Sukesh ShenoyDownload PDFPatent Trials and Appeals BoardAug 3, 20212020003035 (P.T.A.B. Aug. 3, 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. 15/598,852 05/18/2017 Sukesh Shenoy 160347-US-NP 1120 163037 7590 08/03/2021 Advanced Micro Devices, Inc. c/o Kennedy Lenart Spraggins LLP 797 Sam Bass Road #2559 ROUND ROCK, TX 78681 EXAMINER BLOOM, NATHAN J ART UNIT PAPER NUMBER 2666 NOTIFICATION DATE DELIVERY MODE 08/03/2021 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): eofficeaction@appcoll.com kate@klspatents.com office@klspatents.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SUKESH SHENOY Appeal 2020-003035 Application 15/598,852 Technology Center 2600 Before JEAN R. HOMERE, CAROLYN D. THOMAS, and PHILLIP A. BENNETT, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1–20, which constitute all of the claims pending. Appeal Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We refer to the Specification, filed May 18, 2017 (“Spec.”); Final Office Action, mailed April 19, 2019 (“Final Act.”); Appeal Brief, filed Sept. 17, 2019 (“Appeal Br.”); Examiner’s Answer, mailed Jan. 29, 2020 (“Ans.”), and Reply Brief, filed Mar. 16, 2020 (“Reply Br.”). 2 We use the word “Appellant” to refer to “Applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Advanced Micro Devices, Inc. Appeal Br. 1. Appeal 2020-003035 Application 15/598,852 2 II. CLAIMED SUBJECT MATTER According to Appellant, the claimed subject matter relates to a method and system for reporting ambient temperature through infrared (IR) facial recognition by segmenting captured IR image (35) of user (15) in location (13) into IR user image data and IR background image data from which the ambient temperature of the location is determined. Spec. ¶¶ 12– 15, 18. Figure 1, reproduced below, is useful for understanding the claimed subject matter: Figure 1 illustrates computing device (10) including facial recognition software and IR sensor (20) for recognizing face (17) of user (15) in location (13) with background (30). Id. ¶ 16. Appeal 2020-003035 Application 15/598,852 3 Independent claim 1 is illustrative of the claimed subject matter: 1. A method of computing, comprising: taking an IR image of a user and a background with an IR sensor of a computing device, the computing device being in a location; segmenting the IR image into user image data and background image data; and determining an ambient temperature of the location using the background image data. Appeal Br. 27 (Claims App.) (emphasis added). III. REFERENCES The Examiner relies upon the following references.3 Name Reference Date Chen US 9,886,640 B1 Feb. 6, 2018 Cheng US 2013/0289792 A1 Oct. 31, 2013 Tzvieli US 2017/0095157 A1 Apr. 6, 2017 Kitagawa US 2018/0240251 A1 Aug. 23, 2018 IV. REJECTIONS The Examiner rejects claims 1–20 as follows: Claims 1 and 14 stand rejected under 35 U.S.C. § 103 as unpatentable over the combined teachings of Kitagawa and Tzvieli. Final Act. 10–11. 3 All reference citations are to the first named inventor only. Appeal 2020-003035 Application 15/598,852 4 Claims 2–4, 8–10, and 15–17 stand rejected under 35 U.S.C. § 103 as unpatentable over the combined teachings of Kitagawa, Tzvieli, and Chen. Final Act. 11–13.4 Claims 5–7, 11–13, and 18–20 stands rejected under 35 U.S.C. § 103 as unpatentable over the combined teachings of Kitagawa, Tzvieli, and Cheng. Final Act. 13–17.5 V. ANALYSIS We consider Appellant’s arguments seriatim, as they are presented in the Appeal Brief, pages 13–26 and the Reply Brief, pages 2–8.6 We are unpersuaded by Appellant’s contentions. a. Claims 1 and 14 Appellant argues that the Examiner erred in concluding that there is sufficient rationale to combine Kitagawa and Tzvieli to teach or suggest using background IR image to determine ambient temperature, as recited in independent claims 1 and 14. Appeal Br. 14. In particular, Appellant argues because Kitagawa discloses a dedicated temperature sensor to help the weight decision means assess the accuracy of the IR image data based on how close the temperature of an object candidate is to the ambient temperature, modifying it to use Tzvieli’s background IR data for 4 The statement of the rejection omits claims 3, 4, 9, 10, 16, and 17. Final Act. 11. However, because these claims are discussed in the body of the rejection, we treat them as being rejected with this claim group. Id. at 13. 5 Claim 18 is missing from the statement of the rejection. Id. However, because claim 18 recites similar limitation as claim 5 also included in this rejection, we consider claim 18 as being similarly rejected. 