University of Georgia Research Foundation, Inc.

Patent Trials and Appeals Board

Dec 23, 2020

2019005208 (P.T.A.B. Dec. 23, 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.
14/802,281 07/17/2015 Changying Li 222102-1165 1096
24504 7590 12/23/2020
THOMAS | HORSTEMEYER, LLP
3200 WINDY HILL ROAD, SE
SUITE 1600E
ATLANTA, GA 30339
EXAMINER
BAILEY, FREDERICK D
ART UNIT PAPER NUMBER
2483
NOTIFICATION DATE DELIVERY MODE
12/23/2020 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):
docketing@thomashorstemeyer.com
ozzie.liggins@tkhr.com
uspatents@tkhr.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

Ex parte CHANGYING LI and WEILIN WANG

Appeal 2019-005208
Application 14/802,281
Technology Center 2400

Before St. JOHN COURTENAY III, MARC. S. HOFF, and
MICHAEL T. CYGAN, Administrative Patent Judges.

CYGAN, 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, 5–14, 16, and 18–24. Appeal Br.
13. Claims 3, 4, 15, and 17 have been cancelled. Appeal Br. 14–18 (Claims
App.) 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 party in interest as University
of Georgia Research Foundation, Inc. Appeal Br. 2.
Appeal 2019-005208
Application 14/802,281

2
CLAIMED SUBJECT MATTER
The claimed invention generally relates to three-dimensional produce
imaging. Spec. ¶ 11. The three-dimensional produce imager 100 comprises
a Red-Green-Blue-Depth (RGB-D) sensor 103 and
Independent claim 1 is representative:
1. A system, comprising:
a computing device comprising a processor and a memory; and
an application executed in the at least one computing device,
the application comprising a set of instructions stored in the
memory of the computing device that, when executed by the
processor of the computing device, cause the computing device
to at least:
convert a depth image of a produce item into a point
cloud image; and
estimate a diameter of the produce item based at least in
part on the point cloud image; and
an Red-Green-Blue-Depth (RGB-D) sensor comprising a laser
emitter, a monochrome infrared camera, and an RGB color
camera, the RGB-D sensor being configured to:
generate the depth image of the produce item; and
send the depth image of the produce item to the computing
device; and
a conveyor belt positioned to move the produce item through a
field of view of the RGB-D sensor.

REFERENCES
Name Reference Date
Fazzari et al.
(Fazzari)
US 5,659,624 Aug. 19, 1007
Thomas et al. US 6,075,594 June 13, 2000
Appeal 2019-005208
Application 14/802,281

3
(Thomas)
Yunker et al.
(Yunker)
US 2007/0051670 A1 Mar. 8, 2007
Hermary et al.
(Hermary)
US 2014/0114461 A1 Apr. 24, 2014
Lee et al. (Lee) US 2015/0009214 A1 Jan. 8, 2015
Martinson US 9,355,334 B1 May 31, 2016
De Mathelin et al.
(De Mathelin)
US 2017/0014203 A1 Jan. 19, 2017

REJECTIONS
Claims 1, 2, 6–9, 12–14, 16, and 18–22 are rejected under 35 U.S.C.
§ 103 as being obvious over the combination of Lee, Fazzari, Hermary, and
De Mathelin.2
Claims 5, 10, and 24 are rejected under 35 U.S.C. § 103 as being
obvious over the combination of Lee, Fazzari, Hermary, De Mathelin, and
Thomas.
Claims 11 and 23 are rejected under 35 U.S.C. § 103 as being obvious
over the combination of Lee, Fazzari, Hermary, De Mathelin, and Yunker.

OPINION
We have reviewed the Examiner’s obviousness rejections (Final Act.
3–10, Ans. 3–6) in light of Appellant’s contentions that the Examiner has

2 The Examiner omits claim 8 from the rejection heading on page 3 of the
Final Action, but provides a detailed statement of rejection for claim 8 under
the heading of the first-stated rejection on page 7 of the Final Action. We
have corrected the rejection heading of the first-stated rejection accordingly
above.
Appeal 2019-005208
Application 14/802,281

4
erred (Appeal Br. 4–12, Reply Br. 2–7). For at least the specific reasons
addressed below, we are not persuaded by Appellant’s contention that the
Examiner erred in rejecting claims 1, 2, 5–14, 16, and 18–24 under 35
U.S.C. § 103.

1. Claims 1, 2, 8, 9, 12–14, 16, and 18–22
We begin with claim 1. The first issue raised by Appellant is whether
the cited combination of references would result in the claimed subject
matter. Appeal Br. 5.
The Examiner finds that the combination of Lee, Fazzari, and
Hermary teach or suggests all of the elements of claim 1, including
analyzing image scans to estimate a diameter and depth of a produce item
conveyed along a belt through a scanning region, except for the scanner
being a Red-Green-Blue-Depth (“RGB-D”) sensor comprising a laser
emitter, a monochrome infrared camera, and an RGB color camera. Final
Act. 3–5. The Examiner finds that De Mathelin teaches an RGB-D sensor,
and that the combination of the above references teaches all limitations of
claim 1. Id. at 5–6.
Appellant argues that it would not have been obvious to combine the
RGB-D sensor of De Mathelin, used as an optical tracker of a body in an
MRI machine, with Hermary’s conveyor belt moving produce items through
a field of view of an RGB-D sensor. Appeal Br. 6–7. Appellant argues that
such a combination would result in a produce item being moved in and out
Appeal 2019-005208
Application 14/802,281

5
of an MRI chamber, and that this is a modification not disclosed in any of
the applied references, and inoperable as well. Id. at 7; Reply Br. 4–5.
The test for obviousness is “not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference,” but instead, “what the combined teachings of the references
would have suggested to those of ordinary skill in the art.” In re Keller,
642 F.2d 413, 425 (CCPA 1981). Appellant argues against modifying a
MRI machine to include a conveyor belt, but that is not the Examiner’s
proposed modification. Ans. 3–4. Rather, the Examiner finds that De
Mathelin’s specific RGB-D sensor would have been obvious to use as the
produce sensor in the produce scanning system as taught by the combination
of Lee, Fazzari, and Hermary. Id. Appellant has not argued against the
Examiner’s arrangement; i.e., presented reasons why De Mathelin’s RGB-D
sensor would not have provided a teaching or suggestion to one having
ordinary skill in the art that the sensor could also have been used as a
produce scanning sensor to perform the desired depth and diameter
measurements in a device collectively taught by Lee, Fazzari, and Hermary.
We agree with the Examiner’s finding (Ans. 4–5) that the combined
teachings of De Mathelin’s RGB-D sensor and of Lee, Fazzari, and
Hermary’s analyzing image scans to estimate a diameter and depth of a
produce item conveyed along a belt through a scanning region, suggest the
limitations as arrayed in claim 1. Accordingly, we are not persuaded by
Appellant’s argument that the Examiner’s cited combination fails to teach
the limitations of claim 1 because it requires an inoperable physical
combination of an MRI machine and conveyor belt.
Appeal 2019-005208
Application 14/802,281

6
The second issue raised by Appellant is whether De Mathelin is
analogous art that may be available as a prior art reference. Appeal Br. 5.
Appellant argues that to qualify as analogous art, a reference must either be
in the same field of endeavor as the claimed invention, or reasonably
pertinent to the problem faced by the inventor. Appeal Br. 8 (citing In re
Bigio, 38 F.3d at 1325; In re Wood and Eversole, 599 F.2d 1032, 1036
(CCPA 1979)).
Appellant argues that De Mathelin is from the medical device field,
relating to “image guided monitoring, diagnostic procedures and therapies
and more specifically to the tracking of a mobile marker, stand-alone or
associated with a holding system or a moving instrument, detectable with
several position sensors, for automatic alignment of the image planes.” Id.
(quoting De Mathelin ¶ 1). Appellant argues that the claimed invention is
from a different field of endeavor, the agricultural field, “for taking three-
dimensional images of produce . . . used to estimate the volume and other
dimensions of the imaged produce.” Id. (quoting Abstr.).
Appellant further argues that De Mathelin is not reasonably pertinent
to the problem faced by the inventor, which is “estimating the size of
produce in a non-damaging manner.” Id. at 9. Appellant argues that De
Mathelin is purposed to provide stabilized image recognition in scanning
and tracking moving patients. Id. Appellant argues that solutions to existing
problems with MRI machines would not logically commend themselves to
reducing damage to produce from mechanical rollers during estimation of
the size of individual produce items. Id.
Appeal 2019-005208
Application 14/802,281

7
The Examiner characterizes Appellant’s invention as generating an
image of a produce item using an RGB-D sensor to provide a two-
dimensional color image and a depth image of that item. Ans. 5. The
Examiner finds De Mathelin’s use of optical sensors with high frame rate,
such as RGB-D sensors, is reasonably pertinent to delivering images and
depth images of moving items proceeding through a sensor’s field of view.
Id.
Appellant responds to the Examiner’s findings by arguing that the
Examiner is not comparing De Mathelin to the claimed invention. Reply Br.
6. Appellant argues that the claimed invention does not require a “high
frame rate” because the disclosed conveyor can be run any speed appropriate
to Appellant’s disclosed RGB-D sensor. Id. Appellant further argues that
the mere disclosure of the RGB-D sensor in De Mathelin does not make De
Mathelin analogous.
A reference may be reasonably pertinent to the problem faced by the
inventor where it would have “logically . . . commended itself to an
inventor’s attention in considering his problem.” In re ICON Health and
Fitness, Inc., 496 F.3d 1374, 1379–80 (Fed. Cir. 2007). However, “[t]he
Supreme Court’s decision in KSR3 . . . directs us to construe the scope of
analogous art broadly.” Wyers v. Master Lock Co., 616 F.3d 1231, 1238
(Fed. Cir. 2010). “The field of endeavor of a patent is not limited to the

3 See KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398, 401 (2007) (“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 that person’s skill.”).
Appeal 2019-005208
Application 14/802,281

8
specific point of novelty, the narrowest possible conception of the field, or
the particular focus within a given field.” Unwired Planet, LLC v. Google
Inc., 841 F.3d 995, 1001 (Fed. Cir. 2016).
Applying this guidance here, we are not persuaded the Examiner erred
in finding that De Mathelin is analogous art to Appellant’s claimed
invention. Specifically, we find that De Mathelin’s use of an optical,
noncontact RGB-D sensor to determine the size and shape of a body (an
object) would have logically commended itself to an artisan in considering
Appellant’s stated problem of “estimating the size of produce [an object] in
a non-damaging manner.” Appeal Br. 9. We find that one looking to solve
the problem of estimating the size of produce in a nondamaging manner
would look generally to sensors of objects in which the sensors provide a
size estimate without damaging the objects. Because DeMathelin’s RGB-D
system has both of those characteristics, we find that it would have logically
commended itself in solving Appellant’s problem. Although De Mathelin
provides optical tracking in the context of an MRI machine, we emphasize
that De Mathelin expressly describes: “[t]he main advantage of optical
tracking systems is . . . the optical system is totally independent from the
MRI technology.” De Mathelin ¶ 24.
Accordingly, we find De Mathelin’s particular guidance system is not
relevant solely to MRI technology, but more generally, to optical tracking
systems providing RGB and depth images. See Ans. 9. Furthermore, to the
extent that Appellant argues that a high frame rate is not needed to solve
Appellant’s problem, Appellant does not explain why RGB-D’s high frame
rate would cause RGB-D sensors not to logically commend themselves to
Appeal 2019-005208
Application 14/802,281

9
Appellant’s problem. Consequently, we agree with the Examiner’s finding
that De Mathelin’s discussion of three-dimensional image guided monitoring
associated with a moving instrument would have been reasonably pertinent
to the problem of measuring three-dimensional size parameters of moving
produce, as addressed by Appellant in claim 1.
For the above reasons, we affirm the Examiner’s rejection of
representative claim 1. Grouped claims 2, 8, 9, 12–14, 16, and 18–22 are
argued as allowable for the same reasons as claim 1. Appeal Br. 9–11.
These claims therefore fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).

2. Claims 6 and 7
Claims 6 and 7 recite further limitations as to the placement of the
RGB-D sensor. Claim 6 requires that the sensor be placed above the
produce item, and claim 7 requires that the sensor be placed below the
produce item. Appeal Br. 15 (Claims App.). Appellant argues that these
limitations are not taught by the cited prior art, and in particular, not taught
by Lee as found by the Examiner.
The Examiner finds Hermary to teach a sensor head to be mounted not
coincident with its industrial environment’s XYZ coordinates, e.g., above or
below. Ans. 6 (citing Hermary ¶ 83). Appellant does not argue that
Hermary lacks such a teaching. See generally Appeal Br.; Reply Br.
Because Appellant does not specifically traverse the Examiner’s finding that
Hermary’s non-coincident mounting teaches the “below” limitation of claim
7, we are not persuaded of error in the Examiner’s finding. Further, we note
that Hermary further shows Figure 2d illustrating a sensor head above an
Appeal 2019-005208
Application 14/802,281

10
orange during scanning, which is consistent with the Examiner’s finding.
Hermary Fig. 2d, ¶ 51. Accordingly, we sustain the Examiner’s rejection of
claims 6 and 7.
3. Claims 5, 10, 11, 23, and 24
Claims 5, 10, and 24 are rejected as being obvious over the base
combination of Lee, Fazzari, Hermary, and De Mathelin, further in view of
Thomas. Claims 11 and 23 are rejected as being obvious over the base
combination of Lee, Fazzari, Hermary, and De Mathelin, further in view of
Yunker. Appellant argues the patentability of these claims for the same
reasons as argued for claim 1. Appeal Br. 11–12. For the same reasons as
discussed in our analysis of the rejection of claim 1, we are not persuaded by
Appellant’s arguments against claims 5, 10, 11, 23, and 24. See supra at 3–
5. Accordingly, we sustain the Examiner’s rejection of claims 5, 10, 11, 23,
and 24.

CONCLUSION
For the above-described reasons, we sustain the Examiner’s rejections
of all claims on appeal as being obvious over the cited references under 35
U.S.C. § 103.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § References/Grounds Affirmed Reversed
1, 2, 6–9,
12–14,
16, 18–22
103 Lee, Fazzari,
Hermary, De
Mathelin,
1, 2, 6–9,
12–14, 16,
18–22

Appeal 2019-005208
Application 14/802,281

11
5, 10, 24 103 Lee, Fazzari,
Hermary, De
Mathelin, Thomas
5, 10, 24
11, 23 103 Lee, Fazzari,
Hermary, De
Mathelin, Yunker
11, 23
Overall
Outcome
1, 2, 5–14,
16, 18–24

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