Nguyen, Evans H. et al.

Patent Trials and Appeals Board

Feb 3, 2020

13803875 - (D) (P.T.A.B. Feb. 3, 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.
13/803,875 03/14/2013 Evans H. Nguyen 066042-8157-04 1219
60840 7590 02/03/2020
MICHAEL, BEST & FRIEDRICH LLP (MT)
100 EAST WISCONSIN AVENUE
SUITE 3300
MILWAUKEE, WI 53202
EXAMINER
GADOMSKI, STEFAN J
ART UNIT PAPER NUMBER
2485
NOTIFICATION DATE DELIVERY MODE
02/03/2020 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):
MKEIPDOCKET@MICHAELBEST.COM
milwaukeeip@milwaukeetool.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte EVANS H. NGUYEN, MATTHEW J. MERGENER,
WADE BURCH, JAMES V. CURTIN, ZACHARY P. HAAS,
BENJAMIN OLIVER RYAN CABOT,
and GARETH MUECKL
____________________

Appeal 2019-001599
Application 13/803,875
Technology Center 2400
____________________
Before ADAM J. PYONIN, PHILLIP A. BENNETT, and
IFTIKHAR AHMED, Administrative Patent Judges.
AHMED, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1, 2, 4–16, and 18–20, which are all of the claims
pending in the application. Claims 3 and 17 have been cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). According to Appellant, the real party in interest is Milwaukee
Electric Tool Corporation. App. Br. 1.
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Technology
The application relates to a thermal detector used to “assess
temperatures of objects within a field-of-view (‘FOV’) of the thermal
detector.” Spec. ¶ 2.
Illustrative Claim
Claim 1 is illustrative and reproduced below with certain limitations at
issue emphasized:
1. A thermal detection device comprising:
an outer housing;
a visual camera configured to generate a first signal
related to a visual image of a scene;
a first thermopile array including a first plurality of
pixels;
a second thermopile array including a second
plurality of pixels;
an array of temperature sensors positioned around
the first thermopile array;
a first control unit including a processor and a first
memory, the first control unit connected to the first
thermopile array and configured to generate a second
signal related to a thermal image of the scene, the second
signal associated with a temperature sensed by at least one
of the first plurality of pixels in the first thermopile array,
the first control unit positioned within a sub-housing, the
sub-housing including at least one metallic side surface;
a second control unit including a processor and a
second memory, the second control unit electrically
connected to the visual camera and the first control unit,
the second control unit configured to
receive the second signal from the first control unit,
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receive one or more output signals from the array of
temperature sensors related to a temperature of the
first thermopile array,
generate a thermal map of the first plurality of
pixels in the first thermopile array based on the
one or more output signals from the array of
temperature sensors, the thermal map related to
how each pixel of the first thermopile array is
affected by variations in temperature,
compensate the second signal based on the thermal
map, and
adjust a temperature, using the second thermopile
array, of the at least one of the first plurality of
pixels in the first thermopile array, the temperature
adjusted based on the thermal map; and
a display configured to display the visual image
based on the first signal and the thermal image based on
the compensated second signal.
REJECTIONS
Claims 1, 2, 4, 5, 11–15 and 20 stand rejected under 35 U.S.C.
§ 103(a) as obvious over the combination of Sheard (US 2010/0046577 A1;
Feb. 25, 2010) and Shoda (US 6,133,569 A1; Oct. 17, 2000). Final Act. 7.
Claims 6–10, 16, 18, and 19 stand rejected under 35 U.S.C. § 103(a)
as obvious over the combination of Sheard, Shoda, and Shibata (US
2012/0249799 A1; Oct. 4, 2012). Final Act. 16.
Claims 15, 16, 18–20 stand rejected under 35 U.S.C. § 112, first
paragraph, as having limitations not supported by the Specification. Final
Act. 5–6.
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ISSUES
1. Did the Examiner err in finding that Sheard teaches or suggests
“generat[ing] a thermal map of the first plurality of pixels in the
first thermopile array based on the one or more output signals
from the array of temperature sensors, the thermal map related
to how each pixel of the first thermopile array is affected by
variations in temperature,” as recited in claims 1 and 15?
2. Did the Examiner err in concluding that the Specification fails
to provide written description support for claim 15 under 35
U.S.C. § 112, first paragraph?
ANALYSIS
§ 103 Rejection of Claims 1, 2, 4, 5, 11–15 and 20
Independent claims 1 and 15 recite “generat[ing] a thermal map of
the first plurality of pixels in the first thermopile array based on the one or
more output signals from the array of temperature sensors, the thermal map
related to how each pixel of the first thermopile array is affected by
variations in temperature.” Appeal Br. 12, 16 (emphasis added).
The Examiner finds that Sheard teaches this limitation. Final Act. 9.
The Examiner determines that Sheard discloses “a plurality of FPA2
temperature sensors 166 mounted on either side of TSB 132 which monitor
the temperature of the FPA 160 for offset calculation.” Ans. 9 (citing
Sheard ¶ 36). According to the Examiner, these “FPA temperature sensors
166 of Sheard measure the temperature of a thermopile array in order to
perform offset calculations and determine how each pixel of the first

