Ex Parte Green

Patent Trial and Appeal Board

Oct 4, 2013

11478389 (P.T.A.B. Oct. 4, 2013)

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.
11/478,389 06/29/2006 Francisco Roberto Green TRB 0005 PA/41128.6 7078
112760 7590 10/04/2013
Dinsmore & Shohl LLP
Fifth Third Center
One South Main Street
Dayton, OH 45402-2023
EXAMINER
KIM, KYUNG J
ART UNIT PAPER NUMBER
3665
MAIL DATE DELIVERY MODE
10/04/2013 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 FRANCISCO ROBERTO GREEN
________________

Appeal 2011-010312
Application 11/478,389
Technology Center 3600
________________

Before MICHAEL L. HOELTER, RICHARD E. RICE and
MITCHELL G. WEATHERLY, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-010312
Application 11/478,389

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STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 1-33. Br. 2. We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM.

THE CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to excavators and similar types
of machines and, more particularly, to a system and method for determining
the orientation of the machine.” Spec. 1.1 Independent claim 1 is illustrative
of the claims on appeal and is reproduced below:
1. A system for determining the orientation, r, of an excavating
machine sitting on a sloped portion of a construction site with respect to the
direction across the site in which there is no slope, which is perpendicular to
the direction of the fall line of the sloped portion, comprising:
a first inclinometer for determining the pitch angle, Pitch, of the
excavating machine and providing a pitch angle output,
a second inclinometer for determining the roll angle, Roll, of the
excavating machine and for providing a roll angle output, and
a processor, responsive to said pitch angle output and said roll angle
output, said processor determining the orientation, r, of the pitch axis of the
excavating machine according to the following:

r = sin-1 [Pitch/(Pitch2 + Roll2)1/2].

REFERENCES RELIED ON BY THE EXAMINER
Dröscher US 4,261,617 Apr. 14, 1981
Koch US 2004/0010359 A1 Jan 15, 2004

1 Appellant’s Specification does not provide line or paragraph numbering.
Accordingly, reference will only be made to the page number.
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Application 11/478,389

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THE REJECTION ON APPEAL
1. Claims 1-5, 7-13, 15-17, 19-23, 25-31 and 33 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Dröscher. Ans. 4.
2. Claims 6, 14, 18, 24 and 32 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Dröscher and Koch. Ans. 8.

ANALYSIS
The rejection of claims 1-5, 7-13, 15-17, 19-23, 25-31 and 33
as being unpatentable over Dröscher
Under separate headings, Appellant argues claims (a) 1 and 9, (b) 2
and 11, (c) 3 and 10, (d) 4, 5, 7, 8, 12, 13, 15 and 16, (e) 17, (f) 19 and 27,
(g) 20 and 29, (h) 21 and 28 and (i) 22, 23, 25, 26, 30, 31 and 33. Br. 14-34.
We address each group separately.
Claims 1 and 9
Claims 1 and 9 are argued together. Br. 14-17. We select claim 1 for
review with claim 9 standing or falling with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2011).
With respect to claim 1, the Examiner finds that Dröscher discloses all
the limitations with the exception that Dröscher fails to disclose the claimed
equation r = sin-1 [Pitch/(Pitch2 + Roll2)1/2]. Ans. 4. Here, the Examiner
finds that “it is well known in the art [to] apply derivations of the
Pythagorean Theorem” and that this recited equation is an “obvious
derivations [sic] of the Pythagorean Theorem to calculate the angle of [a]
given right triangle when the lengths of the sides are known.” Ans. 5. The
Examiner concludes that the equation recited “can be obtained by obvious
algebraic manipulations well known in the art.” Ans. 5. Hence, according
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to the Examiner, it would have been obvious “to add the equations [sic] to
the control system of Droscher et al. in order to calculate the orientation of
the work vehicle (Col. 1, lines 48-64, col. 3, lines 13- 51, col. 4, lines 41-68,
col. 7, lines 15-18, col. 10, lines 4-11 and Figs. 1, 2, and 7).” Ans. 5.
Appellant does not dispute that the recited equation is a derivative of
the Pythagorean Theorem as found by the Examiner. Instead, Appellant
contends that Dröscher is directed to “an underground tunneling machine”
and not to “an above ground excavating machine” and that “[t]he distinction
between above-ground (claims 1 and 9) and below-ground (the Droscher
disclosure) is important.” Br. 14. In reply, the Examiner states that “there is
no mention of whether the construction site is above ground or underground
according to the language in claims 1 and 9” and further the Appellant has
not identified any “claim language that would [distinguish] the argued
feature of [the] machine being above-ground versus below-ground.”
Ans. 10. Appellant does not contend otherwise and accordingly, we agree
with the Examiner’s findings such that Appellant’s contention is not
persuasive.
Appellant also contends that claim 1 determines a “heading” and that
“there is no way for the Droscher tunneling machine to determine its
heading based on inclination information.” Br. 15, 16. In other words,
Appellant contends that the “claimed system operates [] very differently
from that of Droscher” in that Appellant’s system provides “north, south,
east, west, etc. alignment,” i.e., a compass heading. Br. 15. Appellant’s
contention is not persuasive. First, as the Examiner notes, “the word
‘heading’ is not in the claim,” and the broader word “orientation,”
designated as “r,” is employed instead. See Ans. 11. In fact, claim 1
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specifically recites “determining the orientation, r, of the pitch axis of the
excavating machine.” Second, Appellant fails to indicate where the term
“heading” is found in Appellant’s Specification. In fact, in contrast to
Appellant’s argument that the claimed invention determines a compass
heading, Appellant’s Specification instead states that Appellant’s Figure 2
“simplistically shows a sloped plane 60 in space” and that the direction of
slope “is, in a sense, arbitrary to the work site” such that “it can only be used
for relative reference.” Spec. 6, 8. Hence, Appellant’s contention that claim
1 is directed to determining a “heading” based on a compass direction
instead of determining an orientation (which need not be based on a compass
direction) is not persuasive. Br. 15, 16.
Additionally, Appellant does not show how the Examiner erred in
finding that “[o]rientation ‘r’ is an angle that is easily calculated by the use
of the Pythagorean Theorem.” Ans. 11. Appellant acknowledges that “[t]he
inclination of [Dröscher’s] machine can be determined by an inclinometer”
(Br. 16 (referencing Dröscher 6:15-18)), and Appellant does not dispute
Dröscher’s teaching of “ascertaining [] the position of the tunnel-driving
machine by trigonometry.” Dröscher 3:26-50, see also Ans. 11. However,
Appellant does contend that a benefit of the claim 1 device is “so that
compasses and other devices can be eliminated.” Br. 15. Because this
benefit is not claimed, this contention is not persuasive.
Appellant further contends that modifying Dröscher to determine a
“heading” on Dröscher’s subterranean tunneling machine “would not be
functional” and further that any such modification would be “based on
hindsight.” Br. 15. Appellant’s reliance on a “heading” in this contention is
not persuasive for reasons discussed supra. Further, Appellant does not
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elaborate or explain why knowing an underground orientation is not
functional, nor does Appellant identify that portion of Appellant’s claim that
was only gleaned from Appellant’s disclosure. These contentions are not
persuasive.
