Ex Parte Cripe

Board of Patent Appeals and Interferences

Sep 14, 2010

11368570 (B.P.A.I. Sep. 14, 2010)

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.
11/368,570 03/06/2006 David W. Cripe 2005P23246US;
60428-639
7873
75227 7590 09/14/2010
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
EXAMINER
DUNLAP, JONATHAN M
ART UNIT PAPER NUMBER
2855
MAIL DATE DELIVERY MODE
09/14/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID W. CRIPE
____________

Appeal 2009-009184
Application 11/368,570
Technology Center 2800
____________

Before JAMES D. THOMAS, THU A. DANG,
and STEPHEN C. SIU, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-009184
Application 11/368,570

2
STATEMENT OF THE CASE

This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 3, 5, 7, 9 through 14, and 16. Claims 2, 4, 6, 8, 15, and
17 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).

We affirm.

INVENTION
The disclosed invention relates to a product by process as well as a
process of fabricating a non-contact torque sensor assembly including a
torque transducer as illustrated in disclosed Figures 1 and 2.

REPRESENTATIVE CLAIM

1. A torque sensor assembly comprising:

a torque transducer fabricated from an alloy containing between 17
and 35% chromium, 5-20% cobalt and a remainder iron that is annealed
followed by cold working to a desired final shape and again heat treated to a
temperature above a Curie temperature and cooled at a desired rate
concurrent with the passing of a current through the torque transducer to
induce a desired magnetic field orientation.

PRIOR ART AND EXAMINER’S REJECTIONS
The Examiner relies on the following references as evidence of
unpatentability:
Jin US 4,251,293 Feb. 17, 1981
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Endo US 4,496,402 Jan. 29, 1985
May US 6,581,480 B1 Jun. 24, 2003

Crovac-Magnetoflex-Vacozet-Semivac-Sensorvac, Ductile Permanent
Magnet Alloys and Magnetically Semi-Hard Materials. Vacuumschmelze
GMBH, p. 1-12 (1999).

Li, Lin, Controlling Annealing and Magnetic Treatment Parameters to
Achieve High Permeabilities in 55 Ni-Fe Toroid Cores, IEEE Transactions
on Magnetics, vol. 37, No. 4, p. 2315-2317 (2001).

Ustinovshikov et al., Morphology and heat treatment of a Fe60Cr30Co10
magnetic alloy, Journal of Alloys and Compounds, vol. 387, p. 232-238
(2005).

All claims on appeal, claims 1, 3, 5, 7, 9 through 14, and 16 stand
rejected under 35 U.S.C. § 103.
In a first stated rejection, the Examiner relies upon Jin in view of Li
and May as to claims 1, 3, 5, 7, and 11.
In a second stated rejection, the Examiner relies upon Jin in view of
Li, May and Endo as to claim 9.
In a third stated rejection, the Examiner relies upon Jin in view of Li,
May, Endo and Ustinovshikov as to claim 10.
In a fourth stated rejection, the Examiner relies upon Jin in view of
Vacuumschmelze, Li and May as to claims 1, 3, 5, 7, and 11.
In a fifth stated rejection, the Examiner relies upon Jin in view of
Vacuumschmelze, Li, May and Endo as to claim 9.
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In a sixth stated rejection, the Examiner relies upon Jin in view of
Vacuumschmelze, Li, May, Endo and Ustinovshikov as claim 10.
In a seventh stated rejection, the Examiner relies upon Jin in view of
Li, Ustinovshikov and May as to claims 12-14.
In a eighth stated rejection, the Examiner relies upon Jin in view of
Vacuumschmelze, Li, May, Endo and Ustinovshikov as to claim 16.
In a ninth stated rejection, the Examiner relies upon Jin in view of
Vacuumschmelze, Li, Ustinovshikov and May as to claims 12-14.
Lastly, in a tenth stated rejection, the Examiner relies upon Jin in view
of Vacuumschmelze, Li, Ustinovshikov, May and Endo as claim 16.

CLAIM GROUPINGS
Based upon Appellant’s arguments in the principal Brief on appeal,
Appellant argues essentially the features of representative independent claim
1 on appeal as representative of the subject matter of all claims on appeal,
including that subject matter set forth in independent claim 12.

ANALYSIS
We refer to, rely on, and adopt the Examiner’s findings and
conclusions set forth in the Answer. Our discussions here will be limited to
the following points of emphasis.
As a preliminary matter, the product by process features of
representative independent claim 1 on appeal have not been formally
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addressed by the Examiner or Appellant. The Examiner’s intended use
rationale, to include the view that if a prior art structure is capable of
performing an intended use, then it meets the claim as set forth in the
statement of rejection of representative independent claim 1 on appeal at
page 4 of the Answer is not contested by Appellant. This observation of the
Examiner appears to be directed to the torque transducer limitations of this
claim. On the other hand, it is worth pointing out that the teachings at
column 1, beginning at line 9, and at column 7 beginning at line 56, indicate
that Jin’s patent directly teaches the applicability of his alloy to transducers
generally.
For the ten separately stated rejections, all of Appellant’s arguments
in the principal Brief focus upon the alleged improprieties of the Examiner’s
combination of Jin and Li. The allegation is made that the references teach
away from the proposed combination and would destroy the intended
operation and stated purpose of Jin. In this regard, Appellant emphasizes in
the Brief and Reply Brief that the controlled cooling of the alloy in Jin is in
the absence of a magnetic field as indicated in the summary of the invention
of Jin at column 2, lines 35 through 45. This view presents an incomplete
understanding of the Examiner’s statement of the rejection, such as at page 4
of the Answer where the Examiner recognizes that Jin fails to disclose that a
current is applied during cooling from Curie temperature of Jin’s alloy. The
Examiner applies Li to make up for this deficiency with the addition of May
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in the first stated rejection to ensure the induction of a desired magnetic field
orientation.
The responsive arguments of the Examiner to those positions set forth
in the principal Brief on appeal are set forth at pages 20 through 22 of the
Answer. Here, the Examiner initially makes reference to the teaching at
column 3, lines 23 through 26 of Jin which indicates that the alloy is cooled
in a controlled fashion in the absence of a magnetic field. Then, the
Examiner’s remarks at pages 21 and 22 take the form of a tutorial in nature
which further rationalizes the combination of Jin and Li. The Examiner’s
reasoning continues:
The underlying principle of the invention by Jin is to produce
anisotropy in magnetic alloys through a process involving annealing,
cold working, a further heat treatment at a temperature above the
Curie temperature and a final controlled cooling. However, the final
heat treatment of the method by Jin, which occurs at 600°C (Jin,
Column 7, lines 67-68; Column 8, lines 1-56 is well above the Curie
temperature of Fe-(27-33)Cr-(12-15)Co, which is in the range of -520-
600°C. Therefore, the alloy of Jin will proceed through spinodal
decomposition rendering an alloy without a specified magnetic
orientation.

Therefore, as shown in the reference to Li (Page 2316,
paragraph 2), a magnetic field should be applied during the cooling
phase of Jin so that the magnetic orientation of the alloy can be
controlled.

Furthermore, the reference to May (Column 11, lines 7-67;
Column 12, lines 1-46), specifically teaches the use of a current to
induce a specifically desired magnetic orientation.
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(Ans. Pp. 21-22).

This reasoning of the Examiner is persuasive of unpatentability.
Essentially, the Examiner has indicated that the Examiner relies upon the
teachings of Jin to provide an intermediate product which is further
processed by the teachings in Li and May. As reasoned by the Examiner, if
a person of ordinary skill in the art desired to have a magnetic orientation of
Jin’s final alloy product, then it would have been obvious for a person of
ordinary skill in the art to have followed the teachings in Li and May. As
such, once heat treatment has been obtained above the Curie temperature in
Jin, which essentially removes all magnetic products of the alloy, to achieve
a desired magnetic property of the alloy, it must be cooled at the same time a
current is passed through the alloy product to the extent claimed and taught
by the additional modifying teachings of Li and May.
Therefore, it is not an accurate statement of the Examiner’s rejection
to have characterized Jin alone or Jin and Li or Jin and Li and May as
teaching away from the proposed combination. As recognized at page 2 of
the Reply Brief, Jin is essentially silent as to the desirability of achieving
any magnetic properties of Jin’s final product. Therefore, it may be fairly
stated that the basic combination of Jin, Li and May does not teach away
from the process-oriented subject matter recited at the end of representative
independent claim 1 on appeal since any one reference or all of them
does/do not discourage the further enhancement of the alloy properties of Jin
by the subsequent process steps taught by Li and May. No evidence is
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provided before us that Jin’s properties or the combination would destroy
Jin’s operation or the stated purposes of Jin. Rather, the modifying
teachings to Jin found in Li and May would have extended the properties of
Jin’s alloy product by means of the additional processing steps the Examiner
has isolated in Li and May.
Lastly, we observe that Appellant’s positions in the Reply Brief
generally do not respond to or even recognize the Examiner’s responsive
arguments we have copied into this opinion and found compelling of
obviousness that have been set forth at pages 20 through 22 of the Answer.

CONCLUSION AND DECISION
Appellant has not shown that the Examiner erred in finding that the
combination of Jin, Li and May within 35 U.S.C. § 103 would have rendered
obvious to a person of ordinary skill in the art the subject matter of
representative independent claim 1 on appeal. Therefore, the ten separately
stated rejections under 35 U.S.C. § 103 encompassing all claims on appeal
are each affirmed.

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

AFFIRMED

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CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009