13158749 (P.T.A.B. Mar. 29, 2017)

Ex Parte Ruckart

Patent Trial and Appeal BoardMar 29, 2017

13158749 (P.T.A.B. Mar. 29, 2017)

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. 13/158,749 06/13/2011 John P. Ruckart PT-10-70 1075 71949 7590 03/30/2017 CROSE LAW LLC 112 NORTHBROOKE TRACE WOODSTOCK, GA 30188 EXAMINER BROWN, COURTNEY A ART UNIT PAPER NUMBER 1617 MAIL DATE DELIVERY MODE 03/30/2017 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 JOHN P. RUCHART __________ Appeal 2016-001415 Application 13/158,749 Technology Center 1600 __________ Before DEMETRA J. MILLS, ELIZABETH A. LAVIER, and RYAN H. FLAX, Administrative Patent Judges. MILLS, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134. The Examiner has rejected the claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2016-001415 Application 13/158,749 2 STATEMENT OF CASE According to the Specification, “the technology described herein provides an application apparatus having adhesive compositions and controlled release compositions and associated methods for applying treatments such as pesticides, herbicides, and fertilizers, to target plants.” ¶5. “[T]he substrate of the treatment release device is a tape adapted to be dispensed from a dispenser and applied to a target plant for treatment. ¶8. The following claim (emphasis added) is representative. 1. A treatment release device adapted to release a pesticide, herbicide, fertilizer for adhesion to and treatment of a target plant, the release device comprising: a hand-held tape reel dispenser having a hand grip; an elongated tape roll substrate configured to be dispensed from the dispenser and applied to a target plant for topical treatment; and a quantity of media configured to contain a controlled release composition disposed longitudinally upon the substrate and configured to release the controlled release composition topically to the target plant for treatment. Ground of Rejection Claims 1–6, 9, 10, and 13–18 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Itzel in view of Billings. Cited References Billings US 5,165,351 Nov. 24, 1992 Itzel US 5,343,653 Sep. 6, 1994 Appeal 2016-001415 Application 13/158,749 3 FINDINGS OF FACT The Examiner’s findings of fact are set forth in the Final Action at pages 3–16. PRINCIPLES OF LAW In making our determination, we apply the preponderance of the evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Office). “The 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). Moreover, “obviousness requires a suggestion of all limitations in a claim.” CFMT, Inc. v. Yieldup Int’l Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003) (citing In re Royka, 490 F.2d 981, 985 (CCPA 1974)). Obviousness Rejection The Examiner finds that Itzel et al. teach a device for the transcuticular application of systemic active substances to plants in the form of an active substance carrier which stores the active substance, one surface of the active substance carrier being constructed as a layer for coming into contact with the plant surface, through which the active substance is released onto the plant (see column 2, lines 14-21). Suitable carrier materials are those which are capable of storing the active substance in dissolved, suspended or solid form, such as paper, textile fibers, inorganic porous materials such as silicates or carbonates, optionally mixed with binders, or poisoners. Itzel et al. teach that the active substance carrier comprises means for attachment to the plant. These may be mechanical fasteners, for instance in the form of clips or bandages, or adhesive means, the adhesive fastening means being Appeal 2016-001415 Application 13/158,749 4 preferred because of the ease of application (see column 2, lines 31– 40). Final Act. 5. The Examiner finds that both Itzel and Billings are directed to devices using tape as a means to apply an agrochemical to a plant. Ans. 4. Appellant contends that neither Itzel et al. nor Billings, or the combined Itzel et al. and Billings, disclose or teach a hand-held tape reel dispenser having a hand grip. Examiner has not shown how the combination of Itzel et al. and Billings teaches a handheld tape reel dispenser having a hand grip. Thus, these structural limitations are not taught by any combination of Itzel et al. and Billings. For example, neither individually or combined teaches a hand-held tape reel dispenser. Additionally, neither individually or combined teaches a hand grip for a hand-held dispenser. Br. 6. ANALYSIS We find that the Examiner has not provided sufficient evidence to support a prima facie case of obviousness. The Examiner failed to provide a reference indicating that a hand-held tape reel dispenser having a hand grip was known in the art at the time of the invention.* Obviousness requires a suggestion of all limitations in a claim. CFMT, 349 F.3d at 1342. This Board serves as a board of review, not an examination board. See, 37 C.F.R. §§ 41.35(b)(2) and 41.50. Thus we are constrained to reverse this rejection as the Examiner has not provided evidence in the prior art of each and every claim element. * Upon return of the application to the Examiner, it is recommended that the Examiner search for a “hand-held tape reel dispenser having a hand grip” and consider whether an additional rejection is appropriate. Appeal 2016-001415 Application 13/158,749 5 CONCLUSION OF LAW The cited references do not support the Examiner’s obviousness rejection. The obviousness rejection is reversed. REVERSED