6 We have considered in this Decision only those arguments Appellant actually raised in the Briefs. Arguments not made are forfeited. See 37 C.F.R. § 41.37(c)(1)(iv) (2019). Appeal 2020-003035 Application 15/598,852 5 temperature would make such measurements unreliable. Id. at 14–18. More particularly, Appellant argues that even though Tzvieli discloses inward cameras for measuring the temperature of a user as well as outward thermal cameras for taking thermal measurements of the environment, these measurements are not part of IR image data segmented as IR user image data and IR background data. Id. at 21 (citing Tzvieli ¶¶ 337, 343.) According to Appellant, because the outward thermal cameras face away from the user, they teach away from an IR image including both user image data and background data. Id. at 21–22. Appellant’s arguments are not persuasive of reversible Examiner error because they are tantamount to an individual attack against Kitagawa and Tzvieli, as opposed to the proposed combination thereof as relied upon by the Examiner in the rejection of claims 1 and 14. One cannot show non- obviousness by attacking the references or the embodiments thereof individually where the rejections are based on the combined teachings of the references and/or embodiments. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413, 426 (CCPA 1981). The Examiner relies upon Kitagawa for its teaching of IR image data including user image data and IR background data. Ans. 11–14, Final Act. 3–4 (citing Kitagawa ¶¶ 46–48, 52, 57, 61, 62.) Further, the Examiner relies upon Tzvieli’s disclosure of separate IR imaging of user image data, and background image data, which is used to determine the ambient temperature of a location. Id. at 12 (citing Tzvieli ¶¶ 337–343).7 We find the Examiner’s 7 “The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary Appeal 2020-003035 Application 15/598,852 6 proposed combination of the cited teachings of Kitagawa and Tzvieli is no more than a simple arrangement of old elements with each performing the same function it had been known to perform, yielding no more than what one would expect from such an arrangement. See KSR, 550 U.S. at 416. Therefore, the ordinarily skilled artisan, being “a person of ordinary creativity, not an automaton,” would have been able to fit the teachings of the cited references together like pieces of a puzzle to predictably result in an IR imaging device that captures an IR image including an IR user image segment and an IR background image segment from which the ambient temperature is determined. Id. at 420–21. We agree with the Examiner that Tzvieli’s teaching of using an IR background segment to determine therefrom the ambient temperature of a location would not render Kitagawa’s dedicated temperature sensor unsuitable for its intended purpose. Ans. 11–12. The argument that the proposed combination of references would render one of the references unsuitable for its intended purpose, or would change its principle of operation, is a teaching away argument. In re Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984) (The court concluded that in effect, “French teaches away from the board’s proposed modification” because “if the French apparatus were turned upside down, it would be rendered inoperable for its intended reference. . . . Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” Keller, 642 F.2d at 425. “The obviousness analysis cannot be confined by [the] formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of . . . the explicit content of issued patents.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Appeal 2020-003035 Application 15/598,852 7 purpose”).8 As correctly noted by the Examiner, the proposed combination of Tzvieli’s environmental sensor with Kitagawa’s system is not intended to replace the dedicated sensor in the latter system. Ans. 11–12. It is instead intended as an alternative or additional means for detecting the ambient temperature of the location. Id. Accordingly, we agree with the Examiner the proposed combination of Kitagawa and Tzvieli does not teach away from the claimed subject matter.9 Id. Further, we are not persuaded by Appellant’s argument that the Examiner’s proposed reason to combine the teachings of Kitagawa with those of Tzvieli is insufficient, thereby rendering the proposed combination improper. The U.S. Supreme Court has held “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). The Court further instructs that: Often, it will be necessary for a court to look to interrelated teachings of multiple patents; . . . and the background 8 “If references taken in combination would produce a ‘seemingly inoperative device,’ . . . such references teach away from the combination and thus cannot serve as predicates for a prima facie case of obviousness.” McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1354 (Fed. Cir. 2001) (citation omitted); see also In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1382 (Fed. Cir. 2007) (“a reference teaches away from a combination when using it in that combination would produce an inoperative result,” but the obviousness analysis must account for “modifications that one skilled in the art would make to a device borrowed from the prior art”). 9 The Federal Circuit has held “[a] reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.” In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (quoting In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)) Appeal 2020-003035 Application 15/598,852 8 knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue. Id. at 418. “[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited by KSR, 550 U.S. at 418). However, the Court also instructs that “the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR, 550 U.S. at 418. In addition, the Court instructs, “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.” Id. at 417. This precedent controls, and the application of the cited legal principles to the facts of this appeal provide us with the necessary guidance in affirming this obviousness rejection. As noted above, the Examiner relies upon Tzvieli to teach determining the ambient temperature of a location from an IR background image data. Accordingly, the Examiner concludes that, at the time of the claimed subject matter, combining Tzvieli’s teachings with those of Kitagawa to achieve the claimed device would have been obvious to the ordinarily skilled artisan because it would have yielded a more effective way of measuring ambient temperature from a background image where a user is located. Final Act. 11. We agree with the Examiner Appeal 2020-003035 Application 15/598,852 9 that the proposed combination of the teachings of Kitagawa and Tzvieli is supported by a preponderance of the evidence, and the ensuing conclusion of obviousness is consistent with controlling authorities. Id. Because Appellant has not demonstrated that the Examiner’s proffered combination would have been “uniquely challenging or difficult for one of ordinary skill in the art,” we agree with the Examiner that the proposed modification would have been within the purview of the ordinarily skilled artisan. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Ans. 5. Consequently, we are satisfied that, on this record, the Examiner has established that the combination of Kitagawa and Tzvieli teaches or suggests the disputed claim limitations. Because we are not persuaded of Examiner error, we sustain the Examiner’s rejection of claims 1 and 14 as unpatentable over the combination of Kitagawa and Tzvieli. b. Claims 2–4, 8–10, and 15–17 Regarding the rejection of claims 2–4, 8–10, and 15–17, Appellant argues that because Kitagawa and Tzvieli do not pertain to facial recognition, they do not teach the limitations of the cited claims. Appeal Br. 22–23. Appellant’s arguments are not persuasive. As correctly noted by the Examiner, Kitagawa discloses an IR imaging device for capturing an IR image of a subject in a particular background, wherein the temperature of the subject is compared with the ambient temperature of the background to determine whether the detected subject includes a person or not. Ans. 15 (citing Kitagawa, Figs. 3A, 3B), see also id. ¶¶ 57–62, 80. Accordingly, we sustain the Examiner’s rejection of claims 2–4, 8–10, and 15–17. Appeal 2020-003035 Application 15/598,852 10 c. Claims 5–7, 11–13, 19, and 20 Regarding the rejection of claims 5–7, 11–13, 19 and 20, Appellant argues that the Examiner erred in finding that the combination of Kitagawa, Tzvieli, and Cheng teaches the limitations of the cited claims. Appeal Br. 24–25. In particular, Appellant argues that because Cheng includes a dedicated ambient temperature sensor, like in Kitagawa, and that Cheng is unrelated to IR imaging, the proposed combination of references is not proper. Id. Appellant’s arguments are not persuasive because they constitute an individual attack against Kitagawa, Tzvieli, and Cheng, as opposed to the proposed combination thereof. As correctly noted by the Examiner, Cheng is relied upon for its teaching performing thermal management to thereby complement the Kitagawa-Tzvieli combination in processing IR images to detect ambient temperature from IR background images. Ans. 17 (citing Cheng ¶¶18, 25). Accordingly, we sustain the Examiner’s rejection of claims 5–7, 11–13, 19 and 20. VI. CONCLUSION We affirm the Examiner’s rejections of claims 1–20. Appeal 2020-003035 Application 15/598,852 11 VII. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 14 103 Kitagawa, Tzvieli 1, 14 2–4, 8–10, 15–17 103 Kitagawa, Tzvieli, Chen 2–4, 8–10, 15–17 5–7, 11–13, 18–20 103 Kitagawa, Tzvieli, Cheng 5–7, 11–13, 18–20 Overall Outcome 1–20 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation