Continental Teves AG & Co. oHG

Patent Trials and Appeals Board

May 26, 2021

2020003417 (P.T.A.B. May. 26, 2021)

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.
15/503,241 02/10/2017 Heinrich Acker 2014P02825WOUS 1074
23122 7590 05/26/2021
RATNERPRESTIA
2200 Renaissance Blvd
Suite 350
King of Prussia, PA 19406
EXAMINER
SCHINDLER, DAVID M
ART UNIT PAPER NUMBER
2858
NOTIFICATION DATE DELIVERY MODE
05/26/2021 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):
PCorrespondence@ratnerprestia.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HEINRICH ACKER

____________

Appeal 2020-003417
Application 15/503,241
Technology Center 2800
____________

Before JEFFREY R. SNAY, BRIAN D. RANGE, and JANE E. INGLESE,
Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests review under 35 U.S.C. § 134(a) of the
Examiner’s rejection of claims 1–12 and 14–16.2 We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to the “applicant” as defined in 37 C.F.R. § 1.42.
Appellant identifies Continental Teves AG & Co. oHG as the real party in
interest. Appeal Brief filed October 29, 2019 (“Appeal Br.”), 2.
2 Non-Final Office Action entered June 27, 2019 (“Non-Final Act.”), 1.
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CLAIMED SUBJECT MATTER
Appellant claims a position sensor for detecting the position of a
magnetic object on the basis of impedance. Appeal Br. 2. Claim 1
illustrates the subject matter on appeal, and reads as follows:
1. A position sensor for detecting the position of a magnetic
object, comprising:
a planar coil;
three or more magnetizable elements arranged in a row at
least partially covering the planar coil, the three or more
magnetizable elements being mechanically connected to one
another by upper and lower connecting elements formed from a
same material as the three or more magnetizable elements, the
three or more magnetizable elements capable of being
magnetized by the magnetic object, as a result of which an
impedance of the planar coil can be changed; and
a processor for determining the position of the magnetic
object on the basis of the impedance of the planar coil.

Appeal Br. 9 (Claims App.) (emphasis added and spacing altered).

REJECTIONS
The Examiner maintains the following rejections in the Examiner’s
Answer entered February 10, 2020 (“Ans.”):
I. Claims 1–5, 7–12, and 14–16 under 35 U.S.C. § 1033 as

3 Although the Office Action states that claims 1–5, 7–12, and 14–16 are
rejected under 35 U.S.C 102(a)(1) “as anticipated by” Jansseune in view of
Park, the rejection is set forth under a heading entitled “Claim Rejections -
35 USC § 103,” and includes an obviousness analysis in the body of the
rejection, which appears to indicate that the rejection is actually an
obviousness rejection 35 U.S.C. § 103. Because both parties treat the
rejection as an obviousness rejection, and because Appellant does not
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unpatentable over Jansseune4 in view of Park.5
II. Claim 6 under 35 U.S.C. § 103 as unpatentable over Jansseune
in view of Park and Hunter.6
FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions, we affirm the Examiner’s rejections of
claims 1–12 and 14–16 under 35 U.S.C. § 103 for reasons set forth in the
Non-Final Action, the Answer, and below.
We review appealed rejections for reversible error based on the
arguments and evidence the Appellant provides for each identified issue. 37
C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI
2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365
(Fed. Cir. 2011) (explaining that even if the Examiner had failed to make a
prima facie case, “it has long been the Board’s practice to require an
applicant to identify the alleged error in the examiner’s rejections”).
Appellant presents arguments directed to the subject matter of
independent claim 1 only, to which we accordingly limit our discussion.
Appeal Br. 4–7; 37 C.F.R. § 41.37(c)(1)(iv). Claims 2–12 and 14–16 stand
or fall with claim 1.
Jansseune discloses a position sensor for detecting the position of a
magnetic object, and Jansseune discloses that the sensor includes a planar
coil over which three ferromagnetic elements are arranged. Jansseune col. 1,

