AVIGILON PATENT HOLDING 1 CORPORATION

Patent Trials and Appeals Board

Feb 9, 2022

2020006615 (P.T.A.B. Feb. 9, 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. 16/147,238 09/28/2018 Wesley Kenneth COBB PATAVL073-US-CON2 3196 22917 7590 02/09/2022 MOTOROLA SOLUTIONS, INC. IP Law Docketing 500 W. Monroe 43rd Floor Chicago, IL 60661 EXAMINER BALI, VIKKRAM ART UNIT PAPER NUMBER 2663 NOTIFICATION DATE DELIVERY MODE 02/09/2022 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): USAdocketing@motorolasolutions.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte WESLEY KENNETH COBB, DAVID SAMUEL FRIEDLANDER and KISHOR ADINATH SAITWAL ____________________ Appeal 2020-006615 Application 16/147,238 Technology Center 2600 ____________________ Before ALLEN R. MacDONALD, JEREMY J. CURCURI and JON M. JURGOVAN, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3-6, 8-11, and 13-15. Ans. 2. Claims 2, 7, and 12 have been cancelled. Appeal Br. 12-15. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellant refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest is Avigilon Patent Holding 1 Corporation. Appeal Br. 1. Appeal 2020-006615 Application 16/147,238 2 CLAIMED SUBJECT MATTER Claim 1 is illustrative (emphasis, formatting, and bracketed material added): 1. A computer-implemented method for evaluating objects detected in a video stream, the method comprising: [A.] detecting a plurality of foreground objects present in the video stream; [B.] for each foreground object of the plurality of foreground objects, building a trajectory characterizing each foreground object in a series of successive frames of the single video stream, the trajectory comprising a vector comprising kinematic data for the foreground object from when the foreground object is first observed in the single video stream to when the foreground object leaves the single video stream; [C.] storing each trajectory in a memory; [D.] identifying one or more patterns of behavior of objects in the video stream using the stored trajectories; [E.] detecting a successive foreground object in the video stream; [F.] building a trajectory of the successive foreground object; [G.] determining a probability distribution that the trajectory of the successive object is anomalous based on the stored trajectories; and [H.] if the trajectory of the successive object is determined to be anomalous, generating an alert. Appeal 2020-006615 Application 16/147,238 3 REFERENCES2 The Examiner relies on the following references: Name Reference Date Davis US 2005/0020369 A1 Jan. 27, 2005 Eaton US 2008/0193010 A1 Aug. 14, 2008 Cobb US 8,340,352 B2 Dec. 25, 2012 Cobb US 10,121,077 B2 Nov. 6, 2018 REJECTIONS A. Double Patenting The Examiner rejects claims 1, 3-6, 8-11, and 13-15 under Non- Statutory Obviousness-type Double Patenting over claims 1-6 of U.S. Patent No. 10,121,077 in view of U.S. Patent No. 8,340,352, which are the parent and grandparent respectively of the instant application. Final Act. 6. “An appeal, when taken, is presumed to be taken from the rejection of all claims under rejection.” 37 C.F.R. § 41.31(c). Because Appellant does not identify any error in the Examiner’s rejection on the ground of non- statutory double patenting, we summarily sustain this rejection in this proceeding. Except for our ultimate decision, we do not discuss this double patenting rejection of these claims further herein. 2 All citations herein to patent and pre-grant publication references are by reference to the first named inventor only. Appeal 2020-006615 Application 16/147,238 4 B. Section 103 The Examiner rejects claims 1, 5, 6, and 11 under pre-AIA 35 U.S.C. § 103(a) as being obvious over the combination of Eaton and Davis. Final Act. 2-4. We select claim 1 as the representative claim for this rejection. The contentions discussed herein as to claim 1 are dispositive as to this rejection of these claims. Therefore, except for our ultimate decision, we do not address the merits of the § 103(a) rejection of claims 5, 6, and 11 further herein. OPINION We have reviewed the Examiner’s rejections in light of Appellant’s Appeal Brief and Reply Brief arguments. A. The Examiner relies on Eaton for teaching above steps A through H (Final Act. 3), but acknowledges that Eaton “fails to explicitly disclose a probability distribution” (Id.) as claimed, and then states. But, in paragraph 0035 [of Eaton], it is suggested that information is use [sic] to teach a machine learning engine to detect anomalous activity, “a probability distribution” as claimed. It would have been obvious to one ordinary skilled in the art at the time of invention to use the information in machine learning engine “probability distribution” as taught in paragraph 0035 in order to yield the results. Final Act. 4. Appeal 2020-006615 Application 16/147,238 5 B. Appellant raises the following argument in contending that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a). Appellant contends that as to above step G of claim 1: First, Eaton does not teach or remotely suggest that the anomalous activity detected by the machine learning engine is a probability distribution. The entirety of paragraph [0035] is set forth below. No mention of any type of probability distribution is provided. . . . Second, additional disclosure not provided by Eaton is necessary to make it possible to utilize a machine learning engine to determine a probability distribution as recited in claim 1. Eaton makes no reference to a probability distribution, how data may be weighted, or what type of distribution model would be required to create a probability distribution of the objects, let alone the trajectory of an object, to determine if the object is anomalous. . . . Finally, the claimed “probability distribution” is defined as a “probability distribution that the trajectory of the successive object is anomalous based on the stored trajectories.” That is, the probability distribution is based on the trajectories of foreground objects detected in a video stream, comprising kinematic data for the foreground object. As discussed above, Eaton does not disclose the claimed trajectories, and the alleged inertial data of Davis (generated by sensors in a golf club) also does not disclose the claimed trajectories. Accordingly, the references cannot disclose the claimed “probability distribution[”] based on “the trajectories of objects” as defined in claim 1, and undisclosed by the combination of references. Appeal Br. 9-10 (emphasis added). Appeal 2020-006615 Application 16/147,238 6 C. In response to Appellant’s argument, the Examiner responds by merely restating the language of the rejection: Eaton in paragraph 0035, suggested that information (motion i.e. trajectory etc.) is use [sic] to teach a machine learning engine 140 to detect anomalous activity, “a probability distribution” as claimed. It would have been obvious to one ordinary skilled in the art at the time of invention to use the information in machine learning engine “probability distribution” as taught in paragraph 0035 in order to yield the results. Ans. 6. D. As articulated by the Federal Circuit, the Examiner’s burden of proving non-patentability is by a preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (“preponderance of the evidence is the standard that must be met by the PTO in making rejections”). “A rejection based on section 103 clearly must rest on a factual basis[.]” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” Id. We conclude the Examiner’s analysis fails to meet this standard because the rejection does not adequately explain the Examiner’s findings of fact. Appeal 2020-006615 Application 16/147,238 7 E. We agree with Appellant’s argument. Eaton does not teach or suggest “determining a probability distribution that the trajectory of the successive object is anomalous based on the stored trajectories,” and Davis does not cure this deficiency. We conclude, consistent with Appellant’s argument, that there is currently insufficient articulated reasoning to support the Examiner’s finding that Eaton, alone or in combination, teach, suggest, or otherwise render obvious the argued limitations of claim 1. Therefore, we conclude that there is insufficient articulated reasoning to support the Examiner’s final conclusion that claim 1 would have been obvious to one of ordinary skill in the art at the time of Appellant’s invention. CONCLUSION Appellant has shown the Examiner errs in rejecting claims 1, 5, 6, and 11 as being unpatentable under 35 U.S.C. § 103(a). The Examiner’s rejection of claims 1, 5, 6, and 11 as being unpatentable under 35 U.S.C. § 103 is reversed. The Examiner’s rejection of claims 1, 3-6, 8-11, and 13-15 under nonstatutory double patenting is affirmed. Appeal 2020-006615 Application 16/147,238 8 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 5, 6, 11 103(a) Eaton, Davis 1, 5, 6, 11 1, 3-6, 8- 11, 13-15 Nonstatutory double patenting US 9,591,342 B2 1, 3-6, 8- 11, 13-15 Overall Outcome 1, 3-6, 8- 11, 13-15 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