Ex Parte Kunz et al

Patent Trials and Appeals Board

Jun 28, 2019

13498984 - (D) (P.T.A.B. Jun. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/498,984 03/29/2012
27350 7590 07/02/2019
LERNER GREENBERG STEMER LLP
Box SA
P.O. BOX 2480
HOLLYWOOD, FL 33022-2480
FIRST NAMED INVENTOR
Martin Kunz
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.
2009Pl4973 1968
EXAMINER
WOO, JAE KYUN
ART UNIT PAPER NUMBER
3795
NOTIFICATION DATE DELIVERY MODE
07/02/2019 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):
boxsa@patentusa.com
docket@patentusa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTIN KUNZ, ANTON SCHICK, and
MICHAEL STOCKMANN
Appeal 2018-006118 1
Application 13/498,9842
Technology Center 3700
Before PHILLIP J. KAUFFMAN, JEREMY M. PLENZLER, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
FINAMORE, Administrative Patent Judge.
DECISION ON APPEAL
1 We reference herein the Final Office Action mailed March 23, 2017
("Final Act."), Appeal Brief filed November 21, 2017 ("Br."), and the
Examiner's Answer mailed March 21, 2018 ("Ans.").
2 According to Appellants, Siemens Aktiengesellschaft is the real party in
interest. Br. 1.
Appeal 2018-006118
Application 13/498,984
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner's decision to reject claims 21-23, 25-27, 30-39, 41, and 42. 3 We
have jurisdiction under§ 6(b). We reverse.
CLAIMED SUBJECT MATTER
Claim 21 is the sole independent claim on appeal and representative
of the claimed subject matter. We reproduce it below, emphasizing the
limitation at issue.
21. An endoscope for measuring a topography of a surface, the
endoscope comprising:
a projection unit having a light source and a projection
structure disposed downstream of said light source, said
projection structure being a slide having a color coding
provided by concentric colored rings configured for
performing color coded triangulation for measuring the
topography;
an imaging unit, said projection unit and said imaging unit
disposed behind one another in relation to an axis of the
endoscope, said imaging unit disposed on said axis of the
endoscope in a viewing direction of the endoscope downstream
of said projection unit; and
an endoscope wall surrounding said projection unit and
said imaging unit and having a first end and a second end,
projection rays emerge laterally through said endoscope wall
spaced from said first and second ends and the projection rays
reflected off the surface being measured emerge through said
endoscope wall and impinge on said imaging unit.
Br., Claims App. (emphasis added).
3 Claims 1-20, 24, 28, and 29 are cancelled. Final Act. 2. The Examiner
has withdrawn claims 40 and 43 from consideration as being drawn to a
nonelected invention or species. Id. at 3.
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Appeal 2018-006118
Application 13/498,984
REJECTIONS 4
The Examiner rejects the claims on appeal as follows:
claims 21-23, 25-27, 30, 41, and 42 under 35 U.S.C. § I03(a) as
unpatentable over Deichmann, 5 Forster, 6 and Danna; 7
claims 31-33 under 35 U.S.C. § I03(a) as unpatentable over
Deichmann, Forster, Danna, and Tsuyuki; 8
claims 34, 35, and 37-39 under 35 U.S.C. § I03(a) as unpatentable
over Deichmann, Forster, Danna, Tsuyuki, and Simkulet;9 and
claim 36 under 35 U.S.C. § I03(a) as unpatentable over Deichmann,
Forster, Danna, Tsuyuki, and Arakawa. 10
ANALYSIS
Independent claim 21 recites "a color coding provided by concentric
colored rings configured for performing color coded triangulation for
measuring the topography." Br., Claims App. Appellants argue:
Forester teaches color coded triangulation using a colored light
source. Danna teaches a camera with a colored filter for filtering
reflected light. Deichmann teaches an endoscope using white
light and no filtering of the white light. None of the prior art
references individually or in combination teach a projection unit
having a light source and a slide with concentric colored rings
4 The Examiner rejects claim 43 under 35 U.S.C. § 112, second paragraph,
as being indefinite. Final Act. 2; Ans. 2. Given the claim is withdrawn from
consideration (Final Act. 3), this rejection is not before us on appeal.
5 US 2003/0164952 Al, published Sept. 4, 2003.
6 US 2010/0060718 Al, published Mar. 11, 2010.
7 US 5,278,642, issued Jan. 11, 1994.
8 US 6,985,170 Bl, issued Jan. 10, 2006.
9 US 2004/0254424 Al, published Dec. 16, 2004.
10 US 4,573,450, issued Mar. 4, 1986.
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Appeal 2018-006118
Application 13/498,984
for outputting colored light to be reflected off an image to be
captured.
Br. 9--10 (emphasis omitted). Appellants' argument is persuasive.
Deichmann discloses scanners for scanning interior surfaces of
cavities or holes in three dimensions. Deichmann ,r,r 13, 95-99. Figure 14
of Deichmann depicts a scanner including a projection unit configured to
scan a surface lying behind the end of the scanner. Id. ,r 64. The Examiner
finds Deichmann discloses the invention substantially as recited in
independent claim 21, except for a "slide having a color coding provided by
concentric colored rings configured for performing color coded triangulation
for measuring the topography." Final Act. 3.
Forster teaches optical measuring device 100 including light
source 110 for generating light 111; hollow cylinder 115 for conducting
light 111 toward a distal end of device 100; and ring-shaped optical
grating 120 for deflecting the light to form outwardly-flaring conical
illumination structures 122. Forster ,r,r 72-74, Fig. 1. Forester further
teaches that the illumination light may be monochromatic or generated by a
light source having a wide-band spectrum such that the projected light is
structured spectrally, i.e., by color. Id. ,r 31. The Examiner relies on Forster
for teaching color coded triangulation, and Appellants concede paragraph 31
of Forster teaches performing color coded triangulation. Final Act. 3--4;
Br. 9. Forster, however, does not teach performing color coded triangulation
by means of concentric, colored rings.
Danna describes endoscope assembly 10 including miniature color
camera 21 embedded in distal tip 12 of the assembly. Danna 2:49-52,
2:67-3:2, Fig. 1. Camera 21 includes charge-coupled device ("CCD")
imager 22, which is capable of generating monochromatic images. Id. at
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Appeal 2018-006118
Application 13/498,984
3:2-5, Fig 2. Filter plate 27', positioned in front of CCD imager 22,
includes concentric red, blue, and green filters 28'-30', respectively. Id. at
3:60-63, Fig. 4. Shutter assembly 31 defines concentric shutter zones that
may be actuated sequentially, permitting red, blue, and green light incident
on camera 21, in succession, to impinge on CCD image 22. Id. at 3:63---65,
Fig. 4. Red, blue, and green images formed by the impingement of light
filtered successively through the red, blue, and green filters 28 '-30',
respectively, onto CCD imager 22 may be combined to construct a full-color
image.
According to the Examiner, it would have been obvious to modify
Deichmann to perform color coded triangulation for the reasons described in
Forster. Final Act. 3--4 ( citing Forster ,r,r 29-31, Abstract). The Examiner
also determines it would have been obvious to modify Deichmann to include
Danna's concentric colored ring filter because one skilled in the art would
have been able to configure the colored ring filter to perform the color coded
triangulation. Id. at 4. According to the Examiner, "the concentric colored
ring of Danna is the spectrally structured alternative of the concentric ring
grating that Forster teaches." Ans. 10.
Although Danna teaches the use of a filter having concentric, colored
rings, positioned near an imager, to produce color-sequential images, Danna
does not teach using such a filter to perform color coded triangulation. The
Examiner has not provided any support for the finding that a person of
ordinary skill in the art would have been able to configure Danna's colored
ring filter to perform color coded triangulation. Similarly unsupported is the
Examiner's finding that Danna's colored ring for filtering light would have
been an alternative to Forster's grating that is used to perform color coded
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Appeal 2018-006118
Application 13/498,984
triangulation with a light source having a wide-band spectrum.
Consequently, the Examiner has not shown persuasively that it would have
been obvious to combine the teachings of Deichmann, Forster, and Danna to
result in "a color coding provided by concentric colored rings configured for
performing color coded triangulation for measuring the topography," as
recited in independent claim 21.
In view of the foregoing, we do not sustain the rejection of
independent claim 21. We similarly do not sustain the rejection of
claims 22, 23, 25-27, 30, 41, and 42 depending therefrom.
The Examiner does not rely on the remaining references in any way
that would cure the deficiency in the Examiner's rejection of independent
claim 21, and the Examiner's rejections of claims 31-39 suffer from the
same deficiency as the Examiner's rejection of independent claim 21.
Final Act. 5-7. Accordingly, for the same reasons as independent claim 21,
we do not sustain the Examiner's rejections of claims 31-39.
DECISION
The Examiner's decision to reject claims 21-23, 25-27, 30-39, 41,
and 42 is reversed.
REVERSED
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