Ex Parte Stemmle

Board of Patent Appeals and Interferences

Sep 11, 2012

11441988 (B.P.A.I. Sep. 11, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DENNIS J. STEMMLE
____________

Appeal 2010-008899
Application 11/441,988
Technology Center 3600
____________

Before, HOWARD B. BLANKENSHIP, RICHARD M. LEBOVITZ, and
JOSIAH C. COCKS, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
This appeal involves claims to methods for stacking objects in a
container. The Examiner has rejected the claims as anticipated and obvious.
We have jurisdiction under 35 U.S.C. § 134. We affirm-in-part the
rejections and enter a new ground of rejection.

Appeal 2010-008899
Application 11/441,988
2
STATEMENT OF THE CASE
The claims are drawn to methods of stacking objects in a container
which include a step of measuring thickness dimensions of each object at a
plurality of predetermined locations. The purpose of the method is to
facilitate optimum stacking of objects, where at least one object has an
irregular shape or non-uniform thickness profile. Spec. 5: 9-11. The method
is described as useful for stacking and sorting mail. Spec. 1-3. According to
the method, a thickness profile is developed for each object, and then
summed, to determine the cumulative thicknesses of each object at
predetermined locations. The latter values are “then compared to a
maximum fill value for each container to determine an overfill
condition/number. The overfill condition corresponds to the number of
objects which additively cause the maximum thickness value to exceed the
maximum fill value.” Spec. 5:4-7. In this manner, by taking into account
the differences in thickness along the length of each object, containers filled
with the stacked objects are not overfilled.
Claims 1-16 and 21-25 are pending. Dependent claims 22-25 are
objected to as being dependent upon a rejected base claim, but the Examiner
found them allowable if rewritten in independent form to include all of the
limitations of the base claim and any intervening claims. Answer 2.
Claims 1-16 and 21 stand rejected by the Examiner as follows:
1. Claims 1, 2, and 9 under 35 U.S.C. § 102(b) as anticipated by
Yamashita1 (Answer 3);
2. Claims 3, 10, and 21 under 35 U.S.C. § 103(a) as obvious in view
of Yamashita and Drenth2 (Answer 5);

1 Taichiro Yamashita et al., U.S. 6,373,013 B1 (Apr. 16, 2002).
Appeal 2010-008899
Application 11/441,988
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3. Claims 4, 5, 7, 8, 11, 12, and 14-16 under 35 U.S.C. § 103(a) as
obvious in view of Yamashita and Ahn3 (Answer 5); and
4. Claims 6 and 13 under 35 U.S.C. § 103(a) as obvious in view of
Yamashita, Drenth, and Ahn (Answer 6).
Claim 1 representative and reads as follows:

1. A method for stacking objects in a container, comprising the steps
of:
measuring thickness dimensions of each object at a
plurality of predetermined locations;
calculating a cumulative thickness profile of a plurality
of stacked objects, the cumulative thickness profile being
developed by summing the respective thickness dimensions of
each object at each of the predetermined locations;
determining a maximum thickness value from the
cumulative thickness profile in connection with the thickness
dimensions at each of the plurality of predetermined locations;
comparing the maximum thickness value to a maximum
fill value for each container to determine an overfill condition;
and
stacking objects in the container based on the overfill
condition.

1. ANTICIPATION BY YAMASHITA
Findings of Fact (FF)
1. Yamashita describes an apparatus for sorting and distributing
sheet-like items, such as mail. Col. 1, ll. 15-19. The mail is fed into the
apparatus and then sorted into different stacks depending on the address
code. Col. 2, ll. 1-16.

