Ex Parte Blumhofer et al

Patent Trial and Appeal Board

Apr 11, 2013

11548848 (P.T.A.B. Apr. 11, 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.
11/548,848 10/12/2006 Andreas BLUMHOFER SCHWP0257USA 6040
46140 7590 04/12/2013
DON W. BULSON (BRAI)
RENNER, OTTO, BOISSELLE & SKLAR, LLP
1621 EUCLID AVENUE - 19TH FLOOR
CLEVELAND, OH 44115
EXAMINER
REMALY, MARK DONALD
ART UNIT PAPER NUMBER
3777
MAIL DATE DELIVERY MODE
04/12/2013 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
__________

Ex parte ANDREAS BLUMHOFER and JOHANNES MANUS
__________

Appeal 2011-006368
Application 11/548,848
Technology Center 3700
__________

Before ERIC GRIMES, LORA M. GREEN, and
SHERIDAN K. SNEDDEN, Administrative Patent Judges.

SNEDDEN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
navigation system. The Examiner has rejected the claims as anticipated and
obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

App
App

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06368
/548,848
ST
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lective are
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itted

Appeal 2011-006368
Application 11/548,848

3
by light emitters 2 onto the marker array 3, 4 shown and is only
reflected by the reflective area 3 in the region not covered by
the light-absorbing sphere 4. This reflection pattern can be
detected by a video camera 1 which, on the basis of the
reflection image (which in the example embodiment shown is
annular), can recognize the spatial position of the marker 3, 4 or
of a reference star formed from a number of markers. The video
camera 1 can provide the detected image data to a
computational unit 5, which proceeds to calculate a position of
the marker array 3, 4 in three dimensional space.
(Specification 5.)

Claims 1, 2, 4-9 and 15-18 are on appeal. Claims 1 and 18 are
representative and reads as follows:
1. A marker for a navigation system, comprising:
a reflective surface for reflecting light received from a
first direction; and
a light-absorbing, non-reflective or low-reflective object
spaced apart from the reflective surface, wherein when the
reflective surface receives light from the first direction, the
object casts a shadow on the reflective surface.

18. A marker for a navigation system, comprising:
a reflective surface; and
a light-absorbing, non-reflective or low-reflective object
arranged at a distance from the reflective surface, wherein the
object is a sphere or is spherical.

The claims stand rejected as follows:
I. Claim 18 under 35 U.S.C. § 102(b) as being anticipated by Fuhr.1
II. Claims 1-2, 4-9 and 15-17 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Fuhr and Fox.2

1 Fuhr et al., US 5,203,346, issued Apr. 20, 1993..
Appeal 2011-006368
Application 11/548,848

4

I.
Issue
The Examiner rejected 18 under 35 U.S.C. § 102(b) as being
anticipated by Fuhr. The Examiner finds that Fuhr discloses the navigation
system of claim 18 where “[i]t is known that a helmet forms a hemisphere
and is considered to be spherical in shape” (Ans. 6). “A helmet conforms to
a [person’s] head and is reasonably interpreted to contain a spherical shape”
(id.).
Appellants contend that “the helmet 1 of Fuhr cannot reasonably be
considered to be a sphere or spherical” (App. Br. 6). Rather, the helmet “is
formed from a cylindrical band and two semi-cylindrical bands.” (id. at 7).
The issue presented is:
Does the evidence of record support the Examiner’s finding that the
helmet of Fuhr can be reasonably interpreted to be spherical?
Findings of Fact
The following findings of fact (“FF”) are supported by a
preponderance of the evidence of record.
FF1. Fuhr discloses a method and apparatus for determining
kinematic movement of the cervical spine (Fuhr, Abstract). “The method
compares biomechanical pathways of a human patient's head free range of
motion in space with either standardized biomechanical pathway data or
previously determined biomechanical pathway data of the same person to
determine the nature and extent of abnormal kinematic movement” (id.).

2 Fox et al., US 5,926,780, issued Jul. 20, 1999.
App
App

“FIG
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that
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319,
on th
reaso
eal 2011-0
lication 11
FF2. Fi
. 2 is a pe
er means
odiment, th
e helmet 1
cting light
rical ball c
ctive tape.
FF3. “T
eans of an
it can fit co
The wor
meaning
321 (Fed.
e basis of
nable con
06368
/548,848
gure 2 of F
rspective v
and pointe
e marker
and inclu
. Preferab
overed by
” (Id. at c
he helmet
adjustabl
mfortably
ds of the c
is inconsis
Cir. 1989)
the claim
struction i
uhr is rep
iew of a h
r means” (
means com
de on their
ly, the ma
a suitable
ol. 8, ll. 26
1 can be a
e strap 2 (F
on the he
Princ
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. We deter
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5
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-32.)
dapted to
IG. 2); an
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iples of La
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but upon g
he specific
elow.
n by the p
6, ll. 36-37
s 3 of vari
rker 4, wh
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various he
d is prefer
col. 8, ll.
w
heir plain
ation. See
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atient to pr
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able lengt
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12-15).
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s their br
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Appeal 2011-006368
Application 11/548,848

6
interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech.
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re Prater, 415 F.2d 1393,
1395-96 (CCPA 1969).
Analysis
Claim 18 is directed to a marker for a navigation system comprising
an object that “is a sphere or is spherical”. Since the Specification does not
define the term “spherical”, we interpret the term according to its ordinary
meaning as it would be interpreted by the ordinary artisan. Here, the term
“spherical” is reasonably interpreted as “having the form of a sphere or of
one of its segments” or “relating to or dealing with a sphere or its
properties.”3
We find that the balance of evidence on this record supports the
Examiner’s position. Although it is true that Fuhr’s helmet is made up of
bands that can be described as being “cylindrical” or “semi-cylindrical” in
shape, we find that Fuhr’s helmet as a whole is reasonably interpreted as
having properties resembling a sphere. While not a true sphere, the
arrangement of the two bands together produces a form that is generally
spherical. We thus adopt the Examiner’s position that the helmet of Fuhr
may be “reasonably interpreted to contain a spherical shape” (Ans. 6).
Conclusion of Law
The preponderance of evidence on this record supports the
Examiner’s finding that Fuhr anticipates claim 18.

3 See http://www.merriam-webster.com/dictionary/spherical.
Appeal 2011-006368
Application 11/548,848

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II.
Issue
The Examiner rejected claims 1-2, 4-9 and 15-17 under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Fuhr and Fox. The
Examiner finds that Fuhr “does not teach a marker wherein the object is
arranged between the reflective surface and a light source” (Ans. 4). The
Examiner relies on Fox to cure this deficiency, finding that Fox “teaches a
marker, wherein the object is arranged between the reflective surface and a
light source, whereby the object creates a shadow on the reflective surface
when light is emitted [from] the light source onto the marker” (id.).
In reaching a conclusion of obviousness, the Examiner reasons that it
would have been obvious to combine the features of Fuhr and Fox because it
“would have been beneficial for the purpose of tracking a marker using
photosensors to determining the position as a function of time” (id. at 5).
Specifically, “[i]t is the combination of the sensor system of Fox et al. with
the analysis of Fuhr et al. that results in a three dimensional analysis that
includes the use of the light sensors of Fox et al. to track the movement of
the markers in two-dimensions” (id. at 7).
Appellants contend that Fox “is silent with regard to actually
determining a location of the ball in three-dimensional space” (App. Br.
11).
Appellants further contend that Fox is not properly combinable with
Fuhr. Here, Appellants argue that “it is not readily evident how one could
modify the system of Fuhr so as to replace the markers with the shadow
Appeal 2011-006368
Application 11/548,848

8
detection system of Fox (as proposed by the Examiner) so as to enable three-
dimensional spatial detection as required in Fuhr” (Reply Br. 6).
Appellants further contend that
the modification of Fuhr based on Fox as proposed by the
Examiner is not operational. Specifically, the modification
(i.e., using the sensor system of Fox in place of the markers of
Fuhr) results in a system that cannot track a location of an
object in three-dimensional space, which is a primary function
required by the device of Fuhr to determine abnormal
kinematic movement of the patient.
(App. Br. 7-8.)
The issue presented is:
Does the evidence of record support the Examiner’s findings that the
combination of Fox and Fuhr renders the system of claim 1 obvious?
Additional Findings of Fact
FF4. “[T]wo cameras are placed relative to the patient's head so that
all the markers 4 on the helmet 1 will be within the camera's recording view
for the entire range of the patient's expected motion” (Fuhr col. 9, ll. 6-9).
FF5. “[T]he video recorders record light reflected by the marker
means carried by the helmet, which corresponds to the patient's head
movement in space” (id. at col. 9, ll. 17-20).
FF6. “In order to minimize unwanted reflecting artifacts from the
video recording, it is preferred that all of the helmet elements other than the
markers 4 be of a non-reflective color, such as dark blue or black” (id. at col.
9, ll. 25-29).
FF7. Fox discloses a system for measuring the velocity vector of a
golf ball (Fox col. 1, ll. 6-10).
FF8. Fox discloses as follows:
Appeal 2011-006368
Application 11/548,848

