Ex Parte Heller

Patent Trials and Appeals BoardFeb 22, 2019

13668270 - (D) (P.T.A.B. Feb. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/668,270 11/03/2012 70023 7590 02/22/2019 JOHN B. LINDSAY 11700 Preston Rd Ste 660-167 Dallas, TX 75230 FIRST NAMED INVENTOR Alan C. Heller 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. febrileRemoteSensor 3736 EXAMINER W ARSI, YASMEEN S ART UNIT PAPER NUMBER 3791 MAIL DATE DELIVERY MODE 02/22/2019 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 ALAN C. HELLER Appeal2017-010784 Application 13/668,270 Technology Center 3700 Before ULRIKE W. JENKS, TIMOTHY G. MAJORS, and RACHEL H. TOWNSEND, Administrative Patent Judges. JENKS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. Â§ 134(a), Appellant1 appeals from Examiner's decision to reject2 the claims as obvious. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Appellant identifies the real party in interest as Alan C. Heller. Br. 2. 2 In this Decision, we refer to the Final Office Action, mailed Sept. 28, 2015 ("Final Act."); Appeal Brief, filed Feb. 29, 2016 ("Br."); and the Examiner's Answer, mailed Jul. 12, 2016 ("Ans."). Appeal2017-010784 Application 13/668,270 STATEMENT OF THE CASE Claims 11-14 are on appeal, and can be found in the Claims Appendix of the Appeal Brief. Claim 11 depends on claim 1, and claims 1 and 11 are reproduced below: 1. A system for real time detection of a febrile condition, the system comprising: a remote heat sensor configured for orientation towards the facial region of a person within a zone of detection and operable to receive thermal radiation. 11. The system of claim 1 further comprising an identity system. (Br., Claims Appendix, 9.) The claims stand rejected as follows: I. Claim 1 under 35 U.S.C. Â§ I02(b) as being anticipated3 by Fraden. 4 Final Act. 2. II. Claims 11-14 under 35 U.S.C. Â§ I03(a) as unpatentable over Fraden in view of Anderson. 5 Id. at 3. 3 Appellant does not argue the merits of this rejection. See Br. 3 ("The claims at issue in this Appeal are claims 11-14"). We, therefore, summarily affirm this rejection. See Manual of Patent Examining ProcedureÂ§ 1205.02 (9th Ed., Rev. 08.2017, Jan. 2018). The failure to appeal is a waiver under Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). 4 Fraden, US 2007/0153871 Al, published July 5, 2007. 5 Anderson et al., US 2010/0205667 Al, published Aug. 12, 2010 ("Anderson"). 2 Appeal2017-010784 Application 13/668,270 Obviousness over Fraden and Anderson Examiner finds that "Fraden discloses a camera 6 with the ability to detect faces . . . [but acknowledges that] Fraden is silent regarding an identity system." Final Act. 3. Examiner relies on Anderson for teaching an identity system. Id. Examiner concludes that "[i]t would have been obvious at the time the invention was made to modify Fraden in view of Anderson for the purpose of alerting authorized personnel of the identity of person." Ans. 5. Appellant contends that the rejection lacks an articulated reason for combining the references, and that the references are non-analogous art. See Br. 5-7. The issue with respect to this rejection is whether the preponderance of evidence of record supports Examiner's conclusion that the inclusion of an identification system into Fraden's heat sensor system is an obvious combination of known parts with no change in their respective functions. Findings of Fact We agree with and adopt the Examiner's findings of fact and reasoning regarding the scope and content of the prior art as set out in the Final Office Action and Answer. For emphasis only we highlight the following: FF 1. Fraden teaches a system that screens subjects for fever. Fraden, Abstract. Figure 3, reproduced below, shows such a fever screening system. 3 Appeal2017-010784 Application 13/668,270 /. - - - . . . . . - - - - - - . . . . . .. - - -, 6 : _.,..25 ' L--------- / 27-,. , / ..... CJ: 28-/ cfi9. 3 ' ' Figure 3 shows, target gate 4 with subject 3 standing between the thermal reference targets 18a and 18b. Id. ,r 32. "[T]arget gate 4 is the place where a fever detection takes place. The detection is performed by the thermal imaging camera 5 and signal processing equipment 6. The equipment 6 is connected to an indicator, for example, an alarm 12 when fever is detected." Id. ,r,r 24, 33. FF2. Fraden contemplates additional equipment for the system in order to position the thermal camera so the subject's face is properly positioned in the camera's field of view. Id. ,r 31. To force the camera 5 to reposition the filed [sic] of view ( either manually or automatically), a secondary presence detector 19 may be employed .... Alternatively, the height of the subject may be determined by a pattern recognition of the image taken by camera 5 and the camera field of view adjusted accordingly .... Another alternative way of positioning a thermal imaging camera is to supplement it with a conventional visible range video camera with an appropriate pattern recognition system (these components are not shown in the figures). Id. ,I 33. 4 Appeal2017-010784 Application 13/668,270 FF3. Anderson teaches "using an image sensor (1400), such as a camera ( e.g., a 'webcam') or a dedicated gaze tracker, electronically coupled with a security processor (not shown)." Anderson ,r 45. Anderson teaches using a "user's face and hand gestures by a webcam or other image sensor ... [for] user identification and authorization dialog .... [In order to provide] the identification and access of user information from a database of user profiles." Id. at ,r 28. "[S]uccessful authentication grants access to the device with the security level assigned to the identified user." Id. ,r 56. FF4. Anderson teaches that in addition to "[r]ecognition of the user's face, entry of a password, presentation of additional authentication ( e.g., biometric data input, smart card, token-based key access, RFID presence or a combination of some or all of these or others) can be required." Id. ,r 7 4. FF5. Anderson teaches that the "video capture device data [can be used] to perform object recognition processing and identify objects in view in the local environment (curtains, filing cabinets, television, etc.), and ... this information [is used] to determine current location." Id. ,r 84. In addition to using objects, bar code labels can also be present in the video capture device data and used for identification purposes in order to set the security policy, as "OFFICE," "HOME," or "in public.". Id. 5 Appeal2017-010784 Application 13/668,270 Analysis Fraden teaches a system that screens subjects for fever using a thermal camera and processing equipment. FF 1. Fraden' s system can include additional equipment, such as a video camera in order to properly position the thermal camera onto the subject's face. FF2. Anderson teaches using an imaging system, such as a webcam, for identifying a user. FF3. In addition to facial recognition, Anderson teaches using other authentication methods, such as RFID to provide additional identification metrics. FF4. Anderson also contemplates using bar code reader labels as a way of identifying the location of the webcam and associated device in order to set the appropriate security level. FF5. The KSR Court noted that a combination of old elements has been held to be obvious when "[ t ]he two [elements] in combination did no more than they would in separate, sequential operation." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417 (citing Anderson's-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969)). Applying the KSR standard of obviousness to the findings of fact here, we agree with Examiner that it would have been obvious to an ordinary artisan of ordinary creativity to include the video identification system of Anderson with the fever detection system of Fraden in order to arrive at the claimed detection system. See Ans. 7. We are not persuaded by Appellant's contention that the rejection lacks an articulated reason for the combination. See Br. 4--5. Examiner explained that "one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately and the 6 Appeal2017-010784 Application 13/668,270 results of the combination were predictable." Ans. 7. As Examiner explains, claim 11 "does not require any interplay and/or structural/functional connection between the identity system and other claimed components." Id. at 8. We agree with Examiner that adding Anderson's image sensor (FF3) that allows for identification of the subject and incorporating it into Fraden's thermal sensor system (FF 1) allows each system to work independently with the added benefit that each subject is now authenticated as they move through the system. In addition, we note that Fraden already teaches a system that utilizes both a thermal camera in addition to a conventional visible range video camera. FF2. The video camera in Fraden is used to position the thermal camera onto the subject's face. FF2. Here, the video camera of Fraden already captures the subject's face, adding Anderson's subject recognition processing would have been obvious to one of ordinary skill in the art in order to link the thermal image information with a particular subject. We agree with Examiner that it would have been obvious to the ordinary artisan to identify the subject being tested for fever in order to further communicate the health status with the subject or authorities. See Ans. 5 ("It would have been obvious at the time the invention was made to modify Fraden in view of Anderson for the purpose of alerting authorized personnel of the identity of person to determine whether they are a threat to the security of the area such as an airport or not."). After all, the person having ordinary skill in the art is presumed to have ordinary creativity and intelligence. KSR 550 U.S. at 421; see also In re Sovich, 769 F.2d 738, 743 (Fed. Cir. 1985). We are also not persuaded by Appellant's non-analogous art argument. See Br. 7. Art is analogous if it is (1) from the same field of 7 Appeal2017-010784 Application 13/668,270 endeavor, regardless of the problem addressed, or (2) reasonably pertinent to the particular problem with which the inventor is involved. In re Clay, 966 F.2d 656, 658-59 (Fed. Cir. 1992). "[E]xaminer considered the problem faced by the inventor, as reflected in the specification and notes that the examiner's understanding of the problem as using a system to identify an individual and their health status e.g. fever to safeguard other individuals from any possibly communicable disease or infection." Ans. 11. Here, both Fraden and Anderson are involved in the identification of subjects. See FFl, FF3. Fraden identifies subjects having fever, while Anderson identifies subjects having certain security clearances. Because the art is reasonably pertinent with the problem of identifying individuals, we agree with the Examiner that Fraden and Anderson are analogous art for this purpose. We conclude that the evidence cited by the Examiner supports a prima facie case of obviousness with respect to claim 11. Claims 12-14 were not separately argued and fall with claim 11. 37 C.F.R. Â§ 41.37 (c)(l)(iv). SUMMARY The rejection of claims 11-14 under 35 U.S.C. Â§ 103(a) over Fraden and Anderson is affirmed. 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. Â§ 1.136(a). AFFIRMED 8