UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES

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1 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES Ex parte NICHOLAS C. TALBOT, MARK E. NICHOLS, GARY L. CAIN, and JAMES M. JANKY Appeal Technology Center 3600 Decided: October 21, 2009 Before WILLIAM F. PATE, III, STEFAN STAICOVICI, and KEN B. BARRETT, Administrative Patent Judges. BARRETT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Nicholas C. Talbot et al. (Appellants) seek our review under 35 U.S.C. 134 of the final rejection of claims Claim 20 has been cancelled. We have jurisdiction under 35 U.S.C. 6(b).

2 We AFFIRM. SUMMARY OF THE DECISION THE INVENTION Appellants claimed invention pertains to a combination of laser and global navigation satellite (GPS) systems for position tracking and machine control. Spec. 1, para. [0001]. Claim 1, reproduced below, is representative of the subject matter on appeal. 1. A system for determining position, comprising: a laser transmitter that projects at least one laser beam that rotates about a generally vertical axis, a GPS receiver for determining position, the GPS receiver having a GPS antenna, an optical sensor for receiving the laser beam, said optical sensor being coaxial with, and at, or displaced a small distance from, the phase center of said GPS antenna, and a device receiving signals from the GPS receiver and signals from the optical sensor to determine the position of the sensor and the receiver therefrom, said device utilizing signals received from the optical sensor to improve the estimate of position based on said signals from said GPS receiver. THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Anderson US 5,848,485 Dec. 15, 1998 Nichols US 6,433,866 B1 Aug. 13, 2002 Ohtomo US 2003/ A1 July 24,

3 The following Examiner s rejections are before us for review: 1. Claims 1, 2, 5, 6, 9, 10, 13-16, and 19 are rejected under 35 U.S.C. 102(e) as being anticipated by Ohtomo; 2. Claims 3, 7, 11, and 17 are rejected under 35 U.S.C. 103(a) as being unpatentable over Ohtomo and Nichols; and 3. Claims 4, 8, 12, and 18 are rejected under 35 U.S.C. 103(a) as being unpatentable over Ohtomo and Anderson. ISSUES Appellants independent claims 1, 5, 9, 15, and 19 recite a device or a microprocessor to determine a position from GPS and optical (laser) signals. The Examiner found that Ohtomo discloses the claimed device or microprocessor by teaching a machine control system in which the machine s horizontal position (location on the X- and Y-axes) is provided by a GPS system and the elevation (location on the Z-axis) is provided by a laser system. See Ans. 3-5, 7. Appellants argue that the inventions recited in the independent claims differ from Ohtomo s system. See, e.g., App. Br. 7. Appellants appear to contend that the claimed invention requires that the GPS system provides the estimated position in all three coordinate dimensions. E.g., id. Thus, the first issue on appeal is: Have Appellants shown that the Examiner erred in finding that Ohtomo discloses the position determining device or microprocessor recited in the independent claims? Additionally, the Examiner concluded that the subject matter of dependent claims 4, 8, 12, and 18 is unpatentable because it would have been obvious to use a least squares approximation, as taught by Anderson, in 3

4 the system of Ohtomo. Ans. 6. Appellants argue that Anderson s system is not similar to the claimed system, and that one would not have been led to apply a least squares analysis to data from both the GPS and laser systems. E.g., App. Br. 16. Thus, the second issue is: Have Appellants shown that the Examiner erred in concluding that it would have been obvious to use a least squares approximation as called for in claims 4, 8, 12, and 18? FINDINGS OF FACT We find that the following enumerated findings are supported by at least a preponderance of the evidence. 1. An ordinary meaning of the word facilitate includes [t]o render easier the performance of (an action), the attainment of (a result); to afford facilities for, promote, help forward (an action or process). OXFORD ENGLISH DICTIONARY (2nd ed. 1989). 2. Appellants Specification does not explicitly define the scope of the claim phrase to facilitate the determination of said machine position. However, the Specification s Summary of the Invention states in this regard: Each mobile unit equipped with a combination laser detector and global navigation satellite antenna uses the data from both the laser system and the GPS system to improve its position determination capabilities. The signals received from said laser detector are used to facilitate the determination of the position of the mobile unit based on the signals from the global navigation satellite antenna. Spec. 2, para. [0005]. 3. Ohtomo discloses a control system for a bulldozer, utilizing a rotary laser apparatus 151 and optical sensor 154 to measure elevation, and a 4

5 GPS receiver 510 (which is provided with signal processor 654) for determining the horizontal two-dimensional position. Ohtomo, paras. [0002], [0170], [0171]. Both the optical sensor and the GPS antenna may be attached to the body of the machine. Id., paras. [0171], [0179]. The system has a controller 650 that includes an arithmetic operation unit 651 and a memory 652. Id., para. [0170], fig. 28. The desired altitude of the ground level relative to the horizontal two-dimensional (X and Y) coordinates is stored in the memory in advance. Id., para. [0176]. The machine s horizontal position data (X1, Y1) from the GPS signal processor 654 and the actual (as opposed to desired) elevation data (H1) from the optical sensor 154 are input to the arithmetic operation unit 651. See id., para. [0176], fig. 28. The arithmetic unit calculates the height of the bulldozer blade relative to the desired ground level at the machine s horizontal position. Id., para. [0176]. Based on this calculation, the arithmetic operation unit provides a control command to effect the required movement of the blade. Id., para. [0177]. 4. Anderson discloses a system and method utilizing a laser transceiver and reflectors to determine the position of an earthmoving excavator bucket on the end of an articulated arm. See Anderson, col. 1, ll. 7-14; col. 19, ll ; fig. 1. Anderson teaches the use of the least squares method during the performance of the setup procedure for the system so as to minimize inaccuracies due to joint clearances. Id., col. 19, l. 55 col. 20, l. 10; see also App. Br. 16. Anderson further teaches that: It has been found desirable to calculate unknown installation specific parameters using the least square method. The use of the least square method helps to eliminate the risk of incorrect 5

6 setup results, because bad setup results can easily be detected and rejected by using this method. Id., col. 19, ll PRINCIPLES OF LAW During examination of a patent application, pending claims are given their broadest reasonable construction consistent with the specification. In re Prater, 415 F.2d 1393, (CCPA 1969); In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). It is the Appellants burden to precisely define the invention, not that of the United States Patent and Trademark Office. In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997) (citing 35 U.S.C. 112, 2). Appellants have the opportunity to amend the claims during prosecution, and broad interpretation by the Examiner reduces the possibility that the claim, once issued, will be interpreted more broadly than is justified. Prater, 415 F.2d at A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference. Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987) (citations omitted). Section 103 forbids issuance of a patent when the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. KSR Int l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting 35 U.S.C. 103). [I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize 6

7 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. Id. at 417. ANALYSIS The rejection of claims 1, 2, 5, 6, 9, 10, 13-16, and 19 under 35 U.S.C. 102(e) as being anticipated by Ohtomo Appellants argue the rejected claims under five subheadings, each corresponding to an independent claim. For each subheading, we select the independent claim as the representative claim, and the dependent claims grouped therewith stand or fall with the respective independent claim. 37 C.F.R (c)(1)(vii) (2009). As Appellants readily admit, Ohtomo discloses a machine control system in which the machine s position in the horizontal plane (the X-axis position and the Y-axis position) is determined from the output of the GPS system, and the machine s elevation (the Z-axis position) is determined from the output of the laser receiver. App. Br. 5-6; see also Fact 3. Appellants, however, argue that the claimed invention processes the data significantly different than does Ohtomo s system. See, e.g., App. Br. 7. Claims 1 and 2 Claim 1 recites: a device receiving signals from the GPS receiver and signals from the optical sensor to determine the position of the sensor and the receiver therefrom, said device utilizing signals received from the optical sensor to improve the estimate of position based on said signals from said GPS receiver. Appellants appear to argue that the claim requires the laser system and the GPS receiver to both provide position estimate source data for all three coordinate dimensions (X-, Y-, and Z-axes). App. Br. 7. Appellants argue 7

