Ex Parte Ausserlechner

Patent Trial and Appeal Board

May 14, 2018

12352119 (P.T.A.B. May. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/352,119 01112/2009
25281 7590 05/16/2018
DICKE, BILLIG & CZAJA
FIFTH STREET TOWERS
100 SOUTH FIFTH STREET, SUITE 2250
MINNEAPOLIS, MN 55402
FIRST NAMED INVENTOR
Udo Ausserlechner
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
I560.248.101/2008P51735US 1187
EXAMINER
SCHINDLER, DAVID M
ART UNIT PAPER NUMBER
2858
NOTIFICATION DATE DELIVERY MODE
05/16/2018 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):
USPTO.PA TENTS@dbclaw.com
dmorris@dbclaw.com
DBCLA W-Docket@dbclaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte UDO AUSSERLECHNER
Appeal2017-004469
Application 12/352, 119
Technology Center 2800
Before ADRIENE LEPIANE HANLON, JAMES C. HOUSEL, and
JENNIFER R. GUPTA, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL 1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner's decision rejecting claims 1-23, 25, and 27. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Our decision refers to the Specification (Spec.) filed January 12, 2009, the
Examiner's Non-Final Office Action (Non-Final) dated April 8, 2016,
Appellant's Appeal Brief (Appeal Br.) filed June 27, 2016, the Examiner's
Answer (Ans.) dated November 23, 2016, and Appellant's Reply Brief
(Reply Br.) filed January 23, 2017.
2 According to Appellant, the real party in interest is Infineon Technologies,
AG. Appeal Br. 3.
Appeal2017-004469
Application 12/352, 119
STATEMENT OF THE CASE
The invention relates to a sensor for determining the angular position
of a rotating member, wherein the angle sensor includes an annular ring
magnet to be attached to a rotatable shaft, a first magnetic sensor proximate
the ring magnet to measure magnetic field lines within the annulus of the
magnet, and a second magnetic sensor proximate the ring magnet to measure
magnetic field lines outside the annulus of the magnet (Spec. i-fi-f l, 4).
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal.
1. An angle sensor, comprising:
a ring magnet adapted to be attached to a rotatable shaft, the
ring magnet having an axis of rotation and an inner radius and an
outer radius extending from the axis of rotation to define an annulus,
the ring magnet having a homogeneous magnetization in a first
direction that is oriented perpendicular to the axis of rotation;
a first magnetic sensor positioned proximate the ring magnet at
a first distance from the axis of rotation to measure magnetic field
lines generated by the homogeneous magnetization of the ring magnet
in the first direction, wherein the first distance is greater than the inner
radius and less than the outer radius; and
a second magnetic sensor positioned proximate the ring magnet
at a second distance from the axis of rotation to measure magnetic
field lines generated by the homogeneous magnetization of the ring
magnet in the first direction, wherein the second distance is greater
than the outer radius or less than the inner radius, the second distance
different from the first distance so that the first and second magnetic
sensors are disposed at different distances from the axis of rotation;
wherein the first magnetic sensor is situated entirely between
the inner radius and outer radius, and wherein the second magnetic
sensor is situated either entirely beyond the outer radius or entirely
within the inner radius.
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Application 12/352, 119
REJECTIONS
The Examiner maintains the following grounds of rejection as set
forth in the Non-Final Office Action of April 8, 2016:
1. Claims 15-23, 25, and 27 under pre-AIA 35 U.S.C. § 112,
second paragraph, as indefinite;
2. Claims 15, 16, 18, 20, 22, 23, and 25 under 35 U.S.C. § 102(b)
as anticipated by Tanaka; 3
3. Claims 11-23 and 27 under 35 U.S.C. § 102(a) as anticipated
by, or in the alternative, under 35 U.S.C. § 103(a) as unpatentable
over Aimuta · 4' 5
'
4. Claims 1-10 under 35 U.S.C. § 103(a) as unpatentable over
Aimuta; and
5. Claim 25 under 35 U.S.C. § 103(a) as unpatentable over
Aimuta in view ofNehl. 6
3 WO 2007 /145296, published December 21, 2007 ("Tanaka"). The
Examiner relies, without objection, on US 2010/0060272 Al, published
March 11, 2010, as an English-language translation of this reference.
