Mark Olsson et al.

Patent Trials and Appeals Board

May 20, 2021

2020001323 (P.T.A.B. May. 20, 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.
15/187,785 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

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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.
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Application 15/187,785

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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
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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
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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
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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.
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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.
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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