contest this point, we consider this rejection to be an obviousness rejection
under 35 USC §103 over Jansseune in view of Park.
4 Jansseune et al., US 6,605,939 B1, issued August 12, 2003.
5 Park et al., US 2005/0035761 A1, published February 17, 2005.
6 Hunter et al., US 2015/0300843 A1, published October 22, 2015.
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ll. 15–19; col. 2, ll. 20–24; col. 6, ll. 15–34; Fig. 9A. Jansseune explains that
during operation, movement of the magnetic object magnetizes the
ferromagnetic elements, causing a change in the inductance of the coil, and a
processing device determines the position of the magnetic object based on
the change. Jansseune col. 5, ll. 11–16, 21–27.
Jansseune discloses that the magnetic elements can be employed in
various shapes and configurations, depending on the type of measurement
sought, and Jansseune’s Figure 8 depicts the use of a single element, while
Figure 9A depicts the use of three magnetic elements spaced apart at
determined intervals. Jansseune col. 6, ll. 11–34; Figs. 7–10. Jansseune
discloses that in certain embodiments, individual magnetic elements may be
split into multiple pieces by a groove in order to reduce the formation of
eddy currents in the pieces. Jansseune col. 7, ll. 18–25. Jansseune explains,
however, that it is advantageous to retain an electrical link connecting the
magnetic elements “in order to ensure sufficient electrical ground continuity
for electromagnetic shielding.” Jansseune col. 7, ll. 27–32.
The Examiner relies upon Jansseune’s Figure 9A for teaching three or
more magnetizable elements. Non-Final Act. 5. While Jansseune discloses
embodiments in which multiple elements are connected as discussed above,
the Examiner acknowledges that Jansseune does not disclose connecting the
elements through “upper and lower connecting elements formed from a
same material” as required by claim 1. Id. The Examiner relies upon Park
for suggesting use of such connecting elements to connect Jansseune’s
ferromagnetic elements. Non-Final Act. 6.
Park discloses a magnetic sensor for detecting signals from a coil
based on the presence of magnetic elements, and Park discloses that the
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sensor may be used to determine the position of an object. Park ¶¶ 32, 57
(discussing the potential of the device as a displacement sensor). Park
discloses that in certain embodiments, the magnetic elements of Park’s
sensor may be arranged as separate parallel bars, while in other
embodiments, the separate magnetic elements may be connected by
connecting elements disposed on opposing sides of the magnetic elements.
Park ¶¶ 48, 49; Figs. 4C, 4D. Park discloses that connecting the magnetic
elements in such a manner minimizes leakage of magnetic flux and allows
easier signal processing, enabling the sensor to achieve high sensitivity.
Park ¶ 55.
In view of these disclosures in Park, the Examiner concludes that it
would have been obvious to one of ordinary skill in the art to mechanically
connect the three magnetizable elements shown in Jansseune’s Figure 9A to
one another by upper and lower connecting elements formed from a same
material as the magnetizable elements, as disclosed in Park. Non-Final Act.
6. The Examiner sets forth multiple advantages that would stem from
modifying Jansseune’s sensor in this way, which would have led one of
ordinary skill in the art to make the proposed modification, including
allowing greater control over the direction of the magnetic field at the coil,
providing additional flux concentrating features to further increase the
magnetic field at the coil thereby increasing the coil sensitivity, and ensuring
sufficient and increased electrical ground continuity for electromagnetic
shielding purposes. Non-Final Act. 6 (citing Jansseune col. 7, ll. 25–31).
Appellant argues that “a person of ordinary skill in the art would not
have been motivated based on Park to create three or more magnetizable
elements connected to one another by upper and lower connecting elements”
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because “Park teaches two distinct embodiments: (i) two side-by-side
magnetic cores; or (ii) a single ring magnetic core,” and “Park explains that
its use of two magnetic cores or a ring magnetic core is ‘important’ in order
to form ‘a closed magnetic path in the soft magnetic cores,’ and thereby
minimize leakage of magnetic flux from the system.” Appeal Br. 5.
Appellant argues that “[a] person of ordinary skill in the art would
understand that the use a third magnetic core would contravene the purpose
of the sensor of Park, both by altering the closed magnetic path (loop), and
by increasing the possibility of leakage of magnetic flux from the system.”
Id.
The Examiner’s rejection, however, is not based on adding a third
magnetic element to Park’s sensor as Appellant’s arguments imply. And
Appellant’s arguments are also improperly based on Park alone, and do not
take into consideration what a combination of the relied-upon disclosures of
Jansseune and Park reasonably would have suggested to one of ordinary skill
in the art. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(“Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.”); In re Keller, 642 F.2d 413, 425 (CCPA 1981)
(The test for obviousness “is what the combined teachings of the references
would have suggested to those of ordinary skill in the art.”).
As discussed above, Jansseune discloses a sensor including three
separate magnetic elements, and Jansseune teaches that connecting the
magnetic elements by an electrical link ensures “sufficient electrical ground
continuity for electromagnetic shielding.” Jansseune col. 7, ll. 27–32. As
also discussed above, Park discloses a sensor including separate magnetic
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elements connected with connecting elements disposed on opposing sides of
the magnetic elements, which Park teaches enables the sensor to achieve
high sensitivity. Park ⁋ 55. One of ordinary skill in the art reasonably
would have been led to modify Jansseune’s sensor to include connecting
elements disposed on opposing sides of the sensor’s three magnetic elements
as disclosed in Park, with a reasonable expectation of successfully increasing
the sensitivity of Jansseune’s sensor. In re Kubin, 561 F.3d 1351, 1360
(Fed. Cir. 2009) (“[o]bviousness does not require absolute predictability of
success . . . all that is required is a reasonable expectation of success.”)
(emphasis omitted, citing In re O’Farrell, 853 F.2d 894, 903‒04 (Fed. Cir.
1988)).
In the Reply Brief, Appellant argues that the Examiner’s proposed
modification of Jansseune’s sensor “would not create a closed magnetic
path; it would create a branching magnetic path between various cores of
Jansseune,” and, therefore, one of ordinary skill in the art would not have
been motivated to provide a connection between Jansseune’s three
magnetizable elements. Reply Br. 1–2.
Appellant, however, does not provide any objective evidence to
support the contention that modifying Jansseune’s sensor as proposed by the
Examiner would create a branching magnetic path between Jansseune’s
magnetic cores. Appellant’s unsupported assertion, therefore, does not
constitute the requisite evidence necessary to establish that one of ordinary
skill in the art would have expected such a result to occur in Jansseune’s
modified sensor. Nor does Appellant’s unsupported assertion establish that
creation of such a branching magnetic path—even if one of ordinary skill in
the art actually would have expected such a result to occur—would have
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dissuaded the ordinarily skilled from modifying Jansseune’s sensor as
proposed by the Examiner. Appellant’s arguments, therefore, do not identify
reversible error in the Examiner’s rejection. In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997) (“An assertion of what seems to follow from common
experience is just attorney argument and not the kind of factual evidence that
is required to rebut a prima facie case of obviousness.”); Icon Health &
Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed. Cir. 2017)
(“[a]ttorney argument is not evidence” and cannot rebut other admitted
evidence).
Appellant argues that Jansseune teaches separating the magnetic
elements of Jansseune’s sensor to avoid the formation of eddy currents
between the magnetic elements. Appeal Br. 6 (citing Jansseune col. 7, ll.
18–20). Appellant argues that although Jansseune acknowledges that an
electrical link can remain between the separate magnetic elements,
Jansseune “does not disclose, teach, or suggest forming upper and lower
connecting elements.” Appeal Br. 6. Appellant argues that “[t]he only
purpose found in the prior art for ‘upper and lower connecting elements
formed from a same material as the three or more magnetizable elements’ is
found in Park” to “form . . . a closed magnetic path between adjacent
magnetic cores.” Id. Appellant argues that one of ordinary skill in the art
would not have modified Jansseune “to include upper and lower connecting
elements between cores” because “doing so would have been expected to
create a loop of flux or current between cores,” and, therefore, the
Examiner’s proposed modification of Jansseune is improperly based on
hindsight. Id. at 6–7.
Appellant’s arguments again do not identify reversible error in the
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Examiner’s rejection.
As discussed above and as Appellant acknowledges, Jansseune’s
disclosures are not limited to fully separated magnetizable elements, and
Jansseune teaches electrically connecting adjacent magnetizable elements
through a connecting element. Jansseune col. 7, ll. 26–31. Jansseune further
teaches that maintaining an electrical connection between the magnetizable
elements “ensure[s] sufficient electrical ground continuity for
electromagnetic shielding purposes.” Id. Appellant’s arguments do not take
into consideration these explicit disclosures in Jansseune, which provide a
reason to connect Jansseune’s magnetizable elements, contrary to
Appellant’s argument that the “only purpose” for providing a connection is
found in Park.
Furthermore, Appellant does not provide any objective evidence to
support the assertion that modifying Jansseune’s sensor as the Examiner
proposes “would have been expected to create a loop of flux or current
between cores.” To the contrary, Jansseune explicitly discloses that
connecting Jansseune’s magnetic elements by an electrical link ensures
“sufficient electrical ground continuity for electromagnetic shielding,”
which reasonably would have indicated the suitability—and usefulness—of
such a connection to one of ordinary skill in the art, contrary to Appellant’s
arguments. And as discussed above, Park explicitly teaches that connecting
magnetic elements in a position sensor using connecting elements disposed
on opposing sides of the magnetic elements enables the sensor to achieve
high sensitivity. The Examiner’s proposed modification of Jansseune’s
sensor is based on achieving the advantages explicitly disclosed in Park and
Jansseune that result from connecting magnetic elements in a position
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sensor, rather than impermissible hindsight as Appellant argues.
Appellant also argues that “no basis” exists in the record for the
Examiner’s assertion that the prosed modification of Jansseune’s sensor
“would ‘provide even greater control over the direction of the magnetic field
at the coil’ and would ‘advantageously provide additional flux concentrating
features.’” Appeal Br. 7. Appellant argues that Jansseune “is entirely silent
regarding any need to control the direction of the magnetic field at the coil,
or on any need to concentrate flux.” Id.
As discussed above, however, the Examiner’s rationale for modifying
Jansseune’s sensor is not based solely on providing greater control over the
direction of the magnetic field at the coil and providing additional flux
concentrating features. Rather, as discussed above, the Examiner finds that
the proposed modification of Jansseune’s sensor would also increase the
sensor’s sensitivity as explicitly disclosed in Park, and would ensure
sufficient and increased electrical ground continuity for electromagnetic
shielding purposes as explicitly discloses in Jansseune. In the Answer, the
Examiner provides a thorough explanation grounded in sound technical
reasoning stemming from the knowledge of one of ordinary skill in the art as
to why using connected magnetizable elements would provide greater
control over the direction of the magnetic field and concentrate flux, and
Appellant does not directly challenge the Examiner’s explanation and
reasoning. Compare Ans. 22–23, with Reply Br. 1–4.
Appellant argues that “Jansseune already provides for electrical
ground continuity, and teaches away from providing increased connection
due to the potential formation of current loops between cores.” Appeal Br.
7.
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As discussed above, however, the Examiner’s proposed modification
of Jansseune’s sensor involves modifying the structure shown in Jansseune’s
Figure 9A. Non-Final Act. 5–6. In this embodiment, the magnetizable
elements are not connected to one another, and, therefore, the benefits of
such a connection are not already provided. The Examiner proposes
connecting the adjacent magnetic elements shown in Jansseune’s Figure 9A
in the manner disclosed in Park, to achieve the explicitly disclosed benefits
taught by both Jansseune and Park (discussed above). As such, Jansseune
does not teach away from connecting Jansseune’s adjacent magnetic
elements as Appellant argues, but, rather, discloses a reason to do so. In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) (“A reference may be said to
teach away when a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant.”).
Nor does Jansseune’s disclosure of one possible way to connect
Jansseune’s adjacent magnetizable elements teach away from the alternate
connection disclosed in Park. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir.
2004) (“[T]he prior art’s mere disclosure of more than one alternative does
not constitute a teaching away from any of these alternatives because such
disclosure does not criticize, discredit, or otherwise discourage the solution
claimed . . . .”).
In the Reply Brief, Appellant argues that the Examiner’s proposed
modification of Jansseune’s sensor would render the sensor unsuitable for its
intended purpose. Reply Br. 2–4. Appellant, however, does not provide any
objective evidence to support such assertions, which, therefore, do not
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identify reversible error in the Examiner’s rejection. Geisler, 116 F.3d at
1470.
We, accordingly, sustain the Examiner’s rejections of claims 1–12 and
14–16 under 35 U.S.C. § 103.

CONCLUSION
Claim(s)
Rejected

35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–5, 7–12,
14–16
103 Jansseune, Park 1–5, 7–12,
14–16

6 103 Jansseune, Park,
Hunter
6
Overall
Outcome
1–12, 14–16

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).

AFFIRMED