Deere & Company

Patent Trials and Appeals Board

Apr 1, 2022

2021005560 (P.T.A.B. Apr. 1, 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. 15/888,882 02/05/2018 Elijah B. Garner 208065-9146-US02 1004 132636 7590 04/01/2022 MICHAEL BEST & FRIEDRICH LLP (JOHN DEERE) 790 N WATER ST SUITE 2500 MILWAUKEE, WI 53202 EXAMINER MCGOWAN, JAMIE LOUISE ART UNIT PAPER NUMBER 3671 NOTIFICATION DATE DELIVERY MODE 04/01/2022 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 ELIJAH B. GARNER, STANLEY R. BORKGREN, CARY S. HUBNER, BETH A. WOLFS, MICHAEL E. FRASIER, JOSEPH W. MIGLIORINI, KRISS HELMICK, KEITH L. FELTON, and KAMALAKANNAN NATARAJAN Appeal 2021-005560 Application 15/888,882 Technology Center 3600 Before STEFAN STAICOVICI, BENJAMIN D. M. WOOD, and MICHAEL L. WOODS, Administrative Patent Judges. WOOD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-22. Claims 5 and 6 are indicated as being allowable if rewritten in independent form. Non-Final Act. 8. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to the “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Deere & Company. Appeal Br. 2. Appeal 2021-005560 Application 15/888,882 2 CLAIMED SUBJECT MATTER The claims are directed to a seeding machine row unit comprising a seed meter member, a conveyor, and a pneumatic seed displacer, the pneumatic seed displacer directing seeds from the metering member to the conveyor, which subsequently directs the seeds to the soil. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A row unit for a seeding machine, the row unit comprising: a seed reservoir; a seed meter assembly including a metering member having a seed side facing the seed reservoir and a non-seed side opposite the seed side, the metering member operable to selectively move seeds from the seed reservoir, and a pump providing a pressure differential between the seed side and the non-seed side for adhering the seeds to the metering member; a conveyor having an inlet for receiving the seeds and an outlet configured to discharge the seeds from the seeding machine, wherein the conveyor includes a belt movable from the inlet to the outlet; and a pneumatic seed displacer including a nozzle for concentrating air, wherein the nozzle is disposed adjacent the metering member, and wherein the nozzle is configured to eject the air towards the metering member for directing the seeds from the metering member to the conveyor. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Bristow US 1,331,235 Feb. 17, 1920 Maury US 4,399,757 Aug. 23, 1983 Sauder US 6,681,706 B2 Jan. 27, 2004 Garner US 8,869,719 B2 Oct. 28, 2014 Appeal 2021-005560 Application 15/888,882 3 REJECTIONS Claims Rejected 35 U.S.C. § References 1-22 Double Patenting US Appl. 15/888,868 1-22 Double Patenting US Appl. 15/888,912 1-4, 7-10, 14-21 103 Bristow, Garner2 11 103 Bristow, Garner, Sauder 12, 13 103 Bristow, Garner, Maury OPINION Rejections of Claims 1-22 on the Ground of Nonstatutory Double Patenting over U.S. Appl. No. 15/888,868 and U.S. Appl. No. 15/888,912 Appellant does not respond to the Examiner’s provisional rejections of claims 1-22 on the ground of nonstatutory double patenting over: (1) claims 1-19 of U.S. Appl. No. 15/888,868; and (2) claims 1-20 of U.S. Appl. No. 15/888,912.3 Accordingly, these rejections are summarily sustained. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an appellant fails to present arguments on a particular issue-or, more broadly, on a particular rejection-the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection”); Manual of Patent Examining Procedure § 1205.02 (9th ed., Rev. 10, June 2020) (“If a ground of rejection stated by the examiner is not addressed in the appellant’s brief, appellant has waived any challenge to that 2 In the heading of the paragraph discussing this rejection, the Examiner also lists “Official Notice.” Final Act. 4. However, the Examiner does not appear to rely on any Official Notice to support the rejection. Id. at 4-7. Therefore, we consider the inclusion of “Official Notice” in the heading to be a typographical error. 3 U.S. Appl. No. 15/888,868 will issue as U.S. Pat. No. 11,297,762, and U.S. Appl. No. 15/888,912 has issued as U.S. Pat. No. 10,820,489. Appeal 2021-005560 Application 15/888,882 4 ground of rejection and the Board may summarily sustain it, unless the examiner subsequently withdrew the rejection in the examiner’s answer.”). Claims 1-4, 7-10, and 14-21-§ 103-Bristow and Garner Appellant argues the claims subject to this rejection as a group. Appeal Br. 6-11. We select independent claim 1 as representative of the group, and decide the appeal of claims 1-4, 7-10, and 14-21 on the basis of claim 1 alone. 37 C.F.R. § 41.37(c)(1)(iv). The Examiner finds that Bristow teaches a row unit for a seeding machine comprising the seed reservoir, seed meter assembly, and pneumatic seed displacer recited in claim 1. Non-Final Act. 4-5 (citing Bristow 2:19- 22, 80-105); see Bristow Figs. 2, 3. The Examiner acknowledges that Bristow does not teach the belted conveyer of claim 1, but finds such teaching in Garner. Final Act. 5. The Examiner finds that Garner, like Bristow, “discloses a seed metering device that utilizes suction to maintain seeds on orifices of a seed meter,” and further discloses “the use of a belted conveyer (424, 426) for transporting seeds from the inlet at the seed meter to the outlet at a release point.” Id.; see Garner Fig. 10. The Examiner determines that it would have been obvious to one of ordinary skill in the art to use Garner’s belted conveyer with Bristow’s device “to enable consistent predictable release of seeds from the outlet of the seed since the bristles on the belt would regulate release of seeds since a gravity release as taught by Bristow is less predictable due to varying size/shape/moisture content of individual seeds.” Final Act. 5. In response, Appellant identifies what it refers to as a “significant difference” between Bristow’s and Garner’s devices: In Garner’s device the seed release position on the metering member is within the vacuum Appeal 2021-005560 Application 15/888,882 5 chamber, such that the seeds are still being held by vacuum in apertures 114 of Garner’s metering member 100 when the seed is released from the metering member to Garner’s “brush belt” (belted conveyor). Appeal Br. 8. In other words, “‘the brush belt . . . [is] working in opposition to the vacuum applied to the apertures 114 to release the seed from the metering member.’” Id. (quoting Garner 7:6-10 (alterations made by Appellant)). In contrast, Appellant asserts that in Bristow’s device “air pressure will be substituted for suction” at the seed release position of the metering member and “the seeds [are] blown from the perforations 28 [of the metering member] into the chute 30.” Id. at 9 (citing Bristow Fig. 3). Appellant submits that “without the vacuum chamber at the point of release, seed will not remain in position to be swept by the brush.” Id. at 10. Thus, according to Appellant, because Bristow “teaches that not only is vacuum absent at the release position, but air pressure will blow seeds from their seating at the release position,” the “use of a brush belt with the system of Bristow would absolutely change the principle of operation of Bristow (or change the operation of Garner) and lead to a less predictable operational outcome.” Id. If, as Appellant’s argument assumes, the combined device would incorporate Garner’s seed metering device rather than Bristow’s metering device, this argument might have merit. However, the combination as articulated by the Examiner uses Bristow’s seed metering device, not Garner’s. Final Act. 5. The proposed modification is limited to the replacement of Bristow’s chute 30 and tube 10 with Garner’s belt conveyor. Id.; Ans. 8. Thus, this argument is not persuasive of Examiner error because it does not respond to the rejection as articulated by the Examiner. Appellant also argues that: Appeal 2021-005560 Application 15/888,882 6 [T]he Examiner believes that the disclosed ‘gravity’ release as taught by Bristow is less predictable due to varying size/shape/moisture content of individual seeds. Office Action 5. This position, however, is speculation at best and counter to the express disclosure of Bristow, as the perforations 28 are “of suitable size to permit of the seed lodging against their orifices upon the outer or front face of the plate without any tendency to enter such holes and so become jammed.” Appeal Br. 10 (quoting Bristow 2:60-65). This argument is also not persuasive. In both Bristow and Garner, seeds are delivered from a seed hopper to the soil in essentially two steps. First, the seeds are picked up from the hopper by a rotating perforated device-e.g., Bristow’s rotating disk 27 with perforations 28, or Garner’s metering member 100 with apertures 114-the lower part of which travels through the seed hopper, the seeds attaching to the lower part of the rotating device and being carried to the upper part of the device to a release position. Bristow 2:55-92, Figs. 2-5; Garner 5:3-25, Figs. 9, 10. Second, the seeds are transported from the release position of the rotating device to the soil- by way of Bristow’s chute 30 and tube 10, or Garner’s seed delivery system/belted conveyor 400. Bristow 2:73-102, Fig. 5; Garner 5:55-6:9, 8:37-51, Fig. 10. The proposed modification would replace the structure that Bristow uses for the second step-chute 30 and tube 10-with the structure that Garner uses for the second step-seed delivery system 400, e.g., a belted conveyor. Final Act. 5. Appellant’s contention above, concerning the speculative nature of the Examiner’s finding that Bristow’s second-step structure is less predictable than Garner’s second-step structure, misses the mark, because it discusses the structure that Bristow uses to carry out the first step (perforated disk 27), not the second step (chute 30/tube 10). Appeal 2021-005560 Application 15/888,882 7 That perforations 28 are suitable for predictably delivering seeds to chute 30 does not mean that the seeds would just as predictably be delivered from chute 30 to the soil. Moreover, the record supports the Examiner’s finding that Garner’s seed delivery system/belted conveyor would be a more predictable means of delivering seed to the soil, in the sense that seeds would be more evenly spaced when planted. For example, Garner teaches that seed “is captured or trapped in the bristles 428” of belt 424, thus “control[ing] the movement of seed from the seed meter to the discharge location . . . at all times from the upper opening to the lower opening.” Garner 8:37-51. In Bristow’s system, on the other hand, seed leaving rotating disk 27 simply falls through chute 30 and tube 10 to the soil. Bristow 2:73-102, Fig. 5. For the above reasons, we are not persuaded that the Examiner erred in rejecting claim 1. Accordingly, we sustain the Examiner’s rejection of claims 1-4, 7-10, and 14-21 as unpatentable over Bristow and Garner. Remaining Rejections Appellant does not separately argue the patentability of claims 11, 12, and 13, but relies on arguments made in support of the patentability of claim 1, from which claims 11, 12, and 13 ultimately depend. Appeal Br. 11-12. For the above reasons, we found Appellant’s arguments unpersuasive. Therefore, we sustain the Examiner’s rejection of claim 11 as unpatentable over Bristow, Garner, and Sauder, and of claims 12 and 13 as unpatentable over Bristow, Garner, and Maury. Appeal 2021-005560 Application 15/888,882 8 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-22 Nonstatutory Double Patenting US Appl. 15/888,868 1-22 1-22 Nonstatutory Double Patenting US Appl. 15/888,912 1-22 1-4, 7-10, 14-21 103 1-4, 7-10, 14-21 1-4, 7-10, 14-21 11 103 11 11 12, 13 103 12, 13 12, 13 Overall Outcome 1-22 TIME PERIOD FOR RESPONSE 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