Ex Parte Voronka et al

Board of Patent Appeals and Interferences

Aug 7, 2012

10958457 (B.P.A.I. Aug. 7, 2012)

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.
10/958,457 10/05/2004 Nestor Voronka CYB-06803/03 5665
25006 7590 08/08/2012
GIFFORD, KRASS, SPRINKLE,ANDERSON & CITKOWSKI, P.C
PO BOX 7021
TROY, MI 48007-7021
EXAMINER
FITZPATRICK, ATIBA O
ART UNIT PAPER NUMBER
2624
MAIL DATE DELIVERY MODE
08/08/2012 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 NESTOR VORONKA and CHARLES J. JACOBUS
____________

Appeal 2010-008000
Application 10/958,457
Technology Center 2600
____________

Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and
CARL W. WHITEHEAD, JR., Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
The Patent Examiner rejected claims 1-12. The Appellants appeal
therefrom under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
INVENTION
The following claim illustrates the invention on appeal:
1. A system for tracking the movements of an animate or
inanimate body, comprising:
a virtual reality simulator depicting a three-dimensional
space;
a plurality of optical tags supported at different positions
on the body of a user of the simulator;
a tag controller supported on the body to activate the
optical tags in an on/off illumination sequence; and
a position sensor disposed remotely from the body,
including:
a plurality of cameras, each outputting electrical signals
corresponding to the location of the optical tags, and
processing circuitry for receiving the signals from the
cameras and determining the positions of the tags in the three-
dimensional space utilizing triangulation techniques.

REJECTIONS
Claim 2 stands rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite for failing to particularly point out and distinctly claim the
subject matter which Appellants regard as the invention.
Claims 1-12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Oh (U.S. Patent No. 5,616,078) and
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Henry Fuchs, et al., Acquisition and Modeling of Human Body Form Data”
SPIE Vol. 166, Applications of Human Biostereometrics (NATO), 95-102
(1978) (hereinafter “Fuchs”).
Claims 1-12 stand rejected on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claims 1-12 of
U.S. Patent No. 6,801,637 B2 (Voronka) in view of Oh.

ANALYSIS
Claim 2 - Indefiniteness Rejection
The Examiner notes that “[c]laim 2 recites the limitation ‘the
synchronization circuitry’. The Examiner concludes there is insufficient
antecedent basis for this limitation in the claim.” (Ans. 4).
Appellants do not dispute the Examiner’s conclusion. (App. Br. 3-4;
Reply Br. 4).
Therefore, we sustain the rejection of claim 2 under § 112, second
paragraph.
GROUPING OF CLAIMS
Based on the Appellants’ arguments, we decide the appeal of the
obviousness rejection of claims 1-12 on the basis of claim 7. See 37 C.F.R.
§ 41.37(c)(1)(vii).

Obviousness Rejection
A.
Issue: Under § 103, did the Examiner err in finding that the cited
references, either alone or in combination, would have taught or suggested
“processing circuitry for . . . determining the positions of the tags in the
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three-dimensional space utilizing triangulation techniques,” as required by
claim 1?
The Examiner finds:
Fuchs] teaches a tag controller supported on the body to
activate the optical tags in an on/off illumination sequence
(Fuchs]: page 100], para 3: “light sources can easily be
sequenced ... no physical connections ... the sequencer mounted
on top of the helmet to control the three tracking lights ...
monitor and guide the progress of the digitizing system”: Figs.
15 and 16; page 96], para 3: “light source is turned on in
sequence, with only a single light being on during anyone
measurement cycle. As points are measured by it, they could
be displayed ...”); and parallel processing circuitry operative to
activate all of the cameras on a simultaneous basis to determine
the position of each tag in the three-dimensional space utilizing
triangulation techniques (Fuchs]: page 96], para 1: “several
independent such sensors each detect a shadow from the same
light source”; page 2, para 5: “Each sensor is controlled by its
own microprocessor”; page 95], para 4: “triangulating
technique”).
(Ans. 7) (emphasis omitted).
The Examiner further finds:
The fact that the tag controller is claimed to be supported on the
body does not require wired connection with the tags. The
Fuchs reference explicitly states that the controller is supported
on the body (Fuchs]: page 100, para 3: “light sources can
easily be sequenced ... no physical connections ... the sequencer
mounted on top of the helmet to control the three tracking
lights . . . monitor and guide the progress of the digitizing
system”).
(Ans. 18) (emphasis omitted).
Appellants contend:
In the embodiment of Fuchs discussed on page 100 of the
reference, a user wears a helmet with three light sources
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allowing the system “to track the helmet’s position and
orientation in the room.” However, this information is used
only to register the gaze of the helmet wearer with the objects
presented on the head-mounted video cameras. There is no
mention of “triangulation techniques” in the section of the
reference. Although “triangulating technique” is mentioned on
page 95, the application is entirely different-namely, to gather
surface profile information and not position and orientation
information.
(Reply Br. 3).
Based on our review of the record, we find Appellant’ arguments
unpersuasive. For the limitation “determining the positions of the tags in the
three-dimensional space utilizing triangulation techniques,” (claim 1) the
Examiner relies on Fuchs’ three lights in the helmet as corresponding to the
claimed “tags.” (Ans. 7; Fuchs, Fig. 15). The Examiner finds that Fuchs
determines the positions of the tags (helmet lights – e.g., light sources or
light spots) (Fuchs, p. 100, paras 2-3). Fuchs’ page 100, paragraph 2 states
that the “three light sources on top of the helmet will allow our digitizing
system to track the helmet’s position.” Fuchs’ digitizing system includes the
arrangements described in Fuchs pages 95-96 and figures 4 and 6 that use a
triangulation technique to determine the position of a light source. The
Examiner finds (Ans. 7) that Fuchs uses a triangulating technique to
determine the location of the helmet lights (light sources) by citing to Fuchs’
teaching of using triangulation techniques to determine the position of the
light source(s). (See Fuchs, p. 95, para 4; p. 96, para 1, “location of the light
source”; Fig. 4).
Therefore, on this record, we are not persuaded of error regarding the
Examiner underlying factual findings and ultimate legal conclusion of
obviousness regarding the disputed limitation of “processing circuitry
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for . . . determining the positions of the tags in the three-dimensional space
utilizing triangulation techniques,” as recited in claim 1.
B.
Issue: Under § 103, did the Examiner err in finding that the
combination of cited references would have taught or suggested “[a] system
for tracking the movements of an animate or inanimate body” as required by
claim 7?
Appellants present the following contentions:

Appellants’ primary argument is that since Fuchs does not teach
optical body tracking, even if Oh and Fuchs were combined,
Appellants’ invention as claimed would not result.
(Reply Br. 1).
The Examiner disagrees:
Thus, it would have been obvious for one of ordinary
skill in the art at the time the invention was made to implement
the teachings of Fuchs] into Oh since Oh suggests a system for
tracking user motion by imaging attached light emitting
markers in general and Fuchs] suggests the use of a system for
tracking user motion by imaging attached light emitting
markers wherein the markers turn on sequentially in the
analogous art of image processing.
(Ans. 7).
As discussed above, we agree with the Examiner’s finding that Fuchs
teaches body tracking and “determining the position of the tags.” (Ans. 7).
We also observe that Fuchs’ page 100, paragraph 2 discloses that the “three
light sources on top of the helmet will allow our digitizing system to track
the helmet’s position.” Therefore, we are not persuaded of Examiner error
regarding the disputed limitation of “[a] system for tracking the movements
of an animate or inanimate body,” within the meaning of claim 7.
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C.
Issue: Under § 103, did the Examiner err in combining the cited
references?
The Examiner provides the following motivation:
It would have been obvious for one of ordinary skill in the art at
the time the invention was made to implement the teachings of
Fuchs] into Oh since sequentially firing the markers would
allow for the system to control the particular LED that is being
imaged at a particular time. This would simplify the detection
process. Furthermore, one of ordinary skill in the art at the time
the invention was made could have combined the elements as
claimed by known methods and, in combination, each
component functions the same as it does separately. One of
ordinary skill in the art at the time the invention was made
would have recognized that the results of the combination
would be predictable.
(Ans. 7-8).
Appellants present the following contentions:
The Examiner in this case has not persuasively explained
why a person of ordinary skill in the art would combine Oh and
Fuchs. The Examiner only states that the combination would
“allow for the system to control the particular LED that is being
imaged at a particular time ... to simplify the detection process.”
This does not provide any substantive reason for the
combination. In fact, sequencing tags and cameras may not
“simplify the detection process,” and may, in fact, complicate it
for the purposes of the intended application.
(App. Br. 7-8).
“[W]hen a patent ‘simply arranges old elements with each performing
the same function it had been known to perform’ and yields no more than
one would expect from such an arrangement, the combination is obvious.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (quoting Sakraida v.
AG Pro, Inc., 425 U.S. 273, 282 (1976)).
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Here, we find Appellant’ arguments unpersuasive. The Examiner
provides a motivation for combining the cited references. (Ans. 8).
Appellants do not assert or present evidence that “sequencing tags and
cameras” would not “simplify the detection process” to rebut the Examiner’s
finding.
We find the Examiner has provided sufficient articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness. See KSR, 550 U.S. at 418. We are of the view that Appellants’
claims represent no more than the predictable use of prior art elements
according to their established functions, and thus would have been obvious
to one of ordinary skill in the art. See KSR, 550 U.S. at 417 (“[W]hen a
patent ‘simply arranges old elements with each performing the same
function it had been known to perform’ and yields no more than one would
expect from such an arrangement, the combination is obvious.” (citing
Sakraida, 425 U.S. at 282)).
Moreover, we are not persuaded that combining the respective
familiar elements of the cited references in the manner proffered by the
Examiner would have been “uniquely challenging or difficult for one of
ordinary skill in the art” at the time of Appellants’ invention (see Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)
(citing KSR, 550 U.S. at 418)).
On this record, we are not persuaded that the Examiner erred in
combining the references under §103.

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D.
Issue: Did the Examiner err in finding that the combination of cited
references would have taught or suggested “parallel processing circuitry
operative to activate all of the cameras on a simultaneous basis to determine
the position of each tag,” as required by claim 7 (emphasis added)?
Appellants present the following contentions:
Fuchs has no “parallel processing circuitry.” Again the
Examiner engages in misinterpretation. According to the
Examiner, (Final OA, page 3), “independent sensors are
understood to have parallel processing.” Understood by whom?
“independent” and “parallel” are entirely different concepts. In
fact, to a person of “parallel” means “at the same time,”
whereas “independent” at least implies “at different times.”
(App. Br. 7).
The Examiner disagrees:
In response to Appellants’] arguments pertaining to
“parallel processing circuitry” (only present within independent
claim 7), “independent” does not imply at different times. The
word “independent” merely implies that there is no dependent
relationship. Page 96, paragraph 1 of Fuchs states “several
independent such sensors each detect a shadow from the same
light source”. Note that the light sources are sequenced such
that a single light source is flashed on at a time. Therefore, the
independent sensors must detect the shadow of the light source
at the same time when it is flashed on. Page 96, paragraph 5 of
Fuchs states that “[e]ach sensor is controlled by its own
microprocessor”. Therefore, independent processor-sensor
pairs operate in parallel to detect the shadow from the same
light source when it is flashed on.
(Ans. 19).
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On this record, we find Appellants’ argument unpersuasive. We
observe that Appellants do not provide a definition of “parallel processing
circuitry.”1 We agree with the Examiner’s findings above that Fuchs would
have taught or suggested the limitation at issue (Ans. 19). In particular, we
agree that the processor-sensor pairs operate in parallel (i.e., at the same
time) to detect the shadow from the same light source. (Ans. 19).
Therefore, we are not persuaded of Examiner error regarding the
disputed limitation of “parallel processing circuitry operative to activate all
of the cameras on a simultaneous basis to determine the position of each
tag,” within the meaning of claim 7 (emphasis added).

Nonstatutory obviousness-type double patenting rejection
Issue: Did the Examiner err in finding and concluding that Claims 1-
12 are unpatentable under nonstatutory obviousness-type double patenting
over claims 1-12 of Voronka in view of Oh?
Double Patenting
The doctrine of double patenting seeks to prevent the unjustified
extension of patent exclusivity beyond the term of a patent. The public
policy behind this doctrine is that:
The public should . . . be able to act on the assumption that
upon the expiration of the patent it will be free to use not only

1 Any special meaning assigned to a term “must be sufficiently clear in the
specification that any departure from common usage would be so understood
by a person of experience in the field of the invention.” Multiform
Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998).

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the invention claimed in the patent but also any modifications
or variants thereof which would have been obvious to those of
ordinary skill in the art at the time the invention was made,
taking into account the skill in] the art and prior art other than
the invention claimed in the issued patent.
In re Zickendraht, 319 F.2d 225, 232 (CCPA 1963) (Rich, J., concurring).
Double patenting results when the right to exclude granted by a first
patent is unjustly extended by the grant of a later issued patent or patents. In
re Van Ornum, 686 F.2d 937 (CCPA 1982).
Appellants contend:
“Voronka does not teach a virtual reality simulator
depicting a three-dimensional space; of a user of
the simulator.” (Final OA, bottom of page 5).
Appellants should not be forced to file a terminal
disclaimer based upon the following argument:
“The office provided arguments indicating that the
vast majority of the limitations present in the
claims of the instant application along with the
arguments a for [sic] why the few missing
limitations would be obvious.”]
It is Appellants’ position that the “few missing”
limitations are, in fact, the most important.
(App. Br. 8).
The Examiner relies on the combination of the prior patented claims
1-12 of Voronka and Oh to reject the claims. (Ans. 11-15). However,
Appellants have not presented arguments or evidence to rebut the
Examiner's findings. Mere attorney arguments and conclusory statements
that are unsupported by factual evidence are entitled to little probative value.
In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); 37 C.F.R. § 1.111(b); and Ex
parte Belinne, No. 2009-004693, slip op. at 7-8 (BPAI Aug. 10, 2009)
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(informative), available at
http://www.uspto.gov/web/offices/dcom/bpai/its/fd09004693.pdf

Therefore, on this record, we are not persuaded of Examiner error
regarding the nonstatutory obviousness-type double patenting rejection of
claims 1-12.

DECISION
We affirm the rejection of claim 2 under § 112, second paragraph.
We affirm the rejection under § 103(a) of claim 7 and that of claims 1-
6 and 8-12, which fall therewith.
We affirm the nonstatutory obviousness-type double patenting
rejection of claim 7 and that of claims 1-6 and 8-12, which fall therewith.
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(iv).

ORDER
AFFIRMED

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