Ex Parte Bonner et al

Patent Trial and Appeal Board

Mar 22, 2016

12236481 (P.T.A.B. Mar. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/236,481 09/23/2008 BRETT BRACEWELL BONNER
14469 7590 03/24/2016
Pillsbury Winthrop Shaw Pittman LLP(Kroger & Sunr)
PO Box 10500
McLean, VA 22102
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
094176-0392445 7989
EXAMINER
BEAUCHAINE, MARK J
ART UNIT PAPER NUMBER
3653
NOTIFICATION DATE DELIVERY MODE
03/24/2016 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):
docket_ip@pillsburylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRETT BRACEWELL BONNER,
CHRISTOPHER TODD HJELM, and WILLIAM RODNEY McCULLEN
Appeal2014-002449
Application 12/236,481
Technology Center 3600
Before LINDA E. HORNER, CHARLES N. GREENHUT, and
MICHELLE R. OSINSKI, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Brett Bracewell Bonner et al. (Appellants) seek our review under
35 U.S.C. § 134 from the final rejection of the Examiner, dated March 11,
2013, in which the Examiner rejected claims 1-4, 10-17, 32, and 39-46
under 35 U.S.C. § 103(a) as unpatentable over Ostrowski (US 7,337,960 B2,
issued March 4, 2008), Turvy, Jr. ("Turvy") (US 7, 108, 187 B2, issued
September 19, 2006), and Zhu (US 7,104,453 Bl, issued September 12,
2006). We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal2014-002449
Application 12/236,481
CLAIMED SUBJECT MATTER
Appellants' claimed subject matter relates to "retail scanning systems
and methods." Spec. para. 2. Claims 1 and 17 are independent claims.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A system for simultaneously scanning readable
media on multiple items for purchase in a retail establishment,
compnsmg:
a) A conveying device on which said items are
conveyed; and
b) A multi-item scanning device positioned about said
conveying device, said multi-item scanning device having
i) a housing positioned about said conveying
device, said housing having an external surface and an
internal surface positioned oppositely to said external
surface; and
ii) multiple imaging devices attached to and
about said internal surface of said housing of said multi-
item scanning device for scanning said readable media on
each said multiple item for purchase, said multiple
imaging devices creating a 360° field of view wherein all
sides of said multiple items may be observed by the
imaging devices and whereby said multi-item scanning
device scans said scannable readable media of at least two
said multiple items for purchase substantially
simultaneously within said field of view, the multiple
imaging devices further being configured and arranged
such that substantially all of a volume encompassed by the
housing is covered by the field of view, including a bottom
surface of said items, wherein the multiple imaging
devices are further configured and arranged to ensure
redundant scanning of each item during a single pass
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Application 12/236,481
through the housing such that after a first scan of each
item, that item is scanned at least once more.
ANALYSIS
Claim 1 calls for a "multi-item scanning device ... having ...
multiple imaging devices ... configured and arranged such that substantially
all of a volume encompassed by the housing is covered by the field of view."
Independent claim 17 is directed to "[a] method of simultaneously scanning
readable media on multiple items for purchase in a retail establishment using
a conveying device having ... a multi-item scanning device ... having ...
multiple imaging devices . . . configured and arranged such that
substantially all of a volume encompassed by the housing is covered by the
field of view." Appellants argue that "the Office Action does not appear to
specifically address this recitation." Appeal Br. 10. We agree.
In the Final Action, the Examiner found that Ostrowski discloses:
imaging devices creating a field of view wherein the front sides
of said items for purchase are observed when the items are
upstream of the imaging devices, the left and right sides of said
items are observed as they pass between the left and right
imaging devices, and the back sides of the items are observed as
the items travel downstream of the imaging devices.
Final Act. 4. This finding does not address whether the imaging devices of
Ostrowski are arranged such that substantially all of a volume encompassed
by the housing is covered by the field of view. For instance, the Examiner
made no finding as to whether the two imaging devices in Ostrowski are
capable of imaging upstream and downstream throughout the entire length
of the housing. As noted by Appellants, Ostrowski is focused on identifying
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Application 12/236,481
objects as they pass by the sensors, and does not explicitly disclose sensors
being arranged to ensure substantially all of the volume of the housing is
covered by the field of view of the sensors. Appeal Br. 10-11.
The Examiner responds by finding that "Ostrowski discloses both a
single pair of imaging sensors 120 and a series of imaging sensors 120 that
extends along the length of housing 114. Both of said imaging sensor 120
configurations cover substantially all of the volume encompassed by the
housing 114 of Ostrowski." Ans. 14-15. For the reasons set forth above,
we disagree with the Examiner's finding that Ostrowski' s disclosure of a
single pair of imaging sensors 120 supports by a preponderance of the
evidence that Ostrowski ensures substantially all of the volume of the
housing is covered by the field of view of the sensors. Further, for the
reasons that follow, we find insufficient support in the disclosure of
Ostrowski to support the Examiner's finding that Ostrowski discloses a
series of imaging sensors extending along the length of the housing.
The Examiner found, and we agree, that Ostrowski discloses that "the
present invention may be practiced with any number of visual sensors" and
that the "visual sensors 120 may include ... omni-directional lenses."
Ans. 10 (citing Ostrowski, col. 5, 11. 23-26, 38--44). The Examiner
concludes, in light of this disclosure:
One of ordinary skill in the art at the time of the invention
would have considered providing a plurality of left-right pairs of
imaging devices 120 along the length of conveying device 110
such that they are located in a series that extends from the inlet
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Application 12/236,481
to the outlet of housing 114 for the purpose of enhancing the
reliability of scanning operation.
Id. at 10-11. Appellants contend that this finding "relies on selective
reading of various embodiments, selected with the benefit of hindsight, from
among essentially infinite possible configurations generally disclosed in
Ostrowski." Reply Br. 9.
Related to this issue, the Examiner found:
Ostrowski further discloses said multiple imaging devices
redundantly scanning each of said items during a single pass
through the housing such that after a first scan of each item that
item is scanned at least once more (see Figure 6; column 15, lines
19-42; and column 16, lines 18-52). As the conveying device
moves said items along the tunnel at a constant speed the items
are scanned at multiple locations within the tunnel.
Final Act. 4 (discussing "redundant scanning"). The portion of Ostrowski
that the Examiner relied on for this finding describes a method to be carried
out by the recognition system 200 in which if the system does not identify a
reliable match after a first image is acquired, then the method may return to
a state 602 in which another image is acquired. Ostrowski, col. 16, 11. 18-52
(disclosing that "[i]n one implementation, the system 100 may verify that the
matched object is identically recognized for two or more cycles before
determining a reliable match"). Ostrowski describes:
In the state 602, a visual sensor, such as a camera, may capture
one or more images of an object to make visual data. To capture
the images, as described in connection with FIG. 1, a motion
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Application 12/236,481
trigger subsystem may trigger the visual sensor and a lighting
subsystem upon detection of the object.
Id., col. 15, 11. 36--40. Figure 1, however, depicts a single motion trigger
subsystem and a single pair of sensors. Id., Fig. 1. Ostrowski does not
describe how to acquire a second image using the system of Figure 1. Even
if one of ordinary skill would be inclined to include a second pair of sensors
within the housing downstream of the first pair of sensors so as to acquire a
second image of an item, this second pair of sensors would enhance the
reliability of the system without necessarily extending from the inlet to the
outlet of the housing. Further, as noted by Appellants, other means exist to
acquire a second image of the item, including imaging the item for a second
time during a subsequent pass through the housing. Appeal Br. 6. As such,
we do not find adequate support for the Examiner's finding that Ostrowski
either explicitly discloses a series of imaging sensors that extend along the
length of the housing (Ans. 14), or would have rendered obvious a series of
imaging sensors that are located in a series that extends from the inlet to the
outlet of the housing (Ans. 10-11), such that the field of view covered by the
imaging devices is substantially all of a volume encompassed by the
housing.
For these reasons, we find that the Examiner improperly has filled in
the gaps in the Ostrowski disclosure by resort to speculation and hindsight.
Accordingly, we do not sustain the rejection of independent claims 1 and 17,
or their dependent claims 2--4, 10-16, 32, and 39--46 under 35 U.S.C.
§ 103(a) as unpatentable over Ostrowski, Turvy, and Zhu.
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DECISION
The decision of the Examiner to reject claims 1--4, 10-17, 32, and 39-
46 is REVERSED.
REVERSED
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