Ex Parte Goldbach

Patent Trial and Appeal BoardNov 30, 2012

11244662 (P.T.A.B. Nov. 30, 2012)

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. 11/244,662 10/05/2005 Gunter Goldbach SCHWP0224USA 2107 7590 12/03/2012 RENNER, OTTO, BOISSELLE & SKLAR, LLP Nineteenth Floor 1621 Euclid Avenue Cleveland, OH 44115-2191 EXAMINER CHEN, CHIA WEI A ART UNIT PAPER NUMBER 2664 MAIL DATE DELIVERY MODE 12/03/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GUNTER GOLDBACH ____________ Appeal 2011-002383 Application 11/244,662 Technology Center 2600 ____________ Before, JAMES R. HUGHES, GREGORY J. GONSALVES, and ANDREW J. DILLON, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final decision rejecting claims 1-7, 13-20, 22, and 23, which are all the claims remaining in the application. Claims 8-12 were withdrawn from consideration and claim 21 was canceled. (App. Br. 2.) We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2011-002383 Application 11/244,662 2 Appellant’s Invention The invention at issue on appeal concerns image generating device and method for determining a position of a recorded image point in an optical tracking system. (Spec. 1:10-13; 4:8-22; Abstract.)1 Representative Claim Independent claim 1, reproduced below with the key disputed limitations emphasized, further illustrates the invention: 1. An image generating device for determining a position of a recorded image point in an optical tracking system, comprising: a light scattering effect generating device for creating a light scattering effect; at least one camera operatively coupled to said light scattering effect generating device and configured to capture image data corresponding to the light scattering effect created by the light scattering effect generating device; and an image processing unit operatively coupled to said camera and configured to receive said image data, said image processing unit configured to determine the position of the image point based on a) the light scattering effect and b) a brightness gradient of the light scattering effect. Rejections on Appeal 1. The Examiner rejects claims 1-3, 6, 7, 13-17, 22, and 23 under 35 U.S.C. § 102(b) as being anticipated by US 5,642,164, issued Jun. 24, 1997 (“Ogawa”). 1 We refer to Appellant’s Specification (“Spec.”); Appeal Brief (“App. Br.”) filed Apr. 29, 2010; and Reply Brief (“Reply Br.”) filed September 7, 2010. We also refer to the Examiner’s Answer (“Ans.”) mailed July 23, 2010. Appeal 2011-002383 Application 11/244,662 3 2. The Examiner rejects claims 4, 5, and 18-20 under 35 U.S.C. § 103(a) as being unpatentable over Ogawa. ISSUE Based upon our review of the administrative record, Appellant’s contentions, and the Examiner’s findings and conclusions, the pivotal issue before us follows: Does the Examiner err in finding that Ogawa discloses “an image processing unit operatively coupled to said camera and configured to receive said image data, said image processing unit configured to determine the position of the image point based on . . . a brightness gradient of the light scattering effect” (claim 1), within the meaning of Appellant’s claim 1 and commensurate limitations of claim 13? ANALYSIS We agree with Appellant that the portions of Ogawa identified by the Examiner do not explicitly or inherently disclose the disputed features of claim 1, in particular, determining an image point position based on a brightness gradient. (App. Br. 8-15; Reply Br. 1-3.) Specifically, we agree with Appellant that Ogawa’s disclosure of cylindrical lens and image pickup device histogram (Ans. 5, 9-12) fails to disclose the recited brightness gradient of the light scattering effect. (App. Br. 10-13.) The portions of Ogawa cited by the Examiner (Ogawa, col. 4, ll. 10-12; col. 5, ll. 35-49; Fig. 5B) separately describe a cylindrical lens, which is a light condensing device as opposed to a light scattering device (see Ogawa col. 4, ll. 20-22 (“cylindrical lens 5 collects and condenses a light emitted from the light spot Appeal 2011-002383 Application 11/244,662 4 3 and converts the same into a plurality of linear images intersecting each other”)) and a histogram illustrating the area of an image pickup device along an x-axis (see Ogawa col. 5, ll. 30-49; Fig. 5B). We find no disclosure in Ogawa of determining an image point position based on a brightness gradient. Rather, the image point location determined by Ogawa is based on the area of an image on an image pickup device, not based on brightness or light intensity. (App. Br. 10-13; Reply Br. 1-3.) Consequently, we are constrained by the record before us to conclude that Ogawa fails to disclose the recited features of Appellant’s claim 1, and the rejection of claim 1 fails to establish a prima facie case of anticipation. Appellant’s independent claim 13 includes limitations of commensurate scope, and dependent claims 2-7, 14-20, 22, and 23 depend on and stand with their respective base claims. Accordingly, we reverse the Examiner’s anticipation rejection of claims 1-3, 6, 7, 13-17, 22, and 23. Appellant’s claims 4, 5, and 18-20, rejected under 35 U.S.C. § 103, also depend on and stands with claims 1 and 13 respectively. Accordingly, we also reverse the Examiner’s obviousness rejection of claims 4, 5, and 18-20 for the same reasons discussed with respect to claim 1 (supra). CONCLUSIONS OF LAW Appellant has shown that the Examiner erred in rejecting claims 1-3, 6, 7, 13-17, 22, and 23 under 35 U.S.C. 102(b). Appellant has shown that the Examiner erred in rejecting claims 4, 5, and 18-20 under 35 U.S.C. 103(a). Appeal 2011-002383 Application 11/244,662 5 DECISION We reverse the Examiner’s rejections of claims 1-3, 6, 7, 13-17, 22, and 23 under 35 U.S.C. 102(b). We reverse the Examiner’s rejections of claims 4, 5, and 18-20 under 35 U.S.C. 103(a). REVERSED pc