Ex Parte FILLERY et al

Patent Trial and Appeal Board

Sep 25, 2018

14592535 (P.T.A.B. Sep. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/592,535 01/08/2015 Brian Gordon FILLERY
52835 7590 09/27/2018
HAMRE, SCHUMANN, MUELLER & LARSON, P.C.
45 South Seventh Street
Suite 2700
MINNEAPOLIS, MN 55402-1683
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.
20187.0008USC1 7642
EXAMINER
LEFF, STEVEN N
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
09/27/2018 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):
PTOMail@hsml.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN GORDON FILLERY and
TIMOTHY MICHAEL OLIVER
Appeal2017-009085
Application 14/592,535 1
Technology Center 1700
Before JEFFREY T. SMITH, DONNA M. PRAISS,
and LILAN REN, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the non-final
rejection of claims 15-31.2 We have jurisdiction under 35 U.S.C. § 6.
Appellants' invention relates generally to an apparatus for and method
of steam treating animal fodder in bailed form. (Spec. 1 ). Claim 15
illustrates the subject matter on appeal and is reproduced from the Claims
Appendix to the principal Brief.
1 According to the Appeal Brief, the real party in interest is Propress Equine
Limited. See Br. 2.
2 The Examiner has indicated the subject matter of pending claims 20, 23,
and 25 is allowable, however, these claims stand objected to as being
depended upon the rejected base claim. (Non-Final Act. 14).
Appeal2017-009085
Application 14/592,535
15. An apparatus that heats a bale of animal fodder with
steam to a temperature sufficient to kill at least some living
organisms within the bale, comprising:
a steam manifold configured to be connected to, and receive
steam from, a source of steam, the steam manifold having an
upper surface;
the steam manifold having a steam inlet through which steam
can enter the steam manifold from the source of steam, and one
or more steam passages that are fluidly connected to the steam
inlet so that steam that enters the steam manifold through the
steam inlet flows into the one or more steam passages;
the steam manifold further includes a plurality of bale
penetrating lances projecting from the upper surface, each bale
penetrating lance includes a steam passageway therein that is in
fluid communication with the one or more steam passages so
that steam in the one or more steam passages can flow into the
bale penetrating lances;
each bale penetrating lance has a pointed end to facilitate
penetration of the bale penetrating lances into the bale of animal
fodder;
at least one steam release aperture in each of the bale
penetrating lances that communicates the steam passageways in
the bale penetrating lances with exteriors of the bale penetrating
lances so that steam that flows into the steam passageways can
exit through the at least one steam release apertures of the bale
penetrating lances; and
when the bale penetrating lances are penetrated into the bale of
animal fodder, and steam is introduced into the steam manifold
via the steam inlet, the steam flows through the one or more
steam passages of the steam manifold, into the steam
passageways of the bale penetrating lances, and the steam is
then discharged out the steam release apertures into the interior
volume of the bale of animal fodder.
Claims Appendix, Br. 19--20.
2
Appeal2017-009085
Application 14/592,535
Appellants (see generally Br.) request review of the following
rejections:
I. Claims 15, 16, 18, 22, 24, and 26-31 rejected under
35 U.S.C. § 103(a) as unpatentable over Meech (GB
2338167 A; published Dec. 15, 1999) in view ofKorsgaard
(US 4,450,178; issued May 22, 1984) as evidenced by
http://www. thefreedictionary .com/bale.
II. Claims 15, 16, 18, 19, 22, 24, and26-31 rejected under
35 U.S.C. § 103(a) as unpatentable over Cogger (GB
2374513 A; published Oct. 23, 2002) in view of McIntyre
(US 1,332,629; issued Mar. 2, 1920) and Krasd (SU 469455;
published Aug. 26, 197 5)3 (hereinafter "Krasd") as
evidenced by http://www.thefreedictionary.com/bale.
III. Claim 17 rejected under 35 U.S.C. § 103(a) as unpatentable
over the combined teachings of Cogger, McIntyre, Krasd as
evidenced by http://www.thefreedictionary.com/bale further
in review of Beard (US 4,383,538; issued May 17, 1983).
IV. Claim 21 rejected under 35 U.S.C. § 103(a) as unpatentable
over the combined teachings of Cogger, McIntyre, Krasd as
evidenced by http://www. thefreedictionary. com/bale further
in review of Seeland (US 233,288; issued Oct. 12, 1880).
3 We rely upon the English language machine translation of Krasd that has
been provided to the record by the Examiner.
3
Appeal2017-009085
Application 14/592,535
V. Claims 15-25 under the judicially-created doctrine of
obviousness-type double patenting as unpatentable over claims 1-
18 of US 8,959,721.
