Ex Parte Lee

Board of Patent Appeals and Interferences

Nov 27, 2007

10974740 (B.P.A.I. Nov. 27, 2007)

UNITED STATES PATENT AND TRADEMARK OFFICE

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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte WOO-JONG LEE
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Appeal 2007-3696
Application 10/974,740
Technology Center 2800
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Decided: November 27, 2007
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Before KENNETH W. HAIRSTON, LANCE LEONARD BARRY, and
ST. JOHN COURTENAY III, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 1, 3, 4, and 5. We have jurisdiction under
35 U.S.C. § 6(b). An oral hearing on this appeal was conducted on
November 14, 2007. We REVERSE.
Appeal 2007-3696
Application 10/974,740

THE INVENTION
The disclosed invention relates to a fluxgate sensor for measuring an
azimuth angle and a method thereof, and more particularly, to a fluxgate
sensor which is capable of obtaining calibrated azimuth even at slope by
using a neural network, and an azimuth measurement method thereof (Spec.
1).
Independent claim 1 is illustrative:
1. A fluxgate sensor comprising:

a two-axis fluxgate having an X-axis fluxgate and a
Y-axis fluxgate in substantially perpendicular relation
with the X-axis fluxgate, the two-axis fluxgate outputting
voltage values of the X-axis and Y-axis fluxgates
corresponding to a terrestrial magnetism;

a memory storing therein a neural network weight matrix
which corresponds to the X-axis and Y-axis fluxgate voltage
values, respectively; and

a control unit calibrating the X-axis and Y-axis fluxgate
voltage values based on the neural network weight matrix
stored in the memory, and computing an azimuth angle by
using the calibrated voltage values.

THE REFERENCES
The Examiner relies upon the following references as evidence in
support of the rejection:
Choi US 2004/0027121 A1 Feb. 12, 2004
de Vries US 5,812,992 Sep. 22, 1998
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Zhou US 6,813,584 B2 Nov. 2, 2004

THE REJECTIONS
Claims 1, 3, 4, and 5 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the teachings of Choi in view of de Vries, and further in
view of Zhou.
Rather than repeat the arguments of Appellant or the Examiner, we
make reference to the Briefs and the Answer for the respective details
thereof.

PRINCIPLES OF LAW
“What matters is the objective reach of the claim. If the claim extends
to what is obvious, it is invalid under § 103.” KSR Int’l Co. v. Teleflex, Inc.,
127 S. Ct. 1727, 1742 (2007). To be nonobvious, an improvement must be
“more than the predictable use of prior art elements according to their
established functions.” Id. at 1740. Appellant has the burden on appeal to
the Board to demonstrate error in the Examiner’s position. See In re Kahn,
441 F.3d 977, 985-86 (Fed. Cir. 2006) (“On appeal to the Board, an
applicant can overcome a rejection [under § 103] by showing insufficient
evidence of prima facie obviousness or by rebutting the prima facie case
with evidence of secondary indicia of nonobviousness.”) (quoting In re
Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998)). Therefore, we look to
Appellant’s Briefs to show error in the proffered prima facie case.

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ISSUE
We find the following issue to be dispositive with respect to all claims
on appeal:
Whether Appellant has shown the Examiner has failed to articulate an
adequate reasoning with a rational underpinning to support the proffered
combinability of Choi, de Vries, and Zhou.1 In particular, we decide the
question of whether the Examiner has relied upon impermissible hindsight in
formulating the rejection under section 103.

ANALYSIS
We consider the Examiner’s rejection of independent claims 1 and 5
as being unpatentable over the teachings of Choi in view of Amro.
Appellant contends that Choi does not recognize any problem with
respect to errors in general, and specifically with respect to updating weights
using a gradient of the error with respect to the weights. Appellant asserts
that a person of ordinary skill in the art, having Choi and de Vries before
him or her, would not have been provided with motivation to modify the

