Ex Parte EILEBRECHT et al

Patent Trial and Appeal BoardFeb 28, 2019

14493901 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/493,901 09/23/2014 28395 7590 03/04/2019 BROOKS KUSHMAN P.C./FG1L 1000 TOWN CENTER 22NDFLOOR SOUTHFIELD, MI 48075-1238 FIRST NAMED INVENTOR Benjamin EILEBRECHT 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. 83462899 4315 EXAMINER SAAVEDRA, EMILIO J ART UNIT PAPER NUMBER 2117 NOTIFICATION DATE DELIVERY MODE 03/04/2019 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): docketing@brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BENJAMIN EILEBRECHT, LENNART LEICHT, MARCEL MATHISSEN, JEROEN LEM, ACHIM LINDNER, RAINER VOGT, STEFFEN LEONHARDT, and MARIAN WALTER Appeal2018-006105 Application 14/493,901 Technology Center 2100 Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and JOHN P. PINKERTON, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL Appeal2018-006105 Application 14/493,901 STATEMENT OF CASE Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from a final rejection of claims 1, 3-11, and 13-20. Claims 2 and 12 were cancelled. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. Exemplary Claim Exemplary claim 1 under appeal reads as follows ( emphasis added): 1. A contactless electrocardiographic sensor, compnsmg: an electrode formed of a moisture-permeable material and having a measurement surface and an opposite surface; a moisture generator supplying moisture to the opposite surface; a moisture sensor coupled to the opposite surface for detecting a moisture content of a microclimate at the measurement surface; and a controller activating the moisture generator to increase the moisture content based at least in part on signals received from the moisture sensor. App. Br. 10 (Claims Appendix 1). Rejections on Appeal2 The Examiner rejected claims 1---6, 8, 9, 11-16, 18, and 19 under 35 U.S.C. Â§ 103 as being unpatentable over Hanakai et al. (JP 2009- 1 The real party in interest is Ford Global Technologies, LLC. App. Br. 1. 2 The patentability of claims 3-9, 11, and 13-20 is not separately argued by Appellants. See App. Br. 3-9. Thus, except for our ultimate decision, claims 3-9, 11, and 13-20 are not discussed further herein. 2 Appeal2018-006105 Application 14/493,901 106673 A; published May 21, 2009) ("Hanakai") and Chung (US 2014/0213882 Al; published July 31, 2014) ("Chung"). The Examiner rejected claims 7 and 17 under 35 U.S.C. Â§ 103 as being unpatentable over Hanakai, Chung, and Grundler et al. (US 2006/0151624 Al; published July 13, 2006) ("Grundler"). The Examiner rejected claim 20 under 35 U.S.C. Â§ 103 as being unpatentable over Hanakai, Chung, and Da Fonseca et al. (WO 2012/140629 Al; published Oct. 18, 2012) ("Mota"). The Examiner rejected claim 10 under 35 U.S.C. Â§ 103 as being unpatentable over Hanakai et al. (JP 2009-106674 A; published May 21, 2009) ("Takeda") and Chung. Issue on Appeal Did the Examiner err in rejecting claims 1 and 10 as being obvious? PRINCIPLES OF LAW The mere existence of differences between the prior art and the claim does not establish non-obviousness. See Dann v. Johnston, 425 U.S. 219, 230 (1976). Instead, the relevant question is "whether the difference between the prior art and the subject matter in question is a [difference] sufficient to render the claimed subject matter unobvious to one skilled in the applicable art." Dann, 425 U.S. at 228 (internal quotations and citations omitted). Indeed, the Supreme Court made clear that when considering obviousness, "the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account 3 Appeal2018-006105 Application 14/493,901 of the inferences and creative steps that a person of ordinary skill in the art would employ." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). ANALYSIS The Examiner finds Hanakai teaches "a moisture sensor coupled to the opposite surface [ of an electrode] for detecting a moisture content of a microclimate at the measurement surface [ of the electrode]," as recited in independent claims 1 and 11. See Final Act. 5 (citing Hanakai ,r,r 36, 61, 64; Figs. 1, 9). Furthermore, the Examiner interprets the claimed "electrode" to include all components that serve to measure a signal, as well as any surfaces that come into contact with an object to be measured. See Ans. 4. With regards to Hanakai, the Examiner interprets the claimed "electrode" to include conductive components that pick-up an electrical signal, the claimed "measuring surface" as the front side of the seat surface that contacts the driver, and the claimed "opposite surface" as the backside of the seat surface. See id. Based on these interpretations, the Examiner finds Hanakai teaches the claimed "moisture sensor coupled to the opposite surface [ of the electrode]," because Hanakai teaches that the moisture sensor is located on the backside of the seat surface. See id. The Examiner further finds that Appellants' Specification does not indicate that the placement of the claimed "moisture sensor" is either the inventive novelty or critical to the functioning of the claimed invention, and thus, any rearrangement of components disclosed in Hanakai would merely be considered a design choice to a person of ordinary skill in the art. See Ans. 8; see also Final Act. 2-3. Appellants contend the Examiner's findings are in error because: 4 Appeal2018-006105 Application 14/493,901 The rejection applies an unreasonable interpretation of "opposite surface" of the electrode contrary to the plain meaning as well as contrary to what one of ordinary skill in the art would understand the term to mean in light of the description in the specification and illustration in the drawings. The plain meaning of "opposite" as well as the context in which the term "opposite surface" is used in the Specification and illustrated in at least Figures 2 and 3 is consistent with Appellants' construction and contrary to the unreasonable construction used in the rejection under 35 U.S.C. Â§ 103. Regarding independent claim 1, the proposed combination of references fails to teach or suggest "a moisture sensor coupled to the opposite surface [of the electrode] for detecting a moisture content of a microclimate at the measurement surface," as recited by Appellant. In contrast, Hanakai discloses that (1) pressure sensor 80 may be replaced with humidity sensor 92 and (2) the pressure sensor (which can be replaced with humidity sensor 92) is "arranged between the 1st electrocardio [sic] sensor electrode 210 . . . and the 2nd electrocardio [sic] sensor electrode 220." (See, e.g., Hanakai at paras. 20 and 61, Figs. 1 and 9.) Figure 1 ... clearly depicts the pressure sensor 80 ( that can be replaced with humidity sensor 92) between the two electrodes in the seat and not coupled to the opposite surface of the electrode as recited in the rejected claims. Chung fails to cure this deficiency in Hanakai because Chung does not disclose the use of a moisture generator, let alone use of a humidity sensor or the positioning of such. In addition to the above, the rejection does not provide a proper motivation for one of ordinary skill in the art to modify the moisture sensor placement disclosed by Hanakai absent impermissible use of hindsight based on Appellant's disclosure. The proposed motivation or rationale provided on p. 5 of the 5 Appeal2018-006105 Application 14/493,901 rejection relates only to the moisture-permeable material disclosed by Chung. There is no motivation or rationale for one of ordinary skill in the art to reposition the humidity sensor disclosed by Hanakai from between the two electrodes in the seat to the opposite side of the electrode as disclosed and claimed by Appellant. App. Br. 3, 5, 7-8 (emphasis added); see also Reply Br. 1-2. We are not persuaded that the Examiner erred. Even assuming arguendo that the Examiner's interpretations of the claimed "electrode," "measuring surface," and "opposite surface," are unreasonably broad as argued by Appellants, the only difference between the claimed invention and the cited combination of prior art references is the position of the claimed "moisture sensor." 3 We agree with the Examiner that the placement of Hanakai' s moisture sensor on a surface of Hanakai' s electrode that is opposite a surface that faces a person or subject that is examined by the electrode is merely a design choice that would have been obvious to a person of ordinary skill in the art, as Appellants have failed to persuasively establish that the aforementioned placement of Hanakai' s moisture sensor would change the functionality of the moisture sensor or would otherwise produce unexpected results. See Ans. 8; see also In re Rice, 341 F.2d 309 (CCPA 1965) ("Appellants have failed to show that the change [in the claimed invention] as compared to [ the reference], results in a difference in function 3 We do not decide the claim interpretation issues raised by Appellants and the Examiner because it is not necessary to decide these issues to resolve the outstanding appeal. Even assuming arguendo Appellants' interpretations of the claimed "electrode," "measuring surface," and "opposite surface," are correct, we agree with the Examiner's findings that the position of the claimed "moisture sensor" is a design choice that would have been obvious to a person of ordinary skill in the art. 6 Appeal2018-006105 Application 14/493,901 or give unexpected results."); In re Kuhle, 526 F.2d 553, 555 (CCP A 1975) ("Use of such means of electrical connection in lieu of those used in the references solves no stated problem and would be an obvious matter of design choice within the skill [in] the art." (emphasis added) (citations omitted)). Regarding independent claim 10, the Examiner finds Takeda teaches "a moisture sensor coupled to the opposite surface [ of an electrode] for detecting a moisture content of a microclimate at the measurement surface [of the electrode]," and "a temperature sensor coupled to the opposite surface [ of the electrode] for measuring a temperature at the measurement surface [of the electrode]," as recited in independent claim 10. See Final Act. 10 (citing Takeda at Abstract; Fig. 2). Based on the aforementioned interpretations of the claimed "electrode," "measurement surface," and "opposite surface," the Examiner further finds Takeda teaches the claimed "moisture sensor coupled to the opposite surface [of the electrode]," and the claimed "temperature sensor coupled to the opposite surface [ of the electrode]," because Takeda teaches that the moisture sensor and the temperature sensor are located on the back side of the seat cover. See Ans. 4. The Examiner further finds that, based on the lack of disclosure regarding the placement of the claimed "moisture sensor" and "temperature sensor" in Appellants' Specification, any rearrangement of components disclosed in Takeda would merely be considered a design choice to a person of ordinary skill in the art. See Ans. 8; see also Final Act. 2-3. Appellants contend the Examiner's findings are in error because: Claim 10 is separately patentable relative to Claims 1 and 11. Regarding independent claim 10, Takeda does not disclose or suggest every limitation, in particular: (1) "a moisture sensor 7 Appeal2018-006105 Application 14/493,901 coupled to the opposite surface [ of the electrode] for detecting a moisture content of a microclimate at the measurement surface" and (2) "a temperature sensor coupled to the opposite surface [ of the electrode] for measuring a temperature at the measurement surface," as recited by Appellant. As discussed in greater detail above, the interpretation of "opposite surface" of the electrode applied by the Examiner is unreasonable based on the plain meaning and the context of the Appellant's specification and drawings. The rejection relies on the Abstract and Fig. 2 of Takeda as disclosing the claimed humidity sensor and temperature sensor. This is incorrect. The temperature and humidity sensor disclosed by Takeda is not coupled to the opposite surface of the electrode as recited in Claim 10. App. Br. 8 ( emphasis added). We are not persuaded that the Examiner erred for reasons similar to the reasons previously discussed regarding claim 1. Accordingly, Appellants have not shown the Examiner erred in rejecting claims 1 and 10 under 35 U.S.C. Â§ 103. CONCLUSIONS (1) The Examiner has not erred in rejecting claims 1, 3-11, and 13- 20 as being unpatentable under 35 U.S.C. Â§ 103. (2) Claims 1, 3-11, and 13-20 are not patentable. DECISION We affirm the Examiner's rejection of claims 1, 3-11, and 13-20 as being unpatentable under 35 U.S.C. Â§ 103. 8 Appeal2018-006105 Application 14/493,901 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l)(iv). AFFIRMED 9