Ex Parte Mariadoss

Patent Trial and Appeal Board

Aug 11, 2016

12893180 (P.T.A.B. Aug. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/893, 180 09/29/2010 P ANDIAN MARIADOSS 73109 7590 08/15/2016 Cuenot, Forsythe & Kim, LLC 20283 State Road 7 Ste. 300 Boca Raton, FL 33498 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. CHA920100019US1_8134-0127 3634 EXAMINER MESSMORE, JONATHAN R ART UNIT PAPER NUMBER 2482 NOTIFICATION DATE DELIVERY MODE 08/15/2016 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): ibmptomail@iplawpro.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte P ANDIAN MARIADOSS 1 Appeal2015-003503 Application 12/893, 180 Technology Center 2400 Before MICHAEL J. STRAUSS, WSTIN BUSCH, and MICHAEL J. ENGLE, Administrative Patent Judges. ENGLE, Administrative Patent Judge. Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1-20, which are all of the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM-IN-PART. Technology The application relates to monitoring and validating the movement of assets using both video cameras and RFID. Abstract. 1 Appellant lists International Business Machines, Inc. as the real party in interest. Br. 3. However, a Statement Under 37 CPR 3.73(c) (Feb. 18, 2016) lists the assignee as International Business Machines Corp. 1 Appeal2015-003503 Application 12/893, 180 Representative Claim Claim 1 is representative and reproduced below with the key limitations emphasized: 2 1. A method for validating asset movement comprising: defining at least one virtual tripwire for at least one video camera of a video surveillance system that monitors a defined area of interest through which a plurality of assets are conveyed, wherein the at least one virtual tripwire visually defines a boundary within a view field of the at least one video camera, and wherein the plurality of assets are identified by an attached radio-frequency identification (RFID) tag; detecting movement of an asset through a virtual tripwire by a video camera, wherein said movement of the asset through the virtual tripwire is considered as a potential misdirection; notifYing an asset management system of the detected potential misdirection of the asset, wherein said notification comprises at least a location of the video camera having detected the potential misdirection and a time of the detected movement; obtaining RFID data for the detected asset by the asset management system from a RFID handling system, wherein said RFID handling system monitors the area of interest; determining a validity of the movement of the asset through the virtual tripwire by the asset management system based upon the RFID data and an asset movement specification, wherein said asset movement specification defines pathing rules for the plurality of assets and virtual tripwires; and when the movement of the asset is determined to be invalid, generating a record of suspect movement data to document the movement of the asset through the virtual tripwire. Rejections Claims 1-7, 10-12, 15-18, and 20 stand rejected under 35 U.S.C. § 103(a) as obvious over the combination of Lipton et al. (US 2008/0018738 2 In Appellant's claim appendix, claim 2 is incorrectly listed as claim 1 and all subsequent claim numbers are off by one. See Br. 23-28. 2 Appeal2015-003503 Application 12/893, 180 Al; Jan. 24, 2008) and Kuo et al. (US 2009/0160942 Al; June 25, 2009). Final Act. 5. Claims 8, 9, 13, 14, and 19 stand rejected under 35 U.S.C. § 103(a) as obvious over the combination of Lipton, Kuo, and Venetianer et al. (US 2007/0013776 Al; Jan. 18, 2007). 3 Final Act. 12. ISSUES 1. Did the Examiner err in finding Lipton teaches or suggests "notifying an asset management system of the detected potential misdirection of the asset," as recited in claim 1? 2. Did the Examiner err in finding Kuo teaches or suggests "obtaining RFID data for the detected asset by the asset management system from a RFID handling system," as recited in claim 1? 3. Did the Examiner err in finding the combination of Lipton and Kuo teaches or suggests "determining a validity of the movement of the asset through the virtual tripwire by the asset management system based upon the RFID data and an asset movement specification, wherein said asset movement specification defines pathing rules for the plurality of assets and virtual tripwires," as recited in claim 1? 4. Did the Examiner err in finding Lipton teaches or suggests "when the movement of the asset is determined to be invalid, generating a record of suspect movement data to document the movement of the asset through the virtual tripwire," as recited in claim 1? 3 Lipton states V enetianer is "incorporated herein by reference in its entirety." Lipton i-fi-f l, 7. 3 Appeal2015-003503 Application 12/893, 180 5. Did the Examiner err in finding Kuo teaches or suggests "requesting the RFID data from the RFID handling system, wherein said request comprises at least the location of the video camera having detected the potential misdirection" and "determining of a RFID reader closest to the location of the video camera having detected the potential misdirection by the RFID handling system," as recited in claim 3? 6. Did the Examiner err in finding Lipton teaches or suggests "querying the asset movement specification for pathing rules containing at least one of an identifier of the asset and an identifier of the virtual tripwire"; "evaluating each pathing rule found by querying the asset movement specification"; and "when a pathing rule evaluates as FALSE, designating the movement of the asset as invalid," as recited in claim 5? 7. Did the Examiner err in finding V enetianer teaches or suggests "when video data is omitted from the notification of the potential misdirection, the aggregating of incidence data further comprising: requesting from the video surveillance system a segment of video data that corresponds to a time period encompassing the time of the detected movement, wherein said time period comprises a predefined amount of time before and after time of the detected movement," as recited in claim 8? 8. Did the Examiner err in finding the combination of Lipton, Kuo, and Venetianer teaches or suggests "when the detected movement of the asset is determined to be valid, recording of said validity of the detected movement by the asset management system in a data record associated with the asset," as recited in claim 9? 4 Appeal2015-003503 Application 12/893, 180 ANALYSIS We consider only those arguments that Appellant actually raises in the Brief. Arguments that Appellant could have made, but chose not to, have not been considered and are deemed waived. 37 C.F.R. § 41.37(c)(l)(iv). Claims 1, 2, 4, 6, 7, and 10--20 A) The "notifYing" step Claim 1 recites "notifying an asset management system of the detected potential misdirection of the asset." We are not persuaded by Appellant's argument that Lipton monitors only people rather than "assets." Br. 13-14. Lipton expressly discloses tracking non-human objects: "the exemplary automated video surveillance system 100 may track individuals and shopping units across multiple video cameras." Lipton i-fi-f 162, 92 (categorizing monitored "objects in classes such as human, vehicle, or other"); Ans. 12.4 While many of Lipton's examples involve tracking people, "the fact that a specific embodiment is taught to be preferred is not controlling, since all disclosures of the prior art, including unpreferred embodiments, must be considered." Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (quotation omitted). We also are not persuaded by Appellant's argument that Lipton is "silent about an asset management system." Br. 13. The Examiner correctly points to Lipton's "video analytics engine 120" which can "detect objects of 4 While not necessary for our decision, other portions of Lipton also teach monitoring merchandise. E.g., Lipton i-fi-f 184 ("Detection of merchandise left in/on bottom of a shopping basket or cart and not scanned"), 179 ("Detection of a basket of merchandise leaving a store without the shopper(s) paying"), 180 ("moving merchandise out of the store through an irregular channel"), 178 ("Person grabs more than 'x' items from a shelf'). 5 Appeal2015-003503 Application 12/893, 180 interest"; "track objects"; and "determine" whether certain events or conditions have occurred, such as "determine if a person pushing a shopping cart exits a store without paying." Ans. 12; Lipton i-f 92. Thus, we are not persuaded of any error in the Examiner finding Lipton teaches or suggests the "notifying" step recited in claim 1. B) The "obtaining" step Claim 1 recites "obtaining RFID data for the detected asset by the asset management system from a RFID handling system." We are not persuaded by Appellant's argument that Kuo is "silent in regards to an asset management system." Br. 14. We agree with the Examiner that Kuo teaches or suggests a system that captures RFID data for objects passing through a gate. Ans. 13; Kuo i-f 19. Appellant relies on Figure 1 of Kuo to argue Kuo is limited to tracking people. Br. 15. However, Kuo's Figure 1 is from a prior art patent (Kuo i-f 3) that expressly states it also applies to "tracking assets (tools and materials)." U.S. Pat. No. 7,123,149 at Abstract, FIG. 2, 1:23-25, 2:12-14, 2:38--46. Kuo itself uses the broad term "object," which is not limited to people. E.g., Kuo i-f 19. Thus, we are not persuaded of any error in the Examiner finding Kuo teaches or suggests the "obtaining" step recited in claim 1. C) The "determining" step Claim 1 recites "determining a validity of the movement of the asset through the virtual tripwire by the asset management system based upon the RFID data and an asset movement specification, wherein said asset movement specification defines pathing rules for the plurality of assets and virtual tripwires." We are not persuaded by Appellant's arguments about 6 Appeal2015-003503 Application 12/893, 180 Lipton and Kuo only tracking people for the same reasons discussed above. Br. 17. We also are not persuaded by Appellant's arguments regarding "an asset movement specification" or determining "a validity of the movement." Br. 15-16. We agree with the Examiner that Lipton teaches "rules" to detect "invalid" behaviors, such as "Did the target cross tripwire in a prescribed direction?" Ans. 13-14; e.g., Lipton i-fi-f 135-137. Given such "pathing rules" and "tripwires," Appellant has not persuaded us that Lipton does not teach or suggest "an asset movement specification," nor persuaded us against the combination of Lipton's rules with Kuo's tracking via RFID. Thus, we are not persuaded of any error in the Examiner finding Lipton and Kuo teach or suggest the "determining" step recited in claim 1. D) The "generating" step Claim 1 recites "when the movement of the asset is determined to be invalid, generating a record of suspect movement data to document the movement of the asset through the virtual tripwire." We are not persuaded by Appellant's argument that Lipton fails to teach "generating a record of suspect movement data for an asset when the movement of the asset is determined to be invalid (i.e., outside the parameters of the asset movement specification)." Br. 18. As discussed above, Lipton teaches or suggests both assets and determining when the movement of an asset is invalid, such as when an object crosses a "tripwire in a prescribed direction." Lipton i-fi-f 137, 92. Lipton teaches recording such data even without a final report. For example, in Figure 21, "[t]he system may count the number of events from each tripwire 284, 286." Id. i1210. Lipton also teaches "the report generation engine 80 may accumulate events into a report" and "may 7 Appeal2015-003503 Application 12/893, 180 be used to agglomerate individual entry and exit events, detected via a tripwire(s)." Id. i-f 212. Given these records, Appellant has not sufficiently explained how Lipton does not teach or suggest the "generating" step. Accordingly, we sustain the Examiner's rejection of claim 1, and claims 2, 4, 6, 7, and 10-20, which Appellant argues are patentable for similar reasons. See App. Br. 18; 37 C.F.R. § 41.37(c)(l)(iv). Claim 3 Claim 3 recites "requesting the RFID data from the RFID handling system, wherein said request comprises at least the location of the video camera having detected the potential misdirection" and "determining of a RFID reader closest to the location of the video camera having detected the potential misdirection by the RFID handling system." Appellant contends Kuo does not "discuss anything about an RFID request which comprises at least the location of the video camera having detected the potential misdirection." Br. 19. We agree. Kuo does monitor both RFID and video but it passively waits for an RFID identification after two images cross on camera, rather than actively requesting an RFID identification based on the location of a video camera. See Kuo i-fi-19, 23-25. Accordingly, we are constrained to reverse the Examiner's rejection of claim 3. Since we agree with at least one of the arguments advanced by Appellant, we need not reach the merits of Appellant's other arguments. Claim 5 We are not persuaded by Appellant's argument that Lipton is "silent about determining the validity of the asset movement using a tripwire." Br. 20. We agree with the Examiner that Lipton teaches using tripwires. 8 Appeal2015-003503 Application 12/893, 180 Ans. 15-16; Lipton if 137. Lipton also teaches "determin[ing] if a person pushing a shopping cart exits a store without paying" and "detection of someone 'cleaning out' a retail shelf, for example, by counting a number of times a customer has reached into a shelf' for "high-value" items. Lipton iii! 92, 131; Ans. 16. Appellant has not sufficiently persuaded us of error in finding this teaches or suggests determining invalid movements (e.g., theft). We also agree with the Examiner that in this context, whether a Boolean flag is labeled as true or false is "arbitrary" and "obvious," and it has no effect on the remainder of the claim. Ans. 16-17. For example, "system-A represents a person entering an area as true and system-B represents a person entering an area as false are obvious over one another." Id. at 17. Appellant's other arguments are not sufficiently supported or not commensurate with the claim as written. Br. 20. Accordingly, we sustain the Examiner's rejection of claim 5. Claim 8 Claim 8 recites "when video data is omitted from the notification of the potential misdirection, the aggregating of incidence data further comprising: requesting from the video surveillance system a segment of video data that corresponds to a time period encompassing the time of the detected movement, wherein said time period comprises a predefined amount of time before and after time of the detected movement." This is a conditional method step (i.e., "when X, do Y") that does not specify what must happen when the condition is not met. Claim construction based entirely on intrinsic evidence "will amount solely to a determination of law." Teva Pharm. USA, Inc. v. Sandoz, Inc., 9 Appeal2015-003503 Application 12/893, 180 135 S. Ct. 831, 841 (2015). As a matter of claim construction, "[i]f the condition for performing a contingent step is not satisfied, the performance recited by the step need not be carried out in order for the claimed method to be performed." Cybersettle, Inc. v. Nat'! Arbitration Forum, Inc., 243 F. App'x 603, 607 (Fed. Cir. 2007) (unpublished); Applera Corp. v. Illumina, Inc., 375 F. App'x 12, 21 (Fed. Cir. 2010) (unpublished). Though unpublished, the Federal Circuit's logic in Applera and Cybersettle is consistent with its published logic on other issues, such as that "optional elements do not narrow the claim because they can always be omitted." In re Johnston, 435 F.3d 1381, 1384 (Fed. Cir. 2006). Here, Appellant contends the Examiner erred because "[ n ]ow here do the cited excerpts or Venetianer discuss anything about omitting the video data from the notification of the potential misdirection." Br. 21. Thus, Appellant essentially argues that in the prior art, the claimed condition is never true (or at least, the prior art never teaches that the condition is true). Because the condition is not triggered, the conditioned step need not be carried out for the claimed method to be performed. Patent law "puts the burden of precise claim drafting squarely on the applicant." In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997). Appellant could choose to amend the claims to expressly include a step of testing for the condition, to specify what must happen if the condition is not met, to claim structure instead of a method step, or to provide other steps precisely setting forth the desired intent. But given the claim as currently written, we are not persuaded that V enetianer must trigger the "when" clause in order for the claimed method to be performed. 10 Appeal2015-003503 Application 12/893, 180 Accordingly, we sustain the Examiner's rejection of claim 8. Claim 9 Claim 9 recites "when the detected movement of the asset is determined to be valid, recording of said validity of the detected movement by the asset management system in a data record associated with the asset." Appellant contends "Venetianer is completely silent about validating the detected movement and recording such validation." Br. 21. However, "[ n ]on-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, the Examiner also relied upon the rules and recording of Lipton (Ans. 17-18, 9), which Appellant has not sufficiently addressed. Accordingly, we sustain the Examiner's rejection of claim 9. DECISION For the reasons above, we affirm the Examiner's rejection of claims 1, 2, and 4--20. We reverse the Examiner's rejection of claim 3. No time for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). 37 C.F.R. § 41.50(f). AFFIRMED-IN-PART 11