TK HOLDINGS INC.

Patent Trials and Appeals Board

Feb 25, 2021

2019005197 (P.T.A.B. Feb. 25, 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.
14/681,723 04/08/2015 Gregory Gerhard SCHAMP TKHDE-1109748 2335
27111 7590 02/25/2021
GORDON & REES LLP
101 WEST BROADWAY
SUITE 1600
SAN DIEGO, CA 92101
EXAMINER
TORRENTE, RICHARD T
ART UNIT PAPER NUMBER
2485
NOTIFICATION DATE DELIVERY MODE
02/25/2021 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):
ipdocket@gordonrees.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte GREGORY GERHARD SCHAMP,
MARIO JOSEPH HADDAD,
MICHAEL JOHN HIGGINS-LUTHMAN, and
TRUMAN SHEN
________________

Appeal 2019-005197
Application 14/681,723
Technology Center 2400
________________

Before JENNIFER L. McKEOWN, JASON J. CHUNG, and
MICHAEL T. CYGAN, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 1, 2, 8–19, and 26.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
INVENTION

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, Joyson Safety Systems
Acquisition LLC is the real party in interest. Appeal Br. 1.
2 Claims 3–7 are cancelled. Appeal Br. 14. Claims 20–25 are withdrawn
pursuant to 37 C.F.R. § 1.142(b) as being drawn to a nonelected
embodiment. Final Act. 2.
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The invention relates to stereo vision systems. Spec. ¶ 2. Claim 1 is
illustrative of the invention and is reproduced below:
1. A stereo vision system for use in a vehicle, the
stereo vision system comprising:
a first camera sensor configured to sense first reflected
energy and generate first sensor signals based on the sensed first
reflected energy;
a second camera sensor configured to sense second
reflected energy and generate second sensor signals based on the
sensed second reflected energy;
a processor configured to receive the first sensor signals
from the first camera sensor and configured to receive the second
sensor signals from the second camera sensor; and
an active illumination component configured to emit
infrared radiation that is reflected off an object outside of the
vehicle, wherein
the processor is configured to perform stereo matching
based on the first sensor signals and the second sensor signals;
the first camera sensor is configured to sense reflected
energy that is shortwavelength infrared radiation;
the second camera sensor is configured to sense reflected
energy that is shortwavelength infrared radiation;
an energy sensitive area of the first camera sensor is
constructed using indium gallium arsenide; and
an energy sensitive area of the second camera sensor is
constructed using indium gallium arsenide.
Appeal Br. 13 (Claims Appendix).

REJECTIONS
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The Examiner rejects claims 1, 2, 8–10, and 263 under 35 U.S.C.
§ 103 as being unpatentable over the combination of Lindgren (US
2012/0038748 A1; published Feb. 16, 2012) and Breed (US 2008/0046150
A1; published Feb. 21, 2008).4 Ans. 3–6; Final Act. 2–4.
The Examiner rejects claims 11–19 under 35 U.S.C. § 103 as being
unpatentable over the combination of Lindgren, Breed, and Ebisawa (US
2015/0287206 A1; international filing date May 24, 2013). Ans. 6–8; Final
Act. 5.
ANALYSIS
I. Claims 1, 9–19, 26 Rejected Under 35 U.S.C. § 103
A. Lindgren Discussion
The Examiner finds Lindgren teaches infrared cameras 12a, 12b
receiving incident infrared radiation having wavelengths below 5 microns,
which the Examiner maps to the limitation “the first camera sensor is
configured to sense reflected energy that is short-wavelength infrared
radiation; the second camera sensor is configured to sense reflected energy
that is short-wavelength infrared radiation” recited in claim 1. Ans. 3–4
(citing Lindgren ¶¶ 8, 14–15, Fig. 1); Final Act. 2–3 (citing Lindgren ¶¶ 8,
14–15, Fig. 1).

