Ex Parte 7191915 et al

Patent Trial and Appeal Board

Sep 27, 2013

95000607 (P.T.A.B. Sep. 27, 2013)

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.
95/000,607 01/31/2011 7191915 CRAN01-00525 2902
42624 7590 09/27/2013
DAVIDSON BERQUIST JACKSON & GOWDEY LLP
4300 WILSON BLVD., 7TH FLOOR
ARLINGTON, VA 22203
EXAMINER
FETSUGA, ROBERT M
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
09/27/2013 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
________________

CRANE CO.
Respondent, Requestor

v.

AUTOMATED MERCHANDISING SYSTEMS, INC.
Appellant, Patent Owner
________________

Appeal 2013-006814
Inter Partes Reexamination Control 95/000,607
Patent No. US 7,191,915 B2
1

Technology Center 3900
________________

Before STEVEN D.A. McCARTHY, DANIEL S. SONG and
JEREMY M. PLENZLER, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge

DECISION ON APPEAL

1
Issued March 20, 2007 to James M. Hair, III and Kyriakos P.
Spentzos (the “′915 patent”). The ′915 patent issued from Appl. 10/838,222,
filed May 5, 2004.
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STATEMENT OF THE CASE 1
The Appellant/Patent Owner, Automated Merchandising Systems, 2
Inc., appeals under 35 U.S.C. § 134(b) (2011) and 35 U.S.C. § 315(a) (2011) 3
from a final rejection of claims 1-46. We have jurisdiction under 35 U.S.C. 4
§ 134(b) (2011) and 35 U.S.C. § 315(a) (2011). We AFFIRM the 5
Examiner‟s decision rejecting claims 1-46 on the basis of two grounds of 6
rejection set forth in both the Right of Appeal Notice (“RAN”) mailed April 7
30, 2012 and the Answer (“Answer” or “Ans.”) mailed January 28, 2013. 8
Since these two grounds of rejection are dispositive of the appeal, we do not 9
reach the remaining ground of rejection set forth in the Answer. See 37 10
C.F.R. § 41.77(a) (2011).
2
11
The ′915 patent was the subject of prior Reexamination 90/009,233, 12
filed July 31, 2008, in which the patentability of claims 1-46 was confirmed 13
without amendment. (See Ex Parte Reexamination Certificate US 7,191,915 14

2
The Patent Owner also “respectfully renews [its] previous request
filed on April 5, 2011 that the Order Granting this inter partes
Reexamination, 95/000,607 be reversed and the inter partes Reexamination
be vacated.” (App. Br. 29). The Patent Owner‟s request already has been
addressed in a “Decision on Petition under 37 C.F.R. § 1.181(a) Requesting
Vacatur of the Proceedings” mailed April 14, 2011. The Patent Owner has
not made any showing that the denial of the request is appealable to the
Patent Trial and Appeal Board.

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C1, issued Sep. 14, 2010).
3
It does not appear that any claims were added or 1
amended during the current reexamination proceeding. (See RAN 5). 2
The Patent Owner and the Requester, Crane Co., were parties to 3
concurrent litigation involving the ′915 patent as well as other patents in the 4
same family. The concurrent litigation, styled Automated Merchandising 5
Systems Inc. v. Crane Co., Case Nos. 3:03-CV-88 (L); 3:08-CV-97; 3:04-6
CV-80; 3:04-CV-75; and 3:04-CV 48, was conducted before Chief Judge 7
John Preston Bailey in the U.S. District Court for the Northern District of 8
West Virginia. (Ans. 2-3). A preliminary injunction and a stay of the 9
litigation pending the concurrent reexamination proceedings were the 10
subject of an opinion by the Court of Appeals for the Federal Circuit in 11
Automated Merchandising Systems Inc. v. Crane Co., 357 Fed. Appx. 297 12
(Fed. Cir. 2009). The litigation involving the ′915 patent terminated by 13
consent judgment on June 11, 2012 (Ans. 3; App. Br. 2 n.1), about the date 14
of the Notice of Appeal in this appeal. The Requester has not filed any 15
briefs in this appeal. (See Ans. 2). 16
The claims on appeal relate to methods for detecting whether an 17
object within a transparent front vending machine has actually been 18
delivered to a consumer. (′915 patent, col. 3, ll. 16-18). In the Appeal Brief 19
(“Appeal Brief or App. Br.”) dated September 4, 2012, the Patent Owner 20

3
The Requester also has requested reexamination of four other related
patents. Two of those requests involving other related patents were the
subjects of prior appeals to the Board of Patent Appeals and Interferences
(now the Patent Trial and Appeal Board). The two appeals were Appeal
2008-005966, mailed June 26, 2009 (addressing patent US 6,794,634 B2,
issued Sep. 21, 2004); and Appeal 2008-005779, mailed June 26, 2009
(addressing patent US 6,384,402 B1, issued May 7, 2002). (See Ans. 3).
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asserts that the claimed subject enables the machine to sense the delivery of 1
a selected product by equipping a transparent front vending machine “with 2
an optical sensor system which uses electromagnetic radiation that creates a 3
detection zone that, as in claim 1, substantially subtends a detection region, 4
and to detect a product as it freely falls through that detection region, and 5
using an optical sensor system that calibrates and accounts for current 6
ambient light conditions inside vending machines.” (App. Br. 7-8). 7
Claims 1, 32, 35 and 43 are independent. Claim 1 recites: 8
1. A method of detecting a dispensed 9
object within a transparent front vending machine, 10
the method comprising: 11
emitting pulsed electromagnetic radiation in 12
a plurality of beams such that said electromagnetic 13
radiation substantially subtends a detection region 14
through which said dispensed object will freely 15
fall, upon being dispensed; 16
causing said emitted electromagnetic 17
radiation to reach at least one electromagnetic 18
radiation detecting element; 19
selecting a detection threshold that is 20
exceeded when said object to be detected does not 21
intercept said detection region and is not reached 22
when said object intercepts said region; and 23
comparing a plurality of signals from said 24
electromagnetic radiation detecting element, each 25
at a different time, to said detection threshold, 26
wherein a pulse width of said pulsed 27
radiation is selected during a calibration so as to 28
account for current ambient light conditions inside 29
the vending machine. 30
(See App. Br. 30 (Claims App‟x.)). 31
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The Examiner‟s findings, reasoning and conclusions are set forth in an 1
Action Closing Prosecution (“ACP”) mailed December 10, 2011; the RAN; 2
and the Answer. The Examiner relies on the following references: 3
Dragne US 5,883,383 Mar. 16, 1999 4
Vogelpohl US 5,505,332 Apr. 9, 1996 5
Levasseur US 4,359,147 Nov. 16, 1982 6
Schuller US 3,901,366 Aug. 26, 1975 7
Endl US 3,742,222 Jun. 26, 1973 8
Tanaka
4
JP H04-52284 U May 1, 1992 9
(Ans. 4-5). Although the Requester has not filed any briefs in this appeal, 10
reference will be made to the Corrected Original Inter Partes Request 11
(“Request”) dated January 31, 2011. 12
The Examiner adopts, or adopts with modification, two rejections 13
proposed by the Requester under 35 U.S.C. § 103(a) (2011): 14
A. the rejection of claims 1-46 as being unpatentable 15
over Schuller and Dragne (see Ans. 5-9; RAN 7-10); and 16
B. the rejection of claims 1-46 as being unpatentable 17
over Vogelpohl, Levasseur, Tanaka and Dragne (see Ans. 9-14; 18
RAN 11-15). 19
The Examiner proposes and adopts an additional rejection under § 103(a): 20
C. the rejection of claims 1-46 as being unpatentable 21
over Schuller, Levasseur, Dragne and Endl (see Ans. 14-16; 22
RAN 15-17). 23

4
References to “Tanaka” will be to a translation verified by Kevin M.
Kelley, Jr. of Transperfect on or about June 3, 2010. A copy of the
translation is in the reexamination file.
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In addition to the Appeal Brief, the Patent Owner also relies on a 1
Rebuttal Brief dated February 28, 2013 (“Reb. Br.”). The Appeal Brief 2
includes the following Attachments: 3
Attachment 1: a Declaration of Sharon F. Shull dated 4
May 17, 2011 (“Shull Decl.”); 5
Attachment 2: an undated Crane Merchandising Systems 6
advertisement for a SUREVEND product delivery sensor; 7
Attachment 3: a 2002 Crane Merchandising Systems 8
advertisement for a SNACKCENTER 1 machine, promoting a 9
SUREVEND product delivery system; 10
Attachment 4: pages 1, 2 and 61-65 of the Deposition of 11
Len Beckring (“Beckring Depo.”), taken on April 5, 2004 in 12
Crane Co. v. Automated Merchandising Systems, Inc., Case No. 13
4:03CV1848 CEJ (E.D. Mo.); 14
Attachment 5: a Declaration of John Hens (“Hens 15
Decl.”) dated March 16, 2009; 16
Attachment 6: a Declaration of Joseph C. McAlexander, 17
III dated May 24, 2011 (“McAlexander Decl.”); 18
Attachment 7: Percy (US 5,651,476, issued Jul. 29, 19
1997); 20
Attachment 8: Truitt (US 5,927,539, issued Jul. 27, 21
1999); 22
Attachment 9: a Notice of Intent to Issue Ex Parte 23
Reexamination Certificate in Reexamination 90/009,569,
5
24
mailed October 7, 2010; 25
Attachments 10-13: drawing figures reproduced from 26
Schuller, Dragne, Friend and the ′915 patent. 27

5
The subject of Reexamination 90/009,569 was related patent US
6,384,402, issued May 7, 2002.

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We sustain grounds of rejection A and C. Since these grounds of 1
rejection address all of the claims on appeal, they are dispositive of the 2
appeal. Therefore, we do not reach ground of rejection B. 3
4
ISSUES 5
The Patent Owner argues the patentability of all of the claims as a 6
group without specifically arguing the language of any particular claim. We 7
group all of the appealed claims together for purposes of grounds of 8
rejection A and C; and specifically address only the language of 9
representative claim 1. See 37 C.F.R. § 41.67(c)(1)(vii) (2011). On pages 10
21 and 22 of the Appeal Brief, the Patent Owner quotes particular limitations 11
of independent claims 1, 32, 35 and 43, stating that “for example, among 12
others, the following claimed method steps taken from claims 1, 32, 35 and 13
43 are not shown by the cited art in a transparent front vending machine.” 14
Although this argument overlaps other arguments put forward by the Patent 15
Owner, we will address it separately. 16
Only issues and findings of fact contested by the Appellant/Patent 17
Owner have been considered. See 37 C.F.R. § 41.67(c)(1)(vii) (2011); In re 18
Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011); Ex parte Frye, 94 USPQ2d 19
1072, 1075-76 (BPAI 2010). Five issues are dispositive of the appeal: 20
First, is Dragne non-analogous art? (See App. Br. 17-18; 21
Ans. 25-27; Reb. Br. 10-11). 22
Second, would the proposed combination of the teachings 23
of the prior art as set forth in grounds of rejection A and C have 24
been obvious? (See App. Br. 13, 15 and 18; Ans. 6 and 20-21; 25
Reb. Br. 11-13). 26
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Third, would the proposed combination of the teachings 1
of Schuller and Dragne have included emitting pulsed 2
electromagnetic radiation in a plurality of beams such that the 3
electromagnetic radiation would have substantially subtended a 4
detection region through which a dispensed object would freely 5
fall, upon being dispensed? (See App. Br. 13-14; Ans. 21-23; 6
Reb. Br. 2-3). 7
Fourth, does Dragne teach a pulse width of pulsed 8
radiation being selected during a calibration so as to account for 9
current ambient light conditions inside a vending machine? 10
(See App. Br. 16; Ans. 6 and 24-25; Reb. Br. 8-10). 11
Fifth, do Schuller and Dragne collectively show the 12
method steps listed on pages 21 and 22 of the Appeal Brief? 13
14
FINDINGS OF FACT 15
The record supports the following findings of fact (“FF”) by a 16
preponderance of the evidence. 17
18
Schuller 19
1. The Examiner correctly finds that: 20
The Schuller reference discloses a vending 21
machine 1 including a transparent (col. 3, lns. 34-22
37) front door 11. The machine dispenses articles 23
“C” through a vend space 13 delimited in part by 24
the front door. A dispensed article free-falls 25
through the vend space (col. 3, lns. 31-34) and into 26
a customer accessible hopper 19 (col. 3, lns. 37-27
39). The machine also includes a sensing system 28
29 . . . . The sensing system detects an article free-29
falling through a region of the vend space (col. 16, 30
lns. 38-43). 31
(Ans. 5). 32
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2. More specifically, Schuller describes a machine for vending 1
cartons of cigarettes or other cartoned merchandise. (Schuller, col. 1, ll. 5-7 2
and 14-22). 3
3. Schuller‟s vendor includes a bank of dispensing modules D1-4
D4 sharing a common control module CM. (Schuller, col. 2, ll. 62-67 and 5
fig. 1). 6
4. Each dispenser module D1-D4 of Schuller‟s vendor includes a 7
cabinet 9 having a front door 11 and a plurality of vertically-arranged article 8
dispensers or dispensing mechanisms 3 within the cabinet 9. Each dispenser 9
3 holds a row of cigarette cartons to be vended. (Schuller, col. 3, ll. 21-26 10
and figs. 3 and 4). 11
5. As the Examiner correctly finds, the front door 11 of the cabinet 12
9 is windowed (that is, the cabinet 3 has a transparent front) to permit the 13
purchaser to view the forward-most cigarette cartons held in the dispensers 14
3. (Schuller, col. 3, ll. 34-37 and fig. 3). 15
6. Schuller describes the dispensers 3 as being spaced rearwardly 16
from the front 11 of the cabinet 3 to provide a vertical passage 13 in the 17
cabinet 9. (Schuller, col. 3, ll. 31-34). The vertical passage 13 defines a 18
“vend space” in the vending machine. 19
7. Each dispenser 3 includes means for feeding cartons forward 20
and dropping the forward-most carton off the front end of the dispenser 3 21
into the vertical passage 13 when the forward-most carton is purchased and 22
selected by a consumer. (Schuller, col. 3, ll. 31-34 and 47-51). 23
8. Schuller describes a gate 25 extending into the vertical passage 24
13 and a mechanism 27 for moving the gate 25 between a closed position 25
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and an open position. (Schuller, col. 3, ll. 42-47 and 52-57; see also id., fig. 1
6). 2
9. Schuller‟s cabinet includes a delivery chamber or retrieval bin 3
19. The delivery chamber 19 is customer accessible through a delivery 4
opening 21. (Schuller, col. 3, ll. 37-51 and figs. 3 and 6). 5
10. When a consumer using Schuller‟s vending machine purchases 6
and selects the forward-most carton held in one of the dispensers 3 and the 7
dispenser drops the forward-most carton into the vertical passage 13, the 8
gate 25 moves from its closed position to its open position. This movement 9
enables the carton dropping down the vertical passage 13 to drop into the 10
delivery chamber 19. (Schuller, col. 3, ll. 47-51). 11
11. Schuller also describes an electromechanical sensing means in 12
the form of a vend flap 29 located above the gate 25 and the delivery 13
chamber 19. (Schuller, col. 3, ll. 57-62; col. 7, ll. 27-32 and fig. 6). The 14
vend flap 29 includes a rocker bar 217 supported for pivotal movement 15
about a horizontal axis parallel to a width of the vertical passage 13. Fingers 16
219 project from the rocker bar 217 into the vertical passage 13 above the 17
delivery chamber 19. Spring means 225 bias the rocker bar 217 toward a 18
horizontal position. (Schuller, col. 7, ll. 32-39 and fig. 8). 19
12. Schuller‟s vend flap 29 also includes a pair of switches 227, 20
229. When a cigarette carton dropping (that is, freely falling) through the 21
vertical passage strikes the fingers 219, downward pivotal movement of the 22
rocker bar 217 actuates switches 227, 229 to generate an electrical signal 23
indicating that the carton has been vended. (Schuller, col. 3, ll. 57-62 and 24
col. 7, ll. 42-47). 25
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13. The Examiner concludes that “it would have been obvious to 1
one of ordinary skill in the sensing system art . . . to replace the wear and 2
failure prone mechanical system with an accurate electronic system.” (Ans. 3
6 (italics added); see also RAN 8). This reasoning is consistent with the 4
Examiner‟s earlier finding that Schuller‟s vend flap 29 was a “wear and 5
failure prone mechanical system” because 6
it [was] generally understood that “mechanical” 7
systems, i.e. systems with moving parts, [were] 8
subject to wear and potential failure due to 9
interaction between those parts (e.g. friction). 10
Furthermore, it [was] also generally understood 11
that “electronic” systems, i.e. systems without 12
moving parts or with few moving parts, [were] less 13
subject to wear and potential failure compared to 14
“mechanical” systems, due to an absence of such 15
wear and failure prone parts. 16
(ACP 23; see also Ans. 21-22). The Examiner‟s adoption of the proposed 17
finding is a reasonable exercise of official notice, since the fact that 18
interacting moving parts are subject to frictional wear is susceptible of 19
instant and unquestionable demonstration as being well-known. 20
14. The Examiner‟s reasoning, which speaks of replacing a 21
mechanical system with an “accurate electronic system,” also adopts the 22
Requester‟s proposed finding that “impact sensors of the type disclosed in 23
Schuller „366 are known to suffer from (a) insufficient sensitivity range, for 24
detecting light products as well as heavy ones, and (b) deformation of the 25
mechanical sensor element, causing failure of operation. Optical delivery 26
sensing systems are thus preferred.” (Request 28, citing Kawarazuka (JP 27
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H10-11639 A, publ. Jan. 16, 1998),
6
paras. 0004-08; cf. Ans. 23
7
, internal 1
footnotes omitted). The finding is consistent with the McAlexander 2
Declaration. (See McAlexander Decl. 8, Attachment 6 to the Appeal Brief). 3
4
Dragne 5
15. Dragne describes optical sensing units 11 for counting seeds 6
moving through seed transport ducts 12 of a planter. (Dragne, col. 1, ll. 4-7 7
and col. 4, l. 66 – col. 5, l. 7). 8
16. Each of Dragne‟s optical sensing units 11 includes a light 9
transmitter 15 and a receiver 16. A microprocessor 13 controls the light 10
transmitter 15 and the light receiver 16. (Dragne, col. 5, ll. 18-25 and fig. 3). 11
An optical system such as that described by Dragne counts seeds by sensing 12
pulses generated by momentary reductions in light intensity from a steady 13
state intensity caused by the passage of seeds falling between the light 14
transmitter 15 and the receiver 16; and then by counting the pulses to obtain 15
a seed count value. (See Dragne, col. 1, ll. 8-14). 16

6
A machine translation of Kawarazuka is available in the
reexamination file.

7
On page 23 of the Answer, the Examiner finds that “Dragne does
teach means for sensing falling articles (col. 1, lns. 8-14), which is also
accurate (col. 6, lns. 2-6).” The passage at column 6, lines 2-6 of Dragne
teaches that “any seed or particle passing through the duct in the area of the
transmitter passes through the beam of light generally emerging from the
transmitter element without the possibility of such a seed or particle passing
through a dark area between two of the LEDs.” The Examiner‟s citation of
the passage at column 2, lines 2-6 of Dragne as support for the finding that
Dragne‟s optical sensing units are “accurate” indicates that the Examiner is
using the term “accurate” in the statement of the rejection to indicate
sensitivity to small objects such as seeds.
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17. Dragne is not non-analogous art. More specifically, the 1
Examiner correctly finds that Dragne is reasonably pertinent to a problem 2
with which the named inventors of the ′915 patent were involved. (See Ans. 3
27). 4
18. The ′915 patent states that: 5
A particularly difficult situation is presented 6
when some of the products to be dispensed are 7
large so that a large transverse cross-sectional area 8
is required for the vend space, but others of the 9
product are so small that an optical beam meant to 10
be broken by the product could be missed due to 11
happenstantial path of movement and changing 12
spatial orientation of the falling product being 13
vended. 14
(′915 patent, col. 2, ll. 35-41). 15
19. The problem of smaller items falling between areas sensed by a 16
delivery sensor was recognized by others in the field of vending machine 17
delivery sensing. (See, e.g., Tanaka 3-4). 18
20. Dragne itself teaches that one problem with prior optical 19
sensing systems was that the light sources and the sensors of the prior 20
systems might leave areas which were not properly monitored. (Dragne, col. 21
1, ll. 56-59). 22
21. Dragne‟s light transmitter 15 includes a plurality of light 23
emitting diodes (“LEDs”) 29 mounted on a base wall 23 of a ceramic 24
transmitter housing 22. (Dragne, col. 5, ll. 39-48 and figs. 3 and 4). 25
22. Dragne teaches fixing the depth of the base wall 23 into the 26
housing 22 such that the conical beams transmitted by the LEDs 29 would 27
tend to intersect within the potting material 31. Dragne additionally teaches 28
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that, if the depth of the base wall 23 into the housing 22 were sufficient, the 1
light emerging from the surface of the housing would not contain any dark 2
sections or blind spots which were less illuminated, and no seed or particle 3
would escape detection by passing through dark areas between beams 4
transmitted by two of the LEDs 29. (Dragne, col 5, l. 62 – col. 6, l. 6). 5
Therefore, Dragne was reasonably pertinent to a problem with which the 6
named inventors were involved. (See Ans. 27).
8
7
23. Dragne teaches that the “frequency range of the LEDs [29] and 8
the receiver [that is, the photo silicon diode 32] is arranged to be in the 9
infrared range so as to be different from the ambient light.” (Dragne. col. 5, 10
ll. 55-57). Dragne also teaches that the “potting material 31 filling the 11
housing of the transmitter contains a pigment which tends to filter light 12
outside the infrared range so as to make the system less responsive to 13
ambient light.” (Dragne, col. 5, ll. 57-61; see also id. at col. 6, ll. 22-24). 14
24. Dragne‟s microprocessor 13 along with a control circuit 17, 15
control the intensity of light transmitted by the light transmitter 15. (Dragne, 16
col. 5, ll. 19-21 and col. 7, ll. 9-12). More specifically, the microprocessor 17

8
The Patent Owner characterizes the problem with which the named
inventors were involved far more narrowly on page 18 of the Appeal Brief.
The Patent Owner‟s formulation of the problem is too narrow. Those
elements of the problem as formulated by the Patent Owner which relate to
the response of the vending machine to the sensing of a delivery or non-
delivery by the optical sensing system would not have restricted the field of
inquiry by one of ordinary skill in the art seeking to substitute an optical
sensing system for Dragne‟s vend flap 29. It is worth noting in connection
with the Patent Owner‟s formulation of the problem that Dragne addresses
both the problem of detecting single, freely falling items of various sizes
(see FF 20-22) and the problem of operability in high ambient light
environments (see FF 23 and 30-32).
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13 modulates the current passing through the control circuit 17 so as to 1
provide current to the LEDs 29 in the form of a train of square wave pulses. 2
The microprocessor 13 controls the intensity of light emitted from the LEDs 3
29 by controlling the pulse width and duty cycle of the current pulses. (See 4
Dragne, col. 7, ll. 1-18). 5
25. Dragne teaches that the “microprocessor [13] generates the 6
pulse signal having a duty cycle determined by an algorithm within the 7
microprocessor. The algorithm used determines the condition present at 8
power up and determines the duty cycle to bring the receiver [16] to the 9
optimum level.” (Dragne, col. 7, ll. 14-18). 10
26. Dragne teaches determining the duty cycle needed to bring the 11
receiver 16 to the optimum level by initially generating pulses at a duty 12
cycle providing a minimum level of current to the light transmitter 15 and 13
comparing the output voltage V1 of the receiver 16 with a reference voltage. 14
In the event that the output voltage V1 is less than the reference voltage, 15
Dragne teaches increasing the duty cycle until the output voltage V1 exceeds 16
the reference voltage. (Dragne, col. 7, ll. 19-28). 17
27. The Examiner correctly adopts the Requester‟s proposed 18
finding that “the Dragne sensor system calibrates the pulsed radiation, both 19
at power-up (col. 7, lns. 29-38) and continuously during operation (col. 8, 20
lns. 16-19), to account for ambient light conditions (col. 8, lns. 20-23).” 21
(Ans. 6; RAN 8; see also Request 30-31). 22
28. The process disclosed by Dragne at column 7, lines 19-28 is a 23
calibration process in that the voltage V1 is adjusted by comparison with a 24
standard. The calibration taught by Dragne at column 7, lines 19-28 is based 25
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on two parameters. One parameter is the voltage V1 and the other parameter 1
is the duty cycle of the current provided to the transmitter 15. 2
29. During the calibration, the voltage V1 represents a combination 3
of the light transmitted by the light transmitter 15 and of any ambient light. 4
Hence, the voltage V1, and the calibration process as a whole, is based on 5
ambient light. Were an optical sensing unit 11 the type described by Dragne 6
placed in a vending machine near a transparent front, the calibration 7
performed in accordance with the teachings of Dragne at column 7, lines 19-8
28 would be based, at least in part, on ambient light entering through the 9
transparent front. 10
30. Dragne‟s receiver 16 includes a photo silicon diode 32 in the 11
form of an elongated strip mounted on a base wall 23 of a ceramic receiver 12
housing 22. (Dragne, col. 6, ll. 7-9 and figs. 3 and 4). Dragne teaches 13
potting the photo silicon diode 32 in the same epoxy polymer potting 14
material 31 used to pot the LEDs 29. (Dragne, col. 5, ll. 22-24 and fig. 3). 15
31. Each of Dragne‟s optical sensing units 11 includes the 16
combination of a load resistor 41 and a DC compressor circuit 46 which 17
filters out gradual changes in the steady state current generated by the 18
receiver 16. Dragne teaches that these changes may be due to ambient light 19
or to factors such as dust which interfere with the transmission of light from 20
the transmitter 14 to the receiver 16. (Dragne, col 7, ll. 53-56; col. 8, ll. 20-21
23; and fig. 5). 22
32. Therefore, the combination of Dragne‟s load resistor 41 and DC 23
compressor circuit 46 calibrates the voltage V1 output by the receiver 16 by 24
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comparison with a standard steady state determined by the values of the load 1
resistor and the components making up the DC compressor circuit. 2
33. Dragne states that, 3
In view of the necessity for analysis of the signal, 4
it is of course not possible to provide a seed count 5
value which is exactly equal to the number of 6
seeds but the above analysis techniques have been 7
developed to provide a seed count value which is 8
as close as possible to the number of seeds while 9
accommodating the variations between different 10
seed types. 11
(Dragne, col. 11, ll. 36-42). The Patent Owner characterizes this statement 12
as an admission that Dragne‟s system is “not an accurate system.” (App. Br. 13
15). Any such inaccuracy would have been due to the difficulty of counting 14
multiple seeds falling through a seed transport duct 12 at approximately the 15
same time. It would have been recognized that this source of inaccuracy 16
would not have affected the application of Dragne‟s optical sensing units 11 17
for the purpose of detecting vended products delivered through a vend space 18
one-at-a-time. (See AP 18). 19
20
Levasseur 21
34. Levasseur describes a vend control circuit 20 for controlling a 22
multi-product vending machine. (Levasseur, col. 2, ll. 44-46). Levasseur 23
teaches that construction of the vend circuit 20 “requires a single switch or 24
other vend delivery sensing device positioned to respond to any and all 25
product deliveries regardless of the number of possible vends and vend 26
motors.” (Levasseur, col. 1, ll. 43-49; see also id., col. 2, l. 66 – col. 3, l. 27
10). 28
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35. Levasseur additionally teaches that the single switch or other 1
vend delivery sensing device might be a photoelectric sensor; a mechanical 2
or electromechanical sensor; or an optic sensor. (Levasseur, col. 3, ll. 10-3
14). Levasseur speaks at one point of using a sensor device associated with 4
a product chute (See Levasseur, col. 2, l. 66 – col. 3, l. 5); and spoke at 5
another point of the sensor device 143 having “normally closed contacts 6
148” (see Levasseur, col. 5, ll. 39-47 and fig. 1). Nevertheless, Levasseur 7
does not appear to criticize the use of optical or photoelectric sensors. 8
Neither does Levasseur appear to suggest any reason why a mechanical or 9
electromechanical sensor might have been superior for purposes of vend 10
sensing than an optical or photoelectric sensor that have also been suggested 11
as being appropriate. Considered as a whole, Levasseur‟s teachings would 12
have suggested that an optical or photoelectric sensor was interchangeable 13
with a mechanical or electromechanical sensor for sensing the delivery of a 14
product in a vending machine. 15
16
Tanaka 17
36. Tanaka describes a product detection device for a vending 18
machine including a receiving tray or bin. The product detection device 19
senses the presence or absence of a vended item in the receiving tray. The 20
product detection device includes a light projector which projects a beam of 21
light parallel to a bottom surface of the receiving tray. The product 22
detection device also includes a light receiver which receives the light from 23
the light projector. (Tanaka 4-5). 24
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37. Tanaka teaches that known optical sensing systems might not 1
have been able to sense relatively small products because such products 2
might fall through poorly lit “dead zones” between light beams. (Tanaka 3-3
4). 4
38. Tanaka teaches using a beam reflected off one or more 5
reflectors to reduce dead zones in receiving tray. (Tanaka 5 and figs. 2 and 6
3). 7
8
Endl 9
39. Endl describes a photoelectric sensing system including 10
multiple light sources 20-24 in the form of LEDs. Endl teaches focusing 11
light beams 30-34 generated by the light sources 20-24 onto light sensors 12
41-45 to detect the presence of an object blocking one or more of the beams 13
30-34. (Endl, col. 1, ll. 2-5; col. 2, ll. 58-64; and fig. 1). 14
40. Endl teaches that, 15
[w]here the system operates in a brightly lighted 16
area, as is usually the situation in a manufacturing 17
operation, it is impractical to screen the photo 18
sensor from all ambient light; and it is necessary to 19
reduce the sensitivity of the system so that it is not 20
triggered by changes in the ambient light level. 21
(Endl, col. 6, ll. 24-29). 22
41. Endl describes operating the light sources 20-24 intermittently 23
by a series of pulses from a signal source 48. The light sources 20-24 are 24
connected in series and actuated simultaneously. (Endl, col. 2, l. 64 – col. 3, 25
l. 2). Endl teaches that any fluctuations in the intensity of ambient light are 26
of relatively low frequency (Endl, col. 6, l. 46); and that the “use of a pulsed 27
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light source permits electrical filtering of the sensor output which 1
substantially eliminates all ambient light effects (Endl, col. 6, ll. 29-31). 2
3
Additional Findings 4
42. The Patent Owner asserts that, “about three years after the 5
Patent Owner AMS first introduced its new vend sensor technology to the 6
market, AMS‟s competitors, including requester Crane, followed AMS‟s 7
lead and introduced their own versions of that same technology.” (App. Br. 8
11, citing Shull Decl., paras. 2-5, Attachment 1 to the Appeal Brief; see also 9
Reb. Br. 1-2, citing Attachments 2 and 3 to the Appeal Brief). Paragraphs 2-10
5 of the Shull Declaration describe technology in the Patent Owner‟s 11
SENSIT vend sensing systems. Those paragraphs do not address activities 12
by the Requester or other competitors. 13
43. The undated advertisement reproduced as Attachment 2 to the 14
Appeal Brief states that Crane Merchandising Systems‟ SUREVEND product 15
delivery sensor provides “[a]utomatic [s]elf-calibration” and “[w]orks in 16
[a]ll [l]ighting [c]onditions and [t]emperatures.” The advertisement is 17
entitled to little weight with regard to the obviousness of the claimed subject 18
matter. Alleged infringers‟ introduction of their own versions of a patent 19
owner‟s “technology” is poor evidence that subject matter specifically 20
claimed is patentable. The 2002 advertisement reproduced as Attachment 3 21
to the Appeal Brief states only that the SNACKCENTER 1 machine as sold in 22
2002 included “infrared technology [which] detects whether the vended 23
product has dropped.” The 2002 advertisement does not include any further 24
description demonstrating a nexus between the disclosed product and subject 25
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matter in the claims of the ′915 patent, or that the disclosed product is a copy 1
of the Patent Owner‟s SENSIT technology. The assertion that other 2
competitors introduced their own versions of the Patent Owner‟s technology 3
is entitled to little weight because the evidence does not establish that the 4
other competitors specifically adopted subject matter claimed in the ′915 5
patent or copied the Patent Owner's commercial implementation thereof. 6
44. The Patent Owner asserts that the claimed invention has 7
enjoyed commercial success and that the “vending industry, now including 8
Crane, is all licensed under [the Patent Owner‟s] technology.” (App. Br. 11, 9
citing Shull Decl., Attachment 1 to the Appeal Brief; see also Reb. Br. 2). 10
The Patent Owner submits redacted copies of the licenses, but according to 11
the Shull Declaration, these licenses cover not only subject matter claimed in 12
the ′915 patent but also the subject matter claimed in at least four other 13
patents. (See Shull Decl., paras. 14 and 15). Furthermore, the Patent Owner 14
does not even provide information regarding the actual value of these 15
licenses in generating royalties, or regarding the number of products in the 16
industry which are manufactured under the licenses, in support of the 17
assertions of commercial success. 18
45. The Patent Owner has introduced declaration testimony of John 19
Hens, a principal at Vendors 1
st
Choice. (Hens Decl., para. 1, Attachment 5 20
to the Appeal Brief; see also App. Br. 12). Vender‟s 1
st
Choice is a 21
distributor selling the Patent Owner‟s vending machines. (Hens Decl., para. 22
8). Hens declares that he attended a vending machine trade show in early 23
1998 at which the Patent Owner displayed a SENSIT optical vend detector 24
equipped, glass front vending machine. (Hens Decl., para. 6). Hens states 25
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that he “immediately perceived the introduction of that optical vend 1
detection system as an industry changing event, a profound step forward. 2
[He] understood that the addition of a reliable vend detection system would 3
make a real difference to vending machine operators and the response [he] 4
saw at the tradeshow was all positive.” (Hens Decl., para. 7). 5
46. In addition, the Patent Owner has introduced an excerpt of 6
deposition testimony by Len Beckring. (See App. Br. 11). The Patent 7
Owner states in the Appeal Brief that Beckring was an independent 8
distributor of vending machines on behalf of both the Patent Owner and the 9
Requester. During the deposition, counsel asked Beckring if he “ever had 10
any discussions with anyone about that issue regarding anyone copying [the 11
Patent Owner‟s SENSIT] technology?” (Beckring Depo. 61, ll. 19-21, 12
Attachment 4 to the Appeal Brief). Beckring responded that: 13
I would say yes, I‟ve discussed it with many 14
people throughout the industry because Roy 15
Steely‟s invention of sense it [sic, optical vend 16
detectors of the type sold under the SENSIT mark] 17
was a key event, one of the first new things that‟s 18
come along in our industry that somebody could 19
really hang their hat on and say we‟ve improved a 20
snack machine, and he had done it within five 21
years of doing business. 22
(Beckring Depo., p. 63, ll. 2-8). 23
47. The licensing evidence, as well as the testimonies of John Hens 24
and Len Beckring, are entitled to little weight in concluding whether the 25
subject matter of representative claim 1 would have been unobvious. The 26
Patent Owner has not established a clear nexus between this evidence and 27
subject matter claimed in the ′915 patent. The Patent Owner owns a family 28
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of patents related to the ′915 patent. (See Shull Decl., para. 15, Attachment 1
1 to the Appeal Brief). Neither the licensing agreements nor the testimonies 2
of the two witnesses differentiate between the subject matter claimed in the 3
five identified patents of the family. In fact, Roy Steely, the individual 4
identified by Len Beckring as the inventor of the technology which Len 5
Beckring praises, is not a named inventor on the ′915 patent. While the 6
evidence may say something about the novelty of the broad class of 7
technology claimed by the Patent Owner, it does not tend to show the 8
patentability of the subject matter specifically claimed in the ′915 patent. 9
10
ANALYSIS 11
First Issue 12
Dragne is not non-analogous art. (FF 17; see App. Br. 17-18; Ans. 13
25-27; Reb. Br. 10-11). A reference is within the scope and content of the 14
relevant prior art if it would have been reasonably pertinent to a problem 15
with which the named inventors were involved. “A reference is reasonably 16
pertinent if, even though it may be in a different field from that of the 17
inventor‟s endeavor, it is one which, because of the matter with which it 18
deals, logically would have commended itself to an inventor‟s attention in 19
considering his problem.” In re ICON Health & Fitness, Inc., 496 F.3d 20
1374, 1379-80 (Fed. Cir. 2007). 21
One problem with which the named inventors were involved related to 22
providing a vending machine capable both of vending large items and of 23
sensing the delivery of small items. That is, an optical sensing system 24
covering a large enough cross-sectional area to allow large items to drop into 25
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a delivery bin might miss the delivery of smaller items due to uneven 1
coverage of the area. (FF 18 and 19). While Dragne described a device for 2
optically detecting a falling seed, it recognized the problem of small items 3
falling between beams of an optical sensing system. (See FF 20). It taught 4
the use of intersecting beams to reduce dark areas between beams through 5
which small items might pass undetected. (FF 22). Therefore, Dragne was 6
reasonably pertinent to a problem with which the named inventors were 7
involved. It is not non-analogous art. 8
9
Second Issue 10
Schuller describes a vending machine comprising a transparent front; 11
a dispensing mechanism configured to perform vending operations and 12
dispense a product upon selection by a consumer; a vend space comprising a 13
portion of space in the vending machine through which a selected product 14
will freely fall, independent of a product lowering elevator, into a bin 15
portion for retrieval by the consumer; and a vend-sensing system, that is, the 16
vend flap 29. (FF 1-12). Sculler‟s vend-sensing system is positioned above 17
a customer accessible portion of the retrieval bin portion of the vending 18
machine. (FF 11 and 12). The Examiner correctly finds that Schuller does 19
not describe a vending machine including vend-sensing system operating by 20
electromagnetic radiation. (See Ans. 5). 21
Dragne describes an optical sensing system configured to sense when 22
items, specifically seeds, freely fall through a space. (FF 15). Dragne‟s 23
optical sensing system comprises an emitter mechanism configured to 24
generate electromagnetic radiation that substantially spans the space through 25
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which the seeds fall. (FF 16). Dragne‟s optical sensing system also includes 1
a detector mechanism configured to receive electromagnetic radiation 2
generated by the emitter mechanism and to detect changes in the 3
electromagnetic radiation caused by the seeds as they freely fall. (Id.) 4
The Patent Owner contends that the Examiner‟s reasoning is not 5
persuasive of the obviousness of the claimed subject matter. Both the 6
Requester‟s and the Examiner‟s evidence of obviousness, and also the Patent 7
Owner‟s evidence and arguments of non-obviousness, must be considered in 8
determining whether the Examiner correctly concluded that the subject 9
matter of representative claim 1 would have been obvious. 10
The Examiner finds that Dragne describes an “accurate electronic 11
system” capable of reliably detecting both small and large items. (FF 14). 12
In addition, the Examiner finds that Schuller‟s vend flap 29 would have been 13
subject to particular types of wear, such as wear due to friction, which an 14
optical system would not have suffered to the same degree. (FF 13). The 15
Examiner concludes that “it would have been obvious to one of ordinary 16
skill in the sensing system art . . . to replace the wear and failure prone 17
mechanical system [such as Schuller‟s vend flap 29] with an accurate 18
electronic system.” (Ans. 6). With specific reference to ground of rejection 19
C, the Examiner also finds that Levasseur taught the interchangeability of 20
electromechanical and optical vend detection systems. (FF 35; see also Ans. 21
15). This latter finding implies that it would have been obvious to one of 22
ordinary skill in the art to merely substitute an optical vend detection system 23
for Schuller‟s electromechanical system. 24
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The Patent Owner responds to the Examiner‟s reasoning with several 1
arguments. The Patent Owner argues that one of ordinary skill would not 2
have replaced Schuller‟s vend flap 29 with an optical system simply to avoid 3
friction wear. The Patent Owner argues replacement of an 4
electromechanical sensing system with an optical system would have left 5
other moveable parts subject to frictional wear within the vending machine. 6
(See Reb. Br. 12, citing McAlexander Decl. 6, Attachment 6 to the Appeal 7
Brief). According to the Patent Owner, apart from this, optical systems are 8
subject to their own failure modes, such as misalignment. (See 9
McAlexander Decl. 6; see also Shull Decl., para. 23, Attachment 1 to the 10
Appeal Brief). 11
The Patent Owner also argues that: 12
Ambient light coming through a transparent front 13
machine was a major issue directing one away 14
[from] use of any photoelectric system in such 15
equipment. Instead, the vending art only used 16
optical systems in the dark interiors of a delivery 17
area, of solid front machines, or in chute type 18
vending equipment as evidenced by Percy and 19
Truitt. Thus, the art at the time taught away from 20
the present invention. 21
(App. Br. 10). The Patent Owner asserts that in accordance with the 22
Examiner‟s reasoning, the solution to the problem of ambient light would 23
have come from art which, even if not non-analogous, described optical 24
systems designed for use in planters or machine stops rather than in vending 25
machines. 26
To these arguments must be added the Patent Owner‟s objective 27
evidence regarding the reaction of the vending machine industry to the 28
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introduction of the technology embodied in the Patent Owner‟s SENSIT 1
vending machines. The advertisement reproduced as Attachment 2 to the 2
Appeal Brief stated that Crane Merchandising Systems‟ SUREVEND product 3
delivery sensor provided “[a]utomatic [s]elf-calibration” and “[w]orks in 4
[a]ll [l]ighting [c]onditions and [t]emperatures.” (FF 43). The remainder of 5
the Patent Owner‟s objective evidence fails to establish even this tenuous 6
degree of nexus with any subject matter specifically claimed in the ′915 7
patent. See In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir. 8
1995)(addressing the nexus requirement for objective evidence). 9
Market forces would have provided one of ordinary skill in the art 10
reason to increase the variety of products which a vending machine of the 11
type described by Schuller was capable of selling. A machine capable of 12
selling a greater variety of products would have been more valuable to a 13
larger customer base. One step in increasing the variety of products which a 14
vending machine of the type described by Schuller is capable of selling 15
would have been to replace Schuller‟s vend flap 29 with an accurate 16
electronic system, that is, with an optical delivery sensing system better able 17
to detect smaller, lighter articles. Although the Patent Owner attacks the 18
Examiner‟s reliance on the reduction of friction wear as an apparent reason 19
for substituting an optical system for Schuller‟s electromechanical system, 20
the Patent Owner does not appear to address the Examiner‟s finding that 21
Dragne‟s optical system was an “accurate electronic system.” (See FF 13 22
and 14). One of ordinary skill in the art would reasonably have chosen one 23
wear or failure mode over another of a different type system where there was 24
an independent advantage, in this case improved accuracy, to be had. See 25
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Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006)(“[A] 1
given course of action often has simultaneous advantages and disadvantages, 2
and this does not necessarily obviate motivation to combine.”). 3
One of ordinary skill in the art would have had reason to position the 4
replacement optical sensing system in approximately the same position 5
occupied by Schuller‟s vend flap 29 in order to maintain the relationships 6
between different components of the vending machine. Nevertheless, this 7
placement would have exposed the optical sensing system to levels of 8
ambient light greater than those to which the optical systems might have 9
been exposed as described in references such as Percy and Truitt. (See App. 10
Br. 10). The references cited by the Requester and the Examiner do not 11
show that any optical sensing system previously installed in a vending 12
machine was both capable of reliably detecting smaller, lighter items, in 13
order to increase the variety of products which the machine might sell; and 14
insensitive to changes in ambient light, so as to permit the optical sensing 15
system to be placed in approximately the same position occupied by 16
Schuller‟s vend flap 29. 17
That said, Dragne (see FF 20-23 and 30-32) and, as applied to ground 18
of rejection C, Endl (see FF 40 and 41), are evidence that optical sensing 19
systems addressing the same sensitivity range and ambient light problems 20
outside the narrow use in vending machines would have led one of ordinary 21
skill in the art to the subject matter of representative claim 1. Cf. KSR Int’l 22
Co. v. Teleflex, Inc. 550 U.S. 398, 417 (2007)(“When a work is available in 23
one field of endeavor, design incentives and other market forces can prompt 24
variations of it, either in the same field or a different one.”). Dragne‟s 25
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teachings in particular are evidence that optical sensing systems addressing 1
the same sensitivity range and ambient light problems were known outside 2
the narrow application of optical sensing systems in vending machines even 3
if Dragne‟s optical sensing units might have seen little ambient light in their 4
native environments. 5
This reasoning is consistent with the evidence as a whole. For 6
example, the Requester‟s introduction of a product three years after the 7
Patent Owner‟s introduction of the SENSIT vend sensing system (see App. 8
Br. 11), or assertions of commercial success based on licensing, without 9
corresponding supporting evidence of actual success, are not entitled to 10
significant weight as evidence that subject matter specifically claimed in the 11
′915 was patentable. (FF 42-44). Combining the teachings of Schuller and 12
Dragne as proposed in ground of rejection A, or the teachings of Schuller, 13
Levasseur, Dragne and Endl as proposed in ground of rejection C, one of 14
ordinary skill in the art would have had reason to substitute an optical 15
sensing system of the type described by Dragne for the vend flap 29 16
described by Schuller. 17
18
Third Issue 19
Since Schuller did not disclose control circuitry for an optical sensing 20
system, it would have been obvious for one of ordinary skill in the art to 21
adopt the portion of Dragne‟s control circuitry which related to the detecting 22
(as opposed to the counting) of items breaking the light beams. In addition, 23
one of ordinary skill in the art would have had reason to position the 24
replacement optical sensing system in approximately the same position 25
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occupied by Schuller's vend flap 29 in order to maintain the relationships 1
between different components of the vending machine. The proposed 2
substitution would have yielded a vending machine in which was performed 3
the step of “emitting pulsed electromagnetic radiation in a plurality of beams 4
such that said electromagnetic radiation substantially subtends a detection 5
region through which said dispensed object will freely fall, upon being 6
dispensed” (italics added) as recited in representative claim 1. 7
Despite the Patent Owner‟s arguments to the contrary (see App. Br. 8
13-14; Reb. Br. 2-3), the Examiner correctly concluded that “the obvious 9
combination of the Schuller and Dragne disclosures would [have resulted] in 10
a falling object passing through an optical beam, rather than mechanical 11
fingers, in order to operate the vending machine.” (Ans. 22-23). Common 12
sense implies that an optical sensing system, once substituted for Schuller‟s 13
vend flap 29, would have sensed vended items as the items fell freely 14
through the light beams of the optical sensing system. 15
One drawback to prior electromechanical sensing systems which the 16
substitution of an optical system overcomes is insufficient sensitivity range 17
due to the interference of the pivotable bars of electromechanical systems 18
with the free fall of vended products toward the delivery chamber. (See FF 19
15). This advantage of overcoming this drawback would have flowed 20
naturally from the placement of an optical sensing system at the same 21
location formerly occupied by Schuller‟s vend flap 29 and replaced the 22
electromechanical sensing system of Schuller which includes the pivotable 23
bars. Therefore, the limitation requiring “an optical vend-sensing system 24
configured to sense when said selected product freely falls through said vend 25
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space” adds nothing of patentable consequence as compared to the suggested 1
combination of prior art. 2
3
Fourth Issue 4
Despite the Patent Owner‟s argument to the contrary (see App. Br. 5
16), Dragne also describes “wherein a pulse width of said pulsed radiation is 6
selected during a calibration so as to account for current ambient light 7
conditions.” The ′915 patent differentiates between ambient light and 8
excitation light, stating that “[t]he ambient light is external to the system and 9
excitation light is from the system.” (′915 patent, col. 16, ll. 8-9). Other 10
than this statement, neither the Patent Owner, the Requester nor the 11
Examiner has provided a persuasive definition of the term “calibration” or of 12
“account[ing] for current ambient light conditions.” One general purpose 13
dictionary defines the term “calibrate” as sufficiently broad to encompass 14
“[t]o check, adjust, or determine by comparison with a standard.” (THE 15
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (Houghton 16
Mifflin Co., 4th ed., 2009), available at http://www.thefreedictionary.com 17
/calibrate (last visited September 10, 2013)). 18
The Specification of the ′915 patent provides several examples of 19
calibration modes for calibrating the optical vend-sensing system based on 20
ambient light entering the vending machine through the transparent front. 21
(′915 patent, cols. 16 and 17). For example, the ′915 patent teaches 22
performing a “limit-less calibration” when the controller powers up after 23
having been off for longer than about five minutes. (′915 patent, col. 17, ll. 24
56-61). 25
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The system described in the Specification of the ′915 patent detects 1
the delivery of items by sensing perturbations in the intensity of a pulsed 2
band of light through which the items fall. (′915 patent, col. 9, ll. 6-17). 3
The pulsed band of light is produced by a linear array of LEDs driven at 4
high currents, low duty cycles and selected frequencies. (The ′915 patent, 5
col. 11, ll. 17-19). A limit-less calibration is performed on the basis of three 6
parameters: a measure of the pulse width of the current driving the LEDs 7
(the “PULSE” parameter); a measure of light intensity combining the 8
intensities of the excitation and ambient light (the “BASIS” parameter); and 9
a measure of the pulse width modulation (that is, the duty cycle) of the 10
current driving the LEDs (the “PWM” parameter). (See ′915 patent, col. 16, 11
ll. 4-17). 12
Dragne describes a calibration process performed at power up to 13
determine the optimum duty cycle for the current pulses used to drive the 14
LEDs 29 of the light transmitter 15. (FF 27). The calibration process is 15
performed on the basis of two parameters, namely, a voltage V1 representing 16
the combined intensities of the excitation and ambient light; and the duty 17
cycle of the current pulses supplied by the control circuit 17 to the LEDs 29. 18
At the beginning of the calibration process, the microprocessor 13 sets the 19
duty cycle to a minimum current level. (FF 26). The system then generates 20
pulses of light through the LEDs 29; compares the output voltage V1 with a 21
reference voltage; and increases the duty cycle. The calibration process 22
completes when the output voltage exceeds the reference voltage or the duty 23
cycle increases to the point where the total current driving the LEDs 29 24
exceeds a maximum value. (Id.) 25
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In short, the Examiner correctly finds that Dragne describes “wherein 1
a pulse width of said pulsed radiation is selected during a calibration.” (See 2
FF 27). Dragne‟s system calibrates an optical circuit by adjusting the duty 3
cycle of the current supplied to the LEDs 29 by comparing the output 4
voltage V1 of the receiver 16 with a standard, namely, a reference voltage. 5
The fact that ambient light enters into both Dragne‟s calibration process and 6
the limit-less calibration taught by the ′915 patent only in the form of a 7
parameter combining ambient and excitation light confirms that Dragne‟s 8
calibration “account[s] for current ambient light conditions.” Had one of 9
ordinary skill in the art installed an optical sensing system similar to that 10
described by Dragne, including a microprocessor 13 and a control circuit 17 11
for performing the calibration process described by Dragne, into a vending 12
machine of the type described by Schuller, the optical sensing unit would 13
have performed the calibration process based on ambient light entering the 14
vending machine through the transparent front. (FF 29). 15
16
Fifth Issue 17
On pages 21 and 22 of the Appeal Brief, the Patent Owner quotes 18
particular limitations of independent claims 1, 32, 35 and 43, stating that 19
“for example, among others, the following claimed method steps taken from 20
claims 1, 32, 35 and 43 are not shown by the cited art in a transparent front 21
vending machine.” The Examiner has either shown where these limitations 22
are taught by Schuller or Dragne, or why it would have been obvious to 23
modify Schuller‟s vending machine to include them. The Patent Owner has 24
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not offered a persuasive explanation how the Examiner‟s findings or 1
reasoning are erroneous. 2
Claim 1 recites the step of “emitting pulsed electromagnetic radiation 3
in a plurality of beams such that said electromagnetic radiation substantially 4
subtends a detection region through which said dispensed object will fall 5
freely, upon being dispensed.” Claim 32 recites the step of “causing at least 6
some of said plurality of electromagnetic emitters and said plurality of 7
electromagnetic detectors to form a light curtain across a detection region, 8
said detection region being a region through which said dispensed object 9
will freely fall, upon being dispensed.” Claim 43 recites the step of 10
positioning one or more emitters of 11
electromagnetic radiation to emit radiation across a 12
cross-section of a cross-sectional area to a plurality 13
of electromagnetic radiation detectors on an 14
opposite side of said cross-sectional area, said 15
cross-sectional area being below a vend space 16
within said vending machine through which a 17
dispensed product freely falls but above a 18
customer accessible retrieval bin into which said 19
product falls. 20
With respect to claim 1, the Examiner correctly finds that “the Dragne 21
sensing system emits/transmits a plurality of beams of pulsed, modulated 22
(col. 7, lns. 9-18) infrared (col. 5, lns. 55-57) radiation from a row of LED‟s 23
29.” (Ans. 6; RAN 8; see also Request 33). With respect to claim 32, the 24
Examiner correctly finds that “the electromagnetic radiation of the Dragne 25
sensing system is used to form a light curtain (Fig. 3).” (Ans. 9; RAN 10; 26
see also Request 54). In addition, as noted in the discussion of the third 27
issue above, one of ordinary skill in the art would have had reason to 28
position the replacement optical sensing system in approximately the same 29
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35
position occupied by Schuller's vend flap 29 in order to maintain the 1
relationships between different components of the vending machine. (See 2
also Request 65). The Examiner correctly concludes that “the obvious 3
combination of the Schuller and Dragne disclosures would [have resulted] in 4
a falling object passing through an optical beam, rather than mechanical 5
fingers, in order to operate the vending machine.” (Ans. 22-23). 6
Claim 1 recites “selecting a detection threshold.” The Examiner finds 7
that “the Dragne sensing system selects a detection threshold which is 8
dynamic (col. 2, lns. 43-65).” (Ans. 6; RAN 8; accord Request 33 (citing 9
Dragne, col. 9, ll. 40-64 and col. 10, ll. 14-21, which describe a preferred 10
embodiment 62 of the threshold circuit identified in column 2, lines 43-65 of 11
Dragne)). 12
Claim 1 recites “a pulse width of said pulsed radiation is selected 13
during a calibration so as to account for current ambient light conditions 14
inside the vending machine.” Claim 32 recites the step of “calibrating at 15
least some of said plurality of electromagnetic emitters to account for current 16
ambient light conditions inside the vending machine.” These limitations are 17
addressed in the discussion of the fourth issue above. (See also FF 27). 18
Claim 43 recites “wherein said one or more emitters of 19
electromagnetic radiation are arranged to emit electromagnetic across a 20
depth of the vending machine, front to rear, which substantially corresponds 21
with the front to rear depth of the vend space within the vending machine.” 22
The Examiner correctly finds that “the sensing system of Dragne covers the 23
entire cross-section of a free-fall detection region (col. 6, lns. 41-45).” (Ans. 24
7; RAN 8; accord Request 67). 25
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36
The Patent Owner has not offered a persuasive explanation as to why 1
the Examiner‟s findings or reasoning are erroneous. 2
3
CONCLUSION 4
We sustain ground of rejection A, that is, the rejection of claims 1-46 5
as being unpatentable over Schuller and Dragne. We additionally sustain 6
ground of rejection C, that is, the rejection of claims 1-46 as being 7
unpatentable over Schuller, Levasseur, Dragne and Endl. Since these 8
grounds of rejection address all of the claims on appeal, they are dispositive 9
of the appeal. See 37 C.F.R. § 41.67(c)(1)(vii). Therefore, we do not reach 10
ground of rejection B. 11
12
DECISION 13
We AFFIRM the Examiner‟s decision rejecting claims 1-46. 14
Requests for extensions of time in this inter partes reexamination 15
proceeding are governed by 37 C.F.R. § 1.956 (2011). 16
17
AFFIRMED 18
19
20
21
alw 22
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37
Patent Owner: 1
2
Davidson, Berquist, Jackson & Gowdey LLP 3
4300 Wilson Blvd., 7th Floor 4
Arlington, VA 22203 5
6
Third Party Requester: 7
8
Munck, Carter LLP 9
Docket Clerk 10
P.O. Drawer 800889 11
Dallas, TX 75380 12