The complete statement of the rejections on appeal appear in the
Examiner's Answer. (Non-Final Act. 3-14).
OPINION
Rejection V.
Appellants do not provide any arguments against the double patenting
rejections-i.e., Rejection V. (Br. 5). Therefore, we summarily affirm these
rejections. Cf Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) ("In
the event of ... a waiver, the [Board] may affirm the rejection of the group
of claims that the examiner rejected on that ground without considering the
merits of those rejections.").
Rejection I4
Upon consideration of the evidence in this appeal record in light of the
respective positions advanced by the Examiner and Appellants, we
determine that Appellants have not identified reversible error in the
Examiner's rejection. We affirm the appealed rejection for the reasons
provided by the Examiner. We add the following:
4 Appellants' arguments are directed to independent claims 15, 24, and 26.
(Br. 9-12). We limit our discussion to the independent claims, which we
select as representative of the rejected claims.
4
Appeal2017-009085
Application 14/592,535
Appellants argue the combination of Meech and Korsgaard does not
teach or suggest heating a bale of animal fodder by injecting steam into the
bale via lances. (Br. 6). Appellants argue Meech does not disclose a steam
manifold having an upper surface, and a plurality of bale penetrating lances
projecting from the upper surface. (Br. 6). Appellants argue Korsgaard
teaches spears that inject material into a bale, but does not disclose injecting
steam. Appellants argue given Meech, a person of ordinary skill in the art
would not tum to Korsgaard since Korsgaard does not teach using the spears
to inject steam for the purpose of killing living organisms in the bale. (Br.
6).
We are not persuaded by Appellants' arguments for the reasons
provided by the Examiner. (Ans. 14--17). The prior art cited by the
Examiner establishes the desire to inject steam into and throughout the
volume of hay for the purpose of killing living organisms. (Meech 1, 11. 2 8-
30). Korsgaard also discloses that water or moisture may be supplied
through the spears to condition straw. (Korsgaard col. 3, 11. 29-33). A
person of ordinary skill in the art would have recognized the suitability of
incorporating spears into a manifold for distribution of steam into a bale. A
person of ordinary skill in the art would have reasonably expected that steam
injected into and throughout the volume of hay through spears would also
kill living organisms. "Obviousness does not require absolute predictability
of success ... all that is required is a reasonable expectation of success." In
re Kubin, 561 F.3d 1351, 1359-60 (Fed. Cir. 2009) (citing In re O'Farrell,
853 F.2d 894, 903---04 (Fed. Cir. 1988)).
Appellants argue claim 24 is patentable over the combination of
Meech and Korsgaard because the combination of Meech and Korsgaard
5
Appeal2017-009085
Application 14/592,535
does not teach or suggest an apparatus as claimed that includes a plate-
shaped steam manifold having an upper surface. (Br. 7).
We are not persuaded by Appellants' argument. A person of ordinary
skill in this art would have recognized that the manifold distributes the steam
for treating the bale. A person of ordinary skill in the art also would have
found a plate-shaped steam manifold obvious for the purpose of distributing
steam. Cf In re Dailey, 357 F.2d 669, 672-73 (CCPA 1966) (affirming a
determination of obviousness because the arguments on appeal did not show
that a container shape "is significant or is anything more than one of
numerous configurations a person of ordinary skill in the art would find
obvious for the purpose of providing mating surfaces in the collapsed
container."). Appellants have not directed us to evidence that the shape of
the manifold provides unexpected results.
Rejection II-IV5
Upon consideration of the evidence in this appeal record in light of the
respective positions advanced by the Examiner and Appellants, we
determine that Appellants have not identified reversible error in the
Examiner's rejections. We affirm the appealed rejections for the reasons
provided by the Examiner. We add the following:
5 Appellants' arguments are directed to independent claims 15, 24, and 26,
and dependent claims 17-19. (Br. 9-1 7). We will address the claims as
argued by Appellants. Appellants do not present arguments addressing
separately rejected dependent claim 21.
6
Appeal2017-009085
Application 14/592,535
Appellants argue the combination of Cogger, McIntyre, and Krasd
does not teach or suggest heating a bale of animal fodder by injecting steam
into the bale via lances. (Br. 9--17). Appellants argue Cogger does not
disclose a steam manifold having an upper surface, and a plurality of bale
penetrating lances projecting from the upper surface. (Br. 10). Appellants
argue McIntyre discloses an apparatus for injecting molasses into a bale, but
does not disclose a steam manifold having an upper surface, and a plurality
of bale penetrating lances projecting from the upper surface. (Br. 10).
