CARBONELL, LEE A. et al.

Patent Trials and Appeals Board

Nov 17, 2020

12907284 - (D) (P.T.A.B. Nov. 17, 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.
12/907,284 10/19/2010 LEE A. CARBONELL CHA920100021US1_8134-0122 1747
73109 7590 11/17/2020
Cuenot, Forsythe & Kim, LLC
20283 State Road 7
Ste. 300
Boca Raton, FL 33498
EXAMINER
TORRENTE, RICHARD T
ART UNIT PAPER NUMBER
2485
NOTIFICATION DATE DELIVERY MODE
11/17/2020 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):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LEE A. CARBONELL, JEFFREY L. EDGINTON,
and PANDIAN MARIADOSS
____________

Appeal 2019-003809
Application 12/907,284
Technology Center 2400
____________

Before JOHN A. JEFFERY, DENISE M. POTHIER, and JUSTIN BUSCH,
Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
This application returns to us after another panel of this Board
affirmed the Examiner’s decision to reject then-pending claims 1–7, 9–14,
and 16–20. Ex parte Carbonell, Appeal 2017-008656 (PTAB Dec. 28,
2017) (“Bd. Dec.”). Prosecution reopened after that decision, and Appellant
now appeals under 35 U.S.C. § 134(a) from the Examiner’s subsequent
decision to reject claims 21–40. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

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STATEMENT OF THE CASE
Appellant’s invention is a video surveillance system that monitors
traffic flow in a customer service area. In one aspect, a customer crossing a
logical boundary is detected in real time, and traffic flow associated with a
region in the customer service area is determined. See Spec. ¶¶ 1, 4. Claim
21 is illustrative:
21. A computer-implemented method monitoring traffic flow
within a customer service area, comprising:
receiving, from a video recording device, a video stream associated
with a region within the customer service area;
analyzing, by a computer-implemented video analytic system, the
video stream to identify a plurality of physical boundaries;
translating each of the plurality of physical boundaries into a plurality
of logical boundaries that are digital representations of the physical
boundaries;
detecting, within the video stream and in real-time, a customer
crossing one of the plurality of logical boundaries;
determining, responsive to the detecting and by the video analytic
system, whether the customer is exiting or entering the region;
updating, based upon the determining, the traffic flow for an area
defined by the region; and
generating, based upon the traffic flow matching a trigger criteria, a
notification.

RELATED APPEAL
As noted previously, this appeal is related to an earlier Board decision
in this application. In that decision, the Board affirmed the Examiner’s
anticipation and obviousness rejections over the Papke reference that is also
at issue here. See Bd. Dec. 2–11.

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THE REJECTION
The Examiner rejected claims 21–40 under 35 U.S.C. § 103 as
unpatentable over Papke (US 2011/0231419 A1; published Sept. 22, 2011)
and Ku (US 2006/0067456 Al; published Mar. 30, 2006). Ans. 3–5.1

FINDINGS, CONCLUSIONS, AND CONTENTIONS
Regarding independent claim 21, the Examiner finds that Papke
discloses, among other things, (1) receiving a video stream associated with a
region, namely public region A and retail region B in Figure 4A, within a
customer service area; (2) analyzing the video stream to identify physical
boundaries; (3) translating each physical boundary into logical boundaries,
namely transition region 460; (4) detecting a customer crossing one of the
logical boundaries; (5) determining whether the customer is entering or
exiting the region; (6) updating the traffic flow for an area defined by the
region based on that determination; and (7) based on the traffic flow
matching a trigger criteria, generating a notification. Ans. 3–4, 8–10.
Although the Examiner acknowledges that Papke does not disclose
that the logical boundaries are digital representations of the physical
boundaries, the Examiner finds Ku teaches this feature in concluding that the
claim would have been obvious. Ans. 4, 7–8.
Appellant argues that, because Papke’s logical boundaries are not
those claimed, Papke does not disclose the recited translation and detection.
Appeal Br. 8–10. According to Appellant, Papke not only fails to detect

1 Throughout this opinion, we refer to (1) the Appeal Brief filed January 9,
2019 (“Appeal Br.”); (2) the Examiner’s Answer mailed March 7, 2019
(“Ans.”); and (3) the Reply Brief filed April 15, 2019 (“Reply Br.”).
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when object 910 crosses a particular set of pixels, Papke’s transition region
460 is not a logical boundary that digitally represents a physical boundary.
Appeal Br. 10–12; Reply Br. 1–4. Appellant adds that not only does the
Examiner blur the distinction between the recited region and boundaries,
Papke does not update the traffic flow for an area defined by the region as
claimed. Appeal Br. 12–13; Reply Br. 4–5. According to Appellant, Papke
determines flow of an individual—not an area defined by the region as
claimed. Appeal Br. 13. Appellant further contends that Ku does not teach
that logical boundaries are digital representations of physical boundaries as
claimed. Appeal Br. 14; Reply Br. 5–6. Appellant argues other recited
limitations summarized below.

ISSUES
Under § 103, has the Examiner erred by finding that Papke and Ku
collectively would have taught or suggested:
(1)(a) translating each physical boundary into logical boundaries that
are digital representations of the physical boundaries; (b) detecting, in the
video stream and in real-time, a customer crossing one of the logical
boundaries; (c) determining, responsive to the detecting and by the video
analytic system, whether the customer is entering or exiting the region; and
(d) updating the traffic flow for an area defined by the region based on that
determination; as recited in claim 21?
(2) the detecting is performed by directional tripwire analytics as
recited in claim 22?
(3) the notification is conveyed to a relevant entity associated with the
customer service area as recited in claim 24?
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(4) the traffic flow is compared against plural trigger criteria, and the
notification is based on which one of those criteria is matched as recited in
claim 26?
(5) the plural trigger criteria are variable based upon time as recited in
claim 27?

ANALYSIS
Claims 21, 23, 25, 28, 29, 31, 33, 36, 37, and 40
As noted previously, the Papke reference at issue here was also at
issue in the earlier appeal. In that proceeding, the Board affirmed the
Examiner’s anticipation rejection of then-pending claim 1 that recited, in
pertinent part, (1) translating physical boundaries of a region into logical
boundaries for the region within a video stream’s field of view; (2) detecting
in real-time or near real-time within the video stream a customer crossing at
least one of the logical boundaries; and (3) programmatically determining
traffic flow associated with the region, where the traffic flow is at least one
of a flow rate, flow density, and flow speed. Bd. Dec. 2.
In its Decision, the Board construed the term “logical boundaries” as
“boundaries expressed in a form that can be used by the circuit elements and
programming of a computing device.” Bd. Dec. 5. The Board further noted
that for Papke’s analyzer to determine whether an object moves between
first and second regions of a physical area in paragraph 48, the captured
physical boundaries of the captured physical area must be translated into
logical boundaries for the captured physical area. Id. 6. “In other words,
Papke’s computer must translate a physical area’s information to a digital
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representation in the form of computer bits that can be used by the analyzer
of the computer.” Id. (emphasis added).
Our emphasis underscores a key finding by the earlier Board panel,
namely that Papke translates captured physical boundaries into
corresponding logical boundaries that are digital representations of the
physical boundaries, namely in the form of computer bits. See id.
Appellant’s contention, then, that the Board’s construction of logical
boundaries in the earlier appeal is somehow inapplicable to the logical
boundaries as they are now claimed, namely digital representations of the
physical boundaries (Appeal Br. 10), is unavailing. Among other things,
Appellant ignores the earlier panel’s finding that Papke’s logical boundaries
are digital representations of corresponding physical boundaries resulting
from Papke’s physical-to-logical boundary translation—digital
representations that are in the form of computer bits. See Bd. Dec. 6.
Although then-pending claim 1 at issue before the earlier panel did
not recite that the logical boundaries are digital representations of the
physical boundaries as now claimed, the earlier panel nonetheless found as
much in Papke as noted above. See id. This finding is, therefore, applicable
here and, indeed, is the “law of the case” in this related proceeding. See
Manual of Patent Examining Procedure (MPEP) § 706.07(h)(XI)(A) (9th ed.
Rev. 10.2019, June 2020) (noting that the Board’s decision becomes the
“law of the case” in that it is controlling on the application under appeal and
later related applications).
The earlier panel’s finding is also reasonably consistent with that of
the Examiner, namely that Papke’s physical boundaries are translated into
logical boundaries that represent the physical boundaries digitally, namely
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via digital pixels. See Ans. 7. That it is well known that pixel-based
representations are digital representations only further bolsters the
Examiner’s finding in this regard. See, e.g., Alan Freedman, THE COMPUTER
GLOSSARY 300 (9th ed. 2001) (noting that the simplest pixel representation
is a monochrome image in which one bit represents a dark or light pixel).
This exemplary bit-based pixel representation in a monochrome image from
The Computer Glossary—an acknowledged special-purpose dictionary in
the art—is reproduced below.

Exemplary bit-based pixel representation in a monochrome image from
The Computer Glossary

As shown above, a pixel-based representation is a digital
representation. Therefore, we see no error in the Examiner’s finding that
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Papke’s pixel-based representation of the physical boundaries is effectively a
digital representation (see Ans. 7)—a digital representation that is not only
in the form of pixels, but also computer bits consistent with the earlier
panel’s findings. See Bd. Dec. 6.
Appellant’s contention that Papke’s pixels are merely “images” that
reflect the physical boundary and, therefore, ostensibly do not represent the
boundary logically under the term’s Webopedia definition (Reply Br. 2) is
unavailing. Among other things, Appellant’s contention runs counter to the
Board’s interpretation of the term “logical boundaries” in its earlier decision,
namely as “boundaries expressed in a form that can be used by the circuit
elements and programming of a computing device.” See Bd. Dec. 5.
Notably, in reaching this construction, the Board did not rely on Appellant’s
proffered Webopedia definition of the term “logical,” but instead construed
the term “logical” as “of, relating to, involving, or being in accordance with
logic,” and “logic” as “the arrangement of elements (as in a computer)
needed for computation.” See Bd. Dec. 5 (quoting dictionary definitions).
We, therefore, decline to adopt Appellant’s proffered Webopedia definition
of the term “logical,” for nothing on this record precludes a broader
reasonable definition based on other sources supporting the agency’s
interpretation. See, e.g., In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997)
(“Absent an express definition in their specification, the fact that appellants
can point to definitions or usages that conform to their interpretation does
not make the PTO’s definition unreasonable when the PTO can point to
other sources that support its interpretation.”).
To the extent that Appellant contends that because the claims now
recite that the logical boundaries are digital representations of the physical
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boundaries—a limitation that was not in the claims at issue in the earlier
appeal—the Board’s construction of the term “logical boundaries” no longer
applies (see Reply Br. 2), we disagree. On this record, we see no reason
why the Board’s construction of “logical boundaries,” namely “boundaries
expressed in a form that can be used by the circuit elements and
programming of a computing device,” cannot apply to digital representations
of physical boundaries, such as Papke’s pixel-based representations
consistent with the Examiner’s findings in this regard. See Ans. 7–8. To the
extent Appellant contends otherwise, there is no persuasive evidence on this
record to substantiate such a contention.
Although technically cumulative to Papke, we nonetheless see no
harmful error in the Examiner’s reliance on Ku given the limited purpose for
which the reference was cited, namely merely to show that representing
physical boundaries digitally is known in the art, and that doing so in Papke
would have been obvious. See Ans. 4, 8 (citing Ku Fig. 3A; ¶¶ 25, 48).
Given the physical boundaries shown in Ku’s Figure 3A, namely walls 30B
and 30D, and Ku’s teaching in paragraph 25 that images from a camera are
processed by a computer to identify people or other moving objects in the
digitized images, it would have been obvious to ordinarily skilled artisans
represent walls 30B and 30B digitally in Ku’s system, and that providing
such a digital representation would have been obvious in Papke’s system as
the Examiner indicates. See Ans. 4, 8. Such an enhancement uses prior art
elements predictably according to their established functions—an obvious
improvement. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007).
And even assuming, without deciding, that Ku does not detect whether a
customer crosses a logical boundary as Appellant contends (Appeal Br. 14),
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the Examiner cites Papke—not Ku—for teaching that limitation. See Ans. 3,
11–12. Therefore, Appellant’s arguments in this regard are unavailing, for
they are not germane to the limited purpose for which Ku was cited.
Nor does the Examiner blur the distinction between—or otherwise
conflate—the recited logical boundaries with the recited region, despite
Appellant’s arguments to the contrary. See Appeal Br. 12. Notably, the
Examiner maps (1) the recited region to Papke’s public region “A” and retail
region “B” in Figure 4A, and (2) the recited logical boundaries to those
associated with transition region 460. See Ans. 3, 8–9. On this record, we
see no error in the Examiner’s mapping that distinguishes the recited region
from the recited logical boundaries. We reach this conclusion despite Papke
labeling numeral 460 as a transition region, for this region effectively
functions as a boundary between public and retail regions “A” and “B” as
shown in Figure 4A.
Therefore, we see no error in the Examiner’s finding that Papke and
Ku collectively at least suggest not only the recited physical-to-logical
boundary translation, but also detecting a customer crossing a logical
boundary (e.g., that associated with transition region 460) as the customer
travels between the public and retail regions in Papke’s Figure 4A. See Ans.
3, 8–9; see also Papke ¶ 69 (noting that analyzer 130 can (1) recognize
customers flowing into and out of retail region 410 from public region 440
through transition region 460 as events, and (2) create corresponding event
records and metadata indicating or describing these activities).
Nor are we persuaded of error in the Examiner’s reliance on Papke’s
functionality depicted in Figure 4A and described in paragraph 69 for at
least suggesting updating the traffic flow for an area defined by the region
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based on the recited determination despite Appellant’s arguments to the
contrary (Appeal Br. 12–13; Reply Br. 4–5). See Ans. 3–4, 10. As noted
above, Papke’s paragraph 69 explains that analyzer 130 (1) recognizes
customers flowing into and out of retail region 410 from public region 440 as
events, and (2) creates corresponding event records and metadata indicating
or describing these activities. Based on this functionality, Papke at least
suggests updating traffic flow for an area defined by a region within a
customer service area as claimed, namely the flow of traffic entering retail
region “B” in Figure 4A as the Examiner indicates. See Ans. 10. Notably,
Papke’s Figure 4A shows that retail region “B” effectively defines an
associated area, namely the rectangular area denoted by numeral 410 in that
figure. Moreover, Papke’s Figure 4A also shows that traffic flow is not only
monitored, but also updated at successive time intervals as shown by the
circles in that figure depicting the progression of the monitored individual’s
path from public region “A” to retail region “B.” See Papke ¶¶ 70–71.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 21, and claims 23, 25, 28, 29, 31, 33, 36, 37, and 40 not argued
separately with particularity.

Claims 22 and 30
We also sustain the Examiner’s rejection of claim 22 reciting the
detecting is performed by directional tripwire analytics. See Ans. 4, 12.
Appellant’s specification does not define the term “directional tripwire
analytics” explicitly, but does note in paragraph 16 that these analytics can
be used to determine an object’s trajectory in relation to region 124 and
associated boundaries. Our emphasis on the term “can be” underscores the
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permissive and non-limiting language used in connection with the disclosed
directional tripwire analytics, namely that they can be—but need not be—
used to determine an object’s trajectory in relation to a region and associated
boundaries.
Nevertheless, claim 21 does not recite just tripwire analytics, but
rather directional tripwire analytics—a modifier that requires that these
analytics account for, or otherwise involve, direction. Appellant’s
contention, then, that directional tripwire analytics differ from tripwire
analytics by including the ability to determine an object’s trajectory (Appeal
Br. 15) has merit given the emphasized “directional” qualifier of the recited
analytics that detect a customer crossing a logical boundary within a video
stream under the terms of claim 21 from which claim 22 depends.
But Appellant’s contention that Papke’s Figure 5A lacks such a
trajectory determination (Appeal Br. 15) is unavailing. Leaving aside the
fact that the Examiner cites Papke’s Figure 4A—not 5A—for teaching the
recited directional tripwire analytics (Ans. 4, 12), Papke’s Figure 4A at least
suggests determining the tracked individual’s trajectory as shown by the
circles in that figure depicting the progression of the monitored individual’s
path from public region “A” to retail region “B.” As shown in Papke’s
Figure 4A reproduced below, the monitored individual’s path is denoted by
the angled track 402a whose arrowhead points in the direction of retail
region “B.” See Papke ¶¶ 69–71.

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Papke’s Figure 4A showing angled track 402a

As shown above, track 402a not only shows that the individual
traveled in the particular direction from public region “A” to retail region
“B,” but also that this travel occurred at a certain angle as shown by track
402a’s upwardly-directed arrowhead. Given these directional
determinations, Papke at least suggests using directional tripwire analytics to
detect a customer crossing a logical boundary, namely that associated with
the transition 460 when traveling in the direction from public region “A” to
retail region “B.” That (1) the analyzer can ignore certain situations where
individuals reverse their travel direction as in Papke’s Figure 4B and
paragraph 72, and (2) monitoring an area can include determining a
direction that individuals take when entering the retail zone in paragraph 75
only underscores the directional aspect of Papke’s tripwire analytics.
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Therefore, we are not persuaded that the Examiner erred in rejecting
claim 22, and claim 30 not argued separately with particularity.

