Mark Olsson et al.Download PDFPatent Trials and Appeals BoardMay 20, 20212020001323 (P.T.A.B. May. 20, 2021) Copy Citation 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. 15/187,785 06/21/2016 Mark S. Olsson SEEK 09-280-202 7384 13235 7590 05/20/2021 Steven C. Tietsworth 3855 Ruffin Road San Diego, CA 92123 EXAMINER HAIEM, SEAN N ART UNIT PAPER NUMBER 2422 NOTIFICATION DATE DELIVERY MODE 05/20/2021 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): steven.tietsworth@seescan.com susan.hammons@seescan.com tietsworth@cox.net PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARK S. OLSSON, SCOTT A. POWELL, and RYAN B. LEVIN Appeal 2020-001323 Application 15/187,785 Technology Center 2400 Before JEAN R. HOMERE, ADAM J. PYONIN, and MICHAEL J. ENGLE, Administrative Patent Judges. PYONIN, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s rejection. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Herein, “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as SeeScan, Inc. Appeal Br. 1. Appeal 2020-001323 Application 15/187,785 2 STATEMENT OF THE CASE Introduction The claimed subject matter “relates to ground tracking devices and methods for tracking ground movement of a buried utility locator or other device using two or more offset cameras or other imaging sensors to capture images and locate ground features within the images using correlations or other image processing.” Spec. ¶¶ 2, 7, 72. Claims 1–18 are pending; claims 1 and 13 are independent. Appeal Br. 11–14. Claim 1 is reproduced below for reference (emphasis added): 1. A buried utility locator, comprising: a dodecahedral antenna array comprising twelve antenna coils; electronics coupled to an output of the dodecahedral antenna array for determining positional information associated with a buried utility based on signals received from the twelve antenna coils and storing the determined positional information in a non-transitory memory; and a stereo-optical ground tracker, including;2 a first camera element; a second camera element offset in position relative to the first camera element; and a processing element coupled to an output from the first camera element and the second camera element, the processing element programmed to: receive an image from the first camera element and an image from the second camera element, wherein the first camera element image and the second camera element image are captured with the ground tracking apparatus at a first position; detect a ground feature in both the image from the first camera element and the image from the second camera element; 2 In the event of further prosecution, Appellant may wish change the semicolon following “including” to be a colon. Appeal 2020-001323 Application 15/187,785 3 determine, based on a position of the ground feature in the image from the first camera element and a position of the ground feature in the image from the second camera element, a height value of the ground tracker above the ground feature at the first position; and store the height value at the first position in the non- transitory memory. Appeal Br. 11. The Examiner’s Rejection Claims 1–18 are rejected under 35 U.S.C. § 103 as being unpatentable over Olsson-Chapman (US 2014/0313321 A1; Oct. 23, 2014) in view of Olsson-Merewether (US 2013/0127470 A1; May 23, 2013). Final Act. 4. ANALYSIS We have reviewed the Examiner’s rejection in light of Appellant’s arguments. Arguments that Appellant could have made but chose not to make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2018). Appellant does not provide separate substantive arguments for the claims. See Appeal Br. 9. We select claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv). We disagree with Appellant that the Examiner erred and adopt as our own the findings and reasons set forth by the Examiner, to the extent consistent with our analysis below. We add the following primarily for emphasis. Determine a Height Appellant argues the Examiner’s rejection of independent claim 1 is in error, because the cited art “says absolutely nothing about stereoptic image processing to determine a height of the tracker above the ground as is Appeal 2020-001323 Application 15/187,785 4 claimed.” Appeal Br. 5. According to Appellant, Olsson-Chapman “clearly explains that a separate distance sensor is used in combination with color sensors to track movement” whereas “[t]he presently claimed invention determines height as claimed in an entirely different unrelated way using trigonometry applied to common features detected on both images.” Id. at 5, 6. We are not persuaded the Examiner errs. We note Appellant’s arguments are not commensurate with the scope of claim 1: the claim makes no mention of “using trigonometry” or that “distance would be determined solely by the two cameras.” Contra Appeal Br. 5; Reply Br. 3. Rather, the claimed height value is determined “based on a position of the ground feature” in each of the images. Appeal Br. 11. Although the Specification explains that calculations may include “basic trigonometry” (Spec. ¶ 144), this is merely one non-limiting example provided (see Spec. ¶ 89). Particularly, the Specification contemplates determining the height in various different ways: In typical embodiments, height of the ground tracker above the surface may be determined solely by the processing of images from the first and second cameras as described herein; however, in some embodiments, an IR or other distance measurement sensor may be used in place of or in addition to the height measurements based on image processing described herein. Spec. ¶ 122; see also Spec. ¶¶ 129, 160. In light of the Specification, we determine the claimed height value of a feature in an image can be determined using non-camera-based distance sensors in coordination with the images. See Spec. ¶¶ 98, 132. We agree with the Examiner that Olsson-Chapman teaches or suggests the disputed claim limitations. See Ans. 3, 