Ex Parte Chase et al

Patent Trial and Appeal Board

Apr 8, 2013

11741344 (P.T.A.B. Apr. 8, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte KEVIN M. CHASE, RANDELL L. JEFFREY,
MATTHEW J. NIBBELINK, KITMAN CHAN,
JORDAN COHEN, ANDREW GILGALLON,
DAN MEDORE, and SURISACK PHOUAPANYA
________________

Appeal 2011-000776
Application 11/741,344
Technology Center 3700
________________

Before BIBHU R. MOHANTY, MEREDITH C. PETRAVICK, and
JAMES A. TARTAL, Administrative Patent Judges.

TARTAL, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-000776
Application 11/741,344

2

STATEMENT OF THE CASE1
Kevin M. Chase, et al. (Appellants) seek our review under 35 U.S.C
§ 134 of the Examiner’s final decision rejecting claims 1-22. We have
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
Appellants’ claimed invention relates to a sensing system that
employs digital imaging technology to determine a level and/or quality of
ice cubes in an ice cube storage bin. Spec. para. [0001].
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A refrigerator comprising:
a cabinet including top, bottom, rear and
opposing side walls that collectively define a
refrigerator body having a freezer compartment;
a door for selectively providing access to the
freezer compartment;
an ice maker mounted in the freezer
compartment;
an ice cube storage bin for receiving ice cubes
from the ice maker;
a digital image capture device focused upon the
ice cube storage bin; and
a digital image analyzing system operatively
connected to the digital image capture device, said
digital image analyzing system evaluating digital
images of the ice cube storage bin
captured by the digital image capture device to
determine a property of ice cubes in the ice cube
storage bin.

1 Our decision will make reference to Appellants’ Appeal Brief (“App. Br.,”
filed Feb. 22, 2010) and Reply Brief (“Reply Br.,” filed Jul. 22, 2010), and
the Examiner’s Answer (“Ans.,” mailed May 24, 2010).
Appeal 2011-000776
Application 11/741,344

3
The Examiner relies upon the following evidence:
Roseen US 6,919,795 B2 Jul. 19, 2005
Huffman US 2002/0002831 A1 Jan. 10, 2002
Jairam US 2006/0209072 A1 Sep. 21, 2006
Liu US 2006/0174641 A1 Aug. 10, 2006

Claims 1-4, 6, 9, 11-16, 18-20, and 22 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Roseen and Huffman.
Claims 5 and 21 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Roseen, Huffman, and Jairam.
Claims 7, 8, 10, and 17 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Roseen, Huffman, and Liu.
FINDINGS OF FACT
We find that the findings of fact which appear in the Analysis below
are supported by at least a preponderance of the evidence. Ethicon, Inc. v.
Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general
evidentiary standard for proceedings before the Office).
ANALYSIS
Obviousness based on Roseen and Huffman
Claims 1 and 7-9
Appellants argue claims 1 and 7-9 as a group (App. Br. 9-11, Reply
Br. 2-4). We select claim 1 as the representative claim for this group, and
the remaining claims 7-9 each stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(vii).
We find not persuasive Appellants’ argument that the Examiner has
“failed to provide” an apparent reason to combine Roseen and Huffman. See
Appeal 2011-000776
Application 11/741,344

4
App. Br. 9. Roseen (Col. 3, ll. 18-22 and Col. 5, ll. 24-39) discloses a digital
image capture device focused upon a food storage area, including an area in
a freezer, as well as a digital image analyzing system to determine a property
of the food stored in the food storage area. See Ans. 4. Huffman (paras.
[0003]-[0005]) discloses an ice making device and notes that when ice is
retained for an extended period of time, it tends to clump causing problems
with dispensing the ice and degrading the quality of the ice. The Examiner
articulated reasoning with some rational underpinning to combine known
elements from Roseen and Huffman by stating that:
Huffman teaches that ice quality is important, and that an
indication of poor ice quality is the amount of time ice
has been in a hopper, … therefore it would have been
obvious to one having ordinary skill in the art at the time
the invention was made to modify the refrigerator of
Roseen by focusing a camera in the freezer compartment
on the ice bin in order to analyze a digital image of the
ice in the bin and determine the quantity (level) and
freshness (best-before-date) of the ice in the bin, and
prevent ice from remaining in the hopper for extended
periods of time and forming clumps.

Ans. 5.
Appellants’ argument that neither Roseen nor Huffman addresses
determining a quality of ice cubes is also not persuasive. Appellants’
argument is not commensurate with the scope of claim 1, which does not
require determination of “quality,” but merely a “property.” Additionally,
Appellants have not addressed the combination of prior art references as a
whole but simply improperly argue the merits of each reference individually.
See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness
is not . . . that the claimed invention must be expressly suggested in any one
Appeal 2011-000776
Application 11/741,344

5
or all of the references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill in the art.”).
Appellants cannot overcome the Examiner’s obviousness determination by
merely asserting that Roseen has absolutely nothing to do with ice making.
First, we disagree with Appellants’ assertion as Roseen (Col. 1, ll. 7-11 and
col. 3, ll. 18-22) discloses a method for supervising the storage time of
goods stored in a freezer, which would include ice stored in an ice cube
storage bin in a freezer. Second, the Examiner’s official notice that the use
of icemakers/dispensers in the freezing compartment of a household
refrigerator is well known in the art is not in dispute, and Huffman expressly
discloses an ice-making device. Accordingly, we conclude Appellants have
not overcome the Examiner’s determination that claims 1 and 7-9 are
unpatentable over Roseen and Huffman.
Claims 2 and 12
Claims 2 and 12 further require that the property of ice cubes
determined by the system is “a level of the ice cubes in the ice cube storage
bin.” We have considered Appellants’ arguments, including the unsupported
assertion that it is unnecessary to prevent ice from spoiling like food, and
agree with the Examiner that it would have been obvious to modify the
system disclosed by Roseen in light of Huffman to determine the level of ice
cubes, as claimed, where Roseen expressly discloses a system to determine
the level of a good in a storage container. See Ans. 12-13; see also Roseen
Col. 5, ll. 28-34. Accordingly, we conclude Appellants have not overcome
the Examiner’s determination that claims 2 and 12 are unpatentable over
Roseen and Huffman.
Appeal 2011-000776
Application 11/741,344

6
Claims 3, 4, 13, and 14
Claims 3, 4, 13, and 14 further require the property of ice cubes
determined by the system “also constitutes a quality of the ice cubes in the
ice cube storage bin.” We have considered Appellants’ arguments,
including the unsupported assertion that ice cubes don’t expire or spoil, and
agree with the Examiner that it would have been obvious to modify the
system disclosed by Roseen in light of Huffman to determine a quality of ice
cubes. As noted by the Examiner, Huffman discloses that the amount of
time ice spends in a hopper is important to the quality of ice contained
therein. See Ans. para. 10-1A. As Roseen discloses a method for
supervising the storage time of goods stored in a freezer, and Huffman
discloses storage time is at least one factor determinative of ice cube quality,
the asserted combination discloses a system for determining a quality of the
ice cubes as claimed. Indeed, the Specification (paras. [0020-21]) similarly
discloses with respect to determining a quality of the ice that “when a
determination is made that the ice cubes are old,” the ice cubes “should be
discarded.” Accordingly, we conclude Appellants have not overcome the
Examiner’s determination that claims 3, 4, 13 and 14 are unpatentable over
Roseen and Huffman.
Claims 6 and 15
Claims 6 and 15 further require a reference image with the ice cube
storage bin positioned between the digital image capture device and the
reference image. We agree with the Examiner that “since there is no
language in claim 6 [or 15] which would clarify what the image must
reference or be referenced by it is not unreasonable to define the mirror
Appeal 2011-000776
Application 11/741,344

7
image [disclosed by Roseen] as a reference image.” Ans. para. 10-7A.
Accordingly, we conclude that Appellants have not overcome the
Examiner’s rejection of claims 6 and 15 as unpatentable over Roseen and
Huffman.
Claims 11 and 16
Appellants argue that claims 11 and 16 are patentably distinct for the
same reasons Appellants argue with respect to claim 1. We are not
persuaded by Appellants’ argument for the same reasons discussed above
with respect to claim 1. Appellants also contend that claims 11 and 16
utilize means-plus-function language to require “means for determining a
property of ice cubes,” and assert that the computer disclosed in the
Specification performs the claimed function. Reply Br. 7. We find Roseen
(Col. 2, ll. 28-31) discloses the same or equivalent structure, a computer, that
performs the function recited in the claim, as discussed above with regard to
claims 1 and 3. Accordingly, we conclude that Appellants have not
overcome the Examiner’s rejection of claims 11 and 16 as unpatentable over
Roseen and Huffman.
Claims 18 and 22
Claims 18 and 22 require “analyzing” a digital image of ice cubes.
Appellants do not suggest that analyzing ice cubes, as claimed, is
substantively different from determining a property of ice cubes as set forth
in claim 1. Moreover, Appellants’ arguments with respect to claims 18 and
22 are essentially identical to the arguments Appellants raise with respect to
claim 1. Accordingly, we are not persuaded by Appellants’ arguments for
the same reasons discussed above with respect to claim 1.
Appeal 2011-000776
Application 11/741,344

8
Claim 19
Claim 19 requires comparing the ice cubes in the ice cube storage bin
against a reference image to determine a level of ice cubes in the ice cube
storage bin. Appellants contend that neither Roseen nor Huffman teaches or
suggests analyzing an ice cube image or determining the level of ice cubes in
an ice cube storage bin. We do not find Appellants’ argument persuasive
and adopt as our own the findings and reasoning of the Examiner as found in
paragraph 10-15A of the Answer.
Claim 20
Claim 20 requires analyzing the digital image to determine a level of
quality of ice cubes in the ice cube storage bin. Appellants’ arguments with
respect to claim 20 are essentially identical to the arguments Appellants
assert with respect to claim 3. Accordingly, we are not persuaded by
Appellants arguments for the same reasons discussed above with respect to
claim 3.
Obviousness based on Roseen, Huffman, and Jairam
Claims 5 and 21
We are not persuaded by Appellants’ contention that Jairam’s “system
and method for processing acquired images to develop useful classifications
of subjects” is outside of the field of the inventor’s endeavor. See Jairam
Abstr. The test for non-analogous art is first whether the art is within the
field of the inventor’s endeavor and, if not, whether it is reasonably pertinent
to the problem with which the inventor was involved. In re Wood, 599 F.2d
1032, 1036 (CCPA 1979). Appellants’ mere statement that “Jairam is not in
the same field of endeavor,” provides no rationale in support of such a
Appeal 2011-000776
Application 11/741,344

9
conclusion. To the contrary, we agree and adopt as our own the findings and
reasoning of the Examiner, as found in paragraph 10-17A of the Answer, to
support our finding that because Jairam is directed to an image analyzing
system it is within the field of the inventor’s (Appellants’) endeavor.
Accordingly, we conclude that Appellants have not overcome the
Examiner’s rejection of claims 5 and 21 as unpatentable over Roseen,
Huffman, and Jairam.
Obviousness based on Roseen, Huffman, and Liu
Claims 7 and 8
Appellants argue that claims 7 and 8 are patentable for the same
reasons Appellants raise with respect to claim 1. We are not persuaded by
Appellants’ arguments for the same reasons discussed above with respect to
claim 1.
Claims 10 and 17
Claims 10 and 17 require a light source which bathes the ice cube
storage bin in non-visible light to reveal the property of the ice cubes. We
find not persuasive Appellants’ argument that the image relied on by Roseen
must be a color image to function properly rendering Roseen inoperable if a
non-visible light source were used. See Reply Br. 12. Roseen provides a
description of a preferred embodiment which utilizes a camera adapted to
take digital color pictures, but Roseen does not claim a system that relies on
color pictures. To the contrary, for example, Roseen (Col. 4, l. 66 – Col. 5,
l. 23) discloses that the system may identify items based on bar codes, which
generally would not require color images. Appellants offer no evidence to
overcome the Examiner’s determination that the system disclosed by Roseen
Appeal 2011-000776
Application 11/741,344

10
functions with the use of non-visible light because, as disclosed by Liu, an
image capturing device would continue to work even when utilizing non-
visible light. See Ans. para. 10-21A.
CONCLUSIONS OF LAW
We conclude that Appellants have not overcome the Examiner’s
rejection of claims 1-4, 6, 9, 11-16, 18-20, and 22 under 35 U.S.C. § 103(a)
as unpatentable over Roseen and Huffman.
We further conclude that Appellants have not overcome the
Examiner’s rejection of claims 5 and 21 under 35 U.S.C. § 103(a) as
unpatentable over Roseen, Huffman, and Jairam.
We further conclude that Appellants have not overcome the
Examiner’s rejection of claims 7, 8, 10, and 17 under 35 U.S.C. § 103(a) as
unpatentable over Roseen, Huffman, and Liu.
DECISION
We AFFIRM the decision of the Examiner to reject claims 1-22.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).
AFFIRMED

Klh