Ex Parte VAN DEN BERG et al

Patent Trial and Appeal Board

May 12, 2016

13008127 (P.T.A.B. May. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/008, 127 01/18/2011
32894 7590 05/16/2016
HOYNG ROKH MONEGIER LLP
Rembrandt Tower 31st Floor
Amstelplein 1
Amsterdam, 1096 HA
NETHERLANDS
FIRST NAMED INVENTOR
Karel VAN DEN BERG
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.
04132.0189.USPO 8176
EXAMINER
BENEDIK, JUSTIN M
ART UNIT PAPER NUMBER
3647
NOTIFICATION DATE DELIVERY MODE
05/16/2016 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):
amdocketing@hoyngrokh.com
ronny.amirsehhi@hoyngrokh.com
david.owen@hoyngrokh.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAREL VAN DEN BERG and
HELENA GERALDA MARIA VIJVERBERG
Appeal2014-001160
Application 13/008, 127
Technology Center 3600
Before NEALE. ABRAMS, BEYERL Y M. BUNTING, and
GORDON D. KINDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2014-001160
Application 13/008, 127
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
23. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
CLAIMED SUBJECT MATTER
The claims are directed to dairy animal treatment system. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A dairy animal treatment system comprising:
a controllable robot arm for moving an animal treatment
device to a part of a dairy animal, wherein the robot arm is
connected to a control device, and
an object recognition device connected to the control
device, the object recognition device comprising:
a controllable light source,
a first 3 D-sensor with a two-dimensional arrangement of
optical sensors, and
a signal processing device for processing signals supplied
by the optical sensors, wherein the object recognition device
further comprises a second 3D-sensor with a two-dimensional
arrangement of optical sensors, wherein the second 3D-sensor is
positioned at a distance from the first 3D-sensor, wherein a first
central line of a first image field of the first 3D-sensor and a
second central line of a second image field of the second 3D-
sensor enclose a first angle unequal to 0°, wherein the first and
second central lines diverge and enclose a second angle which is
smaller than a maximum angle of view of the first and the second
image field.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Schiller us 5,245, 177 Sept. 14, 1993
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Application 13/008, 127
Stein et al.
Van Den Berg et al.
US 6,055,930 May 2, 2000
("Stein")
US 2007 /0245964 Al Oct. 25, 2007
("Van Den Berg1")
REJECTION
Claims 1-23 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Van Den Berg, Schiller, and Stein.
OPINION
Appellants argue independent claims 1 and 11 2 together, focusing on
language common to them. Dependent claim 15 is the only other claim
separately argued. We select claim 1 as the representative claim, and claims
1-14 and 16-33 will stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Van Den Berg discloses a dairy animal
treatment system having the required elements of claim 1, including inter
alia a controllable robot arm, an object recognition device, and a signal
processing device. Final Rej. 2 (citing Van Den Berg, 14:41--44, 14:53-58,
Figure 1, Figure 6). As the Examiner acknowledges, Van Den Berg does not
disclose a controllable light source, and relies on the teachings of Schiller
regarding a first and second sensor positioned at a horizontal distance from
one another, wherein the field of view of the sensors intersect at a non-zero
1 The Examiner referred to this reference as "Berg." We use the full last
name instead of the Examiner's abbreviation.
2 We note that in the Claims Appendix it appears all but claim 1 have been
mis-numbered. Where the Appendix shows claims 12, 13, 14 etc. it should
refer instead to "2, 3, 4, etc." In this way the quoted rejection of claim 15
(Appeal Br. 16) and the Appellants' argument concerning claim 15 align
with the subject matter of the claim identified as claim 25 in the Claims
Appendix.
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Appeal2014-001160
Application 13/008, 127
angle. Id. at 3 (citing Figure 1 ). The Examiner reasons that it would have
been obvious "to incorporate the second sensor of Schiller into the invention
of Berg in order to provide a more accurate position signal." Id. Noting that
Van Den Berg and Schiller do not teach specifically that
the first and second central lines of the sensors diverge and
enclose a second angle smaller than the maximum angle of
view of the first and second image field in the horizontal plane,
or at least equal to a maximum angle of view of the first and
second image field, such that the farthest point that falls in both
the first and second image field is at least 0.1 m from the first or
second sensor
(id.), the Examiner contends that it would have been obvious to one of skill
in the art
to have the first and second central lines of the sensor diverge
and enclose a second smaller angle than the maximum angle of
view of the first and second image field in the horizontal plane,
and have the intersection angle at least equal to a maximum
angle of view of the first and second image field such that the
farthest point that falls in both the first and second image field
is at least O. lm from the first or second sensor
(id. at 3--4) because discovering the optimum or workable ranges only
involves routine skill in the art. Id. The Examiner further reasoned that
such modification would "optimize the area the sensors need to cover in
order to successfully find and relay the position of the object to the processor
accounting for the position of the dairy animal." Id. at 4.