4 WO 2008/062778, published May 29, 2008 ("Aimuta"). The Examiner
relies, without objection, on US 2009/0206827 Al, published August 20,
2009, as an English-language translation of this reference.
5 Although the Examiner's statement of this rejection only includes
claims 11, 13, 15, 17-19, 21, and 27, the body of this rejection discusses not
only these claims, but also claims 12, 14, 16, 20, 22, and 23 (Non-Final 20,
28-30). In addition, Appellant recognizes that this rejection actually covers
claims 11-23 and 27 (see Appeal Br. 19). We have amended the Examiner's
statement of rejection to reflect the correct listing of claims.
6 US 6,720,763 Bl, issued April 13, 2004 ("Nehl").
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Application 12/352, 119
ANALYSIS
Rejection 1: Indefiniteness under 35 US.C. § 112, second paragraph
In the Examiner's Answer, the Examiner maintains every rejection set
forth in the Non-Final Office Action (Ans. 2), including the rejection of
claims 15-23, 25, and 27 under pre-AIA 35 U.S.C. § 112, second paragraph,
as indefinite (Non-Final 4--8). As the Examiner notes (Ans. 2-3), Appellant
does not address this rejection on appeal, specifically noting that this
rejection is not included in the appeal (see Appeal Br. 8). Accordingly, we
summarily affirm this rejection.
Rejection 2: Anticipation by Tanaka
The Examiner maintains the rejection of claims 15, 16, 18, 20, 22, 23,
and 25 under 35 U.S.C. § 102(b) as anticipated by Tanaka. Independent
method claim 15 is reproduced below from the Claims Appendix to the
Appeal Brief. Limitations at issue are italicized.
15. A method of producing an angle sensor, comprising:
providing a ring magnet, the ring magnet having an axis of
rotation and an inner radius and an outer radius extending from the
axis of rotation to define an annulus, the ring magnet having a
homogeneous magnetization in a first direction that is oriented
perpendicular to the axis of rotation;
situating a first magnetic sensor proximate the ring magnet at a
location entirely between the inner radius and outer radius to measure
magnetic field lines generated by the homogeneous magnetization of
the ring magnet in the first direction a distance from the axis of
rotation that is greater than the inner radius and less than the outer
radius; and
situating a second magnetic sensor proximate the ring magnet
at a location entirely beyond the outer radius or entirely within the
inner radius to measure magnetic field lines generated by the
homogeneous magnetization of the ring magnet in the first direction at
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Application 12/352, 119
a distance from the axis of rotation greater than the outer radius or less
than the inner radius, the first and second magnetic sensors situated in
a same plane which extends through the axis of rotation and is
perpendicular to a major surface of the ring magnet.
The Examiner finds Tanaka teaches providing a ring magnet 4a
adapted to be attached to a rotatable shaft, situating a first magnetic sensor
4c proximate the ring magnet at a location entirely between the inner and
outer radii of the magnet to measure field lines generated by the
homogenous magnetization of the ring magnet in the first direction at a
distance from the axis of rotation that is between the inner and outer radii,
and situating a second magnetic sensor 4b proximate the ring magnet at a
location entirely outside the outer radius of the magnet to measure field lines
generated by the homogenous magnetization of the ring magnet in the first
direction at a distance from the axis of rotation that is greater than the outer
radius (Non-Final 9--10). The Examiner finds that Appellant's Specification
does not provide any special definition as to what is meant by a "location" of
the sensor (Ans. 6). The Examiner construes the term "location" to be "a
broad term that can reasonably be construed to be any point in space no
matter how small," such that different parts of the sensor are located at
different physical locations in space (id. at 5---6). In support of this
construction, the Examiner finds the definition of "location" to be "a place
or position" (id. at 9, citing http://www.merriam-
webster.com/dictionary/location). The Examiner also construes the term
"at" to include "near" (id. at 6) or "used as a function word to indicate
presence or occurrence in, on, or near" (id. at 10-11, citing http://merriam-
webster.com/ dictionary/at). Based on these constructions, the Examiner
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Application 12/352, 119
interprets claim 15 to only require "that the sensor have a portion that is at a
location entirely between the inner and outer radius and another sensor
having a portion at a location entirely within the inner or entirely beyond the
outer radius" (Non-Final 10-11). In other words, the Examiner states that
claim 15 "does not require the entire sensor to be positioned as claimed" (id.
at 11 ). Therefore, the Examiner finds that Tanaka situates the first and
second magnetic sensors half over the ring magnet and half outside the ring
magnet such that part of the measurement from the sensors will occur at a
distance between the inner and outer radii of the ring magnet and part of the
measurement therefrom will occur at a distance greater than the outer radius
of the ring magnet (id. at 9--10).
Appellant argues that Tanaka fails to teach or suggest situating a first
magnetic sensor at a location entirely between the inner and outer radii of
the ring magnet and a second magnetic sensor at a location entirely within
the inner radius, or entirely beyond the outer radius, of the ring magnet
(Appeal Br. 8). In order to find Tanaka teaches these features even though
Tanaka's first and second magnetic sensors are both located half over the
ring magnet and half outside the outer radius of the ring magnet, Appellant
contends that the Examiner ignores the express language of claim 15 which
requires the whole of the first magnetic sensor to be situated entirely
between the inner and outer radii of the ring magnet and the whole of the
second magnetic sensor to be situated entirely beyond the outer radius or
entirely within the inner radius (id. at 9). With regard to the Examiner's
construction of the phrase "at a location," Appellant asserts that given the
definitions provided by the Examiner, the broadest reasonable interpretation
consistent with the Specification is "at a particular place or position" such
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Application 12/352, 119
that the first and second magnetic sensors are positioned at a particular
place, where such place for the first sensor is entirely between the inner and
outer radii of the ring magnet and where such place for the second magnetic
sensor is entirely beyond the outer radius or entirely within the inner radius
of the ring magnet (Reply Br. 3--4 ). As a result, Appellant urges that the
Examiner's interpretation of claim 15 is unreasonable (Appeal Br. 9).
Appellant's arguments are persuasive of reversible error in the
Examiner's interpretation of claim 15. Although claims should be given
their broadest reasonable interpretation during examination, claims must be
interpreted as one of ordinary skill in the art would in light of the
Specification. See In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999)
("Although the PTO must give claims their broadest reasonable
interpretation, this interpretation must be consistent with the one that those
skilled in the art would reach."); In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir.
1983) ("It is axiomatic that, in proceedings before the PTO, claims in an
application are to be given their broadest reasonable interpretation consistent
with the specification and that claim language should be read in light of the
specification as it would be interpreted by one of ordinary skill in the art.").
In this case, the Examiner's interpretation separates the phrase "at a
location" from the term "entirely" such that this latter term is read out of the
claim. By the Examiner's construction, a location may be any point in space
however small, such that a "location" has no dimension. Where "location"
is merely a point in space without dimension, the term "entirely" has no
meaning because the point in space is either on a curve (radius) or not on the
curve. The term, "entirely," with reference to a point in space would attach
no additional meaning. Thus, a point in space that is not on the curve is
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Application 12/352, 119
always entirely on one side or the other of the curve, in two-dimensional
space. Therefore, consistent with Appellant's Specification, we determine
that the broadest reasonable interpretation of situating a first magnetic sensor
"at a location entirely" between the inner and outer radii of the ring magnet
requires positioning or placing the sensor entirely between the inner and
outer radii, and situating a second magnetic sensor "at a location entirely"
beyond the outer radius or within the inner radius requires positioning or
placing this sensor entirely beyond the outer radius or entirely within the
inner radius.
Applying this interpretation of claim 15 to Tanaka, and given that the
Examiner finds Tanaka teaches the first and second magnetic sensors are
each located half within the outer radius and half beyond the outer radius, it
is clear that Tanaka does not teach either of the recited situating steps of
claim 15. Accordingly, we cannot sustain the Examiner's anticipation
rejection based on Tanaka.
Rejections 3-5: Anticipation by, or in the alternative, obviousness over
Aimuta, alone or further in view of Nehl
A claim is anticipated only where "each and every limitation is found
either expressly or inherently in a single prior art reference." Celeritas
Techs., Ltd. v. Rockwell Int'!. Corp., 150 F.3d 1354, 1361 (Fed. Cir. 1998).
Moreover, the Examiner has the initial burden of establishing a prima facie
case of obviousness based on an inherent or explicit disclosure of the
claimed subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443,
1445 (Fed. Cir. 1992) ("[T]he examiner bears the initial burden, on review
of the prior art or on any other ground, of presenting a prima facie case of
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Application 12/352, 119
unpatentability"). To establish a prima facie case of obviousness, the
Examiner must show that each and every limitation of the claim is described
or suggested by the prior art or would have been obvious based on the
knowledge of those of ordinary skill in the art. In re Fine, 837 F.2d 1071,
1074 (Fed. Cir. 1988).
The Examiner maintains the rejection of claims 11-23 and 27 under
35 U.S.C. § 102(a) as anticipated by, or in the alternative, under 35 U.S.C. §
103 (a) as unpatentable over Aimuta. In addition, the Examiner maintains
the rejection of claims 1-10 under 35 U.S.C. § 103(a) as unpatentable over
Aimuta, adding Nehl to reject claim 25. Independent claim 1 has been
reproduced above. Independent method claim 11 is reproduced below from
the Claims Appendix to the Appeal Brief.
11. A method of determining angular position, comprising:
rotating a ring magnet, the ring magnet having an axis of
rotation and an inner radius and an outer radius extending from the
axis of rotation to define an annulus, the ring magnet having a
homogeneous magnetization in a first direction that is oriented
perpendicular to the axis of rotation;
sensing magnetic field lines generated by the homogeneous
magnetization of the ring magnet in the first direction from the axis of
rotation at a first location entirely between the inner radius and the
outer radius;
sensing magnetic field lines generated by the homogeneous
magnetization of the ring magnet in the first direction from the axis of
rotation at a second location entirely beyond the outer radius or
entirely within the inner radius, the second location being different
from the first location so that magnetic field lines are sensed at
different distances from the axis of rotation;
determining the angular position of the ring magnet in response
to a difference between the magnetic field lines sensed at the first
location and the second location.
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The Examiner finds Aimuta discloses a method of providing and
rotating a ring magnet about a rotatable shaft, sensing magnetic field lines
generated by homogenous magnetization of the ring magnet in a first
direction from the axis of rotation at a first location entirely between the
inner and outer radii of the ring magnet, and sensing magnetic field lines
generated by the homogenous magnetization of the ring magnet in the first
direction from the axis of rotation at a second location entirely beyond the
outer radius or entirely within the inner radius of the ring magnet, and
determining the angular position of the ring magnet in response to a
difference between the magnetic field lines sensed at the first and second
locations (Non-Final 13-14). In support of these findings, the Examiner
directs attention to Aimuta's Figures 46 and 47, elements 22a-22d (shown in
Figure 9(a)), 7 as sensors, and finds,
in Figure 46 each element will be over the ring magnet and one of the
inner elements will be also be over the inner gap of the ring and part
of the one of the outer elements will be outside the radius of the ring,
and in Figure 4 7 one of the inner elements will be less than the radius
of the ring and one of the outer elements will be between the inner and
outer radius of the ring
(id.). The Examiner also directs attention to Aimuta, Figure 9(a), noting that
there is a space between the inner and outer elements and to paragraphs 3 66
7 Although the Examiner indicates that Aimuta, Figures 46 and 4 7, depict
the positioning of sensor 12a as shown in Figure 9(a), these figures actually
depict the positioning of sensor 12b as shown in Figure 9(d) (Non-Final 14).
However, because there appears to be no difference in the placement of
sensors 22a-22d for sensor 12a (Fig. 9(a)) and the placement of sensors
22e-22h for sensor 12b (Fig. 9(d)), and the Examiner subsequently refers to
sensor 12b (Non-Final 18), we hold this error harmless.
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Application 12/352, 119
and 367, noting that rotation angle was detected using this sensor
arrangement (id. at 14).
Alternatively, the Examiner finds that Aimuta does not explicitly
show the sensor elements in Figures 46( a }--4 7 (b ), nor sensing magnetic field
lines generated by the homogenous magnetization of the ring magnet in the
first direction at a first location entirely between the inner and outer radii and
sensing magnetic field lines generated by the homogenous magnetization of
the ring magnet in the first direction at a second location entirely beyond the
outer radius or entirely within the inner radius, wherein the first and second
locations are different (Non-Final 14--15). However, the Examiner finds
Aimuta discloses that it was known to utilize different distances from the
sensors to the ring magnet, different inclinations of the sensors with respect
to the ring magnet, and different sensor arrangement angles with respect to
the ring magnet (id. at 15). The Examiner concludes, therefore, that it would
have been obvious to relocate Aimuta's sensor 12b (from Figure 9(d)) such
that two sensor elements are completely between the inner and outer radii
and the other two sensor elements are completely beyond the outer radius or
completely within the inner radius, in order:
to advantageously utilize a sensing arrangement that provides unique
detected magnetic fields that can be compared to both provide an
absolute angle and to minimize error by allowing two magnetic
measurements at two locations of the overall magnetic field to be
detected and thus compared for the purposes of minimizing error, and
in order to advantageously utilize a rotation angle configuration with
high accuracy (Paragraphs [0366] and [0367]/note Aimuta discloses
the sensor is part over the ring and partly beyond it), and in order to
advantageously utilize a configuration that advantageously allows for
the detection of absolute values and suppressing of angle error
(Paragraph [0368])
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(id. at 15-17). The Examiner further finds that there was a recognized
problem in the art of needing to be able to determine a rotation angle with
high accuracy and that there are only a finite number of positions that the
sensor elements of sensor 12b can be positioned with respect to the ring
magnet, especially given Aimuta's teaching that the sensor elements are
placed approximately symmetrically within sensor 12b (id. at 17).
Appellant argues that the Examiner concedes Aimuta fails to
explicitly show the positioning of first and second sensor as recited in the
claims (Appeal Br. 19). Further, Appellant contends that Aimuta fails to
teach or suggest positioning first and second magnetic sensors respectively
entirely within and outside an annulus of a ring magnet in order to achieve
improved angle measurements (id. at 12). Instead, according to Appellant,
Aimuta teaches placing the sensors coplanar with and beyond the outer
radius of the ring magnet set at a sensor inclination angle, x, relative to the x-
y plane of the magnet and offset along the z-axis (id.). Appellant asserts that
each of Aimuta's embodiments are completely silent as to situating one
sensor entirely within the annulus of the magnet and one sensor entirely
beyond the annulus of the magnet (id. at 12-13).
With regard to the Examiner's finding that Aimuta's sensor device
12b as depicted in Figures 46(a}-47(b) includes one sensor that is entirely
between the inner and outer radii of the ring magnet and another sensor is
entirely beyond the outer radius or entirely within the inner radius of the
magnet, Appellant asserts that Aimuta's sensor device 12b includes
magneto-resistive spin valve devices 22e-22h that connect to form a pair of
sensor bridges (id. at 13) and that, because Aimuta does not disclose that the
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Figures are dimensioned, it is nothing more than speculation by the
Examiner to find that one of these devices is positioned as recited in the
claims (id. at 14).
Appellant's arguments are persuasive of reversible error. It is well
settled that "[a ]bsent any written description in the specification of
quantitative values, arguments based on measurement of a drawing are of
little value." In re Wright, 569 F.2d 1124, 1127 (CCPA 1977). Precise
proportions should not be read into patent drawings when the patent does not
expressly provide such proportions. Nystrom v. TREX Co., Inc., 424 F.3d
1136, 1149 (Fed. Cir. 2005). But while patent drawings are not working
drawings drawn to scale, things patent drawings show clearly are not to be
disregarded. In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972) (drawings
showing feature with great particularity or greatly enlarged); In re Heinrich,
268 F.2d 753, 755 (CCPA 1959). In fact, "[d]escription for the purposes of
anticipation can be by drawings alone as well as by words." In re Eager, 4 7
F.2d 951, 953 (CCPA 1931).
Here, there is no dispute that Aimuta's drawings are neither drawn to
scale or provide dimensions for each of the structures depicted therein.
While Aimuta teaches certain dimensions for Figures 46( a }--4 7 (b ), including
the distance of the center line of sensor device 12b from the axis of rotation,
the separation of the sensor device from the ring magnet, the inner and outer
diameters of ring magnet 21, and the sensor inclination angle (Aimuta
i-fi-1366-367), Aimuta does not teach that dimensions of sensor device 12b or
the dimensions of the individual spin valve devices therein. As a result, it is
merely through speculation that the Examiner is able to find that Aimuta's
sensor device in these figures meets the recited sensor positioning of
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Appellant's claims. Such positioning can hardly be said to be depicted in
Aimuta with sufficient particularity. The Examiner does not direct our
attention to any written descriptive support for positioning sensor device 12b
such that one of spin valve devices 22e-22h is entirely between the inner
and outer radii of ring magnet 21 and another one of these devices is beyond
the outer radius, or within the inner radius, of the ring magnet. Therefore,
the Examiner fails to demonstrate that Aimuta teaches or suggests the recited
structure.
Absent such a teaching, a preponderance of the evidence favors
Appellant with regard to the Examiner's finding of anticipation. In re
Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). The Examiner does not rely on
Nehl or other evidence of record to remedy this deficiency in Aimuta. Thus,
the Examiner's conclusion of obviousness lacks sufficient rational
underpinning. In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006) ("[R]ejections
on obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness."), quoted with
approval in KSR, 550 U.S. at 418. Accordingly, we do not sustain the
Examiner's anticipation or obviousness rejections based on Aimuta.
CONCLUSION
The rejection of claims 15-23, 25, and 27 under pre-AIA 35 U.S.C.
§ 112, second paragraph, as indefinite, is affirmed.
The rejection of claims 15, 16, 18, 20, 22, 23, and 25 under 35 U.S.C.
§ 102(b) as anticipated by Tanaka is reversed.
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The rejections of claims 11-23 and 27 under 35 U.S.C. § 102(a) as
anticipated by, or in the alternative, under 35 U.S.C. § 103(a) as
unpatentable over Aimuta, are reversed.
The rejection of claims 1-10 under 35 U.S.C. § 103(a) as unpatentable
over Aimuta is reversed.
The rejection of claim 25 under 35 U.S.C. § 103(a) as unpatentable
over Aimuta in view ofNehl is reversed.
DECISION
Upon consideration of the record, and for the reasons given above and
in the Appeal and Reply Briefs, the decision of the Examiner rejecting
claims 1-23, 25, and 27 is affirmed-in-part.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED-IN-PART
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