WENGER, Kevin et al.

Patent Trials and Appeals Board

Dec 31, 2019

15008550 - (D) (P.T.A.B. Dec. 31, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/008,550 01/28/2016 Kevin WENGER P-US-TN-14370-A 5466
28268 7590 12/31/2019
Stanley Black & Decker, Inc.
6201 Greenleigh Avenue, MR045
Middle River, MD 21220
EXAMINER
SMALL, NAOMI J
ART UNIT PAPER NUMBER
2684
MAIL DATE DELIVERY MODE
12/31/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN WENGER, OLEKSIY P. SERGYEYENKO, STEVEN J.
PHILLIPS, DAVID C. CAMPBELL, RENEE PIE, LEISA GLISPY,
JENNIFER BLOOMER, and RENEE FOLGER
Appeal 2019-001096
Application 15/008,550
Technology Center 2600
Before BRADLEY W. BAUMEISTER, JEREMY J. CURCURI, and
ADAM J. PYONIN, Administrative Patent Judges.
CURCURI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 29–31 and 33–42. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Black & Decker
Inc. Appeal Br. 3.
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Application 15/008,550
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CLAIMED SUBJECT MATTER
The claims are directed to “a system and method for identifying a
power tool.” Spec. ¶ 2. Claims 29 and 39, reproduced below, are illustrative
of the claimed subject matter:
29. A power tool, comprising:
a housing;
a motor disposed in the housing, the motor being
operable by a user of the power tool and operation of the motor
causing the power tool to vibrate;
a vibration sensor which detects vibration of the power
tool;
a transmitter which transmits information from the
vibration sensor to an external computing device; and
a controller in data communication with the vibration
sensor and the transmitter;
wherein the vibration sensor detects at least one of a
magnitude of vibration and a frequency of vibration; and
wherein the vibration sensor measures vibration in more
than one axis.
39. A power tool system, comprising:
a power tool, the power tool including:
a housing;
a motor disposed in the housing, the motor being
operable by a user of the power tool and operation of the motor
causing the power tool to vibrate;
a vibration sensor which detects vibration of the
power tool;
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a transmitter which transmits vibration data
received from the vibration sensor;
a memory, wherein the vibration data from the
vibration sensor is stored in the memory; and
a controller in data communication with the
vibration sensor and the transmitter; and
the power tool system further comprising an external
computing device remote from the power tool, the external
computing device receiving vibration data from the transmitter;
wherein the vibration data includes information of a
dominant resonant frequency of the power tool.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Kemmler US 2006/0005358 A1 Jan. 12, 2006
Golunski US 2009/0040061 A1 Feb. 12, 2009
Roth US 2009/0140154 A1 June 04, 2009

REJECTIONS
Claims 29–31, 33–38, and 42 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as obvious over Roth and Golunski. Final Act. 6–9.
Claims 39 and 40 are rejected under pre-AIA 35 U.S.C. § 103(a) as
obvious over Roth, Golunski, and Kemmler. Final Act. 10–11.
Claim 41 is rejected under pre-AIA 35 U.S.C. § 103(a) as obvious
over Roth, Golunski, and Kemmler. Final Act. 11–12.
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OPINION
The Obviousness Rejection of Claims 29–31, 33–38, and 42 over Roth and
Golunski
The Examiner finds Roth and Golunski teach all limitations of
claim 29. Final Act. 6–7. In particular, the Examiner finds Golunski teaches
“a transmitter which transmits information from the vibration sensor”;
“wherein the vibration sensor detects at least one of a magnitude of vibration
and a frequency of vibration”; and “wherein the vibration sensor measures
vibration in more than one axis,” as recited in claim 29. See Final Act. 6
(citing Golunski ¶¶ 71, 114, 128).
The Examiner reasons, as follows:
It would have been obvious to one having ordinary skill in
the art at the time the invention was made to implement the
transmission of data from the tool monitoring apparatus as taught
by Golunski, since Golunski states in paragraph [0129] that such
a modification would allow for remotely collecting an
employee’s cumulative vibration exposure with respect to the
use of multiple tools.
Final Act. 7 (citing Golunski ¶ 129).
Appellant presents the following principal argument: “Given that Roth
expressly teaches against using a multidimensional acceleration sensor, it
would not have been obvious to modify Roth to include just such a sensor.”
Appeal Br. 12 (citing Roth ¶¶ 5–6); see also Appeal Br. 13 (“[T]he Office
Action relies on an improperly high bar for teaching away. In order to teach
away, it is not necessary that the combination render the device inoperable.
Teaching away only requires criticizing or discouraging a combination.”),
Reply Br. 6–7 (citing Roth ¶¶ 2, 5).
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In response, the Examiner explains
Roth’s comment on not using the multidimensionally
functioning acceleration sensor is based on cost and does not
restrict or teach away or discourage the use of all
multidimensional acceleration sensors. Therefore, Golunski’s
tri-axial accelerometer is not described as being expensive and
would be a simple substitution for the simple acceleration sensor
in Roth. The substitution of one known element (simple
acceleration sensor as taught by Roth) for another (tri-axial
accelerometer as taught by Golunski) would have been obvious
to one of ordinary skill in the art at the time of the invention since
the substitution of the simple acceleration sensor as taught by
Roth would have yielded predictable results, namely,
determining the vibrational exposure to a user through the use of
data obtained from three principal axes as taught by Golunski.
Ans. 4.
Appellant’s arguments do not persuade us of any error in the
Examiner’s findings. We concur with the Examiner’s conclusion of
obviousness.
Roth discloses the following:
The vibration dosimeter according to the invention and the
method according to the invention give workers a simple and
reasonably priced option, without the use of expensive
multidimensionally functioning acceleration sensors, for
determining the daily vibration exposure from a tool used in the
workplace and for determining whether the action value and
exposure limit value set forth in EU Directive 2002/44 have been
exceeded due to the use of the tool.
Roth ¶ 5 (emphasis added); see also Roth ¶ 15 (“simple acceleration
sensor”). Thus, Roth discloses that it is an option to use a simple
acceleration sensor instead of a multidimensionally functioning acceleration
sensor.
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Although an alternative may be inferior to or less desirable than
another, that alone is insufficient to teach away from the inferior alternative
unless the disclosure criticizes, discredits, or otherwise discourages that
alternative. In re Fulton, 391 F.3d 1195, 1200–01 (Fed. Cir. 2004). Here,
Roth’s disclosure of a simple acceleration sensor as a simpler and lower-cost
option over a multidimensionally functioning acceleration sensor does not
criticize, discredit, or otherwise discourage the use of a multidimensionally
functioning acceleration sensor in the Examiner’s combination. See Roth
¶ 5.
The Examiner has articulated a reason to combine the references that
is rational on its face and supported by evidence drawn from the record. See
Final Act. 7 (“remotely collecting an employee’s cumulative vibration
exposure with respect to the use of multiple tools”); Ans. 4 (“substitution of
the simple acceleration sensor as taught by Roth would have yielded
predictable results, namely, determining the vibrational exposure to a user
through the use of data obtained from three principal axes as taught by
Golunski”); see also Golunski ¶ 129 (“Thus when an employee’s allocated
units have elapsed, employee will not be able to activate any tools within the
workplace.”). Appellant has not presented any particularized arguments,
other than the teaching away argument, which we address above, as to why
the Examiner’s reasoning is incorrect.
We, therefore, sustain the Examiner’s rejection of claim 29. We also
sustain the Examiner’s rejection of claims 30, 31, 33–38, and 42, which are
not separately argued with particularity.

