Per Pelin et al.

Patent Trials and Appeals Board

Aug 12, 2021

2021000330 (P.T.A.B. Aug. 12, 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.
15/795,013 10/26/2017 Per Pelin 511062 6929
53609 7590 08/12/2021
REINHART BOERNER VAN DEUREN P.C.
2215 PERRYGREEN WAY
ROCKFORD, IL 61107
EXAMINER
LUU, TIFFANY KELLY
ART UNIT PAPER NUMBER
3669
NOTIFICATION DATE DELIVERY MODE
08/12/2021 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):
RockMail@reinhartlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PER PELIN and PAUL D. SALMON

Appeal 2021-000330
Application 15/795,013
Technology Center 3600
____________

Before BRUCE T. WIEDER, KENNETH G. SCHOPFER, and
AMEE A. SHAH, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
Appellant1 requests rehearing of the decision entered June 23, 2021
(“Decision”), which affirmed the Examiner’s rejection of claims 2–14.
Appellants contend that the Decision includes an undesignated new ground
of rejection and that we misapprehended the meaning of certain terms used
in the art. Request 2–3.2 As discussed below, we do not determine that the
Decision includes an undesignated new ground of rejection and we find no

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Johnson
Outdoors Inc. Appeal Br. 2.
2 Request for Rehearing under 37 C.F.R. § 41.52, filed June 28, 2021.
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point of law or fact that we overlooked or misapprehended in arriving at our
Decision.
DISCUSSION
Appellant first argues that our Decision sets forth an undesignated
new ground of rejection. Request 2. Specifically, Appellant notes that the
Decision states that “the depth of the body [of] water is itself an underwater
feature,” and Appellant asserts that this interpretation of depth is a change in
interpretation that the Examiner never suggested and led to a fundamental
change in the basis of the rejection of the claims such that the Decision
presents a new ground of rejection. Request 2–3. In support, Appellant
asserts that given this interpretation of depth, we “only needed to find ‘the
specific underwater features listed in the claim’ in Pelin, and not a teaching
or suggestion of the generation of a path along a selected underwater feature
contour.” Id. at 3. Appellant also asserts that this interpretation is
“repugnant to the ordinary and customary meaning and usage of ‘depth’ and
‘underwater features’ in the art and contrary to the broadest reasonable
interpretation of such terms in view [of] the present [S]pecification.” Id.
We are not persuaded that the Decision sets forth a new ground of
rejection. To the extent Appellant asserts that our reasoning is
fundamentally different than the Examiner’s and that the Examiner does not
suggest an interpretation of depth as an underwater feature, we disagree. In
the rejection, the Examiner states that “Salmon discloses generating a route
for a marine vessel based on selected depth contours as displayed on a
bottom contour chart, where the depth contours represent the bottom of the
body of water, therefore representing the underwater features of the bottom
of the body of water.” Final Act. 2. Appellant specifically acknowledges
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that the Examiner is “characterizing the depth as an ‘underwater feature.’”
Appeal Br. 6. Similarly, the Examiner finds in the Answer that “Salmon
discloses as recited in the claim where a sonar depth finder is programmed to
allow a user to select from one or more underwater feature contours,
specifically where the feature is depth.” Ans. 5.
Given these statements by the Examiner, we fail to see how our
statement regarding depth as an underwater feature is inconsistent with the
Examiner’s statements or represents an interpretation to which Appellant has
not had an opportunity to respond. We are also not persuaded that the
Decision somehow changed the scope of how Pelin was relied on in the
rejection. See Request 3. Rather, the rejection only relied on Pelin as
disclosing the functionality for creating a topographical chart including
particular underwater features as claimed and for providing the teaching that
knowledge of topographical information is useful for locating fish and
accurately navigating. See Final Act. 7–8. In affirming the rejection, we
rely on the same findings with respect to Pelin, and we are not persuaded
that our analysis changed the scope of the rejection.
Alternatively, Appellant argues that if “the differences between
‘depth’ and ‘underwater features’ are recognized and these terms are
properly construed in accordance with their ordinary and customary meaning
and usage in the art, and given the broadest reasonable interpretation of such
terms in view the present [S]pecification, this ground of rejection should be
reversed.” Appeal Br. 3. Yet, as discussed, the Examiner relied on the same
interpretation in the rejection as that provided in the Decision. Regarding
this interpretation, Appellant previously only argued that “[b]y
characterizing the depth as an ‘underwater feature,’ the Examiner has
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impermissibly broadened Salmon’s disclosure beyond what is explicitly
taught or suggested.” Appeal Br. 6. We considered this argument in the
Decision and found it unpersuasive. Decision 7. We consider Appellant’s
new arguments regarding this issue to be untimely. See 37 C.F.R.
§ 41.52(a)(1).
Next, Appellant argues that we misapprehended the difference
between charting and imaging in arriving at our decision. Request 3.
Appellant indicates that we based our finding that Pelin teaches charting
underwater features on Pelin’s Figure 7 and that our characterization of
Pelin’s Figure 7 was inaccurate. Id. at 4. Appellant asserts:
However, the Board appears to misapprehend that Pelin’s
Figure 7 and its associated description in paragraph [0048]
describes the use of a 360 degree sonar “imaging” system that
captures and displays sonar “imaging data 314” which shows
underwater “images” for a 360-degree area surrounding the boat
to indicate various underwater features or objects “imaged” from
the boat. Indeed, the following paragraph [0049] of Pelin
describes that the 360-degree sonar imaging data can be
“displayed simultaneously, for example overlaid, with charts or
topographical data previously stored in memory.”
Id. Appellant asserts that Pelin discloses a separate sonar mapping system
from the sonar imaging system used to create imaging data and that “[t]he
imaging system, however, is described only as being used to provide ‘a
picture-like image of the lake bed, river bed, or sea bed below and around
the boat.’” Id. (citing Pelin ¶¶ 33, 40). Appellant further states that Pelin
does not provide a “teaching or suggestion that such picture-like images,
such as shown in Figure 7 of Pelin, can be used in any way to generate any
contours that may be used for navigation.” Id. Appellant asserts that “the
‘sonar imaging data’ is not taught or suggested to contain information that
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may be used for navigation, unlike the ‘sonar data’ of the charting system,
and instead is only taught or suggested to provide ‘picture-like images’ that
may be displayed alone or overlaid on a topographical chart.” Id.at 4–5.
Appellant concludes that once the difference between the charting system
and the imaging system of Pelin is correctly apprehended, “the Board will
agree that there is no teaching or suggestion in Pelin of the generation of
contours around any of the features shown in the picture-like images of
Figure 7 or in paragraph [0048] of Pelin relied upon by the Examiner to
reject the claims of the application.” Id.
We do not agree that we misapprehended any distinction between
charting and imaging in Pelin in our Decision. First, we note that our
Decision only specifically discusses Figure 7 of Pelin in response to
Appellant’s argument that the Examiner mischaracterized the reference.
Decision 8 (citing Appeal Br. 6). In the Decision, we simply agreed with the
Examiner’s statement that Figure 7 shows a ship’s path around certain
underwater features. Id. (“Pelin’s Figure 7 plainly shows a ship with a path
that goes around features including a ship wreck and other features. See
Pelin ¶ 48”).
Further, to the extent we found that Pelin teaches charting underwater
features, Appellant does not apprise us of any error in this finding. In the
Decision we found:
Pelin discloses a sonar mapping system that is configured
to obtain and display a topographical chart of water in real time.
See Pelin, Abstract. Pelin discloses that such a topographical
chart may provide visual information regarding water depth,
hardness, and other underwater features. See id. ¶¶ 8, 9, 48.
Pelin also discloses that it is advantageous to anglers to have
detailed charts of bodies of water to inform them of the best
locations for catching particular types of fish. Id. ¶ 5. Thus,
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Pelin teaches charting underwater features, including those
claimed, and explains why charting such features may provide a
benefit to the user.
Decision 6. This is consistent with the Examiner’s findings regarding Pelin.
See Final Act. 7–8. Appellant indicates that our findings are based on Pelin
Figure 7, presumably because we reference paragraph 48 of Pelin, which
discusses Figure 7. Request 4. However, Appellant appears to take our
reference to paragraph 48 out of context. Notably, our findings rely not only
on paragraph 48, but also specifically on paragraphs 8 and 9 of Pelin. See
Decision 6. Here, Pelin discloses that “topographical data includes one or
more contour lines indicative of water depth” or “bathymetric tints
indicative of a water depth” and that such data is related to underwater
features. Pelin ¶¶ 8, 9. Although paragraph 48 refers to image data
overlaying the chart, it similarly shows data “to help indicate various
underwater features or objects.” Pelin ¶ 48. This paragraph also specifically
indicates that the chart is updated to include the imaging data. Thus, even if
charting and imaging might initially be distinct, Pelin discloses that the
charts are updated to include the imaging data. Given this disclosure, we
disagree with Appellant’s assertion that “there is no teaching or suggestion
in Pelin of the generation of contours around any of the features shown in
the picture-like images of Figure 7 or in paragraph [0048] of Pelin relied
upon by the Examiner to reject the claims of the application.” Request 5.
CONCLUSION
We have carefully reviewed the original Decision in light of
Appellant’s request, but we find no point of law or fact that we overlooked
or misapprehended in arriving at our decision. Therefore, Appellant’s
request for rehearing is denied.
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Outcome of Decision on Rehearing:
Claims 35 U.S.C.
§
Reference(s)/Basis Denied Granted
2–14 103 Salmon, Pelin 2–14

Final Outcome of Appeal after Rehearing:

Claims 35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
2–14 103 Salmon, Pelin 2–14

DENIED