Ex Parte Devenyi

Board of Patent Appeals and Interferences

Feb 17, 2009

10222468 (B.P.A.I. Feb. 17, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GABOR DEVENYI
____________

Appeal 2008-6013
Application 10/222,468
Technology Center 2800
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Decided:1 February 17, 2009
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Before CHUNG K. PAK, TERRY J. OWENS, and CATHERINE Q. TIMM,
Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2008-6013
Application 10/222,468

STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-22, which are all of the pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).

The Invention
The Appellant claims a position sensor comprising light-emitting and
light-collecting optical fibers. Claim 1 is illustrative:
1. A position sensor comprising

a light source;

a light-emitting optical fiber having

an insertion end that receives a light input from the light source,
and

a plurality of light emitters disposed along an emitting length of
a lateral surface of the light-emitting optical fiber;

a light detector;

a light-collecting optical fiber in a parallel but spaced-apart relation to
the light-emitting optical fiber and having

an extraction end that provides a light output to the light
detector, and

a plurality of light collectors disposed along a collecting length
of a lateral surface of the light-collecting optical fiber in a facing relation to
the respective light emitters of the light-emitting optical fiber; and

an opaque light shield disposed between and movable parallel relative
to the light-emitting optical fiber and the light-collecting optical fiber.

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Appeal 2008-6013
Application 10/222,468

The References
Chin 5,389,777 Feb. 14, 1995
Driver 5,625,459 Apr. 29, 1997
The Rejections
Claims 1-22 stand rejected under 35 U.S.C. § 103 over Chin in view
of Driver.
OPINION
We reverse the Examiner’s rejection.
Issue
Has the Appellant shown reversible error in the Examiner’s
determination that the applied references would have rendered prima facie
obvious, to one of ordinary skill in the art, a position sensor comprising a
light-emitting optical fiber having a plurality of light emitters disposed along
an emitting length thereof, and a light-collecting optical fiber for receiving
light from the light emitters?
Findings of Fact
Chin discloses “a displacement sensor for use with robot end effectors
in tactile operations” (col. 1, ll. 13-14). In the Figure 9 embodiment relied
upon by the Examiner (Ans. 3-4), the displacement sensor comprises a semi-
cylindrical light emitting pipe (322) and a semi-cylindrical light receiving
pipe (324) (col. 9, ll. 12-15, 24). Pipes 322 and 324 have a translucent
portion (338 and 340, respectively) and, to assist in directing light, a
reflective portion (342 and 344, respectively) (col. 9, ll. 24-29; Fig. 9).
“[T]he non-translucent portion can be transparent and have a special fiber-
optic cladding (not shown) covering the non-translucent portion in order to
channel the light in the desired direction” (col. 9, ll. 32-35). In other
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Appeal 2008-6013
Application 10/222,468

embodiments the non-translucent portion is rendered reflective by placing
thereon metallic stickers or painted tape (col. 4, ll. 2-4, 53-55).
Driver discloses “a fiberoptic probe having a window element of
selected thickness and having a beveled surface for directing light towards
the sample” (col. 1, ll. 5-7). Light is carried to a sample by a fiberoptic
bundle (34), and diffuse reflected light (30) from the sample is carried by a
light pipe (50) to a detector (32) for spectrographic analysis (col. 3, ll. 52-54,
65-67; col. 4, ll. 6-10; Fig. 1). The light pipe can be a hollow pipe having a
reflective gold coating (54) or can be a bundle of flexible optical fibers or a
rigid fiberoptic (col. 4, ll. 1-3, 25-27; col. 6, ll. 41-46; Figs. 7, 8).
Analysis
As stated in KSR Int’l. Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007),
“‘rejections 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’.” KSR,
127 S. Ct. at 1741, quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
See also In re Warner, 379 F.2d 1011, 1017 (CCPA 1967), cert. denied, 389
U.S. 1057 (1968) (“A rejection based on section 103 clearly must rest on a
factual basis, and these facts must be interpreted without hindsight
reconstruction of the invention from the prior art”).
The Appellant argues (Br. 4):
The optical fiber 114 of Driver [Fig. 8] transmits light from end to end
without any loss from its side, and the light pipes 12 and 30 of Chin
[Fig. 1, comparable to Fig. 9’s 322 and 324] transmit light through
their sides. The two types of structures are not structurally or
functionally equivalent.

The Appellant also argues (Reply Br. 2-3):
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Appeal 2008-6013
Application 10/222,468

[T]he light emitting structures of the two references operate in entirely
different ways. Chin discloses a light-transmitting structure in which
light is intentionally allowed to leak out of the sides of the light pipe
in all locations along its length. Driver discloses a light-transmitting
structure whose objective is not to leak light out of the sides at any
and all locations along its length, but instead to convey all of the light
that is input at one end to the other end without a loss. If Driver’s
teachings on this subject were combined with Chin’s teachings, the
resulting combination of teachings would be inoperable for Chin’s
intended purpose and also for Driver’s intended purpose.

The Examiner argues that “Driver discloses the functional equivalence
of a light pipe and an optical fiber in a disclosure of an optical probe”
(Ans. 4), and that “Driver discloses that a single fiber optic (114) can be
used to substitute for light pipe (50) as stated in column 6, lines 41-46”. See
id.
Driver’s disclosure that light pipe 50 can be a hollow pipe having a
reflective gold coating or can be a bundle of flexible optical fibers or a
single rigid fiberoptic (col. 4, ll. 25-27; col. 6, ll. 41-46) is a disclosure of the
functional equivalent of those structures for passing light from end to end. It
is not a disclosure of the functional equivalence of all structures called light
pipes.
Chin’s light pipe is a light transparent material of any shape having a
surface made partially reflective by applying thereto a covering such as
metallic stickers, painted tape or a special fiberoptic cladding to cause a light
beam to be directed from a translucent portion of a side surface thereof
(col. 3, ll. 46-57; Figs. 1-10). The Examiner relies (Ans. 3-4) upon Chin’s
Figure 9 embodiment wherein the light pipe has a flat side face, the non-
translucent portion of which, along with the other non-translucent portions
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Appeal 2008-6013
Application 10/222,468

of the light pipe, can have a special fiberoptic cladding, which is not shown
or described, so that light is directed through the flat side face’s translucent
portion (col. 9, ll. 24-35). The Examiner points out Chin’s description of the
Figure 9 embodiment and states that “[t]o modify the teachings of Chin with
those of Driver would have been obvious as such would ensure that as much
light as possible is directed properly from the emitting to the detecting pipe”
(Ans. 4). The Examiner, however, does not point to any particular
disclosure in Chin or Driver which would have led one of ordinary skill in
the art to modify Chin’s light pipe by using an optical fiber instead of doing
what Chin discloses, i.e., making portions of the light pipe reflective by use
of a special fiberoptic cladding. The Examiner does not describe the
proposed modification and the Examiner provides no evidence that the
modification would “ensure that as much light as possible is directed
properly from the emitting to the detecting pipe” as asserted by the
Examiner (Ans. 4).
Thus, the Examiner has not carried the burden of establishing a prima
facie case of obviousness of the Appellant’s claimed invention.
Conclusion of Law
The Appellant has shown reversible error in the Examiner’s
determination that the applied references would have rendered prima facie
obvious, to one of ordinary skill in the art, a position sensor comprising a
light-emitting optical fiber having a plurality of light emitters disposed along
an emitting length thereof, and a light-collecting optical fiber for receiving
light from the light emitters.

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Appeal 2008-6013
Application 10/222,468

DECISION/ORDER
The rejection of claims 1-22 under 35 U.S.C. § 103 over Chin in view
of Driver is reversed.
It is ordered that the Examiner’s decision is reversed.

REVERSED

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