9
In a preferred embodiment of the invention, the ball has an
initial position. A first light source is directed toward a first
light sensing array having a plurality of light sensors. After
being struck, at time T1 the ball has a first position interposed
between the first light sensing array and the first light source.
The ball casts a first shadow position on the first light sensing
array which includes a shadow cast upon at least one light
sensor. A first plane is defined by (1) the initial position, (2) the
first shadow position, and (3) the first light source. A second
light source is directed toward a second light sensing array
having a plurality of light sensors. The second light sensing
array is oriented substantially parallel to and disposed a
predetermined distance D from the first light sensing array. At
time T2 the ball has a second position interposed between the
second light sensing array and the second light source. The ball
cast a second shadow position on the second light sensing array,
which includes a shadow cast on at least one light sensor. A
second plane is defined by (1) the initial position, (2) the
second shadow position, and (3) the second light source. The
initial line of flight is then defined by the intersection of the
first plane with the second plane.
(Id. at col. 3, ll. 36-57.)
Principles of Law
When determining whether a claim is obvious, an examiner must
make “a searching comparison of the claimed invention — including all its
limitations — with the teachings of the prior art.” In re Ochiai, 71 F.3d
1565, 1572 (Fed. Cir. 1995). Furthermore, it remains necessary to determine
“whether there was an apparent reason to combine the known elements in
the fashion claimed by the patent at issue.” KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 418 (2007).
Appeal 2011-006368
Application 11/548,848

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Analysis
Claim 1 is directed to a marker for a navigation system comprising a
“light-absorbing, non-reflective or low-reflective object, spaced apart from
the reflective surface, wherein when the reflective surface receives light
from the first direction, the object casts a shadow on the reflective surface.”
The Examiner has not adequately explained how the combined teachings of
Fox and Fuhr teach or suggest this element of claim 1.
Fuhr discloses a system for tracking the free range of motion of a
patient’s head (FF1). Fuhr’s system utilizes a helmet, preferably made of
non-reflective material (FF6), that is designed to hold a series of reflective
markers. Cameras are positioned away from the patient wearing the helmet
(FF4) and record light reflected from the markers attached to the helmet
(FF5). The reflective markers are thus positioned between the helmet (low-
reflective object) and the camera.
The device of Fox uses a light sensor array and a light source to
determine the velocity of a golf ball (FF6). The device of Fox is configured
to detect shadows of an object between the light sensor array and light
source (FF7). Thus the device of Fox is configured to collect shadow data.
The Examiner relies on the teachings of Fox and Fuhr and concludes
that “[i]t is the combination of the sensor system of Fox et al. with the
analysis of Fuhr et al. that results in a three dimensional analysis that
includes the use of the light sensors of Fox et al. to track the movement of
the markers in two-dimensions” (Ans. 7). However, we agree with
Appellants that it is not evident how the combination of Fox and Fuhr
achieves a system where a low-reflective object casts a shadow on a
Appeal 2011-006368
Application 11/548,848

11
reflective surface as recited in claim 1. Accordingly, we do not sustain this
rejection.
Conclusion of Law
The evidence of record does not support the Examiner’s findings that
the combination of Fox and Fuhr renders obvious the system of claim 1 and
dependent claims thereto.

SUMMARY
We affirm the rejection of claim 18 under 35 U.S.C. § 102(b) as being
anticipated by Fuhr.
We reverse the rejection of claims 1-2, 4-9 and 15-17 under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Fuhr and Fox.
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).

AFFIRMED-IN-PART

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