Ex Parte Hanson et al

Patent Trial and Appeal Board

Oct 17, 2016

11804310 (P.T.A.B. Oct. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111804,310 05/16/2007
76385 7590
Hollingsworth Davis, LLC
8000 West 78th Street
Suite 450
Minneapolis, MN 55439
10/19/2016
FIRST NAMED INVENTOR
David Hanson
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
UITA.043.Ul 8913
EXAMINER
PRENDERGAST, ROBERTA D
ART UNIT PAPER NUMBER
2611
NOTIFICATION DATE DELIVERY MODE
10/19/2016 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):
tdotter@hdpatlaw.com
roswood@hdpatlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DA YID HANSON, KEITH JEROME SJOSTROM,
ROSS PETER JONES, and PETER JOHN KELLY
Appeal2015-004559
Application 11/804,3101
Technology Center 2600
Before KRISTEN L. DROESCH, CARLL. SILVERMAN, and
SCOTT E. BAIN, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-35, 37, 40, and 42--45, which constitute all the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 The real party in interest is identified as Underground Imaging
Technologies, Inc. App. Br. 1.
Appeal2015-004559
Application 11/804,310
STATEMENT OF THE CASE
Appellants' invention relates to visualizing data acquired by a
multiplicity of disparate sensors configured to acquire subsurface imaging
and geophysical data. Abstract; Spec. 11. 11-14. Claims 1 and 45 are
exemplary of the subject matter on appeal (disputed limitations emphasized):
1. A method for use with a user interface comprising a display, the
method comprising:
providing a plurality of sensor data sets acquired during
movement of a plurality of disparate types of sensors configured for
sensing of a subsurface along a path via a movable platform, each of
the sensor data sets comprising sensor data samples each associated
with geographic position data acquired by a positioning sensor
situated on the moveable platform;
providing positional offset data defining a positional offset of
each sensor relative to the positioning sensor;
correcting for curvilinear dynamic motion of the movable
platform using the positional offset data to produce corrected sensor
data sets;
associating the geographic position data with the sensor data
samples of each of the corrected sensor data sets relative to a
reference frame; and
displaying a graphical representation of each of the corrected
sensor data sets overlaid within a volume depicted on the display.
App. Br. 13 (Claims Appendix).
45. An apparatus, comprising:
an input for receiving signals representative of a plurality of sensor
data sets acquired during movement of a plurality of disparate types of
sensors configured for sensing of a subsurface along a path via a
movable platform, each of the sensor data sets comprising sensor data
samples each associated with geographic position data;
a display;
a processor coupled to the input and the display, the processor
configured to associate the geographic position data with the sensor
data samples of each of the sensor data sets relative to a reference
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frame and to account for curvilinear dynamic motion of the movable
platform, the processor cooperating with the display to present a
graphical representation of each of the sensor data sets overlaid within
a volume depicted on the display;
a second movable platform mechanically coupled to the
movable platform; and a second sensor arrangement supported by the
second movable platform and configured to provide second sensor
data samples as the second movable platform moves along the path;
wherein the processor is configured to associate the geographic
position data with the sensor data samples and the second sensor data
samples relative to the reference frame using a geographic position
sensor affixed only to one of the respective platforms and a fixed
location of a coupler that mechanically couples the respective
platforms.
App. Br. 20-21 (Claims Appendix).
REJECTION
Claims 1-12, 14-32, 34-36, 38, and 41--43 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Macintosh et al. (US
2006/0271298 Al, published Nov. 30, 2006) ("Macintosh") in view of
Frohlich et al., October 1999, "Exploring Geo-Scientific Data in Virtual
Environments," Proceedings of the Conference on Visualization '99:
Celebrating Ten Years, IEEE Visualization. IEEE Computer Society Press,
Los Alamitos, CA, pages 169-173, Miceli et al. (US 2001/0035836 Al,
published Nov. 1, 2001) ("Miceli"), and Young et al. (US 2004/0225444 Al,
published Nov. 11, 2004) ("Young"). Final Act. 2--48.
Claims 13 and 33 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Macintosh, Frohlich, Miceli, Young, and Schultz et al.
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(US 2004/0105090 Al, published June 3, 2004) ("Schultz"). Final Act. 48-
50.
Claims 37 and 40 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Macintosh, Frohlich, Miceli, Young, and Hrovat et al.
(US 2003/0149512 Al; published Aug. 7, 2003) ("Hrovat"). Final Act. 50-
53.
Claims 44 and 45 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Macintosh, Frohlich, Miceli, Young, and Lange et al. (US
7,054,731 Bl; issued May 30, 2006) ("Lange"). Final Act. 53-59.
ANALYSIS
Appellants argue none of the cited references teach the claim 1
limitation "providing positional offset data defining a positional offset of
each sensor relative to the positioning sensor." App. Br. 6-10. Appellants
argue Macintosh teaches an "angular offset" but does not teach this
limitation because Macintosh teaches that its "offset" is defined between its
GPS receiver and the ground (surface of the region when the survey tool
performs measurements), not between its GPS receiver and its Ground
Penetrating Radar (GPR) Transmitter(s) and Receiver(s) 102. Id. at 7 (citing
,-i,-i 17, 52).
Appellants argue the Examiner errs in finding Young, paragraph 69,
teaches defining a positional offset of each sensor relative to the positioning
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sensor. App. Br. 9 (citing Final Act. 10; Young ii 69). Paragraph 69 is set
forth below:
Accurate position sensing is important. When a given utility sensor is
used to survey a series of parallel lines, for example, the position at
each data point must be well known in order for processing software to
combine the data points into accurate 3-D pictures. Even more
important is the deleterious effect that erroneous position data may have
on automatic target recognition software results, for example.
Similarly, each of the suites of utility sensors may be used separately in
surveys, if needed or desired. In order for the sensor data fusion to
operate properly, the position of each sensor must be known with
sufficient accuracy so that the data collected may be properly overlaid.
Young ii 69.
Appellants argue Young does not mention "positional offset" and
does not discuss "positional offset of each sensor." App. Br. 9. Appellants
further argue the Examiner errs by finding Young implicitly discloses the
disputed limitation. Reply Br. 9-10 (citing Ans. 62-63). According to
Appellants, "Young's statement that 'the position of each utility sensor in
each of the suites of utility sensors be known with sufficient accuracy' is a
generalized design objective, not a particularized teaching that could guide
one of ordinary skill in the art to achieve such 'sufficient accuracy' in the
manner recited in Appellant's claims." Id. at 10.
The Examiner finds Young teaches the disputed limitation,
"especially when it states 'Accurate position sensing is important."' Final
Act. 10 (citing ii 69). Additionally, the Examiner finds:
Examiner respectfully submits that Young et al. discloses at paragraph
[0069] how important accurate position sensing is for determining the
position of each individual data point in order to combine the individual
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data points into accurate 30 pictures and that the position of each of the
utility sensors must be known with sufficient accuracy so that the data
collected (e.g., data points) may be properly overlaid. The disclosure
that the proper operation of sensor data fusion requires that the position
of each utility sensor in each of the suites of utility sensors be known
with sufficient accuracy such that each data point of the collected data
may be properly overlaid implicitly discloses determining the positional
offset of each utility sensor relative to the positioning sensor because
the accuracy and reliability of the data points being collected and their
sensed positions is dependent upon the type of positional/utility sensors
being used as well as the material properties of both the surface being
sensed and any possible objects located therein.
Ans. 62-63 (emphasis added).
Based on the record before us, we are persuaded by Appellants'
arguments that Macintosh and Young do not teach the disputed limitation.
In particular, the Examiner's reliance on implicit disclosure regarding the
teaching of Young is insufficient to establish obviousness. As stated by the
Supreme Court, the Examiner's obviousness rejection must be based on
some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness ....
KSR Int'!. Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
Here, the record presents insufficient factual evidence to support the
Examiner's finding of obviousness.
In view of the foregoing, we do not sustain the rejection of claim 1,
and independent claim 27 which recites the disputed limitation. We also do
not sustain the rejections of dependent claims 2-26, 28-35, 37, 40, and 42-
44. Cf In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) ("[D]ependent
claims are nonobvious if the independent claims from which they depend are
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nonobvious .... "). Because our decision with regard to the disputed
limitation is dispositive of the rejection of all pending claims, we do not
address additional arguments raised by Appellants.
