Ex Parte EILEBRECHT et al

Patent Trial and Appeal Board

Feb 28, 2019

14493901 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/493,901 09/23/2014
28395 7590 03/04/2019
BROOKS KUSHMAN P.C./FG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Benjamin EILEBRECHT
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.
83462899 4315
EXAMINER
SAAVEDRA, EMILIO J
ART UNIT PAPER NUMBER
2117
NOTIFICATION DATE DELIVERY MODE
03/04/2019 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BENJAMIN EILEBRECHT, LENNART LEICHT,
MARCEL MATHISSEN, JEROEN LEM, ACHIM LINDNER,
RAINER VOGT, STEFFEN LEONHARDT, and MARIAN WALTER
Appeal2018-006105
Application 14/493,901
Technology Center 2100
Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
JOHN P. PINKERTON, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2018-006105
Application 14/493,901
STATEMENT OF CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 3-11, and 13-20. Claims 2 and 12 were cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Exemplary Claim
Exemplary claim 1 under appeal reads as follows ( emphasis added):
1. A contactless electrocardiographic sensor,
compnsmg:
an electrode formed of a moisture-permeable material
and having a measurement surface and an opposite surface;
a moisture generator supplying moisture to the opposite
surface;
a moisture sensor coupled to the opposite surface for
detecting a moisture content of a microclimate at the
measurement surface; and
a controller activating the moisture generator to increase
the moisture content based at least in part on signals received
from the moisture sensor.
App. Br. 10 (Claims Appendix 1).
Rejections on Appeal2
The Examiner rejected claims 1---6, 8, 9, 11-16, 18, and 19 under
35 U.S.C. § 103 as being unpatentable over Hanakai et al. (JP 2009-
1 The real party in interest is Ford Global Technologies, LLC. App. Br. 1.
2 The patentability of claims 3-9, 11, and 13-20 is not separately argued by
Appellants. See App. Br. 3-9. Thus, except for our ultimate decision,
claims 3-9, 11, and 13-20 are not discussed further herein.
2
Appeal2018-006105
Application 14/493,901
106673 A; published May 21, 2009) ("Hanakai") and Chung
(US 2014/0213882 Al; published July 31, 2014) ("Chung").
The Examiner rejected claims 7 and 17 under 35 U.S.C. § 103 as
being unpatentable over Hanakai, Chung, and Grundler et al.
(US 2006/0151624 Al; published July 13, 2006) ("Grundler").
The Examiner rejected claim 20 under 35 U.S.C. § 103 as being
unpatentable over Hanakai, Chung, and Da Fonseca et al.
(WO 2012/140629 Al; published Oct. 18, 2012) ("Mota").
The Examiner rejected claim 10 under 35 U.S.C. § 103 as being
unpatentable over Hanakai et al. (JP 2009-106674 A; published May 21,
2009) ("Takeda") and Chung.
Issue on Appeal
Did the Examiner err in rejecting claims 1 and 10 as being obvious?
PRINCIPLES OF LAW
The mere existence of differences between the prior art and the claim
does not establish non-obviousness. See Dann v. Johnston, 425 U.S. 219,
230 (1976). Instead, the relevant question is "whether the difference
between the prior art and the subject matter in question is a [difference]
sufficient to render the claimed subject matter unobvious to one skilled in
the applicable art." Dann, 425 U.S. at 228 (internal quotations and citations
omitted). Indeed, the Supreme Court made clear that when considering
obviousness, "the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
3
Appeal2018-006105
Application 14/493,901
of the inferences and creative steps that a person of ordinary skill in the art
would employ." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
ANALYSIS
The Examiner finds Hanakai teaches "a moisture sensor coupled to
the opposite surface [ of an electrode] for detecting a moisture content of a
microclimate at the measurement surface [ of the electrode]," as recited in
independent claims 1 and 11. See Final Act. 5 (citing Hanakai ,r,r 36, 61, 64;
Figs. 1, 9). Furthermore, the Examiner interprets the claimed "electrode" to
include all components that serve to measure a signal, as well as any
surfaces that come into contact with an object to be measured. See Ans. 4.
With regards to Hanakai, the Examiner interprets the claimed "electrode" to
include conductive components that pick-up an electrical signal, the claimed
"measuring surface" as the front side of the seat surface that contacts the
driver, and the claimed "opposite surface" as the backside of the seat
surface. See id. Based on these interpretations, the Examiner finds Hanakai
teaches the claimed "moisture sensor coupled to the opposite surface [ of the
electrode]," because Hanakai teaches that the moisture sensor is located on
the backside of the seat surface. See id. The Examiner further finds that
Appellants' Specification does not indicate that the placement of the claimed
"moisture sensor" is either the inventive novelty or critical to the functioning
of the claimed invention, and thus, any rearrangement of components
disclosed in Hanakai would merely be considered a design choice to a
person of ordinary skill in the art. See Ans. 8; see also Final Act. 2-3.
Appellants contend the Examiner's findings are in error because:
4
Appeal2018-006105
Application 14/493,901
The rejection applies an unreasonable interpretation of
"opposite surface" of the electrode contrary to the plain
meaning as well as contrary to what one of ordinary skill in the
art would understand the term to mean in light of the
description in the specification and illustration in the drawings.
The plain meaning of "opposite" as well as the context in which
the term "opposite surface" is used in the Specification and
illustrated in at least Figures 2 and 3 is consistent with
Appellants' construction and contrary to the unreasonable
construction used in the rejection under 35 U.S.C. § 103.
Regarding independent claim 1, the proposed combination of
references fails to teach or suggest "a moisture sensor coupled to
the opposite surface [of the electrode] for detecting a moisture
content of a microclimate at the measurement surface," as recited
by Appellant. In contrast, Hanakai discloses that (1) pressure
sensor 80 may be replaced with humidity sensor 92 and (2) the
pressure sensor (which can be replaced with humidity sensor 92)
is "arranged between the 1st electrocardio [sic] sensor electrode
210 . . . and the 2nd electrocardio [sic] sensor electrode 220."
(See, e.g., Hanakai at paras. 20 and 61, Figs. 1 and 9.) Figure 1
... clearly depicts the pressure sensor 80 ( that can be replaced
with humidity sensor 92) between the two electrodes in the seat
and not coupled to the opposite surface of the electrode as
recited in the rejected claims.
Chung fails to cure this deficiency in Hanakai because Chung
does not disclose the use of a moisture generator, let alone use of
a humidity sensor or the positioning of such.
In addition to the above, the rejection does not provide a proper
motivation for one of ordinary skill in the art to modify the
moisture sensor placement disclosed by Hanakai absent
impermissible use of hindsight based on Appellant's disclosure.
The proposed motivation or rationale provided on p. 5 of the
5
Appeal2018-006105
Application 14/493,901
rejection relates only to the moisture-permeable material
disclosed by Chung. There is no motivation or rationale for one
of ordinary skill in the art to reposition the humidity sensor
disclosed by Hanakai from between the two electrodes in the
seat to the opposite side of the electrode as disclosed and
claimed by Appellant.
App. Br. 3, 5, 7-8 (emphasis added); see also Reply Br. 1-2.
We are not persuaded that the Examiner erred. Even assuming
arguendo that the Examiner's interpretations of the claimed "electrode,"
"measuring surface," and "opposite surface," are unreasonably broad as
argued by Appellants, the only difference between the claimed invention and
the cited combination of prior art references is the position of the claimed
"moisture sensor." 3 We agree with the Examiner that the placement of
Hanakai' s moisture sensor on a surface of Hanakai' s electrode that is
opposite a surface that faces a person or subject that is examined by the
electrode is merely a design choice that would have been obvious to a person
of ordinary skill in the art, as Appellants have failed to persuasively establish
that the aforementioned placement of Hanakai' s moisture sensor would
change the functionality of the moisture sensor or would otherwise produce
unexpected results. See Ans. 8; see also In re Rice, 341 F.2d 309 (CCPA
1965) ("Appellants have failed to show that the change [in the claimed
invention] as compared to [ the reference], results in a difference in function
3 We do not decide the claim interpretation issues raised by Appellants and
the Examiner because it is not necessary to decide these issues to resolve the
outstanding appeal. Even assuming arguendo Appellants' interpretations of
the claimed "electrode," "measuring surface," and "opposite surface," are
correct, we agree with the Examiner's findings that the position of the
claimed "moisture sensor" is a design choice that would have been obvious
to a person of ordinary skill in the art.
6
Appeal2018-006105
Application 14/493,901
or give unexpected results."); In re Kuhle, 526 F.2d 553, 555 (CCP A 1975)
("Use of such means of electrical connection in lieu of those used in the
references solves no stated problem and would be an obvious matter of
design choice within the skill [in] the art." (emphasis added) (citations
omitted)).
Regarding independent claim 10, the Examiner finds Takeda teaches
"a moisture sensor coupled to the opposite surface [ of an electrode] for
detecting a moisture content of a microclimate at the measurement surface
[of the electrode]," and "a temperature sensor coupled to the opposite
surface [ of the electrode] for measuring a temperature at the measurement
surface [of the electrode]," as recited in independent claim 10. See Final
Act. 10 (citing Takeda at Abstract; Fig. 2). Based on the aforementioned
interpretations of the claimed "electrode," "measurement surface," and
"opposite surface," the Examiner further finds Takeda teaches the claimed
"moisture sensor coupled to the opposite surface [of the electrode]," and the
claimed "temperature sensor coupled to the opposite surface [ of the
electrode]," because Takeda teaches that the moisture sensor and the
temperature sensor are located on the back side of the seat cover. See
Ans. 4. The Examiner further finds that, based on the lack of disclosure
regarding the placement of the claimed "moisture sensor" and "temperature
sensor" in Appellants' Specification, any rearrangement of components
disclosed in Takeda would merely be considered a design choice to a person
of ordinary skill in the art. See Ans. 8; see also Final Act. 2-3.
Appellants contend the Examiner's findings are in error because:
Claim 10 is separately patentable relative to Claims 1 and
11. Regarding independent claim 10, Takeda does not disclose
or suggest every limitation, in particular: (1) "a moisture sensor
7
Appeal2018-006105
Application 14/493,901
coupled to the opposite surface [ of the electrode] for detecting a
moisture content of a microclimate at the measurement surface"
and (2) "a temperature sensor coupled to the opposite surface [ of
the electrode] for measuring a temperature at the measurement
surface," as recited by Appellant. As discussed in greater detail
above, the interpretation of "opposite surface" of the electrode
applied by the Examiner is unreasonable based on the plain
meaning and the context of the Appellant's specification and
drawings.
The rejection relies on the Abstract and Fig. 2 of Takeda
as disclosing the claimed humidity sensor and temperature
sensor. This is incorrect. The temperature and humidity sensor
disclosed by Takeda is not coupled to the opposite surface of
the electrode as recited in Claim 10.
App. Br. 8 ( emphasis added).
We are not persuaded that the Examiner erred for reasons similar to
the reasons previously discussed regarding claim 1. Accordingly,
Appellants have not shown the Examiner erred in rejecting claims 1 and 10
under 35 U.S.C. § 103.
CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 1, 3-11, and 13-
20 as being unpatentable under 35 U.S.C. § 103.
(2) Claims 1, 3-11, and 13-20 are not patentable.
DECISION
We affirm the Examiner's rejection of claims 1, 3-11, and 13-20 as
being unpatentable under 35 U.S.C. § 103.
8
Appeal2018-006105
Application 14/493,901
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
9