3 The Examiner includes claim 4 in the heading of the rejection in the
Answer and the Final Rejection. Ans. 3; Final Act. 2. However, as noted
above, claim 4 is cancelled. We, therefore, interpret this as a typographical
error.
4 Although the Examiner includes Breed (US 2009/0092284 A1; published
Apr. 9, 2009) (hereinafter “Breed 2”) in the heading, it does not appear that
the Examiner relies on Breed 2 in the rejection. In this Decision, we,
therefore, do not discuss Breed 2 when referring to Breed.
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Appellant argues Lindgren merely teaches cameras 12a, 12b for
sensing infrared radiation, but fails to teach an active illumination
component configured to emit infrared radiation that is reflected off an
object outside of the vehicle. Appeal Br. 3–4; Reply Br. 2–4. Appellant
argues Lindgren’s camera sensors fail to teach sensing reflected energy that
is short-wavelength infrared radiation (“SWIR”). Appeal Br. 4; Reply Br. 3.
We disagree with Appellant.
As an initial matter, Appellant refers to the wavelength of SWIR as
falling between 1.4–3 microns. Appeal Br. 6; Reply Br. 4. Lindgren teaches
“below 5 microns.” Ans. 3–4 (citing Lindgren ¶ 14); Final Act. 2–3 (citing
Lindgren ¶ 14); Appeal Br. 7 (citing Lindgren ¶ 14); Reply Br. 6 (citing
Lindgren ¶ 14). In the case where the claimed ranges “lie inside ranges
disclosed by the prior art” a prima facie case of obviousness exists. In
re Wertheim, 541 F.2d 257 (CCPA 1976).
Moreover, Lindgren teaches infrared cameras 12a, 12b receiving
incident (i.e., incident at least suggests “reflected”) infrared radiation having
wavelengths below 5 microns (i.e., this teaches or suggests SWIR), which
teaches or suggests the limitation “the first camera sensor is configured to
sense reflected energy that is short-wavelength infrared radiation; the second
camera sensor is configured to sense reflected energy that is short-
wavelength infrared radiation” recited in claim 1. Ans. 3–4 (citing Lindgren
¶¶ 8, 14–15, Fig. 1); Final Act. 2–3 (citing Lindgren ¶¶ 8, 14–15, Fig. 1).
Accordingly, Appellant does not persuade us of error.
B. Breed Discussion
The Examiner finds Breed teaches infrared radiation 78, which the
Examiner maps to the limitation “an active illumination component
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configured to emit infrared radiation that is reflected off an object outside of
the vehicle” recited in claim 1. Ans. 4 (citing Breed ¶ 343, Fig. 19); Final
Act. 3 (citing Breed ¶ 343, Fig. 19). The Examiner finds Breed teaches
indium gallium arsenide, which the Examiner maps to the limitation “an
energy sensitive area of the [] camera sensor is constructed using indium
gallium arsenide” recited in claim 1. Ans. 4 (citing Breed ¶ 343, Fig. 19);
Final Act. 3 (citing Breed ¶ 343, Fig. 19).
Appellant argues Breed fails to teach an infrared emitter in the context
of infrared imaging because Breed’s infrared emitter is in the context of near
field detection––i.e., Breed’s element 78 of Figure 19 emits infrared
radiation that is detected by infrared receiver 79 on a second vehicle.
Appeal Br. 5 (citing Breed ¶ 524, Fig. 19); Reply Br. 4–5 (citing Breed
¶ 524, Fig. 19). Appellant argues Breed fails to teach indium gallium
arsenide in the context of imaging. Appeal Br. 5; Reply Br. 5. We disagree
with Appellant.
At the outset, Breed teaches identical material to the claimed “indium
gallium arsenide.” Notably, Appellant does not explain any structural
difference that would prevent Breed’s indium gallium arsenide from
teaching indium gallium arsenide in the context of imaging. “Products of
identical chemical composition cannot have mutually exclusive
properties.” In re Spada, 911 F.2d 705, 709 (Fed. Cir. 1990). Therefore,
Breed’s indium gallium arsenide has identical properties as what is claimed
(i.e., Breed has the capability of sensing reflected infrared radiation), which
teaches the limitation “an energy sensitive area of the [] camera sensor is
constructed using indium gallium arsenide” recited in claim 1. Ans. 4
(citing Breed ¶ 343, Fig. 19); Final Act. 3 (citing Breed ¶ 343, Fig. 19).
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Furthermore, Breed teaches infrared radiation 78, which teaches the
limitation “an active illumination component configured to emit infrared
radiation that is reflected off an object outside of the vehicle” recited in
claim 1. Ans. 4 (citing Breed ¶ 343, Fig. 19); Final Act. 3 (citing Breed
¶ 343, Fig. 19).
Accordingly, Appellant does not persuade us of error.
C. Whether One of Ordinary Skill in the Art Would Have Combined
Lindgren and Breed
The Examiner concludes a person having ordinary skill in the art at
the time of the invention (“PHOSITA”) would have combined Lindgren’s
stereo system and Breed’s infrared light source to improve object
recognition with improved visibility to reduce potential harm of impact.
Ans. 3–4 (citing Lindgren ¶¶ 8, 14–15, Fig. 1; Breed ¶ 343, Fig. 19); Final
Act. 2–3 (citing Lindgren ¶¶ 8, 14–15, Fig. 1; Breed ¶ 343, Fig. 19).
Appellant argues although Lindgren teaches wavelengths below 5
microns, a PHOSITA would not have combined Lindgren and Breed
because both teach the use of a CMOS camera, which already sense energy
in the near-infrared spectrum rather than the SWIR band. Appeal Br. 6–8
(citing Lindgren ¶ 14); Reply Br. 6–7 (citing Lindgren ¶ 14). Appellant
argues any combination of Lindgren and Breed would constitute
impermissible hindsight. Appeal Br. 8–9. We disagree with Appellant.
We disagree with Appellant’s argument that a PHOSITA would not
have combined Lindgren and Breed because both teach the use of a CMOS
camera, which already sense energy in the near-infrared spectrum rather than
the SWIR band. Appeal Br. 6–8 (citing Lindgren ¶ 14); Reply Br. 6–7
(citing Lindgren ¶ 14). In the case where the claimed ranges “lie inside
ranges disclosed by the prior art” a prima facie case of obviousness
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exists. In re Wertheim, 541 F.2d 257 (CCPA 1976). Lindgren teaches
“below 5 microns,” which teaches SWIR. Ans. 3–4 (citing Lindgren ¶ 14);
Final Act. 2–3 (citing Lindgren ¶ 14); Appeal Br. 7 (citing Lindgren ¶ 14);
Reply Br. 6 (citing Lindgren ¶ 14).
We disagree with Appellant’s impermissible hindsight argument.
Appeal Br. 8–9. Appellant has not provided persuasive evidence that
combining the respective teachings of the references (as concluded by the
Examiner — Ans. 3–4 (citing Lindgren ¶¶ 8, 14–15, Fig. 1; Breed ¶ 343,
Fig. 19); Final Act. 2–3 (citing Lindgren ¶¶ 8, 14–15, Fig. 1; Breed ¶ 343,
Fig. 19)) would have been “uniquely challenging or difficult for one of
ordinary skill in the art,” or that such a combination would have
“represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Nor has Appellant
provided any objective evidence of secondary considerations, which, as our
reviewing court explains, “operate[] as a beneficial check on hindsight.”
Cheese Sys., Inc. v. Tetra Pak Cheese & Powder Sys., Inc., 725 F.3d 1341,
1352 (Fed. Cir. 2013). In this case, the Examiner concludes a PHOSITA
would have combined Lindgren’s stereo system and Breed’s infrared light
source to improve object recognition with improved visibility to reduce
potential harm of impact. Ans. 3–4 (citing Lindgren ¶¶ 8, 14–15, Fig. 1;
Breed ¶ 343, Fig. 19); Final Act. 2–3 (citing Lindgren ¶¶ 8, 14–15, Fig. 1;
Breed ¶ 343, Fig. 19). We, therefore, determine the Examiner has set forth
sufficient “articulated reasoning with some rational underpinning to support
the legal conclusion of obviousness.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. at 418 (quoting In re Kahn, 441 F.3d at 988).
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Appellant does not argue claims 1, 9–19, and 26 separately with
particularity. Appeal Br. 3–11; Reply Br. 2–9. Accordingly, we sustain the
Examiner’s rejection of: (1) independent claims 1 and 26; and (2) dependent
claims 2 and 8–19 under 35 U.S.C. § 103.5
II. Claim 2 Rejected Under 35 U.S.C. § 103
The Examiner finds Lindgren teaches stereo matching of pedestrian
images 31a and 31b to determine misalignment of cameras 12a, 12b, which
the Examiner maps to the limitation “the processor is configured to perform
the stereo matching by producing a stereo range map; the processor is
configured to perform object detection using the stereo range map” recited in
claim 2. Ans. 11 (citing Lindgren ¶¶ 23–26, Fig. 2); Final Act. 3 (citing
Lindgren, Fig. 2).

