Stuart, Michael D. et al.

Patent Trials and Appeals Board

Oct 22, 2020

2019003784 (P.T.A.B. Oct. 22, 2020)

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.
14/127,638 02/10/2014 Michael D. Stuart 56581.90.2 9994
22859 7590 10/22/2020
FREDRIKSON & BYRON, P.A.
INTELLECTUAL PROPERTY GROUP
200 SOUTH SIXTH STREET, SUITE 4000
MINNEAPOLIS, MN 55402
EXAMINER
VO, TUNG T
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
10/22/2020 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):
IP@FREDLAW.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL D. STUART and JAMES T. PICKETT
Appeal 2019-003784
Application 14/127,638
Technology Center 2400
Before LINZY T. McCARTNEY, JAMES W. DEJMEK, and
JOYCE CRAIG, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–18 and 20–24. See Final Act. 1. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm in part.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42 (2018). Appellant identifies the real party in interest as
Fluke Corporation of Everett, Washington. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The claims are directed to a thermal imager that analyzes temperature
measurement calculation accuracy. Claims 1 and 7 (Appeal Br. 24, 25),
reproduced below, are illustrative of the claimed subject matter:
1. A method of determining whether an object of interest can
have its temperature measurement accurately calculated by a
thermal imaging camera comprising:
a) calculating a measurement instantaneous field of view
(IFOV) of the camera and displaying the calculated measurement
IFOV on a display of the camera as a graphical box such that the
linear dimensions of the graphical box correspond to the size of
the calculated measurement IFOV in linear units and represent
the size of a smallest detail for which an accurate temperature
can be calculated;
b) registering the graphical box with the object of interest
on the display; and
c) determining whether or not a reliable temperature
measurement of the object of interest can be made by
determining whether the thermal image of the object of interest
fills the graphical box thereby indicating that the size of object
of interest is at least the size of the measurement IFOV and that
a reliable temperature measurement of the object of interest can
be made.
7. A method of determining whether an object of interest can
have its temperature measurement accurately calculated by a
thermal imaging camera comprising:
a) generating temperature data of an object of interest in
the form of a pixel matrix comprised of multiple pixels;
b) performing a statistical analysis on the data generated
by the pixel matrix to determine uniformity of the data generated
by the pixel matrix; and
(c) generating a notification indicating whether or not the
object of interest can have its temperature measurement
accurately calculated based on the determined uniformity.
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REJECTIONS
Claims 7–14, 18, and 20–24 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over the combination of Garvey, III et al. (US
2007/0087311 A1, published Apr. 19, 2007) (“Garvey”) and Koshti (US
8,577,120 B1, issued Nov. 5, 2013). Final Act. 2.
Claims 1 and 6 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over the combination of Koshti, Garvey, and Merchant (US
7,542,090 B1, issued June 2, 2009). Final Act. 10.
Claims 2–4 and 15–17 stand rejected under pre–AIA 35 U.S.C.
§ 103(a) as unpatentable over the combination of Wagner (US 8,374,438 B1,
issued Feb.12, 2013), Koshti, and Merchant. Final Act. 15.
Claim 5 stands rejected under pre–AIA 35 U.S.C. § 103(a) as
unpatentable over the combination of Wagner, Koshti, Merchant, and
Garvey. Final Act. 20.
ANALYSIS
Rejection of Claims 7–14, 18, and 20–24 under 35 U.S.C. § 103(a)
We have reviewed the rejection of claims 7–14, 18, and 20–24 in light
of Appellant’s arguments that the Examiner erred. We have considered in
this decision only those arguments Appellant actually raised in the Briefs.
Any other arguments Appellant could have made, but chose not to make, in
the Briefs are waived. See 37 C.F.R. § 41.37(c)(1)(iv).
Appellant’s arguments with regard to claims 7–14, 18, and 20–24 are
not persuasive of error. We agree with and adopt as our own the Examiner’s
findings of facts and conclusions as set forth in the Answer and in the Action
from which this appeal was taken. We provide the following explanation for
emphasis.
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With respect to independent claim 7, the Examiner found that Garvey
