2019005224 (P.T.A.B. Dec. 31, 2020)

Fraunhofer-Gesellschaft zur Foerderung der angewandten Forschung e.V. et al.

Patent Trials and Appeals BoardDec 31, 2020

2019005224 (P.T.A.B. Dec. 31, 2020)

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. 15/381,696 12/16/2016 Daniel KRENZER 110971-9124.US01 1062 22918 7590 12/31/2020 PERKINS COIE LLP - PAO General P.O. BOX 1247 SEATTLE, WA 98111-1247 EXAMINER YANG, JAMES J ART UNIT PAPER NUMBER 2683 NOTIFICATION DATE DELIVERY MODE 12/31/2020 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): patentprocurement@perkinscoie.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANIEL KRENZER, ALBRECHT HESS, ANDRÁS KÁTAI, MATTHIAS PAULIGK, PAUL FRITZSCHE, LAUTET JOACHIM TILGNER, MICHAEL HAENSEL, ANJA CHILIAN, TAMÁS HARCZOS, JOHANNES-WOLF KUENZEL, PETER HUSAR, and CHRISTIAN WIEDE Appeal 2019-005224 Application 15/381,696 Technology Center 2600 Before ROBERT E. NAPPI, LINZY T. McCARTNEY, and JASON J. CHUNG, Administrative Patent Judges. McCARTNEY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellant identifies the real party in interest as Fraunhofer-Gesellschaft zur Foerderung der angewandten Forschung e.V. Appeal Brief 3, filed March 28, 2019 (Appeal Br.). Appeal 2019-005224 Application 15/381,696 2 BACKGROUND This patent application concerns detecting momentary sleep. Specification 1:11–12, filed December 16, 2016. Claim 1 illustrates the claimed subject matter: 1. A device for detecting micro sleep, comprising: a video recording device for video-based monitoring of a person and of an eye area of said person, the video recording device being configured to record a sequence of pictures of the person and of the eye area and to output same to a threshold determination device; the threshold determination device configured to derive a plurality of thresholds for detecting micro sleep, each of the plurality of thresholds being individually adapted to the person from the sequence of pictures; and a threshold evaluator configured to decide, on the basis of the plurality of individually adapted thresholds for detecting micro sleep, whether or not the person has momentarily fallen asleep; the plurality of individually adapted thresholds for detecting micro sleep being utilized for establishing whether or not the individually adapted thresholds for detecting micro sleep have been passed within an actual time curve of the eye opening and, thus, whether or not the person has momentarily fallen asleep; a first individually adapted threshold for detecting micro sleep characterizing the transition from the opened to the closed eye, an eyelid closure being established to have occurred if the first individually adapted threshold is fallen below; a second individually adapted threshold for detecting micro sleep referring to a duration of the eyelid closure, an individual eyelid closure time being determined so as to evaluate the eyelid closure as being an indication of micro sleep if the individual eyelid closure time is exceeded. Appeal Br. 19–20. Appeal 2019-005224 Application 15/381,696 3 REJECTIONS Claims 35 U.S.C. § References/Basis 1, 3, 4, 6–8, 10–20 103 Nemat-Nasser,2 Terashima3 2 103 Nemat-Nasser, Terashima, Griesinger4 5 103 Nemat-Nasser, Terashima, Nakamura5 9 103 Nemat-Nasser, Terashima, Hammoud6 DISCUSSION We have reviewed the Examiner’s rejection and Appellant’s arguments, and Appellant has not persuaded us that the Examiner erred. As consistent with the discussion below, we adopt the Examiner’s reasoning, findings, and conclusions on pages 2–19 of the Final Office Action mailed October 30, 2018 (Final Act.), the continuation sheet of the Advisory Action mailed January 23, 2019 (Advisory Act.), and pages 3–4 of the Examiner’s Answer mailed May 2, 2019 (Ans.). We address Appellant’s arguments in turn. Claim 1 recites a “threshold determination device configured to derive a plurality of thresholds for detecting micro sleep, each of the plurality of thresholds being individually adapted to the person from the sequence of pictures.” Appeal Br. 19 (emphasis added). Appellant argues that the Examiner’s combination of Nemat-Nasser and Terashima fails to teach or suggest this limitation. See Appeal Br. 13–17; Reply Brief 2–6, filed June 2 Nemat-Nasser (US 2014/0210625 A1; July 31, 2014). 3 Terashima et al. (US 2011/0205350 A1; August 25, 2011). 4 Griesinger et al. (US 6,097,295; August 1, 2000). 5 Nakamura et al. (US 2014/0205149 A1; July 24, 2014). 6 Hammoud et al. (US 2006/0203088 A1; September 14, 2006). Appeal 2019-005224 Application 15/381,696 4 25, 2019. Appellant focuses on Nemat-Nasser and argues that the reference “must not be understood as describing that [a] CPU determines individual threshold values.” Appeal Br. 14. According to Appellant, “at best, one may derive that one or more threshold values are somewhere stored to which the CPU has access.” Appeal Br. 15. Appellant also contends that “there is no hint [in Nemat-Nasser] that the actual threshold value should be selected with respect to a certain person.” Appeal Br. 15. In Appellant’s view, Nemat-Nasser teaches threshold values that are “general value[s] determined somehow and used for characterizing a micro sleep without reference to any individual person.” Appeal Br. 15. We find Appellant’s arguments unpersuasive. The Examiner did not find that Nemat-Nasser explicitly teaches the disputed limitation as asserted by Appellant. Rather, the Examiner concluded that it would have been obvious to modify Nemat-Nasser’s teachings to arrive at the claimed invention. In the Final Office Action, the Examiner found that Nemat-Nasser teaches exemplary “thresholds used for determining micro sleep” and concluded that “[i]t would have been obvious to one of ordinary skill in the art for the CPU in combination with [a] mirror unit to set the thresholds for the driver because the CPU includes the memory and processing power to process the video generated by the camera.” Final Act. 4 (citations and reference number omitted). The Examiner also concluded that “[i]t would have been obvious to one of ordinary skill in the art for the thresholds to be set according to the baseline of each driver” so that the system, for example, “does not continuously determine a risky operating behavior.” Final Act. 4. These conclusions simply “account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Appeal 2019-005224 Application 15/381,696 5 Inc., 550 U.S. 398, 418.7 Because Appellant’s arguments do not squarely address these conclusions, we see no reason to disturb the Examiner’s rejection of claim 1 under § 103. We therefore sustain this rejection. Because Appellant does not present separate, persuasive arguments for claims 2–20, we also sustain the Examiner’s rejections of these claims under § 103. CONCLUSION Claims Rejected 35 U.S.C. § References/Basis Affirmed Reversed 1, 3, 4, 6–8, 10–20 103 Nemat-Nasser, Terashima 1, 3, 4, 6– 8, 10–20 2 103 Nemat-Nasser, Terashima, Griesinger 2 5 103 Nemat-Nasser, Terashima, Nakamura 5 9 103 Nemat-Nasser, Terashima, Hammoud 9 Overall Outcome 1–20 No period for taking any action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED 7 In fact, the reference teaches adjusting the disclosed thresholds. See, e.g., Nemat-Nasser ¶ 84 (“In some embodiments, the first threshold or the second threshold is dynamically adjusted.”).