DR¿GER SAFETY AG & CO. KGaA

Patent Trials and Appeals Board

Feb 6, 2020

14415355 - (D) (P.T.A.B. Feb. 6, 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.
14/415,355 01/16/2015 Kal Kück 74449 7521
23872 7590 02/06/2020
MCGLEW & TUTTLE, PC
P.O. BOX 9227
SCARBOROUGH STATION
SCARBOROUGH, NY 10510-9227
EXAMINER
EOM, ROBERT J
ART UNIT PAPER NUMBER
1797
MAIL DATE DELIVERY MODE
02/06/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAL KÜCK, HANS-ULLRICH HANSMANN, DETLEF OTT,
ANDREAS MOHRMANN, and ARNE TRÖLLSCH
Appeal 2018-009088
Application 14/415,355
Technology Center 1700

Before CATHERINE Q. TIMM, JAMES C. HOUSEL, and
JEFFREY R. SNAY, Administrative Patent Judges.

TIMM, 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, 9–31, and 45–57. See Final Act. 1.
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

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 Dräger Safety
AG & Co. KGaA. Appeal Br. 1.
Appeal 2018-009088
Application 14/415,355
2
CLAIMED SUBJECT MATTER
The claims are directed to a gas measurement system that includes a
digital camera. Claim 1, reproduced below with the claim limitation at issue
highlighted, is illustrative of the claimed subject matter:
1. An apparatus comprising:
a housing defining a slot;
a reaction support unit;
a friction bearing within the slot configured to couple to
the reaction support unit, the reaction support unit comprising
at least two light permeable channels configured to receive at
least one reaction substance, the at least one reaction substance
changing color in presence of at least one particular gaseous or
vaporous component;
a gas conveyance device configured to convey a gas
mixture through at least one of the channels;
an optoelectronic detection device configured to detect a
color change of the at least one reaction substance on the
reaction support unit during and/or after the conveyance of the
gas mixture, the color change being detected in the direction of
flow of the gas mixture through the at least two channels in at
least two separate positions;
a data reading device configured to read data stored on
the reaction support unit, the data reading device comprising a
digital camera;
an evaluating device configured to evaluate the data
detected by the optoelectronic detection device; and
a sensory feedback device configured to provide sensory
feedback characterizing the data evaluated by the evaluating
device.
Appeal 2018-009088
Application 14/415,355
3
Appeal Br. 52 (Claims Appendix) (emphasis added). Independent claims 48
and 53 also require that the optoelectronic detection device comprise a
digital camera.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Sunshine US 6,422,061 B1 July 23, 2002
Truex US 2005/0196322 A1 Sept. 8, 2005
Fujitsuka Monolithic pyroelectric
infrared image sensor
using PVDF thin film,
Sensors and Actuators
A 66 (1998) 237–243
1998

REJECTIONS
The Examiner maintains the following rejections:
A. Claim 1, 9–11, 13–27, 31, and 45–57 rejected under 35 U.S.C.
§ 102(b) as being anticipated by Truex;
B. Claim 12 rejected under 35 U.S.C. § 103(a) as being unpatentable
over Truex in view of Fujitsuka; and
C. Claims 28–30 rejected under 35 U.S.C. § 103(a) as being
unpatentable over Truex in view of Sunshine.
OPINION
All of the claims require a digital camera. Claim 1 requires a data
reading device comprising a digital camera. Claims 48 and 53 require an
optoelectronic detection device comprising a digital camera.
Appeal 2018-009088
Application 14/415,355
4
The Examiner finds that the pyroelectric film of Truex is the required
digital camera. Final Act. 3 (citing Truex ¶ 68). However, we agree with
Appellant that Truex’s pyroelectric film is not a digital camera. Appeal Br.
14.
The Examiner’s error lies in an unreasonably broad interpretation of
the term “digital camera.” According to the Examiner, paragraph 58 of
Appellant’s Specification defines “digital camera” in such a way that it
encompasses the pyroelectric film of Truex. The Examiner points to the
language in paragraph 58 of the Specification (Ans. 15) stating that the
digital camera can be designed as a camera chip. We reproduce the pertinent
portion of paragraph 58 in context below:
Also, the digital camera 17 can be designed with an electronic
image converter or image sensor and with an imaging optics
system, preferably a lens system, and/or the digital camera 17
can be designed as a camera chip, particularly a CMOS camera
chip, and/or the optoelectronic detection device can be formed
by the digital camera 17.
Spec. ¶ 58 (emphasis added).
One must read this portion of paragraph 58 in the context of the
disclosure as a whole, which describes digital camera 17 (shown in Figs. 1–
3) as either the data reading device that reads optical coding 22 (e.g., matrix
coding 29 as shown in Figure 5 or a barcode (Spec. ¶¶ 48, 50)) or the
optoelectronic detection device that detects the color change in a reaction
substance residing within channels 3 or both the data reading device and the
optoelectronic device. Spec. ¶¶ 48, 50, 58. As such, the digital camera must
have a camera chip that can record an optical image.
The meaning conveyed by the Specification accords with the ordinary
and accustomed meaning of “digital camera.” Dictionary.com defines a
Appeal 2018-009088
Application 14/415,355
5
digital camera as (1) “a camera that records images in digital form by means
of a device that converts the optical image to an electrical signal” or “a
camera that produces digital images that can be stored in a computer,
displayed on a screen and printed.” Dictionary.com/browse/digital-camera
(accessed Jan. 22, 2020) (emphasis added).
Appellant’s digital camera can read data, such as a barcode, and can
record the color of a reaction change as an image when used as an
optoelectronic detection device. The pyroelectric film of Truex does not
record an image, nor does it produce a digital image. It is not a camera or a
camera chip. Truex’s film is a piezo film. Truex ¶ 66. It converts thermal
energy into an electrical signal. Truex ¶ 68. Although this heat energy may
be produced by a colorimetric change, it is still heat energy. Nor does the
Examiner establish that the pyroelectric film records or stores an image.
The Examiner states that the pyroelectric film is an infrared camera
chip that is analogous to a charge-coupled device (CCD) camera chip for
infrared digital cameras. Ans. 15. But, to support an anticipation rejection, it
is not enough for the pyroelectric film to be analogous to a CCD camera
chip, it must be a camera chip. The pyroelectric film is a film, not a chip.
The Examiner’s reliance on further references to reject dependent
claims does not remedy the error.
Appeal 2018-009088
Application 14/415,355
6
CONCLUSION
The Examiner’s decision to reject claims 1, 9–31, and 45–57 is
reversed.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 9–11, 13–
27, 31, 45–
57
102(b) Truex 1, 9–11, 13–
27, 31, 45–
57
12 103(a) Truex, Fujitsuka 12
28–30 103(a) Truex, Sunshine 28–30
Overall
Outcome
1, 9–31, 45–
57

REVERSED