Deere & Company

Patent Trials and Appeals Board

Jan 18, 2022

2021003829 (P.T.A.B. Jan. 18, 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. 14/711,840 05/14/2015 MATTHEW DAVID ARNOLD 208065-9148-US01 2244 132636 7590 01/18/2022 MICHAEL BEST & FRIEDRICH LLP (JOHN DEERE) 790 N WATER ST SUITE 2500 MILWAUKEE, WI 53202 EXAMINER GREENLUND, JOSEPH A ART UNIT PAPER NUMBER 3752 NOTIFICATION DATE DELIVERY MODE 01/18/2022 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 MATTHEW DAVID ARNOLD, WILLIAM DOUGLAS GRAHAM, and MICHAEL EUGENE FRASIER ____________ Appeal 2021-003829 Application 14/711,840 Technology Center 3700 ____________ Before STEFAN STAICOVICI, EDWARD A. BROWN, and CHARLES N. GREENHUT, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE. Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision in the Final Office Action (dated July 15, 2020, hereinafter “Final Act.”) rejecting claims 1-19 under 35 U.S.C. § 103 as being unpatentable 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Deere & Company is identified as the real party in interest in Appellant’s Appeal Brief (filed Feb. 16, 2021, hereinafter “Appeal Br.”). Appeal Br. 2. Appeal 2021-003829 Application 14/711,840 2 over Snipes2 and Kunz.3,4 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM. INVENTION Appellant’s invention is directed “to a product distribution device, such as an agricultural air seeder.” Spec. 1, ll. 5-6. Claims 1, 8, and 14 are independent. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A product distribution device comprising: a container for holding a product to be distributed; a meter assembly for controlling discharge of product from the container; a product flow passage through which product flows downstream of the meter; a flow control system having a control member movable between an open position and a closed position, in the open position the control member allowing flow of product through the product flow passage and in the closed position the control member stopping flow of product through the product flow passage, the control member comprising a shut-off gate; a position sensor to directly sense the control member position of the shut-off gate; 2 Snipes et al., US 2010/0307394 Al, published Dec. 9, 2010. 3 Kunz et al., US 2007/0034264 Al, published Feb. 15, 2007. 4 Claim 20 is objected to by the Examiner as being dependent upon a rejected base claim and otherwise indicated as being allowable if rewritten in independent form including all of the limitations of the base claim. Final Act. 9. Claim 20 is not part of the instant appeal. Appeal 2021-003829 Application 14/711,840 3 an enclosure to isolate the position sensor from the product; and a controller coupled to the flow control system to send signals to the flow control system to command an open or closed position of the control member, the controller further coupled to the position sensor to receive signals from the position sensor indicating the position of the control member, the controller comparing the sensed control member position with the commanded control member position and alerting an operator when the commanded control member and the sensed control member position are inconsistent. Appeal Br. 15 (Claims App.). ANALYSIS Claims 1-7 The Examiner finds that Snipes discloses a product distribution device including, inter alia, control member 100, 104 having shut-off gate 104 movable between open and closed positions for controlling product flow. See Final Act. 2-3 (citing Snipes, Figs. 1-3). However, the Examiner finds that Snipes fails to disclose “a position sensor to directly sense the control member position of the shut-off gate,” as recited by independent claim 1. Id. at 3. Nonetheless, the Examiner finds that Kunz “discloses a sensor which detects the rotational position of a valve (sensing how much a valve has rotated) to determine if a valve has opened or closed based off of the use of a non-contact sensor.” Id. (citing Kunz, Abstract, paras. 1, 9, 49, and 52-55). Thus, the Examiner concludes that it would have been obvious for a person of ordinary skill in the art “to utilize a valve position sensor of Kunz into the system of Snipes, allowing the valve element [of Snipes] to be monitored properly to indicate that the correct valve movement has occurred, and thus Appeal 2021-003829 Application 14/711,840 4 being able to sense a valve failure.” Id. The Examiner further determines that employing Kunz’s valve position sensor would be ideal in a system such as Snipes where various materials are applied that could cause the valve [100] to be stuck in an open position or closed position due to unwanted clogging, as well as assist in any unforeseen valve malfunctions which would apply material undesirably to an area, or not apply material to an area when desired.” Id. In response, Appellant argues that “Kunz does not teach or suggest a position sensor to directly sense the control member position of the shut-off gate.” Appeal Br. 9. According to Appellant, as “sensor (14) of Kunz measures a change in a direction of the magnetic flux of magnets (15),” Kunz “teaches that a position sensor indirectly senses the position of the . . . component used for blocking fluid flow inside the process valve (32) via a plurality of intermediate components.” Id. at 10. Appellant notes that paragraph 24 of the published Specification defines “directly” sensing of the control member as “the position of the control member itself is sensed, not the position of the actuator or linkage connected between the control member and the actuator.” See Spec. 6, ll. 14-16 (emphasis added).5 We are not persuaded by Appellant’s arguments because “[n]onobviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references. [Each reference] must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole.” See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). In this 5 We refer to the Specification filed by Appellant on May 14, 2015. Appeal 2021-003829 Application 14/711,840 5 case, Snipes discloses a product distribution device having a rotating valve 100 (shut-off gate). See Snipes, Figs. 6, 7. Kunz discloses a sensor system for monitoring the rotational position of a rotating unit 5 employing non- contact sensor 14 and magnets 15 located on rotating unit 5, such that a change in direction of magnetic flux 16 passing through non-contact sensor 14 is sensed when rotating unit 5 rotates. See Kunz, Abstract, paras. 48, 51, 53 (“sensor 14 can also be used to detect various amounts of rotation of the rotating unit 5 through a continuous range.”), Figs. 5b, 5c. In particular, Kunz discloses that “sensor 14 can also be used to detect various amounts of rotation of the rotating unit 5.” Id. at para. 53 (emphasis added). Accordingly, the Examiner is correct that according to the combined teachings of Snipes and Kunz, rotational sensor system 14, 15 of Kunz would have been incorporated into Snipes’s product distribution device to monitor the rotational position of valve 100 (shut-off gate). See Examiner’s Answer (dated Mar. 30, 2021, hereinafter “Ans.”) 4. Although we appreciate that Kunz’s non-contact sensor 14 senses a change in direction of magnetic flux 16 between rotating magnets 15, as Appellant contends (see Appeal Br. 10), nonetheless, we agree with the Examiner that “the combination [of Snipes and Kunz] would sense the direct movement of the valve [100], as only . . . valve [100] is rotating.” Ans. 4-5 (emphasis added). Stated differently, because the rotational position of Snipes’s valve 100 (shut-off gate) itself would be sensed by Kunz’s sensor system 14, 15, the combination of Snipes and Kunz yields a sensor system 14, 15 “to directly sense the . . . position of the shut-off gate” 100, as called for by independent claim 1. Appeal 2021-003829 Application 14/711,840 6 As such, the Examiner’s modification is an improvement to Snipes’s product distribution device to include a position sensor, in the same way as taught by Kunz, to lead to a predictable result, namely, “to indicate that the correct valve movement has occurred, and thus . . . [to be] able to sense a valve failure.” Final Act. 3. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (“[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.”). Moreover, the Examiner’s reasoning comports with the Federal Circuit’s recognition of “[t]he normal desire of artisans to improve upon what is already generally known.” In re Ethicon, Inc., 844 F.3d 1344, 1351 (Fed. Cir. 2017). Lastly, we are not persuaded by Appellant’s arguments that a skilled artisan would not consider Kunz’s senor 14 to be a “rotational sensor” or that the Examiner’s combination is “ineffective and inoperable.” Reply Brief (filed June 1, 2021, hereinafter “Reply Br.”) 2. Such arguments amount to empty rhetoric untethered to any evidence or technical reasoning. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (explaining that attorney argument and conclusory statements that are unsupported by factual evidence are entitled to little probative value). Moreover, as noted above, as Kunz’s sensor 14 can detect an amount of rotation of a rotating unit (see Kunz, para. 53), it is not clear why a skilled artisan would not reasonably describe Kunz’s sensor 14 as a “rotational sensor.” In conclusion, for the foregoing reasons, we sustain the rejection under 35 U.S.C. § 103 of independent claim 1 as unpatentable over Snipes and Kunz. Appeal 2021-003829 Application 14/711,840 7 Appellant does not separately argue claims 2-7, which depend from independent claim 1. See Appeal Br. 11 (“Dependent claims 2-7 are also rejected with independent claim 1 . . . for the same and other reasons.”). Accordingly, for the same reasons discussed above, we likewise sustain the rejection of claim 2-7 over the combined teachings of Snipes and Kunz. Claims 8-19 Appellant relies on the same unpersuasive arguments discussed supra in the rejection of independent claim 1. See Appeal Br. 13 (“All arguments relating to Kunz and Snipes provided herein with respect to claim 1 apply to claim 8.”), 14 (“The arguments relating to Kunz and Snipes provided herein with respect to claim 1 apply to claim 14.”). Therefore, for the same reasons discussed above, we sustain the rejection under 35 U.S.C. § 103 of independent claims 8 and 14 as unpatentable over Snipes and Kunz. Appellant does not separately argue claims 9-13 and 15-19, which depend from independent claims 8 and 14, respectively. See Appeal Br. 13 (“Dependent claims 9-13 are . . . believed to be allowable for the same and other reasons.”), 14 (“Dependent claims 15-19 are . . . believed to be allowable for the same and other reasons.”). Accordingly, for the same reasons discussed above, we likewise sustain the rejection of claim 9-13 and 15-19 over the combined teachings of Snipes and Kunz. Appeal 2021-003829 Application 14/711,840 8 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-19 103 Snipes, Kunz 1-19 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