Ex Parte Seitz

Board of Patent Appeals and Interferences

May 9, 2012

10620549 (B.P.A.I. May. 9, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/620,549 07/16/2003 Peter Seitz 13027.0043US01 8444
23552 7590 05/09/2012
MERCHANT & GOULD PC
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
EXAMINER
DICUS, TAMRA
ART UNIT PAPER NUMBER
1781
MAIL DATE DELIVERY MODE
05/09/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte PETER SEITZ
__________

Appeal 2010-005335
Application 10/620,549
Technology Center 1700
___________

Before BRADLEY R. GARRIS, ADRIENE LEPIANE HANLON, and
JAMES C. HOUSEL, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-005335
Application 10/620,549

2

A. STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134 from an Examiner’s
decision finally rejecting claims 1, 2, and 4-7.1 We have jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.
The subject matter on appeal is directed to an identification device that
produces an image of a pressure-distribution pattern wherein different peak
pressures have associated different colors. Claim 1, reproduced below, is
illustrative.
1. An identification device worn on a body of a person, the
identification device producing an image of a pressure-distribution
pattern obtained by sampling pressure during contact between a body
part of the person and a substantially solid object, wherein different
peak pressures at different points on the substantially solid object
from the contact between the body part and the substantially solid
object are represented in the image by a pressure-distribution pattern
arranged to correspond to the different points and having a plurality of
colors, wherein the different peak pressures have associated different
colors;
wherein the pressure-distribution pattern is obtained under a
foot during walking on the substantially solid object and the pattern is
configured to identify a shoe or a portion of a shoe worn by the
person.
Br., Claims Appendix.2

1 Claims 13-18 were cancelled in an amendment dated February 19, 2008. In the
Advisory Action dated May 7, 2010, the Examiner indicated that the amendment
would be entered for purposes of appeal.
2 Appeal Brief dated February 19, 2008.
Appeal 2010-005335
Application 10/620,549

3

The sole rejection on appeal is the rejection of claims 1, 2, and 4-7 under
35 U.S.C. § 103(a) as unpatentable over the combination of Floyd3 and Yamato.4
B. DISCUSSION
According to the Examiner, “Floyd teaches the concept of providing printed
pressure-distribution patterns, such as fingerprints, on items for identification
purposes.” Ans. 3.5 The Examiner finds that Floyd does not teach providing a
pressure-distribution pattern wherein different peak pressures have associated
different colors as recited in the claims on appeal. However, the Examiner finds
that Yamato teaches a pressure-distribution pattern of a foot and concludes that it
would have been obvious to one of ordinary skill in the art to modify the
identification device of Floyd with the pressure-distribution pattern disclosed in
Yamato. Ans. 3-4.
The Appellant argues that the fingerprint formed in Floyd is not a pressure-
distribution pattern and Yamato does not teach or suggest that the disclosed
pressure-distribution pattern is useful for identification purposes. Thus, the
Appellant contends that the combined teachings of Floyd and Yamato would not
have suggested the claimed identification device. Br. 10-11.
The Appellant’s argument is persuasive of reversible error. The
identification device disclosed in Floyd provides a fingerprint via an “inkless”
fingerprint system. Floyd, col. 2, ll. 16-30. However, the Examiner has failed to
demonstrate, through argument or evidence, that a fingerprint is a pressure-
distribution pattern. See Floyd, col. 1, ll. 53-57 (describing a fingerprint as a series

3 US 5,454,600 issued October 3, 1995.
4 US 5,885,229 issued March 23, 1999.
5 Examiner’s Answer dated May 12, 2008.
Appeal 2010-005335
Application 10/620,549

4

of lines that form an image); see also Br. 10 (fingerprints have “built-in lines,
whorls and other unique patterns that are not pressure dependent.”). Likewise, the
Examiner has failed to establish that the pressure-distribution pattern disclosed in
Yamato was known to be useful for identification purposes at the time of the
Appellant’s invention. Thus, absent the Appellant’s disclosure, there would have
been no reason to modify the identification device of Floyd with the pressure-
distribution pattern of Yamato as proposed by the Examiner. See In re Warner,
379 F.2d 1011, 1017 (CCPA 1967) (rejections based on § 103(a) must rest on a
factual basis with these facts being interpreted without hindsight reconstruction of
the invention from the prior art).
Based on the foregoing, the § 103(a) rejection of claims 1, 2, and 4-7 is
reversed.
C. DECISION
The decision of the Examiner is reversed.

REVERSED

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