5 In the event of further prosecution, the Examiner may want to consider
Nagao (US 2003/0043280 A1; published March 6, 2003). Nagao teaches an
infrared emitter that emits light towards a surrounding area of a vehicle and
an infrared camera that receives reflected light. Nagao ¶¶ 12–13, Abstract.
The Examiner may want to consider Anderson (US 2004/0178892;
published Sept. 16, 2004), which teaches a vehicle blind spot detector that
transmits infrared light that is reflected off an object in the vehicle’s blind
spot and is detected by an infrared detector. Anderson ¶ 7. The Examiner
may want to consider Wemken (US 2007/0138393 A1; published June 21,
2007), which teaches sensor 1 for monitoring the vicinity of motor vehicle
10 comprising infrared emitter 3 and receiver 4 that receives reflected
infrared radiation. Wemken ¶ 1, Abstract, claim 1. The Examiner may want
to consider Albou (US 7,350,945 B2; issued Apr. 1, 2008), which teaches a
headlight that emits infrared light beam and at least one light sensor that
receives at least a portion of the infrared beam reflected back to the vehicle.
Albou, Abstract. Although the Board is authorized to reject claims under
37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects
not to do so. See Manual of Patent Examining Procedure (MPEP)
§ 1213.02.
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Appellant argues Lindgren fails to teach the limitation “stereo range
map” because Lindgren merely teaches matching cut outs of an image to
reduce data processing without any mention of the term “map.” Appeal Br.
10; Reply Br. 7–8. We disagree with Appellant.
As an initial matter, Appellant’s Specification states “[s]tereo
matching of the imagery from the left camera 24 and right camera 26, from
the stereo camera system 22 operating in the visible band produces a stereo
range map (or stereo disparity map)” and “[t]he elements of the stereo range
map (or stereo disparity map) are commonly referred to as ‘range pix’ or
‘range pixels.’” Spec. ¶ 35; see also id. ¶¶ 36–37 (describing a vehicle left
camera 24 and right camera 26 for detecting, tracking, and classifying an
object from a stereo range map of stereo camera system 22).
Similar to Appellant’s Specification, Lindgren teaches stereo
matching of two pedestrian images 31a and 31b (i.e., object detection) with
different alignments (i.e., stereo matching to produce a stereo range map) to
determine misalignment of cameras 12a, 12b, which teaches the limitation
“the processor is configured to perform the stereo matching by producing a
stereo range map; the processor is configured to perform object detection
using the stereo range map” recited in claim 2. Ans. 11 (citing Lindgren
¶¶ 23–26, Fig. 2); Final Act. 3 (citing Lindgren, Fig. 2).
Accordingly, we sustain the Examiner’s rejection of claim 2 under
35 U.S.C. § 103.
III. Claim 8 Rejected Under 35 U.S.C. § 103
The Examiner takes Official Notice that an exposure period of a
camera sensor with a flash has synchronization between the camera sensor
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exposure interval and light pulse to take bright pictures in low light
environments is well known in the art. Ans. 11–12; Final Act. 4.
Appellant argues Lindgren does not teach an active illumination
source. Appeal Br. 11; Reply Br. 9. Appellant argues Breed merely teaches
passive output of an illumination source, but fails to control an active
illumination source. Appeal Br. 11; Reply Br. 9. Appellant argues the
Examiner provides no basis for synchronization between a first and second
camera sensor. Appeal Br. 11; Reply Br. 9. Appellant argues even if
synchronizing is well known, the Examiner ignores alternating emission of
infrared radiation. Appeal Br. 11; Reply Br. 9. Appellant argues Breed fails
to teach control of an infrared source. Appeal Br. 11; Reply Br. 9.
Appellant argues the combination of Lindgren, Breed, and Official Notice
amounts to impermissible hindsight. Reply Br. 9. We disagree with
Appellant.
From the preceding paragraph, we disagree with the first two
arguments and fifth argument (i.e., Lindgren and Breed fail to teach an
active illumination source and Breed fails to teach control of an infrared
