Ex Parte Talbot et al

Board of Patent Appeals and Interferences

Oct 21, 2009

10890037 (B.P.A.I. Oct. 21, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte NICHOLAS C. TALBOT, MARK E. NICHOLS,
GARY L. CAIN, and JAMES M. JANKY
____________________

Appeal 2009-002273
Application 10/890,037
Technology Center 3600
____________________

Decided: October 21, 2009
____________________

Before WILLIAM F. PATE, III, STEFAN STAICOVICI, and
KEN B. BARRETT, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Nicholas C. Talbot et al. (Appellants) seek our review under 35
U.S.C. § 134 of the final rejection of claims 1-19. Claim 20 has been
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
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SUMMARY OF THE DECISION
We AFFIRM.

THE INVENTION
Appellants’ claimed invention pertains to a combination of laser and
global navigation satellite (GPS) systems for position tracking and machine
control. Spec. 1, para. [0001]. Claim 1, reproduced below, is representative
of the subject matter on appeal.
1. A system for determining position, comprising:
a laser transmitter that projects at least one laser beam
that rotates about a generally vertical axis,
a GPS receiver for determining position, the GPS
receiver having a GPS antenna,
an optical sensor for receiving the laser beam, said
optical sensor being coaxial with, and at, or displaced a small
distance from, the phase center of said GPS antenna, and
a device receiving signals from the GPS receiver and
signals from the optical sensor to determine the position of the
sensor and the receiver therefrom, said device utilizing signals
received from the optical sensor to improve the estimate of
position based on said signals from said GPS receiver.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Anderson US 5,848,485 Dec. 15, 1998
Nichols US 6,433,866 B1 Aug. 13, 2002
Ohtomo US 2003/0137658 A1 July 24, 2003

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The following Examiner’s rejections are before us for review:
1. Claims 1, 2, 5, 6, 9, 10, 13-16, and 19 are rejected under 35
U.S.C. § 102(e) as being anticipated by Ohtomo;
2. Claims 3, 7, 11, and 17 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Ohtomo and Nichols; and
3. Claims 4, 8, 12, and 18 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Ohtomo and Anderson.

ISSUES
Appellants’ independent claims 1, 5, 9, 15, and 19 recite a device or a
microprocessor to determine a position from GPS and optical (laser) signals.
The Examiner found that Ohtomo discloses the claimed device or
microprocessor by teaching a machine control system in which the
machine’s horizontal position (location on the X- and Y-axes) is provided by
a GPS system and the elevation (location on the Z-axis) is provided by a
laser system. See Ans. 3-5, 7. Appellants argue that the inventions recited
in the independent claims differ from Ohtomo’s system. See, e.g., App. Br.
7. Appellants appear to contend that the claimed invention requires that the
GPS system provides the estimated position in all three coordinate
dimensions. E.g., id. Thus, the first issue on appeal is:
Have Appellants shown that the Examiner erred in finding that
Ohtomo discloses the position determining device or microprocessor recited
in the independent claims?
Additionally, the Examiner concluded that the subject matter of
dependent claims 4, 8, 12, and 18 is unpatentable because it would have
been obvious to use a least squares approximation, as taught by Anderson, in
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the system of Ohtomo. Ans. 6. Appellants argue that Anderson’s system is
not similar to the claimed system, and that one would not have been led to
apply a least squares analysis to data from both the GPS and laser systems.
E.g., App. Br. 16. Thus, the second issue is:
Have Appellants shown that the Examiner erred in concluding that it
would have been obvious to use a least squares approximation as called for
in claims 4, 8, 12, and 18?

FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence.
1. An ordinary meaning of the word “facilitate” includes “[t]o
render easier the performance of (an action), the attainment of (a result); to
afford facilities for, promote, help forward (an action or process).” OXFORD
ENGLISH DICTIONARY (2nd ed. 1989).
2. Appellants’ Specification does not explicitly define the scope of
the claim phrase “to facilitate the determination of said machine position.”
However, the Specification’s Summary of the Invention states in this regard:
Each mobile unit equipped with a combination laser detector
and global navigation satellite antenna uses the data from both
the laser system and the GPS system to improve its position
determination capabilities. The signals received from said laser
detector are used to facilitate the determination of the position
of the mobile unit based on the signals from the global
navigation satellite antenna.
Spec. 2, para. [0005].
3. Ohtomo discloses a control system for a bulldozer, utilizing a
rotary laser apparatus 151 and optical sensor 154 to measure elevation, and a
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GPS receiver 510 (which is provided with signal processor 654) for
determining the horizontal two-dimensional position. Ohtomo, paras.
[0002], [0170], [0171]. Both the optical sensor and the GPS antenna may be
attached to the body of the machine. Id., paras. [0171], [0179]. The system
has a controller 650 that includes an arithmetic operation unit 651 and a
memory 652. Id., para. [0170], fig. 28. The desired altitude of the ground
level relative to the horizontal two-dimensional (X and Y) coordinates is
stored in the memory in advance. Id., para. [0176]. The machine’s
horizontal position data (X1, Y1) from the GPS signal processor 654 and the
actual (as opposed to desired) elevation data (H1) from the optical sensor
154 are input to the arithmetic operation unit 651. See id., para. [0176], fig.
28. The arithmetic unit calculates the height of the bulldozer blade relative
to the desired ground level at the machine’s horizontal position. Id., para.
[0176]. Based on this calculation, the arithmetic operation unit provides a
control command to effect the required movement of the blade. Id., para.
[0177].
4. Anderson discloses a system and method utilizing a laser
transceiver and reflectors to determine the position of an earthmoving
excavator bucket on the end of an articulated arm. See Anderson, col. 1,
ll. 7-14; col. 19, ll. 55-57; fig. 1. Anderson teaches the use of the least
squares method during the performance of the setup procedure for the
system so as to minimize inaccuracies due to joint clearances. Id., col. 19,
l. 55 – col. 20, l. 10; see also App. Br. 16. Anderson further teaches that:
It has been found desirable to calculate unknown installation
specific parameters using the least square method. The use of
the least square method helps to eliminate the risk of incorrect
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setup results, because bad setup results can easily be detected
and rejected by using this method.
Id., col. 19, ll. 59-64.

PRINCIPLES OF LAW
During examination of a patent application, pending claims are given
their broadest reasonable construction consistent with the specification. In
re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969); In re Am. Acad. of Sci.
Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). It is the Appellants’
burden to precisely define the invention, not that of the United States Patent
and Trademark Office. In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997)
(citing 35 U.S.C. § 112, ¶ 2). Appellants have the opportunity to amend the
claims during prosecution, and broad interpretation by the Examiner reduces
the possibility that the claim, once issued, will be interpreted more broadly
than is justified. Prater, 415 F.2d at 1404-05.
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987) (citations omitted).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007) (quoting 35 U.S.C. § 103). “[I]f a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
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that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill. Id. at 417.

ANALYSIS
The rejection of claims 1, 2, 5, 6, 9, 10, 13-16, and 19 under 35 U.S.C.
§ 102(e) as being anticipated by Ohtomo
Appellants argue the rejected claims under five subheadings, each
corresponding to an independent claim. For each subheading, we select the
independent claim as the representative claim, and the dependent claims
grouped therewith stand or fall with the respective independent claim.
37 C.F.R. § 41.37(c)(1)(vii) (2009).
As Appellants readily admit, Ohtomo discloses a machine control
system in which the machine’s position in the horizontal plane (the X-axis
position and the Y-axis position) is determined from the output of the GPS
system, and the machine’s elevation (the Z-axis position) is determined from
the output of the laser receiver. App. Br. 5-6; see also Fact 3. Appellants,
however, argue that the claimed invention processes the data significantly
different than does Ohtomo’s system. See, e.g., App. Br. 7.
Claims 1 and 2
Claim 1 recites:
a device receiving signals from the GPS receiver and signals
from the optical sensor to determine the position of the sensor
and the receiver therefrom, said device utilizing signals
received from the optical sensor to improve the estimate of
position based on said signals from said GPS receiver.
Appellants appear to argue that the claim requires the laser system and
the GPS receiver to both provide position estimate source data for all three
coordinate dimensions (X-, Y-, and Z-axes). App. Br. 7. Appellants argue
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that, in the claimed invention, “[t]he position estimate in all three
dimensions derived from the GPS system output is enhanced using signals
from the optical sensor.” Id. However, Appellants’ arguments are not
commensurate with the language of claim 1. The claim language does not
recite the requirement of three coordinate dimensions and does not require
that either the laser system or the GPS receiver provide a location estimate in
all three dimensions. The claim merely requires a device utilizing laser
signals to improve the position estimate based on GPS signals. As the
Examiner explains, Ohtomo uses GPS to estimate the machine’s location in
space (its position in the horizontal X-Y plane) and uses the laser system to
improve that position estimate by adding the elevation component (the Z-
axis position). Ans. 7; see Fact 1. Thus, Ohtomo’s system satisfies the
pertinent limitation in that it has a device (the arithmetic operation unit in the
controller) using optical sensor signals (from the laser system) to improve
the position estimate based on signals from the GPS system.
Appellants also argue that, in Ohtomo’s system, the outputs of the
GPS and the laser system are never combined to produce position data.
App. Br. 7. We disagree with this reading of Ohtomo because the arithmetic
unit combines the GPS and laser data to determine the position in all three
coordinate positions. Fact 1.
Appellants have not persuaded us of error in the rejection of claim 1,
and we accordingly affirm the rejection of claims 1 and 2 as anticipated by
Ohtomo.
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Claims 5 and 6
Claim 5 recites:
a device on the machine, receiving a signal from the GPS
receiver and a signal from the optical sensor, to determine the
position of the machine from a combination of all of said
signals and for providing a control signal.
Appellants argue that Ohtomo does not disclose combining GPS and
laser signals to provide a control signal. This argument is not persuasive as
we have found that Ohtomo’s arithmetic operation unit calculates the
location of the bulldozer blade (in three dimensions) relative to the desired
ground level from the combination of laser and GPS signals, and provides a
control signal for appropriate movement of the blade. Fact 3. We affirm the
rejection of claims 5 and 6.
Claims 9, 10, 13, and 14
Claim 9 recites:
a device on the machine, receiving signals from the GPS
receiver and signals from the optical sensor, to determine the
position of the machine therefrom, said device utilizing said
signals received from said optical sensor to facilitate the
determination of said machine position based on said signals
from said GPS receiver.
Appellants again appear to argue that the claim language requires that
the GPS system provide the machine’s position in all three dimensions. See
App. Br. 10. However, the claim does not mention three dimensions or state
that all three dimensions must come from the GPS system. Rather, the claim
merely requires a device using the laser system signals “to facilitate the
determination of said machine position” based on GPS signals. Appellants’
Specification does not explicitly define the scope of this quoted phrase, but
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suggests that laser signals are utilized to facilitate the position determination
when they are used to improve a position determination based solely on the
GPS signals. See Fact 2; see also Fact 1 (an ordinary meaning of
“facilitate” is to help forward a process). Ohtomo’s system improves the
GPS-determined position (location in the horizontal plane) by the addition of
the elevation component from the laser signals. Fact 3. Thus, Ohtomo
discloses the recited feature.
Appellants have not persuaded us that the Examiner erred in rejecting
claim 9 as anticipated by Ohtomo, and we affirm the rejection of claims 9,
10, 13, and 14.
Claims 15 and 16
Claim 15 recites:
a device on the machine, receiving a signal from the GPS
receiver and a signal from the optical sensor, to determine the
position of the machine from a combination of all of said
signals and for providing a control signal.
Appellants contend that Ohtomo’s signals are not combined, but are
processed separately. App. Br. 11. This contention is unpersuasive in that
Ohtomo’s arithmetic unit utilizes data from both the GPS and laser systems
to determine the blade position. Fact 3. Accordingly, we affirm the
rejection of claims 15 and 16.
Claim 19
Claim 19 recites:
a microprocessor, responsive to said first data [from a global
navigation satellite receiver that includes an antenna] and said
second data [from an optical sensor], configured to determine
an estimate of the position of said receiver and said antenna, in
which said second data is combined with said first data before
determination of said estimate of position.
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Appellants argue that, in Ohtomo’s system, “the GPS receiver and the
optical sensor signals are not combined, but rather are processed separately,”
and that the claim language does not encompass such a system. App. Br. 11.
The claim requires a microprocessor configured to combine the laser
data and the GPS data before determining the estimated position. While
Ohtomo’s system does process the GPS signal (at signal processor 654 in the
GPS receiver 510) prior to outputting the X and Y location data to the
arithmetic unit, that unit receives inputs from both the GPS and laser
systems as a precursor to calculating the location in three dimensions. Fact
3. In other words, data from the GPS system and data from the laser system
are combined before the determination of the improved, three dimensional
estimate of the position. Thus, we do not find Appellants’ argument to be
persuasive, and we affirm the rejection of claim 19.
The rejection of claims 3, 7, 11, and 17 under 35 U.S.C. § 103(a) as being
unpatentable over Ohtomo and Nichols
As an initial matter, we note that Appellants consistently incorrectly
refer to the secondary reference for this rejection as Anderson, rather than
Nichols. See App. Br. 5, 11-14. Because Appellants correctly identify
Nichol’s patent number (US 6,433,866) in the several headings directed to
this rejection, we understand the references to Anderson to be unintended
errors.
Each of the claims subject to this rejection depend from one of the
independent claims subject to the previous rejection. Although Appellants
address each of the rejected claims 3, 7, 11, and 17 under separate headings,
Appellants’ arguments are the same – that Nichols does not correct the
purported defect of Ohtomo as argued in the context of the first rejection.
See App. Br. 11-15. For the reasons set forth above, Appellants have not
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demonstrated that Ohtomo has such a defect in need of correction. Because
Appellants do not present any other argument regarding these claims, it then
follows that Appellants have not shown error in the rejection of claims 3, 7,
11, and 17 as obvious over Ohtomo and Nichols, and we affirm that
rejection.
The rejection of claims 4, 8, 12, and 18 under 35 U.S.C. § 103(a) as being
unpatentable over Ohtomo and Anderson
Rejected claims 4, 8, 12, and 18 depend directly from independent
claim 1, 5, 9, or 15, respectively, and further recite the utilization of a least
squares approximation to determine the most likely position based on signals
from the optical sensor and the GPS receiver. Similar to the previous
rejection, Appellants address each of the rejected claims under separate
headings, but make the same two arguments for each claim. See App. Br.
15-20.
First, Appellants again argue that the secondary reference (Anderson
in this rejection) does not correct the previously argued purported defect in
the underlying Ohtomo-based rejection of the respective independent claim.
E.g., App. Br. 15. As Appellants have not persuaded us of error in the
Examiner’s rejection of the independent claims, Appellants’ first argument
is not persuasive.
Second, Appellants argue that Anderson’s system is not similar to the
claimed invention (apparently because Anderson is directed to an “all laser-
controlled excavator”), and that a person of ordinary skill would not be led
to apply a least squares analysis of Anderson to data produced by both GPS
and laser systems. E.g., App. Br. 16. Appellants have not persuaded us that
the Examiner erred in concluding that “[i]t would have been obvious to use
the least squares approximation because this is a common means of
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approximating a position and adds no new or unexpected results.” Ans. 6.
Anderson indicates that the least squares method was well known and
teaches the desirability of using the method to minimize inaccuracies. See
Fact 4. Utilizing a least squares approximation in Ohtomo’s system amounts
to the application of a known technique to a known device in order to
achieve the predictable result of improved accuracy, and would have been
obvious to one having ordinary skill in the art.
Appellants have not shown error in the Examiner’s rejection of claims
4, 8, 12, and 18 as being obvious over Ohtomo and Anderson.

CONCLUSIONS
Appellants have not shown that the Examiner erred in finding that
Ohtomo discloses the position determining device or microprocessor recited
in the independent claims.
Appellants also have not shown that the Examiner erred in concluding
that it would have been obvious to use a least squares approximation as
called for in claims 4, 8, 12, and 18.

DECISION
The decision of the Examiner to reject claims 1-19 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED

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