Ex Parte Ding et al

Patent Trial and Appeal BoardMar 28, 2018

13336938 (P.T.A.B. Mar. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/336,938 12/23/2011 YuhuaDing 26389 7590 03/30/2018 CHRISTENSEN O'CONNOR JOHNSON KINDNESS PLLC 1201 THIRD A VENUE SUITE 3600 SEATTLE, WA 98101-3029 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. MEIP138351 6852 EXAMINER FEREJA, SAMUEL D ART UNIT PAPER NUMBER 2486 NOTIFICATION DATE DELIVERY MODE 03/30/2018 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): efiling@cojk.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte YUHUA DING, SHANNON ROY CAMPBELL, MARK LAWRENCE DELANEY, and ROBERT KAMIL BRYLL Appeal2017-010621 Application 13/336,938 Technology Center 2400 Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and JOHN P. PINKERTON, Administrative Patent Judges. SAADAT, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1-18. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 According to Appellants, the real party in interest is Mitutoyo Corporation. (App. Br. 3). Appeal2017-010621 Application 13/336,938 STATEMENT OF THE CASE Introduction Appellants' invention relates to methods of focusing a machine vision inspection system at an edge adjacent to a beveled surface (Spec. 1 :5---6). Exemplary claim 1 under appeal reads as follows: 1. A method for operating an edge focus tool included in a machine vision inspection system to focus the optics of the machine vision inspection system proximate to an edge adjacent to a beveled surface feature of a workpiece, the method compnsmg: defining a region of interest (ROI) including a portion of the beveled surface feature and the edge adjacent to the beveled surface feature in a field of view of the machine vision inspection system; acquiring an image stack of the ROI over a Z range including the edge and the portion of the beveled surface feature; generating a point cloud including a Z height for a plurality of points in the ROI, based on determining a best focus Z height measurement for the plurality of points; defining a proximate subset of the point cloud comprising points proximate to the beveled surface feature and corresponding to the shape of the beveled surface feature; defining a Z-extremum subset of the proximate subset of the point cloud; and focusing the optics at a Z height corresponding to the Z- extremum subset so as to focus the optics proximate to the edge that is adjacent to the beveled surface feature. The Examiner's Rejection Claims 1-18 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Sakaguchi et al. (US 2011/0109738 Al, published May 12, 2011) 2 Appeal2017-010621 Application 13/336,938 ("Sakaguchi"), and Bryll et al. (US 2009/0088999 Al, published Apr. 2, 2009) ("Bryll") (see Final Act. 6-14). ANALYSIS We have reviewed the Examiner's rejection in light of Appellants' arguments in Appellants' Appeal Brief and Reply Brief that the Examiner has erred. We are unpersuaded by Appellants' contentions and concur with the findings and conclusions reached by the Examiner as explained below. Independent Claims 1, 14, and 15 Appellants contend the combination of Sakaguchi and Bryll fails to teach or suggest "acquiring an image stack of [a region of interest (ROI)] over a Z range including [an edge adjacent to a beveled surface feature] and [a] portion of the beveled surface feature," as recited in independent claim 1 and similarly recited in independent claims 14 and 15 (see App. Br. 18-20; see also Reply Br. 9-11). More specifically, Appellants argue Sakaguchi fails to disclose acquiring an image stack, and Bryll fails to disclose a beveled surface feature, or imaging a beveled surface feature (see App. Br. 20; see also Reply Br. 10-11). We are not persuaded by Appellants' contention. One cannot show non-obviousness by attacking references individually when the rejection is based on a combination of references. See In re Merck & Co., 800 F .2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413, 425 (CCPA 1981 ). Appellants' argument that Sakaguchi fails to disclose acquiring an image stack fails to address the Examiner's finding that Bryll discloses acquiring an image stack of a region of interest ("ROI") over a range of Z- 3 Appeal2017-010621 Application 13/336,938 heights (see Final Act. 7 (citing Bryll i-f 167)). Likewise, Appellants' argument that Bryll fails to disclose a beveled surface feature fails to address the Examiner's finding that Sakaguchi discloses a beveled surface feature of a workpiece (see Final Act. 6 (citing Sakaguchi i-f 48)). As Appellants' arguments do not specifically address the Examiner's rationale supporting the rejection, they are not persuasive. Appellants also contend the combination of Sakaguchi and Bryll fails to teach or suggest "defining a proximate subset of [a] point cloud comprising points proximate to the beveled surface feature," "defining a Z- extremum subset of the proximate subset of the point cloud," and "focusing the optics at a Z height corresponding to the Z-extremum subset," as recited in claim 1 and similarly recited in claims 14 and 15 (see App. Br. 21-23; see also Reply Br. 4--9). More specifically, Appellants argue Bryll' s disclosed step of defining secondary or sub-regions of interest does not teach or suggest the claimed "defining a proximate subset of the point cloud" because the regions and sub-regions of interests refer to regions selected on the surface to be measured, which are defined before the point cloud is generated (see App. Br. 22-23; see also Reply Br. 5---6). Appellants further argue Bryll merely discloses an individual autofocus tool performing operations associated with providing a single Z-height measurement for a single overall or primary region of interest, and Bryll fails to teach or suggest that the autofocus tool defines any Z-extremum of a subset of a point cloud (see App. Br. 23; see also Reply Br. 7-8). Appellants also argue Bryll does not teach or suggest focusing any optics at a Z-height corresponding to a Z-extremum subset, or any predetermined Z-height (see App. Br 23; see also Reply Br. 8-9). 4 Appeal2017-010621 Application 13/336,938 This contention is not persuasive either. A claim under examination is given its broadest reasonable interpretation consistent with the underlying specification. See In re American Acad. of Science Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). As the Examiner correctly found, Bryll discloses defining a set of regions of interest ("ROI(k)") to be measured and producing Z-height measurements, which teaches or suggests the claimed "point cloud including a Z height for a plurality of points in the ROI" (see Ans. 17 (citing Bryll i-f 167)). Under the broadest reasonable interpretation, a "subset of the point cloud" includes a subset of points and corresponding Z-height measurements of the original point cloud, where the number of points and corresponding Z-height measurements within the subset is less than or equal to the number of points and corresponding Z-height measurements included within the point cloud. The Examiner, therefore, correctly found Bryll discloses that the regions of interest ROI(k) comprises primary regions of interest or secondary or sub-regions of interest (see Ans. 17-18; see also Bryll i-f 167). Upon a review of the cited portion in Bryll, we agree with the Examiner's findings that Bryll' s primary regions of interest or secondary or sub-regions of interest teach or suggest the claimed "subset of the point cloud" (see Ans. 17-18). As further described above, Sakaguchi teaches a beveled surface feature of a workpiece (see Final Act. 6), and thus, consistent with the Examiner's findings, the combination of Sakaguchi and Bryll teaches or suggests "defining a proximate subset of [a] point cloud comprising points proximate to the beveled surface feature" (see Ans. 17-18). Further, under the broadest reasonable interpretation, a "Z-extremum subset of the proximate subset" includes a subset of the Z-height 5 Appeal2017-010621 Application 13/336,938 measurements of the aforementioned subset of the point cloud, where the number of Z-height measurements included within the subset is less than or equal to the number of Z-height measurements included within the subset of the point cloud. The Examiner, therefore, correctly found that Bryll discloses determining a best focus Z-height for a current region of interest ROI(k) (see Final Act. 8 (citing Bryll i-f 170); see also Ans. 18). Thus, consistent with the Examiner's findings, the combination of Sakaguchi and Bryll also teaches or suggests "defining a Z-extremum subset of the proximate subset of the point cloud" (see Ans. 18). Additionally, under the broadest reasonable interpretation, "focusing the optics at a Z height corresponding to the Z-extremum subset," includes focusing an optical assembly portion of the machine vision inspection system at a Z-height measurement selected from the Z-height measurements included within the aforementioned subset of the Z-height measurements. Based on this interpretation, we agree with the Examiner's findings that Bryll discloses focusing an image obtained by an optical assembly portion of the machine vision inspection system at a selected Z-height measurement (see Final Act. 8 (citing Bryll i-f 170); see also Bryll i-f 62; see also Ans. 18), and thus, the combination of Sakaguchi and Bryll also teaches or suggests "focusing the optics at a Z height corresponding to the Z-extremum subset" (see Ans. 18). Appellants also contend the Examiner failed to establish a prima facie case of obviousness because there is no reason to modify the system disclosed in Sakaguchi to include autofocus functionality, and modifying Sakaguchi with the disclosure from Bryll is based on impermissible 6 Appeal2017-010621 Application 13/336,938 hindsight suggested solely by the teachings in Appellants' Specification (see App. Br. 16-18; see also Reply Br. 11-12).2 We are not persuaded by this contention either. The Supreme Court has rejected the rigid requirement of demonstrating a teaching, suggestion, or motivation to combine references in order to show obviousness. See KSR Int'! Co., v. Teleflex Co., 550 U.S. 398, 419 (2007). Instead, a rejection based on obviousness only needs to be supported by "some articulated reasoning with some rational underpinning" to combine known elements in the manner required by the claim. Id. at 418. 2 In the Reply Brief, Appellants additionally argue, for the first time, that the Examiner's findings lack the clarity required under Office policy and Supreme Court precedent, and thus, Appellants are unable to formulate a substantive rebuttal (see Reply Br. 2--4). As the aforementioned findings were first articulated in the Final Office Action (see Final Act. 8), Appellants' argument is entitled to no consideration because it was not presented for the first time in the opening brief, and Appellants have not shown good cause why it should be considered, as required by our procedural rule (see 37 C.F.R. Â§ 41.41(b)(2) (2012); Optivus Technology, Inc. v. Ion Beam Applications S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) (argument raised for the first time in the reply brief that could have been raised in the opening brief is waived). Even if the argument was entitled to consideration, we would not find the argument persuasive. Notwithstanding any citation errors in the Examiner's findings, we note that Appellants have formulated several substantive rebuttal arguments regarding the Examiner's findings (see, e.g., App. Br. 21-23). Thus, we conclude the Examiner's findings satisfy the notice requirement of 35 U.S.C. Â§ 132. See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (holding that, in order to meet the notice requirement of 35 U.S.C. Â§ 132, the Office must set forth the statutory basis of the rejection and the reference(s) relied upon in a sufficiently articulate and informative manner so as to put the applicant on notice of the shortcomings of the patent application and to allow the applicant to judge the propriety of continuing the prosecution of the application). 7 Appeal2017-010621 Application 13/336,938 As found by the Examiner, one of ordinary skill in the art would have been motivated to modify the observation system disclosed by Sakaguchi to include the "autofocus" feature utilized by the machine vision inspection system disclosed by Bryll because: (a) Bryll discloses that it is desirable to utilize the autofocus feature to obtaining the best focus position and the resulting Z-height measurement; and (b) it would be desirable for a user of the observation system disclosed by Sakaguchi to obtain the best focus position so as to improve accuracy and reliability of the observation system (see Final Act. 8 (citing Bryll i-f 4); see also Ans. 15 (citing Bryll i-f 4)). We conclude that the Examiner's articulated reasoning is sufficient to support the rejection of claims 1, 14, and 15 under 35 U.S.C. Â§ 103(a). Thus, we agree with the Examiner that the combination of cited references teaches or suggests all the elements of claims 1, 14, and 15. Accordingly, we sustain the rejection of claims 1, 14, and 15 under 35 U.S.C. Â§ 103(a). Remaining Claims No separate arguments are presented for the remaining dependent claims (see App. Br. 24). We therefore sustain their rejections for the reasons stated with respect to independent claims 1, 14, and 15. DECISION We affirm the Examiner's rejection of claims 1-18 under 35 U.S.C. Â§ 103(a). 8 Appeal2017-010621 Application 13/336,938 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 9