Noting that Van Den Berg and Schiller do not teach a controllable
light source, the Examiner relied on Stein to disclose this feature. According
to the Examiner, it would have obvious to one of skill in the art to
incorporate the controllable light source of Stein into the dairy animal
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Application 13/008, 127
treatment system of Van Den Berg "to help the sensor more easily trace a
teat of the dairy animal as well as provide light for someone observing or
supervising the process." Id. Appellants concede that the addition of a light
source from Stein to the Van Den Berg/Schiller combination is supported by
the rationale provided by the Examiner. Appeal Br. 16.
The Examiner also acknowledges that Van Den Berg, Schiller and
Stein do not teach that the cover projects at least 1 OOmm from the sensor,
and reasons that it would have obvious to one of skill in the art to have the
cover project from the sensor, "to provide enough covering to protect the
sensor from external conditions." Id. at 5.
A claim is unpatentable under§ 103(a) if the differences between the
claimed subject matter 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). As correctly noted
by Appellant, the question of obviousness is resolved on the basis of
underlying factual determinations, including: (1) the scope and content of
the prior art; (2) any differences between the claimed subject matter and the
prior art; (3) the level of skill in the art; and (4) where in evidence, so-called
secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18
(1966). Appellants assert that the differences between the claimed subject
matter and the prior art have not been accurately determined, that the level
of skill in the art has not been determined, and that the Examiner has failed
to provide a convincing line of reasoning why one of ordinary skill in the art
would have found the claimed invention obvious. App. Br. 5.
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Application 13/008, 127
Level of Skill.
Appellant asserts that "[t]he Examiner has not made any
determination as to the level of ordinary skill in the pertinent art" (Id. at 12),
and impermissibly used hindsight (id.). Appellants' argument concerning
the Examiner's failure to establish the level of skill in the art is not
convincing. It is well settled that the absence of specific findings on the
level of skill in the art does not give rise to reversible error where the prior
art itself reflects an appropriate level and a need for testimony is not shown.
Okajima v. Bourdeau, 261F.3d1350, 1355 (Fed. Cir. 2001) (citing Litton
Indus. Prods., Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed. Cir.
1985)). All the prior art relied on relates to locating objects within a field of
view using various sensors. Indeed, Appellants' own Specification
incorporates W02005/094565 which "describes per sea distance
determination system which uses two cameras and triangulation." Spec. 8.
As such, the prior art relied on, as well as that cited by Appellants,
demonstrates that those of ordinary skill in the art would look to practices
outside the dairy barn for solutions to the hidden teat problem confronting
Appellants. Appellants' further argument regarding the use of hindsight is
not persuasive because, as discussed infra, the Examiner's reasoning
includes rational underpinnings to support the legal conclusion of
obviousness. 3
3 "Any judgment on obviousness is in a sense necessarily a reconstruction
based upon hindsight reasoning, but so long as it takes into account only
knowledge which was within the level of ordinary skill at the time the
claimed invention was made and does not include knowledge gleaned only
from applicant's disclosure, such a reconstruction is proper." In re
McLaughlin, 443 F.2d 1392 1313-1314.
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Differences Between the Claimed Invention and the Prior Art.
Appellants argue that, as recited in claim 1, the "object recognition
device" on the one hand and the two "3D-sensors" on the other hand are
separate items, and that the rejection must fail because the rejection refers to
the same element (8) in the reference as meeting both claim limitations.
Appeal Br. 13. We are not persuaded of error because the two 3D-sensors in
the claims on appeal are claimed as part of the object recognition device, i.e.,
"an object recognition device ... comprising: ... a first 3-D sensor ... , and
... a second 3D-sensor .... " Given that the claim is directed to an object
recognition device that includes 3-D sensors, it is entirely appropriate to rely
on a reference that shows the same arrangement. We have not been apprised
of error by this argument.
