2020006604 (P.T.A.B. May. 18, 2021)

KOMATSU LTD.

Patent Trials and Appeals BoardMay 18, 2021

2020006604 (P.T.A.B. May. 18, 2021)

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. 15/560,177 09/21/2017 Akiyoshi DEGUCHI 209083-0114-00- US-567747 9325 55694 7590 05/18/2021 FAEGRE DRINKER BIDDLE & REATH LLP (DC) 1500 K STREET, N.W. SUITE 1100 WASHINGTON, DC 20005-1209 EXAMINER ABAZA, AYMAN A ART UNIT PAPER NUMBER 2419 NOTIFICATION DATE DELIVERY MODE 05/18/2021 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): DBRIPDocket@faegredrinker.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte AKIYOSHI DEGUCHI, SHUN SAITO, HIROYOSHI YAMAGUCHI, SHUN KAWAMOTO, and TAIKI SUGAWARA ____________________ Appeal 2020-006604 Application 15/560,177 Technology Center 2400 ____________________ Before JOHNNY A. KUMAR, JASON J. CHUNG, and MATTHEW J. McNEILL, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–3 and 5–9.2 On May 4, 2021, there was an Oral Hearing. We will add a transcript to the record in due course. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. According to Appellant, Komatsu Ltd. is the real party in interest. Appeal Br. 3. 2 Claim 4 is canceled. Appeal Br. 39. Appeal 2020-006604 Application 15/560,177 2 Appellant’s Invention Appellant’s invention relates to a work vehicle comprising a vehicular main body, a work implement and two stereoscopic cameras. See Spec. ¶¶ 8, 11.3 Each stereoscopic camera includes a first image pick-up portion and a second image pick-up portion. See id. An optical axis of the first image pick-up portion and an optical axis of the second image pick-up portion are inclined toward the work implement at different angles with respect to a central axis of the work implement. See Abstract, and Fig. 12. Illustrative Claim Claim 1, reproduced below, is representative of the subject matter on appeal (bracketed matter and some paragraphing added). 1. A work vehicle comprising: a vehicular main body; a work implement attached to the vehicular main body, the work implement having a central axis that extends in a fore/aft direction of the vehicular main body in a plane view of the vehicular main body; a first stereoscopic camera to build a three- dimensional shape of existing topography in front of the vehicular main body, the first stereoscopic camera attached to the vehicular main body, and the first stereoscopic camera having a first image pick-up portion and a second image pick-up portion, wherein an optical axis of the first image pick-up portion is inclined towards a direction of extension of the central axis of the work implement in the plane view at a first angle of inclination, an optical axis of the second image 3 We refer to Appellant’s Published Specification, Application No. US 2018/0080199 A1 published on March 22, 2018. Appeal 2020-006604 Application 15/560,177 3 pick-up portion is inclined towards the direction of extension of the central axis of the work implement in the plane view at a second angle of inclination, [L1] the first angle of inclination is greater than the second angle of inclination, and the optical axis of the first image pick-up portion and the optical axis of the second image pick-up portion intersect with the central axis of the work implement in front of the vehicular main body; and a second stereoscopic camera to build the three-dimensional shape of existing topography in front of the vehicular main body, the second stereoscopic camera attached to the vehicular main body, and the second stereoscopic camera having a third image pick-up portion and a fourth image pick-up portion, an optical axis of the third image pick-up portion is inclined towards the direction of extension of the central axis of the work implement in the plane view at a third angle of inclination, an optical axis of the fourth image pick-up portion is inclined towards the direction of extension of the central axis of the work implement in the plane view at a fourth angle of inclination, [L2] the third angle of inclination is greater than the fourth angle of inclination, and the optical axis of the third image pick-up portion and the optical axis of the fourth image pick-up portion intersect with the central axis of the work implement in front of the vehicular main body, wherein the first image pick-up portion, the second image pick-up portion, the third image pick-up portion, and the fourth image pick-up portion are attached to the vehicular main body on one side with respect to the work implement in a lateral direction of the vehicular main body. Appeal Br. 37 (Claims Appendix) (emphases added). Appeal 2020-006604 Application 15/560,177 4 REFERENCES AND REJECTIONS The prior art relied upon by the Examiner is: Claims 1–3 and 5–9 are rejected on the ground of non-statutory obviousness-type double patentable over claims 1 and 4–12 of U.S. serial no. 15/560,179. Final Act. 8. Claims 1–3 and 5–9 are provisionally rejected under the judicially created doctrine of obviousness-type double patenting as allegedly being unpatentable over claims 1 and 3–9 of U.S. serial no. 15/557,496. Final Act. 9. Claims 1–2, 5–6, and 8–9 are rejected under 35 U.S.C. § 103 as being unpatentable over Kitahashi in view of Otomo and in further view of Hieta. Final Act. 9. Claims 3 and 7 rejected under 35 U.S.C. § 103 as being unpatentable over Kitahashi in view of Otomo, Hieta, and in further view of Ishimoto. Final Act. 14. Name Reference Date Kitahashi et al. JP 2012/233353 A Nov. 29, 2012 Otomo et al. JP 2013/036243 A Feb. 21, 2013 Ishimoto et al. JP 2013/002101 A Oct. 1, 2013 Hieta et al. JP 2014/215039 A Nov. 17, 2014 Appeal 2020-006604 Application 15/560,177 5 Appellant’s Contentions4 1. Appellant contends that the Examiner provided insufficient rationale in rejecting claims 1–3 and 5–9 under obviousness-type double patenting rejection. Appeal Br. 12; Reply Br. 2–4. 2. Appellant contends that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103, because the combination of Kitahashi, Otomo, and Hieta fails to establish a sufficient case of obviousness with respect to the required limitations L1 and L2 of independent claim 1. Appeal Br. 14; Reply Br. 4–11. Issues Did the Examiner err in rejecting claims 1–3 and 5–9 under obviousness-type double patenting rejection? Did the Examiner err in rejecting claim 1 under 35 U.S.C. § 103 as being obvious because the combination of fails to teach or suggest the argued limitation? Analysis Obviousness-Type Double Patenting Rejections As discussed above, in the Final Office Action, which was issued in February 2020, the Examiner provisionally rejected claims 1–3 and 5–9 for obviousness-type double patenting over the claims of the ’179 application and the ’496 application. Final Act. 8, 9. The ’496 application subsequently 4 Throughout this Decision, we refer to the Reply Brief filed September 14, 2020 (“Reply Br.”); the Appeal Brief filed June 23, 2020 (“Appeal Br.”); Final Office Action mailed February 7, 2020 (“Final Act.”); and the Examiner’s Answer mailed July 16, 2020 (“Ans.”). Appeal 2020-006604 Application 15/560,177 6 issued as U.S. Patent No. 11,008,735. At least some of the claims relied upon in the provisional obviousness-type double patenting rejection on appeal either clearly are, or may be, different in language or status from the claims originally relied upon, when these rejections were initially made by the Examiner. We decline to reach these double patenting rejections, because the claims now relied upon are not clearly the same as those originally considered by the Examiner, when the rejections were initially made. Ex parte Jerg, 2012 WL 1375142 at *3 (BPAI 2012) (informative) (“Panels have the flexibility to reach or not reach provisional obviousness- type double-patenting rejections.”) (citing Ex parte Moncla, 95 USPQ2d 1884 (BPAI 2010) (precedential)). 35 U.S.C. § 103 Rejection of Exemplary Claim 15 We have reviewed the Examiner’s rejections in light of Appellant’s arguments that the Examiner has erred. We disagree with Appellant’s conclusions. The Examiner has provided a comprehensive response, supported by sufficient evidence, to each of the contentions raised by Appellant. We adopt as our own the findings and reasons set forth by the Examiner in the Answer in response to Appellant’s Appeal Brief (see Ans. 3–18). We highlight and address specific findings and arguments regarding representative claim 1 for emphasis as follows. The Examiner finds that Kitahashi teaches a first angle of inclination different from a second angle of inclination because Figure 12 of Kitahashi clearly shows two image pick-up sections or portions having different 5 Claims 2–3, 5–9 are not argued separately from claim 1 in the Briefs and will not be addressed separately. Appeal 2020-006604 Application 15/560,177 7 inclination angles. Ans. 12–13; Final Act. 10 (citing Kitahashi ¶ 61, Figure 12). The Examiner also finds that the two image pick-up portions are inclined towards a work implement to detect a position of a bucket in the work implement. Final Act. 10 (citing Kitahashi ¶ 61, and Figure 16). Moreover, the Examiner finds that Otomo teaches changing inclination angles of each of the two image pick-up portions to configure a first angle of inclination to be greater than a second angle of inclination because Otomo tilts view angles of the two image pick-up portions to reliably detect a position of the work implement. Ans. 15; Final Act. 11 (citing Otomo ¶¶ 29, 44). The Examiner relies on Figures 3 and 4 of Hieta to teach a second stereoscopic camera with a third image pick-up portion and a fourth image pick-up portion. Ans. 8; Final Act. 12 (citing Hieta ¶ 7, Figure 3, Figure 4, Figure 15 and Figure 16). Appellant argues that Kitahashi does not teach limitations L1 and L2 of claim 1 because Kitahashi fails to disclose two stereoscopic cameras, an optical axis of a stereoscopic camera inclined towards a