Appeal No. 2002-0355 Page 4
Application No. 09/291,330
devices are commonly used to measure the position of an object such as a throttle valve
adjustor. As manifested in independent claim 1, the invention comprises a rotor fixedly
connected to a sensor shaft and a stator fixed to a sensor housing, the rotor and the stator
extending in parallel planes and sharing a common plane and including electrode
structures which are for being capacitively coupled with one another, wherein at least one
of the rotor and the stator include a ceramic plate having the electrode structure on its side
facing away from the other of the rotor and stator, with the ceramic plate forming dielectric
layer between the electrode structures of the rotor and stator.
It is the examiner’s view that Wolfram discloses all of the claimed structure except
for the plates being of ceramic material, but it would have been obvious to one of ordinary
skill in the art to do so in view of the teaching of Bollhagen “in order to electrically isolate
one from the other.” Recognizing that the applied references do not teach placing the
electrode structure on the side facing away from the other element, the examiner takes the
position that “absent any criticality” this arrangement would have been obvious “using
routine experimentation since the courts have held that there is no invention in shifting the
position of a structure to a different position if the operation of the device would not be
thereby modified. In re Japikse, 86 USPQ 70 (CCPA 1950).” See Paper No. 8, pages 3
and 4. We find this conclusion and the reasoning behind it to be untenable.
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