Ex Parte Stalp et al

Board of Patent Appeals and Interferences

May 30, 2012

11687577 (B.P.A.I. May. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte STEVEN ROBERT STALP and
BERNARD JOSEPH STALP
____________________

Appeal 2010-003128
Application 11/687,577
Technology Center 2600
____________________

Before MAHSHID D. SAADAT, KALYAN K. DESHPANDE, and
JUSTIN T. ARBES, Administrative Patent Judges.

ARBES, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-19 and 21, the only claims pending in the application on appeal. Claim 20
is cancelled. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
1

We affirm.

INVENTION
The claimed invention is directed to a method for monitoring
pedestrian movement and a pedestrian alert device. Claim 1 is
representative:
1. A method to monitor pedestrian movement in
intersecting pathways, comprising the steps of:
supplying a pedestrian alert device comprising a light
emitting device;
disposing said pedestrian alert device at the intersection
of a first and a second pathway, wherein said pedestrian alert
device comprises a pedestrian sensor capable of detecting
movement in said first pathway;
detecting movement in said first pathway;
activating said light emitting device.

1
Our decision will make reference to Appellants’ Appeal Brief (“App. Br.,”
filed July 20, 2009), and the Examiner’s Answer (“Ans.,” mailed September
25, 2009) and Final Rejection (“Final Rej.,” mailed November 17, 2008).
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REJECTIONS
Claims 1-3, 7, 8, 11-16, and 21 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Johnson (US 2005/0151670 A1).
Ans. 3-8.
Claims 4-6, 9, 10, and 17-19 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Johnson in view of Pfister (US 4,746,910). Ans.
8.

APPELLANTS’ CONTENTIONS
Appellants argue on pages 8-19 of the Appeal Brief that the
Examiner’s rejections of independent claims 1 and 16, and dependent claims
2 and 3, are in error.
Instead of separately arguing the patentability of dependent claims 4-
15, 17-19, and 21, Appellants simply repeat the language of each claim and
state that Johnson, or Johnson in combination with Pfister, “nowhere”
teaches the respective features, allowing those claims to stand or fall with
their base claims. Appeal Br. 12-15, 18-19. “A statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim.” 37 C.F.R. § 41.37(c)(1)(vii); see In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (Rule 41.37 requires “more
substantive arguments in an appeal brief than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art”). Thus, we have discussed only the rejections of
claims 1-3 and 16.

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ISSUES
Appellants’ arguments present us with the following issues:
(1) Did the Examiner err in determining that Johnson renders
obvious the subject matter of claims 1 and 16 because
Johnson teaches away from a “pedestrian” alert device
comprising a “pedestrian” sensor?
(2) Did the Examiner err in determining that Johnson renders
obvious the subject matter of claim 2 because Johnson
teaches away from using an “audio device” to “emit an
audible sound”?
(3) Did the Examiner err in finding that Johnson teaches or
suggests a sensor comprising “a first sensing element and
a second sensing element,” as recited in claims 3 and 16?

ANALYSIS
Independent Claim 1
The Examiner found that Johnson teaches all elements of claim 1
except a “pedestrian” alert device comprising a “pedestrian” sensor. Ans. 3-
4, 7-8. The Examiner further found that Johnson teaches adjusting sensors
to detect objects of different sizes, and found reasons why a person of
ordinary skill in the art would have adjusted the sensor of Johnson to detect
pedestrians. Ans. 3-4, 7-8.
Appellants argue that Johnson fails to teach or suggest, and teaches
away from, a “pedestrian” alert device comprising a “pedestrian” sensor.
App. Br. 8-10. Specifically, Appellants contend that Johnson only detects
“large objects,” such as forklifts, in an “industrial work environment,” and
expressly distinguishes pedestrian detection by “only detect[ing] objects
having a size at least larger than an average person so as not to detect a
pedestrian approaching an intersection.” App. Br. 8-10 (citing Johnson ¶¶ 5,
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7, 9-11, 26-28) (emphasis added). Appellants argue that a person of
ordinary skill in the art therefore would have had no reason to modify
Johnson to detect a pedestrian rather than a larger object. App. Br. 10. We
disagree with Appellants.
“What the prior art teaches and whether it teaches toward or away
from the claimed invention . . . is a determination of fact.” Para-Ordnance
Mfg., Inc. v. SGS Importers Int’l, Inc., 73 F.3d 1085, 1088 (Fed. Cir. 1995).
“A reference may be said to teach away when a person of ordinary skill,
upon reading the reference, would be discouraged from following the path
set out in the reference, or would be led in a direction divergent from the
path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed.
Cir. 1994). “The degree of teaching away will of course depend on the
particular facts; in general, a reference will teach away if it suggests that the
line of development flowing from the reference’s disclosure is unlikely to be
productive of the result sought by the applicant.” Id. A reference does not
teach away if it merely expresses a general preference for an alternative
invention from amongst options available to the ordinarily skilled artisan
and the reference does not “criticize, discredit, or otherwise discourage the
solution claimed.” See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)
(“mere disclosure of alternative designs does not teach away”).
As the Examiner pointed out, the distinction Johnson draws between
“large objects” and “pedestrians” is not in the basic method of detection, but
rather in the additional feature of adjusting the detection field:
The sensors 20 further include an adjustable detection field (F)
to distinguish between objects approaching a pathway
intersection and objects leaving a pathway intersection. The
detection field (F) is also adjustable to detect objects
approaching a pathway intersection greater than the size of an
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average human being. Specifically, the sensors 20 may be
adjusted to only detect objects having a size at least larger than
an average person so as not to detect a pedestrian approaching
an intersection (I).
Johnson ¶ 28; see Ans. 9. Stated another way, Johnson does not criticize,
discredit, or otherwise discourage the detection of pedestrians, or state that
the disclosed sensor would not work to detect pedestrians; Johnson only
adjusts the detection field because larger objects, such as forklifts, are of
greater concern in an industrial work environment. Indeed, Johnson
expressly contemplates the detection of pedestrians by stating that
individuals and vehicle operators should exercise caution when “another
large object or person is approaching the same intersection from a different
direction.” Johnson ¶ 6 (emphasis added). And the Johnson device, even
with its detection field adjusted, would still detect pedestrians who are
“greater than the size of an average human being.” See Johnson ¶ 28. The
potential levels of adjustment for Johnson’s detection field are mere
alternatives available to one of ordinary skill in the art.
We find that the portions of Johnson cited by Appellants would not
have discouraged a person of ordinary skill in the art from adjusting the
detection field of Johnson’s sensor to detect pedestrians. Appellants have
not shown that Johnson teaches away from a “pedestrian” alert device
comprising a “pedestrian” sensor, and we agree with the Examiner that
Johnson renders obvious the subject matter of claim 1. Accordingly, we
sustain the rejection of claim 1.

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Dependent Claim 2
Appellants argue that Johnson fails to teach or suggest an “audio
device” to “emit an audible sound,” and teaches away from doing so in
paragraph 6. App. Br. 10-11. We disagree.
Johnson does not state that using an audio device to emit an audible
sound would not work, or that doing so would not help to alert people of
potential collisions. Indeed, paragraph 6 of Johnson acknowledges that the
use of audible warnings is “common” in industrial work environments.
Because people “may” not always hear such warnings, however, Johnson
finds it advantageous to utilize the alternative of a “visual display” instead.
Johnson ¶¶ 6-7. Based on the disclosure of Johnson, and the common
knowledge of a person of ordinary skill in the art reading the reference, we
find that the portion of Johnson cited by Appellants would not have
discouraged a person of ordinary skill in the art from using audible
warnings. As such, Appellants have not shown that Johnson teaches away
from an “audio device” to “emit an audible sound,” and we agree with the
Examiner that Johnson renders obvious the subject matter of claim 2.
Accordingly, we sustain the rejection of claim 2.

Dependent Claim 3
Appellants argue that Johnson fails to teach or suggest a sensor
comprising “a first sensing element and a second sensing element.” App.
Br. 11-12. According to Appellants, Johnson has only a single “sensor” for
each pathway, rather than a sensor comprising multiple elements. App. Br.
11-12 (citing Johnson ¶ 27).
We first note that claim 3 does not recite any definition for the terms
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“sensor” and “sensing element,” or recite any actions they must perform.
The Specification also does not explicitly define the terms, merely stating
that in various embodiments, each sensing element may comprise an
“infrared device,” “photoelectric cell,” or “ultrasound detector.” See Spec.,
pg. 8, ll. 6-17. Additionally, Appellants have not proposed a particular
interpretation for each term or presented persuasive evidence that they
should be interpreted narrowly. Thus, applying the broadest reasonable
interpretation of the claim in light of the Specification, as we must, see In re
ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007), the
“sensor” in claim 3 encompasses a device capable of detecting movement
and the “sensing elements” encompass components of that device.
Given this interpretation, we agree with the Examiner that each sensor
20 in Johnson has multiple “physical and electrical” components by virtue of
its adjustable sensing range and adjustable detection field, and that those
components are “sensing elements” of sensor 20. Ans. 5, 10 (citing Johnson
¶ 28; Figs. 3, 5A-B). We also note that traffic detection and signal system
10 in Johnson is a “sensor” (a device capable of detecting movement) and
sensors 20 are “sensing elements” (components) of system 10. Johnson
therefore teaches or suggests a sensor comprising “a first sensing element
and a second sensing element,” and we sustain the rejection of claim 3.

Independent Claim 16
Claim 16 recites a “pedestrian” alert device with a “pedestrian” sensor
comprising “a first sensing element and a second sensing element.”
Appellants’ arguments regarding these features are the same as those made
with respect to claims 1 and 3. App. Br. 15-18. Therefore, for the reasons
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stated above, we sustain the rejection of claim 16.

CONCLUSION
Appellants’ arguments have not persuaded us of error in the
Examiner’s rejections of claims 1-19 and 21.

DECISION
For the above reasons, the Examiner’s decision to reject claims 1-19
and 21 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).

AFFIRMED

ELD