4. Olsson-Chapman’s Appeal 2020-001323 Application 15/187,785 5 buried object locator has “a pair of camera modules . . . and a processing element disposed in the housing and configured to receive images and/or video streams from the camera modules and generate, based at least in part on the received images or video streams, location or tracking information.” Olsson-Chapman ¶ 53. First, Olsson-Chapman discloses “determin[ing] a three-dimensional model of an area being imaged by the camera modules based on stereoscopic pairs of images or a stereoscopic video stream.” Olsson-Chapman ¶ 52; Final Act. 5. Such three-dimensional model—based on first and second images—includes a height component. Appellant does not directly address the Examiner’s citation to the three-dimensional model teachings of Olsson-Chapman (see Final Act. 5), or otherwise present persuasive evidence or technical reasoning to show that this three- dimensional determination fails to teach or suggest the claimed determination of height. For at least this reason, we are not persuaded of Examiner error. Second, Olsson-Chapman, similar to how one of ordinary skill would reasonably construe pending claim 1, teaches the buried object locator may further include a distance sensor, and “[t]he location or tracking information may be further based in part on distance data provided from the distance sensors. The distance data may be associated with a feature of the images or video stream to determine the location or tracking information.” Id. ¶ 54. Olsson-Chapman also discloses “the pixels of the image can be associated with the distance data,” and “the distance sensors . . . may each emit an infrared or other similar beam . . . . [which] may project a distance indicator mark . . . onto the ground surface” where the mark is “viewable via the cameras.” Id. ¶¶ 136, 140 (cited in Appeal Br. 6). Olsson-Chapman’s use of Appeal 2020-001323 Application 15/187,785 6 cameras in coordination with an IR sensor, therefore, teaches or suggests determining a height “based on a position of the ground feature” in each of the images, within the meaning of the claim. We are not persuaded the Examiner errs in finding Olsson-Chapman, thus, teaches or suggests “determin[ing], based on a position of the ground feature in the image from the first camera element and a position of the ground feature in the image from the second camera element, a height value of the ground tracker above the ground feature at the first position,” as recited by claim 1 and consistent with the Specification. See Final Act. 5, 6. Combination of References Appellant argues the Examiner errs in finding one of ordinary skill would have modified Olsson-Chapman with the teachings of Olsson- Merewether because “there are literally hundreds if not thousands of different ways one could implement ground tracking on a device such as a locator,” and “[t]he fact that the Examiner has picked this particular [ground tracking teaching] out of many different ways of implementing ground tracking strongly suggests that the selection of [Olsson-Merewether] is based on hindsight bias.” Appeal Br. 7. Appellant further contends the Examiner’s combination rationale is in error: the Examiner’s sole reason why one of ordinary skill in the art would combine these two references (to “detect a dipole transmitter (sonde) signa[l] and find the buried utility”) are factually wrong as both [cited references], and most if not all of Applicant’s earlier locator patents and patent publications disclose locators that are perfectly capable of detecting both sondes and buried pipes. Id. at 9. Appeal 2020-001323 Application 15/187,785 7 Appellant’s argument against the Examiner’s combination reasoning is unpersuasive for not addressing the Examiner’s analysis. That is, the Examiner finds one of ordinary skill would have combined Olsson-Chapman with the teachings of Olsson-Merewether “because it enhances the accuracy of locating the underground magnetic source (a dipole transmitter called a [sonde]) when the signal can be detected more accurately and faster.” Final Act. 3. We find this analysis to be reasonable; in contrast, Appellant provides no arguments or evidence to show such accuracy and speed enhancements are insufficient to support the finding of obviousness. Thus, we are unpersuaded of error in the obviousness rejection, as the Examiner’s combination of Olsson-Chapman and Olsson-Merewether is “the predictable use of prior art elements according to their established functions,” yielding predictable results. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 401 (2007). Moreover, we are unpersuaded by Appellant’s hindsight arguments. See Appeal Br. 7, 8. In determining obviousness “a reference . . . is prior art for all that it teaches.” Beckman Instrs., Inc. v. LKB Produkter AB, 892 F.2d 1547, 1551 (Fed. Cir. 1989). Appellant’s citation to various alternative teachings in the cited art does not negate the teachings relied on by the Examiner. Nor has Appellant provided objective evidence of secondary considerations, which “operates as a beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese & Powder Sys., 725 F.3d 1341, 1352 (Fed. Cir. 2013). We find the Examiner has presented articulated reasoning with rational underpinnings sufficient to justify the legal conclusion of obviousness; thus we fail to find the Examiner’s rejection is based on impermissible hindsight. Cf. In re Cree, 818 F.3d 694, 702 n.3 (Fed. Cir. Appeal 2020-001323 Application 15/187,785 8 2016) (Appellant’s hindsight argument is fully answered by sufficient obviousness reasoning.). We sustain the Examiner’s obviousness rejection of independent claim 1. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–18 103 Olsson-Chapman, Olsson-Merewether 1–18 TIME PERIOD FOR RESPONSE No time period for taking any subsequent 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 Copy with citationCopy as parenthetical citation