Ex Parte Farber

Patent Trial and Appeal Board

Mar 26, 2014

12018145 (P.T.A.B. Mar. 26, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/018,145 01/22/2008 George Farber GSF01 7631
76696 7590 03/26/2014
George Farber
37324 22md Ave., S.
Federal Way, WA 98003
EXAMINER
MUSLEH, MOHAMAD A
ART UNIT PAPER NUMBER
2837
MAIL DATE DELIVERY MODE
03/26/2014 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 GEORGE FARBER
______________

Appeal 2011-012482
Application 12/018,145
Technology Center 2800
_______________

Before CHARLES F. WARREN, PETER F. KRATZ and
JEFFREY T. SMITH, Administrative Patent Judges.

WARREN, Administrative Patent Judge.

DECISION ON APPEAL
Applicant appeals to the Board under 35 U.S.C. § 134(a) from the
decision of the Primary Examiner finally rejecting claims 1-25: under
35 U.S.C. § 102(b), claims 1-3, 5-10, 17-19, 21 and 25 over Elliott (US
2006/0214756 A1); and under 35 U.S.C. § 103(a), claims 11 and 20 over
Elliott, claims 4 and 12-14 over Elliott and Hones (US 5,883,454), claims
15 and 16 over Elliott, Hones and Boland (US 5,559,384), and claims 22-24
over Elliott and Boland. App. Br. 5, 10; Ans. 3, 10, 12, 13. We have
jurisdiction. 35 U.S.C. § 6(b).
We reverse the decision of the Primary Examiner.
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Application 12/018,145
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Claims 1, 17, 22 and 25, with reference to Specification Figure 1A,
illustrates Appellant’s invention of a magnetic levitation system (claims 1,
17) and a method for magnetic levitation (claims 22, 25), and are
representative of the claims on appeal:
1. A magnetic levitation system (100 A) comprising:
a base element (110) comprising at least a base magnet portion
producing at least a first magnetic field portion; and
a float element (120) comprising at least a float magnet portion,
the float element (120) during magnetic levitation being located in an
orientation proximate to the base element (110) such that the float magnet
portion (120) and the base magnet portion (110) are in a relation which
produces sufficient magnetic force so as to counteract at least a portion of
the gravitational force upon the float element (120) such that magnetic
levitation of the float element (120) is achieved,
the average orientation of the float magnet portion of the float element
(120) during magnetic levitation being tilted (A2),
wherein during the magnetic levitation the float element (120) is
suspended relative to the base element (110) with no support other than
magnetic fields.
17. A magnetic levitation system (100 A) comprising:
a first magnet (110) having a first axis and a first surface, the first
magnet (110) being magnetized normal to at least a portion of the first
surface and parallel to the first axis such that the first surface has a magnetic
field with a first polar orientation;
a second magnet (120) having a second axis and a second surface, the
second magnet (120) being magnetized normal to at least a portion of the
second surface and parallel to the second axis such that the second surface
has a magnetic field with the same polar orientation as the magnetic field of
the first surface of the first magnet (110); and
the second magnet (120) magnetically levitating in a tilted orientation
(A2) over the first magnet (110) when the second magnet (120) is rotated
about the second axis and disposed vertically above the first magnet (110)
with the first (110) and second (120) surface in confronting relation,
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Application 12/018,145
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wherein during the magnetic levitation the second magnet (120) is
suspended over the first magnet (110) with no support other than magnetic
fields.
22. A method for magnetic levitation comprising:
placing a magnetic levitation affecting element (130) proximate to a
base magnetic field portion (110) so that it well affect the levitation of a
float magnet (120) with a float magnetic field portion but such that it is not
centered above or below the base magnetic field portion (110) or the float
magnetic field portion (120) during magnetic levitation; and
the base magnetic field portion (110) being tilted (A1) such that it
compensates for the effect of the magnetic levitation affecting element (130)
on the float magnet (120) so that magnetic levitation of the float magnet
(120) may be achieved,
the orientation of the float magnetic field portion (120) during
magnetic levitation being tilted (A2).
25. A method for achieving magnetic levitation of a magnetic float
element (120), the method comprising:
placing a magnetic base element (110) at a location for being utilized
to achieve magnetic levitation of the magnetic float element (120); and
utilizing a magnetic levitation affecting element (130) located to the
side of the magnetic base element (110) to adjust the tilt at which the
magnetic float element (120) is oriented (A2) during magnetic levitation,
wherein during the magnetic levitation the magnetic float element
(120) is suspended relative to the magnetic base element (110) with no
support other than magnetic fields.
App. Br. 22, 25, 26, 27 (Claims App’x) (numerals supplied). Spec. 6:10 to
7:29, 13:6-26, Figs. 1A, 4, 5.
OPINION
We agree with Appellant that the Examiner erred in finding that as a
matter of fact Elliott’s Figures 8-13, with respect to claim 1, and Figures
8-11, with respect to claims 17 and 25, would have prima facie described to
one skilled in the art embodiments of a magnetic levitation system and a
method for achieving magnetic levitation of a magnet float element which
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Application 12/018,145
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fall within claims 1, 17 and 25. Ans. 3-4, 6-7, 8-9, 15-17 (citing Elliott
abstract, ¶¶ 0001, 0040 (describing Fig. 9), Figs. 8-13); App. Br. 11-19;
Reply Br. 2-7. See, e.g., Am. Calcar, Inc. v. Am. Honda Motor Co., Inc.,
651 F.3d 1318, 1341 (Fed. Cir. 2011); Therasense, Inc. v. Becton, Dickinson
and Co., 593 F.3d 1325, 1332 (Fed. Cir. 2010); Sanofi-Synthelabo v. Apotex
Inc., 550 F.3d 1075, 1083 (Fed, Cir. 2008); In re Schreiber, 128 F.3d 1473,
1477 (Fed. Cir. 1997); In re Bond, 910 F.2d 831, 832-33 (Fed. Cir. 1990).
The issues raised entail the interpretation of the language of claims 1,
17 and 25. We give the claim terms the broadest reasonable interpretation
consistent with the Specification as it would be interpreted by one of
ordinary skill in the art. See, e.g., In re Suitco Surface, Inc., 603 F.3d 1255,
1259-60 (Fed. Cir. 2010); In re Translogic Tech. Inc., 504 F.3d 1249, 1256
(Fed. Cir. 2007); In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364
(Fed. Cir. 2004); In re Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997); In
re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989).
We determine that, in light of the disclosure in the Specification,
claim 1 specifies a magnetic levitation system comprising at least, among
other things, a relation between the float magnetic portion of a float element
and the base magnetic portion of a base element which is capable of
producing sufficient magnetic force such that the float element is
magnetically levitated with an average “tilted” orientation during magnetic
levitation without “support other than the magnetic fields” of the float
magnetic portion of the float element and the base magnetic portion of the
base element. In other words, claim 1 specifies that in the magnetic
levitation system, the otherwise unsupported float element is magnetically
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levitated with an average tilted orientation by the magnetic forces of the
float element and the base element.
In the same manner, we determine claim 17 specifies a magnetic
levitation system wherein the otherwise unsupported second magnet is
vertically suspended in a tilted orientation over the first magnet when the
second magnet is rotated around its axis during magnetic levitation by the
magnetic forces of the second surface of the second element and the first
surface of the first magnet. We further determine that claim 25 specifies a
method for achieving magnetic levitation of an otherwise unsupported
magnetic float element suspended in tilted orientation by the magnetic fields
of the float element and the magnetic base element, by adjusting the tilted
orientation of the magnetic float element with a magnetic levitation affecting
element located to the side of the magnetic base element during magnetic
levitation. Spec., e.g., 6:10 to 7:29, Fig. 1A. See Ans. 16-17; Reply Br. 5-7.
The Examiner relies on the embodiment illustrated in Elliott’s Figure
9 as describing an embodiment in which “the average orientation of the float
magnet portion [62] of the float element [62] during magnetic levitation . . .
[is] tilted,” and that in this embodiment, “the float element is suspended
relative the base element with no support other than magnetic fields.” Ans.
4 (citing Elliott abstract); see also Ans. 7 (citing Elliott abstract, ¶ 0040, Fig.
9), 9 (citing Elliott abstract, Fig. 9). According to the Examiner, paragraph
0040 of Elliott describes Figure 9 as showing “the magnets and member 90
are arranged so that the direction of rotation of the board in response to the
repulsive force of magnets 62 and 84 at the distal end of the board is
opposite to the direction of rotation of the board in response to the attractive
forces of magnets 80, 82 at the proximal end of the board.” Ans. 4, 7, 9
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(original emphasis deleted) (citing Elliott abstract, ¶ 0001). See also Ans.
15-17.
We find that Elliott describes to one skilled in the art that “Fig. 8 [is]
a diagram showing from the side a board with one end levitating and the
other end connected under a cantilevered member,” and “Fig. 9 [is] a
diagram showing from the side an alternative design to that shown in Fig. 8
and that provides enhanced oscillation of a levitated object.” Elliott ¶¶ 0017,
0018, 0039 (“Fig. 8 illustrates a method to attach a board 60 without a
supporting structure below board 60.”). Elliott describes in paragraph 0040
that “FIG. 9 represents a method to increase oscillations at the levitated,
distal end of board 60, which is attached to a supporting structure above
board 60.” In this respect, Elliott describes that while “[m]agnet 62 on the
surface of board 60 or inside board 60 is orientated to create a repulsive
force against magnet 84 mounted on or under base 20,” magnet 82 at the
distal end of board 60 creates an attractive force with magnet 80 on the
surface of cantilevered member 86. Elliott ¶ 0040.
We find Elliott further describes that “[m]ember 90 extends down
from cantilevered member 86 to create a contact point or fulcrum between
the board 60 and the supporting structure.” Elliott ¶ 0040. Elliot describes
that “[a]s shown in FIG. 9, the magnets and member 90 are arranged so that
the direction of rotation of the board in response to the repulsive force of
magnets 62 and 84 at the distal end of the board is opposite to the direction
of rotation of the board in response to the attractive force of magnets 80, 82
at the proximal end of the board.” Elliott ¶ 0040. See also Elliott ¶ 0007
(“One preferred embodiment is a method to secure an object in a manner to
give the appearance of levitation of either one end of the object or the object
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as a whole. One end of the object is permanently or temporarily fixed by
mechanical or magnetic means while the other end is free to levitate or
‘float’ in midair. By fixing one end, the overall stability of the object is
significantly increased . . . .”).
On this record, we find as a matter of fact that, as Appellant points out
and contrary to the Examiner’s position, Elliott’s Figure 9 and description
thereof in paragraph 0040 specifically describes to one skilled in the art that
board 60 is not only suspended by the repulsive force created by magnets 62,
84 but is further supported by the attractive force created by magnets 80, 82,
and that the tilt in board 60 is caused by member 90. Thus, we find that the
Elliott’s Figure 9 embodiment does not fall within any of claims 1, 17 and
25 as we interpreted these claims above.
Accordingly, in the absence of a prima facie case of anticipation, we
reverse the ground of rejection of claims 1-3, 5-10, 17-19, 21 and 25 over
Elliott under 35 U.S.C. § 102(b). The Examiner further relies on Elliott’s
description of the Figure 9 embodiment in grounds of rejection of claims 4,
11-16 and 20, dependent on claims 1 and 17, under 35 U.S.C. § 103(a) and
thus, we reverse these grounds of rejection as well. Ans. 10-13.
Turning now to claim 22, we further agree with Appellant that the
Examiner erred in finding that the combination of Elliott and Boland would
have led one of ordinary skill in the art to modify the method for magnet
levitation disclosed by Elliott in Figures 8-11 by tilting the base magnetic
field portion to compensate for the effect of a magnetic levitation affecting
element on the magnetic levitation of the float element which is tilted during
magnetic levitation as suggested by Boland in Figure 5, thus arriving at a
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method for magnetic levitation falling within claim 22. Ans. 13-14, 17-18;
App. Br. 19-21; Reply Br. 7-10.
We determine that claim 22, considered in light of the Specification,
specifies a method for achieving magnetic levitation wherein a magnetic
float element, with a float magnetic field portion, is magnetically levitated at
a tilted orientation by tilting a base magnetic field portion to compensate for
the effect on the levitation of the float magnet by a magnetic levitation
affecting element placed proximate to the base magnetic field portion but not
centered above or below the base magnetic field portion or the float
magnetic field portion during magnetic levitation. See, e.g., Suitco Surface,
603 F.3d at 1259-60; Translogic Tech. 504 F.3d at 1256; Am. Acad. of Sci.
Tech. Ctr., 367 F.3d at 1364; Morris, 127 F.3d at 1054-55; Zletz, 893 F.2d at
321-22.
The Examiner finds that Elliott would have described methods of
magnetic levitation in Figures 8-11 which includes “placing a magnetic
levitation affecting element [80] proximate to a base magnetic field portion
[84] so that it will affect the levitation of a float magnet [82] with a float
magnetic field portion . . . but such that it is not centered above or below the
base magnetic field portion [magnet 84 . . . ] or the float magnetic portion
[magnet 62 . . . ] during levitation.” Ans. 13. The Examiner further finds
that Boland would have described in Figure 5, tilted magnetic base element
10 and tilted magnet M, wherein “a coil [is] disposed at an angle to the plane
of the superconductor, in order to influence the rotational orientation of the
magnet levitated above the superconductor.” Ans. 13-14. On this basis, the
Examiner concludes that one of ordinary skill in the art would have modified
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Elliott’s method for magnetic levitation “to include [a] tilted base magnet
[84] as taught by Boland.” Ans. 13-14, 17-18.
We find again here, as we did above, that in the embodiment
illustrated in Elliott’s Figure 9, which is here representative of Elliott’s
Figures 8-11, magnet 62, on one end of board 60, creates a repulsive force
with magnet 84, mounted on base 20 directly under magnet 62, and that on
the other end of board 60, magnet 82, on board 60, creates an attractive force
with magnet 80, on the surface of cantilevered member 86, to further support
board 60. Elliott ¶ 0040. We find no disclosure in Elliott which would have
taught or suggested to one of ordinary skill in the art that magnet 80, which
is separated from magnet 84 by magnet 82, would function as a magnetic
levitation affecting element with respect to the magnetic levitation of magnet
62 by magnetic 84.
We find Boland would have disclosed to one of ordinary skill in the
art in Figure 5, a method of using “a coil [10] at an angle to the plane of the
superconductor [S], in order to influence the rotational orientation of the
magnetic [N], levitated above the superconductor [S],” and that additional
coils at other angles can provide magnetic fields at different orientations.
Boland col.4 ll.18-23, col.6 ll.37-59. “[C]oil 10 is tilted with respect to the
plane of superconductor S, and produces a magnetic field indicated by the
arrows H which is disposed at an angle to the plane of superconductor S
. . . [that] affect[s] the coupling between the magnet and the superconductor
such that the magnet M is rotationally disposed with its magnetic moment at
an angle which is approximately the angle of the magnetic field H with
respect to the plane of the superconductor S.” Boland col.6 ll.37-45.
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On this record, we agree with Appellant that the combination of
Elliott and Boland would not have led one of ordinary skill in the art to
modify Elliott’s use of a support structure including the attractive force
created by magnets 80, 82 in addition to the repulsive force created by
magnets 62, 84 to support board 60, by tilting magnet 84 to compensate for
the effect of magnet 80 on the magnetic levitation of magnet 62, as the
Examiner contends. Indeed, as Appellant contends, the Examiner has not
explained why one of ordinary skill in the art would have been led by Elliott
and Boland to use Boland’s arrangement of a magnet, a coil and a
superconductor as motivation to make the proposed modification of tilting
magnet 84 to obtain a tilted orientation of magnet 62 in Elliott’s methods of
magnetic levitation illustrated in Figures 8-11 in order to arrive at the
method of claim 22 as we interpreted this claim above..
Accordingly, in the absence of a prima facie case of obviousness, we
reverse the ground of rejection of claims 22-24 under 35 U.S.C. § 103(a).
The Primary Examiner’s decision is reversed.
REVERSED
cam