Ex Parte Bienkowski et al

Patent Trial and Appeal Board

Mar 27, 2017

13261866 (P.T.A.B. Mar. 27, 2017)

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.
13/261,866 05/14/2014 Lukasz Adam Bienkowski 03869.119083 8216
86528 7590 03/29/2017
Slay den Grubert Beard PLLC
401 Congress Avenue
Suite 1900
Austin, TX 78701
EXAMINER
JUNG, JAY YOUNG
ART UNIT PAPER NUMBER
2126
NOTIFICATION DATE DELIVERY MODE
03/29/2017 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):
trosson @ sgbfirm.com
patent @ sgbfirm. com
dallen @ sgbfirm. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SIEMENS AKTIENGESELLSCHAFT1
Appeal 2017-001397
Application 13/261,866
Technology Center 2100
Before LARRY J. HUME, LINZY T. McCARTNEY, and
JOHN D. HAMANN, Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
18—32. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Lukasz Adam Bienkowski and Christian Homma are named inventors.
Appeal 2017-001397
Application 13/261,866
STATEMENT OF THE CASE
The present patent application “relates to a system and a method for
controlling a thermographic measuring process on an inspection article.”
Spec. 1. Claim 20 illustrates the claimed subject matter:
20. A system for controlling a thermographic measuring
process on an inspection article, comprising:
at least one depth sensor detecting body gestures of a user
indicating selection of at least one of control functions and
thermographic measurement results;
a controller controlling the thermographic measuring
process as a function of the body gestures detected by the at least
one depth sensor; and
an image projector connected to the controller and
projecting at least one of the control functions and thermographic
measurement results onto the inspection article.
REJECTIONS
Claims 18—29, 31, and 32 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Howard et al. (US 2008/0137105 Al; June 12, 2008),
Albertson et al. (US 2008/0170776 Al; July 17, 2008), and Pranav Mistry,
The Thrilling Potential of SixthSense Technology, TEDIndia (Nov. 2009),
http://www.ted.com/talks/pranav_mistry_the_tbrilling_potential_of_sixthsen
se_technology.
Claim 30 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Howard, Albertson, Mistry, and Gilliland et al. (US 6,241,047 Bl; June
5,2001).
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Application 13/261,866
ANALYSIS
Regarding the Examiner’s rejection of claims 18—29, 31, and 32,
Appellant argues these claims together. See App. Br. 5—8. As permitted by
37 C.F.R. § 41.37(c)(l)(iv), we select claim 20 as representative of these
claims and decide the appeal as to this ground of rejection with respect to
claim 20. Appellant has waived arguments Appellant failed to timely raise
or properly develop. See 37 C.F.R. §§ 41.37(c)(l)(iv), 41.41(b)(2); In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).
Appellant argues “Mistry does not teach inspection of articles. Mistry
merely teaches the use of a camera and a projector, but it does not teach
inspection of articles.” App. Br. 6. We find this argument unpersuasive.
First, neither claim 20 nor any of the other pending claims recites
“inspection of articles.” These claims generally recite either “an” or “the”
“inspection article.” See App. Br. 10—13 (claims 18—32). Appellant’s
argument is incommensurate with the scope of claim 20 and therefore
unpersuasive.
Second, the Examiner found Howard teaches examining internal
structures of a target article (i.e, the recited “inspection article”) and the
combination of Howard, Albertson, and Mistry teaches or suggests “an
image projector connected to the controller and projecting at least one of the
control functions and thermographic measurement results onto the
inspection article.” See Ans. 2-4; Final Act. 2-4. Thus, to the extent
Appellant contends Mistry does not teach or suggest this limitation,
Appellant’s contention does not address the Examiner’s rejection.
Third, Mistry discloses a user viewing a newspaper on which Mistry’s
system has projected information. See Ans. 3 (citing Mistry’s embedded
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Application 13/261,866
video beginning at 7 minute 45 second mark); see also Final Act. 4 (citing
Mistry’s interactive transcript beginning at 7 minute 48 second mark). The
Examiner found the newspaper described by Mistry is an “inspection article”
under the broadest reasonable interpretation of the term. See Ans. 3.
Appellant has not offered any persuasive reasoning or evidence that calls
into question the Examiner’s construction of “inspection article” and
associated findings concerning Mistry. See App. Br. 5—6. In any event, as
noted above, the Examiner also found Howard teaches the recited
“inspection articles,” see Ans. 2-4; Final Act 2—3, and Appellant has also
failed to persuasively challenge this finding.
Appellant next contends the Examiner failed to identity a reason to
combine the cited art in the claimed manner. App. Br. 6—7. Appellant
quotes the Examiner’s rationale for combining Howard, Albertson, and
Mistry and asserts the rejection “relies on ex post reasoning that is distorted
by hindsight bias.” Id. at 7. According to Appellant, “[a]t the time of the
invention, nobody thought about ‘projecting at least one of the control
functions and thermographic measurement results onto the inspection
articled” Id. at 7—8 (emphasis modified).
Although Appellant asserts the Examiner relies on “ex post
reasoning” and that no one thought about the disputed “projecting” step,
Appellant has not offered persuasive evidence or reasoning to support either
assertion. Simply asserting something is true does not make it so. The
Examiner found one of ordinary skill in the art would have been motivated
to combine Howard’s and Albertson’s teachings “to only allow user access
to the resource by matching the predicted at least one gesture type with at
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Application 13/261,866
least one required gesture type.” Ans. 4 (citing Albertson 116). With
respect to Mistry, the Examiner found one of ordinary skill in the art
would have . . . recognized that applying the [known] technique
of Mistry to the teachings of Howard and Albertson would have
yielded predictable results because the level of ordinary skill in
the art demonstrated by the references applied shows the ability
to incorporate such features of image projection of control
functions onto the inspection article by image projector
connected to the controller into similar systems.
Ans. 4 (referencing Manual of Patent Examining Procedure § 2141 (III)).
Appellant’s conclusory assertions have not persuaded us the Examiner erred.
Appellant also argues the Examiner erroneously found Howard
teaches projecting results. Reply Br. 3. According to Appellant, Howard
teaches mapping results onto a computer model. Id. We find this argument
unpersuasive. The Examiner found Howard “teaches IR imagining and
laser-ultrasound results, or thermographic measurement results, are
combined and projected on a 3D projection of complex shape composites.”
Final Act. 3 (emphasis omitted); see also Ans. 2 (finding “Howard utilizes
IR imaging and laser-ultrasound results are combined and projected on a 3D
projection”). Howard provides adequate support for this finding. Howard
explicitly discloses “[t]he IR imaging and laser-ultrasound results are
combined and projected on a 3D projection of complex shape composites.”
Howard 121. Moreover, to the extent Appellant contends Howard alone
fails to teach the claim 20’s “image projector” limitation, as noted above, the
Examiner found a combination of Howard, Albertson, and Mistry teaches or
suggests this limitation. “[0]ne cannot show non-obviousness by attacking
references individually where, as here, the rejections are based on
combinations of references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981).
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Finally, Appellant contends Mistry does not teach or suggest claim
20’s “controlling” limitation. Reply Br. 3^4. In particular, Appellant argues
the Examiner’s finding in the Answer that Mistry discloses a control system
that identifies the content of the inspected article does not teach or suggest
claim 20’s “controlling” limitation. See id. However, despite having the
opportunity to challenge this finding in the Appeal Brief, Appellant did not
raise this argument until the Reply Brief. Compare Final Act. 4 (finding
Mistry teaches a control system that identifies the content of an inspected
article), with Ans. 3 (finding Mistry teaches a control system that identifies
the content of an inspected article). Appellant waived this argument by
failing to raise it in the Appeal Brief despite having the opportunity to so.
See 37 C.F.R. §§ 41.37(c)(l)(iv), 41.41(b)(2); Lovin, 652 F.3d at 1357.
Moreover, the Examiner found a combination of references teaches or
suggests claim 20’s “controlling” limitation. See Final Act. 2-4; Ans. 2—A.
Appellant’s arguments against Mistry alone have not persuaded us the
Examiner erred. See Keller, 642 F.2d at 426.
For the above reasons, we sustain the Examiner’s rejection of claim
18—29, 31, and 32. Because Appellant has not presented separate,
persuasive patentability arguments for claim 30, we also sustain the
Examiner’s rejection of this claim.
DECISION
We affirm the Examiner’s rejections of claims 18—32.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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