Regarding independent claim 45, Appellants argue Macintosh,
Frohlich, Miceli, Young, or Lange do not teach the limitation "a second
movable platform mechanically coupled to the movable platform and
configured to provide second sensor data samples as the second movable
platform moves along the path." App. Br. 11-12. In particular, Appellants
argue the Examiner errs in finding Lange teaches multiple platforms towed
by a vehicle having a hitch l 6B because Lange teaches a hitch l 6B "that
connects a farm implement 12 (singular) to a tow vehicle 14." Id. at 11
(citing Final Act. 58; Lange col. 4, 11. 11-29). Appellants also argue the
Examiner errs in finding Young teaches multiple platforms in paragraph 40
and finding Young teaches, in paragraph 3 7, a second sensor arrangement
supported by the second movable platform and configured to provide second
sensor data samples as the second movable platform moves along the path.
Id. at 11 (citing Young ,-i,-i 37, 40). According to Appellants, paragraph 37 of
Young does not teach the asserted feature and the two paragraphs (37, 40)
are improperly combined by the Examiner using hindsight. Id. 11-12.
In addition to finding Macintosh, Frohlich, and Miceli teach the
undisputed limitations of claim 45, the Examiner finds Young teaches
multiple detectors/sensors may be situated on separate moveable platforms
that are portable and towed by a small vehicle. Ans. 64 (citing Young ,-i,-i 36,
40). The Examiner finds Young teaches detection units having positional
reference units travel along the ground surface such that the positional
reference changes with reference unit travel. Id. (citing Young 74-75). The
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Examiner finds Lange teaches the claim 45 limitation "using a geographic
position sensor affixed to only one of the respective platforms and a fixed
location of a coupler that mechanically couples the respective platforms. Id.
64-65. In particular, the Examiner finds Lange teaches using a single GPS
mounted to the vehicle, hitch, or implement (towed platform) wherein the
tongue is a fixed coupler that couples the implement to the hitch. Id. at 65
(citing Lange col. 3, 11. 30-64). In reply, Appellants argue "Lange's hitch
l 6B is not used in the same way as the fixed location of the coupler" in
claim 45. Reply Br. 12. According to Appellants, Lange's hitch 16B plays
no role as a fixed location when computing the location of the farm
implement 12 because Lange's location of the GPS antenna 48 determines
the location of the farm implement 12. Id.
We are not persuaded by Appellants' arguments and, instead, agree
with the Examiner's findings above.
Appellants' arguments assert an unreasonably narrow teaching of the
cited references, and Appellants argue the references individually whereas
the rejection is based on the combination of the references. In re Keller, 642
F.2d 413, 426 (CCPA 198l)("[O]ne cannot show non-obviousness by
attacking references individually where, as here, the rejections are based on
combinations of references" (citations omitted)); In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986).
The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference; nor is it that the claimed invention must be expressly suggested in
any one or all of the references. Rather, the test is what the combined
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teachings of the references would have suggested to those of ordinary skill
in the art. See Keller, 642 F.2d at 425.
As stated by the Supreme Court, the Examiner's obviousness rejection
must be based on:
[S]ome articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness .... [H]owever, the
analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.
KSR Int'!. Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
The Examiner's findings are reasonable because the skilled artisan
would "be able to fit the teachings of multiple patents together like pieces of
a puzzle" since the skilled artisan is "a person of ordinary creativity, not an
automaton." KSR, 550 U.S. at 420-21.
On this record, Appellants do not present sufficient evidence that the
combination of the cited references was "uniquely challenging or difficult
for one of ordinary skill in the art" or "represented an unobvious step over
the prior art." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007) (citingKSR, 550U.S. at418-19). Nor have
Appellants provided objective evidence of secondary considerations, which
our reviewing court guides "operates as a beneficial check on hindsight."
Cheese Sys., Inc. v. Tetra Pak Cheese and Powder Sys., Inc., 725 F.3d 1341,
1352 (Fed. Cir. 2013).
In view of the above, we sustain the rejection of claim 45.
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DECISION
We reverse the Examiner's decision rejecting claims 1-35, 37, 40, and
42-44.
We affirm the Examiner's decision rejecting claim 45.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a). See 37 C.F.R.
§ l.136(a)(l )(iv).
Affirmed-In-Part
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