8 that, in the claimed invention, [t]he position estimate in all three dimensions derived from the GPS system output is enhanced using signals from the optical sensor. Id. However, Appellants arguments are not commensurate with the language of claim 1. The claim language does not recite the requirement of three coordinate dimensions and does not require that either the laser system or the GPS receiver provide a location estimate in all three dimensions. The claim merely requires a device utilizing laser signals to improve the position estimate based on GPS signals. As the Examiner explains, Ohtomo uses GPS to estimate the machine s location in space (its position in the horizontal X-Y plane) and uses the laser system to improve that position estimate by adding the elevation component (the Z- axis position). Ans. 7; see Fact 1. Thus, Ohtomo s system satisfies the pertinent limitation in that it has a device (the arithmetic operation unit in the controller) using optical sensor signals (from the laser system) to improve the position estimate based on signals from the GPS system. Appellants also argue that, in Ohtomo s system, the outputs of the GPS and the laser system are never combined to produce position data. App. Br. 7. We disagree with this reading of Ohtomo because the arithmetic unit combines the GPS and laser data to determine the position in all three coordinate positions. Fact 1. Appellants have not persuaded us of error in the rejection of claim 1, and we accordingly affirm the rejection of claims 1 and 2 as anticipated by Ohtomo. 8

9 Claims 5 and 6 Claim 5 recites: a device on the machine, receiving a signal from the GPS receiver and a signal from the optical sensor, to determine the position of the machine from a combination of all of said signals and for providing a control signal. Appellants argue that Ohtomo does not disclose combining GPS and laser signals to provide a control signal. This argument is not persuasive as we have found that Ohtomo s arithmetic operation unit calculates the location of the bulldozer blade (in three dimensions) relative to the desired ground level from the combination of laser and GPS signals, and provides a control signal for appropriate movement of the blade. Fact 3. We affirm the rejection of claims 5 and 6. Claims 9, 10, 13, and 14 Claim 9 recites: a device on the machine, receiving signals from the GPS receiver and signals from the optical sensor, to determine the position of the machine therefrom, said device utilizing said signals received from said optical sensor to facilitate the determination of said machine position based on said signals from said GPS receiver. Appellants again appear to argue that the claim language requires that the GPS system provide the machine s position in all three dimensions. See App. Br. 10. However, the claim does not mention three dimensions or state that all three dimensions must come from the GPS system. Rather, the claim merely requires a device using the laser system signals to facilitate the determination of said machine position based on GPS signals. Appellants Specification does not explicitly define the scope of this quoted phrase, but 9

10 suggests that laser signals are utilized to facilitate the position determination when they are used to improve a position determination based solely on the GPS signals. See Fact 2; see also Fact 1 (an ordinary meaning of facilitate is to help forward a process). Ohtomo s system improves the GPS-determined position (location in the horizontal plane) by the addition of the elevation component from the laser signals. Fact 3. Thus, Ohtomo discloses the recited feature. Appellants have not persuaded us that the Examiner erred in rejecting claim 9 as anticipated by Ohtomo, and we affirm the rejection of claims 9, 10, 13, and 14. Claims 15 and 16 Claim 15 recites: a device on the machine, receiving a signal from the GPS receiver and a signal from the optical sensor, to determine the position of the machine from a combination of all of said signals and for providing a control signal. Appellants contend that Ohtomo s signals are not combined, but are processed separately. App. Br. 11. This contention is unpersuasive in that Ohtomo s arithmetic unit utilizes data from both the GPS and laser systems to determine the blade position. Fact 3. Accordingly, we affirm the rejection of claims 15 and 16. Claim 19 Claim 19 recites: a microprocessor, responsive to said first data [from a global navigation satellite receiver that includes an antenna] and said second data [from an optical sensor], configured to determine an estimate of the position of said receiver and said antenna, in which said second data is combined with said first data before determination of said estimate of position. 10

11 Appellants argue that, in Ohtomo s system, the GPS receiver and the optical sensor signals are not combined, but rather are processed separately, and that the claim language does not encompass such a system. App. Br. 11. The claim requires a microprocessor configured to combine the laser data and the GPS data before determining the estimated position. While Ohtomo s system does process the GPS signal (at signal processor 654 in the GPS receiver 510) prior to outputting the X and Y location data to the arithmetic unit, that unit receives inputs from both the GPS and laser systems as a precursor to calculating the location in three dimensions. Fact 3. In other words, data from the GPS system and data from the laser system are combined before the determination of the improved, three dimensional estimate of the position. Thus, we do not find Appellants argument to be persuasive, and we affirm the rejection of claim 19. The rejection of claims 3, 7, 11, and 17 under 35 U.S.C. 103(a) as being unpatentable over Ohtomo and Nichols As an initial matter, we note that Appellants consistently incorrectly refer to the secondary reference for this rejection as Anderson, rather than Nichols. See App. Br. 5, Because Appellants correctly identify Nichol s patent number (US 6,433,866) in the several headings directed to this rejection, we understand the references to Anderson to be unintended errors. Each of the claims subject to this rejection depend from one of the independent claims subject to the previous rejection. Although Appellants address each of the rejected claims 3, 7, 11, and 17 under separate headings, Appellants arguments are the same that Nichols does not correct the purported defect of Ohtomo as argued in the context of the first rejection. See App. Br For the reasons set forth above, Appellants have not 11

12 demonstrated that Ohtomo has such a defect in need of correction. Because Appellants do not present any other argument regarding these claims, it then follows that Appellants have not shown error in the rejection of claims 3, 7, 11, and 17 as obvious over Ohtomo and Nichols, and we affirm that rejection. The rejection of claims 4, 8, 12, and 18 under 35 U.S.C. 103(a) as being unpatentable over Ohtomo and Anderson Rejected claims 4, 8, 12, and 18 depend directly from independent claim 1, 5, 9, or 15, respectively, and further recite the utilization of a least squares approximation to determine the most likely position based on signals from the optical sensor and the GPS receiver. Similar to the previous rejection, Appellants address each of the rejected claims under separate headings, but make the same two arguments for each claim. See App. Br First, Appellants again argue that the secondary reference (Anderson in this rejection) does not correct the previously argued purported defect in the underlying Ohtomo-based rejection of the respective independent claim. E.g., App. Br. 15. As Appellants have not persuaded us of error in the Examiner s rejection of the independent claims, Appellants first argument is not persuasive. Second, Appellants argue that Anderson s system is not similar to the claimed invention (apparently because Anderson is directed to an all lasercontrolled excavator ), and that a person of ordinary skill would not be led to apply a least squares analysis of Anderson to data produced by both GPS and laser systems. E.g., App. Br. 16. Appellants have not persuaded us that the Examiner erred in concluding that [i]t would have been obvious to use the least squares approximation because this is a common means of 12

13 approximating a position and adds no new or unexpected results. Ans. 6. Anderson indicates that the least squares method was well known and teaches the desirability of using the method to minimize inaccuracies. See Fact 4. Utilizing a least squares approximation in Ohtomo s system amounts to the application of a known technique to a known device in order to achieve the predictable result of improved accuracy, and would have been obvious to one having ordinary skill in the art. Appellants have not shown error in the Examiner s rejection of claims 4, 8, 12, and 18 as being obvious over Ohtomo and Anderson. CONCLUSIONS Appellants have not shown that the Examiner erred in finding that Ohtomo discloses the position determining device or microprocessor recited in the independent claims. Appellants also have not shown that the Examiner erred in concluding that it would have been obvious to use a least squares approximation as called for in claims 4, 8, 12, and 18. DECISION The decision of the Examiner to reject claims 1-19 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R (a). See 37 C.F.R (a)(1)(iv) (2007). AFFIRMED 13

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