Ex Parte Lehtonen

Board of Patent Appeals and Interferences

Sep 22, 2009

10774695 (B.P.A.I. Sep. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte TUOMO LEHTONEN
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Appeal 2009-003118
Application 10/774,695
Technology Center 2800
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Decided: September 22, 2009
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Before TERRY J. OWENS, PETER F. KRATZ, and MARK NAGUMO,
Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-003118
Application 10/774,695

A. Introduction1
Tuomo Lehtonen (“Lehtonen”) timely appeals under
35 U.S.C. § 134(a) from the final rejection2 of claims 1 and 3-17, which are
all of the pending claims. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM-IN-PART.
The subject matter on appeal relates to an acceleration sensor based
on a measurement of the capacitance of a pair of electrodes, one of which
moves relative to the other in response to an acceleration of the sensor,
thereby changing that capacitance. According to the 695 Specification,
preferably, the change in capacitance between the movable electrode and the
stationary electrode has been enhanced by the shape of the electrodes.
Representative Claim 1 is reproduced from the Claims Appendix to
the Principal Brief on Appeal:
1. A capacitive acceleration sensor comprising
at least one pair of electrodes such, that each pair of
electrodes comprises
a movable electrode, which is responsive to the
acceleration, and
at least one stationary plate portion,

1 Application 10/774,695, Capacitive Acceleration Sensor, filed
10 February 2004, claiming the benefit under 35 U.S.C. § 119(a) of a
Finnish application filed 11 February 2003. The specification is referred to
as the “695 Specification,” and is cited as “Spec.” The real party in interest
is listed as VTI Technologies OY. (Brief on Appeal, filed 12 July 2006
(“Br.”), 1-2.)
2 Office action mailed 5 October 2005 (“Final Rejection”; cited as “FR”).
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Application 10/774,695

wherein each pair of electrodes further comprises
an axis of rotation essentially forming a common
axis such, that
the movable electrode of the acceleration
sensor is rigidly supported at the axis of
rotation such, that the movable electrode is
free to turn in a rotational motion about the
axis of rotation, and that
a capacitance change between the movable
electrode in rotational motion and the plate
portion is enhanced by means of the
electrodes,
wherein the capacitance change
between the movable electrode in
rotational motion and the plate portion
is enhanced by means of the shape of
the electrodes.
(Br., Claims App. 1; indentation and emphasis added.)
Claims 12-14 specify certain shapes (triangle, drop, hammer) of the
pair of electrodes.
The Examiner has maintained the following grounds of rejection:3
A. Claims 1, 3-11, and 15-17 stand rejected under
35 U.S.C. § 102(b) in view of Menzel.4
B. Claims 12-14 stand rejected under
35 U.S.C. § 103(a) in view of the combined teachings of
Menzel and Reddi.5

3 Examiner’s Answer mailed 27 March 2007. (“Ans.”).
4 Christoph P. Menzel, Capacitor Center of Area Sensitivity in Angular
Motion Micro-Electromechanical Systems, U.S. Patent 6,000,287 (1999).
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Application 10/774,695

Lehtonen contends (Br. 5-7) that the Examiner erred in finding that
the alteration of the length of the moving electrode taught by Menzel to
obtain the desired sensitivity for the capacitative sensor meets the
requirement in claim 1 that “the capacitance change between the movable
electrode in rotational motion and the plate portion is enhanced by means of
the shape of the electrodes.” According to Lehtonen, the Examiner erred
further in finding that Reddi teaches that the pair of electrodes for the
capacitative acceleration sensor may be of any shape. (Br. 10-11.)
The Examiner maintains that the term “shape,” as used in claim 1 and
as defined in the 695 Specification, is broad enough to encompass changes
in the length of a rectangular electrode. (FR 3-4.) Moreover, the Examiner
finds that although Menzel does not teach any of the electrode shapes recited
in claims 14-16, Reddi teaches that bar 10 may have any shape. (Id.) The
Examiner concludes that it would have been obvious to use electrodes
having the shapes of a triangle, drop, or hammer recited in claims 14-16.
The issues dispositive of this appeal are:
Is the limitation, “enhanced by means of the shape,” sufficiently
narrow to exclude optimization of sensor response by changing the length of
a rectangular electrode? and
Does Reddi teach that an electrode may have any shape?

5 M. Mahadeva Reddi and Donald F. DeCleene, Linear and Rotational
Accelerometer, U.S. Patent 5,831,164 (1988).
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Application 10/774,695

B. Findings of Fact
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
The 695 Specification
1. The 695 Specification explains that the capacitance between two
electrodes increases as the distance between the two electrodes decreases.
(Spec. 3, ¶ [0009].)
2. Thus, according to the 695 Specification, the change in capacitance of
a pair of electrodes, one of which is movable with respect to the other in
response to an acceleration, can form the basis of a device to measure the
acceleration. (Spec. 2, ¶ [0006].)
3. According to the 695 Specification, an object of the invention is to
“improve the capacitance sensitivity of a pair of electrodes based on
rotational motion.” (Spec. 3, ¶ [0011].)
4. Each pair of electrodes is said to comprise a stationary plate electrode
and a movable electrode (Spec. 3, ¶ [0012]) that is “rigidly supported at the
axis of rotation” about which the movable electrode is free to rotate (id.
at ¶ [0013]), wherein the capacitance change due to the rotational motion is
“enhanced by the electrodes (id. at ¶ [0014]).”
5. In the words of the 695 Specification, “[p]referably, the change in
capacitance between the movable electrode in rotational motion and the
plate portion has been enhanced by the shape of the electrodes.” (Spec. 4,
¶ [0015].)
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Application 10/774,695

6. Notwithstanding the characterization, supra, that the movable
electrode is free to rotate about the supporting axis, in a preferred
embodiment, the movable electrode is said to have essentially two support
points, springs associated with these points providing a degree of rotational
freedom to the movable electrode about the axis of rotation. (Spec. 4,
¶ [0017].)
7. A side view of the “functional structure” of pair of electrodes
(Spec. 8, ¶ [0044]) is provided in Figure 3, which is reproduced below:

{Figure 3 shows a capacitative sensor}
8. According to the 695 Specification, the sensor comprises movable
electrode 5, stationary electrode 6, and axis of rotation 7. (Spec. 8,
¶ [0044].)6
9. Movable electrode 5 “is rigidly supported at the axis of rotation 7”
and is free to rotate about that axis. (Spec. 9, ¶ [0045].)

6 For clarity, element numbers are emphasized in bold font throughout this
Opinion without regard to their presentation in the original
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10. According to the 695 Specification, “[w]hen the movable electrode 5
rotates after the rotational motion to a lower position, the capacitance
between the surfaces 5, 6 increases as the distance between the surfaces 5, 6
decreases.” (Spec. 9, ¶ [0046].)
11. The 695 Specification explains, “[t]he capacitance between the
surfaces 5, 6 in the pair of electrodes of the acceleration sensor, according to
the present invention, is unevenly distributed over the surfaces 5 and 6, since
the distance between the surfaces 5, 6 varies.” (Spec. 9, ¶ [0047].)
12. The 695 Specification states further:
In the acceleration sensor according to the present
invention, the change in capacitance of the movable electrode
in rotational motion is enhanced by means of the shape of the
pair of electrodes in comparison with a pair of electrodes of
rectangular shape. The enhancement of capacitance change
is based on the unevenness in electrode distance caused by
the rotational motion.
(Spec. 9, ¶ [0048].)
Menzel
13. Menzel describes capacitively sensed angular motion micro-
electromechanical (“MEMS”) systems useful as microaccelerometers.
(Menzel, col. 1, l. 11-12.)
14. According to Menzel, the microaccelerometers have substantially
parallel movable and stationary electrodes in which the movable electrodes
rotate through a dielectric fluid about an axis of rotation parallel to the
movable electrode. (Menzel, col. 1, l. 11 and ll. 55-60.)
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15. Menzel teaches that, in a preferred embodiment, the stationary
electrode and the movable electrode are rectangular. (Menzel, col. 1,
ll. 66-67.)
16. According to Menzel, “[e]ach electrode has sides defining a width
parallel to the axis of rotation,” and the sensitivity of the sensor may be set
by changing the stationary electrode length. (Menzel, col. 1, l. 67-col. 2,
l. 4.)
17. Menzel shows a capacitive microaccelerometer in the top view
(Figure 1) and side view (Figure 2), which are reproduced below:

{Figures 1 and 2 are said to show a top and side view of a sensor.}
18. The microaccelerometer 20 comprises a substrate 22 and a movable
plate 24 mounted on pedestal 26 via torsional members 30 defined by
apertures 28 in plate 24. (Menzel, col. 3, ll. 15-24.)
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19. According to Menzel, movable plate 24 is formed from a plate having
uniform density into a trident structure with the handle to the right and the
prongs to the left. (Menzel, col. 3, ll. 25-28.)
20. As a result, the mass of the handle to the right differs from the mass of
the prongs to the left, and acceleration in a direction normal to the substrate
will cause movable plate 24 to rotate about torsional members 30, moving
one end of movable plate 24 closer to the substrate and the other end farther
from the substrate. (Menzel, col. 3, ll. 28-35.)
21. First electrode 32, located on the bottom of the middle prong on the
left side of movable plate 24, and second electrode 34, located on the top
surface of substrate 22, forming first variable capacitor 36. (Menzel, col. 3,
ll. 35-38.)
22. Second variable capacitor 42 is formed on the right hand side by
similarly situated electrodes 38 and 40. (Menzel, col. 3, ll. 38-45.)
Reddi
23. Reddi describes a linear and rotational accelerometer based on
detector that measures the displacement of a “proof mass.” (Reddi, col. 2,
ll. 33-45.)
24. According to Reddi, “[t]he detector includes a plurality of capacitors,
each capacitor having substantially the same construction and comprising a
fixed electrode located opposite to a surface of the flat bar.” (Reddi, col. 2,
ll. 44-47.)
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25. Reddi further describes an element in Figures 1A and 1B as being an
imbalanced or eccentric flat bar 10 that acts as a proof mass. (Reddi, col. 3,
ll. 52-54.)
26. In Reddi’s words, “[t]he bar 10 is mounted between four fixed
electrodes 17, 18, 19 and 20 which serve as capacitor plates to sense the
angular excursion of the bar 10 from a null position.” (Reddi, col. 3,
ll. 61-64.)
27. Reddi teaches that “[a]ny shape of the bar 10 and the hinge 27 may be
used.” (Reddi, col. 6, ll. 30-31.)
C. Discussion
As the Appellant, Lehtonen bears the procedural burden of showing
harmful error in the Examiner’s rejections. See, e.g., Gechter v. Davidson,
116 F.3d 1454, 1460 (Fed. Cir. 1997) ("[W]e expect that the Board's
anticipation analysis be conducted on a limitation by limitation basis, with
specific fact findings for each contested limitation and satisfactory
explanations for such findings.") (emphasis added); 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”) (citation and internal quote omitted). Untimely
arguments not presented in the Principal Brief on Appeal have been waived.
37 C.F.R. § 41.37(c)(1)(vii), second sentence (2009).
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It is well settled that, during examination of the claims in an
application,
the PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant’s specification.”
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). It is improper to read
limitations from preferred embodiments in the specification into the claims.
In re Am. Acad. Sci. Tech. Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004).
Initially, we note that the only claim subject to the rejection by
anticipation in view of Menzel substantively disputed by Lehtonen is
claim 1. The traverses of the rejection of the remaining claims (Br. 7-9) are
merely assertions that the additional limitations are neither disclosed nor
suggested by Menzel. Such arguments, at most, point out what the claims
recite, and are not, under the regulations governing appeals to the Board,
arguments for separate patentability. 37 C.F.R. § 41.37(c)(1)(vii), last
sentence (2009). Accordingly, we limit our consideration to the disputed
limitations of claim 1.
Lehtonen does not dispute the Examiner’s findings that Menzel
describes capacitive acceleration sensors comprising a pair of electrodes,
one fixed, the other movable about an axis of rotation. The only limitation
of claim 1 not met by Menzel, according to Lehtonen, is the last, which
reads, “the capacitance change between the movable electrode in rotational
motion and the plate portion is enhanced by means of the shape of the
electrodes.” Lehtonen argues that Menzel only changes the size of a
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Application 10/774,695

rectangular electrode (para. bridging Br. 5-6), and that “this is different than
changing the shape of the electrode to enhance sensitivity” (id. at 6, first full
para.)
Lehtonen does not direct our attention to any definition of the term
“shape” in claim 1 or in the supporting 695 Specification that excludes
changing the shape of a rectangle by changing the length relative to the
width. A square is a special case of a rectangle, and uniformly lengthening
opposite sides of a square in the same direction produces a series of
rectangles, each of which has a different shape—a different aspect ratio—
than the others. Thus, Menzel’s teaching that the sensitivity of the sensor
may be adjusted by changing the length of the stationary electrode (Menzel,
col. 2, ll. 2-4), supports the Examiner’s finding that the disputed limitation is
met, i.e., that the capacitance change is “enhanced by means of the shape of
the electrodes.”
We observe further that the plain language of claim 1 does not provide
the basis is for determining whether the capacitance change has been
“enhanced.” The broad description of the invention provided by
the 695 Specification, “[p]referably, the change in capacitance between the
movable electrode in rotational motion and the plate portion has been
enhanced by the shape of the electrodes” (Spec. 4, ¶ [0015]) offers no
further enlightenment. Nor does the plain language of claim 1 define the
limitation, “change in capacitance . . . enhanced by the shape of the
electrodes.” The broad description in the Specification quoted immediately
supra is essentially the same as the claim language.
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It has not escaped our attention that various embodiments of the
invention are described, e.g., at page 8, paragraph [0044] through page 10,
paragraph [0048]. But consideration of these teachings tends to emphasize
the scope of the subject matter covered by claim 1, rather than to narrow the
scope. Figure 3, which is reproduced supra at 6, in particular, appears to
show a rectangular electrode 5 that is rigidly supported on an axis 7 that lies
parallel to stationary electrode 6. Axis 7 appears to hold movable
rectangular electrode 5 along a line that is not parallel to the long edges of
the electrode. Rotation about axis 7 thus brings disproportionately more of
electrode 5 closer to stationary electrode 6 than would rotation about an axis
parallel to the long edges of electrode 5. Holding electrode 5 fixed and
translating axis 7 parallel to the position shown, but further from electrode 6
would result in a configuration of electrode 5 relative to electrode 6 having a
greater “eccentricity.” The new pair of electrodes is fairly characterized as
having a different “shape” than the first electrode pair. Other changes of the
orientation and position of axis 7 on movable electrode 5 would result in still
other differently shaped electrodes. Any sensor having a greater capacitance
change upon rotation of the movable electrode 5 would be “enhanced”
relative to the other, and would therefore, fall within the scope of claim 1.
The 695 Specification describes still other, narrower embodiments of
sensors, such as those shown in Figures 4 and 6-23.
During examination, Lehtonen has the opportunity to explore the
scope and breadth of the claim language, recognize ambiguities, and impose
clarification by amendment of the claims. However, on appeal, we shall not
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read claim 1 narrowly by reading limitations of specific examples into the
broad language of the claim. As the Federal Circuit explained,
[w]e decline to attempt to harmonize the applicants'
interpretation with the application and prior art. Such an
approach puts the burden in the wrong place. It is the
applicants’ burden to precisely define the invention, not the
PTO's. See 35 U.S.C. § 112 ¶ 2 (“The specification shall
conclude with one or more claims particularly pointing out and
distinctly claiming the subject matter which the applicant
regards as his invention.”).
Morris, 127 F.3d at 1056.
Because Lehtonen has failed to demonstrate that the Examiner’s
interpretation of claim 1 is in error, we AFFIRM the rejection of claim 1 as
anticipated by Menzel.
We REVERSE the rejection of claims 12-14, which depend from
claim 1 and which recite specific shapes of electrodes, in view of the
combined teachings of Menzel and Reddi. The bar 10, which the Examiner
points to as providing teachings for arbitrary shapes of electrodes, is not an
electrode: it is a “proof mass,” the motion of which is said to change the
capacitance of the fixed electrodes. There is thus no evidentiary basis for
the Examiner’s conclusion that arbitrarily shaped electrodes, including the
specifically shaped electrodes recited in claims 12-14, would have been
obvious.
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Application 10/774,695

D. Order
We AFFIRM the rejection of claims 1, 3-11, and 15-17 under
35 U.S.C. § 102(b) in view of Menzel.
We REVERSE the rejection of claims 12-14 35 U.S.C. § 103(a) in
view of the combined teachings of Menzel and Reddi.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART

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