2 Klaas Drenth, U.S. 5,655,668 (Aug. 12, 1997).
3 Jin Hyuk Ahn et al., U.S. 2006/0157921 A1 (Pub. Jul. 20, 2006).
App
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08899
/441,988
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.” Col. 14
reproduced

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Appeal 2010-008899
Application 11/441,988
5
Figure 16 shows an apparatus for sorting and distributing mail comprising
“thickness detecting device” 18. Col. 14, ll. 3-8. Only one device 18 is
depicted.
8. Table 1 at column 15 shows one thickness value for each sheet
(“the thickness of each of the sheets or the like 2 are stored in an associated
manner in the first storage unit 62”). Col. 15, ll. 04-14.
9. Yamashita teaches that
When each of the sheets or the like 2 is fed, the thickness
of the sheets or the like 2 is summed up (step 207), and if the
total of the thickness of the fed sheets or the like 2 is smaller
than the capacity of the first stacker devices 11, it is determined
that the sheets or the like 2 can be collected in the first stacker
devices 11 (208).
Col. 15, ll. 33-38.

Discussion
The Examiner found that Yamashita described all the steps of the
claimed method. Appellant contends that Yamashita does not describe the
claimed steps of “measuring thickness dimensions of each object at a
plurality of predetermined locations” and “calculating a cumulative
thickness profile of a plurality of stacked objects . . . by summing the
respective thickness dimensions of each object at each of the predetermined
locations.” App. Br. 8-9. We agree with Appellant that the Examiner erred
in this finding.
Yamashita refers to measuring “the thickness of each sheet,” as if a
single thickness measurement is taken for each sheet. FF 6. Consistently,
Table 1 of Yamashita, which shows data collected by Yamashita’s
apparatus, lists only one thickness per sheet. FF 8. Although in describing
Figure 16, which is a drawing of Yamashita’s apparatus, Yamashita refers to
Appeal 2010-008899
Application 11/441,988
6
thickness measuring devices in the plural, only one device is actually shown.
FF 7. There is no disclosure that this one device, or multiple devices, would
take “thickness dimensions of each object at a plurality of predetermined
locations” as recited in claim 1.
Because the evidence does not support the Examiner’s findings, we
reverse the rejection of claim 1 as anticipated by Yamashita, of independent
claim 9 which has similar limitations, and claim 2 which depends from claim
1.

2. OBVIOUSNESS OVER YAMASHITA & DRENTH
Claims 3 and 10
Claim 3 depends from claim 1, and further recites:
the step of measuring the thickness dimensions is performed by
measuring the thickness value at a plurality of lengthwise
locations along the length of the object and a plurality of
widthwise locations along the width of the object to develop a
thickness profile having a two dimensional array of points on
the object.
Drenth is said by the Examiner to describe this step.

Findings of Fact (FF)
The following Findings of Fact are pertinent to this determination:
10.
The invention relates to a method for checking whether
documents have been separated from opened envelopes, in
which each envelope is conveyed along at least one input
transducer, which measures a characteristic of that envelope
along a measuring path extending over that envelope.
Drenth col. 1, ll. 10-14.

App
App

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lication 11
11. Figu
Figures
12.
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opened e
measurin
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direction
path 14-
08899
/441,988
res 1-3 of
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nput
Appeal 2010-008899
Application 11/441,988
8
transducer, consists of a varying measured value or a number of
successive measured values.
Col. 3, ll. 42-49.
13.
Starting from this measuring result, a value profile is
determined. One such value profile 18, associated with the
measuring path 15 in FIG. 1, is shown in FIG. 2. . . . This value
profile 18 forms a representation in which the measured value is
plotted against the displacement of the envelope. Further, the
broken line 19 in FIG. 2 indicates the course of the value profile
18 in the absence of the document 12.
Col. 3, ll. 50-62.
14. Drenth describes utilizing the value profile 18 to determine
additional values, such as a reference value.
The reference value is found by identifying a smallest value of
the value profile which is substantially constant over a path of a
specified length and determining a value corresponding with
the substantially constant value of such portion. This last value
is stored as reference value.
Col. 4, ll. 65-67.
15. “The difference referred to is then stored as the reference value. It
is shown in FIG. 3, indicated by the size indication 30.” Col. 7, ll. 7-9.

Discussion
The Examiner found that Yamashita “fails to disclose any specifics
about the thickness measuring device along the arrangement” as recited in
claims 3 and 10. Answer 5. However, the Examiner found this deficiency
met by Drenth, which the Examiner found “discloses a similar thickness
detecting device (33) that is spread out along the width of the object and
thereby developing a two-dimensional array of points (as shown by figures
Appeal 2010-008899
Application 11/441,988
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1-3).” Id. The Examiner determined it would have been obvious to the
ordinary skilled worker “to have modified the thickness measuring device as
taught by Yamashita with the thickness measuring device as taught by
Drenth for the purpose of determining the thickest location along the length
and width of an object for accuracy of the measuring step.” Id.
Appellant contends that Drenth does not describe the step recited in
claim 3. Appellant contends “in Drenth, only a single reference value is
stored and used in the system. That is, Drenth does not develop a thickness
profile having a two dimensional array of points on the object. Instead,
Drenth shows a single dimension array.” App. Br. 18.
We do not find Appellant’s characterization of Drenth to be supported
by the evidence. Figures 1-3 of Drenth clearly show the envelope measured
in two dimensions: horizontal along its length (e.g., 20, 25, and 28)
(measuring paths 14-17) and vertical along its width (e.g., 21 and 30). FFs
10-13. Drenth explicitly refers to a “value profile” associated with a
measuring path in one direction in which the width is plotted against the
lengthwise displacement of the envelope. FF13. While it is true that Drenth
uses the two dimensional map of an envelope to find a single reference
value, in the process of doing so, Drenth expressly carries out the claimed
step of “measuring the thickness value at a plurality of lengthwise locations
along the length of the object and a plurality of widthwise locations along
the width of the object to develop a thickness profile having a two
dimensional array of points on the object.”
We thus affirm the rejection of claim 3 as obvious in view of
Yamashita and Drenth, and claim 10 which depends from claim 9, but has a
similar limitation as the one found in claim 3.

Appeal 2010-008899
Application 11/441,988
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Claim 21
Claim 21 depends from claim 1. Claims 21 reads as follows:
The method according to claim 1 wherein the measuring
the thickness dimensions includes measuring multiple thickness
measurements across a plurality of same points along an entire
length for the each object to produce an array of thickness
dimensions for the each object at the same points.
Appellant argues as for claim 1 that “Drenth only shows a single
value, which may be an average value. This single value is stored and later
used by the system. However, as only a single value is used, it cannot be
said that Drenth produces an array of thickness dimensions for the each
object at the same points.” App. Br. 20. As discussed above, Drenth
expressly describes deriving an array of thickness dimensions, i.e., the value
profile. Appellant has failed to distinguish this explicit disclosure in Drenth,
but rather focuses on how Drenth subsequently processes the value profile.
We thus affirm the rejection of claim 21 for the reasons provided by
the Examiner.

Claims 1 & 9: New Ground of Rejection
Claims 3 and 10 comprise thickness measuring steps which are
narrower in breadth than the thickness measuring steps of claims 1 and 9, the
latter which we determined were not met by Yamashita alone. However,
since we found the narrower embodiment of claims 3 and 10 obvious in
view of Yamashita and Drenth, the broader measuring step of claims 1 and
9, which encompasses claim 3, is therefore obvious, as well. Accordingly,
we conclude that claims 1 and 9 are obvious in view of Yamashita and
Drenth. We designate this as a new ground of rejection under 37 C.F.R.
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Application 11/441,988
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§ 41.50(b). As to claim 2 which was rejected as anticipated by Yamashita,
we leave it to the Examiner to decide whether a rejection of it in view of
Yamashita and Drenth is proper.

3. OBVIOUSNESS OVER YAMASHITA AND AHN
The Examiner further cited the Ahn publication, in combination with
Yamashita, to meet specific limitations in dependent claims 4, 5, 7, 8, 11,
12, and 14-16. The latter claims depend from claim 1 or claim 9, or from an
intervening claim that depends from claim 1 or claim 9. As we found that
Yamashita does not describe “measuring thickness dimensions of each
object at a plurality of predetermined locations” as recited in independent
claims 1 and 9, and Ahn was not said by the Examiner to describe this
limitation, we are compelled to reverse the obviousness rejection of
dependent claims 4, 5, 7, 8, 11, 12, and 14-16 in view of Yamashita and
Ahn.

4. OBVIOUSNESS IN VIEW OF YAMASHITA, DRENTH, & AHN
Claim 13 is representative and reads as follows (bracketed numerals
added for reference to the specific limitations in the claim):
13. The method according to claim 12 wherein the [1] image
sensor includes a linear array of photosensitive sensors and [2]
an illumination device, wherein [3] the image strip includes
regions which absorb and reflect light energy, the regions
forming an abrupt transition line which is displaced by
movement of the pivot arm, and wherein the photosensitive
sensors detect the movement of transition line when illuminated
by the illumination device to measure the thickness of the
mailpiece.
Appeal 2010-008899
Application 11/441,988
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The Examiner found that Ahn describes [3] an image strip including
“regions which absorb and reflect light energy” and Drenth describes [1] “an
image sensor includes a linear array of photosensitive sensors,” where each
are used for measuring thickness. Answer 6. The Examiner concluded that
it “would have been obvious to one having ordinary skill in the art at the
time of the applicant's invention to have modified the thickness measuring
device as taught by Yamashita with the thickness measuring device as taught
by Drenth for the purpose of determining the thickest location along the
length and width of an object for accuracy of the measuring step.” Id.
First, Appellant contends that the Examiner did not address the
claimed feature of an [1] “image sensor includes a linear array of
photosensitive sensors” and that neither Ahn nor Drenth show such sensors.
App. Br. 26. Second, Appellant contends that Ahn does not show the
claimed [3] image strip. Thus, the issue in this rejection is whether
limitations [1] and [3] were properly found by the Examiner to have been
described in the prior art.
As to limitation [1] of a linear array of photosensitive sensors, the
Examiner cited Drenth’s description of scanners 33. Answer 7. Column 9,
lines 7-37 of Drenth describes a plurality of scanners 33 which are shown in
Figure 6 of Drenth to be arranged in a linear array as found by the Examiner.
We therefore conclude that the preponderance of the evidence supports the
Examiner’s finding that limitation [1] is described by Drenth.
The Examiner stated that Ahn describes [3] “image strip include[ing]
regions which absorb and reflect light energy,” but the Examiner did not
point to any specific disclosure in Ahn where such structure is described.
Sensor 30 of Ahn is described as having light emitting and light receiving
portions. Ahn, ¶¶ 36-37. An encoder 22 is also described by Ahn which
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comprises slits 22a. Ahn, ¶¶ 29 & 37. However, it does not appear that
either structure has regions which absorb and reflect light energy.
Consequently, the Examiner did not put forth sufficient evidence that Ahn
describes a device which meets the claimed limitation of an image strip.
We therefore reverse the obviousness rejection of claims 6 and 13
over Yamashita, Drenth, and Ahn.

SUMMARY
1. Rejection 1 of claims 1, 2, and 9 as anticipated by Yamashita is
reversed.
2. Rejection 2 of claims 3, 10, and 21 as obvious in view of
Yamashita and Drenth is affirmed.
3. Rejection 3 of claims 4, 5, 7, 8, 11, 12, and 14-16 as obvious in
view of Yamashita and Ahn is reversed.
4. Rejection 4 of claims 6 and 13 as obvious in view of Yamashita,
Drenth, and Ahn is reversed.
5. A new ground of rejection of claims 1 and 9 is set forth as obvious
in view of Yamashita and Drenth.

TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that the appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
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the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the proceeding will be remanded to
the examiner. . . .
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record. . . .

AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)