Sukesh Shenoy

Patent Trials and Appeals Board

Aug 3, 2021

2020003035 (P.T.A.B. Aug. 3, 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.
15/598,852 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
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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.
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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.

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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.
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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).
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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
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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).
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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))
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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
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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.

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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.

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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