Claims 24 and 32
We also sustain the Examiner’s rejection of claim 24 reciting that the
notification is conveyed to a relevant entity associated with the customer
service area.
Despite Appellant’s arguments to the contrary (Appeal Br. 15; Reply
Br. 8–10), Appellant does not persuasively rebut the Examiner’s reliance on
the functionality of Papke’s event notification module 180 for at least
suggesting conveying the recited notification to a relevant entity associated
with the customer service area. See Ans. 4, 12–13. As Papke’s paragraph
57 explains, the event notification module can send emails, text messages, or
other notices or alerts through a network or other communications
connection to receivers external to video analysis system 100. Although
Papke does not specify explicitly that these receivers pertain to relevant
entities associated with the customer service area, ordinarily skilled artisans
would nonetheless understand that these recipients would reasonably include
those entities, including the customer service area’s management, security,
and marketing personnel, as well as others associated with the customer
service area. To the extent that Appellant contends otherwise (see Appeal
Br. 15; Reply Br. 8–10), there is no persuasive evidence on this record to
substantiate such a contention.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 24, and claim 32 not argued separately with particularity.

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Claims 26, 34, and 38
We also sustain the Examiner’s rejection of claim 26 reciting that the
traffic flow is compared against plural trigger criteria, and the notification is
based on which one of those criteria is matched.
Despite Appellant’s arguments to the contrary (Appeal Br. 16; Reply
Br. 10–11), Appellant does not persuasively rebut the Examiner’s reliance
on the functionality associated with generating “move event” records
responsive to detecting objects in images that satisfy certain criteria,
including their location, speed, and quantity. See Ans. 5, 13–14 (citing
Papke ¶¶ 57, 91, 117; Figs. 8–9).
Appellant’s contention that Papke’s system in paragraph 91 compares
object—not traffic flow—criteria (Appeal Br. 16; Reply Br. 11) is
unavailing. First, Appellant does not squarely address—let alone
persuasively rebut—the Examiner’s finding that Papke’s move event in
paragraph 91 teaches traffic flow. See Ans. 14 (noting that Papke’s move
event (traffic flow) is based on whether the object satisfies certain criteria,
such as location, speed, and quantity). Although an object’s criteria is
compared in Papke’s paragraph 91, that criteria nonetheless pertains to that
object’s movement-based flow, including its speed and extent and, therefore,
pertains to traffic flow.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 26, and claims 34 and 38 not argued separately with particularity.

Claims 27, 35, and 39
We also sustain the Examiner’s rejection of claim 27 reciting that the
plural trigger criteria are variable based upon time. In the Answer, the
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Examiner refers to the rebuttal made in connection with claim 26 from
which claim 27 depends, where the Examiner finds, among other things, that
Papke’s traffic flow timeline reporting module 810 in Figure 8 shows that an
individual’s traffic flow is based on a timeline. See Ans. 13–14.
Appellant does not squarely address—let alone persuasively rebut—
these particular findings. See Appeal Br. 17; Reply Br. 11. As Papke’s
paragraph 117 explains, traffic flow timeline reporting module 810 enables
selecting a particular time period and interval to determine traffic flow based
on these temporal parameters. Given this functionality that enables varying
trigger criteria based on the user’s temporal selections, providing such
criteria variation capabilities in connection with the recited trigger criteria
would have been at least an obvious variation yielding a predictable result,
namely enabling the user to vary that criteria based on a selected time period
and interval. Such an enhancement uses prior art elements predictably
according to their established functions—an obvious improvement. See
KSR, 550 U.S. at 417.2
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 27, and claims 35 and 39 not argued separately with particularity.

CONCLUSION
In summary:
Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
21–40 103 Papke, Ku 21–40

2 Should prosecution reopen after this Decision, we leave to the Examiner to
consider whether Appellant’s original disclosure supports the recited trigger
criteria are variable based upon time to show possession of that element
under the written description requirement of § 112, first paragraph.
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TIME PERIOD FOR RESPONSE
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).

AFFIRMED