Ex Parte Troesken et al

Patent Trial and Appeal Board

Mar 17, 2017

12735160 (P.T.A.B. Mar. 17, 2017)

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.
12/735,160 07/28/2010 Volker Troesken TROESKEN ET AL- 3
PCT
4223
25889 7590 03/20/2017
COLLARD & ROE, P.C.
1077 NORTHERN BOULEVARD
ROSLYN, NY 11576
EXAMINER
NGUYEN, CHUONG P
ART UNIT PAPER NUMBER
3646
MAIL DATE DELIVERY MODE
03/20/2017 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 VOLKER TROESKEN and LASZLO HASENAU
____________

Appeal 2015-005603
Application 12/735,160
Technology Center 3600
____________

Before JENNIFER D. BAHR, LINDA E. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.

HORNER, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Volker Troesken and Laszlo Hasenau (Appellants)1 seek our review
under 35 U.S.C. § 134 of the Examiner’s decision, as set forth in the Final
Action, dated February 20, 2014 (“Final Act.”), rejecting claims 2–6, 9–22,
24–29, and 32. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellants identify “amedo smart tracking solutions GmbH” as the real
party in interest. Br. 1.
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Application 12/735,160

2
CLAIMED SUBJECT MATTER
Appellants’ claimed subject matter “relates to a method for motion
capture.” Spec. 1. Claims 20, 26, and 32 are independent. Claim 20,
reproduced below, is illustrative of the subject matter on appeal.
20. A detection system comprising at least one marker
affixed to an object and comprising [n ≥ 3] reception units
situated at different locations, the at least one marker comprising
a transponder configured to be activated by electromagnetic
radiation to emit a localization signal as electromagnetic
radiation, the detection system being configured to determine a
spatial position of the at least one marker,
wherein in order to determine the spatial position of the at
least one marker, the electromagnetic radiation of the
localization signal emitted by the transponder of the at least one
marker is received via the n ≥ 3 reception units, where n is a
natural number and where a plurality of up to n·(n-1)/2 phase
difference values, which are assigned to pairs of the [n ≥ 3]
reception units, in each instance, are generated from localization
signals received at n locations,
wherein the spatial position of the at least one marker is
determined based upon the phase difference values, and
wherein the transponder and the [n ≥ 3] reception units are
configured to work at two or more different frequencies and the
transponder is configured to carry out a graduated frequency
production in that, at first, the transponder generates a low
frequency localization signal via which a rough determination of
the spatial position takes place, and, second, the transponder
switches to a higher frequency or progressively increases the
frequency of the low frequency localization signal.

Appeal 2015-005603
Application 12/735,160

3
REJECTIONS
The Final Action includes the following rejections before us on
appeal.2
1. Claims 4, 6, 14–22, 24–29, and 32 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Sarnoff (US 2005/0207617 A1, pub.
Sept. 22, 2005), Lohbihler (US 2006/0166681 A1, pub. July 27,
2006), and Groenemeyer3 (CA 2 655 805 A1, pub. Dec. 27, 2007).
2. Claims 2, 3, and 5 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Sarnoff, Lohbihler, Groenemeyer, and Caronni
(US 6,920,330 B2, iss. July 19, 2005).
3. Claims 9 and 11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Sarnoff, Lohbihler, Groenemeyer, and
Rappaport (US 8,019,352 B2, iss. Sept. 13, 2011).
4. Claims 10 and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Sarnoff, Lohbihler, Groenemeyer, and Karr
(US 2003/0146871 A1, pub. Aug. 7, 2003).
5. Claim 13 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Sarnoff, Lohbihler, Groenemeyer, and Shoarinejad
(US 2008/0143584 A1, pub. June 19, 2008).

2 The Final Action was modified by an Advisory Action, dated October 21,
2014, in which the Examiner withdrew a rejection of claims 20–22, 24, and
25 under 35 U.S.C. § 112, second paragraph, as indefinite.
3 The first page of CA 2 655 805 A1 identifies the first named inventor as
Volker Troesken. The Examiner and Appellants refer to this reference as
“Groenemeyer” in this appeal. For consistency, we adopt the nomenclature
used by the Examiner and Appellants and refer to CA 2 655 805 A1 as
“Groenemeyer.”
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4
ANALYSIS
First Ground of Rejection
Appellants present arguments for patentability of claims 4, 6, 14–22,
24–29, and 32 subject to the first ground of rejection as a group. Br. 16–27.
We select independent claim 20 as the representative claim, and claims 4, 6,
14–19, 21, 22, 24–29, and 32 stand or fall with claim 20. See 37 C.F.R.
§ 41.37(c)(1)(iv).
The Examiner found that Sarnoff discloses a method and system for
motion capture, substantially as claimed, including, inter alia, “determining
position based on time of reception or signal strength.” Final Act. 3‒4
(citing Sarnoff, paras. 25, 50). The Examiner acknowledged that Sarnoff
does not disclose, inter alia, “that a plurality of up to n[·](n-1)/2 phase
difference values, which are assigned to pairs of reception units, in each
instance, are generated from localization signals received at n locations, and
wherein the spatial position of the at least one marker is determined based
upon the phase difference values.” Id. (italics added). However, the
Examiner found that Lohbihler discloses this limitation. Id. (citing
Lohbihler, paras. 98–99, Fig. 1C). The Examiner explained that “Lohbihler
teaches n phase difference values for n receivers . . . , which satisfies the
language ‘up to n[·](n-1)/2 phase difference values.’” Id. (italics added)
(citing Lohbihler, para. 122). The Examiner determined that “[i]t would
have been obvious to modify Sarnoff by detecting position using phase
differences because it is a well-known alternative to the time of reception
and signal strength methods taught by Sarnoff.” Id.; see also Ans. 10 (the
Examiner explaining that “the modification would yield a predictable result
in the form of a line of position determined from received radio signals, a
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5
plurality of which can be used in the determination of position in a
conventional manner”).
Appellants argue that Sarnoff “fails to disclose using phase difference
values of localization signals received by multiple receivers to generate its
position information, let alone using a plurality of up to n[·](n-1)/2 phase
difference values received at [n ≥ 3] receivers to generate position
information.” Br. 21 (italics added). This argument against Sarnoff
individually is not persuasive because it fails to address the Examiner’s
rejection as presented, which is based on a determination of what would
have been obvious to one of ordinary skill in the art in view of the combined
teachings of Sarnoff and Lohbihler. Final Act. 3–5. One cannot show
nonobviousness by attacking references individually where the rejections are
based on combinations of references. See In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA
1981)). As discussed supra, the Examiner acknowledged that Sarnoff fails
to disclose determining marker position based on up to n·(n-1)/2 phase
difference values, and relied on Lohbihler for disclosing this feature. Final
Act. 4.
As to the proposed modification of Sarnoff with Lohbihler, Appellants
argue that “Sarnoff fails to express any concern about the deficiency of its
digital representation system that would be improved via a position sensing
device such as Lohbihler which implements a phase difference
determination to help determine position.” Br. 22. According to Appellants,
“one of ordinary skill in the art would not have been looking to Lohbihler
for information as to how to improve the methods or system of Sarnoff.” Id.
at 23. This argument is unpersuasive for two reasons. First, the argument
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appears to urge us to apply a strict teaching, suggestion, or motivation
(TSM) test for obviousness. Rigid application of the TSM test was
explicitly disavowed by the Supreme Court in KSR International Co. v.
Teleflex Inc., 550 U.S. 398, 415, 419 (2007). Second, Appellants’ argument
does not address the Examiner’s articulated reasoning for the proposed
combination of Sarnoff and Lohbihler or explain why the reasoning is in
error. As discussed supra, the Examiner explained that Lohbihler’s phase
difference-based marker position determination is “a well-known alternative
to the time of reception and signal strength methods taught by Sarnoff.”
Final Act. 4. The Examiner’s reasoning is based on rational underpinnings.
As noted by the Examiner, support for the finding that these techniques were
well-known alternatives can be found in paragraphs 11 through 14 of
Lohbihler. Ans. 10. “[I]f a technique has been used to improve one device,
and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.” KSR, 550 U.S. at
417. Appellants have not asserted or provided evidence to show that
applying Lohbihler’s phase difference-based marker position determination
technique to Sarnoff’s marker position system would have been beyond
the level of skill of one of ordinary skill in the art.
Appellants argue that “Lohbihler fails to disclose or suggest the
feature of a plurality of up to n·(n-1)/2 phase difference values.” Br. 23. In
particular, Appellants assert that “Lohbihler discloses that for n receivers in
a system, n phase differences are determined to detect position.” Id. at 25;
see id. at 26 (Appellants asserting that Lohbihler’s “number of phase
difference values used or generated corresponds at most with the number of
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receiving units”). For example, for eight receiving units, Appellants assert
that the claimed system would be “configured or programmed to determine
28 phase differences to determine the [marker] position, while, in contrast,
the system of Lohbihler or the system of Sarnoff modified by Lohbihler
would use at most 8 phase differences to determine the position.” Id. at 25.
We are not persuaded by Appellants’ argument because it is not
commensurate with the scope of representative claim 20, which does not
require generating exactly n·(n-1)/2 phase difference values. Instead, claim
20 recites that, for “n ≥ 3 reception units, . . . up to n·(n-1)/2 phase
difference values . . . are generated.” Id. at 40 (Claims App.) (emphasis
added). In other words, the claim requires that, for n ≥ 3 reception units, no
more than n·(n-1)/2 phase difference values are generated. For example, a
system having four reception units would generate no more than six phase
difference values, per the limitation of claim 20. As acknowledged by
Appellants (id. at 24), Lohbihler discloses that, for a system having four
reception units, four phase difference values are generated (Lohbihler, para.
122). Therefore, because Lohbihler generates no more than six phase
difference values for a system having four reception units, we are not
persuaded of error in the Examiner’s finding that Lohbihler discloses that,
for n ≥ 3 reception units, up to n·(n-1)/2 phase difference values are
generated, which is supported by a preponderance of the evidence.
For the above reasons, we sustain the Examiner’s rejection of claim
20, and of claims 4, 6, 14–19, 21, 22, 24–29, and 32 falling therewith,
under 35 U.S.C. § 103(a) as unpatentable over Sarnoff, Lohbihler, and
Groenemeyer.

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Application 12/735,160

8
Second through Fifth Grounds of Rejection
To contest the rejections of claims 2, 3, 5, and 9–13, Appellants rely
on the arguments presented against the first ground of rejection, and argue
only that none of Caronni, Rappaport, Karr, and Shoarinejad cures the
asserted deficiencies of Sarnoff, Lohbihler, and Groenemeyer. Br. 28–36.
For the same reasons provided supra in our analysis of the First Ground of
Rejection, we find these arguments are not persuasive of error. As such, we
sustain the rejections of claims 2, 3, 5, and 9–13 under 35 U.S.C. § 103(a).

DECISION
The decision of the Examiner to reject claims 2–6, 9–22, 24–29, and
32 is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED