Ex Parte Mian et al

Patent Trial and Appeal Board

Feb 8, 2019

14272816 (P.T.A.B. Feb. 8, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/272,816
112523 7590
LaBatt, LLC
PO Box 630
Valatie, NY 12184
FILING DATE FIRST NAMED INVENTOR
05/08/2014 Zahid F. Mian
02/12/2019
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.
IEMC-0041-US 9731
EXAMINER
TRUONG, NGUYEN T
ART UNIT PAPER NUMBER
2486
NOTIFICATION DATE DELIVERY MODE
02/12/2019 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):
national@labattlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ZAHID F. MIAN and RONALD W. GAMACHE
Appeal2018-004264
Application 14/272,816
Technology Center 2400
Before JOHN A. JEFFERY, JOHN D. HAMANN, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-21. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
STATEMENT OF THE CASE
Appellants' invention monitors vehicle movements in an area
including restricted zones. After determining that a target is located in a
restricted zone, the presence of an alert condition is determined using a
series of images including the target, and alert components activated
1 Appellants identify the real party in interest as International Electronic
Machines Corporation. App. Br. 1.
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Application 14/272,816
responsive to the presence of the alert condition. See generally Abstract,
and Spec. ,r,r 2-10. Claims 1 and 15 are illustrative:
1. A system comprising:
a monitoring assembly including:
a set of cameras, wherein the set of cameras includes
at least one near infrared camera;
a set of local alert components; and
a computer system configured to monitor operations in
a region by performing a method including:
determining a location of a target at least partially
visible in image data acquired by the set of cameras using
data corresponding to a plurality of static features present in
the region;
evaluating the location with respect to at least one
restricted zone in the region;
in response to the evaluating indicating the target is at
least partially located within a restricted zone, determining a
presence of an alert condition using a series of images
including the target, wherein the presence of the alert
condition is based on at least one of: a direction of movement
of the target within the restricted zone or a cause of
movement of the target into the restricted zone; and
activating at least one of the set of local alert
components in response to determining the presence of an
alert condition.
15. A classification yard comprising:
a plurality of classification tracks having a first side
from which rail vehicles enter for assembly in a consist
and a second side from which consists exit the plurality of
classification tracks, wherein each classification track
includes a foul region defined by a mechanism located
between the first and second sides for halting movement of
a rail vehicle and a switch for merging the classification
track with another classification track on the second side;
a monitoring assembly including:
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a set of cameras, each camera having a field of view
that includes the mechanism and the switch for each of the
plurality of classification tracks; and
a computer system configured to monitor the foul
region of each of the plurality of classification tracks by
performing a method including:
determining a location of a rail vehicle at least
partially visible in image data acquired by the set of
cameras using data corresponding to a plurality of
static features present in the classification yard;
evaluating the location with respect to the foul
region for a classification track on which the rail
vehicle is located; and
in response to the evaluating indicating the rail
vehicle is at least partially located within the foul
region, determining a presence of an alert condition
using a series of images including the rail vehicle,
wherein the presence of the alert condition is based on
at least one of: a direction of movement of the rail
vehicle within the restricted zone or a cause of
movement of the rail vehicle into the restricted zone.
THE REJECTIONS
The Examiner rejected claims 1, 4, 5, 7-11, and 14 under 35 U.S.C.
§ 103 as unpatentable over Kengo (KR 10-2013-0016383 A; published Feb.
14, 2013), Yun (KR 10-2013-0034528 A; published Apr. 5, 2013), and Mian
(US 2009/0289187 Al; published Nov. 26, 2009). Ans. 2---6. 2
2 Throughout this opinion, we refer to: (1) the Appeal Brief filed September
12, 2017 ("App. Br."); (2) the Examiner's Answer mailed January 12, 2018
("Ans."); and (3) the Reply Brief filed March 12, 2018 ("Reply Br.").
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Application 14/272,816
The Examiner rejected claims 2 and 3 under 35 U.S.C. § 103 as
unpatentable over Kengo, Yun, Mian, and Connell (US 2013/0088601 Al;
published Apr. 11, 2013). Ans. 6-7.
The Examiner rejected claim 12 under 35 U.S.C. § 103 as
unpatentable over Kengo, Yun, Mian, and Takahiro Watanabe et al., Real-
Time Gesture Recognition Using Maskable Template Model, PROC. OF
MULTIMEDIA '96, 341--48, IEEE (1996). Ans. 7-8.
The Examiner rejected claims 6, 13, 15, 16, and 19-21 under 35
U.S.C. § 103 as unpatentable over Kengo, Yun, Mian, and Mian2 (Mian et
al., US 2010/0100275 Al; published Apr. 22, 2010) ("Mian2" 3). Ans. 8-13.
The Examiner rejected claims 17 and 18 under 35 U.S.C. § 103 as
unpatentable over Kengo, Yun, Mian, Mian2, and Connell. Ans. 13-14.
THE OBVIOUSNESS REJECTION OVER KENGO, YUN, AND MIAN
Regarding independent claim 1, the Examiner finds that Kengo
discloses, among other things, a monitoring system that determines the
presence of an alert condition using a series of images including a target, and
activates at least one alert component responsive to this determination. Ans.
2-3. Although the Examiner acknowledges that Kengo does not:
( 1) determine a target location by using data corresponding to static features
present in a monitored region; and (2) base the presence of the alert
condition on the target's movement direction within a restricted zone and/ or
3 Although the Examiner refers to this reference by the first-named
inventor's first name (Zahid), we nonetheless refer to the inventor's last
name here, and adopt Appellants' "Mian2" nomenclature (see App. Br. 5) to
distinguish this reference from the other Mian reference.
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a cause of the target's movement into that zone, the Examiner cites Yun and
Mian for teaching features (1) and (2), respectively, in concluding that the
claim would have been obvious. Ans. 3--4.
Appellants argue that the cited prior art does not teach or suggest
considering at least one of ( 1) a target's movement direction within a
restricted zone, or (2) a cause of the target's movement into that zone to
determine an alert condition. App. Br. 10-11; Reply Br. 2-3. Although
Appellants acknowledge that Kengo and Mian track targets and generate
alerts responsive to detecting either (1) a worker in a restricted zone
(Kengo ), or (2) an unauthorized vehicle or person (Mian), Appellants
contend that the cited prior art does not base the presence of the alert
condition on the target's movement direction within a restricted zone and/or
a cause of the target's movement into that zone as claimed. Id. Appellants
add that the Examiner fails to articulate a reason to modify Kengo and Yun
to include Mian's purported teachings to accrue any benefit. App. Br. 11-
12; Reply Br. 4--5.
ISSUES
(1) Under§ 103, has the Examiner erred in rejecting claim 1 by
finding that Kengo, Yun, and Mian collectively would have taught or
suggested basing the presence of an alert condition on the target's movement
direction within a restricted zone and/or a cause of the target's movement
into that zone?
(2) Is the Examiner's proposed combination of the cited references
supported by articulated reasoning with some rational underpinning to
justify the Examiner's obviousness conclusion?
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ANALYSIS
Claim 1 recites, in pertinent part, that the alert condition's presence is
based on at least one of (I) a target's movement direction within a restricted
zone, or (2) a cause of the target's movement into that zone. Our emphasis
underscores that only one of these two alternatives need be taught or
suggested by the prior art to satisfy the claim.
Appellants' Figure 1 shows a classification yard 10 with an inbound
railroad track 12 that includes a "hump" that raises the inbound track above
the level of the surrounding terrain. Spec. ,r 26. This hump enables rail
vehicles to roll into the yard's lower bowl area 13 that includes many sets of
classification tracks 14 that are used to assemble rail vehicles into consists.
Id. ,r,r 26-27. Although each classification track includes a retarder 16 to
prevent rail vehicles from rolling out onto outbound tracks 18, any rail
vehicle that happens to pass the retarder on a given classification track enters
a foul region 17 and is considered a "rogue" vehicle. Id. ,r 28.
The present invention detects and identifies these "rogue" vehicles as
shown, for example, in Appellants' Figure 6 where monitoring assembly
49A, 49B identifies vehicle lB in foul zone 17C as "rogue" and generates an
associated alert. See id. ,r,r 48-51. A key aspect of the invention is the
ability to identify and exclude a locomotive's movements and actions in the
foul zone to prevent generating an alert by determining the locomotive's
movement direction and/or whether it moves under its own power. See
Spec. ,r,r 63---69, Figs. 8A-8D. Although this description informs our
understanding of the disputed limitation, it is not limiting.
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Turning to the rejection, we see no error in the Examiner's reliance on
Mian for at least suggesting this limitation. See Ans. 3--4, 15-16. As shown
in Mian's Figures 2A and 2B, Mian device 10 is mounted atop a parked
aircraft and monitors an area 32 around the aircraft to discern any targets of
interest within the area. Mian ,r,r 27-28. Various objects may move in or
out of the area 32 while the device monitors the area. Id. ,r 28. As shown in
Mian's Figure 2B reproduced below, the area includes two vehicles 34A,
34B and two humans 36A, 36B, and device 10 can detect and discriminate
these targets.
30~
FIG. 28
Surveillance
System
37
Detected vehicles and humans in Mian's Figure 2B
As shown above, vehicles 34A and 34B are shown as trucks that are
facing the front and rear of the aircraft, respectively. Given this illustrated
orientation, Mian at least suggests that these vehicle-based targets are
moving towards the front and the rear of the aircraft, respectively,
particularly in light of Mian's accompanying description regarding tracking
movement of those targets within the area 32. See Mian ,r,r 29 (noting that a
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target is any type of object moving within area 32, and the target can be
tracked as it moves within that area), 30 (describing analysis performed for
approaching targets). Detecting the presence of these targets, then, would
be based at least partly on their approach direction with respect to the
aircraft, namely towards the front and rear of the aircraft, respectively, as
shown in Figure 2B.
In addition, Mian notes that objects may move into area 32 during
monitoring, and the system can determine, among other things, an
approaching human target's manner of walking. Mian ,r,r 28, 30. Mian,
then, at least suggests that detecting the presence of human targets in area 32
would be based at least partly on a cause of their movement into that
restricted zone, namely by walking. See id. Similarly, ordinarily skilled
artisans would understand that detecting the presence of vehicular targets in
area 32 would be based at least partly on a cause of their movement into that
restricted zone, namely by, among other things, the motive power of the
vehicles themselves, driving the vehicles into the zone, etc.
Given these teachings and suggestions, along with those of Kengo and
Yun, we agree with the Examiner that the cited prior art at least suggests
basing the presence of an alert condition on the target's movement direction
within a restricted zone and/or a cause of the target's movement into that
zone as claimed. Appellants' arguments regarding Kengo's and Mian's
alleged shortcomings in this regard (App. Br. 10-11; Reply Br. 2-3) are not
commensurate with the scope of the claim and are unavailing in light of the
cited references' collective teachings for the reasons noted above.
We also see no error in the Examiner's reason to combine the
references as proposed. In the rejection, the Examiner concludes that it
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would have been obvious to combine Yun's teachings with those ofKengo
to obtain positional measurements in real time. Ans. 3. The Examiner also
concludes that it would have been obvious to modify the Kengo/Yun system
in light of Mian to detect intruders based on captured images----even during
periods of obfuscation. Ans. 4. A key aspect of the Examiner's
combinability rationale is that the references use image analysis to identify
objects. See Ans. 16.
As noted previously, Mian's system not only tracks and identifies
moving targets within a restricted zone as they approach the front and rear of
an aircraft in Figure 2B, but the system also identifies particular features and
characteristics of those targets when they are sufficiently close. See Mian
,r,r 28-30. Given this functionality that at least suggests considering (1) a
target's movement direction within a restricted zone ( e.g., from the front and
rear), and (2) a cause of the target's movement into that zone (e.g., walking)
as noted previously, we see no reason why such teachings could not be
applied to the Kengo/Yun image-based intruder detection system as the
Examiner proposes to, among other things, enhance that system by
identifying particular additional features of the targets based at least partly
on their movement direction and cause of that movement. Such an
enhancement uses prior art elements predictably according to their
established functions-an obvious improvement. See KSR Int 'l Co. v.
Teleflex, Inc., 550 U.S. 398, 417 (2007).
Appellants' contention that such a modification would allegedly
adversely impact Kengo 's system operation due to unnecessary processing
or not generating alerts (App. Br. 12) is speculative and unsubstantiated on
this record. Mere lawyer argument and conclusory statements that are
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unsupported by factual evidence are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also Enzo Biochem, Inc.
v. Gen-Probe, Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) ("Attorney
argument is no substitute for evidence."). Nor does Appellants' contention
persuasively rebut the Examiner's proposed combination that is supported
by articulated reasoning with at least some rational underpinning to justify
the Examiner's obviousness conclusion for the reasons noted above.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 4, 5, 7-11, and 14 not argued separately with
particularity.
THE REJECTION OVER KENGO, YUN, MIAN, AND MIAN2
We also sustain the Examiner's rejection of independent claim 15.
Final Act. 8-11; Ans. 17-19. Claim 15 recites, in pertinent part: ( 1) plural
classification tracks that each include a foul region defined by a mechanism
located between the tracks' first and second sides for halting movement of a
rail vehicle and a switch for merging the classification track with another
classification track on the second side; (2) a set of cameras, where each
camera has a field of view that includes the mechanism and switch for each
track; (3) a computer system configured to monitor the foul region for each
track; and ( 4) responsive to evaluating that a rail vehicle is at least partially
located within the foul region, determining a presence of an alert condition
that is based on at least one of (a) the rail vehicle's movement direction
within the restricted zone, or (b) a cause of the rail vehicle's movement into
the restricted zone.
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As a preliminary matter, our emphasis on the word "the" underscores
that, unlike claim 1, there is no antecedent basis for "the restricted zone," but
rather the claim recites determining whether a rail vehicle is within a foul
region. Although we presume that the recited restricted zone refers to the
foul region based on their similar contexts, we nonetheless leave to the
Examiner to consider whether this inconsistency renders the claim indefinite
under 35 U.S.C. § 112(b) after this opinion.
Turning to the rejection, the Examiner cites Mian2 for teaching
limitation (1) above that recites the plural classification tracks and their
respective foul regions. Ans. 10-11, 18. As shown in Mian2's Figure 9
reproduced below, classification yard 100 includes incoming tracks 102 that
receive incoming trains, where these tracks are fed into a single line that
includes a "hump" that enables rail vehicles to roll into bowl area 106. Mian
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102
-~
100~~
' t
i 30 i
i-,
-'
FIG. 9
Control Center
110
Classification yard 100 in Mian2's Figure 9
As shown above, Mian2 's system includes instrumentation
emplacements 13A, 13B that acquire data for rail-vehicle components, such
as the wheels, as they move along line 104. Mian2 ,r 88. To be sure, this
monitoring system detects possible fault conditions with respect to rail-
vehicle components-not intruders. See Mian2 ,r,r 86-88. And Mian2's
monitoring system is located adjacent a single track in classification yard
100--not plural tracks.
Nevertheless, given Mian2's fundamental teaching of locating a
monitoring system adjacent a track in a classification yard to monitor areas
in the track's vicinity, we see no reason why such a teaching could not be
applied to plural classification tracks in that yard to also monitor areas in the
vicinity of those tracks-a predictable result. To the extent that Appellants
contend that such an enhancement would have been uniquely challenging or
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otherwise beyond the level of ordinarily skilled artisans, there is no
persuasive evidence on this record to substantiate such a contention. See
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007).
Although Mian2 's monitoring system detects possible fault conditions
with respect to rail-vehicle components-not intruders-we nonetheless see
no error in the Examiner's reliance on Mian2 for the limited purpose for
which it was cited, namely merely to show that locating a monitoring system
adjacent a track in a classification yard to monitor areas in the track's
vicinity is known in the art, and applying the Kengo/Yun/Mian monitoring
system to monitor areas in the vicinity of classification tracks would have
been at least an obvious variation. See Ans. 10-11, 18. Notably, familiar
items may have obvious uses beyond their primary purposes, and often
ordinarily skilled artisans can fit multiple references' teachings together like
puzzle pieces, as is the case here. See KSR Int 'l Co. v. Teleflex, Inc., 550
U.S. 398, 420 (2007). That is, the Examiner's rejection of claim 15 is not
based solely on Mian2, but rather the collective teachings of Kengo, Yun,
Mian, and Mian2. Therefore, Appellants' arguments regarding Mian2's
individual shortcomings in this regard (App. Br. 13; Reply Br. 5) do not
show nonobviousness where, as here, the rejection is based on the cited
references' collective teachings. See In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986).
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That Mian2's Figure 9 shows that monitoring devices 13A 4 are
located between a point where incoming tracks 102 are merged and the
hump's upward incline well before its crest 105 at least suggests that the
monitored areas are those in the track's vicinity between this merge and the
upward incline-the latter at least being capable of halting a non-powered
rail vehicle's movement. Therefore, defining the recited foul region in the
Examiner's proposed combination with respect to these elements (including
the associated mechanism and switch) would have been at least an obvious
variation, particularly in view of Mian's teaching in paragraph 19 that the
level of detail, level of analysis, and operating range of the monitoring
device's imaging device can be selected and vary depending on the
application.
Nor are we persuaded of error in the Examiner's reliance on Mian in
combination with the other references for at least suggesting basing the alert
condition's presence on at least one of (1) a rail vehicle's movement
direction within a restricted zone, or (2) a cause of the rail vehicle's
movement into that zone for the reasons noted previously. See Ans. 9--10.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 15, and claims 6, 13, 16, and 19--21 not argued separately with
particularity.
4 Although Mian2 refers to instrumentation emplacements 13A and 13B in
paragraph 88, Mian2's Figure 9 nevertheless refers to only numeral 13A for
the emplacements located on both sides of line 104.
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THE OTHER OBVIOUSNESS REJECTIONS
We also sustain the Examiner's obviousness rejections of claims 2, 3,
12, 17, and 18. Ans. 6-8, 13-14. Because these rejections are not argued
separately with particularity, we are not persuaded of error in these
rejections for the reasons previously discussed.
CONCLUSION
The Examiner did not err in rejecting claims 1-21 under§ 103.
DECISION
We affirm the Examiner's decision to reject claims 1-21.
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).
AFFIRMED
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