UNIVERSITY OF CENTRAL FLORIDA RESEARCH FOUNDATION, INC.

Patent Trials and Appeals Board

Mar 2, 2022

2021000841 (P.T.A.B. Mar. 2, 2022)

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. 15/597,259 05/17/2017 Debashis CHANDA 33652 (0125299) 2454 75269 7590 03/02/2022 ADD+G - UCF 1135 East State Road 434, Suite 3001 Winter Springs, FL 32708 EXAMINER SMITH, MAURICE C ART UNIT PAPER NUMBER 2877 NOTIFICATION DATE DELIVERY MODE 03/02/2022 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): creganoa@allendyer.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DEBASHIS CHANDA and ABRAHAM VAZQUEZ- GUARDADO Appeal 2021-000841 Application 15/597,259 Technology Center 2800 Before BEVERLY A. FRANKLIN, CHRISTOPHER C. KENNEDY, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL1 1 In this Decision, we refer to the Specification filed May 17, 2017 (“Spec.”); the Non-Final Office Action dated February 6, 2020 (“Non-Final Act.”); the Appeal Brief filed May 27, 2020 (“Appeal Br.”); the Examiner’s Answer dated September 16, 2020 (“Ans.”); and the Reply Brief dated November 16, 2020. Appeal 2021-000841 Application 15/597,259 2 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1, 2, 4, 14, and 15, which constitute all the claims in this application. Because the claims on appeal have been twice rejected, we have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The claims are directed to an electronic device for identifying a plastic composition of an unknown plastic object and a method for identifying a plastic composition of an unknown plastic object using such a device. Spec. ¶ 3. Independent claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An electronic device for identifying a plastic composition of an unknown plastic object, the electronic device comprising: a spectrometer configured to receive the unknown plastic object and generate at least one mid-infrared (MIR) reflectance spectra characteristic of the unknown plastic object; an infrared source configured to irradiate the unknown plastic object; and a memory configured to store a multi-spectral fingerprint library comprising a plurality of reflectance spectra characteristics for a plurality of plastic types, each reflectance spectra characteristic in the multi-spectral fingerprint library comprising 2 Appellant refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as the University of Central Florida Research Foundation, Inc. Appeal Br. 3. Appeal 2021-000841 Application 15/597,259 3 at least one spectral peak, at least one spectral valley, and at least one standard deviation value for the at least one spectral peak and the at least one spectral valley, the plurality of plastic types comprising Polyethylene Terephthalate (PET), High Density Polyethylene (HDPE), Polyvinyl Chloride (PVC), Low Density Polyethylene (LDPE), Polypropylene (PP), Polystyrene (PS), Polycarbonate (PC), Acrylic, Nylon, Polyoxymethylene (POM), Acrylonitrile Butadiene Styrene (ABS), and Polytetrafluoroethylene (PTFE); and a processor coupled to said spectrometer, said infrared source, and said memory and configured to analyze in real-time the at least one MIR reflectance spectra characteristic of the unknown plastic object, and identify the plastic composition based upon at least comparing the at least one MIR reflectance spectra characteristic of the unknown plastic object to the multi- spectral fingerprint library, an identification comprising when the at least one MIR reflectance spectra characteristic of the unknown plastic object falls with the at least one standard deviation value for the at least one spectral peak and the at least one spectral valley of a given reflectance spectra characteristic. Appeal Br. 19-20 (Claims App.). Independent claim 14 is directed to a method for identifying a plastic composition of an unknown plastic object that requires operating the same spectrometer, infrared source, memory, and processor as in claim 1. Appeal Br. 20-22 (Claims App.). Appeal 2021-000841 Application 15/597,259 4 REJECTIONS The Examiner maintains the following rejections on appeal (Ans. 3): Rejection I: Claims 1, 2, 14, and 15 under 35 U.S.C. § 103 over Sommer,3 Zachmann,4 O’Brien,5 McManus,6 and Lark;7 and Rejection II: Claim 4 under 35 U.S.C. § 103 over Sommer, Zachmann, O’Brien, McManus, Lark, and Uchida.8 DISCUSSION We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner's rejections . . . .”). After review of the evidence in light of the Appellant’s and the Examiner’s opposing positions, we determine that the Appellant has not identified reversible error in the Examiner’s rejection. Thus, we affirm the Examiner’s rejections for the reasons expressed in the Non-Final Office Action and the Examiner’s Answer. We add the following primarily for emphasis. 3 Sommer et al., US 6,313,423 B1, issued Nov. 6, 2001. 4 Zachmann, A Rapid and Dependable Identification System For Black Polymeric Materials, 348 J. MOLECULAR STRUCTURE 453-456 (1995). 5 O’Brien et al., US 2006/0144126 A1, published July 6, 2006. 6 McManus et al., US 2014/0268133 A1, published Sept. 18, 2014. 7 Lark et al., US 2007/0149625 A1, published June 28, 2007. 8 Uchida, US 2008/0265145 A1, published Oct. 30, 2008. Appeal 2021-000841 Application 15/597,259 5 Rejection I - Obviousness over Sommer, Zachmann, O’Brien, McManus, and Lark The Examiner finds that Sommer teaches the main components of claim 1’s electronic device, including a spectrometer, an infrared source, a memory and a processor (Non-Final Act. 3), but fails to teach a spectrometer configured to generate at least one mid-infrared (MIR) reflectance, a processor configured to analyze spectra in real-time and to identify a standard deviation value for a spectral peak and a spectral valley, and claim 1’s plurality of plastic types. Id. at 3-5. To account for those deficiencies, the Examiner relies on Zachmann, O’Brien, McManus, and Lark as discussed below. Zachmann For a spectrometer that generates MIR spectra, the Examiner relies on Zachmann. Id. at 3. The Examiner finds that Zachmann teaches detecting black polymers using spectroscopic techniques in the MIR spectral range. Id. (citing Zachmann 456 ¶ 4). The Examiner determines that it would have been obvious to use a spectrometer that generates MIR spectra, as in Zachmann, in place of a spectrometer that generates Raman spectra, as used in Sommer, to identify black plastics. Ans. 4; Non-Final Act. 3. Appellant argues that the combination of Sommer and Zachmann is improper because the proposed swapping of Raman spectra with MIR spectra is no “rearrangement of parts,” and thus is not a design choice. Appeal Br. 9. Appellant also argues that because MIR as disclosed in Zachmann would limit the range of plastic identification, a skilled artisan would consider the Examiner’s proposed modification of Sommer based on Zachmann to render Sommer inoperable for its intended purpose of Appeal 2021-000841 Application 15/597,259 6 identifying and sorting post-consumer plastics for recycling, which includes many plastic sources of varying colors. Id. at 10. Appellant’s arguments do not identify reversible error in the Examiner’s rejection. The skilled artisan is “[a] person of ordinary creativity, not an automaton” and “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR, 550 U.S. 398, 416, 421; see also id. at 417 (“If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability.”). Moreover, there is no evidence in the record that it would have been “uniquely challenging or difficult for one of ordinary skill in the art” to combine the teachings of the references. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). O’Brien For a processor configured to analyze spectra in real-time, the Examiner relies on O’Brien. Non-Final Act. 4. The Examiner finds that O’Brien teaches methods and systems for analyzing samples that includes a processor configured to receive measurements in real-time after initial measurements. Non-Final Act. 4 (citing O’Brien ¶¶ 192, 232). The Examiner determines that it would have been obvious to modify Sommer’s identification system, which includes a spectrometer configured to generate MIR reflectance spectra, as taught by Zachmann, to include a processor configured to analyze in real-time the MIR reflectance spectra “to avoid slow processing times of multiple samples.” Non-Final Act. 4. Appellant argues that “the skilled person” taught away from combining Sommer and O’Brien and the combination of Sommer and Appeal 2021-000841 Application 15/597,259 7 O’Brien would render Sommer unsatisfactory for its intended purpose because O’Brien “concerns an apparatus for concentration and analysis of . . . gas samples” (O’Brien ¶ 2), which is for a wholly different purpose than Sommer. Appeal Br. 13. Appellant’s arguments do not identify reversible error in the Examiner’s rejection because Appellant has not identified sufficient factual evidence of a “teaching away” in either Sommer or O’Brien that would have led one of ordinary skill in the art from combining those references as proposed by the Examiner. Likewise, Appellant has not identified sufficient factual evidence that modifying Sommer’s processor to analyze spectra in real-time, as taught by O’Brien, would render Sommer’s processor unsatisfactory for its intended purpose of identifying the polymer type of a sample material. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s argument in a brief cannot take the place of evidence.”). McManus For a processor configured to identify a standard deviation value for a spectral peak and a spectral valley, the Examiner relies on McManus. Non- Final Act. 4. The Examiner finds that McManus teaches using a processor to compare a sample spectra to a reference spectra and calculate the standard deviation of the differences between the spectra. Id. (citing McManus ¶¶ 8, 68). The Examiner determines that it would have been obvious to configure Sommer’s processor to identify a standard deviation value for at least one spectral peak and at least one spectral valley of a reflectance characteristic “to accurately identify an unknown sample due to a high spectral resolution.” Non-Final Act. 4 (citing McManus ¶¶ 17, 57). Appeal 2021-000841 Application 15/597,259 8 Appellant argues that the proposed swapping of Sommer’s simple matching technique with McManus’s statistical matching technique is no “rearrangement of parts,” and thus is not a design choice. Appeal Br. 14. Appellant’s argument does not identify reversible error in the Examiner’s rejection because the Examiner does not rely on rearrangement of parts as a basis for combining Sommer and McManus. On this record, Appellant has not provided a sufficient explanation or credible evidence why using McManus’s statistical matching technique in Sommer’s identification would have been beyond the level of skill in the art. Lark For plastic types, the Examiner relies on Lark. Non-Final Act. 4-5. The Examiner finds that Lark teaches a list of soluble plastics that include the plastic types recited in claim 1. Non-Final Act. 4-5. The Examiner determines that it would have been obvious to include the plastics taught by Lark in Sommer’s reference library. Id. at 5. Appellant argues Lark merely discloses a generic plastic recycling method, but fails to disclose any teaching on how to identify these materials. Appeal Br. 11. Appellant argues that the skilled person would consider any attempt to identify Lark’s plastic types with the technology of Sommer and Zachmann to be inoperable, teaching away from the proposed combination. Id. Appellant further argues that the Examiner has provided no rationale to combine, but rather contended that since there is a reasonable expectation of success, the proposed combination is obvious. Id. Appellant’s arguments do not identify reversible error in the Examiner’s rejection. Appellant has not identified sufficient factual evidence of a “teaching away” in either Sommer, Zachmann, or Lark that would have Appeal 2021-000841 Application 15/597,259 9 led one of ordinary skill in the art from combining those references as proposed by the Examiner. Likewise, Appellant has not identified sufficient factual evidence that using Sommer’s device, as modified Zachmann, to identify Lark’s plastics would render the device inoperable. In re Pearson, 494 F.2d at 1405 (“Attorney’s argument in a brief cannot take the place of evidence.”). As the Examiner explains, Lark is combined with Sommer to teach that it would have been obvious to try to detect Appellant’s recited plastic types because they are known recyclables which can be sorted from waste material. Further, Zachmann teaches identifying acrylonitrile butadiene styrene (ABS) using spectroscopic techniques in the MIR spectral range. Zachmann 454, ¶¶ 1-2. Because Appellant has not identified reversible error in the Examiner’s rejection, we sustain the rejection of claims 1, 2, 14, and 15. Rejection II - Obviousness over Sommer, Zachmann, O’Brien, McManus, Lark, and Uchida Claim 4 is directed to the electronic device of claim 1 and further requires that “said infrared source comprises at least one of a tungsten filament and a globar source.” Appeal Br. 20 (Claims App.). The Examiner relies on Uchida as teaching claim 4’s additional limitation. Non-Final Act. 4. The Examiner finds that Uchida teaches a list of known light sources that emit light in the mid infrared red region include a globar light source and tungsten lamp i.e. tungsten filament source. Non- Final Act. 4 (citing Uchida ¶ 71). The Examiner determines that it would have been obvious to combine Uchinda’s tungsten filament source and globar source with Sommer’s detector, as modified by Zachmann, to Appeal 2021-000841 Application 15/597,259 10 characterize plastic materials which absorb light within the mid-infrared region. Non-Final Act. 4. Appellant argues that the skilled person would appreciate that a tungsten filament source would be incompatible with, and change the principle of operation of, Sommer. Appeal Br. 16. Appellant also argues that Uchida is not analogous prior art to the claimed invention since the cholesterol meter of Uchida is not relevant to the technical field of the claimed invention and not reasonably pertinent to the problem faced by the inventor (i.e. sorting plastics for recycling). Id. Appellant’s arguments do not identify reversible error in the Examiner’s rejection. As the Examiner explains, Uchida is analogous art because Uchida is in the field of endeavor as Appellant’s claimed invention, i.e., spectroscopy. Ans. 8; Compare Uchida ¶¶ 2, 50, with Spec. ¶ 3; In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (A reference is analogous prior art if: (1) it is from the same field of endeavor as the claimed invention, regardless of the problem addressed, or (2) if it is reasonably pertinent to the particular problem with which the inventor is involved.) (citing In re Deminski, 796 F.2d 436, 442 (Fed. Cir. 1986), and In re Wood, 599 F.2d 1032, 1036 (CCPA 1979)). Uchida teaches a light source, for example a globar light source or tungsten lamp (tungsten filament source) capable of emitting light within the mid infrared range for optically analyzing a sample. Uchida ¶ 71. On this record, Appellant has not identified sufficient factual evidence that a globar light source or tungsten lamp would be incompatible with, and change the principle operation of, Sommer. In re Pearson, 494 F.2d at 1405 (“Attorney’s argument in a brief cannot take the place of evidence.”). Accordingly, we sustain the Examiner’s rejection of claim 4. Appeal 2021-000841 Application 15/597,259 11 CONCLUSION The Examiner’s decision to reject claims 1, 2, 4, 14, and 15 is affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 14, 15 103 Sommer, Zachmann, O’Brien, McManus, Lark 1, 2, 14, 15 4 103 Sommer, Zachmann, O’Brien, McManus, Lark, Uchida 4 Overall Outcome 1, 2, 4, 14, 15 TIME PERIOD FOR RESPONSE 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). AFFIRMED