Wipotec Wiege- und Positioniersysteme GmbH

Patent Trials and Appeals Board

Mar 1, 2021

2019005925 (P.T.A.B. Mar. 1, 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.
14/408,514 12/16/2014 Hans Michael Czerny 6684-147621 3250
28289 7590 03/01/2021
THE WEBB LAW FIRM, P.C.
ONE GATEWAY CENTER
420 FT. DUQUESNE BLVD, SUITE 1200
PITTSBURGH, PA 15222
EXAMINER
SHIN, BRIAN D
ART UNIT PAPER NUMBER
2667
NOTIFICATION DATE DELIVERY MODE
03/01/2021 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):
patents@webblaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HANS MICHAEL CZERNY and
KARL GEORG BURRI
____________
Appeal 2019-005925
Application 14/408,514
Technology Center 2600
____________

Before NORMAN H. BEAMER, ADAM J. PYONIN, and
GARTH D. BAER, Administrative Patent Judges.

PYONIN, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s rejection. 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 Wipotec
Wiege- und Positioniersysteme GmbH. Appeal Br. 3.
Appeal 2019-005925
Application 14/408,514

2
STATEMENT OF THE CASE
Introduction
Appellant’s disclosure relates to “a checking device for a label, with a
detection and processing unit for the detection of the label.” Spec. ¶ 1.
Claims 1–3 and 5–9 are pending; claims 1, 5, and 9 are independent; claim 1
is reproduced below for reference (with emphasis added):
1. A checking system for recognizing, identifying,
transforming, and evaluating, using test data, a label,
comprising a processor for the detection of the label and a
layout processor for the creation of a layout of the label from
layout data, wherein:
the checking system also comprises a data converter
processor, which is configured in such a way that it generates
test data from layout data in memory in order to control the
detection processor,
wherein the test data includes position, size or kind of at
least one of the label or fields of the label,
wherein the detection processor automatically detects a
position, size or kind of a label on a product or packaging at the
position specified by the test data or at least one of the position,
size or kind of a respective field of the label on the product or
packaging at the position specified by the test data.

Resp. Non-Comp. Appeal Br. 3 (filed January 10, 2019).

The Examiner’s Rejection
Claims 1–3 and 5–9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Duggan (US 2006/0142889 A1; June 29, 2006) and
Szesko (US 2009/0173779 A1; July 9, 2009). Final Act. 3.2

2 Although the Final Action refers to Learmonth (US 2011/0303746 A1;
Dec. 15, 2011), the Examiner clarifies that Learmonth is not presently
applied in the rejection. See Ans. 4; Appeal Br. 11 n. 2.
Appeal 2019-005925
Application 14/408,514

3
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. Arguments Appellant could have made but chose not to make
are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2018). We
disagree with Appellant that the Examiner erred and adopt as our own the
findings and reasons set forth by the Examiner, to the extent consistent with
our analysis below. We add the following primarily for emphasis.
Appellant argues that
Duggan is directed to a system wherein a camera is used to
verify a label after it has been scanned using optical context
recognition (“OCR”), a common method of digitizing printed
texts so that they can be electronically edited, and includes a
database. The Examiner continues to conflate detection with
verifying.

Reply Br. 2 (citing Duggan ¶ 20). Appellant contends that
Duggan does not teach or suggest the claimed subject matter
which automatically detects a position, size or kind of a label
on a product or packaging at the position specified by the test
data or at least one of the position, size or kind of a respective
field of the label on the product or packaging at the position
specified by the test data.
Reply Br. 2. Regarding Szesko, Appellant contends that “no suggestion can
be found in Szesko for determining if a label is correctly positioned” (Reply
Br. 3) and that “it appears [that] if the ALV [(Auto Label Verify)] system
cannot find a barcode (e.g. cannot be read) because of incorrect position, the
product is flagged as a reject.” Reply Br. 3–4 (citing Szesko ¶ 132).
We are not persuaded of Examiner error. The Examiner finds, and we
agree, that Duggan teaches
[t]he correct label information ([corresponding to the claimed]
test data) obtained from the database is compared with the label
Appeal 2019-005925
Application 14/408,514

4
scanned by the camera ([corresponding to the claimed]
detection processor) to determine whether the comparison is
satisfactory, thus the test data controls the camera which has
optical character verification ([corresponding to the claimed]
detection processor) to determine if the information is the same.

Ans. 3–4 (citing Duggan ¶¶ 13, 19). The Examiner further finds, and we
agree, that Duggan teaches “that the test data in memory shows what a
correct label looks like as the information required for verification such as
‘label format.’” Ans. 5 (citing Duggan ¶ 20).
We agree with Appellant that “label format” in Duggan is “undefined
and mentioned only once” (Reply Br. 3), so that Duggan is silent regarding
what constitutes “label format and details.” See Duggan ¶ 20. However, we
agree with the Examiner that
in Szesko, the positioning of a label or field of a label is one
aspect that is easily verifiable and well-known in the art of
image processing. Therefore, it would have been obvious to
modify the retrieved test data of Duggan to include that the
position of a field of a label or the actual label is in a correct
location as part of the verification process.

Ans. 6 (emphasis omitted). As shown below, Figures 6 and 7 of Szesko
illustrate differing positionings of patient barcode 34 on blister card 20 (see
Figure 6) and on box 22 (see Figure 7), in which “[t]he positioning of the
patient barcode 34 on the labeled products 12 is reproducible to an extent
necessary for the field of view of readers used by the ALV system 10 to read
the patient barcode 34.” Szesko ¶ 58.
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Application 14/408,514

5

As shown above in Figures 6 and 7, blister card 20 and box 22 have
distinct shapes and sizes. One skilled in the art would understand the
location or position data of the barcodes to vary based on product, and thus a
type of test data to be tracked would include a product’s label position data,
so that the readers used by the ALV system can then be properly positioned
to accommodate the product. Similarly, once properly positioned, errors
caused by product barcode mis-positioning could then be determined using
the label position data. We agree then with the Examiner’s finding that “it
would have been obvious to modify the retrieved test data of Duggan to
include that the position of a field of a label or the actual label is in a correct
location as part of the verification process [as suggested by Szesko].” Ans. 6
(emphasis added).3

3 We note that while Szesko uses the term “barcode,” Appellant admits that
Szesko “teaches that a controller of the ALV system 10 analyzes the images
taken by the cameras 517, 525, 527 of the vision inspection station 92”
(Reply Br. 3–4 (emphasis added)), and thus a traditional barcode reader is
not used in the illustrated example; however, Szesko does not limit its
teachings to cameras. See Ans. 5 (citing Szesko ¶ 144).

Appeal 2019-005925
Application 14/408,514

6
Appellant attacks both Duggan and Szesko individually instead of
considering the combined teachings of Duggan and Szesko. See In re
Keller, 642 F.2d 413, 426 (CCPA 1981) (“[O]ne cannot show non-
obviousness by attacking references individually where, as here, the
rejections are based on combinations of references.”).
Accordingly, we sustain the Examiner’s rejection of independent
claim 1, as well as independent claims 5 and 9 commensurate in scope, and
all dependent claims not separately argued. See Appeal Br. 17.

DECISION SUMMARY

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).
AFFIRMED

Claims
Rejected
35
U.S.C. §
Reference(s)/Basis

Affirmed Reversed
1–3, 5–9 103(a) Duggan, Szesko 1–3, 5–9