GERBER TECHNOLOGY INC (PATENT OWNER) et al.

Patent Trials and Appeals Board

Dec 13, 2021

2021005310 (P.T.A.B. Dec. 13, 2021)

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.
90/014,462 02/24/2020 10338564 711759002520 7976
29540 7590 12/13/2021
DAY PITNEY LLP
One Stamford Plaza
263 Tresser Boulevard, 7th Floor
Stamford, CT 06901
EXAMINER
HUGHES, DEANDRA M
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
12/13/2021 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GERBER TECHNOLOGY

Appeal 2021-005310
Reexamination Control 90/014,462
Patent 10,338,564 B2
Technology Center 3900
____________

Before JOHN A. JEFFERY, ERIC B. CHEN, and CYNTHIA L. MURPHY,
Administrative Patent Judges.

MURPHY, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant1 appeals from the Examiner’s rejection of claims 1–31
under 35 U.S.C. § 103. We REVERSE.2

1 The Appellant is the “applicant” as defined by 37 C.F.R. § 1.42. “Gerber
Technology LLC is the real party in interest.” (Appeal Br. 1.)
2 We have jurisdiction under 35 U.S.C. §§ 6(b), 134(b), and 306.
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BACKGROUND
A request for ex parte reexamination of U.S. Patent No. 10,338,546
(“Patent”) was filed on February 24, 2020, and assigned Reexamination
Control No. 90/014,462. The Patent “relates to the remote management of
nesting strategies and nesting operations for cutting of leather and other
irregular materials.” (Patent 1:8–10.)
“Cutting of irregularly shaped parts” from “within a web of material”
requires “arranging individual parts strategically.” (Patent 1:12–14.)
Specifically, the individual parts “can be placed or packed in relationship
with one another in such a fashion as to optimize the use of the material.”
(Id. at 1:15–17.)
“In order to provide desirable nesting strategies,” the Appellant
develops “virtual cutting patterns for cutting the work-piece into a plurality
of product pieces.” (Patent 5:11–15.) During this development, there is an
adjustment of “one or more of a dozen nesting variables such as rotation
angle, size bias, shape bias, perimeter buffer, and the like for any given
part.” (Id. at 5:16–20.) “Each unique set of nesting variable responses
constitute one nesting strategy.” (Id. at 5:20–21.)
Thus, “[a] ‘nesting strategy’ refers to an optimized arrangement of
parts to be cut from the workpiece.” (Appeal Br. 2.)
ILLUSTRATIVE CLAIM
1. A system for processing a work-piece comprising a sheet of
material into pieces, the system comprising:
a production environment including a facility for handling the
work-piece, the production environment configured for
collecting data characterizing the work-piece and for
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subsequently cutting the work-piece into a plurality of
individual pieces according to a nesting strategy; and
a development environment including at least one computer
separate from the production environment, the development
environment configured for receiving characterization data
from the production environment, and, based on a plurality
of nesting variables relating to each of the individual pieces
including at least one of shape bias, size bias, and perimeter
buffer, developing a nesting strategy for cutting a plurality of
individual pieces from the work-piece and providing the
nesting strategy to the production environment without
affecting production;
wherein developing the nesting strategy comprises:
developing bifurcatedly a first nesting strategy and a second
nesting strategy from an initial nesting strategy by
applying the plurality of nesting variables;
iteratively changing the first nesting strategy and the second
nesting strategy and comparing the first nesting strategy to
the second nesting strategy to identify a preferred nesting
strategy providing the best yield or processing time
thereby providing a new initial nesting strategy for further
development; and
selecting the preferred nesting strategy.
REJECTION3
The Examiner rejects claims 1–31 under 35 U.S.C. § 103 as
unpatentable over Campbell4 in view of Matlab.5 (Final Act. 8.)

3 The Examiner’s rejection under 35 U.S.C. § 112 (see Final Act. 7) has
been withdrawn (see Advisory Act. 2).
4 US 9,157,182 B2, issued October 13, 2015.
5 Stuart Kozola, Improving Optimization Performance with Parallel
Computing, https://www.mathworks.com/company/newsletters/articles/
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Reexamination Control 90/014,462
Patent 10,338,564 B2

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ANALYSIS
Claims 1, 18, and 24 are the independent claims on appeal, with the
rest of the claims on appeal depending therefrom. (See Appeal Br., Claims
App.)
Independent claims 1, 18, and 24 recite limitations involving a
“work-piece,” “a plurality of individual pieces,” “nesting variables relating
to each of the individual pieces,” and a “nesting strategy” for cutting a
plurality of individual pieces from the work piece. (Appeal Br., Claims
App.) There is no dispute that these limitations require “optimizing ‘nesting
strategies’ by orienting the individual shapes of the parts of the product to be
cut from a work piece.” (Final Act. 9.)
There is also no dispute that the primary reference, Campbell, does
not disclose this claimed requirement because it “teaches optimizing
‘nestings’ by rotation of the whole workpiece.” (Final Act. 9.) Indeed, the
Examiner finds that Campbell discloses “templates” in which “specific
individual parts of a piece of furniture” are “fixedly arranged in the
template.” (Id. at 10.) Thus, the Examiner acknowledges that one of
ordinary skill in the art would need to look beyond Campbell regarding
“optimiz[ing] the position of the individual parts within the template.” (Id.)
The Examiner relies upon Matlab to teach “arranging individual parts
within a template to be used on a leather hide.” (Final Act. 11.) According
to the Examiner, Matlab teaches “improving optimization performance with
parallel computing.” (Id.) And, according to the Examiner, such parallel

improving-optimization-performance-with-parallel-computing.html
(“Matlab”).
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Reexamination Control 90/014,462
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computing would result in “a more granular analysis of how to best arrange
individual parts to be cut from a leather hide.” (Id.)
We are persuaded by the Appellant’s argument that the Examiner does
not sufficiently show that the proposed combination of the prior art would
result in the claimed invention. (See Appeal Br. 7.) As correctly contended
by the Appellant, Matlab “discloses nothing with respect to nesting variables
in cutting pieces from a workpiece.” (Id.) More to the point, the Examiner
does not adequately address why one of ordinary skill in the art would infer,
from the teachings of Matlab, a granular analysis akin to the arrangement of
individual pieces. If anything, the Examiner’s proposed combination of the
prior art would seem to result in the parallel computing of Campbell’s
optimization of the rotation of the template (on which the individual pieces
are fixed arranged).
Thus, on the record before us, we cannot sustain the Examiner’s
rejection of independent claims 1, 18, and 24, and the claims depending
therefrom.6
CONCLUSION
Claims
Rejected
35 U.S.C. Reference(s)/
Basis
Affirmed Reversed
1–31 § 103 Campbell,
Matlab
1–31
REVERSED

6 The Examiner’s further findings and determinations with respect to the
dependent claims do not compensate for the above-discussed shortcoming in
the rejection of the independent claims. (See Final Act. 18–23, 32–33,
45–46.)
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Patent 10,338,564 B2

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PATENT OWNER:
Day Pitney LLP
One Stamford Plaza
263 Tresser Boulevard, 7th Floor
Stamford, CT 06901

THIRD PARTY REQUESTER:
Workman Nydegger
60 East South Temple
Suite 1000
Salt Lake City, UT 84111