Appellant also contends that claim 1 requires a processor to compute
the recited equation and that “[c]learly there is no disclosure of such a
processor in the Droscher reference.” Br. 16. We disagree. Dröscher
discloses the use of a computer to indicate position using trigonometry, and
Appellant does not persuade us that Dröscher’s computer would fail to
satisfy this limitation. Dröscher 3:42-56, Ans. 11, see also Dröscher 2:14-
15, 2:28-29 and 2:46-47.
Appellant further unpersuasively contends that the recited equation
provides a “heading” and that based on this, Appellant contends that even if
Dröscher’s machine were to ascertain this value, it “would yield a
meaningless number, a number in no way related to the heading of the
Droscher machine.” Br. 17. As indicated supra, the claimed system
determines an orientation, not a heading as argued. Further, Appellant has
not provided any evidence in support of the contention, and it is not
otherwise self-evident from the record, that ascertaining the orientation of an
underground machine would be meaningless. Appellant’s contention is not
persuasive.
Appellant further contends that the recited equation “is not so simple
as to be found in the prior art.” Br. 17. The question is not whether the
equation is “simple,” but instead, as stated by the Examiner, whether the
equation is well known such that one skilled in the art “would have used the
exact if not some variation of the Appellant’s equation to calculate the angle
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represented by ‘r.’” Ans. 12. Appellant does not present any reason as to
why the claimed variation of the well-known Pythagorean Theorem would
not be so used.
Accordingly, and based on the record presented, we sustain the
Examiner’s rejection of claims 1 and 9.
Claims 2, 3, 10 and 11
Claims 2, 3, 10, and 11 differ from claims 1 and 9 in that claims 2 and
11 recite an arc-cosine equation and claims 3 and 10 recite an arc-tangent
equation rather than the arc-sin equation. Appellant’s arguments are
otherwise the same as previously presented. Br. 17-21. Appellant’s
arguments are unpersuasive for similar reasons to those expressed above in
connection with claims 1 and 9. Accordingly, we sustain the Examiner’s
rejection of claims 2, 3, 10 and 11. See Ans. 4-5 and 12-17.
Claims 4, 5, 7, 8, 12, 13, 15 and 16
Appellant’s arguments with respect to claims 4, 5, 7, 8, 12, 13, 15 and
16 are substantively the same as those previously presented. Br. 21-23. We
do not find them persuasive for the reasons set forth above and sustain the
Examiner’s rejection of claims 4, 5, 7, 8, 12, 13, 15 and 16. Ans. 4-5, see
also Ans. 17-19.
Claim 17
Appellant argues for reversing the rejection of claim 17 because
Dröscher discloses an “underground tunneling machine” and claim 17 “is
directed to [a] system that determines the heading of an excavating machine
without the need for a compass.” Br. 24. These arguments are not
persuasive for the reasons expressed above. Br. 24. We sustain the
Examiner’s rejection of claim 17. See Ans. 4-5 and 19-20.
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Claims 19 and 27
“Claim 19 relates to a system that determines the orientation of the
roll axis, as opposed to the pitch axis called for in the above claims” and
“claim 27 relates to the method by which this system operates.” Br. 24-25.
Despite this difference in claim language, Appellant presents arguments with
respect to these two claims that are similar to the arguments presented with
respect to the above claims. Br. 25-28. These arguments have previously
been addressed and are not deemed persuasive. We sustain the Examiner’s
rejection of claims 19 and 27. See Ans. 4-5 and 20-22.
Claims 20, 21, 28 and 29
Claims 20, 21, 28 and 29 differ from claims 19 and 27 in that claims
20 and 29 recite an arc-cosine equation and claims 21 and 28 recite an arc-
tangent equation rather than the arc-sin equation. Appellant’s arguments are
otherwise the same as previously presented. Br. 28-32. Appellant’s
arguments are unpersuasive for similar reasons to those expressed above in
connection with claims 1 and 9. Accordingly, we sustain the Examiner’s
rejection of claims 20, 21, 28 and 29. See Ans. 4-5 and 22-27.
Claims 22, 23, 25, 26, 30, 31 and 33
Appellant’s arguments with respect to claims 22, 23, 25, 26, 30, 31
and 33 are substantively the same as those previously presented. Br. 32-34.
We do not find them persuasive for the reasons set forth above and sustain
the Examiner’s rejection of claims 22, 23, 25, 26, 30, 31 and 33. Ans. 4-5,
see also Ans. 27-29.

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The rejection of claims 6, 14, 18, 24 and 32
as being unpatentable over Dröscher and Koch
In rejecting claims 6, 14, 18, 24, and 32, the Examiner relies on Koch
as teaching that the first and second inclinometers can “comprise a single,
dual axis inclinometer (Paragraph [0045]).” Ans. 9. Appellant does not
dispute this teaching of Koch, but instead contends that each of these claims
“stand or fall with the claim[(s)] from which they depend.” Br. 34. The
rejection of each parent claim is sustained as indicated above. Accordingly,
we sustain the rejection of claims 6, 14, 18, 24 and 32.

DECISION
The Examiner’s rejections of claims 1-33 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

rvb