RICHMOND, Thomas R.

Patent Trials and Appeals Board

May 22, 2020

14775082 - (D) (P.T.A.B. May. 22, 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.
14/775,082 09/11/2015 Thomas R Richmond DOORK-P3915.2 5728
21259 7590 05/22/2020
J. MARK HOLLAND AND ASSOCIATES
J. Mark Holland
19800 MACARTHUR BLVD
SUITE 300
IRVINE, CA 92612
EXAMINER
CHU, KATHERINE J
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
05/22/2020 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):
OFFICE@JMHLAW.COM
mholland@jmhlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS R. RICHMOND
Appeal 2019-006266
Application 14/775,082
Technology Center 3600

Before DANIEL S. SONG, JEREMY M. PLENZLER, and
LEE L. STEPINA, Administrative Patent Judges.

STEPINA, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, and 5–9. 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. Appellant identifies the real parties in interest as Thomas Richmond
and Doorking, Inc. Appeal Br. 3.
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Application 14/775,082

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CLAIMED SUBJECT MATTER
The claims are directed to “devices for helping to prevent vehicular
barrier gate arms from lowering in certain situations (such as if an
obstruction such as a person is present), while not impacting the primary
operation and function of the barrier arm.” Spec. 1.
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. Apparatus for vehicular access control, including:
an access control arm sized and positioned to move
between a default closed position (that bars passage by a vehicle)
and a temporary open position (that permits passage by a
vehicle);
a sensor system for differentiating between a vehicular and
non-vehicular interruption, said system including:
a photo-beam sensor that is active at least during motion
of the control arm from the open position to the closed position;
and
a vehicle sensor positioned and configured to determine
whether said interruption of the photo-beam sensor has been
caused by a vehicle, and (a) upon determining said interruption
to be a vehicular interruption, said vehicle sensor signals the
control arm to continue its motion from the open position to the
closed position, and (b) upon determining said interruption to be
a non-vehicular interruption, said sensor system causes the
control arm to stop its motion from the open position to the
closed position.
Appeal Br. 15 (Claims App.).

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Application 14/775,082

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Jankovsky US 7,481,598 B2 Jan. 27, 2009
Polyakov US 2003/0222789 A1 Dec. 4, 2003
Rihl US 2009/0244889 A1 Oct. 1, 2009
Pepperl SENSOR
TECHNOLOGY
FOR DOORS,
GATES AND
ELEVATORS,
PEPPERL+FUCHS
Appellant does not
dispute that Pepperl
qualifies as prior art.
See Appeal Br.
REJECTIONS
I. Claim 9 is rejected under 35 U.S.C. § 112, second paragraph, as
indefinite.
II. Claims 1 and 2 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Pepperl and Jankovsky.
III. Claims 1, 2, 5, and 7–9 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Pepperl and Polyakov.
IV. Claim 6 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Pepperl, Polyakov, and Rihl.

OPINION
Rejection I–Indefiniteness (Claim 9)
In determining that claim 9 is indefinite, the Examiner poses the
questions, “[w]hat does ‘logic’ mean? Computer logic exhibited in the form
of an algorithm? Or a gate operator watching the sensor readings and using
his/her own logic to open or close the gate?” Final Act. 2.
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Appellant does not address the rejection of claim 9. See Appeal Br.
Accordingly, we summarily sustain this rejection.2
Rejection II–Pepperl and Jankovsky (Claims 1 and 2)
The Examiner finds that Pepperl discloses many of the elements
recited in claim 1, including a sensor system for differentiating between a
vehicular and non-vehicular interruption, but does not “disclose that upon an
interruption caused by a vehicle, said vehicle sensor signals the control arm
to continue its motion from the open position to the closed position.” Final
Act. 3. To address this deficiency, the Examiner finds Jankovsky teaches (i)
a fail-safe mode that allows a user to escape a telescoping arm, thus
preventing collision with the user, and (ii) a fail-secure mode that prevents
users from entering a secure area upon detection of an unauthorized user.
Final Act. 3–4 (citing Pepperl 2–3). The Examiner determines that because
“Jankovsky teaches that the barrier can operate in failsafe mode to prevent
collision with the user, much like Pepperl’s operation, and also that the
barrier can operate in fail-secure mode to close no matter what to prevent
unauthorized users from entry,” it would have been obvious “to modify
Pepperl’s control in view of Jankovsky’s disclosure so that it operates in
failsafe mode if a person is detected and that it operates in fail-secure mode
if a vehicle is detected.” Id. at 4.

2 The Examiner’s Answer states “[e]very ground of rejection set forth in the
Office action dated 7/25/2018 from which the appeal is taken is being
maintained by the examiner except for the grounds of rejection (if any) listed
under the subheading ‘WITHDRAWN REJECTIONS.’” Ans. 3. The
Examiner’s Answer does not list any rejections as being withdrawn. See
Ans.
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Appellant first argues:
Among other things, neither reference discloses or suggests “a
sensor system for differentiating between a vehicular and non-
vehicular interruption, . . . including . . . a vehicle sensor
positioned and configured to determine whether said interruption
of the photo-beam sensor has been caused by a vehicle, and upon
determining said interruption to be a vehicular interruption, said
vehicle sensor signals the control arm to continue its motion from
the open position to the closed position.”
Appeal Br. 8.
This argument does not identify Examiner error because the Examiner
cites no single reference as disclosing all of the elements of claim 1 quoted
by Appellant, and, instead, relies on a combination of Pepperl and
Jankovsky to do so. See Final Act. 3–4. The Examiner provides a statement
of reasoning as to why the combination would have been obvious, and
Appellant’s argument above does not address this combination and
reasoning.
Appellant next argues Pepperl “does NOT disclose or suggest a sensor
which is capable of signaling a gate control arm to continue its downward
motion (during its motion from the open to closed position) if an
(unauthorized) vehicle is present, and Jankovsky does not make up for the
shortcomings of Pepperl in that regard.” Appeal Br. 9. Specifically,
Appellant asserts, “nowhere in Jankovsky is there any mention of his
telescoping arm continuing its motion from the open/retracted to
closed/extended position in order to slam into and prevent an unauthorized
vehicle from gaining access.” Id.
In response, the Examiner reiterates that Jankovsky discloses both a
fail-safe mode and a fail-secure mode. Ans. 4. The Examiner explains, “in
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fail-safe mode, the barrier opens/retracts to prevent a collision with the user,
and in fail-secure mode, in order to exclude an unauthorized user from
entering the secure area, the barrier must close into/onto the unauthorized
user. The barrier must do that because Jankovsky does not present any other
way to exclude an unauthorized user.” Id.
In reply, Appellant argues that in “Jankovsky’s fail-secure mode,
Jankovsky does not differentiate between a vehicle and non-vehicle (i.e., a
person) interruption. Instead, Jankovsky’s telescoping arm would collide
with a ‘user’ regardless of if that user was a person/non-vehicle or vehicle.”
Reply Br. 8 (emphasis omitted). Appellant goes on to assert “Jankovsky
certainly doesn’t appreciate Appellant’s logic for differentiating between a
vehicular and non-vehicular interruption and merely has two modes for
either preventing collision (fail-safe) or excluding entry (fail-secure) of a
user, regardless of whether that user is a vehicle or a person.” Id. at 9
(emphasis omitted).
Appellant’s argument does not point out any error in the Examiner’s
finding (based on a comparison of Jankovsky’s fail-safe mode to
Jankovsky’s fail-secure mode) that the fail-secure mode of Jankovsky closes
the barrier in the event of detection of an unauthorized user. Indeed, in the
Reply Brief, after focusing on whether Jankovsky discloses differentiating
between a vehicular and non-vehicular interruption, Appellant appears to
concede this point. See Reply Br. 8. “Instead, Jankovsky’s telescoping arm
would collide with a ‘user’ regardless of if that user was a person/non-
vehicle or vehicle.” Id.
Nor does Appellant’s argument that Jankovsky does not distinguish
between a vehicle and non-vehicle apprise us of Examiner error. In this
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regard, the Examiner relies on Pepperl, not Jankovsky, to teach “sensor
intelligence [that] allows detection of direction and differentiation between
people and vehicles.” Final Act. 3. Thus, Appellant’s argument on this
point does not address the rejection as set forth in the Final Office Action.
We have considered all of Appellant’s arguments in support of the
patentability of claim 1, but find them unavailing. Accordingly, we sustain
the rejection of claim 1. Claim 2 falls with claim 1 inasmuch as Appellant
makes no separate argument in support of the patentability of claim 2. See
Appeal Br. 8–10.
Rejection III–Pepperl and Polyakov (Claims 1, 2, 5, and 7–9)
Appellant argues for the patentability of the claims subject to
Rejection III, i.e., claims 1, 2, 5, and 7–9, as a group. Appeal Br. 12. We
select claim 1 as representative of the group, and claims 2, 5, and 7–9 stand
or fall with claim 1.
The Examiner makes substantially the same findings regarding the
disclosure of Pepperl as were made in Rejection II. See Final Act. 3–5. The
Examiner relies on Polyakov to teach “a vehicle gate/barrier with technology
that is able to determine whether a vehicle is authorized or not, and further
that if the vehicle is unauthorized, the actuator closes the gate, moves the
barrier to prevent passage of the vehicle.” Id. at 5 (citing Polyakov ¶ 13).
The Examiner determines it would have been obvious “to modify Pepperl’s
system to close the gate/barrier arm for a vehicle interruption in the case of
an unauthorized vehicle.” Id.
Appellant contends
Polyakov’s mere mention that an actuator may be a barrier or
gate is not sufficient to show that it would be obvious to a person
of ordinary skill to combine Polyakov’s image capturing device
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with Pepperl’s gate in order to achieve Appellant’s claimed
inventions, which differentiate between a vehicular and non-
vehicular interruption and have further sensors/logic which close
the control arm upon detection of an unauthorized vehicle.
Appeal Br. 11–12. Thus, Appellant argues that Polyakov fails to
differentiate between interruptions by vehicles and interruptions by non-
vehicles. Appellant reiterates this argument on pages 10–11 of the Reply
Brief.
The Examiner relies on Pepperl, not Polyakov, to teach differentiation
between vehicular and non-vehicular interruptions. See Final Act. 4. Thus,
Appellant’s argument that Polyakov fails to disclose this feature is not
commensurate with Rejection III. Accordingly, Appellant does not apprise
us of Examiner error. We sustain the rejection of claim 1 as unpatentable
over Pepperl and Polyakov. Claims 2, 5, and 7–9 fall with claim 1.
Rejection IV–Pepperl, Polyakov, and Rihl (Claim 6)
Appellant does not make arguments for the patentability of claim 6
aside from those discussed above regarding claim 1. See Appeal Br. 12.
Accordingly, for the same reasons, we sustain the rejection of claim 6.

CONCLUSION
The Examiner’s rejections are affirmed.

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DECISION SUMMARY

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
9 112, second
paragraph
Indefiniteness 9
1, 2 103(a) Pepperl, Jankovsky 1, 2
1, 2, 5, 7–9 103(a) Pepperl, Polyakov 1, 2, 5, 7–9
6 103(a) Pepperl, Polyakov, Rihl 6
Overall
Outcome
1, 2, 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).
AFFIRMED