1 “[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 unpatentability.” In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Moreover, “‘there must be
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness’ . . . . [H]owever, the analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR, 127 S. Ct. at 1741
(quoting In re Kahn, 441 F.3d at 988).
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fluxgate sensor of Choi to include the neural network training method and
system of de Vries (App. Br. 9). Even if arguendo the references were
somehow combined, Appellant contends that Choi and de Vries would not
have provided any guidance as to how such a combination could have been
made. Appellant submits that the Examiner has improperly looked to the
present Specification for such guidance (Id.). Moreover, Appellant contends
the Examiner has provided no rationale why the field of neural networks (as
taught by de Vries) would logically have commended itself to one working
with fluxgate sensors, as in Choi (App. Br. 11). Appellant concludes that
such motivation is taken only from impermissible hindsight afforded by
Appellant’s disclosure. Regarding the tertiary Zhou reference, Appellant
argues that merely because Zhou discloses calibration does not provide
sufficient motivation to apply a neural network to a fluxgate sensor in the
manner suggested by the Examiner (App. Br. 12).
The Examiner disagrees. The Examiner acknowledges that Choi and
de Vries do not provide sufficient motivation for their proffered combination
(See Ans. 5, ¶3). The Examiner nevertheless looks to the tertiary Zhou
reference as purportedly providing the missing motivation (Id.). The
Examiner asserts that Zhou teaches computing an azimuth angle using a
calibrated voltage value (See Zhou, col. 8, ll. 28-50) (Ans. 8, ¶1).
We note that the U.S. Supreme Court recently reaffirmed that “[a]
factfinder should be aware, of course, of the distortion caused by hindsight
bias and must be cautious of argument reliant upon ex post reasoning.” KSR,
127 S. Ct. at 1742. See also Graham v. John Deere Co., 383 U.S. 1, 36
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(1966). Nevertheless, in KSR the Supreme Court also qualified the issue of
hindsight by stating that “[r]igid preventative rules that deny factfinders
recourse to common sense, however, are neither necessary under our case
law nor consistent with it.” KSR, 127 S. Ct. at 1742-43.
Here, we conclude that a person of ordinary skill in the art having
common sense at the time of the invention would not have reasonably
combined the Choi, de Vries, and Zhou references in the manner suggested
by the Examiner. In particular, we agree with Appellant that Choi does not
recognize any problem with respect to errors in general, and specifically
with respect to updating weights using a gradient of the error with respect to
the weights (See App. Br. 9). Thus, we agree with Appellant that there is no
problem or deficiency in the teachings of Choi that would have reasonably
led an artisan familiar with Choi to look to de Vries’ unrelated teaching of
neural networks.
We acknowledge that de Vries discloses that “neural network
modeling has been developed to solve [a broad spectrum of] problems
ranging from natural language understanding to visual processing” (col. 1, ll.
24-26). Nevertheless, we find the Examiner has admitted in the record that
Choi and de Vries do not provide sufficient motivation for their proffered
combination (See Ans. 5, ¶3). We agree.
The Examiner looks to the tertiary Zhou reference to provide the
missing motivation (Id.). We find the Examiner’s argument unavailing that
the Zhou reference would have motivated an artisan to combine Choi and de
Vries, given that Zhou uses a three-axis sensor that calculates an azimuth
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angle directly using the output of a Z-axis sensor (See Zhou, abstract; col. 1,
l. 63, col. 2, l. 58; col. 6, ll. 57-59, i.e., “The three-axis magnetometers
measure the three independent components of the earth’s magnetic field and
provides signals indicative of the measurement.”). Therefore, we find the
weight of the evidence supports Appellant’s position that the Examiner has
relied upon impermissible hindsight in formulating the rejection.
Moreover, based upon the record before us, we conclude the instant
claimed control unit (that calibrates the X-axis and Y-axis fluxgate voltage
values based on a neural network weight matrix stored in a memory, and
further computes an azimuth angle by using the calibrated voltage values) is
a nonobvious advancement that is more than the predictable use of prior art
elements according to their established functions.
For at least the aforementioned reasons, Appellant has satisfied the
burden of showing that the Examiner erred by demonstrating insufficient
evidence of prima facie obviousness in the record. Accordingly, we reverse
the Examiner’s rejection of independent claims 1 and 5 as being
unpatentable over Choi in view of de Vries, and further in view of Zhou.
Because dependent claims 3 and 4 depend directly or indirectly upon claim
1, we also reverse the Examiner’s rejection of these claims. Therefore, we
reverse the Examiner’s rejection of all claims on appeal.

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DECISION
Based on the findings of facts and analysis above, we conclude that
the Examiner erred in rejecting claims 1, 3, 4, and 5 under 35 U.S.C.
§ 103(a) for obviousness. Therefore, the decision of the Examiner rejecting
claims 1, 3, 4, and 5 is reversed.

REVERSED

pgc

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