Ex Parte Lingk

Patent Trial and Appeal Board

Oct 12, 2016

13126605 (P.T.A.B. Oct. 12, 2016)

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.
13/126,605 04/28/2011 Christoph Lingk 56/496 4483
757 7590 10/12/2016
BGL
P.O. BOX 10395
CHICAGO, IL 60610
EXAMINER
CASEY, LIAM R
ART UNIT PAPER NUMBER
2863
MAIL DATE DELIVERY MODE
10/12/2016 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 CHRISTOPH LINGK
____________

Appeal 2015-004238
Application 13/126,605
Technology Center 2800
____________

Before BRADLEY R. GARRIS, DONNA M. PRAISS, and
BRIAN D. RANGE, Administrative Patent Judges.

PRAISS, Administrative Patent Judge.

DECISION ON APPEAL

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Pursuant to 35 U.S.C. § 134, Appellant appeals from the Examiner's
rejections under 35 U.S.C. § 103(a) of:
1. claims 15–17, 25–29, 31, 32, and 40–42 as unpatentable over Fry
(US 5,173,693 issued Dec. 22, 1992) in view of Williams et al.
(US 2004/0173735 A1 published Sept. 9, 2004) and Gordon (US
5,457,371 issued Oct. 10, 1995);
2. claims 18–24 and 33–39 as unpatentable over Fry, Williams, and
Gordon in combination with Wingate (US 4,947,166 published
Aug. 7, 1990);
3. claim 30 as unpatentable over Fry, Williams, and Gordon in
combination with Hafle (US 4,628,298 issued Dec. 9, 1986);
4. claims 43 and 44 as unpatentable over Fry, Williams, and Gordon
in combination with Rogers (US 4,524,347 issued June 18, 1985).1
We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.

Appellant claims absolute angle coding and an absolute angle
measuring device for use in determining the absolute position of a body. See
claims 15 and 28; Spec. 1 ¶¶ 1–3.
A copy of the independent claims (15 and 28), taken from the Claims
Appendix of the Appeal Brief, is illustrative and set forth below:

1 Claims 26, 27, 41, and 42 were rejected also on the ground of nonstatutory
double patenting as being unpatentable over certain claims in copending
Application Nos. 13/126,605 or 13/126,699. Final Act. 21–26. Appellant
does not argue the double patenting rejection. We need not address this
rejection because the Advisory Action mailed June 23, 2014 indicates it was
withdrawn in view of a Terminal Disclaimer.
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15. An absolute angle coding comprising:
a first cyclically continued code sequence that cyclically
continues a first code sequence a multiple number of times,
wherein said first code sequence is disposed within 360° and
comprises a first succession of code elements that defines a first
angle sector; and
a second cyclically continued code sequence that
cyclically continues a second code sequence a multiple number
of times, wherein said second code sequence is disposed within
360° and comprises a second succession of code elements that
defines a second angle sector, wherein said first cyclically
continued sequence and said second cyclically continued code
sequence in combination unambiguously absolutely encode said
360° and
wherein said first angle sector is not equal to said second
angle sector, and at least one of said second code sequences of
said second cyclically continued code sequence is embodied
only partially within said 360° and with a succeeding second
code sequence forms a joint, wherein when said first cyclically
continued code sequence and said second cyclically continued
code sequence are scanned position values regarding an
absolute position will be generated.
28. An absolute angle measuring device, comprising:
an absolute angle coding comprising:
a first cyclically continued code sequence that cyclically
continues a first code sequence a multiple number of times,
wherein said first code sequence is disposed within 360° and
comprises a first succession of code elements that defines a first
angle sector; and
a second cyclically continued code sequence that
cyclically continues a second code sequence a multiple number
of times, wherein said second code sequence is disposed within
360° and comprises a second succession of code elements that
defines a second angle sector, wherein said first cyclically
continued sequence and said second cyclically continued code
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sequence in combination unambiguously absolutely encode said
360° and
wherein said first angle sector is not equal to said second
angle sector, and at least one of said second code sequences of
said second cyclically continued code sequence is embodied
only partially within said 360° and with a succeeding second
code sequence forms a joint;
a detector array for scanning said first and second code
sequences and for generating code words; and
a decoder device for decoding said code words and for
generating position values regarding an absolute position.
App. Br. 26 and 29 (Claims Appendix).

Independent Claims 15 and 28
Regarding claim 15, the Examiner finds that Fry discloses absolute
position coding that includes a first cyclically continued code sequence and a
second cyclically continued code sequence where the first is not equal to the
second in length. Final Act. 2–3 (citing Fry Fig. 1, 2:41–44, 2:51–53). The
Examiner additionally finds that Fry discloses that the sequences are
scanned by a reading (optical) head and an absolute position is generated.
Id. at 3 (citing Fry 3:23–37 and 4:35–37).
The Examiner finds that “Williams discloses that a repeating pattern
for a position encoder may be equivalent to a circular encoder that wraps
around at the point of repetition” and concludes that it would have been
obvious to dispose the sequence of Fry over 360° such that the angular
position coding would become an absolute angle coding because it would
not be beyond the level of creativity one could expect from a person of
ordinary skill in the art nor would it be beyond the reach of ordinary skill.
Id. at 3–4 (citing Williams ¶ 29). The Examiner also concludes that it would
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have been obvious to modify the coding of Fry by disposing the first and
second sequence over 360° of a circular encoder and define first and second
angle sectors in order to “be applied to devices, such as steering wheels,
where the desired position information is an angle of orientation of the
device.” Id. at 4. Because each sequence over 360° would define an angle
sector proportional to the length of that sequence, the first angle sector
would not be equal to the second angle sector because the lengths of the
sequences are not equal. Id.
Further, the Examiner finds that “Gordon teaches that a common
number of states per revolution is 216, which fills up a 16-bit accumulator
(col. 3, lines 10–14)” and concludes that, in view of this teaching, it would
have been obvious to encode a binary number of angular positions with the
encoder of Fry where at least one of the sequences must not be disposed an
integer number of times resulting in a code sequence that forms a joint at the
360° mark. Id. The Examiner further finds that one of ordinary skill in the
art would have been motivated to modify the encoder of Fry as modified by
Williams “to dispose a sequence only partially to maximize the usage of the
accumulator such as the 16-bit accumulator of Gordon.” Id.
Regarding independent claim 28, which is directed to an absolute
angle measuring device and requires (1) “a detector array for scanning the
first and second code sequences and for generating code words” and (2) “a
decoder device for decoding said code words and for generating position
values regarding an absolute position” in addition to the absolute angle
coding of claim 15, the Examiner finds that Fry discloses an absolute
position measuring device (Fig. 3), a detector array (Fig. 5, item 44; 4:33–
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63), and a decoder device (Fig. 3, item 26; Fig. 6; 5:17–63; 3:23–37). Id. at
6–7.
In contesting this proposed combination of Fry, Williams, and
Gordon, Appellant argues that “Fry teaches away from forming a joint
between code elements of similar types of sequences A or B” because “Fry
desires an interleaving structure between its sequences A and B in order to
allow for the stepping through of a sequence and the creation of a look-up
table that is more economical.” App. Br. 11–12. According to Appellant,
Williams “is silent that a linear pattern is equivalent to a circular pattern”
and, even if it were obvious “to reorient Fry’s linear pattern into a circular
pattern”, it would not have the joint or partially embodied second code
sequence required by the claims as Williams “is quite specific that only a
single code sequence over 360° is needed” and the Examiner has not
provided a plausible explanation for favoring a more complicated plurality
of code sequences of different lengths. Id. at 13. Appellant also contends
that Gordon does not cure the deficiencies of Fry and Williams.
The Examiner responds that the term “joint” should be construed
broadly to encompass the joints depicted in both Figures 1 and 4 of
Appellant’s Specification, where Figure 4 shows an intervening element of
the B sequence (B3) between the code element of the partially embodied
second code sequence (A0) and the succeeding second code sequence (A0–
A4). Ans. 2–3. Appellant agrees with the Examiner’s construction of
“joint” in the Reply Brief. Reply Br. 3.
The Examiner also responds that it would have been obvious to
modify Fry’s interleaved sequence to form a circular encoder in view of
Williams’ teaching that a position encoder and a rotary encoder are
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equivalent and for the reasons that the combination would allow the
sequences of Fry to be applied to rotary applications and those rotary
applications could benefit from the storage improvements provided by Fry’s
interleaved sequence. Ans. 4. Alternatively, the Examiner responds that
modifying Williams’ single sequence with Fry’s interleaved sequence
“provides the benefit of allowing for a high number of encoded states with
minimal storage requirements” and “a higher resolution without prohibitive
increase in storage demands.” Id. at 6. The Examiner further responds that
the integer power of two number of elements taught by Gordon is a
necessary modification to Fry’s interleaved sequence as modified by
Williams to achieve the computational advantages taught by Gordon. Id. at
4. Regarding Gordon’s use of speed-reduction gears, the Examiner responds
that “[t]he teaching of Gordon relied upon for combination does not require
bodily incorporation of any component from Gordon, because the teaching is
not drawn to the physical aspect of encoding the states, but rather of the
digital storage of states to fill a 16-bit accumulator.” Id. at 8.
Appellant’s argument lacks persuasive merit.
The record contains a preponderance of evidence that each of the
argued claim 15 and claim 28 elements and their attendant functions were
known in the prior art. Therefore, the Examiner's conclusion of prima facie
obviousness is supported by the established legal principle that “[t]he
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results” (KSR Int'l Co.
v. Teleflex Inc., 550 U.S. 398, 416 (2007)). Specifically, it would have been
prima facie obvious to provide a position encoder having a detector array
and a decoder device with coding of an interleaved sequence disposed within
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360° containing two sequences of unequal length that form a joint and define
first and second sectors having angles in order to thereby obtain “the
predictable use of prior art elements according to their established functions”
i.e., Fry’s interleaved sequence for storage capacity, Williams’s rotary
configuration for rotary applications of an encoder, and Gordon’s integer
power of two number of elements for computational speed. KSR, 550 U.S.
at 417.
In forming such an encoder, a person of ordinary skill in this art
would have found it obvious to modify the position encoder of Fry to
dispose Fry’s interleaved sequence within 360° for rotary applications.
Appellant argues that it would not have been obvious to form Fry’s linear
encoder into a circular encoder because “adjoining bits of Fry are attached to
one another in such a way that they would prevent the linear encoder from
being placed in the shape of a circle” and “the processing would need to take
into account when multiple rotations of the encoder occur” (Reply Br. 4).
However, this argument is incompatible with the principle that “[a] person
of ordinary skill is also a person of ordinary creativity, not an automaton”
(KSR, 550 U.S. at 421).
Appellant’s argument that Gordon’s absolute position measurement
requires speed-reducing gears, which is a different principle than that
disclosed in Fry (Reply Br. 5–6), is incompatible with the principle that a
reference may be relied upon for all that it would have reasonably suggested
to one having ordinary skill in the art. Merck & Co. v. Biocraft Labs., 874
F.2d 804, 807 (Fed. Cir. 1989). Moreover, Appellant does not dispute the
Examiner’s finding that Gordon teaches that the binary relationship
facilitates computational speed and convenience. Rather, Appellant
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contends that binary encoders are “generally complex” and Gordon teaches
using binary states with simple and inexpensive binary encoders, which are
not taught in either Fry or Williams. Reply Br. 6–7. This argument is not
persuasive because Gordon does not teach away from such complex
encoders benefiting from the binary relationship and because Appellant has
not shown this consideration to be beyond the skill of one of ordinary skill in
the art. Similarly, Appellant’s argument that modifying Fry by using
Gordon’s teaching of binary states “ignor[es] the more desirable scenario of
choosing a sufficiently sized accumulator to store all of the maximum code
elements taught by Fry so that increased resolution would result” (id. at 8) is
insufficient to rebut the benefit of binary states disclosed by Gordon and
found by the Examiner. “[I]f a technique has been used to improve one
device, and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.” KSR, 550 U.S. at
417. Therefore, the preponderance of the evidence on this record is that the
use of the integer power of two number of elements taught by Gordon is
desirable to produce computational benefits.
Appellant’s argument that wrapping the interleaved sequence of Fry
in a circular encoder would not necessarily result in the inclusion of a
partially embodied sequence (Reply Br. 8–11) is not persuasive because the
rejection is over the combination of Fry, Williams, and Gordon rather than
Fry alone. The Examiner finds that “the partially embodied sequence and
formation of a joint are considered to be necessary modifications to achieve
the integer power of two number of elements, consistent with the number of
states taught by Gordon (col. 3, lines 9–20), without destroying the
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advantages of the interleaved sequence of Fry.” Ans. 4. Based on this
record, we are not persuaded that the Examiner erred in rejecting claims 15
and 28 over the combination of Fry, Williams, and Gordon.
Dependent Claims 16, 17, 25–27, 29, 31, 32, and 40–42
We affirm the rejection of dependent claims 16, 17, 25–27, 29, 31, 32,
and 40–42 for the reasons stated by the Examiner in the Final Action and in
the Answer and include the following for emphasis. Final Act. 2–11; Ans.
2–9.
Appellant argues that the number M2 of code elements required by
claims 26 and 27 has not been shown by the Examiner because “Fry would
not necessarily have a partial sequence if used in a rotary encoder” as
discussed in connection with independent claims 15 and 28. Appeal Br. 14–
15; Reply Br. 11–12. As discussed above, Appellant’s argument that
wrapping the interleaved sequence of Fry in a circular encoder would not
necessarily result in the inclusion of a partially embodied sequence is not
persuasive because the rejection is over the combination of Fry, Williams,
and Gordon rather than Fry alone. Therefore, Appellant’s argument
regarding claims 26 and 27 is unpersuasive for the same reasons.
Similarly, Appellant argues that the Examiner erred in rejecting claim
42, which recites “M2=2k, wherein k is greater than 4 and is an integer,”
because claim 42 also requires that at least one of the two code sequences
not be applied completely within the 360°. App. Br. 18. Appellant’s
argument is unpersuasive for the same reason discussed above in connection
with claims 15 and 28, namely Fry, as modified by Williams and Gordon,
does not apply the two code sequences completely within the 360°. See
Ans. 4.
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Appellant argues that Fry, Williams, and Gordon “do not disclose a
decoder device that has a value set that decodes a third value set that is
suitable for decoding the joint as set forth in claim 28” because
“Fry does not disclose any ‘joint’ and therefore also does not need any third
value set suitable for decoding a joint” as required by claim 29. App. Br. 17.
For the reasons discussed above and in the Final Action and Answer, we are
not persuaded that the Examiner erred in finding that the combination of Fry,
Williams, and Gordon teaches a joint under the broadest reasonable
interpretation of that term. Therefore, we are not persuaded that the
Examiner erred in finding that the combination would also decode a third
value set for the joint. See Final Act. 8–9.
Appellant also argues that Fry, Williams, and Gordon do not disclose
third and fourth angle sectors that are identical as required by claims 16 and
31. App. Br. 14 and 17–18. We are unpersuaded by Appellant’s argument
because the Examiner finds that “[t]he third angle sector and fourth angle
sector can be regarded as the angle subtended by one bit each sequence.”
Final Act. 5 and 9. The Examiner further finds that a skilled artisan would
have been “motivated to keep the third and fourth angle sector identical to
simplify the relationship between the coding sequences and so that uniform
angular resolution is maintained over the full 360° of the encoder.” Id. at 5
and 9–10. Based on this record, we are not persuaded that the Examiner
erred in rejecting claims 16 and 31 over the combination of Fry, Williams,
and Gordon.
Dependent Claims 18–24 and 33–39
We affirm the rejection of dependent claims 18–24 and 33–39 over
the combination of Fry, Williams, Gordon in further view of Wingate for the
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reasons stated by the Examiner in the Final Action and in the Answer and
include the following comments for emphasis. Final Act. 11–19; Ans. 9–10.
Appellant contends that Wingate does not cure the deficiencies of Fry,
Williams, and Gordon and that there is no reason to alter Fry to use
concentric tracks for code sequences. App. Br. 18–24. The Examiner
provides a persuasive reason from Wingate itself for modifying the
combination of Fry, Williams, and Gordon with the concentric tracks taught
by Wingate. Namely, higher resolution is achieved by increasing the
number of tracks. Wingate 1:30–33 (“Higher resolution is achieved by
increasing the number of code tracks to provide a higher number of bits in
the output code.”); Ans. 9. Appellant does not dispute that higher resolution
is a benefit of concentric tracks, therefore the Examiner’s reason for
modifying the combination of Fry, Williams, and Gordon with the
concentric tracks taught by Wingate is supported by the preponderance of
the evidence.
Dependent Claim 30
We affirm the rejection of dependent claim 30 for the reasons stated
by the Examiner in the Final Action and in the Answer and include the
following comments for emphasis. Final Act 19–20; Ans. 10. Appellant
contends that because Hafle “is yet another example of using only a single
code sequence within 360°”, it does not cure the asserted deficiencies of the
combination of Fry, Williams, and Gordon (i.e., form a joint, non-identical
angle sectors, and a decoder device having a third value set suitable for
decoding the joint). App. Br. 24. Appellant’s argument is not persuasive
because Hafle is not relied upon by the Examiner for these claim limitations,
which the Examiner correctly finds are disclosed by the combination of Fry,
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Williams, and Gordon for the reasons discussed above in connection with
independent claims 15 and 28 and dependent claim 29.
Dependent Claims 43 and 44
We affirm the rejection of dependent claims 43 and 44 for the reasons
stated by the Examiner in the Final Action and in the Answer and include
the following comments for emphasis. Final Act 20; Ans. 10. Appellant
essentially contends that Rogers also does not cure the asserted deficiencies
of the combination of Fry, Williams, and Gordon (i.e., form a joint and non-
identical angle sectors). App. Br. 24. Appellant’s argument is not
persuasive because Rogers is not relied upon by the Examiner for these
claim limitations, which the Examiner correctly finds are disclosed by the
combination of Fry, Williams, and Gordon for the reasons discussed above
in connection with independent claims 15 and 28.

In sum, the decision of the Examiner is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED