Ex Parte Forland et al

Patent Trials and Appeals Board

Mar 25, 2019

13336607 - (D) (P.T.A.B. Mar. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/336,607 12/23/2011
88676 7590 03/27/2019
Fredrikson & Byron, P.A.
Intellectual Property Group, Fluke Patents
200 South 6th Street, Suite 4000
Minneapolis, MN 55402
FIRST NAMED INVENTOR
Jody Farland
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.
56581.105.0 3673
EXAMINER
KIR,ALBERT
ART UNIT PAPER NUMBER
2489
NOTIFICATION DATE DELIVERY MODE
03/27/2019 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):
ip@fredlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JODY FORLAND, KIRK R. JOHNSON,
MARK J. PATTON, JEFFREY M. WISTED,
and REED S. NELSON 1
Appeal2018-006792
Application 13/336,607
Technology Center 2400
Before CAROLYN D. THOMAS, JOSEPH P. LENTIVECH, and
SCOTT RAEVSKY, Administrative Patent Judges.
RAEVSKY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1--4, 6, 9--15, 17, 18, and20-27, all the
pending claims in the present application (see Claims Appendix). We have
jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants name Fluke Corporation as the real party in interest
(App. Br. 3).
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Application 13/336,607
STATEMENT OF THE CASE
Appellants' invention generally relates to thermal imaging cameras
for use in retaking images. See Abstract. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A portable, hand-held thermal 1magmg camera
compnsmg:
an infrared (IR) lens assembly having an associated IR
sensor for detecting IR images of a target scene;
a visible light (VL) lens assembly having an associated VL
sensor for detecting VL images of the target scene;
a display adapted to display at least a portion of the VL
image or at least a portion of the IR image;
a processor;
a position sensor adapted to provide position data to the
processor, the position data representative of the position of the
camera;
a memory adapted for storing a first image of a scene
captured at a first position and first position data, the first
position data including a first distance-to-target, first orientation
data including the pitch, roll, and yaw of the camera in the first
position, and a first aiming point, the first aiming point being the
point in the first image at which the first distance-to-target was
determined;
the processor programmed with instructions to:
compare position data for a current position of the
camera to the first position data and generate a signal to a
user indicative of how to reposition the camera toward the
first position so that the first aiming point, the pitch, roll,
and yaw of the first orientation data, and the first distance-
to-target from the first position data are reproduced;
wherein the generated signal indicates to the user
the location of the first aiming point in the first image to
assist in the repositioning, wherein the indicating the
location of the first aiming point comprises indicating the
first aiming point (i) graphically on the display, (ii) in a
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Application 13/336,607
form of text or numerical coordinate on the display, (iii)
via audible indications, and/or (iv) via vibrational
indications.
App. Br. 26 (Claims Appendix).
Appellants appeal the following rejections:
Claims 1, 10-12, 24 and 27 are rejected under pre-AIA 35 U.S.C.
§ I03(a)2 as being unpatentable over McManus (WO 2006/060746 A2; pub.
June 8, 2006), Garcia (WO 2009/006949 Al; pub. Jan. 15, 2009), and
Berstis (US 6,542,824 B 1; iss. Apr. 1, 2003). Final Act. 4.
Claims 25 and 26 are rejected under pre-AIA 35 U.S.C. § I03(a) as
being unpatentable over McManus, Garcia, Berstis, and Shingu (US
2011/0279697 Al; pub. Nov. 17, 2011). Id. at 13.
Claims 13, 18, 22, and 23 are rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over McManus, Terre (US 2012/0224063
Al; pub. Sept. 6, 2012), and Berstis. Id. at 14.
Claims 2, 3, 4, and 6 are rejected under pre-AIA 35 U.S.C. § I03(a) as
being unpatentable over McManus, Garcia, Berstis, and Bodkin (US
2006/0208193 Al; pub. Sept. 21, 2006). Id. at 22.
Claims 14, 15, and 17 are rejected under pre-AIA 35 U.S.C. § I03(a)
as being unpatentable over McManus, Terre, Berstis, Shingu, and Bodkin.
Id. at 24.
2 Because Appellants filed the application prior to March 16, 2013, the
version of 35 U.S.C. § 103 we apply here is the one preceding the changes
made by the America Invents Act. See Leahy-Smith America Invents Act,
Pub. L. No. 112-29, 125 Stat. 284,293, § 3(n) (2011).
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Application 13/336,607
Claim 9 is rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over McManus, Garcia, Berstis, and Hein (US 2009/0030551
Al; pub. Jan. 29, 2009). Id. at 25.
Claim 20 is rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over McManus, Terre, Berstis, and Bodkin. Id. at 26.
Claim 21 is rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over McManus, Terre, Berstis, and Hein. Id. at 28.
We review the appealed rejections for error based upon the issues
identified by Appellants and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
ANALYSIS
Appellants contend that McManus fails to disclose "a memory
adapted for storing a first image of a scene captured at a first position and
first position data, the first position data including ... a first aiming point,
the first aiming point being the point in the first image at which the first
distance-to-target was determined" (the "memory" limitation), as recited by
claim 1. App. Br. 9--11. Appellants also contend that McManus fails to
disclose claim 1 's "compare position data for a current position of the
camera to the first position data and generate a signal to a user indicative of
how to reposition the camera toward the first position so that the first aiming
point ... and the first distance-to-target from the first position data are
reproduced" (the "compare" limitation). Id. at 11-16.
Appellants' arguments are not persuasive because the Examiner finds,
and the Appellants do not dispute, that Garcia also teaches or suggests the
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memory limitation and that both Garcia and Berstis teach or suggest the
compare limitation. 3 See Final Act. 7, 9--1 O; Ans. 6; see also App. Br. 9--16
(arguing solely that McManus fails to disclose the recited elements); Reply
Br. 3---6 (same).
Appellants also contend that one of ordinary skill in the art would not
have combined Garcia and Berstis with McManus. App. Br. 16-19.
Specifically, Appellants argue, "one of ordinary skill in the art would have
had no motivation to modify the McManus camera to incorporate a position
sensor and camera orientation information of pitch, roll, and yaw, because
such modification would have been seen by a person of ordinary skill in the
art as increasing the cost of McManus' s camera without adding any useful
benefit." Id. at 17-18. "Moreover," Appellants contend, "since the
orientation of the infrared image is fixed relative to the visible light image in
McManus, there is no benefit to modifying McManus to incorporate a
position sensor and camera orientation information ( e.g., of Garcia and/or
Berstis) since [the] infrared image already has the orientation information of
the visible light image via the fixed mounting and positioning." Id. at 18.
Finally, Appellants assert that "modifying McManus to add orientation
information for use during focusing, would be seen by one of ordinary skill
in the art at the time of Appellant's invention to change the fundamental
parallax correction operation of McManus's camera." Id. at 19.
Appellants' arguments are not persuasive. In addition to the
motivation highlighted by Appellants, the Examiner additionally finds one
3 When mapping Garcia to the "compare" limitation, the Final Action omits
any discussion of claim 1 's "and the first distance to target." Final Act. 7-8.
However, the Final Action includes this omitted phrase when mapping
Berstis to the "compare" limitation. Id. at 9.
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of ordinary skill in the art would have been motivated to combine the
teachings of Garcia and Berstis with McManus for "the capturing of two
consecutive VL images wherein the stored orientation and position data are
used to reposition the later-taken one with an earlier-taken one before using
the orientation/position dat[a] of the later-taken image for any subsequently
captured VL and/or IR images." Ans. 8-9; see also Garcia 3: 13-15. As
such, even if we assume arguendo (without deciding) that the motivations
highlighted by Appellants are insufficient, Appellants' arguments fail to
persuasively challenge this additional motivation provided by the Examiner,
i.e., whether the Examiner's articulated reason has the requisite "rational
underpinning to support the legal conclusion of obviousness." See In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). Thus, we are unpersuaded the
Examiner erred in combining McManus, Garcia, and Berstis.
Accordingly, we sustain the Examiner's rejection of claim 1 and
claims 10-12, 24, and 27, which depend from claim 1 and are not argued
separately with particularity. Appellants also do not argue claims 2--4, 6, 9,
13-15, 17, 18, 20-23, 25, and 26 separately with particularity but, instead,
rely on the arguments presented with respect to claim 1. App. Br. 18-24.
We therefore also sustain the Examiner's rejection of claims 2--4, 6, 9, 13-
15, 17, 18, 20-23, 25, and 26 for the reasons discussed supra with respect to
claim 1.
DECISION
We affirm the Examiner's 35 U.S.C. § 103(a) rejection of claims 1--4,
6, 9-15, 17, 18, and 20-27.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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