Ex Parte Pando

Board of Patent Appeals and Interferences

May 24, 2011

11026948 (B.P.A.I. May. 24, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RICHARD PANDO
____________

Appeal 2010-001285
Application 11/026,948
Technology Center 3600
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Before JENNIFER D. BAHR, STEVEN D.A. McCARTHY and
MICHAEL C. ASTORINO, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-001285
Application 11/026,948

2
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 1
decision finally rejecting claims 1-3, 6, 7, 9, 13 and 14 under 35 U.S.C. 2
§ 103(a) as being unpatentable in view of Smith (US 2006/0101960 A1, 3
May 18, 2006) and Kashiwa (JP2000249546A, Sep. 14, 2000). Claims 4, 5, 4
10-12 and 15 have been withdrawn and claim 8 has been cancelled. Claim 1 5
is the sole independent claim. We have jurisdiction over the appeal under 35 6
U.S.C. § 6(b). 7
We REVERSE. 8
Claim 1 is illustrative of the claims on appeal. 9
1. A power tool operable upon a work piece, 10
comprising: 11
a wave source that transmits a wave to the 12
work piece; 13
a receiver that receives a reflected wave 14
from the work piece; 15
a microprocessor that calculates a distance 16
based on the transmitted wave and the 17
reflected wave; and 18
an indicator that provides information about 19
the distance. 20
(Italics added). 21
Smith discloses a power tool, including a saw blade 408, a light 22
source 410 and an electro-optic detector 424. Smith discloses that the 23
detector 424 detects reflected signals from a glove (wearer’s hand). (Smith, 24
para. [0025]). Smith describes the detector may include analyzer hardware 25
and/or software for conducting analysis of the return signal. (Smith, para. 26
[0026]). Smith further discloses that when a human body part (or glove) is 27
detected, a passive or active stopping technique may be employed to prevent 28
Appeal 2010-001285
Application 11/026,948

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contact between a user and a saw blade. (See Smith, paras. [0019] and 1
[0025]). 2
The Examiner finds Smith discloses “a microprocessor that calculates 3
a distance based on the transmitted wave and the reflected wave (see 4
paragraph [0028]).” (Ans. 3). Smith paragraph [0028] discloses the use of 5
an optical proximity detector to detect a coherent light source to passively 6
stop a working tool, e.g. the saw blade 408. In the Final Office Action dated 7
Oct. 23, 2007 at page 5, the Examiner finds “the provisional applicant 8
60/453,299 which Smith incorporates by reference in its entirety1 describe 9
the analyzer to be a processing unit for the calculations (proximity, distance, 10
etc.) (see paragraph [0024 of 60/453,299]).” The Appellant concedes Smith 11
discloses a processing unit in the provisional application at paragraph 12
[0024], but the Appellant also points out that the processing unit is not for a 13
distance measurement. (App. Br. 8-9)2. 14
The Examiner finds that Smith teaches a processing unit “measuring 15
the distance . . . to determine the appropriate countermeasure.” (See Ans. 7). 16
The Examiner further finds Smith teaches “a detector 324 may be capable of 17
providing a varying response based on the location at which the body part is 18
detected.” (Ans. 7, citing Smith, para. [0020], ll. 16-18). The Examiner 19
then finds “it’s inherent that detecting the location must include at least 20
measuring the distance and angle of the reflected energy.” (Ans. 7). 21
However, the fact that it might be possible to deduce the distance from a 22

1 Smith incorporated by reference U.S. Provisional Patent Application
Serial Number 60/453,299 at Paragraph [0001].
2 Citations to the Appeal Brief are directed to the Appeal Brief dated Jul. 31,
2009.
Appeal 2010-001285
Application 11/026,948

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detector by measuring the wavelength does not satisfy the limitation of a 1
microprocessor that calculates a distance. 2
The Appellant correctly contends “Smith is lacking a microprocessor 3
that calculates distance because Smith is only concerned with differentiating 4
the nature of objects in the field of detection.” (Reply Br. 5). The Appellant 5
supports this contention by pointing out that “there are other ways to detect a 6
hand besides calculating distance. For example . . . a frequency change in a 7
reflected beam (i.e. skin color, or shape), which is exactly what is done in 8
Smith.” (App. Br. 8). As such, Smith does not disclose “a microprocessor 9
that calculates a distance based on the transmitted wave and the reflected 10
wave” as recited in claim 1 by a preponderance of the evidence. 11
Kashiwa describes an electronic rangefinder having a display panel 4. 12
(Kashiwa, Abstract). The Examiner does not point out how the teachings of 13
Kashiwa might remedy the deficiency in the disclosure of Smith pointed out 14
in connection with the rejection of claim 1. Since the Examiner’s conclusion 15
of obviousness lacks rational underpinning, we do not sustain the 16
Examiner’s final decision rejecting claims 1-3, 6, 7, 9 and 13-14 under 17
§ 103(a) as being unpatentable in view of Smith and Kashiwa. 18
19
DECISION 20
We REVERSE the Examiner’s decision rejecting claims 1-3, 6, 7, 9 21
and 13-14. 22
REVERSED 23
24
Klh 25