Ex Parte AusserlechnerDownload PDFPatent Trial and Appeal BoardMay 14, 201812352119 (P.T.A.B. May. 14, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/352,119 01112/2009 25281 7590 05/16/2018 DICKE, BILLIG & CZAJA FIFTH STREET TOWERS 100 SOUTH FIFTH STREET, SUITE 2250 MINNEAPOLIS, MN 55402 FIRST NAMED INVENTOR Udo Ausserlechner 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. I560.248.101/2008P51735US 1187 EXAMINER SCHINDLER, DAVID M ART UNIT PAPER NUMBER 2858 NOTIFICATION DATE DELIVERY MODE 05/16/2018 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): USPTO.PA TENTS@dbclaw.com dmorris@dbclaw.com DBCLA W-Docket@dbclaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte UDO AUSSERLECHNER Appeal2017-004469 Application 12/352, 119 Technology Center 2800 Before ADRIENE LEPIANE HANLON, JAMES C. HOUSEL, and JENNIFER R. GUPTA, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL 1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner's decision rejecting claims 1-23, 25, and 27. We have jurisdiction over the appeal under 35 U.S.C. § 6(b ). We AFFIRM-IN-PART. 1 Our decision refers to the Specification (Spec.) filed January 12, 2009, the Examiner's Non-Final Office Action (Non-Final) dated April 8, 2016, Appellant's Appeal Brief (Appeal Br.) filed June 27, 2016, the Examiner's Answer (Ans.) dated November 23, 2016, and Appellant's Reply Brief (Reply Br.) filed January 23, 2017. 2 According to Appellant, the real party in interest is Infineon Technologies, AG. Appeal Br. 3. Appeal2017-004469 Application 12/352, 119 STATEMENT OF THE CASE The invention relates to a sensor for determining the angular position of a rotating member, wherein the angle sensor includes an annular ring magnet to be attached to a rotatable shaft, a first magnetic sensor proximate the ring magnet to measure magnetic field lines within the annulus of the magnet, and a second magnetic sensor proximate the ring magnet to measure magnetic field lines outside the annulus of the magnet (Spec. i-fi-f l, 4). Claim 1, reproduced below from the Claims Appendix to the Appeal Brief, is illustrative of the subject matter on appeal. 1. An angle sensor, comprising: a ring magnet adapted to be attached to a rotatable shaft, the ring magnet having an axis of rotation and an inner radius and an outer radius extending from the axis of rotation to define an annulus, the ring magnet having a homogeneous magnetization in a first direction that is oriented perpendicular to the axis of rotation; a first magnetic sensor positioned proximate the ring magnet at a first distance from the axis of rotation to measure magnetic field lines generated by the homogeneous magnetization of the ring magnet in the first direction, wherein the first distance is greater than the inner radius and less than the outer radius; and a second magnetic sensor positioned proximate the ring magnet at a second distance from the axis of rotation to measure magnetic field lines generated by the homogeneous magnetization of the ring magnet in the first direction, wherein the second distance is greater than the outer radius or less than the inner radius, the second distance different from the first distance so that the first and second magnetic sensors are disposed at different distances from the axis of rotation; wherein the first magnetic sensor is situated entirely between the inner radius and outer radius, and wherein the second magnetic sensor is situated either entirely beyond the outer radius or entirely within the inner radius. 2 Appeal2017-004469 Application 12/352, 119 REJECTIONS The Examiner maintains the following grounds of rejection as set forth in the Non-Final Office Action of April 8, 2016: 1. Claims 15-23, 25, and 27 under pre-AIA 35 U.S.C. § 112, second paragraph, as indefinite; 2. Claims 15, 16, 18, 20, 22, 23, and 25 under 35 U.S.C. § 102(b) as anticipated by Tanaka; 3 3. Claims 11-23 and 27 under 35 U.S.C. § 102(a) as anticipated by, or in the alternative, under 35 U.S.C. § 103(a) as unpatentable over Aimuta · 4' 5 ' 4. Claims 1-10 under 35 U.S.C. § 103(a) as unpatentable over Aimuta; and 5. Claim 25 under 35 U.S.C. § 103(a) as unpatentable over Aimuta in view ofNehl. 6 3 WO 2007 /145296, published December 21, 2007 ("Tanaka"). The Examiner relies, without objection, on US 2010/0060272 Al, published March 11, 2010, as an English-language translation of this reference. 4 WO 2008/062778, published May 29, 2008 ("Aimuta"). The Examiner relies, without objection, on US 2009/0206827 Al, published August 20, 2009, as an English-language translation of this reference. 5 Although the Examiner's statement of this rejection only includes claims 11, 13, 15, 17-19, 21, and 27, the body of this rejection discusses not only these claims, but also claims 12, 14, 16, 20, 22, and 23 (Non-Final 20, 28-30). In addition, Appellant recognizes that this rejection actually covers claims 11-23 and 27 (see Appeal Br. 19). We have amended the Examiner's statement of rejection to reflect the correct listing of claims. 6 US 6,720,763 Bl, issued April 13, 2004 ("Nehl"). 3 Appeal2017-004469 Application 12/352, 119 ANALYSIS Rejection 1: Indefiniteness under 35 US.C. § 112, second paragraph In the Examiner's Answer, the Examiner maintains every rejection set forth in the Non-Final Office Action (Ans. 2), including the rejection of claims 15-23, 25, and 27 under pre-AIA 35 U.S.C. § 112, second paragraph, as indefinite (Non-Final 4--8). As the Examiner notes (Ans. 2-3), Appellant does not address this rejection on appeal, specifically noting that this rejection is not included in the appeal (see Appeal Br. 8). Accordingly, we summarily affirm this rejection. Rejection 2: Anticipation by Tanaka The Examiner maintains the rejection of claims 15, 16, 18, 20, 22, 23, and 25 under 35 U.S.C. § 102(b) as anticipated by Tanaka. Independent method claim 15 is reproduced below from the Claims Appendix to the Appeal Brief. Limitations at issue are italicized. 15. A method of producing an angle sensor, comprising: providing a ring magnet, the ring magnet having an axis of rotation and an inner radius and an outer radius extending from the axis of rotation to define an annulus, the ring magnet having a homogeneous magnetization in a first direction that is oriented perpendicular to the axis of rotation; situating a first magnetic sensor proximate the ring magnet at a location entirely between the inner radius and outer radius to measure magnetic field lines generated by the homogeneous magnetization of the ring magnet in the first direction a distance from the axis of rotation that is greater than the inner radius and less than the outer radius; and situating a second magnetic sensor proximate the ring magnet at a location entirely beyond the outer radius or entirely within the inner radius to measure magnetic field lines generated by the homogeneous magnetization of the ring magnet in the first direction at 4 Appeal2017-004469 Application 12/352, 119 a distance from the axis of rotation greater than the outer radius or less than the inner radius, the first and second magnetic sensors situated in a same plane which extends through the axis of rotation and is perpendicular to a major surface of the ring magnet. The Examiner finds Tanaka teaches providing a ring magnet 4a adapted to be attached to a rotatable shaft, situating a first magnetic sensor 4c proximate the ring magnet at a location entirely between the inner and outer radii of the magnet to measure field lines generated by the homogenous magnetization of the ring magnet in the first direction at a distance from the axis of rotation that is between the inner and outer radii, and situating a second magnetic sensor 4b proximate the ring magnet at a location entirely outside the outer radius of the magnet to measure field lines generated by the homogenous magnetization of the ring magnet in the first direction at a distance from the axis of rotation that is greater than the outer radius (Non-Final 9--10). The Examiner finds that Appellant's Specification does not provide any special definition as to what is meant by a "location" of the sensor (Ans. 6). The Examiner construes the term "location" to be "a broad term that can reasonably be construed to be any point in space no matter how small," such that different parts of the sensor are located at different physical locations in space (id. at 5---6). In support of this construction, the Examiner finds the definition of "location" to be "a place or position" (id. at 9, citing http://www.merriam- webster.com/dictionary/location). The Examiner also construes the term "at" to include "near" (id. at 6) or "used as a function word to indicate presence or occurrence in, on, or near" (id. at 10-11, citing http://merriam- webster.com/ dictionary/at). Based on these constructions, the Examiner 5 Appeal2017-004469 Application 12/352, 119 interprets claim 15 to only require "that the sensor have a portion that is at a location entirely between the inner and outer radius and another sensor having a portion at a location entirely within the inner or entirely beyond the outer radius" (Non-Final 10-11). In other words, the Examiner states that claim 15 "does not require the entire sensor to be positioned as claimed" (id. at 11 ). Therefore, the Examiner finds that Tanaka situates the first and second magnetic sensors half over the ring magnet and half outside the ring magnet such that part of the measurement from the sensors will occur at a distance between the inner and outer radii of the ring magnet and part of the measurement therefrom will occur at a distance greater than the outer radius of the ring magnet (id. at 9--10). Appellant argues that Tanaka fails to teach or suggest situating a first magnetic sensor at a location entirely between the inner and outer radii of the ring magnet and a second magnetic sensor at a location entirely within the inner radius, or entirely beyond the outer radius, of the ring magnet (Appeal Br. 8). In order to find Tanaka teaches these features even though Tanaka's first and second magnetic sensors are both located half over the ring magnet and half outside the outer radius of the ring magnet, Appellant contends that the Examiner ignores the express language of claim 15 which requires the whole of the first magnetic sensor to be situated entirely between the inner and outer radii of the ring magnet and the whole of the second magnetic sensor to be situated entirely beyond the outer radius or entirely within the inner radius (id. at 9). With regard to the Examiner's construction of the phrase "at a location," Appellant asserts that given the definitions provided by the Examiner, the broadest reasonable interpretation consistent with the Specification is "at a particular place or position" such 6 Appeal2017-004469 Application 12/352, 119 that the first and second magnetic sensors are positioned at a particular place, where such place for the first sensor is entirely between the inner and outer radii of the ring magnet and where such place for the second magnetic sensor is entirely beyond the outer radius or entirely within the inner radius of the ring magnet (Reply Br. 3--4 ). As a result, Appellant urges that the Examiner's interpretation of claim 15 is unreasonable (Appeal Br. 9). Appellant's arguments are persuasive of reversible error in the Examiner's interpretation of claim 15. Although claims should be given their broadest reasonable interpretation during examination, claims must be interpreted as one of ordinary skill in the art would in light of the Specification. See In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999) ("Although the PTO must give claims their broadest reasonable interpretation, this interpretation must be consistent with the one that those skilled in the art would reach."); In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983) ("It is axiomatic that, in proceedings before the PTO, claims in an application are to be given their broadest reasonable interpretation consistent with the specification and that claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art."). In this case, the Examiner's interpretation separates the phrase "at a location" from the term "entirely" such that this latter term is read out of the claim. By the Examiner's construction, a location may be any point in space however small, such that a "location" has no dimension. Where "location" is merely a point in space without dimension, the term "entirely" has no meaning because the point in space is either on a curve (radius) or not on the curve. The term, "entirely," with reference to a point in space would attach no additional meaning. Thus, a point in space that is not on the curve is 7 Appeal2017-004469 Application 12/352, 119 always entirely on one side or the other of the curve, in two-dimensional space. Therefore, consistent with Appellant's Specification, we determine that the broadest reasonable interpretation of situating a first magnetic sensor "at a location entirely" between the inner and outer radii of the ring magnet requires positioning or placing the sensor entirely between the inner and outer radii, and situating a second magnetic sensor "at a location entirely" beyond the outer radius or within the inner radius requires positioning or placing this sensor entirely beyond the outer radius or entirely within the inner radius. Applying this interpretation of claim 15 to Tanaka, and given that the Examiner finds Tanaka teaches the first and second magnetic sensors are each located half within the outer radius and half beyond the outer radius, it is clear that Tanaka does not teach either of the recited situating steps of claim 15. Accordingly, we cannot sustain the Examiner's anticipation rejection based on Tanaka. Rejections 3-5: Anticipation by, or in the alternative, obviousness over Aimuta, alone or further in view of Nehl A claim is anticipated only where "each and every limitation is found either expressly or inherently in a single prior art reference." Celeritas Techs., Ltd. v. Rockwell Int'!. Corp., 150 F.3d 1354, 1361 (Fed. Cir. 1998). Moreover, the Examiner has the initial burden of establishing a prima facie case of obviousness based on an inherent or explicit disclosure of the claimed subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) ("[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 8 Appeal2017-004469 Application 12/352, 119 unpatentability"). To establish a prima facie case of obviousness, the Examiner must show that each and every limitation of the claim is described or suggested by the prior art or would have been obvious based on the knowledge of those of ordinary skill in the art. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988). The Examiner maintains the rejection of claims 11-23 and 27 under 35 U.S.C. § 102(a) as anticipated by, or in the alternative, under 35 U.S.C. § 103 (a) as unpatentable over Aimuta. In addition, the Examiner maintains the rejection of claims 1-10 under 35 U.S.C. § 103(a) as unpatentable over Aimuta, adding Nehl to reject claim 25. Independent claim 1 has been reproduced above. Independent method claim 11 is reproduced below from the Claims Appendix to the Appeal Brief. 11. A method of determining angular position, comprising: rotating a ring magnet, the ring magnet having an axis of rotation and an inner radius and an outer radius extending from the axis of rotation to define an annulus, the ring magnet having a homogeneous magnetization in a first direction that is oriented perpendicular to the axis of rotation; sensing magnetic field lines generated by the homogeneous magnetization of the ring magnet in the first direction from the axis of rotation at a first location entirely between the inner radius and the outer radius; sensing magnetic field lines generated by the homogeneous magnetization of the ring magnet in the first direction from the axis of rotation at a second location entirely beyond the outer radius or entirely within the inner radius, the second location being different from the first location so that magnetic field lines are sensed at different distances from the axis of rotation; determining the angular position of the ring magnet in response to a difference between the magnetic field lines sensed at the first location and the second location. 9 Appeal2017-004469 Application 12/352, 119 The Examiner finds Aimuta discloses a method of providing and rotating a ring magnet about a rotatable shaft, sensing magnetic field lines generated by homogenous magnetization of the ring magnet in a first direction from the axis of rotation at a first location entirely between the inner and outer radii of the ring magnet, and sensing magnetic field lines generated by the homogenous magnetization of the ring magnet in the first direction from the axis of rotation at a second location entirely beyond the outer radius or entirely within the inner radius of the ring magnet, and determining the angular position of the ring magnet in response to a difference between the magnetic field lines sensed at the first and second locations (Non-Final 13-14). In support of these findings, the Examiner directs attention to Aimuta's Figures 46 and 47, elements 22a-22d (shown in Figure 9(a)), 7 as sensors, and finds, in Figure 46 each element will be over the ring magnet and one of the inner elements will be also be over the inner gap of the ring and part of the one of the outer elements will be outside the radius of the ring, and in Figure 4 7 one of the inner elements will be less than the radius of the ring and one of the outer elements will be between the inner and outer radius of the ring (id.). The Examiner also directs attention to Aimuta, Figure 9(a), noting that there is a space between the inner and outer elements and to paragraphs 3 66 7 Although the Examiner indicates that Aimuta, Figures 46 and 4 7, depict the positioning of sensor 12a as shown in Figure 9(a), these figures actually depict the positioning of sensor 12b as shown in Figure 9(d) (Non-Final 14). However, because there appears to be no difference in the placement of sensors 22a-22d for sensor 12a (Fig. 9(a)) and the placement of sensors 22e-22h for sensor 12b (Fig. 9(d)), and the Examiner subsequently refers to sensor 12b (Non-Final 18), we hold this error harmless. 10 Appeal2017-004469 Application 12/352, 119 and 367, noting that rotation angle was detected using this sensor arrangement (id. at 14). Alternatively, the Examiner finds that Aimuta does not explicitly show the sensor elements in Figures 46( a }--4 7 (b ), nor sensing magnetic field lines generated by the homogenous magnetization of the ring magnet in the first direction at a first location entirely between the inner and outer radii and sensing magnetic field lines generated by the homogenous magnetization of the ring magnet in the first direction at a second location entirely beyond the outer radius or entirely within the inner radius, wherein the first and second locations are different (Non-Final 14--15). However, the Examiner finds Aimuta discloses that it was known to utilize different distances from the sensors to the ring magnet, different inclinations of the sensors with respect to the ring magnet, and different sensor arrangement angles with respect to the ring magnet (id. at 15). The Examiner concludes, therefore, that it would have been obvious to relocate Aimuta's sensor 12b (from Figure 9(d)) such that two sensor elements are completely between the inner and outer radii and the other two sensor elements are completely beyond the outer radius or completely within the inner radius, in order: to advantageously utilize a sensing arrangement that provides unique detected magnetic fields that can be compared to both provide an absolute angle and to minimize error by allowing two magnetic measurements at two locations of the overall magnetic field to be detected and thus compared for the purposes of minimizing error, and in order to advantageously utilize a rotation angle configuration with high accuracy (Paragraphs [0366] and [0367]/note Aimuta discloses the sensor is part over the ring and partly beyond it), and in order to advantageously utilize a configuration that advantageously allows for the detection of absolute values and suppressing of angle error (Paragraph [0368]) 11 Appeal2017-004469 Application 12/352, 119 (id. at 15-17). The Examiner further finds that there was a recognized problem in the art of needing to be able to determine a rotation angle with high accuracy and that there are only a finite number of positions that the sensor elements of sensor 12b can be positioned with respect to the ring magnet, especially given Aimuta's teaching that the sensor elements are placed approximately symmetrically within sensor 12b (id. at 17). Appellant argues that the Examiner concedes Aimuta fails to explicitly show the positioning of first and second sensor as recited in the claims (Appeal Br. 19). Further, Appellant contends that Aimuta fails to teach or suggest positioning first and second magnetic sensors respectively entirely within and outside an annulus of a ring magnet in order to achieve improved angle measurements (id. at 12). Instead, according to Appellant, Aimuta teaches placing the sensors coplanar with and beyond the outer radius of the ring magnet set at a sensor inclination angle, x, relative to the x- y plane of the magnet and offset along the z-axis (id.). Appellant asserts that each of Aimuta's embodiments are completely silent as to situating one sensor entirely within the annulus of the magnet and one sensor entirely beyond the annulus of the magnet (id. at 12-13). With regard to the Examiner's finding that Aimuta's sensor device 12b as depicted in Figures 46(a}-47(b) includes one sensor that is entirely between the inner and outer radii of the ring magnet and another sensor is entirely beyond the outer radius or entirely within the inner radius of the magnet, Appellant asserts that Aimuta's sensor device 12b includes magneto-resistive spin valve devices 22e-22h that connect to form a pair of sensor bridges (id. at 13) and that, because Aimuta does not disclose that the 12 Appeal2017-004469 Application 12/352, 119 Figures are dimensioned, it is nothing more than speculation by the Examiner to find that one of these devices is positioned as recited in the claims (id. at 14). Appellant's arguments are persuasive of reversible error. It is well settled that "[a ]bsent any written description in the specification of quantitative values, arguments based on measurement of a drawing are of little value." In re Wright, 569 F.2d 1124, 1127 (CCPA 1977). Precise proportions should not be read into patent drawings when the patent does not expressly provide such proportions. Nystrom v. TREX Co., Inc., 424 F.3d 1136, 1149 (Fed. Cir. 2005). But while patent drawings are not working drawings drawn to scale, things patent drawings show clearly are not to be disregarded. In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972) (drawings showing feature with great particularity or greatly enlarged); In re Heinrich, 268 F.2d 753, 755 (CCPA 1959). In fact, "[d]escription for the purposes of anticipation can be by drawings alone as well as by words." In re Eager, 4 7 F.2d 951, 953 (CCPA 1931). Here, there is no dispute that Aimuta's drawings are neither drawn to scale or provide dimensions for each of the structures depicted therein. While Aimuta teaches certain dimensions for Figures 46( a }--4 7 (b ), including the distance of the center line of sensor device 12b from the axis of rotation, the separation of the sensor device from the ring magnet, the inner and outer diameters of ring magnet 21, and the sensor inclination angle (Aimuta i-fi-1366-367), Aimuta does not teach that dimensions of sensor device 12b or the dimensions of the individual spin valve devices therein. As a result, it is merely through speculation that the Examiner is able to find that Aimuta's sensor device in these figures meets the recited sensor positioning of 13 Appeal2017-004469 Application 12/352, 119 Appellant's claims. Such positioning can hardly be said to be depicted in Aimuta with sufficient particularity. The Examiner does not direct our attention to any written descriptive support for positioning sensor device 12b such that one of spin valve devices 22e-22h is entirely between the inner and outer radii of ring magnet 21 and another one of these devices is beyond the outer radius, or within the inner radius, of the ring magnet. Therefore, the Examiner fails to demonstrate that Aimuta teaches or suggests the recited structure. Absent such a teaching, a preponderance of the evidence favors Appellant with regard to the Examiner's finding of anticipation. In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). The Examiner does not rely on Nehl or other evidence of record to remedy this deficiency in Aimuta. Thus, the Examiner's conclusion of obviousness lacks sufficient rational underpinning. In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006) ("[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness."), quoted with approval in KSR, 550 U.S. at 418. Accordingly, we do not sustain the Examiner's anticipation or obviousness rejections based on Aimuta. CONCLUSION The rejection of claims 15-23, 25, and 27 under pre-AIA 35 U.S.C. § 112, second paragraph, as indefinite, is affirmed. The rejection of claims 15, 16, 18, 20, 22, 23, and 25 under 35 U.S.C. § 102(b) as anticipated by Tanaka is reversed. 14 Appeal2017-004469 Application 12/352, 119 The rejections of claims 11-23 and 27 under 35 U.S.C. § 102(a) as anticipated by, or in the alternative, under 35 U.S.C. § 103(a) as unpatentable over Aimuta, are reversed. The rejection of claims 1-10 under 35 U.S.C. § 103(a) as unpatentable over Aimuta is reversed. The rejection of claim 25 under 35 U.S.C. § 103(a) as unpatentable over Aimuta in view ofNehl is reversed. DECISION Upon consideration of the record, and for the reasons given above and in the Appeal and Reply Briefs, the decision of the Examiner rejecting claims 1-23, 25, and 27 is affirmed-in-part. No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. § 1.136(a)(l). AFFIRMED-IN-PART 15 Copy with citationCopy as parenthetical citation