Appellants argue a person of ordinary skill in the art would not tum to Krasd
to combine with the teachings of Cogger and McIntyre since Krasd injects
steam to humidify a tobacco bale that is not directed to a problem of killing
living organisms in animal fodder. (Br. 10-11 ).
We are not persuaded by Appellants' arguments for the reasons
provided by the Examiner. (Ans. 17-20). Cogger depicts in Figure 1 the
mesh grid functions to distribute the steam throughout the chamber so that
the hay is subject to the action of the steam. The Examiner found McIntyre
teaches using hollow prongs which penetrate the baled hay to distribute
molasses or another substance in a substantially uniform quantity throughout
the bale. (Ans. 17-18, McIntyre 111. 28-95). A person of ordinary skill in
the art would have reasonably expected that the manifold of McIntyre was
suitable for distribution of steam (i.e. another substance) throughout a bale.
A person of ordinary skill in the art would have reasonably expected that
steam injected utilizing spears would subject the volume of hay to the action
of the steam. See In re Kubin, supra.
7
Appeal2017-009085
Application 14/592,535
Appellants argue claim 24 is patentable over the combination of
Cogger, McIntyre, and Krasd because the combination does not teach or
suggest an apparatus as claimed that includes a plate-shaped steam manifold
having an upper surface. (Br. 11 ).
We are not persuaded by Appellants' argument for the same reasons
stated when addressing the rejection of claim 24 above.
Appellants argue claim 26 is patentable over the combination of
Cogger, McIntyre, and Krasd because the combination does not teach or
suggest the claimed method that includes connecting a steam manifold as
claimed to the source of the steam. (Br. 12-13).
Appellants' arguments are substantially the same as were presented
for addressing independent claim 15. Appellants' arguments are not
persuasive of reversible error in the Examiner's rejection for the reasons set
forth above.
Appellants argue claim 17 is patentable over the combination of
Cogger, McIntyre, Krasd, and Beard because the combination does not teach
or suggest the bale penetrating lances that are removably attached to the
steam manifold. (Br. 13-14).
Appellants acknowledge that Beard discloses varying the length of the
probes. (Br. 14 (citing Beard col. 11, 11. 63---66)). Beard also discloses the
problem of probes bending and becoming unusable. (See Beard col. 2).
Beard further discloses the probe can be attached by a variety of means-
e.g. "[t]he probe body is positioned in the plate 60 by means of a lower
collar 78 which may be welded or otherwise fastened to the exterior surface
of tube 74." (Beard col. 6, 11. 42--45). Consequently, a person of ordinary
skill in the art would have reasonably expected that probes can be removably
8
Appeal2017-009085
Application 14/592,535
attached based upon Beard's disclosure that the probes can be fixed by
nonpermanent means. (See id. col. 6-7).
Appellants argue claim 18 is patentable over the combination of both
Meech and Korsgaard and the combination of Cogger, McIntyre, Krasd, and
Beard because neither combination discloses or suggests the steam manifold
is disposed within the container on the floor thereof. (Br. 15-16).
A person of ordinary skill in the art would have reasonably expected
the spears utilized to inject the bale could have been situated from various
locations including the lower surface. (Note Korsgaard Figures 1--4 depict
the spears entering the bale of hay both vertically and horizontally).
Appellants have not directed us to evidence that the location of the spears
from the bottom surface produces an unexpected result.
Appellants argue claim 19 is patentable over the combination of
Cogger, McIntyre, and Krasd because the combination does not teach or
suggest the manifold plate that includes a plurality of comers, the lances are
disposed adjacent to the comers, and three of the bale penetrating lances
projecting from the upper surface are not disposed along a straight line. (Br.
16-17).
Appellants' arguments are not persuasive of reversible error. The
prior art cited by the Examiner exhibits steam delivery through a variety of
arrangements that include the use of spears/penetrating lances attached to a
distribution manifold. A person of ordinary skill in the art would have
understood that steam would be delivered to the areas in the bale adjacent to
the location from the penetrating lances. A person of ordinary skill in the art
would have found the arrangement of penetrating lances on a steam
manifold obvious for the purpose of distributing steam. Cf In re Dailey,
9
Appeal2017-009085
Application 14/592,535
357 F.2d at 672-73 (affirming a determination of obviousness because the
arguments on appeal did not show that a container shape "is significant or is
anything more than one of numerous configurations a person of ordinary
skill in the art would find obvious for the purpose of providing mating
surfaces in the collapsed container."). Appellants have not directed us to
evidence that the arrangement of the penetrating lances on the manifold
provides unexpected results.
CONCLUSION
For the reasons stated above, and the reasons presented by the
Examiner, we sustain appealed rejections I-V.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( 1 )(iv).
AFFIRMED
10