Ex Parte Wood

Board of Patent Appeals and Interferences

Sep 19, 2007

09800366 (B.P.A.I. Sep. 19, 2007)

The opinion in support of the decision being entered today is not binding
precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROLAND A. WOOD
____________

Appeal 2007-1983
Application 09/800,366
Technology Center 2800
____________

Decided: September 19, 2007
____________

Before JOSEPH F. RUGGIERO, ROBERT E. NAPPI,
and JOHN A. JEFFERY, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1-27 and 29-39. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.
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STATEMENT OF THE CASE
Appellant invented a technique for fast scanning an array of
bolometers,1 in particular microbolometers, used in infrared imaging
systems. Specifically, at least two bias pulses are applied sequentially to
each microbolometer in the array during a frame time (i.e., the time it takes
for the array to produce a complete image of an object being viewed by the
array). Then, the resulting signals associated with the applied pulses are
measured and an average value computed. By applying multiple pulses
during the frame time, a more uniform temperature results.2 Claim 1 is
illustrative:
1. A method for improving performance sensitivity and facility of
operation of an array including one or more microbolometers, comprising:

applying two or more bias pulses substantially sequentially during a
frame time to each microbolometer in the array;

measuring two or more resulting signals corresponding to the two or
more bias pulses;

computing an average signal value from the two or more resulting
signals corresponding to each microbolometer in the array during the frame
time; and

producing an output signal based on the computed average signal
value for each microbolometer in the array during the frame time.

1 A bolometer is a thermal radiation detector that operates by (1) absorbing
incident electromagnetic radiation (typically infrared radiation); (2)
converting the absorbed radiation into heat; and (3) indicating the resulting
temperature change in the detector by a change in its electrical resistance
(which is a function of temperature) (Specification 1:17-20).
2 See generally Specification P, 3, l. 27 – P, 4, l. 7; Abstract; Fig. 5.
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The Examiner relies on the following prior art references to show
unpatentability:
Thiede US 5,129,595 Jul. 14, 1992
Duvall US 5,258,619 Nov. 2, 1993
Wood ‘419 US 5,420,419 May 30, 1995
Wood ‘149 US 5,675,149 Oct. 7, 1997
Appellant’s admitted prior art on page 6 of the Specification (APA).

1. Claims 1, 2, 7, 9-17, 20, and 22-26 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Wood ‘149 and Wood ‘419
(incorporated by reference).
2. Claims 3-5 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Wood ‘149, Wood ‘419, and APA.
3. Claim 6 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Wood ‘149, Wood ‘419, APA, and Thiede.
4. Claims 8, 21, 27, 29, and 33-39 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Wood ‘149, Wood ‘419, and Duvall.
5. Claims 18 and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Wood ‘149, Wood ‘419, and Thiede.
6. Claims 30-32 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Wood ‘149, Wood ‘419, Duvall, and Thiede.
Rather than repeat the arguments of Appellant or the Examiner, we
refer to the Briefs and the Answer3 for their respective details. In this

3 Throughout this opinion, we refer to the Supplemental Brief filed Feb. 9,
2006 which replaced all previously-filed Briefs (Br. 1). We also refer to the
most recent Examiner’s Answer filed Mar. 16, 2006.
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decision, we have considered only those arguments actually made by
Appellant. Arguments which Appellant could have made but did not make
in the Briefs have not been considered and are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(vii).

OPINION
The Anticipation Rejection of Claims 1, 2, 7, 9-17, 20, and 22-26
We first consider the Examiner’s rejection of claims 1, 2, 7, 9-17, 20,
and 22-26. Anticipation is established only when a single prior art reference
discloses, expressly or under the principles of inherency, each and every
element of a claimed invention as well as disclosing structure which is
capable of performing the recited functional limitations. RCA Corp. v.
Applied Digital Data Systems, Inc., 730 F.2d 1440, 1444, 221 USPQ 385,
388 (Fed. Cir. 1984); W.L. Gore and Associates, Inc. v. Garlock, Inc., 721
F.2d 1540, 1554, 220 USPQ 303, 313 (Fed. Cir. 1983).
The Examiner has indicated how the claimed invention is deemed to
be fully met by the Wood references (Answer 3-10). Regarding independent
claim 1, Appellant argues that Wood ‘419 does not apply multiple bias
pulses substantially sequentially during a frame time to each microbolometer
in the array, nor does the reference measure multiple signals corresponding
to the bias pulses as claimed. Rather, Appellant contends, Wood ‘419
sweeps the microbolometers in the array with a single, five-microsecond
pulse (Br. 18-22) (emphasis added).
Appellant further argues that the approaches used in the Wood
references solve different problems: Wood ‘149 describes a still frame
camera where multiple scans may be used to increase sensitivity, but Wood
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‘419 discloses a video application that uses a single bias pulse to reduce
heat. According to Appellant, not only is there no teaching or suggestion to
combine these distinct elements, but also averaging scans for a full second in
the still frame camera of Wood ‘149 would allegedly be incompatible with
producing real time video (Br. 21-22).
The Examiner indicates that a key feature of the camera of Wood ‘149
is the improvement of sensitivity by providing multiple measurements and
averaging of sensor signals, thus producing a complete image within the
exposure (frame) time. Although the Examiner acknowledges that Wood
‘419 obtains a single measurement by applying a single bias pulse to a single
microbolometer in an array, the Examiner nevertheless finds that the
multiple measurement and averaging feature of Wood ‘149 necessarily
implies applying multiple bias pulses substantially sequentially to each
microbolometer in the array. According to the Examiner, applying multiple
sequential pulses in this manner would facilitate averaging multiple
measurements to ultimately obtain a complete image (Answer 11-12).
We will sustain the Examiner’s rejection of independent claim 1. We
agree with the Examiner that the multiple measurements and averaging of
the sensitivity improvement feature of Wood ‘149, coupled with the
incorporated teachings of Wood ‘419 of applying a single bias pulse to
produce an image, at least implicitly discloses applying multiple bias pulses
substantially sequentially during a frame time for each microbolometer as
claimed.
We note at the outset that although Wood ‘149 pertains to a still
image camera and Wood ‘419 involves a video camera, they both share a
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common, fundamental attribute: they both acquire images via an array of
sensors that detect incoming infrared radiation.
As the Examiner indicates (Answer 11-12), images in Wood ‘149 can
be acquired with improved sensitivity either by (1) averaging successive
images (i.e., complete images) (Wood ‘149, col. 5, ll. 11-16), or (2)
averaging multiple measurements from sensors to obtain a complete image
(Wood ‘149, col. 5, ll. 47-53). The latter method, in effect, occurs prior to
acquiring a complete image.
Although the preferred embodiment of Wood ‘149 employs
thermoelectric sensors to detect infrared radiation (Wood ‘149, col. 2, ll. 25-
46), Appellant has not pointed out -- nor can we find -- any meaningful
distinction between the bolometers used in the incorporated Wood ‘419
disclosure and the thermoelectric infrared sensors used in Wood ‘149.
In any event, we agree with the Examiner that obtaining these distinct,
preliminary measurements from the infrared sensors (and subsequent
averaging) would, at least implicitly, involve pulsing the sensors in the
manner shown in Figure 6 of the incorporated Wood ‘419 disclosure. The
issue, then, is whether these preliminary measurements occur during a
“frame time” as claimed giving the term its broadest reasonable
interpretation.
To interpret the term “frame time,” we first turn to Appellant’s
Specification. According to the Specification, “‘frame time’ refers to a time
in which a microbolometer array produces each complete picture or image of
an object being viewed” (Specification 2:6-7) (emphasis added).4

4 See also Specification 9:24-26.
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Notwithstanding this express definition, Appellant nevertheless has, in
effect, distinguished the scope of the term “frame time” in claim 1 from this
definition. Significantly, claim 13 depends from claim 1 and further narrows
the “frame time” limitation. But this narrower limitation is commensurate
with Appellant’s definition in the Specification -- namely that the frame time
“is the time it takes for the array to produce a complete image of an object
being viewed by the array.”
“The doctrine of claim differentiation creates a presumption that each
claim in a patent has a different scope…The difference in meaning and
scope between claims is presumed to be significant to the extent that the
absence of such difference in meaning and scope would make a claim
superfluous.” Free Motion Fitness, Inc. v. Cybex Intern., Inc., 423 F.3d
1343, 1351, 76 USPQ2d 1432, 1438 (Fed. Cir. 2005) (internal quotation
marks and citations omitted).
Under the doctrine of claim differentiation, we therefore presume that
the scope of the term “frame time” in claim 1 is broader than the limitation
recited in claim 13 -- a limitation commensurate with the definition of
“frame time” in the Specification. To do otherwise would render claim 13
superfluous.
With this interpretation in mind, we turn to the prior art. In our view,
the preliminary measurements from the infrared sensors in Wood ‘149 are
each obtained (and subsequently averaged) prior to obtaining a complete
image with improved sensitivity. Therefore, these preliminary
measurements -- measurements obtained by applying at least one pulse to
the infrared sensors corresponding to each preliminary measurement --
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would inherently occur during a “frame time” (i.e., the time required to
obtain a complete image with improved sensitivity).5
Even if we assume, without deciding, that only one pulse was applied
to the infrared sensors for each preliminary measurement in Wood ‘149
(e.g., in the manner shown in Figure 6 of Wood ‘419),6 such a technique
would nonetheless effectively result in multiple pulses applied during the
“frame time” as claimed since multiple preliminary measurements are
conducted prior to averaging. That is, each preliminary measurement (and
their corresponding pulses) taken together effectively result in multiple
sequential pulses during the “frame time” as claimed.
For at least the foregoing reasons, Wood ‘149, considered with its
incorporated Wood ‘419 disclosure, fully meets claims 1 and 13.
Accordingly, the Examiner’s rejection of those claims is sustained.
Regarding claim 2, the scope and breadth of the claim does not
preclude obtaining multiple complete images with increased sensitivity
using the still camera of Wood ‘149. As the Examiner indicates (Answer 4),
Wood ‘149 teaches recording and displaying multiple still frame images
(Wood ‘149, col. 1, ll. 55-58). In our view, each complete, increased-

5 Under this interpretation, we find that the “frame time” in Wood ‘149
actually meets the narrower recitation of “frame time” recited in claim 13 --
an interpretation which likewise meets the broader recitation of the term in
claim 1.
6 Although Wood ‘419 in Figure 6 shows multiple bias pulses over time, we
presume that the time between these pulses is the “frame time” as the term is
defined in the Specification and recited in claim 13. That is, we presume
that Wood ‘419 applies one pulse during the frame time -- a teaching
commensurate with the admitted prior art shown in Figure 4 of the present
application. See also Br. 32 (noting that Figure 4 of the present application
“corresponds” to Figure 6 of Wood ‘419).
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sensitivity image of a set of such images would be obtained during the
respective frame time for each image using the plural measurement and
averaging technique noted above with respect to claim 1. Therefore, the
recited steps (applying, measuring, computing, and producing) would be
repeated for each respective image. The claim is therefore fully met by the
Wood references.

Claims 7, 9, 10, 11, 14-17, 20, and 22-26
Although Appellant nominally argues the rejection of dependent
claims 7, 9, 10, 11, 14-17, 20, and 22-26 separately (Br. 23-27), the
arguments presented do not separately argue with particularity the
limitations of the dependent claims, nor do they specifically point out the
alleged deficiencies of the Wood references with respect to the limitations
recited in the dependent claims. Rather, the arguments essentially reiterate
the same arguments we considered above with respect to claims 1 and 13.
We therefore sustain the rejection of these claims for the same reasons
discussed above in connection with claims 1 and 13. That is, we find that
the Examiner has established at least a prima facie case of anticipation for 7,
9, 10, 11, 14-17, 20, and 22-26 on pages 3-6 of the Answer that Appellant
has not persuasively rebutted. The Examiner’s rejection of these claims is
therefore sustained.

The Obviousness Rejections
Claims 3-5
We now consider the Examiner’s rejection of claims 3-5 under 35
U.S.C. § 103(a) as unpatentable over Wood ‘149, Wood ‘419, and APA. In
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rejecting claims under 35 U.S.C. § 103, it is incumbent upon the Examiner
to establish a factual basis to support the legal conclusion of obviousness.
See In re Fine, 837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir.
1988). In so doing, the Examiner must make the factual determinations set
forth in Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467
(1966).
Discussing the question of obviousness of a patent that claims a
combination of known elements, KSR Int’l v. Teleflex, Inc., 127 S. Ct. 1727,
82 USPQ2d 1385 (2007) explains:
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, §103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill. Sakraida [v. AG
Pro, Inc., 425 U.S. 273, 189 USPQ 449 (1976)] and
Anderson's-Black Rock[, Inc. v. Pavement Salvage Co.,
396 U.S. 57, 163 USPQ 673 (1969)] are illustrative—a court
must ask whether the improvement is more than the predictable
use of prior art elements according to their established
functions.
KSR, 127 S. Ct. at 1740, 82 USPQ2d at 1396. If the claimed subject matter
cannot be fairly characterized as involving the simple substitution of one
known element for another or the mere application of a known technique to
a piece of prior art ready for the improvement, a holding of obviousness can
be based on a showing that “there was an apparent reason to combine the
known elements in the fashion claimed.” Id., 127 S. Ct. at 1740-41,
82 USPQ2d at 1396. Such a showing requires “some articulated reasoning
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with some rational underpinning to support the legal conclusion of
obviousness. . . . [H]owever, the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” Id., 127 S. Ct. at 1741, 82 USPQ2d
at 1396 (quoting In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336
(Fed. Cir. 2006)).
If the Examiner’s burden is met, the burden then shifts to the
Appellant to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
Turning to the Examiner’s rejection, we conclude that the Examiner
has established at least a prima facie case of obviousness of claims 3-5 that
Appellant has not persuasively rebutted. Specifically, the Examiner has (1)
pointed out the teachings of the Wood references, (2) noted the perceived
differences between these references and the claimed invention, and (3)
reasonably indicated how and why the references would have been modified
to arrive at the claimed invention (Answer 6-7). Once the Examiner has
satisfied the burden of presenting a prima facie case of obviousness, the
burden then shifts to Appellant to present evidence or arguments that
persuasively rebut the Examiner's prima facie case. Appellant did not
persuasively rebut the Examiner's prima facie case of obviousness, but
merely reiterated that the Wood references fail to disclose applying two or
more bias pulses substantially sequentially to each microbolometer in an
array in each frame time (Br. 28-29).
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For the reasons previously discussed with respect to claim 1, we do
not consider Appellant to have persuasively rebutted the Examiner’s prima
facie case of obviousness for claims 3-5. The Examiner’s rejection of these
claims is therefore sustained.

Claim 6
Likewise, we will sustain the Examiner's rejection of claim 6 under 35
U.S.C. § 103(a) as being unpatentable over the teachings of Wood ‘149,
Wood ‘419, APA, and Thiede. We conclude that (1) the Examiner has
established at least a prima facie case of obviousness for this claim on page
7 of the Answer, and (2) Appellant has not persuasively rebutted the
Examiner's prima facie case. Rather, Appellant merely reiterated the
unpersuasive argument that the prior art fails to disclose applying two or
more bias pulses substantially sequentially to each microbolometer in an
array in each frame time (Br. 30). For the foregoing reasons, the rejection is
therefore sustained.

Claims 8, 21, 27, 29, and 33-39
We will also sustain the Examiner’s rejection of claims 8, 21, 27, 29,
and 33-39 under 35 U.S.C. § 103(a) as being unpatentable over the teachings
of Wood ‘149, Wood ‘419, and Duvall. Based on the record before us, we
conclude that (1) the Examiner has established at least a prima facie case of
obviousness for this claim on pages 8-9 of the Answer, and (2) Appellant
has not persuasively rebutted the Examiner's prima facie case.
First, we note that regarding dependent claims 8 and 21, Appellant
merely reiterates that the prior art fails to disclose applying two or more bias
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pulses substantially sequentially to each microbolometer in an array in each
frame time (Br. 31). As discussed supra, we are not persuaded by this
argument. For the reasons previously discussed, the Examiner’s rejection of
these claims is sustained.
Regarding independent claim 27, Appellant further contends that there
is ostensibly no teaching or suggestion to apply two or more substantially
sequential bias pulses within a given time frame since Wood ‘419 already
uses a single pulse in a frame time to reduce heat generation which results in
a non-uniform temperature (Br. 32).
First, our previous discussion regarding applying multiple bias pulses
during a frame time applies equally here and we incorporate that discussion
by reference.7 Second, we find Appellant’s arguments are not
commensurate with the scope of the claim. In this regard, a “substantially
uniform” temperature as claimed is merely a matter of degree: a degree that
is relative to a particular temperature range. Simply put, even a 2° C
difference in temperature is “substantially uniform” at least with respect to
wider temperature ranges.
We recognize that Appellant contrasts the “substantially uniform”
temperature profile achieved with the claimed invention in Figure 5 of the
present application with that of the prior art in Figure 4 which shows an
approximately two-degree difference. This profile, however, merely reflects
a preferred embodiment of the invention -- an embodiment that hardly limits
the scope of the claim. See Phillips v. AWH Corp., 415 F.3d 1303, 1323, 75
USPQ2d 1321, 1334 (Fed. Cir. 2005) (“[A]lthough the specification often
describes very specific embodiments of the invention, we have repeatedly

7 See p. 5-8, supra, of this opinion.
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warned against confining the claims to those embodiments...[C]laims may
embrace different subject matter than is illustrated in the specific
embodiments in the specification” (citations and internal quotation marks
omitted)). In short, absent some specific reference to a range of
temperatures in the claim, the two-degree difference shown in Figure 6 of
Wood ‘419 fully meets a “substantially uniform” temperature during a frame
time as claimed.
Notwithstanding this conclusion, we also find the Examiner’s reliance
on Duvall reasonable for the teaching of varying certain waveform
parameters of bias pulses to minimize unwanted detector heating (Answer
18-19). Significantly, these varied parameters include, among other things,
varying pulse width and time between the pulses (i.e., frequency of the
pulses) (Duvall, col. 6, ll. 43-53; Figs. 8(a)-(d)). Although these bias
waveforms have gradual, predetermined rise-times as opposed to
instantaneous rise-times of bias pulses shown in Wood ‘149, the skilled
artisan would nevertheless glean from this teaching that adjusting various
pulse parameters, including pulse width and frequency, will provide an
added degree of control over the detector’s temperature, since such
parameters directly affect heating of the detector. In view of Duvall’s
teaching, we conclude that the skilled artisan would have ample suggestion
to adjust the frequency and width of the bias pulses in the arrangement of
Wood references to more readily control heating of the detectors, including
heating in a more uniform manner. For the foregoing reasons, we will
therefore sustain the Examiner’s rejection of claim 27.
Regarding dependent claims 29 and 33-39, we conclude that (1) the
Examiner has established at least a prima facie case of obviousness for these
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claims on pages 8 and 9 of the Answer, and (2) Appellant has not
persuasively rebutted the Examiner's prima facie case, but merely reiterated
that the prior art fails to disclose applying two or more bias pulses
substantially sequentially to each microbolometer in an array in each frame
time (Br. 32-36). For the foregoing reasons, the rejection is therefore
sustained.

Claims 18 and 19
Likewise, we will sustain the Examiner's rejection of claims 18 and 19
under 35 U.S.C. § 103(a) as being unpatentable over the teachings of Wood
‘149, Wood ‘419, and Thiede. We conclude that (1) the Examiner has
established at least a prima facie case of obviousness for these claims on
pages 9 and 10 of the Answer, and (2) Appellant has not persuasively
rebutted the Examiner's prima facie case. Rather, Appellant merely
reiterated the unpersuasive argument that the prior art fails to disclose
applying two or more bias pulses substantially sequentially to each
microbolometer in an array in each frame time (Br. 37). For the foregoing
reasons, the rejection is therefore sustained.

Claims 30-32
Likewise, we will sustain the Examiner's rejection of claims 30-32
under 35 U.S.C. § 103(a) as being unpatentable over the teachings of Wood
‘149, Wood ‘419, Duvall, and Thiede. We conclude that (1) the Examiner
has established at least a prima facie case of obviousness for these claims on
Page 10 of the Answer, and (2) Appellant has not persuasively rebutted the
Examiner's prima facie case Rather, Appellant merely reiterated the
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unpersuasive argument that the prior art fails to disclose applying two or
more bias pulses substantially sequentially to each microbolometer in an
array in each frame time (Br. 38-39). For the foregoing reasons, the
rejection is therefore sustained.

DECISION
We have sustained the Examiner's rejections with respect to all claims
on appeal. Therefore, the Examiner’s decision rejecting claims 1-27 and 29-
39 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

KIS

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