Ex Parte Erkens

Patent Trial and Appeal Board

Dec 12, 2017

13984112 (P.T.A.B. Dec. 12, 2017)

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.
13/984,112 02/17/2014 Holger Erkens 68354.227175 5697
86528 7590 12/14/2017
Slay den Grubert Beard PLLC
401 Congress Avenue
Suite 1900
Austin, TX 78701
EXAMINER
MAINI, RAHUL
ART UNIT PAPER NUMBER
2866
NOTIFICATION DATE DELIVERY MODE
12/14/2017 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):
trosson @ sgbfirm.com
patent @ sgbfirm. com
dallen @ sgbfirm. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HOLGER ERKENS
Appeal 2017-002891
Application 13/984,112
Technology Center 2800
Before PETER F. KRATZ, ROMULO H. DELMENDO, and DEBRA L.
DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Appellant2 appeals under 35 U.S.C. § 134(a) from a rejection of
claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 In our Opinion, we refer to the Specification filed August 7, 2013
(“Spec.”); the Final Action mailed January 11, 2016 (“Final Act.”); the
Appeal Brief filed June 13, 2016 (“Appeal Br.”); the Examiner’s Answer
mailed November 4, 2016 (“Ans.”); and the Reply Brief filed January 4,
2017 (“Reply Br.”).
2 Appellant identifies Microchip Technology Incorporated as the real party
in interest. Appeal Br. 2.
Appeal 2017-002891
Application 13/984,112
The claims are directed to electrode configurations for a capacitive
sensor device and a capacitive sensor device for the detection of an
approximation. Claim 1, reproduced below with disputed limitations
italicized, is illustrative of the claimed subject matter:
1. An electrode configuration for a capacitive sensor device,
comprising
a transmitting electrode and a receiving electrode,
wherein the transmitting electrode can be brought into a
capacitive coupling with the receiving electrode,
wherein the electrode configuration comprises at least
one first sensor area and at least one second sensor area,
wherein both of the electrode surfaces of the transmitting
electrode and of the receiving electrode in the first sensor area
are small compared to the electrode surfaces of the transmitting
electrode and of the receiving electrode in the second sensor
area,
wherein when an object approaches or touches the first
sensor area the signal received at the receiving electrode is
attenuated and when an object approaches or touches the
second sensor area the signal received at the receiving
electrode is increased with respect to a signal received at the
receiving electrode when no object is in proximity of the
respective first or second sensor area.
Appeal Br. 15 (Claims App’x) (some indentation, paragraphing, and
emphasis added).
REFERENCES
The Examiner relies on the follow prior art in rejecting the claims on
appeal:
Troxell et al. US 7,352,355 B2 Apr. 1,2008
(“Troxell”)
Jacobsen US 7,556,204 B2 July 7, 2009
US 8,514,189 B2 Aug. 20, 2013
US 8,638,107 B2 Jan. 28,2014
Wu et al. (“Wu”)
Schwartz et al.
2
Appeal 2017-002891
Application 13/984,112
(“Schwartz”)
Thoma US 9,130,571 B2 Sept. 8,2015
REJECTIONS3
The Examiner maintains and Appellant seeks review of the following
rejections under 35 U.S.C. § 103(a)4:
(1) claims 1—4 and 16—19 over Troxell in view of Wu, and further in
view of Thoma;
(2) claims 5—11, 14, and 15 over Troxell in view of Wu and Thoma,
and further in view of Jacobsen;
(3) claims 12 and 13 over Troxell in view of Wu, Thoma, and
Jacobsen, and further in view of Schwartz; and
(4) claim 20 over Troxell in view of Wu and Thoma, and further in
view of Schwartz. Final Act. 6, 13, 18; and 19. Appeal Br. 5.
OPINION
Appellant argues the patentability of independent claim 1, and does
not present substantial arguments addressing the other independent claims or
any dependent claims. See Appeal Br. 5 and 13. Therefore, we limit our
discussion to claim 1, and claims 2—20 stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(l)(iv).
After review of the respective positions provided by Appellant and the
Examiner, we affirm for the reasons presented by the Examiner and add the
3 In the Advisory Action mailed April 1, 2016, the Examiner withdrew the
rejection of claims 2, 4, 7, and 18 under 35 U.S.C. § 112, second paragraph.
4 Because this application was filed before the March 16, 2013 effective date
of the America Invents Act, we refer to the pre-AIA version of the statute.
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Appeal 2017-002891
Application 13/984,112
following.
Claim 1 requires an electrode configuration comprising at least a first
and a second sensor area wherein both of the electrode surfaces of the
transmitting electrode and of the receiving electrode in the first sensor area
are small compared to the electrode surfaces of the transmitting electrode
and of the receiving electrode in the second sensor area. Appeal Br. 15
(Claims App’x).
The Examiner finds that Troxell discloses such an electrode
configuration, using figures from Troxell to illustrate the finding.
Reproduced below is the Examiner’s annotated version of a portion of
Troxell’s Fig. 6, with the Examiner identifying a first sensor area and a
second sensor area in a single electrode configuration. The interdigitated
surfaces of the transmitting and receiving electrodes are small compared to
the larger contact lead surfaces of the transmitting and receiving electrodes
in the second sensor area.
Second
Annotated version of a portion of Troxell Fig. 6
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Appeal 2017-002891
Application 13/984,112
The Examiner’s figure is a portion of a schematic view of a number of
transparent conductive electrode pairs whose first and second electrodes
each include interdigitated fingers. Troxell col. 3,11. 44-46. The Examiner
identifies the interdigitated fingers of the electrode as the first sensor area
and the contacting leads as the second sensor area. See Final Act. 7.
Figs. 7 A and 7B of Troxell are reproduced below:
FIG. 7A
/704
FIG. 7B
Figs. 7 A and 7B are front views of an exemplary automotive display
panel as seen through a transparent overlay input device and a view of a
plurality of electrode pairs of the input device, respectively, according to an
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Appeal 2017-002891
Application 13/984,112
embodiment of Troxell’s invention. Troxell col. 3,11. 47—51. Figs. 7A and
7B illustrate exemplary graphics (Fig. 7A) and associated transparent
electrode pairs 7025 and 704 formed in a transparent overlay input device.
Id. at col. 7,11. 28—35.
The Examiner superimposes Fig. 7A on Fig. 7B to illustrate that the
entirety of the electrodes are overlaid by the input device, and portions of the
sliding switches for Bal (balance), Fade, Bass, Mid (mid-range), and Treb
(treble) can move not only over the interdigitated portions of the electrodes,
but also over the contact pad portions of the electrodes:
Final Act. 3^4 (citing Troxell Figs. 7A and 7B, col. 6,1. 58—col. 7,1. 4). The
Examiner finds that the midpoints of the ranges for Bal, Fade, Bass, Mid,
and Treb are marked by a horizontal line that is halfway along the length of
the entire electrode, including the interdigitated finger portion and the
contact pad portion. Id. at 5. The Examiner thus finds that the contact pad
5 For clarity, labels to elements are present in bold font, regardless of their
presentation in the original document.
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Appeal 2017-002891
Application 13/984,112
portions of the electrodes must be able to detect touch and are equivalent to
the second sensor area recited in claim 1. Id.', see also Adv. Act.:
The superimposition of Figures 7 A and 7B shows that there is
sensitivity in both the interdigitated portion as well as the non-
interdigitated portion. In order to control the Balance function
so that the speakers on the Right are at 100%, and the speakers
on the Left of the car muted, even the non-interdigitated portion
must be sensitive to the touch of a user. Similarly, in order to
set the Fade setting so that the speakers in the back of the car
are at 100% and the speakers in the front of the car are muted,
the non-interdigitated portion must be sensitive to the user’s
touch. In order for the Bass, Mid, and Treble settings to be set
to their minimum levels, the non-interdigitated portion must be
sensitive to the user’s touch.
[I]n order to utilize the functionality of the various settings . . .,
the non-interdigitated part must be sensitive to the user’s touch.
Adv. Act. 2.
Appellant argues that the contacting lead, or contact pad, portion of
the electrodes disclosed in Troxell are not sensor areas, and that Troxell’s
pair of electrodes comprise only a single sensor area, which is the
interdigitated fingers. Appeal Br. 6, 8. Appellant argues that Troxell only
discusses the interdigital structures as sensor areas. Id. at 11—12 (citing
Troxell col. 7.11. 5—27). Appellant contends that “[tjhere is no description in
Troxell [stating that Figs. 7A and 7B] are to scale, need to be superimposed
exactly as they are shown . . . , [or] are correctly aligned to each other.” Id.
at 8—9.
“[PJatent drawings do not define the precise proportions of the
elements and may not be relied on to show particular sizes if the
specification is completely silent on the issue.” Hockerson-Halberstadt, Inc.