2 Appellant states that focal plan array (“FPA”) is an alternative name that
can be used to describe a thermopile array. Appeal Br. 8, n. 37.
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thermopile array is affected by variations between the temperature measured
by the pixels of the thermopile array and the plurality of temperature
sensors.” Id. at 8 (citing Sheard ¶ 36). The Examiner further finds that
because Sheard discloses “how offset correction can be stored and later
applied,” and also discloses “different temperature sensors monitoring
different locations of the FPA 160 for the storage of offset calculations,
Sheard effectively ‘maps’ the sensor locations and their respective output
temperatures signals of corresponding pixels of the FPA.” Id. at 9 (citing
Sheard ¶¶ 3, 36). The Examiner adds that Sheard’s disclosure is sufficient to
teach the limitation given “the functional language of the [Applicant’s
Specification] and lack of specifics regarding the generation of a thermal
map.” Id. at 9.
Appellant argues that the “Examiner equates the mere reading of
signals from temperature sensors as the claimed generation of a thermal
map.” Appeal Br. 9. According to Appellant, a “thermal map represents
how individual pixels in a thermopile array are affected by variations in
temperature,” and “the generation of a thermal map requires a marrying of
temperature information from an array of temperature sensors related to a
thermopile array and the actual pixels of the thermopile array themselves.”
Id. Appellant asserts that “Sheard never discloses the impact of a
temperature reading from the temperature sensor 166 on individual pixels of
a thermopile array” or “how such a temperature reading relates to how
individual pixels of the thermopile array are affected by variations in
temperature.” Id. Therefore, Appellant concludes, Sheard fails to teach the
“generation of a thermal map based on output signals from an array of
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temperatures sensors that relates to how each pixel of a thermopile array is
affected by variations in temperature.” Id.
We agree with Appellant that the Examiner has not sufficiently
explained how Sheard teaches or suggests generating a thermal map, based
on output signals from an array of temperature sensors, that relates to how
each pixel of the first thermopile array is affected by variations in
temperature. Although we agree with the Examiner that Sheard discloses
“how offset correction can be stored and later applied,” that offset correction
teaching is based on “observing a uniform thermal scene (e.g., by placing a
shutter between the optics and the FPA) and measuring offset correction data
for each pixel,” not on output signals from an array of temperatures sensors.
See Sheard ¶ 3. The Examiner has not shown Sheard’s separate disclosure
of FPA temperature sensor 166 teaches the generation of a thermal map
relating to pixel behavior. Id. ¶ 36.
Although Sheard discloses FPA temperature sensor 166 as one of
three types of sensors used by Sheard’s instrument, and also states that “one
or more of such sensors may be used in offset compensation calculations,”
the Examiner fails to sufficiently explain how that disclosure teaches or
suggests “different temperature sensors monitoring different locations of the
FPA 160,” or teaches “map[ping] the sensor locations and their respective
output temperatures signals of corresponding pixels of the FPA.” Ans. 9;
Sheard ¶ 36. Instead, Sheard’s express disclosure is limited to a single FPA
temperature sensor 166. Sheard ¶ 36, Fig. 8. It is therefore unclear from the
record before us that the readings from the FPA temperature sensor in
Sheard could be used to generate a thermal map relating to the variations
found in each pixel of the FPA in the manner determined by the Examiner.
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Thus, we agree with Appellant that the Examiner has not shown that
Sheard teaches or suggests “generat[ing] a thermal map of the first plurality
of pixels in the first thermopile array based on the one or more output
signals from the array of temperature sensors, the thermal map related to
how each pixel of the first thermopile array is affected by variations in
temperature” as recited in independent claims 1 and 15.
The Examiner also does not rely on Shoda as teaching this claim
limitation in support of the obviousness rejection based on Sheard and
Shoda. Accordingly, given the record before us, we do not sustain the
Examiner’s rejection of independent claims 1 and 15, and their dependent
claims 2, 4–14, 16, and 18–20.
§ 112 Rejection of Claims 15, 16, 18–20
Independent claim 15 recites “compensate[ing] the pixel gain value
for the at least one of the first plurality of pixels within the first thermopile
array based on the thermal map.” Appeal Br. 16 (emphasis added). The
Office Action titles the rejection as follows:
Claims 15, 16 and 18-20 are rejected under 35 U.S.C. 112(b) or
