multi-dimensional set of spectral values corresponding with a plurality of
distinct light emission characteristics of the airfield light emitters). Final
Act. 10. Appellants’ contention that Luk is deficient in this regard (App. Br.
8) is unresponsive to the Examiner’s finding that Kerr, not Luk, teaches or
suggests the disputed limitation. Although the Examiner refers to Luk in
addressing Appellants’ attack on that reference as not teaching the disputed
limitation, the Examiner explains Luk, as does the applied Kerr reference,
teaches a LWIR and SWIR sensor array and the use of at least two different
spectral values without applying the reference for the disputed producing
limitation. Final Act. 4. Accordingly, Appellants’ contention 1(c) arguing
alleged deficiencies of Luk is unresponsive and, therefore, unpersuasive of
reversible Examiner error.
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d. Kerr fails to teach identifying a particular spectral signature
corresponding to the multi-dimensional set of spectral values of the
airfield light emitters (Disputed Limitation and Contention 1 (d))
The Examiner finds Kerr’s disclosure of selective use of MWIR and
LWIR based on scattering efficiency of some forms of precipitation teaches
or suggests the disputed identifying step. Final Act. 10. We address
Appellants’ contentions of error with regard to this limitation in connection
with contention 1(b) supra. For the reasons presented therein, Appellants’
contention 1 (d) is unpersuasive of reversible Examiner error.
e. “[T]he Examiner has failed to show . . . how a person skilled in the art
would find it obvious to arrive from Luk and Kerr to the terms of the
pending claims” (Disputed Limitation and Contention 1 (e))
The Examiner finds “it would have been obvious to one of ordinary
skill in the art at the time of the invention to modify the method/apparatus of
Luk by adding Kerr’s method so as to have benefit of better effectiveness
and less cost for infrared Enhanced Vision System (IR-EVS) sensors.” Final
Act. 10. To the extent Appellants allege the combination of Luk and Kerr is
improper because it is merely based on the publications having Kerr as a
common author/inventor, we disagree. In this regard, the proper inquiry is
whether the Examiner has articulated adequate reasoning having a rational
underpinning which explains why a person of ordinary skill in the art would
have been led to combine the disclosures of Luk and Kerr. See In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds
cannot be sustained by mere conclusory statements; instead, there must be
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.”), cited with approval in KSR Int’l Co. v.
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Teleflex Inc., 550 U.S. 398, 418 (2007). Appellants’ generalized allegations
of error are not supported by sufficient evidence or reasoned argument to
persuade us the Examiner’s rationale is deficient.
Contrary to Appellants’ contention, we note the skilled artisan would
“be able to fit the teachings of multiple patents together like pieces of a
puzzle” because the skilled artisan is “a person of ordinary creativity, not an
automaton.” KSR, 550 U.S. at 420-21. Here, Appellants have not
demonstrated the Examiner’s proffered combination in support of the
conclusion of obviousness would have been “uniquely challenging or
difficult for one of ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-
Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at
418).
Therefore, because Appellants provide insufficient evidence or
argument to the contrary, we agree the Examiner has articulated reasoning
based on rational underpinning, sufficient to support the combination and a
conclusion of obviousness. Furthermore, to the extent Appellants contend
the combination of Luk and Kerr fails to teach or suggest the disputed
limitations, we disagree for the reasons discussed supra. Accordingly,
Appellants’ contention 1(e) is unpersuasive of reversible Examiner error.
Because Appellants’ contentions in connection with independent claim
1 are unpersuasive of reversible Examiner error, we sustain the rejection of
claim 1 and, for the same reasons, the rejection of independent method claim
21 under 35 U.S.C. § 103(a) over Luk and Kerr.
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2. “Luk and Kerr both disclose solutions based on at least two cameras,” not
one camera detecting a plurality of respective wavebands as required by
claim 2 (Contention 2)
The Examiner finds Luk discloses the disputed limitation of a light
detection camera detecting a plurality of respective wavebands of
electromagnetic radiation within the electromagnetic spectrum, each said at
least one light detection camera producing respective spectral images
according to the corresponding wavebands thereof. Final Act 11
(incorporating reasoning presented in Office Action dated June 17, 2014).
Appellants contend “claim 2 is further differentiated by functioning with
only one light detection camera, whereas Luk and Kerr both disclose
solutions based on at least two cameras.” App. Br. 17. The Examiner
responds by finding the argued “only one light detection camera” is not
required by claim 2 which merely recites “at least one,” not the argued “only
one.” Ans. 31. We agree with the Examiner that Appellants’ argument that
claim 2 recites only one camera is not commensurate in scope with claim 2
and, therefore, unpersuasive.
Furthermore, combining multiple sensors into a single device such as
a camera is not sufficient by itself to patentably distinguish over the prior art
unless there are new or unexpected results. Making elements of a device
(i.e., sensors) integral (forming one camera) or separable (parts of respective
independent cameras) is considered to be an obvious design choice and does
not render an invention patentable. See In re Larson, 340 F.2d 965, 968
(CCPA 1965); In re Dulberg, 289 F.2d 522, 523 (CCPA 1961); MPEP
§ 2144.04(V)(C). Accordingly, Appellants’ contention is not persuasive of
Examiner error.
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3. “A person skilled in the art using a hypothetical combination of Denvir,
Luk and Kerr would ultimately fail to achieve the results of the . . .
invention [of claim 8]” (Contention 3)
The Examiner finds Denvir’s EMCCD camera teaches or suggests the
limitations recited by dependent claim 8. Final Act. 11 (incorporating
reasoning presented in Office Action dated June 17, 2014, at page 15).
Appellants contend Denvir fails to remedy the deficiencies argued with
regard to Luk and Kerr in connection with the rejection of claims from
which claim 8 depends. App. Br. 17. Because we disagree the combination
of Luk and Kerr is deficient, we are likewise unpersuaded by the argument
that Denvir fails to remedy any such deficiencies.
Appellants further argue the combination of Luk and Kerr with Denvir
is improper because “Denvir discloses a method and apparatus for
determining the gain of an electron multiplier from the output of the electron
multiplier via the input of a test signal derived from dark charge or dark
current, which is not related with the claimed invention.” App. Br. 18. We
find this argument unpersuasive. Appellants provide insufficient evidence or
reasoning to support a conclusion the combination is improper. For
example, Appellants do not provide evidence Denvir is non-analogous art or
teaches away from the applied combination. In the absence of such
evidence, we find the Examiner has articulated reasoning based on rational
underpinning, sufficient to support the combination and a conclusion of
obviousness. Final Act. 11 (incorporating reasoning presented in Office
Action dated June 17, 2014, at page 15 (“[I]t would have been obvious to
one of ordinary skill in the art at the time of the invention to modify the
method/apparatus of Luk and Kerr in combination by adding Denvir[’s]
method so as to have a higher sensitivities through EM gain.”)).
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4. “[T]he Examiner does not provide any evidence on how it would be
obvious to combine ‘Molteni’s method’ with a hypothetical modification
of Luk and Kerr, let alone how to modify Luk and Kerr, so as to arrive at
the . . . invention [of claim 20]” (Contention 4)
The Examiner finds Molteni teaches the multi-band-pass filter of claim
20. Office Action dated June 17, 2014, at page 16; Final Act. 12. According
to the Examiner “it would have been obvious to one of ordinary skill in the
art at the time of the invention to modify the method/apparatus of Luk and
Kerr in combination by adding Molteni[’s] method so as to preferentially
transmit only the useful wavelengths precisely.” Office Action dated
June 17, 2014, at page 16. Appellants argue the combination is improper
because “the Examiner does not provide any evidence on how it would be
obvious to combine ‘Molteni’s method’ with a hypothetical modification of
Luk and Kerr, let alone how to modify Luk and Kerr, so as to arrive at the
claimed invention.” App. Br. 18. Appellants further argue Molteni is in a
field unrelated to that of the claimed invention such that “Appellant doubts
the possibility that a person skilled in the art of Luk and Kerr would look at
Molteni.” Id.
Appellants’ contentions are not supported by sufficient evidence or
reasoning to persuade us of Examiner error. It is well settled that mere
attorney arguments and conclusory statements, which are unsupported by
factual evidence, are entitled to little probative value. In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984). Attorney argument is not evidence. In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974). Nor can such argument take the place of
evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782
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(CCPA 1977). Furthermore, Appellants’ argument questioning whether the
proposed combination would be within the skill of the ordinary skilled
artisan does not give credit the complementary knowledge attributable to
such a person. KSR, 550 U.S. at 418.
Summary
For the reasons discussed supra, we sustain the rejection of
independent claim 1 and that of independent claims 2 and 21, which include
similar limitations, under 35 U.S.C. § 103(a) over Luk and Kerr, together
with the rejections of dependent claims 8 and 20. We also sustain the
rejections of dependent claims 3—20 and 22—31, which are not argued
separately with particularity.
DECISION
We affirm the Examiner’s decision to reject claims 1—31 under
35U.S.C. § 103(a).
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). See
37 C.F.R. §41.50(f).
AFFIRMED
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