Ex Parte Dalbo et al

Board of Patent Appeals and Interferences

May 16, 2012

11374540 (B.P.A.I. May. 16, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/374,540 03/13/2006 Ansley R. Dalbo 0115-4001 9401
24259 7590 05/16/2012
BRENDA POMERANCE
LAW OFFICE OF BRENDA POMERANCE
310 West 52 Street
Suite 27B
NEW YORK, NY 10019
EXAMINER
DANEGA, RENEE A
ART UNIT PAPER NUMBER
3736
MAIL DATE DELIVERY MODE
05/16/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ANSLEY R. DALBO and ROBERT T. QUEST
__________

Appeal 2011-000108
Application 11/374,540
Technology Center 3700
__________

Before FRANCISCO C. PRATS, MELANIE L. McCOLLUM, and
STEPHEN WALSH, Administrative Patent Judges.

McCOLLUM, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a floor
based imaging device. The Examiner has rejected the claims as obvious.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Claims 4-9, 14-26, and 28-32 are pending and on appeal (App. Br. 1).
Claims 4 and 18 are representative and read as follows:
4. A floor based imaging device for reflecting an image of a user’s
foot, comprising:
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a transparent platform, devoid of a line grating, located parallel to a
floor for being stepped upon by the user,
a weight display for displaying the weight of the user when the user
steps on the platform,
a reflecting surface located in a fixed position relative to the platform
to generate a reflection directed away from the floor, the reflection showing
the skin of the sole of the user’s foot,
a light source for illuminating the sole of the user’s foot, and
a magnifying surface located next to the reflecting surface for
magnifying the reflection,
whereby the user can conveniently examine the magnified reflection
to detect an injury to the skin of the sole of the foot, at around the time of
weighing himself or herself.
18. A floor based imaging device for capturing an image of a user’s
foot, comprising:
a transparent platform, devoid of a line grating, located parallel to a
floor for being stepped upon by the user,
a weight display for displaying the weight of the user when the user
steps on the platform,
a light source for illuminating the sole of the user’s foot,
an image capture surface located in a fixed position under the
platform to capture an image of the skin on the sole of the user’s foot when
the user steps on the platform, and
an image transmission circuit for sending the captured image to
another device for display or processing,
whereby the skin of the sole of the user’s foot can be conveniently
examined to detect an injury, at around the time of weighing the user.
Claims 4-8, 18-26, and 30-32 stand rejected under 35 U.S.C. § 103(a)
as obvious over Gould et al. (US 5,025,476, Jun. 18, 1991) in view of
Bonetta et al. (US 4,534,365, Aug. 13, 1985) and Lavery et al.
(US 6,398,740 B1, Jun. 4, 2002) (Ans. 3).
Claim 9 stands rejected under 35 U.S.C. § 103(a) as obvious over
Gould in view of Bonetta, Lavery, and Zieba et al. (US 6,261,641 B1,
Jul. 17, 2001) (Ans. 3).
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Claims 14 and 28 stand rejected under 35 U.S.C. § 103(a) as obvious
over Gould in view of Bonetta, Lavery, and Masuo (US 5,579,782, Dec. 3,
1996) (Ans. 3).
Claims 15-17 and 29 stand rejected under 35 U.S.C. § 103(a) as
obvious over Gould in view of Bonetta, Lavery, and Lundborg
(US 6,589,287 B2, Jul. 8, 2003) (Ans. 4).
The Examiner relies on Gould for teaching
a floor based imaging device comprising: a transparent platform
devoid of a line grating (16) to be stepped on by the user, a
reflecting surface (48) with angle adjustment means (40), a
protective surface (20) opening (21) to reveal a reflecting
surface; the reflective surface located in a fixed position relative
the platform to generate a reflection away from the floor
showing the skin of the sole of the user’s foot, a light
source (28) illuminating the sole of the foot, and a magnifying
surface (44) located next to the reflecting surface for
magnifying the reflection whereby the user can conveniently
examine the reflection (22) and an image transmission
circuit (24)for sending the captured image to another device.
(Id. at 4-5.)
The Examiner relies on Bonetta for teaching “an imaging device using
a light emitting device, reflection and camera to display images of the foot
and provide indication of the foot’s condition to the user on the platform”
(id. at 5). The Examiner concludes that it “would have been obvious in view
of Bonetta to use a device capable of capturing images of the skin in Gould
in order to detect discoloration and irritation of the foot” (id.).
The Examiner relies on Lavery for teaching “an apparatus for
monitoring vital health information related to neuropathy and diabetes
including plantar aspects of the foot and a weight display” (id.). The
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Examiner concludes that it “would have been obvious in view of Lavery to
provide a weight display in the device of Gould in order to provide diabetics
with multiple health indicators in one device” (id.).
ISSUE
With regard to each ground of rejection, the only issue on appeal is:
Does the evidence support the Examiner’s conclusion that the devices of
claims 4 and 18 would have been obvious?
ANALYSIS
Gould and Bonetta disclose imaging devices for reflecting and/or
capturing an image of a user’s foot, which have a transparent platform,
mirrors, and a light source (Gould, col. 3, l. 66, to col. 4, l. 60, & Bonetta,
Abstract). In particular, Bonetta discloses that its apparatus is “for
evaluating a person’s foot condition in terms of blood circulation [based on
temperature] and/or anatomical shape” (Bonetta, col. 1, ll. 66-68, & col. 2,
ll. 47-55). Lavery discloses an apparatus “for monitoring items of vital
health information including temperature of the plantar aspects of the foot
. . . [and] body weight” (Lavery, Abstract). Based on the disclosures in
Gould, Bonetta, and Lavery, we agree with the Examiner that it would have
been obvious to include a weight display in a foot imaging device (Ans. 5).
Appellants argue, however, that “each of Gould, Bonetta and Lavery
fails to show, and in fact teaches away from, a transparent platform devoid
of a line grating” (App. Br. 7). We are not persuaded.
We note initially that Appellants have not addressed the Examiner’s
position that Gould “states that the transparent platform can be devoid of
line gratings by [instead] ‘using a series of fine parallel wires suspending in
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a frame below the support plate...’” (Ans. 7 (citing Gould, col. 4, ll. 41-45)).
Moreover, Bonetta discloses a transparent foot support 14, “preferably of
‘Plexiglass’ (trademark)” (Bonetta, col. 2, ll. 45-46, & col. 4, ll. 60-61).
Appellants point out that Bonetta uses a “thermographic film device 16 over
the support plate and paper 40 on top of that” (App. Br. 6). However, this
does not change the fact that Bonetta teaches a transparent platform that is
devoid of a line grating.
Appellants also argue that none of Gould, Bonetta, and Lavery are
“relevant to enabling a user to examine[] the magnified reflection of the skin
of the sole of the user’s foot . . . because each of the cited references uses a
transformed image of the foot” (App. Br. 8). We are not persuaded.
As noted by Appellants, Gould discloses “producing a moiré fringe
pattern representative of the topography of the underside of a foot to be
analyzed” (Gould, col. 2, ll. 43-45; App. Br. 4). However, Appellants have
not provided, nor do we see, any reason why Bonetta’s apparatus, with the
thermographic device 16 and the paper 40 removed, would not provide an
image that could be examined to detect an injury to the skin of the sole of
the foot. Thus, we conclude that Bonetta discloses a device that can be used
to detect an injury to the skin of the sole of the foot. “[T]he patentability of
apparatus or composition claims depends on the claimed structure, not on
the use or purpose of that structure.” Catalina Mktg. Int’l, Inc. v.
Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002).
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CONCLUSION
The evidence supports the Examiner’s conclusion that the devices of
claims 4 and 18 would have been obvious. We therefore affirm the
obviousness rejections.
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

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