work implement, and optical axes of a first camera portion and a second camera portion inclined towards a direction of extension of a center axis of the work implement. Appeal. Br. 15, 24. Appellant also argues that Otomo does not teach the claim limitations L1 and L2 because in Otomo, an optical axis of a first image pick-up portion and an optical axis of a second image pick-up portion are parallel. Id. at 27; Reply Br. 8. In addition, Appellant further argues that Hieta does not teach the limitations L1 and L2 because Hieta teaches a first image pick-up portion and a second pick-up portion in each stereoscopic camera having parallel optical axes. Appeal Br. 30; Reply Br. 9. Appeal 2020-006604 Application 15/560,177 8 Based on the record before us, Appellant’s arguments do not apprise us that the Examiner erred in finding that the combination of Kitahashi, Otomo, and Hieta teaches the disputed limitations L1 and L2. As explained below, Appellant’s arguments with respect to Kitahashi, Otomo, and Hieta do not reflect the specific findings made by the Examiner. Figure 12 and Figure 16 of Kitahashi, reproduced below with annotations, teach the “different inclination angles” aspect in a stereoscopic camera (Figure 12 shows that an image pick-up portion 54a-1 and an image pick-up portion 54a-2 have different inclination angles, and the image pick- up portion 54a-1 and an image pick-up portion 54b-2 have different inclination angles; Figure 16 shows that the optical axis (i.e., a line passing through a center of curvature of a lens) of the stereoscopic camera is inclined towards a direction of extension of a center axis of a work implement). Kitahashi’s Figure 12 (modified) is reproduced below. Appeal 2020-006604 Application 15/560,177 9 Modified Figure 12 of Kitahashi illustrates the diagram of a stereo camera 54 with two camera units 54a and 54b. A modified version of Figure 16 of Kitahashi is reproduced below. Appeal 2020-006604 Application 15/560,177 10 Modified Figure 16 of Kitahashi illustrates the diagram of a stereo camera inclining towards a direction of a center axis of a work implement. We disagree with Appellant that Otomo teaches the optical axes of two image pick-up portions are parallel because we note that Figure 3 of Otomo teaches that the optical axes of two image pick-up portions have different inclination angles. Omoto’s Figure 3 (modified) is reproduced below. Appeal 2020-006604 Application 15/560,177 11 Modified Figure 3 of Otomo illustrates a diagram showing two image pick- up portions 19 having different inclination angles. Regarding Appellant’s arguments that Hieta teaches the first image pick-up portion and the second pick-up portion in each stereoscopic camera have parallel optical axes, the Examiner relies upon the combination of Kitahashi, Otomo, and Hieta, rather than Hieta alone, for teaching claim elements L1 and L2. See Final Act. 4–5. Therefore, Appellant’s arguments amount to a misplaced attack on Hieta, where the Examiner relies upon the combination of references to teach L1 and L2. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). In other words, Appellant’s arguments above ignore the combined teachings of Kitahashi, Otomo, and Hieta. Specifically, we find no error Appeal 2020-006604 Application 15/560,177 12 with the Examiner’s proffered findings and conclusions that an ordinarily skilled artisan would have had motivation to apply the teachings of Kitahashi—two image pick-up portions of the stereoscopic camera having different inclination angles (see Final Act. 9–11)—the teachings of Otomo— to adjust the inclination angle of each of the two image pick-up portions to point to a certain target (id. at 11)—and the teachings of Hieta—two stereoscopic cameras (id. at 12)—collectively to arrive at the claimed limitations L1 and L2. Based on this record, Appellant does not persuade us of error in the Examiner’s rejection of independent claim 1, and claims 2, 5–6, and 8–9 falling therewith (Appeal Br. 14) over Kitahashi, Otomo, and Hieta. Appellant does not argue the other pending claims separately with particularity. Accordingly, we also affirm the rejection of claims 3 and 7 over Kitahashi, Otomo, Hieta, and Ishimoto. CONCLUSION We do not reach the Examiner’s provisional rejection of claims 1–3, 5–9 on the ground of non-statutory obviousness-type double-patenting. The Examiner did not err in rejecting claims 1–3, 5–9 under 35 U.S.C. § 103 over the combined teachings and suggestions of the cited references. DECISION SUMMARY Appeal 2020-006604 Application 15/560,177 13 In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–3, 5–9 Nonstatutory Double Patenting6 1–2, 5–6, 8–9 103 Kitahashi, Otomo, Hieta 1–2, 5–6, 8–9 3, 7 103 Kitahashi, Otomo, Hieta, Ishimoto 3, 7 Overall Outcome 1–3, 5–9 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED 6 As explained above, we do not reach this provisional double patenting rejection. Jerg, 2012 WL 1375142 at *3.