35 U.S.C. 112 (pre- AIA), second paragraph, as being indefinite
for failing to particularly point out and distinctly claim the
subject matter which the inventor or a joint inventor, or for pre-
AIA the applicant regards as the invention.
Final Act. 5 (emphasis added). The Examiner however describes the
rejection as:
Regarding independent claims 15, the combination of “a pixel
gain value” and amended “a thermal map,” specifically
“compensate the pixel gain value for the at least one of the first
plurality of pixels within the first thermopile array based on the
thermal map” is not supported by the specification at the time
the application was filed.
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. . .
Examiner notes the pixel gain technique is never used together
with the thermal map technique and there is no compensating a
pixel value based on the thermal map. Therefore, the examiner
notes the addition of a thermal map to claim 15 in addition to the
recitation of a pixel gain is not supported by the specification.
Id. at 6 (citing Spec. ¶ 52).
Appellant argues that “[t]he Examiner has justified a rejection for
indefiniteness under 35 U.S.C. § 112, second paragraph, by asserting that
Appellant’s specification lacks written description support,” “a requirement
under 35 U.S.C. § 112, first paragraph.” Appeal Br. 5 (emphasis added).
Therefore, Appellant asserts, “the Examiner has not established that
independent claim 15 is indefinite.” Id.
In response, the Examiner acknowledges that “the statement of
statutory basis for 35 U.S.C. [§] 112, second paragraph was incorrectly
provided in the most recent Office Action in place of the statement of
statutory basis for 35 U.S.C. [§] 112 first paragraph.” Ans. 3. “Examiner
concedes this was done inadvertently,” but also determines that “it should be
clear by the wording of the rejection in combination with previously
presented [§] 112 first paragraph rejections related to a pixel gain, the
rejection is a [§] 112 first paragraph rejection for lack of written
description.” Id. at 4. Because Appellant “does not attempt to argue against
the written description issue,” the Examiner believes “that the [§] 112
rejection should be maintained under 35 U.S.C. [§] 112, first paragraph.”
Id. at 5.
In its reply, Appellant argues that the Examiner’s Answer attempts to
modify the appealed rejection” but “has not, however, presented any new
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grounds for rejection that differ from those grounds previously presented in
the Final Office action.” Reply Br. 2.
We determine it is clear that the rejection—as articulated in the Final
Action—in substance is a §112 first paragraph rejection for lack of written
description support. Final Act. 6. The Examiner quotes the entirety of
paragraph 52 of the Applicant’s Specification, relating to “pixel gain values”
and emphasizes the portion of the claim limitation (“based on the thermal
map”) that “is not supported by the Specification.” Id. (citing ¶ 52). The
Examiner further clarifies in the Answer that “the [§] 112 rejection should
be maintained under 35 U.S.C. [§] 112, first paragraph.” Ans. 5. Moreover,
Appellant understands the rejection as “asserting that Appellant’s
specification lacks written description support,” “a requirement under 35
U.S.C. § 112, first paragraph.” Appeal Br. 5 (emphasis added).
To the extent that Appellant assigns error to the Examiner in allegedly
failing to follow MPEP procedures and improperly modifying the ground for
rejection under § 112, allegations of such procedural error are properly
resolvable via petition. See 37 C.F.R. §§ 1.181, 41.40(a); MPEP 1207.03.
The Board “will not ordinarily hear a question that should be decided by the
Director on petition.” Ex parte Frye, 94 USPQ 2d 1072, 1077–78 (BPAI
2010) (precedential) (quoting MPEP § 1201). Here, Appellants have not
shown that the argued impropriety is within the jurisdiction of the Board.
We must therefore address the appealed rejection as presented by the
Examiner, i.e., as a §112, first paragraph rejection. Appellant fails to
address the merits of the rejection on appeal. Appeal Br. 5 (addressing the
rejection under §112, second paragraph); Reply Br. 2. We therefore sustain
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the rejection of claim 15, and its dependent claims 16 and 18–20 under
§ 112, first paragraph for lack of written description.
DECISION
For the reasons above, we affirm the Examiner’s decision rejecting
claims 15, 16, and 18–20 under § 112, first paragraph, but we reverse the
Examiner’s decision rejecting 1, 2, 4–16, and 18–20 under § 103(a).
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1, 2, 4, 5,
11–15, 20
103(a) Sheard, Shoda 1, 2, 4, 5,
11–15, 20
6-10, 16, 18,
19
103(a) Sheard, Shoda, Shibata 6–10, 16,
18, 19
15, 16, 18–
20
112 Lack of written
description
15, 16, 18–
20

Overall
Outcome
15, 16, 18–
20
1, 2, 4–14
TIME TO RESPOND
No time for taking 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.
§ 41.50(f).
AFFIRMED-IN-PART