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The Obviousness Rejection of Claims 39 and 40 over Roth, Golunski, and
Kemmler
The Examiner finds Roth, Golunski, and Kemmler teach all
limitations of claim 39. Final Act. 10–11. In particular, the Examiner finds
Kemmler teaches “wherein the vibration data includes information of a
dominant resonant frequency of the power tool,” as recited in claim 39.
See Final Act. 11 (citing Kemmler ¶ 7).
The Examiner reasons as follows:
It would have been obvious to one having ordinary skill in
the art at the time the invention was made to implement the data
including a dominant resonant frequency of the power tool as
taught by Kemmler, since Kemmler states in paragraph [0007],
lines 18–24 that such a modification would allow for adjusting a
resonant frequency in order to avoid the dominant resonant
frequency of the power tool.
Final Act. 11.
Appellant presents the following principal argument:
Kemmler discloses a handle. There is nothing in Kemmler
that would suggest modifying the vibration monitors of Roth and
Golunski to include any particular type of data, including data
related to a dominant resonant frequency of a power tool. If
Kemmler would teach anything, it would teach including a
particular type of handle on a power tool. If Kemmler were
combined with Roth it would result in a power tool with the
Kemmler handle. There is nothing to suggest that it would result
in the claimed invention.
Appeal Br. 14; see also Reply Br. 7–9.
In response, the Examiner explains “the handle of Kemmler is not
being combined with the prior art of Roth and Golunski, but rather the idea
of avoiding a dominant resonant frequency.” Ans. 5.
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Appellant’s arguments do not persuade us of any reversible error in
the Examiner’s findings or conclusions. We concur with the Examiner’s
conclusion of obviousness.
Kemmler teaches that those vibrations of a power hand tool that can
cause the tool operator to experience untimely fatigue specifically include
vibrations that have a dominant resonant frequency. Kemmler ¶¶ 2, 7.
Given that the combination of Roth and Golunski teach the obviousness of
employing vibration sensors for measuring vibrations in power tools, as
explained above in relation to claim 29, it would have been obvious to
produce vibration data specifically relating to the dominant resonant
frequency because this would be the most relevant information. See
Kemmler ¶¶ 2, 7.
We, therefore, sustain the Examiner’s rejection of claim 39. We also
sustain the Examiner’s rejection of claim 40, which is not separately argued
with particularity.

The Obviousness Rejection of Claim 41 over Roth, Golunski, and Kemmler
Appellant argues “Kemmler does not correct the above-noted
deficiencies of the rejection of claim 29.” Appeal Br. 14–15; see also Reply
Br. 10.
We do not see any deficiencies in the rejection of claim 29 for the
reasons explained above when addressing claim 29.
We, therefore, sustain the Examiner’s rejection of claim 41.

CONCLUSION
The Examiner’s rejections are affirmed.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
29–31, 33–
38, and 42
103(a) Roth and Golunski 29–31, 33–
38, and 42

39 and 40 103(a) Roth, Golunski,
and Kemmler
39 and 40
41 103(a) Roth, Golunski,
and Kemmler
41
Overall
Outcome
29–31 and
33–42

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED