Ex Parte Morris et al

Patent Trial and Appeal BoardDec 5, 2012

10768711 (P.T.A.B. Dec. 5, 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. 10/768,711 02/02/2004 Ian Morris 5394 5111 26936 7590 12/05/2012 SHOEMAKER AND MATTARE, LTD 10 POST OFFICE ROAD - SUITE 100 SILVER SPRING, MD 20910 EXAMINER HESS, DANIEL A ART UNIT PAPER NUMBER 2876 MAIL DATE DELIVERY MODE 12/05/2012 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 IAN MORRIS, JAMES NEIL ELLIOTT, and DAVID JOHN PERRY ____________ Appeal 2009-012847 Application 10/768,711 Technology Center 2800 ____________ Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and CARLA M. KRIVAK, Administrative Patent Judges. KRIVAK, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-012847 Application 10/768,711 2 Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-29 and 42. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants’ claimed invention is directed to an optical sensor for sensing items transported along an item transport path (Spec. 2:21-22). Independent claim 1, reproduced below, is representative of the subject matter on appeal. 1. An optical sensor for sensing items transported along an item transport path, comprising: a transmitter element for transmitting a sensing beam to a detection location, which sensing beam is reflected by each item as transported through the detection location; a receiver element for sensing the reflected sensing beam and outputting an output signal; and a processor unit for receiving the output signal of the receiver element and identifying a control code comprising at least one element, where present on an item, from the output signal, wherein the output signal has a first, element background value defined by a background reflectance of the respective item at the control code and a second, element sensed value defined by a reflectance of the at least one element of the control code; wherein the processor unit provides for self-calibration of the optical sensor and the transmitter and receiver elements are not pre-calibrated. Appeal 2009-012847 Application 10/768,711 3 REFERENCES and REJECTION The Examiner rejected claims 1-29 and 42 under 35 U.S.C. § 103(a) based upon the teachings of Knowles (U.S. Patent Application Publication No.: 2003/0094495 A1, published May 22, 2003) and McMillin (U.S. Patent No. 3,820,068, issued June 25, 1974) (Ans. 3-8). ANALYSIS Appellants contend the Examiner is incorrect in finding McMillin discloses a comparison between a reflectance of elements of a bar code and a background reflectance, and thus, the combination of Knowles and McMillin would not result in Appellants’ claimed invention (Br. 4). We do not agree and adopt Examiner’s findings as our own (Ans. 9- 14). Particularly, McMillin discloses “comparison with a background level expressly for calibrating” (claim 1) (Ans. 10). Additionally, as the Examiner finds, Knowles also discloses this feature, but McMillin makes it explicit (claim 12) (Ans. 13). Lastly, Appellants’ argument that the threshold value is determined from a previously-scanned item is without merit as this limitation is claimed in the alternative (claim 42) (Ans. 14). For the above reasons, we are not persuaded of Examiner error. We find the weight of the evidence supports the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness, and therefore sustain the Examiner’s rejection of claims 1-29 and 42. DECISION The Examiner’s decision rejecting claims 1-29 and 42 is affirmed. Appeal 2009-012847 Application 10/768,711 4 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(2010). AFFIRMED Vsh