Ex Parte Brutschin et al

Patent Trial and Appeal Board

Dec 19, 2018

13977158 (P.T.A.B. Dec. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/977, 158 06/28/2013 Wolfgang Brutschin
23364 7590 12/21/2018
BACON & THOMAS, PLLC
625 SLATERS LANE
FOURTH FLOOR
ALEXANDRIA, VA 22314-1176
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.
BRUT3016/JS-FD 1550
EXAMINER
ROBERTS, HERBERT K
ART UNIT PAPER NUMBER
2855
NOTIFICATION DATE DELIVERY MODE
12/21/2018 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):
MAIL@BACONTHOMAS.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WOLFGANG BRUTSCHIN, ANDREAS KAISER,
CARMEN SA WITZKI, and KEITA OKAZAKI
Appeal 2018-001 711
Application 13/977, 15 8
Technology Center 2800
Before JANET A. GONGOLA, CATHERINE Q. TIMM, and LILAN REN,
Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants2 appeal from the
Examiner's decision to reject claims 12, 13, and 16 under 35 U.S.C. § 103(a)
1 In explaining our Decision, we cite to the original Specification of June 28,
2013 (Spec.), Final Office Action of February 24, 2017 (Final), Appeal Brief
of August 24, 2017 (Appeal Br.), Examiner's Answer of October 4, 2017
(Ans.), and Reply Brief of December 4, 2017 (Reply Br.).
2 Appellants identify the real party in interest as Endress + Hauser W etzer
GMBH + Co. KG. Appeal Br. 2.
Appeal 2018-001711
Application 13/977, 15 8
as obvious over Uchida3 in view ofWing,4 adding Yasmnoto5 to reject
claims 17-20 and 22, and further adding Payne6 to reject claim 21. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
The claims are directed to an electrochemical fill-level measuring
device. The apparatus includes a float or displacement element (11 in Fig.
1) suspended by a wire from an outer drum (12 in Fig. 2). The float or
displacement element floats on the liquid whose level is to be measured.
Spec. 1; Fig. 1. As the fill level 16 of the liquid 14 in the container 15
shown in Figure 1 rises or falls, the servomotor 3 (Fig. 2) rotates measuring
shaft 10, which in tum rotates the measurement drums 12 and 13 to adjust
position of the displacement element 11. Spec. 8-9; Fig. 2. The weight of
the displacement element 11 causes a torque that acts on magnets on the
outer drum and changes the magnetic flux between those magnets and
magnets on the inner drum. Spec. 11. The magnetic field change is
measured by a special electromagnetic measuring transducer 21, e.g., a Hall
sensor, on the inner drum 13. Spec. 11; Fig. 2.
The Figure 2 apparatus uses a sliding contact on the measuring shaft
10 to transmit measuring transducer signal 42 from the measuring transducer
21 to the sensor electronics 8 where the signal undergoes processing. Spec.
11-12. Appellants' claimed invention uses rotary transformer 4 instead of a
sliding contact. Spec. 12; Fig. 3, Claim 12. Claim 12, with reference
3 Uchida, US 4,786,846, issued Nov. 22, 1988.
4 Wing, US 3,439,556, issued Apr. 22, 1969.
5 Yasumoto et al., US 4,410,985, issued Oct. 18, 1983.
6 Payne et al., US 4,680,689, issued July 14, 1987.
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Application 13/977, 15 8
numerals from the Figures and the limitations most at issue highlighted, is
illustrative:
12. An electromechanical, fill-level, measuring device
[Fig. 1-3(1 )], comprising:
an outer drum [Figs. 2-3(12)] with an outer ring of
magnets;
a float, or displacement element [Figs. 1-3(11)], which
by means of a wire [Figs. 1-3(19)] is connected unwindably at
least with said outer drum [(12)];
an inner drum [Figs. 2-3(13)] with an inner ring of
magnets and electromagnetic measuring elements [Figs. 2-
3 (21 )], which ascertain magnetic field displacement between
the inner and outer rings [12, 13] of magnets and output a
measured value;
a measuring shaft [Figs. 2-3(1 O)], with which said inner
drum [(13)] is mechanically fixedly connected; and
a servomotor [Figs. 2-3(3)] with a drive shaft [Figs. 2-
3(9)], wherein:
said drive shaft [(9)] is coupled with said measuring shaft
[(10)] via a transmission [Figs. 2-3(23)];
said servomotor [(3)] rotates said measuring shaft [(10)]
via said transmission [(23)] as a function of a control signal
calculates from the difference value of said measuring
elements, so that, by relative movement between said outer and
inner drums [12, 13)] produced by a change of the liquid level
to be measured, the difference value is returned to zero and
from the rotation of said measuring shaft [(10)] the current fill
level measured value is ascertained;
sensor electronics [Figs. 2-3(8)] arranged on said
measuring shaft [ ( 10)] within said inner drum, and a radial,
rotary transformer [Figs. 3-4(4)] is coupled to on [sic] said
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Appeal 2018-001711
Application 13/977, 15 8
measuring shaft [(10)] for transmitting at least the control
signal from said sensor electronics [(8)] to main electronics
[Figs. 2-3(7)] and/or supplying at least said sensor electronics
[ (8) J with energy;
the transmission of the control signal and/or
communication signals between said sensor electronics [ (8)]
and said main electronics [ (7)] is performed digitally via said
radial, rotary transformer [ ( 4)] by means of frequency shift
modulation (FSK); and
energy supply of said sensor electronics [(8)] is by means
of rectification of an alternating signal fed via said radial,
rotary transformer [ ( 4)].
Appeal Br. 15-16 (claims appendix) (emphasis added).
OPINION
Appellants confine their arguments to the rejection of claim 12 over
Uchida in view of Wing. Appeal Br. 11-13. Thus, our focus will be on that
rejection.
The Examiner's rejection is predicated on the finding that even though
Uchida's electrochemical, fill-level, measuring device uses a slip ring (Fig.
2( 16)) to transmit an electrical signal and energy, it was known in the art to
use a radial, rotary transformer for that purpose as evidenced by Wing. Final
6-8; Ans. 12-13.
Appellants contend that Wing is directed to a substantially unrelated
field of gyroscopes and that the Examiner's proposed combination is the
result of improper hindsight. Appeal Br. 13. Appellants further contend
that, even if the combination were made, the result would not be the
structure of claim 12. Appeal Br. 11-13.
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Application 13/977, 15 8
Appellants' arguments raise an issue of whether Wing is analogous
art. For the reasons provided by the Examiner in the Answer, we are not
persuaded that the Examiner reversibly erred in finding Wing to be
analogous art. As found by the Examiner, Wing is directed to the particular
problem of transmitting power and electrical signals back and forth between
a stationary structure and a rotating structure. Ans. 13.
Appellants' arguments further raise an issue of whether the
Examiner's finding of a suggestion within the prior art to substitute Uchida's
rotary transformer with Wing's slip ring is based on hindsight bias rather
than evidence within the prior art. For the reasons provided by the
Examiner, we are not persuaded the Examiner reversibly erred in finding a
suggestion within the prior art as Wing suggests that slip rings and rotary
transformers were both known for the above mentioned purpose. Ans. 12-
13.
Turning to Appellants' last contention, we are not persuaded that the
Examiner reversibly erred in finding that the combination suggests the
structure of claim 12.
According to Appellants, the prior art combination does not
reasonably disclose or suggest that "an energy supply of said sensor
electronics is by means of rectification of an alternating signal fed via said
radial, rotary transformer" as recited in claim 12. Appeal Br. 11.
In order to properly consider this argument, it is important to consider
how the argued recitation limits the apparatus of the claim. Claim 12 is an
apparatus claim. "[ A Jpparatus claims cover what a device is, not what a
device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464,
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Appeal 2018-001711
Application 13/977, 15 8
1468 (Fed. Cir. 1990). Thus, we consider the claim language in the context
of how it limits the structure of the apparatus.
Rectification of an alternating signal is not itself a structure: it is
process of converting alternating (AC) current to direct current (DC). Claim
12 does not recite any structure that clearly performs rectification of an
energy supply. The Specification discloses modulation and demodulation
circuits, shown in Figure 5, that transmit data and energy across rotary
transformer 4. Spec. 15. According to the Specification:
The energy supply of the sensor electronics 8 occurs by means
of rectification of an alternating signal fed-in by a push-pull
amplifier 33 via the radial, rotary transformer 4. The energy
transferred via the rotary transformer 4 is converted by voltage
supply unit (29) in the sensor electronics (8), which has at least
one rectification element (36) and at least one linear voltage
regulator (37), into the corresponding supply voltage.
Spec. 15-16.
There is a rectification element (36)7 within a voltage supply unit (29)
in the sensor electronics (8) that performs rectification, Spec. 15, but neither
a voltage supply unit nor a rectification element is claimed. We cannot say
that the limitation "energy supply of said sensor is by means of rectification
of an alternating signal fed via said radial, rotary transformer" clearly
articulates such structure. Thus, Appellants' claim language directed to how
energy is supplied, i.e., "by means of rectification of an alternating signal
fed via said radial, rotary transformer," does not structurally distinguish the
claimed device from that suggested by the prior art.
7 Reference numeral 36 is not present in Figure 5, but from the context of the
discussion of Figure 5, it appears that rectification element (36) is included
in voltage supply unit (29).
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Application 13/977, 15 8
CONCLUSION
We sustain the rejections maintained by the Examiner.
DECISION
The Examiner's decision is affirmed.
TIME PERIOD FOR RESPONSE
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
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