Ex Parte Reinpoldt et al

Patent Trial and Appeal Board

Feb 13, 2018

13074305 (P.T.A.B. Feb. 13, 2018)

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.
13/074,305 03/29/2011 Michael A. Reinpoldt 0121799 9531
73325 7590 02/15/2018
Matthew G. McKinney
Allen, Dyer, Doppelt & Gilchrist, P.A.
255 South Orange Avenue
Suite 1401
Orlando, EL 32801
EXAMINER
JEBARI, MOHAMMED
ART UNIT PAPER NUMBER
2482
NOTIFICATION DATE DELIVERY MODE
02/15/2018 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):
mmckinney @ allendyer.com
creganoa @ allendyer. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL A. REINPOLDT, WILLEM H. REINPOLDT III, and
RICHARD J. SALEM
Appeal 2017-009507
Application 13/074,3051
Technology Center 2400
Before JOSEPH L. DIXON, SCOTT B. HOWARD, and SCOTT E. BAIN,
Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Non-Final
Rejection of claims 1—7, 9—11, 13—15, 17—19, and 22, which constitute all of
the claims pending in this application. Although the action appealed from is
a not a final rejection, we have jurisdiction pursuant to 35 U.S.C. §§ 6(b)
and 134 because the application has been twice rejected. Ex parte Lemoine,
46 USPQ2d 1420, 1423 (BPAI 1994) (precedential).
We affirm.
1 Appellants identify Thermal Matrix USA, Inc. as the real party in interest.
App. Br. 2.
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Application 13/074,305
THE INVENTION
The disclosed and claimed invention is directed to “a method and
system for detecting concealed objects using a handheld thermal imager.”
Spec. 11.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method to detect concealed objects using a handheld
thermal imager comprising a display, a processor and a
memory, which are integrated into the handheld thermal
imager, the memory having a formatting module, an isolating
module, a detecting module, and a filtering module, the method
comprising:
capturing thermal sensor data from the handheld thermal
imager;
transmitting the thermal sensor data to the processor;
formatting the thermal sensor data using image
processing algorithms stored in the formatting module;
isolating the subject of interest from the background
scene in the thermal sensor data to display thermal imagery of
the subject of interest;
detecting a relative deviation in a temperature within a
discrete area on the subject of interest using the detecting
module to suggest a size and location of the concealed object on
the subject of interest;
filtering the thermal sensor data within the discrete area
using the image processing algorithms of the filtering module
only when the relative deviation in the temperature within the
discrete area indicates a presence of the concealed object;
displaying a visual variable boundary around the discrete
area, wherein the visual variable boundary changes in size and
location based on the size of the concealed object and location
of where the concealed object is on the subject of interest in
order to assist an operator to recognize the presence of the
concealed object; and
displaying filtered thermal imagery within the visual
variable boundary only when the relative deviation in the
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temperature within the discrete area indicates the presence of
the concealed object.
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Burger et al. US 5,275,364
Gulati US 2007/0118324 Al
King et al. US 7,304,297 B1
Reinpoldt US 2009/0060272 Al
REJECTIONS
Claim 11 stands rejected under pre-AIA 35U.S.C. § 112 second
paragraph as being indefinite. Final Act. 3^4.
Claims 1—7, 11, 13, 15, 19, and 22 stand rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over Gulati in view of Reinpoldt.
Final Act. 5—10.
Claims 9, 10, 17, and 18 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Gulati in view of Reinpoldt and Burger.
Final Act. 10—11.
Claim 14 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Gulati in view of Reinpoldt and King. Final Act. 11—12.
Jan. 4, 1994
May 24, 2007
Dec. 4, 2007
Mar. 5, 2009
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellants.
We are not persuaded by Appellants’ arguments regarding the pending
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claims. Instead, we incorporate herein and adopt as our own: (1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken (Non-Final Act. 3—12), and (2) the reasons and rebuttals set
forth in the Examiner’s Answer in response to Appellants’ arguments (Ans.
14—16). We incorporate such findings, reasons, and rebuttals herein by
reference unless otherwise noted. However, we highlight and address
specific findings and arguments for emphasis as follows.
Section 112 Rejection
The Examiner concludes that the claim limitations “a formatting
module” and “an isolating module” as recited in claim 11 are governed by
pre-AIA 35 U.S.C. § 112, paragraph 6. Non-Final Act. 3. The Examiner
further concludes that the modules are software per se and, as such, the
Specification must provide “the algorithm that the computer uses to perform
the claimed specialized functions.” Id.', see also Ans. 14. Because the
Specification does not provide the algorithm, the Examiner concludes the
claim is indefinite. Non-Final Act. 3 (citing Halliburton Energy Services v.
M-l LLC, 514 F.3d 1244, 1256 n.7 (Fed. Cir. 2008)).
Appellants do not dispute that the claim limitations are governed by
pre-AIA 35 U.S.C. § 112, paragraph 6. App. Br. 7. Instead, Appellants
argue that “[t]o the extent that [section 112, paragraph 6] is invoked, the
Specification states that ‘ [tjhose of skill would further appreciate that the
various . . . modules ... described in connection with the embodiments
disclosed herein may be implemented as electronic hardware, computer
software, or combinations of both.’” Id. (citing Spec. Tflf 36—37). Therefore,
Appellants argue, “the modules recited in Claim 11 are directed to hardware
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or the combination of hardware and software, and the corresponding
structure has been identified in the Specification.” Id.
Because the recited modules are means-plus-fimction terms as
described by paragraph 6 of section 112, we must “construe the disputed
claim term by identifying the ‘corresponding structure, material, or acts
described in the specification’ to which the claim term will be limited.”
Robert Bosch, Robert Bosch, LLC v. Snap—On Inc., 769 F.3d 1094, 1097
(Fed. Cir. 2014) (quoting Welker Bearing Co. v. PHD, Inc., 550 F.3d 1090,
1097 (Fed. Cir. 2008)). If an applicant “employs means-plus-fimction
language in a claim, [the applicant] must set forth in the specification an
adequate disclosure showing what is meant by that language.” Blackboard,
Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1382 (Fed. Cir. 2009) (quoting In
re Donaldson Co., 16 F.3d 1189, 1195 (Fed. Cir. 1994) (enbanc)). “If the
specification does not contain an adequate disclosure of the structure that
corresponds to the claimed function, the patentee will have ‘failed to
particularly point out and distinctly claim the invention as required by the
second paragraph of section 112,’ which renders the claim invalid for
indefmiteness.” Id. (quoting Donaldson, 16 F.3d at 1195).
“[I]n a means-plus-fimction claim ‘in which the disclosed structure is
a computer, or microprocessor, programmed to carry out an algorithm, the
disclosed structure is not the general purpose computer, but rather the
special purpose computer programmed to perform the disclosed algorithm.’”
Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333
(Fed. Cir. 2008) (quoting WMS Gaming, Inc. v. International Game
Technology, 184 F.3d 1339, 1348 (Fed. Cir. 1999)). In the case of
computer-implemented functions, our reviewing court requires that the
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specification “disclose an algorithm for performing the claimed function.”
SeeNetMoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1367 (Fed. Cir.
2008). The specification can express the algorithm “in any understandable
terms including as a mathematical formula, in prose, ... as a flow chart, or
in any other manner that provides sufficient structure.” Finisar Corp. v.
DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008) (citation omitted).
If the algorithm is not disclosed in the specification, the claim is
unpatentable as indefinite. See, e.g., Aristocrat, 521 F.3d at 1338; IVMS
Gaming, 184 F.3d at 1349
Appellants have not persuaded us that the Examiner erred. Instead,
we agree with and adopt the Examiner’s determination. Although the
Specification indicates that the recited modules “may be implemented as
electronic hardware,” the Specification goes on the state that it may also be
implemented as “computer software, or combinations of both” software and
hardware. Accordingly, the modules are broad enough to encompass either
software, as the Examiner concludes (Non-Final Act. 3), or a combination of
hardware and software, as Appellants concede (App. Br. 7). Because both
implementation as software or a combination of software and hardware
require the disclosure of an algorithm and Appellants have not identified
where the algorithm is located in the Specification, the claim is indefinite.
Section 103 Rejection
Appellants argue the Examiner erred in finding Gulati teaches
“detecting a relative deviation in a temperature within a discrete area on the
subject of interest using the detecting module to suggest a size and location
of the concealed object on the subject of interest,” as recited in claim 1. See
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App. Br. 7—9; Reply Br. 2—3. More specifically, Appellants argue Gulati
teaches using “previously stored empirical data on emissivity levels which is
a different method than recited in Claim 1.” App. Br. 7 (emphasis omitted);
see also id. at 8—9 (“Rather Gulati is relying on comparing thermal [data] to
previously stored empirical data, which is a different method than the
method recited in Appellant’s Claim 1.”); Reply Br. 2, 3 (arguing that Gulati
paragraph 45 does not teach detecting a relative deviation). According to
Appellants, the claimed method “uses a pre-determined relative difference
between a temperature of a subject and a temperature of a background scene
of the thermal sensor data.” App. Br. at 8.
The Examiner finds Gulati teaches the disputed limitation. Non-Final
Act. 6 (citing Gulati || 45, 65); Ans. 15—16 (citing Gulati || 45, 83). More
specifically, the Examiner finds Gulati teaches that a
differential emissivity calculation is performed to compare the
pixels of one area (e.g., the area representing the explosive
material) against pixels of adjacent area (e.g., the area
representing human body not covered by the explosive
material) to infer the presence of the camouflaged object on a
human body) to suggest a size (area of concealed object, such
as explosive material as disclosed in paragraph [0045] lines 23-
29) and location of the concealed object on the subject of
interest.
Non-Final Act. 6 (citing Gulati || 45, 65); see also Ans. 15—16.
During examination of a patent application, a claim is given its
broadest reasonable construction “in light of the specification as it would be
interpreted by one of ordinary skill in the art.” In re Am. Acad, of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (internal citations and quotations
omitted). There is a presumption that a claim term carries its ordinary and
customary meaning. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed.
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Cir. 2007). An applicant may rebut this presumption, however, by acting as
his own lexicographer, providing a definition of the term in the specification
with “reasonable clarity, deliberateness, and precision.” See In re Paulsen,
30 F.3d 1475, 1480 (Fed. Cir. 1994). In the absence of such a definition,
limitations are not to be read from the specification into the claims. In re
Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). “[Although the
specification often describes very specific embodiments of the invention, we
have repeatedly warned against confining the claims to those
embodiments. . . . [Cjlaims may embrace ‘different subject matter than is
illustrated in the specific embodiments in the specification.’” Phillips v.
AWHCorp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (enbanc) (citations
omitted).
Applying the broadest reasonable interpretation of the disputed
limitation, we found the claim broad enough to cover any method of
detecting a relative deviation in a temperature, including using comparisons
with previously stored empirical data. Appellants have not identified
anything in the claim language that limits how the relative deviation in a
temperature can be detected. Because Appellants’ arguments are not
commensurate with the scope of the claims, they are unpersuasive. See In re
Self, 671 F.2d 1344, 1348 (CCPA 1982).
Instead, we agree with and adopt the Examiner’s findings. Although
Appellants quote from part of paragraph 44, Appellants omit the final
sentence, which states: “The differential emissivity between a human body,
a background black body, and a camouflaged object acting as a black body
of interest can be exploited.” As that sentence makes clear, Gulati works by
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comparing temperature deviations. Additionally, paragraph 45 further
describes how Gulati detects a difference (deviation) in temperatures:
In some implementations, additive black body algebra may be
implemented to infer the presence of the camouflaged object on
a human body. The camouflaged object is a target object to be
detected. When the detection system detects an emissivity
level, the detected emissivity level is automatically processed to
determine if the emissivity level corresponds to an emissivity
level produces by a combination of harmless blackbodies (e.g.,
a person wearing a sweater and carrying a mobile phone) or an
emissivity level produces by a combination of blackbodies that
include explosive material (e.g., a person wearing a jacket and
concealing explosive material underneath the jacket).
Gulati 145. Therefore, we are not persuaded by Appellants’ argument that
the Examiner erred.
Accordingly, we sustain the Examiner’s rejection of claim 1, along
with the rejection of claims 11 and 19, which are argued on the same
grounds, and dependent claims 2—7, 13, 15, and 22, which are not argued
separately.
With respect to dependent claims 9, 10, 14, 17, 18, Appellants merely
contend that because the additional references used in the rejections of these
claims (Burger and King) do not cure the shortcomings of the other
references applied against claims 1 and 11, the Examiner failed to make a
prima facie case of obviousness for these claims. App. Br. 10. Because we
determine that the rejection of claims 1 and 11 are not erroneous for the
reasons discussed above, we sustain the rejections of these claims for the
same reasons.
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DECISION
For the above reasons, we affirm the Examiner’s decisions rejecting
claims 1—7, 9—11, 13—15, 17—19, and 22.
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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