Ariens Company

Patent Trials and Appeals Board

Mar 28, 2022

2021005076 (P.T.A.B. Mar. 28, 2022)

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. 15/618,279 06/09/2017 Fredric D. Schreiner 013002-9153-US01 7688 23409 7590 03/28/2022 MICHAEL BEST & FRIEDRICH LLP (Mke) 790 N WATER ST SUITE 2500 MILWAUKEE, WI 53202 EXAMINER MISA, JOAN D ART UNIT PAPER NUMBER 3671 NOTIFICATION DATE DELIVERY MODE 03/28/2022 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): mkeipdocket@michaelbest.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte FREDRIC D. SCHREINER ____________________ Appeal 2021-005076 Application 15/618,279 Technology Center 3600 ____________________ Before JENNIFER D. BAHR, PHILLIP J. KAUFFMAN, and SEAN P. O’HANLON, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 2, 4-6, 8, and 20.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Ariens Company. Appeal Br. 2. 2 The Examiner indicates that claims 9-17 and 19, which are the only other pending claims, are allowable. Final Act. 6. Appeal 2021-005076 Application 15/618,279 2 THE CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A mulching insert for use with a lawn mower, the lawn mower including a frame and a cutting deck supported by the frame, the mulching insert comprising: a molded, single-piece body configured to be received in the cutting deck, the body including an attachment portion that is configured to be engaged by a portion of the lawn mower to removably mount the body to the cutting deck, and the body defining a first mulching chamber and a second mulching chamber within the cutting deck, wherein the first mulching chamber provides clearance for a first cutting blade of the lawn mower and the second mulching chamber provides clearance for a second cutting blade of the lawn mower, wherein the first mulching chamber defines a first generally semi-spherical wall of the body and the second mulching chamber defines a second generally semi-spherical wall of the body, wherein portions of the first and second generally semi-spherical walls are omitted to define a flow path between the first and second mulching chambers so the first and second mulching chambers are in communication with each other. EVIDENCE The prior art relied upon by the Examiner is: Name Reference Date Loehr US 5,129,217 July 14, 1992 Baumann US 5,133,176 July 28, 1992 Willmering US 5,884,466 Mar. 23, 1999 Appeal 2021-005076 Application 15/618,279 3 REJECTION Claims 1, 2, 4-6, 8, and 20 stand rejected under 35 U.S.C. § 103 as unpatentable over Loehr, Willmering, and Baumann. OPINION Appellant presents arguments for independent claim 1 (Appeal Br. 6-12), and relies on the same arguments for independent claim 20 (see id. at 13-14) and dependent claims 2, 4-6, and 8 (see id. at 12). We select claim 1 as representative, and claims 2, 4-6, 8, and 20 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). In rejecting claim 1, the Examiner finds that Loehr discloses a mulching insert for a lawn mower deck, the insert including first and second mulching chambers having generally semi-spherical walls. Final Act. 2-3 (citing Loehr, Figs. 2, 5). The Examiner finds that Loehr does not disclose that the first and second mulching chambers of the mulching insert are “a single-piece body,” and “Loehr fails to show portions of the first and second generally semi-spherical walls of the [mulching] chambers are omitted to define a flow path between the mulching chambers so that the [mulching] chambers are in communication with each other.” Id. at 3. However, the Examiner finds that Willmering discloses “a similar insert (40, 42) for a mower cutting deck (12) comprising a plurality of cutting chambers, wherein the insert is a molded, single-piece body.” Id. The Examiner determines that it would have been obvious “to produce the insert of Loehr as a single-piece body as taught by Willmering . . . as a matter of design choice that [is] still capable of providing protection from flying objects, such as clippings and vegetation, and clearance for the cutting blades.” Id. Appeal 2021-005076 Application 15/618,279 4 The Examiner also finds that Baumann discloses that it was old and well known in the art to have multiple lawn mower mulching chambers “in communication with each other by omitting portions of the adjacent walls of each chamber in order to allow a flow path between the mulching chambers.” Final Act. 3-4 (citing Baumann, Fig. 5, col. 5, ll. 56-62). The Examiner determines that it would have been obvious “to modify the cutting deck of Loehr such that the chambers are in communication with each other allowing a flow path between each chamber, as taught by Baumann[,] . . . as an alternate and sufficient means of mulching the grass clippings with such alternate configurations being old and well known in the mowing art.” Id. at 4. Appellant argues that one of ordinary skill in the art would have had no reason “to modify the separate mulching housings of Loehr in view of the side discharge liner of Willmering to arrive at the claimed molded, single-piece body.” Appeal Br. 9. Appellant asserts that Willmering’s liner is used to resist abrasion and increase the life of the mower deck without affecting aerodynamics of the mower deck (id. (citing Willmering, col. 4, ll. 9-13)), whereas Loehr’s mulching housings are specifically designed to affect aerodynamics of a mower deck to confine grass clippings and increase mulching (id.). According to Appellant, Loehr “teaches away from a liner (like the liner of Willmering) that is specifically design[ed] to not affect the aerodynamics of a mower deck.” Id. For the reasons that follow, we are not persuaded by this argument. A reference teaches away from a claimed invention or a proposed modification if “a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or Appeal 2021-005076 Application 15/618,279 5 would be led in a direction divergent from the path that was taken by the applicant.” In re Kubin, 561 F.3d 1351, 1357 (Fed. Cir. 2009) (quoting In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)). Prior art does not teach away from claimed subject matter merely by disclosing a different solution to a similar problem unless the prior art also criticizes, discredits, or otherwise discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Here, Appellant does not point to, nor do we discern, any disclosure in Loehr criticizing, discrediting, or otherwise discouraging the combination of teachings proposed by the Examiner in the rejection. Although Loehr’s mulching housings may affect aerodynamics under the mower deck, this does not constitute a teaching away from the Examiner’s proposal to modify Loehr so that the separate mulching housings are a single-piece body. Moreover, the Examiner explains that “Willmering is [relied on] simply to teach that an insert that is removably attached within a cutting deck can be made of a molded, single-piece body,” and applying Willmering’s teachings to Loehr would not change the function of Loehr’s mulching housings. Ans. 8. In this regard, Appellant does not persuasively refute the Examiner’s position. Although Willmering discloses that “wear- resistant liner 42 is shaped to closely conform to the inner surface of the deck 12 so that the liner 42 has little, and preferably, no [e]ffect on the aerodynamic performance of the deck 12” (Willmering, col. 4, ll. 10-13), Appellant does not proffer evidence or persuasive technical rationale explaining why this disclosure would make Willmering’s teachings regarding a single-piece body inapplicable to Loehr’s mulching housings. Appellant argues that In re Larson, 340 F.2d 965, 968 (CCPA 1965), cited by the Examiner, does not support the determination that it would have Appeal 2021-005076 Application 15/618,279 6 been obvious to modify Loehr’s separate mulching housings to be a molded, single-piece body. Appeal Br. 9; see Final Act. 8 (explaining further that the proposed modification “is simply a matter of obvious engineering choice according to case law In re Larson”). Appellant asserts that, [i]n contrast to In re Larson, Loehr does not teach that the mulching housings are rigidly secured together as a single unit. Instead, the mulching housings are individually and independently coupled to a mower deck and only indirectly coupled together through the mower deck. As such, Loehr does not even provide a starting point to make all of the mulching housings one piece. Appeal Br. 9. This argument does not apprise us of error in the rejection. Here, the Examiner further reasons that it would have been an obvious engineering choice to modify Loehr’s separate mulching housings 32 to be a single-piece body as an alternative form of construction. Final Act. 8. In our view, Larson supports this proposition. Larson, 340 F.2d at 967-68 (explaining that “the brake disc and clamp of Tuttle et al. comprise several parts” and holding that “the use of a one[-]piece construction instead of the structure disclosed in Tuttle et al. would be merely a matter of obvious engineering choice” (citing In re Fridolph, 309 F.2d 509 (CCPA 1962))). Appellant has not persuasively distinguished Larson or otherwise rebutted the Examiner’s reasoning. Although Appellant correctly observes that Loehr’s mulching housings 32 are indirectly coupled together through mower deck 12 (Appeal Br. 9; see Loehr, col. 2, ll. 36-43), this fact does not identify error in the Examiner’s determination that, in view of the teachings of Willmering, it would have been obvious to make mulching housings 32 a single-piece body. Appeal 2021-005076 Application 15/618,279 7 Appellant contends in the Reply Brief that “[t]here must be some express or implied teaching in the prior art that suggests a reason to use the single mass construction of the liner of Willmering in the mulching insert of Loehr.” Reply Br. 3. This argument is unpersuasive because it appears to insist on an explicit teaching, suggestion, or motivation in the cited references to establish obviousness, but such a requirement has been foreclosed by the Supreme Court. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007); see also In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (explaining that the relevant inquiry is whether the Examiner has set forth “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness”). As discussed above, the Examiner reasons that, based on the teachings of Willmering, one of ordinary skill in the art would have modified Loehr’s separate mulching housings to have a single-piece body as a matter of design choice without changing the function of the mulching housings. See Final Act. 3; Ans. 8. In this regard, Appellant does not identify error in the Examiner’s articulated reasoning. Appellant argues that one of ordinary skill in the art would not have modified Loehr based on the teachings of Baumann to omit adjacent wall portions of Loehr’s mulching housings to provide a flow path, as proposed by the Examiner, because such a modification would render Loehr unsatisfactory for its intended purpose. Appeal Br. 10. Appellant asserts that “[d]ue to the geometry of the mulching housings 32 of Loehr, omitting a portion of the walls of the mulching housing 32 would create a gap between the top wall 16 of the mower deck and the housing 32.” Id. at 11. According to Appellant, “mown grass would not be confined by the housings 32, but instead would build up in the gaps between the mulching Appeal 2021-005076 Application 15/618,279 8 housing 32 and the top wall 16 of the mower deck.” Id. This argument is unpersuasive. Appellant does not point to, nor do we discern, any evidence that modifying Loehr to omit adjacent walls of mulching housings 32 to create a flow path would leave a gap such that the grass clippings are no longer confined to the mulching housings. Appellant’s assertion amounts to nothing more than attorney argument unsupported by evidence and, thus, is entitled to little, if any, weight. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (An attorney’s arguments in a brief cannot take the place of evidence.). Even if creating a flow path between mulching housings would mean that grass clippings are not confined to an individual mulching housing, the grass clippings would remain confined to the combined space of the mulching housings in communication with each other, thereby avoiding any tendency for the grass clippings to be forced to the lower pressure side near the discharge port. See Loehr, col. 3, ll. 36-44. Moreover, Appellant does not contend that combining the teachings of Loehr, Willmering, and Baumann in an operable manner (i.e., such that grass remains confined by the housings) would have been beyond the level of ordinary skill in the art. See KSR, 550 U.S. at 421 (“A person of ordinary skill is also a person of ordinary creativity, not an automaton.”). Appellant further asserts that, “even if Loehr could have been modified in view of Baumann (which Appellant does not agree would have been obvious), neither reference discloses omitting portions of semi-spherical walls, as claimed.” Reply Br. 3. This argument is unpersuasive because it attacks Loehr and Baumann individually rather than the combination of reference teachings relied on in the rejection. “Non- Appeal 2021-005076 Application 15/618,279 9 obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). As discussed above, the Examiner relies on Loehr to disclose mulching housings having semi-spherical walls and on Baumann to disclose that it was known in the art for mulching housings to have adjacent wall portions omitted to create a flow path between housings. Appellant’s assertion that “neither” of Loehr and Baumann discloses the disputed limitation (Reply Br. 3) does not apprise us of error in the proposed combination of reference teachings. We are also unpersuaded by Appellant’s argument that the Examiner’s rejection is based upon impermissible hindsight reconstruction. Appeal Br. 11; Reply Br. 4. Appellant does not identify, nor do we discern, any knowledge relied upon by the Examiner that was gleaned only from Appellant’s disclosure and that was not otherwise within the level of ordinary skill at the time of the invention. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971) (“Any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made and does not include knowledge gleaned only from [Appellant’s] disclosure, such a reconstruction is proper.”). For the above reasons, Appellant does not apprise us of error in the Examiner’s conclusion that the subject matter of claim 1 would have been obvious. Accordingly, we sustain the rejection of claim 1, and of claims 2, Appeal 2021-005076 Application 15/618,279 10 4-6, 8, and 20 falling therewith, under 35 U.S.C. § 103 as unpatentable over Loehr, Willmering, and Baumann. CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4-6, 8, 20 103 Loehr, Willmering, Baumann 1, 2, 4-6, 8, 20 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED