Ex Parte Kirk et al

Patent Trial and Appeal Board

Oct 26, 2017

14281627 (P.T.A.B. Oct. 26, 2017)

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.
14/281,627 05/19/2014 James C. Kirk H0041121-5447/1121-571US1 4879
89941 7590 10/30/2017
HONEYWELL/S&S
Patent Services
115 Tabor Road
P.O.Box 377
MORRIS PLAINS, NJ 07950
EXAMINER
BADII, BEHRANG
ART UNIT PAPER NUMBER
3667
NOTIFICATION DATE DELIVERY MODE
10/30/2017 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):
patentservices-us @ honey well, com
pairdocketing @ ssiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES C. KIRK, MATEJ DUSIK,
ONDREJ POKORNY, and ANDREW F. LAMKIN
Appeal 2017-003486
Application 14/281,627
Technology Center 3600
Before JOSEPH L. DIXON, LARRY J. HUME, and
AARON W. MOORE, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-003486
Application 14/281,627
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1—20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The claims are directed to an aircraft strike zone display. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method comprising:
detecting, by a processor, an object in an image captured
by a camera on an aircraft;
determining, by the processor, a distance range of the
object relative to a portion of the aircraft;
generating, by the processor, a graphical user interface
comprising a strike zone indication based on the determined
distance range of the object, wherein the strike zone indication is
scaled to indicate a strike zone of the aircraft if the aircraft was
at the distance range of the detected object, the strike zone being
a volume of space that at least a part of the aircraft would occupy
if the at least the part of the aircraft was at the distance range of
the detected object; and
displaying, via a display device, the graphical user interface
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Lin US 2008/0243383 A1 Oct. 2, 2008
Durand US 2014/0142838 A1 May 22,2014
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REJECTIONS
The Examiner made the following rejections:
Claims 1—20 stand rejected under 35 U.S.C. § 101 as not being
directed to patent eligible subject matter.
Claims 1—20 stand rejected under 35 U.S.C. § 102(a)(2) as being
disclosed by Durand.
Claims 1—20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Durand in view of Lin.
ANALYSIS
Grouping of Claims
Appellants address the patent eligible subject matter rejection in three
separate groups for each of the three independent claims, but Appellants rely
upon the same arguments for each of the three separate groups. As a result,
we will address the patent eligibility question as a single group with claim 1
as the representative claim.
Appellants set forth numerous separate groups of claims and address
each under a separate heading. The Examiner has identified eight separate
groups for the prior art anticipation rejection. From our review of the claims
and Appellants’ arguments, we agree with the Examiner that each of claims
1—8 are directed to a separate group and the additional dependent claims
from independent claims 9 and 17 are various combinations of the
limitations in claims 2—8. Additionally, we address claims 9 and 17 together
as a group. We find Appellants merely repeat the language of the claims,
and rely upon the previously proffered distinctions from the arguments for
claims 2—8. Consequently, we agree with the Examiner that claims 1—8 are
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Application 14/281,627
separate groupings, but the dependent claims from independent claims 9 and
17 will stand or fall with their parent grouping.
With respect to the obviousness rejection, Appellants again repeat the
language of the claims and refer to the arguments set forth in the
corresponding anticipation rejection. Appellants set forth some additional
arguments, and we address those claims as separate groupings as addressed
with respect to the anticipation rejections.
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments
which Appellants could have made but chose not to make in the Briefs so
that we deem any such arguments as waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellants’ arguments with respect to claims 1—20,
and we incorporate herein and adopt as our own: (1) the specific findings
and reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner’s Answer
in response to Appellants’ arguments. We incorporate such specific
findings, reasons, and rebuttals herein by reference unless otherwise
noted. However, we highlight and address specific findings and arguments
for emphases as follows.
35U.S.C. § 101
The Examiner rejects the claims under 35U.S.C. § 101 because they
are directed to patent ineligible subject matter. In particular, the Examiner
finds the claims are directed to an abstract idea, that is:
The claims are at least mathematical relationships/formulas or
certain methods of organizing human activities. The
limitations, detecting an object; determining a distance range of
the object relative to a portion of the aircraft; and generating a
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strike zone indication based on the determined distance range of
the object, wherein the strike zone indication is scaled to
indicate a strike zone of the aircraft if the aircraft was at the
distance range of the detected object, the strike zone being a
volume of space that at least a part of the aircraft would occupy
if the at least the part of the aircraft was at the distance range of
the detected object, are considered mathematical
relationship s/formulas for determining the relative position of
an object/target to a moving reference frame.
(Ans. 15). The Examiner further finds the claims use generic computer
components to perform generic computer functions. (Ans. 14).
Appellants set forth arguments regarding Rapid Litigation
Management Ltd. v. CellzDirect, Inc., 827 F.3d 1042 (Fed. Cir. 2016).
(App. Br. 8—11). We find Appellants’ reliance upon the Rapid Litigation
case to be unavailing. We find the pending claims under review to be
significantly different than those in the Rapid Litigation case.
Appellants contend the Office has not identified an abstract idea or a
law of nature in claim 1, as recited, and has not explained why the subject
matter of claim 1 allegedly corresponds to a concept that the courts have
identified as an abstract idea. (App. Br. 10). We disagree with Appellants
and find the Examiner has identified an abstract idea, and that Appellants
have not shown how the proffered limitations are not an abstract idea.
Appellants further contend “[t]he claims, when viewed as a whole,
recite elements which make clear that the claims are directed to
improvements in the technological field of obstacle detection for aircraft.”
(App. Br. 11).
The Examiner maintains:
The limitations, detecting an object; determining a distance range
of the object relative to a portion of the aircraft; and generating a
strike zone indication based on the determined distance range of
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Application 14/281,627
the object, wherein the strike zone indication is scaled to indicate
a strike zone of the aircraft if the aircraft was at the distance range
of the detected object, the strike zone being a volume of space
that at least a part of the aircraft would occupy if the at least the
part of the aircraft was at the distance range of the detected
object, are considered mathematical relationship s/formulas for
determining the relative position of an object/target to a moving
reference frame.
(Ans. 23—24). The Examiner further maintains Claim 1 describes generic,
fungible processors/computers that admittedly have already gained
“widespread acceptance” in the field of motion tracking. (Ans. 25). We
agree with the Examiner and find Appellants have not identified how the
mere recitation of a processor, a display, or a camera are used in a manner to
provide significantly more than the mathematical processing performed by
the processor.
We agree with the Examiner that independent claim 1 is directed to an
abstract idea of mathematical relationships/formulas for determining the
relative position of an object/target to a moving reference frame.
Additionally, we agree with the Examiner that the language of
independent claim 1 merely sets forth a generic hardware used in its
ordinary manner. Moreover, Appellants have not identified how the claim is
directed to substantially more than the abstract idea.
Appellants have not persuaded us of error. Section 101 of the Patent
Act provides “[wjhoever invents or discovers any new and useful process,
machine, manufacture, or composition of matter, or any new and useful
improvement thereof, may obtain a patent therefor, subject to the conditions
and requirements of this title.” 35 U.S.C. § 101. That provision “contains
an important implicit exception: Laws of nature, natural phenomena, and
abstract ideas are not patentable.” Alice Corp. Pty. Ltd. v. CIS Banklnt’l,
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134 S. Ct. 2347, 2354 (2014) (quoting Ass’n for Molecular Pathology v.
Myriad Genetics, Inc., 133 S. Ct. 2107, 2116 (2013)). According to the
Supreme Court:
[W]e set forth a framework for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from
those that claim patent-eligible applications of those concepts.
First, we determine whether the claims at issue are directed to
one of those patent-ineligible concepts. ... If so, we then ask,
“[w]hat else is there in the claims before us?” ... To answer
that question, we consider the elements of each claim both
individually and “as an ordered combination” to determine
whether the additional elements “transform the nature of the
claim” into a patent-eligible application. . . . We have
described step two of this analysis as a search for an “‘inventive
concept’” —i.e., an element or combination of elements that is
“sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept]
itself.”
Alice Corp., 134 S. Ct. at 2355.
The Federal Circuit has described the Alice step-one inquiry as
looking at the “focus” of the claims, their “character as a whole,” and the
Alice step-two inquiry as looking more precisely at what the claim elements
add—whether they identify an “inventive concept” in the application of the
ineligible matter to which the claim is directed. See Elec. Power Grp., LLC
v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016); Enfish, LLCv.
Microsoft Corp., 822 F.3d 1327, 1335—36 (Fed. Cir. 2016); Internet Patents
Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015).
Regarding Alice step one, the Federal Circuit has “treated collecting
information, including when limited to particular content (which does not
change its character as information), as within the realm of abstract
ideas.” Elec. Power, 830 F.3d at 1353 (emphasis added); see also Internet
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Patents, 790 F.3d at 1348-49; OIP Techs., Inc. v. Amazon.com, Inc., 788
F.3d 1359, 1363 (Fed. Cir. 2015); Content Extraction & Transmission LLC
v. Wells Fargo Bank, Natl Assn, 776 F.3d 1343, 1347 (Fed. Cir. 2014). “In
a similar vein, we have treated analyzing information [including
manipulating information] by steps people go through in their minds, or by
mathematical algorithms, without more, as essentially mental processes
within the abstract-idea category.” Elec. Power, 830 F.3d at 1354 (emphasis
added); see also id. at 1351—1354; In re TLI Commc’ns. LLC Patent Litig.,
823 F.3d 607, 613 (Fed. Cir. 2016). “And we have recognized that merely
presenting the results of abstract processes of collecting and analyzing
information, without more (such as identifying a particular tool for
presentation), is abstract as an ancillary part of such collection and
analysis.” Elec. Power, 830 F.3d at 1354 (emphasis added); see also
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 714—15 (Fed. Cir. 2014).
The rejected claims “fall into a familiar class of claims ‘directed to’ a
patent-ineligible concept.” Elec. Power, 830 F.3d at 1353. Contrary to
Appellants’ arguments (App. Br. 8—14; Reply Br. 3—6), the claims are
similar to the claims of Electric Power, and are focused on the combination
of abstract-idea processes or functions. See Elec. Power, 830 F.3d at
1354. For example, claim 1 is directed to receiving or collecting
information (“detecting, by a processor, an object in an image captured by a
camera on an aircraft”), analyzing and manipulating information
(“determining, by the processor, a distance range of the object relative to a
portion of the aircraft; generating, by the processor, a graphical user
interface comprising a strike zone indication based on the determined
distance range of the object, wherein the strike zone indication is scaled to
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indicate a strike zone of the aircraft if the aircraft was at the distance range
of the detected object, the strike zone being a volume of space that at least a
part of the aircraft would occupy if the at least the part of the aircraft was at
the distance range of the detected object”), and “displaying, via a display
device, the graphical user interface.”
Regarding Alice step two, contrary to Appellants’ assertion (App. Br.
11—13; Reply Br. 5—6), Appellants have not shown the claims in this case
require an arguably inventive set of components or methods, or invoke any
assertedly inventive programming. See Elec. Power, 830 F.3d at 1355.
Further, contrary to Appellants’ arguments (App. Br. 11—13; Reply
Br. 5—6), the claims are similar to the claims of Electric Power, because they
do not require any nonconventional computer or network components, or
even a “non-conventional and non-generic arrangement of known,
conventional pieces,” but merely call for performance of the claimed
information collection, analysis and manipulation functions on generic
computer or network components. See Elec. Power, 830 F.3d at 1355.
Contrary to Appellants’ assertion (Reply Br. 3), the rejected claims are
unlike the claims in Enfish. In Enfish, the court finds:
The . . . patents are directed to an innovative logical model for a
computer database. ... A logical model generally results in the
creation of particular tables of data, but it does not describe how
the bits and bytes of those tables are arranged in physical
memory devices. Contrary to conventional logical models, the
patented logical model includes all data entities in a single table,
with column definitions provided by rows in that same
table. The patents describe this as the “self-referential” property
of the database.
Enfish, 822 F.3d at 1330.
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[T]he plain focus of the claims is on an improvement to computer
functionality itself, not on economic or other tasks for which a
computer is used in its ordinary capacity.
[T]he claims ... are directed to a specific improvement to the
way computers operate, embodied in the self-referential table.
Enfish, 822 F.3d at 1336.
The rejected claims are unlike the claims of Enfish because they are
not “an improvement to computer functionality itself.” Enfish, 822 F.3d at
1336. Instead, they are similar to the claims of Electric Power, because “the
focus of the claims is not on such an improvement in computers as tools, but
on certain independently abstract ideas that use computers as tools.” Elec.
Power, 830 F.3d at 1354.
In short, Appellants have not shown the claims, read in light of the
Specification, require anything other than conventional computer technology
for collecting, analyzing, and manipulating the desired information. See
Elec. Power, 830 F.3d at 1354. Such invocations of computers is
“insufficient to pass the test of an inventive concept in the application” of an
abstract idea. See Elec. Power, 830 F.3d at 1355.
Because Appellants have not persuaded us the Examiner erred, we
sustain the Examiner’s rejection of representative independent claim 1 under
35U.S.C. § 101.
With respect to dependent claims 2—8, Appellants contend the
Examiner has failed to address the claims. (Reply Br. 6). We find
Appellants’ did not provide separate arguments for patentability of
dependent claims 2—8 in the Appeal Brief. Consequently Appellants have
waived any arguments to dependent claims 2—8 regarding patent eligibility.
See 37 C.F.R. § 41.37(c)(l)(iv).
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With respect to claims 9—20, Appellants contend that the Examiner
failed to present any specific remarks regarding these claims under 35
U.S.C. § 101. The Examiner maintains that the similar limitations of the
three independent claims are grouped together. (Ans. 18). Moreover, we
note Appellants did not set forth separate arguments for patentability, and
merely relied upon “the reasons discussed with respect to claim 1.” (App.
Br. 13—14). Consequently, we agree with the Examiner, and we group the
claims as falling with independent claim 1.
Reply Brief
Appellants generally contend the Examiner has not made a showing
that independent claim 1 is directed to an abstract idea and, even if there is
an abstract idea, that the claims are not directed to significantly more than
the abstract idea. (App. Br. 10-13; Reply Br. 3—6). Appellants’ argument
generally contends the Examiner has not shown the claim limitations are
“considered mathematical relationships/formulas for determining the relative
position of an obiect/target to a moving reference frame.” (Reply Br. 3).
We disagree with Appellants and find that the Examiner has characterized
the limitations in this manner because Appellants’ Specification similarly
addresses the abstract functions at a high level of description without further
detail thereto. Nor have Appellants identified how these limitations are not
directed to mathematical relationships between two points.
Appellants further contend that even if the claim includes an abstract
idea, the Rapid Litigation case provides that “[a] new and improved
technique, for producing a tangible and useful result, falls squarely outside
those categories of inventions that are ‘directed to’ patent ineligible
concepts.” (Reply Br. 4). Appellants further contend that
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the Office has not shown that the claims amount to nothing more
than observing or identifying an ineligible concept. If, arguendo,
claim 1 was a “mathematical relationship[]/formula[] for
determining the relative position of an object/target to a moving
reference frame,” which Appellant certainly does not concede,
then presumably the claim language would recite a particular
mathematical relationship or formula for determining the
position of an object relative to a moving reference frame.
(Reply Br. 4—5).
We find Appellants’ argument unavailing and note Appellants have
not identified any aspect of the claimed invention that is “significantly
more” than the abstract idea, but merely contend that the Examiner has not
shown the unclaimed and undisclosed algorithm is mathematically based.
Appellants’ Specification and claims essentially encompass all abstract ideas
to determine distance between two points because no specific algorithm is
claimed or disclosed. As a result, Appellants’ arguments do not show error
in the Examiner’s factual findings or conclusion of a lack of patent eligible
subject matter of claims 1—20.
Prior Art Rejections
With regards to the anticipation rejection, we find the Examiner has
only made a rejection based upon the Durand reference. (Final Act. 9—15)
(Ans. 2—10). We note the Examiner provides commentary in the Examiner’s
Answer regarding both the Durand reference and the Lin reference
individually, but the Examiner did not expressly set forth a new ground of
rejection. (Ans. 19). Consequently, we review only the anticipation
rejection based upon the Durand reference alone and the obviousness
rejection based upon the Durand reference in combination with the Lin
reference. (Ans. 19—23).
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35 U.S.C. § 102
Appellants’ contention amounts to a general denial that fails to
address the Examiner’s findings and is, therefore, insufficient to be
considered an argument for separate patentability. See 37 C.F.R.
§ 41.37(c)(l)(iv) (“A statement which merely points out what a claim recites
will not be considered an argument for separate patentability of the claim.”);
In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the
Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”).
With respect to independent claim 1, Appellants contend “Durand
fails to disclose that ‘“the visual image [that] may include a representative
image of an obstacle’ includes a strike zone indication, ‘the strike zone being
a volume of space that at least a part of the aircraft would occupy if the at
least the part of the aircraft was at the distance range of the detected object,’
as recited in claim 1.” (App. Br. 16) (footnote omitted). Appellants further
contend the Examiner has not cited to any portion of Durand describing that
any part of the visual image includes any indication, to a user, of a strike
zone of an aircraft. (App. Br. 16).
We disagree with Appellants and find the Examiner has identified
“(p’s 15-18, 2-5; ab, fig’s 1, 5 and 4; p’s 22 and 27)” repeatedly in the
grounds of the rejection. (Final Act. 9—10). From our review of the Durand
reference, we find Durand discloses:
GCAU 420 may include a screen or display 422 for providing a
visual image to the crew. The visual image may include a
representative image of an obstacle in relation to a part of the
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aircraft such as a wingtip. The display 422 may also show other
data relevant to a distance between the aircraft and the obstacle
and/or to an action for avoiding or preventing a collision.
(Durand 127). We further find that the Durand reference further discloses:
the GCAS continually monitors distance to the obstacle; if the
GCAS predicts the aircraft will collide with the obstacle, it issues
an alert and the pilot stops the aircraft or implements other
evasive action preventing the collision; if stopped, the pilot
determines the appropriate maneuver before continuing to taxi
the aircraft; and if the GCAS predicts the aircraft will not collide
with the obstacle, then no alert is issued and the crew continues
taxiing.
(Durand 128). Although we agree with Appellants that the Durand
reference performs its distance calculations with RF sensors, the language of
independent claim 1 does not limit what data is used by the processor, but
the claim language merely recites the presence of a camera and an output
image. We find the Durand reference clearly discloses the claimed
invention as recited in the language of independent claim 1.
Appellants additionally contend the Examiner has not identified “a
graphical user interface comprising a strike zone indication.” (App. Br. 16).
Appellants further contend:
However, even if a person having ordinary skill in the art would
have understood the visual image described by Durand to have
been a “graphical user interface,” and further would have
understood Durand to have described determining a distance
range of an obstacle because it discloses “determining an
expected location of the obstacle with respect to [an] aircraft,”
none of which Appellant concedes, Durand fails to disclose that
“the visual image [that] may include a representative image of an
obstacle” includes a strike zone indication, “the strike zone being
a volume of space that at least a part of the aircraft would occupy
if the at least the part of the aircraft was at the distance range of
the detected object,” as recited in claim 1. Indeed, the Office has
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not cited to any portion of Durand that describes that any part of
the visual image includes any indication, to a user, of a strike
zone of an aircraft.
(App. Br. 16) (footnotes omitted).
We disagree with Appellants and find their argument is not
commensurate in scope with the language of independent claim 1, which
sets forth “generating ... a graphical user interface comprising a strike zone
indication” and “displaying ... the graphical user interface” and does not
differentiate the claimed invention from the Durand reference.
Moreover, Appellants have not identified any express definition of a
“strike zone indication,” and only generally contend the Durand reference
does not disclose the claimed “strike zone indication” in the claimed method
Appellants contend Figures 1—3 of the Durand reference have not
been shown to describe examples of visual images. (App. Br. 17). We
agree with Appellants, but find the Examiner has not relied upon Figures
1—3 as the display indication, but merely the configuration of the computer
and the sensors of the claimed invention. As a result, Appellants’ argument
does not show error in the Examiner’s finding of anticipation.
Consequently, we find Appellants’ argument to be unavailing where
the Durand reference clearly discloses determining a distance range to an
object with respect to collision avoidance which is within a strike zone of the
aircraft, i.e., a volume of space relative to the aircraft.
Additionally, we find the graphical user interface merely recites
nonfunctional descriptive material which does not change the steps
performed by the processor in the claimed “method” of independent claim 1.
See Ex parte Curry, 84 USPQ2d 1272, 1274 (BPAI 2005) (informative),
aff’d, No. 06-1003 (Fed. Cir. June 12, 2006) (Rule 36) (“wellness-related”
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data in databases and communicated on distributed network did not
functionally change either the data storage system or the communication
system used in the claimed method).
Non-functional descriptive material refers to data content that does
not exhibit a functional interrelationship with the substrate and does not
affect the way the computing processes are performed. See MPEP
§ 2106.01. In a precedential decision, an expanded panel held that elements
that do not affect the claimed process are non-functional material and are
merely descriptive. See Ex parte Nehls, 88 USPQ2d 1883, 1887—1888
(BPAI 2008) (precedential).
As such, the Examiner need not give patentable weight to descriptive
material absent a new and unobvious functional relationship between the
descriptive material and the substrate. See In re Lowry, 32 F.3d 1579, 1582—
1583 (Fed. Cir. 1994); In reNgai, 367 F.3d 1336, 1339 (Fed. Cir. 2004)
(nonfunctional descriptive material cannot render nonobvious an invention
that would have otherwise been obvious); see also Ex parte Mathias, 84
USPQ2d 1276 (BPAI 2005) (nonprecedential), aff’d, 191 F. App’x. 959
(Fed. Cir. 2006).
Our reviewing court has held that non-functional descriptive material
cannot lend patentability to an invention that would have otherwise been
anticipated by the prior art. See In re Ngai, 367 F.3d at 1339; cf In re
Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983) (when descriptive material is
not functionally related to the substrate, the descriptive material will not
distinguish the invention from the prior art in terms of patentability). The
content of non-functional descriptive material is not entitled to weight in the
patentability analysis. See In re Lowry, 32 F.3d at 1583 (“Fowry does not
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claim merely the information content of a memory.”); see also Ex parte
Nehls, 88 USPQ2d at 1887—90 (precedential) (discussing non-functional
descriptive material).
As a result, we find Appellants’ arguments to be unpersuasive to show
error in the Examiner’s factual finding of anticipation, and we sustain the
anticipation rejection of representative independent claim 1.
With respect to dependent claim 2, Appellants contend the Examiner
has relied upon the same citation and that “it is unclear which portion of
Durand the Office has interpreted as having disclosed using ‘a stereo vision
technique or a focal distance processing technique.’” (App. Br. 17).
The Examiner repeats the same statement of the rejection as set forth
in the Final Action without specifically identifying a disclosure of “stereo
vision technique or a focal distance processing technique” (Ans. 8). As a
result, the Examiner has not set forth a sufficient finding of anticipation, and
we cannot sustain the rejection of dependent claim 2 based upon
anticipation.
With respect to dependent claim 3, Appellants contend the Examiner
merely recites the claim language and the same citation to the Durand
reference and the Office failed to specify, with any particularity, the features
of the cited portion of the Durand reference that the Office relied upon in
rejecting claim 3. (App. Br. 18—19). The Examiner merely repeats the claim
language and the same citations. (Ans. 8). We agree with Appellants, and
we cannot sustain the anticipation rejection of dependent claim 3.
With respect to dependent claim 4, Appellants rely upon the
dependency from dependent claim 3. (App. Br. 19). We agree with
Appellants based upon the dependency, but we note the Durand reference
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discloses object type determination based upon shape templates with the RF
signals. (Durand 23, 33). As a result, the Examiner has not made a
proper finding of anticipation of dependent claim 4.
With respect to dependent claim 5, Appellants repeat the language of
the claim and maintain the Office has not pointed to any portion of the
Durand reference that discloses overlaying a strike zone indication on the
one or more images. (App. Br. 19—20). The Examiner only repeats the
language of the claim and provides the same citations. As a result, we
cannot sustain the rejection of dependent claim 5 based upon anticipation.
With respect to dependent claims 6, 7, and 8, Appellants repeat the
language of the claim and contend that the Examiner has failed to specify
with any particularity how the Durand reference teaches the claimed
invention. (App. Br. 20—22). The Examiner merely provides the same
citation and does not specifically identify where the Durand reference
discloses the “object is not a hazard” and “object does not fall within the
strike zone of the aircraft.” (Ans. 8—9). We note the Durand reference
discloses false alarms and background clutter as not being a hazard, but does
not necessarily provide an indication thereof. (Durand 24). Therefore, we
cannot sustain the anticipation rejection of dependent claims 6—8.
Claims 9—20
With respect to independent claims 9 and 17, Appellants repeat the
language of the claim and rely upon the arguments advanced with respect to
independent claim 1. Appellants further contend “the Office failed to
establish that Durand’s ‘visual image [that] may include a representative
image of an obstacle’ comprises ‘a strike zone indication based on the
distance range of an object... the strike zone being a volume of space that
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at least a part of the aircraft would occupy if the at least the part of the
aircraft was at the distance range of the detected object,’ much less that ‘the
strike zone indication is scaled to indicate a strike zone of the aircraft if the
aircraft was at the distance range of the detected object.’” (App. Br. 23, 27—
28). We disagree with Appellants and find the Durand reference discloses
the processing and scaling of objects to determine probable collisions and
issuing alarms or warnings. (Durand 23—28). As a result, Appellants’
reliance upon the arguments advanced with respect to independent claim 1
do not show error in the Examiner’s finding of anticipation of independent
claims 9 and 17.
With respect to dependent claims 10-16 and 18—20, Appellants rely
upon the arguments advanced with respect to independent claims 1, 9,
and 17, along with the arguments for dependent claims 2—8. (App. Br.
24—29). The Examiner has grouped these claims with dependent claims 2—8
and relied upon the same prior art citations (Ans. 8—10, 19). Therefore, we
cannot sustain the rejection of dependent claims 10-16 and 18—20 based
upon anticipation over the Durand reference for the same reasons discussed
above with respect to dependent claims 2—8.
35U.S.C. § 103
With respect to independent claim 1, Appellants rely upon the
arguments set forth with respect to the anticipation rejection based upon the
Durand reference, and Appellants further contend that “Lin fails to disclose
a strike zone indication, much less a strike zone indication scaled to indicate
a strike zone of the aircraft if the aircraft were at the distance range of a
detected object.” (App. Br. 30). We find Appellants’ argument with respect
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to representative independent claim 1 to be unavailing for the same reasons
addressed above with respect to the anticipation rejection.
We disagree with Appellants’ additional contention that the Office has
failed to establish an apparent reason for the combination (App. Br.
30—31), because we find the Examiner has set forth a rational line of
reasoning for combining imaging of Lin with the RF based measurements of
the Durand reference.
With respect to the obviousness rejection, the Examiner maintains:
if Durand is or might be interpreted such that it might not
explicitly disclose capturing an image, then Lin discloses
capturing an image (p’s 10, 12-13, 26, ab, fig’s 3-4 & 9). If this
interpretation is taken, then it would have been obvious to
modify Durand to include capturing an image such as that taught
by Lin in order such that cameras are used to provide range and
3D measurements of a target (Lin, pi2).
(Ans. 11—12). The Examiner further maintains “the art rejection, [because]
each of the two prior arts, Durand, USPAP 2014/0142838 or Lin, USPAP
2008/0243383 taken alone, disclose the limitations of the proposed
invention.” (Ans. 19). We agree with the Examiner that the Lin reference
discloses vision based object detection and tracking with range
determination with stereo cameras. (Lin 110). We further find Lin
discloses obstacle recognition used to aid the decision of the ground
proximity warning system (GPWS) using stereo cameras to provide range
and 3-D measurements of the target for positioning. (Lin 112).
Additionally, we find Lin teaches the use of a “map-like display of the
nearby terrain.” (Lin 127). Lin further discloses the system “calculate^] an
envelope along the projected flight path of the aircraft and compares that to
the terrain database. Since the enhanced ground proximity warning system
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display can show nearby terrain, pilots are much less likely to continue
flying toward that terrain.” (Lin 129). We find the Lin reference further
teaches both midair and ground proximity and the tracking by a “fusion of
stereo camera and other object detection sensors.” (Lin || 32, 34).
Consequently, we agree with the Examiner that Lin, in combination with
Durand, would have taught or suggested the invention recited in independent
claim 1.
With respect to dependent claim 2, because Lin teaches the use of two
cameras in stereo for distance range determination, which would replace or
supplement the two RF sensors as taught by Durand, we agree with the
Examiner that dependent claim 2 would have been obvious to one of
ordinary skill in the art at the time of the invention.
