Ex parte CLOUTIER et al.

Board of Patent Appeals and Interferences

Mar 13, 1998

07732493 (B.P.A.I. Mar. 13, 1998)

Application for patent filed July 18, 1991. 1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 31
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte MARIUS CLOUTIER, SYLVAIN SAVARD,
JEAN M. BOURGEOIS, and FRANCOIS LALONDE
_____________
Appeal No. 95-1994
Application 07/732,4931
______________
ON BRIEF
_______________
Before THOMAS, FLEMING and CARMICHAEL, Administrative Patent
Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 95-1994
Application 07/732,493
2
Appellants have appealed to the Board from the examiner’s
final rejection of claims 1 to 12, which constitute all the
claims in the application.
Representative claim 1 is reproduced below:
1. Method for dynamic and non-contact measurement of a
displacement of a grounded conductive substance with respect
to a capacitive sensor formed of two parallel conductive
plates, superimposed, electrically insulated one from the
other, and fed by a high frequency signal at a predetermined
voltage originating from a signal generator, said capacitive
sensor being connected to a device for detecting a current
value, said method comprising the steps of:
(a) positioning said capacitive sensor close to and at a
perpendicular fixed distance from a plane in which said
conductive substance extends, said plates being substantially
parallel to said plane and displacing said conductive
substance in said plane to modify an overlapping surface
formed by portions of said conductive substance and said
capacitive sensor which are superimposed;
(b) detecting a current induced by said high frequency
signal in said capacitive sensor, said current having a value
varying in a directly proportional relationship with said
overlapping surface; and
(c) determining the value of the displacement of said
conductive substance with respect to said capacitive sensor
according to the value of said current.
The following references are relied on by the examiner:
Lalonde et al. (Lalonde) 4,675,670 Jun.
23, 1987
Andermo 4,959,615 Sep. 25,
1990
Appeal No. 95-1994
Application 07/732,493
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Claims 1 to 12 stand rejected under 35 U.S.C. § 103. As
evidence of obviousness, the examiner relies upon Lalonde in
view of Andermo.
Rather than repeat the positions of the appellants and
the examiner, reference is made to the briefs and the answers
for the respective details thereof.
OPINION
For all the reasons expressed by the examiner in the
answers, and for the additional reasons presented here, we
will sustain the prior art rejection of claims 1 to 5 and 7
through 10. Inasmuch as we are in agreement with the well-
reasoned positions and legal-factual analysis of the teachings
of the references done by the examiner, for the sake of
brevity we will not repeat that which has been clearly set
forth in the answer. To round out the examiner’s detailed
analysis of the claimed invention and appellants’ arguments,
we add the following, including our reasons for reversing the
rejection of dependent claims 6, 11 and 12.
As noted earlier, the examiner’s rejection is based in
part upon Lalonde. This reference is discussed in detail as a
Appeal No. 95-1994
Application 07/732,493
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part of the prior art admitted by appellants and discussed at
specification page 1, line 25 through page 3, line 20. Page 2
of the specification discusses in detail the formula C = KAr
divided by D. Thus, the capacitance “C” of a sensor is
determined by the product of the permittivity “K” and the
overlapping surface area “Ar” of a conductive area with a
sensor, divided by the distance “D” between the respective
conductive area and the sensor. The sensor during its use
itself forms a separate capacitor with the conductive surface
which is grounded. The above equation is labeled equation
(1).
The text at page 3 of the specification as filed at lines
8 through 20 states the following:
Equation (1) shows that for
constant dielectric value K and
overlapping surface Ar, the
capacitance C, ..., varies according
to the inverse of the distance D
separating the sensor from the
conductive part, making possible the
mentioned method for dynamic and non-
contact measurement of the distance
between the nearest capacitive sensor
plate from a conductive part and the
conductive part.
Appeal No. 95-1994
Application 07/732,493
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As it can be easily seen,
the apparatus can be similarly
used to carry out the measurement
of another variable parameter in
equation (1), such as the
permittivity K or the overlapping
surface Ar for instance, as long
as the other parameters are fixed
(emphasis added).
The bottom of page 1 of the specification as filed
indicates Lalonde functions in a manner to determine the
distance separating the surfaces of two capacitive plates.
The first paragraph quoted above explains how this is done
according to the equation. It is done in such a manner that
certain parameters are held constant according to the equation
such as to determine the unknown variable “D”. The above
quoted second paragraph indicates that other parameters may be
determined from the equation such as permittivity K or the
overlapping surface area Ar as long as the other respective
parameters of the equation remain fixed or constant. Page 2
of the specification as filed indicates clearly that the
earlier reproduced equation in this opinion is a known
equation in the capacitive sensing art.
Appeal No. 95-1994
Application 07/732,493
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In our view, the examiner correctly relies upon this
equation and the statement of the ability of the artisan to
determine other parameters from the second above quoted
paragraph to indicate to the artisan the desirability of
modifying the Lalonde function not to sense distance D but to
sense displacement or permittivity. Andermo, on the other
hand, is properly relied upon in our view to indicate that it
was known in the art to determine other parameters in a
capacitance-type measuring transducer when the distance has
been fixed. Andermo includes an extensive discussion of the
desirability of fixing the distance to increase the accuracy
of the measurement. In fact, displacement sensing is
suggested in the discussion at col. 1, lines 24 through 31 of
Andermo. It is clear to us that appellants’ disclosed and
claimed invention operates under the principles of the above
noted equation and the determination of other parameters is
based upon basic algebraic manipulations as correctly argued
by the examiner.
Moreover, we note that in Para-Ordnance Mfg., Inc. v. SGS
Importers Int’l, Inc., 73 F.3d 1085, 1090, 37 USPQ2d 1237,
1240-41 (Fed. Cir. 1995), cert. denied, 117 S. Ct. 80 (1966),
Appeal No. 95-1994
Application 07/732,493
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the court emphasized that the artisan’s own common sense
analysis of the specific prior art relied upon may be properly
coupled with his or her own experience and general knowledge
of the prior art. A reference must be considered not only for
what it expressly teaches, but also for what it fairly
suggests. In re Burckel, 592 F.2d 1175, 1179, 201 USPQ 67, 70
(CCPA 1979) and In re Lamberti, 545 F.2d 747, 750, 192 USPQ
278, 280 (CCPA 1976). Not only the specific teachings of a
reference but also reasonable inferences which the artisan
would have logically drawn therefrom may be properly evaluated
in formulating a rejection. In re Preda, 401 F.2d 825, 826,
159 USPQ 342, 344 (CCPA 1968) and In re Shepard, 19 F.2d 194,
197, 138 USPQ 148, 150 (CCPA 1963). Skill in the art is
presumed. In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774
(Fed. Cir. 1985). The conclusion of obviousness may be made
from common knowledge and common sense of a person of ordinary
skill in the art without any specific hint or suggestion in a
particular reference. In re Bozek, 416 F.2d 1385, 1390, 163
USPQ 545, 549 (CCPA 1969).
Appellants’ apparent focus upon alleged structural
incompatibility of Andermo and Lalonde forces them to lose
Appeal No. 95-1994
Application 07/732,493
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sight of the teaching value of Andermo. With respect to the
above noted equation, Andermo clearly teaches that the D or
distance should remain fixed to improve accuracy of the
readings in capacitive-type sensors. The gap between the
sensing scales 20 and 30 should be uniform over the entire
area of the overlap. Column 1, lines 59 to 65. Note also
col. 4, lines 16 through 20 as well as col. 5, lines 48
through col. 6, line 1. The focus of Andermo’s teachings is
such as to minimize the tilt represented by Fig. 2F.
Andermo’s discussion also indicates from Fig. 2A and Fig. 2E
that lateral displacement can adversely affect the accuracy of
the readings. Rather than teaching away as argued by
appellant, Andermo’s Fig. 2E actually teaches the artisan that
which is clearly evident in the above noted formula that the
overlapping surface area Ar in the equation actually does in
fact measurably affect measurably the reading values obtained
from a capacitive sensor. Thus, this would have clearly
indicated to the artisan that displacement of the respective
scales 20 and 30 in a lateral sense may itself be a measurable
item as long as the other parameters of the equation are held
Appeal No. 95-1994
Application 07/732,493
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constant as noted earlier at page 3 of the prior art noted in
appellants’ specification as filed.
We therefore conclude that the examiner has properly
weighed in substance the various teachings of the prior art
applied in light of Para-Ordnance Mfg., Inc. v. SGS Importers
Int’l, Inc., 73 F.3d 1085, 1090, 37 USPQ2d 1237, 1240-41 (Fed.
Cir. 1995), cert. denied, 117 S. Ct. 80 (1966), which relied
upon In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131
(Fed. Cir. 1994) and In re Young, 927 F.2d 588, 591, 18 USPQ2d
1089, 1091 (Fed. Cir. 1991).
Appellants’ reliance upon In re Rijckaert, 9 F.3d 1531,
28 USPQ2d 1955 (Fed. Cir. 1993), is inapposite. The prior art
relied upon by the examiner here does in fact discuss and
relate the claimed relationship of the variables of a known
prior art equation in contrast to the fact situation in
Rijckaert. We are also concerned here with method claims
relating to the operation or functioning of a prior art device
exemplified by the prior art to Lalonde relied upon by the
examiner, which prior art also functions in accordance with
the above noted admitted prior art equation. The structural
Appeal No. 95-1994
Application 07/732,493
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similarity of Lalonde to the claimed invention is noted by
appellants at least at page 8 of principal Brief on appeal.
We have discussed earlier the teaching value of Andermo
as indicating to the artisan that displacement of sensing
plates may be sensed in accordance with the sensitivity of
Andermo’s device to lateral displacements. On the other hand,
in accordance with the above noted equation, permittivity, K,
is defined at page 2 of appellants specification noting this
equation as a prior art equation as being relative
permittivity of the dielectric substance between the nearest
sensor plate from the conductive part and another conductive
part. Hence the subject matter of independent claim 7
requires the permittivity of the dielectric substance to be
measured between the structural elements recited in this claim
in accordance with the above equation.
Furthermore, in light of this understanding, we do not
agree with appellant’s assertion at page 14 of the brief that
the physical meaning of the variable Ar is not the same in
both the equation noted at page 2 of appellants’ specification
relating to the prior art and of that which is set forth as it
applies to the disclosed claimed invention herein. Rather
Appeal No. 95-1994
Application 07/732,493
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than referring to the surface of the sensor itself in Lalonde
as argued at the bottom of page 14 of the principal Brief on
appeal, the bottom of page 2
of appellants’ specification as filed indicates that the term
Ar is the overlapping surface of the conductive part on the
sensor plate or, in other words, the overlapping surface of
the conductive part with respect to the sensor plate.
In addition to the examiner’s arguments with respect to
claims 4 and 10 on appeal, we note that the teachings at the
bottom of col. 4 of Lalonde indicate that the comb-shaped
surfaces of a groove 15 in the embodiment shown in Fig. 2
would have indicated or suggested to the artisan plural
sensors. In any event, such is clearly taught in Andermo.
Finally, as to the specifics of dependent claims 6, 11
and 12, we reverse the rejection as it applies to these
claims. Although we recognize that the collective teachings
of the references relied upon may or could have been modified
to measure the fluid contained in a tank such as to measure
displacement in claim 6 and permittivity in claim 11 as well
as the more specific recitation in claim 12 of a conduit
having a dielectric substance therein whose level of
Appeal No. 95-1994
Application 07/732,493
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contamination may be varied and therefore measured, such would
not have been obvious to the artisan based upon the prior art
relied upon. There is simply no evidence of record that the
prior art would have utilized capacitive sensors to measure
fluid levels or substances in the specific manner
recited in these claims. Therefore, the rejection of claims
6, 11 and 12 must be reversed.
Inasmuch as appellants have not presented any arguments
with respect to dependent claims 2, 3, 5, 8 and 9, they fall
with our affirmance of the rejection of the respective
independent parent claims 1 and 7. We therefore affirm the
rejection of claims 1 to 5 and 7 to 10 under 35 U.S.C. § 103.
However, we reverse the rejection of dependent claims 6, 11
and 12 under 35 U.S.C. § 103. Therefore, the decision of the
examiner is affirmed-in-part.
Appeal No. 95-1994
Application 07/732,493
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
)
JAMES D. THOMAS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
MICHAEL R. FLEMING )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JAMES T. CARMICHAEL )
Administrative Patent Judge )
Appeal No. 95-1994
Application 07/732,493
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