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Appeal 2017-002891
Application 13/984,112
v. Avia Group Int’l, Inc., 222 F.3d 951, 956 (Fed. Cir. 2000). However,
Troxell is not “completely silent” regarding the relative sizes of Figs. 7A and
7B, indicating that, together, they are an exemplary automotive display
panel. Troxell col. 7,11. 28—31. And, contrary to Appellant’s argument,
Troxell refers to the entirety of the interdigitated structure and contact pads
as “transparent conductive electrode pairs.” Id. Moreover, Troxell states
that electrode pairs 702 have increased sensitivity compared to electrode
pairs 704. Id. at col. 7,11. 31—35.
The Examiner’s interpretation of Troxell’s Figs. 6, 7A, and 7B is
reasonable in light of Troxell’s teachings. Appellant’s argument does not
overcome the Examiner’s reasoning.
Appellant contends that a sensor area must be an area that is exposed
(i.e., not covered) or in close proximity to a finger to allow for a touch
function, but Troxell’s contact pads are only used internally, and are neither
exposed nor in proximity to a finger, therefore cannot serve as sensor areas.
Reply Br. 3.
Logically, a sensor area must be capable of being touched in order to
function as a touch sensor. However, Appellant’s assertions that Troxell’s
contact pads are internal, not exposed, and not in proximity to a finger are
not supported by the reference itself, as Figs. 7A and 7B indicate that the
contact pads lie underneath the slider switches. Appellant fails to refute
adequately the Examiner’s careful analysis.
Appellant contends that a conducting structure only forms a sensor
area in an electronic device if it is intended to operate as a sensor area.
Reply Br. 3. Appellant’s statement is conclusory and unsupported.
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Appeal 2017-002891
Application 13/984,112
Argument of counsel cannot take the place of evidence lacking in the record.
Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997).
Appellant argues that the structures in Troxell’s Fig. 7 are the same as
the structures in Troxell’s Fig. 6, therefore the functionality cannot differ
between the structures. Appeal Br. 12.
The Examiner finds that electrodes disclosed in Troxell have the same
structure as those in Figure 3 of the instant application. Final Act. 5; Ans.
2-5.
Fig. 3 of the application on appeal and a portion of Troxell’s Fig. 7B
are reproduced below:
Fig. 3 of application on appeal a portion of Fig. 7B of Troxell
Fig. 3 of the application on appeal comprises a transmitting electrode
(TE), a receiving electrode (RE), a first sensor area (FR), and a second
sensor area (FT). Spec. 13,11. 4—24. The portion of Troxell’s Fig. 7B above
shows an electrode pair having an interdigitated finger portion on the left
and a portion on the right with larger contacting leads. See Troxell col. 7,11.
The Examiner finds that Troxell inherently possesses the functionality
of the electrode configuration of claim 1 because the structure in Troxell is
the same as the structure recited in claim 1 and as shown in Fig. 3 of the
application on appeal. Ans. 5.
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Appeal 2017-002891
Application 13/984,112
When there is a reason to conclude that the structure of the prior art is
capable of performing the claimed function, the burden shifts to the
applicant to show that the claimed function patentably distinguishes the
claimed structure from the prior art structure. See, e.g., In re Schreiber, 128
F.3d 1473, 1478 (Fed. Cir. 1997). The Examiner explains why Troxell’s
electrode pairs are capable of having a second sensor area; Appellant
responds with only conclusory statements.
Appellant argues that the limitation “when an object approaches . . .
the first sensor area the signal received at the receiving electrode is
attenuated and when an object approaches ... the second sensor area the
signal received at the receiving electrode is increased” requires a single
sensor with two sensor areas. Appeal Br. 13. Appellant contends that the
Examiner impermissibly relies on two references—Wu and Thoma—to
teach the limitation requiring a single sensor with two sensor areas. Appeal
Br. 13. However, the Examiner relies on Troxell, not Wu and Thoma, to
teach the requirement. Ans. 5. Appellant’s argument does not address the
Examiner’s rejection.
Appellant contends, without explanation, that there would be no
motivation for a person skilled in the art to combine Wu and Thoma.
Appeal Br. 13. Appellant’s contention is insufficient to refute the
Examiner’s reasoning for combining the references with Troxell.
Appellant’s arguments fails to identify any reversible error in the
Examiner’s rejection. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
Accordingly, we affirm the Examiner’s prior art rejection of claim 1 under
35 U.S.C. § 103(a) for the reasons stated above and those presented by the
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Appeal 2017-002891
Application 13/984,112
Examiner. We also affirm the rejection of claims 2—20, which were not
argued separately.
DECISION
The Examiner’s rejection of claims 1—20 is affirmed.
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) (2015).
AFFIRMED
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