Ex Parte Demirtas et al

Board of Patent Appeals and Interferences

Feb 12, 2009

11532489 (B.P.A.I. Feb. 12, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte DERVIS DEMIRTAS,
JOERI JOUKE POST, and
JENNIGJE DANKELMAN
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Appeal 2009-1616
Application 11/532,489
Technology Center 2800
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Decided:1 February 12, 2009
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Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and
CATHERINE Q. TIMM, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-1616
Application 11/532,489

This is an appeal from the final rejection of claims 1 and 2. Claim 1
reads as follows:
1. A joystick having more than two degrees of freedom, at least
designed for movement in the x and y direction at right angles to a
longitudinal axis thereof, and in a rotational direction ω around said
longitudinal axis, and provided with a fourth degree of freedom in the
direction of the longitudinal axis, and comprising:

a handle for manual operation, the handle comprising a first tubular
member surrounded by a second tubular member; and

wherein the first tubular member is designed for movement in the x
and y direction; and

wherein the second tubular member is designed for sliding along and
rotating around the first tubular member, wherein the first tubular member
and the second tubular member are equipped with a sensor and an
identification means suitable for detection by the sensor so as to detect the
relative position of the first tubular member and the second tubular member
in both said rotational direction around said longitudinal axis and in the
direction of said longitudinal axis.

The Examiner relies upon the following reference in the rejection of
the appealed claims:
Magara US 7,148,880 B2 Dec. 12, 2006 (filing date Sept. 13,
2002)
Appellants’ claimed invention is directed to a joystick having more
than two degrees of freedom. The joystick comprises a handle having a first
tubular member surrounded by a second tubular member. The first tubular
member is designed for moving in the x and y direction, whereas the second
tubular member is designed for sliding along and rotating around the first
tubular member. The joystick also comprises means for detecting the
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Appeal 2009-1616
Application 11/532,489

relative position of the tubular members in both the rotational direction
around the longitudinal axis and in the direction of the longitudinal axis.
Appealed claims 1 and 2 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by Magara.
We have thoroughly reviewed the respective positions advanced by
Appellants and the Examiner. In so doing, we find that the Examiner’s
rejection is not supported by the evidence relied upon. Accordingly, we will
not sustain the Examiner’s rejection.
We are not persuaded by Appellants’ argument that the claimed
joystick is patentably distinct from the joystick of Magara because “Magara
can only move in the longitudinal direction . . . or rotate while measuring
rotation, but can not do both simultaneously as can the structure recited in
Applicant’s claim 1” (App. Br. 5, first para.). Claim 1 on appeal fails to
recite simultaneous sensing of movement in the longitudinal direction of the
joystick while also measuring rotation. We are also not persuaded by
Appellants’ argument that “Magara requires two separate sensors for
detecting both the rotational direction around the longitudinal axis and
direction of the longitudinal axis” (App. Br. 5, second para.). Claim 1
recites “the first tubular member and the second tubular member are
equipped with a sensor” (emphasis added) and, therefore, the claim
encompasses two separate sensors.
The flaw in the rejection is the Examiner’s finding that Magara
describes a joystick comprising the presently claimed “first tubular
member”. Magara describes element 12 as a “support axis” (col. 1, l. 26)
but the reference provides no disclosure that the support axis is tubular, i.e.,
hollow. Nor can it be fairly said that Figure 1 of Magara depicts axis 12 as
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Appeal 2009-1616
Application 11/532,489

tubular. Hence, there is no factual support for the Examiner’s finding that
“[t]he element [12] in Fig. 1 of Magara is tubular” (Ans. 4, first para.). It is
by now axiomatic that a rejection must be supported by facts not
speculation. In re Warner, 379 F.2d 1011, 1017 (CCPA 1967).
We also agree with Appellants that Magara fails to describe an
identification means comprising “a grid” as recited in claim 2 on appeal.
The Examiner has not explained how element 14 of Magara meets any
definition for a grid. The definition offered by Appellants in their Reply
Brief, “‘a framework of crisscrossed or parallel bars; a grating or mesh’”
(Reply Br. 5 quoting www.freedictionary.com), has not been refuted by the
Examiner.
In conclusion, based on the foregoing, we are constrained to reverse
the Examiner’s rejection.

REVERSED

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