Next, Appellants challenge the combination of Schiller with Van Den
Berg. Appeal Br. 13-15. Appellants first argue that Schiller does not teach
three-dimensional sensors and therefore cannot be combined with Van Den
Berg. Appeal Br. 14. Appellants' argument is unavailing because the
Examiner's findings only relied on Schiller for teaching two optical sensors
arranged with overlapping fields of view. Specifically, the Examiner found:
The Examiner notes that the primary reference teaches the sensor
(8) as being a camera which is a 3D optical sensor. The
modification using Schiller does not change the type of sensor
used but merely uses the same arrangement which is a two
dimensional arrangement. Therefore the combination clearly
teaches a 3D sensor and the obviousness of arranging sensors in
a 2D plane to intersect in order to map the overlapping area.
Final Act. 5---6. Schiller was not relied on as teaching the use of three-
dimensional sensors, and accordingly Appellants' argument is not
persuasive.
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Appeal2014-001160
Application 13/008, 127
Appellants argue that the Examiner "fails to provide a convincing line
or reasoning in the proposed modifications of the applied references to arrive
at the conclusion that the claimed invention is obvious." Appeal Br. 15.
According to Appellants, the combination of Schiller, Van Den Berg, and
Stein would not have been obvious because of the extensive modifications
necessary to the base reference, Van Den Berg, to arrive at the claimed
invention. Id. Appellants' arguments are not convincing, as Appellant has
not squarely addressed the entirety of the Examiner's findings and proposed
combination. For example, Appellants argue: "In the case of the claimed
invention the 3D sensors are depth-image sensors." Appeal Br. 13; Reply
Br. 14. Yet the claim limitation at issue requires only first and second "3D-
sensor[ s] with a two-dimensional arrangement of optical sensors."
Therefore, Appellants' argument is not commensurate with the scope of
claims 1and11. See In re Self, 671F.2d1344, 1348(CCPA1982)
(limitations not appearing in the claims cannot be relied upon for
patentability ).
Appellants' further argument that the sensors disclosed by Schiller fail
to solve the deficiencies of Van Den Berg because Schiller does not disclose
3D sensors "which discern objects along a depth dimension" (Appeal Br. 16)
is likewise not convincing. Appellants contend that because Schiller does
not provide a more accurate position signal than Van Den Berg, one would
not be motivated to combine the teachings of Schiller and Van Den Berg.
The Examiner found that one of ordinary skill in the art would know that
"anytime there is [sic] multiple sensors sensing the same element and
triangulating the element the reading will always be more accurate. Even if
the readings are the same, the crosscheck and reference from a different
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Appeal2014-001160
Application 13/008, 127
location will make the reading more reliable and exact. The fact that
appellant has recognized other advantages which would flow naturally from
following the suggestion of the prior art cannot be a basis for patentability
when the differences would otherwise be obvious." Answer 4. Appellants
contest this, arguing that triangulation requires 3-D sensors, that Schiller
uses two sensors only to define a specific detection region, and therefor that
there is no triangulation in Schiller. Reply 16.
We agree with the Examiner that triangulation is taught by Schiller.
Schiller's two detectors define a detection region at a specific range from the
detectors, and adjusting the angles between the sensors' central lines and the
spacing between them would alter the size and location of Schiller's
detection region. See Schiller Fig. 4 and 6:33--41 (mechanical arrangement
for changing the relative orientation of its detection units so the dimensions
of the detection region can be altered.) In any event, Schiller was relied on
only to show that it would have been obvious to add a second sensor to Van
Den Berg, Final Act. 4, and not for the particular sensors used. As the
Examiner noted, other advantages achieved by using two 3-D sensors, if not
made part of the claim, do not lend patentability. Appellants argue that
Schiller contracts the detection region by adding a second detector and
"[t]his is the opposite of expanding a detection region, which is one of the
objectives of the invention." Reply 17. This objective is not reflected in the
claim and so has no bearing on patentability. See In re Self, supra.
Appellants argue that it would have been necessary to configure the
signal processing device of Van Den Berg to manage the signals from two 3-
D sensors. Appeal Br. 16. But claims 1 and 11 require only "a signal
processing device for processing signals supplied by the optical sensors."
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Application 13/008, 127
Van Den Berg teaches a signal processing device for a single 3D sensor, and
that any kind of sensor can be used. Van Den Berg i-f 103. While work may
have been required to add a second sensor, the claims at issue only require
"a signal processing device for processing signals supplied by the optical
sensors."
KSR requires that the Examiner supply some reasoned basis for his or
her conclusions. Here the Examiner finds that Schiller shows that it is
"obvious to use multiple sensors to develop a more accurate measurement as
well as provide a detection area" (Ans. 4), and concludes that the reason to
combine the teachings of Van Den Berg and Schiller is to provide a more
accurate distance measurement. The fact that Schiller does not show 3D
sensors is irrelevant, since Schiller discloses using two optical sensors
spaced apart for detecting an object. The Examiner reasonably explains how
modifying Van Den Berg by adding a second 3D sensor (two sensors being
taught by Schiller) and arranging them to point as taught by Schiller would
provide improved accuracy.4
Appellants argue that the rejection of claims 1 and 11 fails to
acknowledge that the signal processing device must be configured to
combine the signals from two 3D-sensors to determine a position of a
4 Appellants' Reply argues that Schiller is not from an analogous art. We do
not consider arguments raised for the first time in a Reply that could have
been raised earlier. Such arguments are deemed waived. See Optivus Tech.,
Inc. v. Ion Beam Appl'ns S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) ("[A]n
issue not raised by an appellant in its opening brief ... is waived.") (citations
and quotation marks omitted); see also Fuji Photo Film Co. v. Jazz Photo
Corp., 394 F.3d 1368, 1375 n.4 (Fed. Cir. 2005) (Arguments first raised in
the reply brief and not properly raised in the opening brief are not
addressed.).
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Application 13/008, 127
detected object. Appeal Br. 16. The Examiner finds that Van Den Berg
teaches a signal processing device for processing signals supplied by the
sensor (Final Act. 2) and that it would have been obvious to one of ordinary
skill in the art at the time of the invention to incorporate the second sensor of
Schiller into the invention of Van Den Berg in order to provide a more
accurate position signal. Final Act. 3. Appellants argue that Schiller does
not provide a more accurate position signal than Van Den Berg, and so there
would be no motivation to combine the teachings of Van den Berg and
Schiller. Yet the Examiner proposed adding a second sensor of the Van Den
Berg type as taught by Schiller, not adopting the Schiller system in toto. See
Final Act. 5 ("The modification using Schiller does not change the type of
sensor used but merely uses the same arrangement which is a two
dimensional arrangement."). The Appellants' argument is not persuasive
because it is not directed to the combination and rationale provided by the
Examiner. Accordingly, Appellants do not apprise us of error.
Appellants' argue that the combination of Schiller and Van Den Berg
is not obvious without some rationale for modifying the signal processing
device of Van Den Berg to apply the necessary operations to the combined
signals from two 3D sensors. App. Br. 15, 16. Specifically, they argue that
their disclosure teaches that the object recognition device is configured to
determine distance with respect to one of the 3-D-sensors from luminance
signals supplied by both 3-D sensors. Id. This argument is not persuasive
because Appellants do not identify any claim language that is not satisfied
by the combined references. The claims do not require that position
information be determined from luminance signals. See In re Self, 671 F.2d
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Application 13/008, 127
at 1348 (limitations not appearing in the claims cannot be relied upon for
patentability).
Claim 15.
Appellants separately argue the patentability of dependent claim 15
which includes the limitations of claim 13 and independent claim 11. The
added limitations are:
wherein the distance at which the second 3-D-sensor is
positioned is a horizontal distance; and
wherein the distance between the first and second 3-D-
sensor and the angle are selected such that the farthest point that
falls both in the first and second image field is located at a
distance at least 0.1 m from the first or the second 3-D sensor.
Appellants' argument is that reliance on In re Aller, 220 F .2d 454
(CCPA 1955), is inappropriate because not all the parameters described in
the claim were known at the time of the claimed invention, as "Appellant
has shown that the combination of Van Den Berg and Schiller do [sic] not
disclose all claim features." Appeal Br. 17 (emphasis omitted). However,
as discussed above in connection with claim 1, Appellants' arguments do not
apprise us of error in the Examiner's proposed combination of Van Den
Berg, Schiller, and Stein. Having reviewed the entirety of the record and all
of the statements made therein, Appellant does not apprise us convincingly
of error in the decision of the Examiner to reject claims 1 and 15, and claims
2-14 and 16-23 fall therewith.
DECISION
For the above reasons, the Examiner's rejection of claims 1-23 is
affirmed.
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Application 13/008, 127
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) (2009).
AFFIRMED
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