source). Appeal Br. 11; Reply Br. 9. The combination of Lindgren
controlling cameras 12a, 12b to take multiple images of a pedestrian and
Breed’s controlling an infrared illumination source teaches an active
illumination source are discussed supra in §§ I.A., I.B, I.C., II.
We disagree with Appellant’s argument that the Examiner provides no
basis for synchronization between a first and second camera sensor. Appeal
Br. 11; Reply Br. 9. Lindgren teaches synchronization between two camera
sensors because Lindgren teaches two cameras performing stereo matching
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using an image of a pedestrian crossing a street to determine camera
misalignment as discussed supra in § II.
We disagree with Appellant’s argument that the Examiner ignores
alternating emission of infrared radiation. Appeal Br. 11; Reply Br. 9. The
Examiner’s Official Notice statement about a camera’s exposure time during
times of picture taking amounts to alternating emission of exposing the
camera sensor (and the synchronized flash) to take a picture and not
exposing the camera sensor when the camera is in the state of not taking a
picture. Moreover, Lindgren teaches two cameras 12a, 12b taking multiple
pictures (i.e., sensing incident infrared radiation at least suggests sensing
reflected energy of an infrared emitter) of a pedestrian crossing a street to
performing stereo matching to determine camera misalignment and Breed
teaches an infrared emitter, which teaches alternating emission of infrared
radiation. Supra §§ I.A., I.B, I.C., II.
We disagree with Appellant’s argument that the combination of
Lindgren, Breed, and Official Notice amounts to impermissible hindsight.
Reply Br. 9. As an initial matter, this argument is untimely. Appellant’s
impermissible hindsight argument is untimely and waived because the
Examiner did not change the theory of unpatentability in the Answer
(compare Final Act. 4 (citing Official Notice) with Ans. 5, 11 (citing the
same Official Notice rationale)), while Appellant proffered new arguments
in the Reply Brief (compare Appeal Br. 10–11 (lacking impermissible
hindsight argument) with Reply Br. 9 (including impermissible hindsight
argument)) without showing good cause. See 37 C.F.R. § 41.41(b)(2).
Nonetheless, even if Appellant’s argument was timely, Appellant has
not provided persuasive evidence that combining the respective teachings of
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the references (as concluded by the Examiner — Ans. 3–5 (citing Lindgren
¶¶ 8, 14–15, Fig. 1; Breed ¶ 343, Fig. 19); Final Act. 2–4 (citing Lindgren
¶¶ 8, 14–15, Fig. 1; Breed ¶ 343, Fig. 19)) would have been “uniquely
challenging or difficult for one of ordinary skill in the art,” or that such a
combination would have “represented an unobvious step over the prior art.”
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007). Nor has Appellant provided any objective evidence of secondary
considerations, which, as our reviewing court explains, “operate[] as a
beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese &
Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013). In this case, the
Examiner concludes a PHOSITA would have combined Lindgren’s stereo
system, Breed’s infrared light source, and notoriously well-known features
articulated in the Official Notice statement to capture a scene with varying
light wavelength. Ans. 3–5 (citing Lindgren ¶¶ 8, 14–15, Fig. 1; Breed
¶ 343, Fig. 19); Final Act. 2–4 (citing Lindgren ¶¶ 8, 14–15, Fig. 1; Breed
¶ 343, Fig. 19). We, therefore, determine the Examiner has set forth
sufficient “articulated reasoning with some rational underpinning to support
the legal conclusion of obviousness.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. at 418 (quoting In re Kahn, 441 F.3d at 988).
Accordingly, we sustain the Examiner’s rejection of claim 8 under
35 U.S.C. § 103.
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv).

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CONCLUSION

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)(iv). See
37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 8–10,
26
103 Lindgren, Breed 1, 2, 8–10,
26

11–19 103 Lindgren, Breed,
Ebisawa
11–19
Overall
Outcome
1, 2, 8–19,
26