With respect to dependent claim 3, we agree with the Examiner that
the Durand reference discloses determining distance to an object based upon
a change in range (Durand 29, “In various embodiments, the one or more
signals may be signals taken over a selected time period. Therefore, the
location of the obstacle may be determined at several times during the
selected time period and a trend of the obstacle’s location [overtime] may be
used to determine a trajectory and/or velocity of the obstacle with respect to
the aircraft.”). Given the disclosure of the Lin reference regarding stereo
images, we agree with the Examiner that the combination would have
suggested the use of a time sequence of frames to determine a change in the
size of the object. Consequently, we agree with the Examiner’s factual
findings and legal conclusion of obviousness of dependent claim 3.
With respect to dependent claim 4, as discussed above with respect to
the anticipation rejection, we find the Durand reference teaches or suggests
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the use of template matching using stored data with respect to predetermined
object types. As a result, we agree with the Examiner and find Appellants’
arguments do not show error in the Examiner’s factual findings or legal
conclusion of obviousness of dependent claim 4.
With respect to dependent claim 5, the Examiner has not identified
where either the Durand reference or the Lin reference teach or suggest the
use of overlays. (Ans. 21—22). We therefore cannot sustain the rejection of
dependent claim 5 based upon obviousness.
With respect to dependent claims 6—8, the Examiner has not
specifically identified where the Durand or Lin references specifically teach
or suggest the claim limitations “generating an indication that the object is
not a hazard in response to determining there is not relative movement
between the object and the aircraft towards each other” (Claim 6);
“generating an indication that the object is not a hazard in response to
determining the object is not in the strike zone of the aircraft” (Claim 7); or
“the object type of the object indicates the object does not fall within the
strike zone of the aircraft” (Claim 8). While the Examiner may provide a
claim interpretation where the display of an image of terrain, without an
alarm, may be deemed to be an indication of an object which is not a hazard,
the Examiner has not explained any such claim interpretation or specific
teachings or suggestions from the two prior art references relied upon in the
rejection. As a result, we cannot sustain the obviousness rejections of
dependent claims 6—8.
With respect to dependent claims 10-12, we sustain the obviousness
rejections for the same reasons set forth with respect to dependent claims
2-A.
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With respect to dependent claims 13—16, we reverse these
obviousness rejections for the reasons addressed above with respect to
dependent claims 5—8.
With respect to dependent claims 18 and 19, we sustain these
obviousness rejections for the same reasons addressed above with respect to
dependent claims 2 and 3. We note Appellants have not set forth specific
arguments for patentability based upon the “means” limitations (App. Br.
36), and we find those arguments to be waived. See 37 C.F.R.
§ 41.37(c)(iv).
With respect to dependent claim 20, we reverse the obviousness
rejection for the same reasons set forth with respect to dependent claim 5.
CONCLUSIONS
The Examiner did not err in rejecting claims 1—20 under § 101 based
upon a lack of patent eligible subject matter. The Examiner did not err in
rejecting claims 1, 9, and 17 based upon anticipation over the Durand
reference, but the Examiner did err in rejecting claims 2—8, 10-16, and
18—20 based upon anticipation over the Durand reference. The Examiner
did not err in rejecting independent claims 1, 9, and 17 based upon
obviousness over the over the Durand and Lin references, and the Examiner
did not err in rejecting dependent claims 2-4, 10-12, 18, and 19 based upon
obviousness. However, the Examiner erred in rejecting dependent claims
5—8, 13—16, and 20 based upon obviousness over the combination of the
Durand and Lin references.
DECISION
For the above reasons, we sustain the Examiner’s patent eligibility
rejection of claims 1—20; we sustain the Examiner’s anticipation rejection of
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independent claims 1, 9, and 17, but we reverse the Examiner’s anticipation
rejection of dependent claims 2—8, 10-16, and 18—20; and we sustain the
Examiner’s obviousness rejection of claims 1—4, 9—12, and 17—19, but we
reverse the Examiner’s obviousness rejection of claims 5—8, 13—16, and 20.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, we affirm the Examiner's decision. See 37
C.F.R. § 41.50(a)(1). No time period for taking any subsequent action in
connection with this appeal may be extended under 37 C.F.R.
§ 1.136(a)(l)(iv). See 37 C.F.R. § 41.50(f).
AFFIRMED
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