teaches generating temperature data of an object of interest and performing
statistical analysis on data generated by a pixel matrix to determine
uniformity of the data. Final Act. 2–4. The Examiner found that Garvey
teaches using a thermal performance algorithm to calculate a thermal
performance characteristic, “such as calculating an average temperature,
calculating a temperature difference, calculating a thermal gradient, defining
an isotherm, or deriving some other temperature-related parameter
associated with an object in the image.” Ans. 49–50 (citing Garvey ¶ 74)
(emphasis omitted); see also Garvey ¶ 79. The Examiner also found that
Garvey teaches a thermal zone that is an area of an image that has a common
thermal property, and is bordered at least in part by an area of the image that
has a different thermal property. Ans. 50 (citing Garvey ¶ 72). Garvey
provides an example in which “a thermal zone may be a first area of an
image that represents temperatures ranging between 100° C. and 120° C.,
and at least a part of that thermal zone is bordered by a second area of the
image that represents temperature less than 100° C. or greater than 120° C.”
Garvey ¶ 72; see also Garvey ¶¶ 73, 105, 109. The Examiner further found
that Garvey suggests a pixel matrix (Ans. 51 (citing Garvey ¶ 79)), and
Koshti teaches that a thermal image includes a pixel matrix (Final Act. 6
(citing Koshti 34:64–35:1)).
Appellant contends that “none of the cited techniques of Garvey
amount to performing a statistical analysis on the data generated by the pixel
matrix to determine uniformity of the data generated by the pixel matrix as
claimed.” Appeal Br. 7–8. Appellant argues that the Examiner erred in
finding that the term “image expanse,” as used in Garvey paragraph 73,
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“refers to a physical feature of the image, such as a pixel count, a subtended
arc, or similar dimension,” and that the recitation of a “similar dimension”
would “obviously suggest a uniformity of the data.” Id. at 8 (citing Final
Act. 4). According to Appellant, Garvey’s use of “similar dimension” in
paragraph 73 merely concludes an open-ended list of different dimensions
that describe spatial information in an image, and is not in any way
comparative. Id. Appellant also argues that different locations having a
“similar spatial dimension” would not suggest uniformity of data generated
by a pixel matrix associated with temperature data as claimed. Id. Appellant
further argues that the plain language of claim 7 links performing the
statistical analysis and determining the uniformity of the data and, thus,
“[a]ssessing that unrelated portions of Garvey disclose such limitations
separately fails to establish the obviousness of performing one step to
perform another step.” Id. at 8.
We are not persuaded that the Examiner erred. The plain language of
claim 7 broadly recites “performing a statistical analysis on the data
generated by the pixel matrix to determine uniformity of the data generated
by the pixel matrix.” On its face, claim 7 does not require that the data
generated by the pixel matrix be uniform, only that uniformity be
determined. Although Appellant argues that certain terms in Garvey do not
teach or suggest uniformity of data, Appellant has not persuasively rebutted
Garvey’s teachings of using a thermal performance algorithm to calculate
temperature-related parameters associated with an object in an image. See
Ans. 49–51. Nor has Appellant persuasively rebutted the Examiner’s
findings with regard to the pixel matrix taught in Koshti. In re Mouttet, 686
F.3d 1322, 1332 (Fed. Cir. 2012) (citing In re Keller, 642 F.2d 413, 425
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(CCPA 1981)) (“The test for obviousness . . . is what the combined
teachings of the references would have suggested to those having ordinary
skill in the art.”).
For these reasons, we are not persuaded that the Examiner erred in
finding that the combination of Garvey and Koshti teaches or suggests the
disputed limitation of independent claim 7.
Accordingly, we sustain the Examiner’s § 103(a) rejection of
independent claim 7, as well as the Examiner’s § 103(a) rejection of
independent claim 18, which recites a similar limitation and is not argued
separately with particularity. See Appeal Br. 10. We also sustain the
Examiner’s § 103(a) rejection of dependent claims 8–14 and 20–24, argued
as a group with claims 7 and 18. Id.

Rejections of Claims 1–6 and 15–17 under 35 U.S.C. § 103(a)
In rejecting independent claim 1, the Examiner found that Koshti
teaches “calculating a measurement instantaneous field of view (IFOV) of
the camera.” Ans. 65. The Examiner relied on Koshti’s teachings of an
instantaneous field of view (IFOV) (Koshti Fig. 1, 35:1–34), a slit response
function (SRF), a measurement ROI (Koshti Fig. 18), and a multipoint
extraction for linear anomalies (Koshti Fig. 17, step 1730). Ans. 65.
Appellant contends that the Examiner erred in finding that Koshti
teaches calculating a measurement IFOV of the camera, as independent
claim 1 requires. Appeal Br. 11.
We agree with Appellant that the Examiner erred. Nowhere has the
Examiner clearly identified where the prior art references teach or suggest a
“measurement instantaneous field of view,” as recited in claim 1. The
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Specification defines the imager’s IFOVmeasurement as “the smallest detail that
one can get an accurate calculated temperature measurement upon” and
describes that its size, “in linear dimension, depends on the distance from the
camera to the object of interest.” Spec. ¶ 89. The Specification further
describes that “IFOVmeasurement is specified in milliradians and is often two to
three times the specified spatial resolution (i.e., spatial IFOV) because more
imaging data is needed to accurately calculate a temperature measurement.”
Id. The Specification distinguishes a “measurement IFOV” from an “IFOV.”
See id.
The Examiner equates Koshti’s “measurement ROI” to the claimed
“measurement IFOV,” but does not clearly explain why one of ordinary skill
in the art would have considered Koshti’s “measurement ROI” to teach or
suggest the “measurement IFOV,” as recited in claim 1. See Ans. 73. We
agree with Appellant that the Examiner’s reliance on Koshti’s teachings of
an instantaneous field of view (IFOV) and slit response function (SRF) do
little to clarify the Examiner’s mapping.
The Examiner also found that Merchant teaches a measurement IFOV.
Ans. 73. The Examiner, however, appears to rely on Merchant’s teaching of
an IFOV, not a measurement IFOV, as claim 1 requires.
For these reasons, on the record before us, we are persuaded that the
Examiner erred in finding that the combination of Koshti, Garvey, and
Merchant teaches or suggests the disputed limitation of independent claim 1.
Because we find it dispositive that the Examiner has not shown by a
preponderance of evidence that the cited prior art teaches or reasonably
suggests the claimed measurement IFOV limitation, we do not address other
issues raised by Appellant’s arguments related to these claims. See Beloit
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Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984) (finding an
administrative agency is at liberty to reach a decision based on “a single
dispositive issue”).
Accordingly, we reverse the Examiner’s § 103(a) rejection of
independent claim 1, as well as the Examiner’s § 103(a) rejection of
independent claim 6, which recites a similar limitation.
Claims 2–5 and 15–17 also require calculating a measurement IFOV.
In rejecting independent claim 2, the Examiner the found that Wagner
teaches single-point or imaging arrays to provide a thermal scene, and that
the image array is “considered as linear units.” Final Act. 15–17. The
Examiner also relied on a portion of Merchant that references a high-
resolution optical image having a one milliradian IFOV, and moving a
reticle in a linear motion along a fixed direction transverse to a focal plane.
Id. at 15–16. The Examiner found that because Wagner teaches an imaging
array, and because Merchant teaches a generic IFOV and linear motion of a
reticle, that Wagner and Merchant combine to teach a measurement IFOV in
linear units. Id.
Appellant argues that the cited teachings in Wagner and Merchant do
not teach or suggest the claimed measurement IFOV, which corresponds to
the linear dimensions of a smallest detail for which an accurate temperature
can be calculated. Appeal Br. 17.
We agree with Appellant that on the record before us, the Examiner
has not clearly explained how the teachings of Wagner and Merchant teach
or suggest the claimed measurement IFOV. The Examiner noted that “a
measurement instantaneous field of view (IFOV) in linear units is well
known in the art measure in milliradian(s).” Final Act. 15. The Examiner
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then pointed to a high resolution (1 milliradian (mr) IFOV) optical image in
Merchant that is modulated by a reticle and relayed at low resolution and
demodulated. Id. at 16. According to the Examiner, the demodulated image
shows only 1-mr hot spots. Id. In the absence of further explanation by the
Examiner, it is not clear how the presence of “only 1-mr hot spots” on an
image teaches or suggests calculating a measurement IFOV in linear units,
the measurement IFOV corresponding to the linear dimensions of a smallest
detail for which an accurate temperature can be calculated, as claim 2
requires.
Because we find it dispositive that the Examiner has not shown by a
preponderance of evidence that the cited prior art teaches or reasonably
suggests calculating the claimed measurement IFOV limitation, we do not
address other issues raised by Appellant’s arguments related to these claims.
See Beloit, 742 F.2d at 1423.
Accordingly, we reverse the Examiner’s § 103(a) rejection of
independent claim 2, as well as the Examiner’s § 103(a) rejection of
independent claim 15, which recites a similar limitation. We also reverse the
§ 103(a) rejections of dependent claims 3–5, 16, and 17, which fall with the
independent claims from which they depend. Nothing in the Examiner’s
separate rejection of dependent claim 5 cured the deficiencies noted above.
DECISION
We affirm the Examiner’s decision rejecting claims 7–14, 18, and 20–
24.
We reverse the Examiner’s decision rejecting claims 1–6 and 15–17.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
7–14, 18,
20–24
103(a) Garvey, Koshti 7–14, 18,
20–24

1, 6 103(a) Koshti, Garvey,
Merchant
1, 6
2–4, 15–17 103(a) Wagner, Koshti,
Merchant
2–4, 15–17
5 103(a) Wagner, Koshti,
Merchant, Garvey
5
Overall
Outcome:
7–14, 18,
20–24
1–6, 15–17

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. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED-IN-PART