Ex Parte Birk

Board of Patent Appeals and Interferences

Sep 4, 2008

10297767 (B.P.A.I. Sep. 4, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte UZI BIRK
____________

Appeal 2008-2870
Application 10/297,767
Technology Center 3600
____________

Decided: September 4, 2008
____________

Before TONI R. SCHEINER, DONALD E. ADAMS, and
LORA M. GREEN, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL

This appeal under 35 U.S.C. § 134 involves claims 1-19, the only
claims pending in this application. We have jurisdiction under 35 U.S.C.
§ 6(b).

Appeal 2008-2870
Application 10/297,767

INTRODUCTION
The claims are directed to a method (claims 1, 2-8, 10, and 12-14) or
device (claims 9, 11, and 15-19) for detecting a deviating behavior of a
milking animal during a milking procedure in an automatic milking system.
Claims 1 and 9 are illustrative:
1. A method for detecting a deviating behavior of a milking animal
during milking procedure in an automatic milking system, said system
comprising an automatic positioning device using a process for positioning
animal related means and said milking procedure comprises at least one
sequence of movements of the animal related means for performing said
process, said method comprising the steps of:
- obtaining an identity of said animal,
- retrieving information related to said animal from a memory in a
computer, said information comprising at least one reference value derived
from at least one sequence of movements in which the automatic positioning
device was positioned relative to teats of the milking animal during a
previous milking procedure,
wherein said method further comprises the steps of:
- registering at least one value, related directly to an actual number of
movements of the automatic positioning device when positioning said
automatic positioning device in relation to the teats of the milking animal,
from said at least one sequence of movements of the present milking
procedure,
- comparing each reference value with each registered value in an
analyzing means in said computer, and
- issuing a warning signal from said computer if any of said registered
values corresponding to said movements of the animal related means
deviates from a corresponding reference value for moving the animal related
means by more than a predetermined deviation value,
- whereby the process for positioning the animal related means is used
for determining if the milking animal deviates from a normal behavior.

9. A device for detecting a deviating behavior of a milking animal
during a milking procedure in an automatic milking system, said system
comprising:
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- an automatic positioning device using a process for positioning
animal related means, and said milking procedure comprises at least one
sequence of movements of the animal related means for performing said
process,
- means for identifying said animal, and
- means to retrieve information related to said animal from a memory
in a computer, said information comprising at least one reference value
derived from at least one sequence of movements in which the automatic
positioning device was positioned relative to teats of the milking animal
during a previous milking procedure, wherein said device further comprises:
- means to register at least one value, related directly to an actual
number of movements of the automatic positioning device when positioning
said automatic positioning device in relation to the teats of the milking
animal, from said at least one sequence of movements of the present milking
procedure,
- means to compare each reference value with each registered value in
an analyzing means in said computer, and
- means to issue a warning signal from said computer if any of said
registered values registering corresponding to any of said movements of the
animal related means deviates from a corresponding reference value for
moving the animal related means by more than a predetermined deviation
value,
whereby the device for positioning the animal related means is used
for determining if the milking animal deviates from a normal behavior.

The Examiner relies on the following prior art references to show
unpatentability:
Oosterling US 5,832,868 Nov. 10, 1998
Hansson US 5,979,359 Nov. 9, 1999

The rejections as presented by the Examiner are as follows:
1. Claims 1, 2, 6-9, and 15 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Oosterling.
2. Claims 3-5, 10-13, and 16-18 stand rejected under 35 U.S.C § 103(a) as
unpatentable over Oosterling.
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3. Claims 14 and 19 stand rejected under 35 U.S.C § 103(a) as unpatentable
over the combination of Oosterling and Hansson.
We affirm.
FINDINGS OF FACT (FF)
1. Oosterling teaches “[a] method and a device for surveying animal
functions by means of an animal manipulating apparatus such as a milking
device” (Oosterling, Abstract).
2. For clarity, we reproduce Oosterling’s figure below:

“The FIGURE shows schematically the-control of . . . [Oosterling’s]
system” (Oosterling, col. 2, ll. 14-15).
3. The components of Oosterling’s system:
[C]an consist among others of the mechanically movable guide
means, such as fences 11, the identification system 12, the
feeding system 13, the placing system 14 and the milking
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system 15 arranged in these systems are sensors which check
the operation of each system, in particular whether the control
signals have the desired result.

(Oosterling, col. 2, ll. 21-26.)

4. Oosterling teaches that “[a]ssociated with each of these systems is a
control system 1 to 5, wherein in the feed-back system 1a to 5a the signal
processing of the operation of the sensors checking and controlling the
system takes place” (Oosterling, col. 2, ll. 27-29).
5. Oosterling teaches that “[t]he behaviour of the cow is detected with the
sensors 10, the data from which is processed as sensor information in the
control systems of the diverse components. This sensor information is
moreover passed on to the central control system 6” (Oosterling, col. 2, ll.
33-37).
6. Oosterling teaches that “[i]n the central control system the different
sensor data is combined . . . [a] comparison is made as to whether the
functions correspond with the preprogrammed pattern of the relevant animal
and with that which can be expected in the occurring situation” (Oosterling,
col. 2, ll. 38-45).
7. Oosterling teaches that “[s]hould non-function or erroneous function be
detected, the control system then establishes that the supervisor must be
warned . . . [u]sing the paging system 8 . . . the supervisor is warned and
informed of the steps taken and the urgency of the message” (Oosterling,
col. 2, ll. 45-53).
8. Hansson teaches “a method and a device in animal breeding for
recording information on individual animals and/or collectives of animals
which are within a defined area of residence” (Hansson, Abstract).
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9. Hansson exemplifies the use of the method and device for “the milking
of cows and the automatic application of teat cups” (Hansson, col. 8, ll. 56-
57).
10. For clarity, we reproduce Hansson’s figures 1 and 2 below:

“FIG. 1 shows a fundamental arrangement at a milking station according to a
first exemplified embodiment of the invention, FIG. 2 shows parts of a
technical installation at a milking station according to the invention”
(Hansson, col 8, ll. 26-30).
11. Hansson describes:
[A] cow 1 . . . standing in a milking and/or foddering station
formed as a stall. . . . The rear part of the stall can be closed by
an automatically vertically adjustable gate means 4, which in
the lowered position as shown prevents the cow from moving
backwards out of the stall. The gate means 4 is operated by a
sensor . . . which is arranged in the stall and senses the cow’s
entering the stall. . . . [T]wo video cameras A and B, which are
arranged in the same horizontal plane in a certain spaced-apart
relationship and which are directed to record image information
from the cow’s udder and teats 5. Schematically shown teat
cups 6 can be applied to the teats by means of a controllable
robot arm 7.

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(Hansson, col 8, l. 63 to col. 9, l. 11.)
12. According to Hansson:
The procedure is essentially as follows. When the cow 1
is correctly positioned in the stall, said sensor senses this and
releases the lowering of the gate means 4. The video cameras
A and B record image information from the teats 5, and
information on the positions of the teats are prepared from the
image information. This information is used for controlling the
robot arm 7 and applying the teat cups 6.

(Hansson, col. 9, ll. 12-18.)

13. According to Hansson while
the described embodiment is directed to the use of two video
cameras . . . it is also possible within the scope of the invention
to use a single video camera for “roughly locating” an animal or
a teat in the vertical and the horizontal direction by using the
described image analysing technique, and then “finely locating”
the object of interest also in depth by means of other
equipment, for instance, a laser which generates on the object of
interest a measure-indicating laser line, which can be detected
with the aid of the same video camera.

(Hansson, col. 14, ll. 29-38.)

DISCUSSION
Claims 1, 2, 6-9, and 15 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Oosterling. Appellant groups claims 1, 2, 6-9, and 15
together (App. Br. 11). Accordingly, we limit our discussion to claim 1.
37 C.F.R. § 41.37(c)(1)(vii).
The Examiner finds that Oosterling anticipates the claimed invention
(Ans. 3; Fin. Rej. 2-4).
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Appellant disagrees. According to Appellant Oosterling “merely
discloses a device by which movements of an animal are detected using
dedicated sensors 10” (App. Br. 14). Appellant asserts that “claim 1 of the
present invention recites ‘registering at least one value . . . related directly to
an actual number of movements of the automatic positioning device . . .
when positioning said automatic positioning device . . . in relation to the
teats . . . of the milking animal.’” (App. Br. 15-16.) Accordingly, Appellant
asserts that “the automatic positioning device . . . of the present invention . . .
performs both the function of 1.) detecting the number of movements of the
positioning device . . . , and 2.) positioning the positioning device . . . in
relation to the teats” (App. Br. 16). In contrast, Appellant asserts that
“Oosterling does not explicitly teach that any component of th[e disclosed]
device performs both of the functions of the automatic positioning device . .
., as set forth in the claims of the present invention” (id.). We are not
persuaded.
Oosterling discloses that “[i]t may also occur that an animal is
particularly restless. . . . The system detects this by the high frequency of
the movements, for instance during arranging of the milking cluster and/or
the movements of a leg” (Oosterling, col. 3, ll. 26-30). According to the
Examiner “Col. 3, lines 28-30 [of Oosterling] clearly states that the
frequency of movements can be determined by the arrangement of milking
cluster movement and/or the animal (or animal leg)” (Ans. 4).
No doubt, Oosterling teaches that the device can monitor any number
of movements of the animal (FF 2-7). Among the movements that the
device can monitor are the high frequency of movements during the
positioning/arrangement of the milking cluster (Oosterling, col. 3, ll. 26-30).
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Appellant’s claim 1 requires a method that “further comprises” the steps of
“registering at least one value, related directly to an actual number of
movements of the automatic positioning device when positioning said
automatic positioning device in relation to the teats of the milking animal,
from said at least one sequence of movements of the present milking
procedure” (Claim 1). Oosterling’s device does this by detecting “the high
frequency of the movements, for instance during arranging of the milking
cluster”; e.g. the automatic positioning device (Oosterling, col. 3, ll. 27-29).
While, Oosterling’s device may detect other movements, e.g., the movement
of a leg; Appellant’s claim does not exclude the detection of other
movements of the animal in addition to the movement of the automatic
positioning device in relation to the teats of the milking animal.
Accordingly, we are not persuaded by Appellant’s assertion that
“Oosterling lacks any specific teaching that ‘high frequency of movements’
refers to movements of the milking cluster” (Reply Br. 3). We are also not
persuaded by Appellant’s assertion that “one advantage of the present
invention is that separate sensors (sensors 10 as taught by Oosterling) are not
needed, and that according to the present invention the registering [of] the
number of the movements of the automatic positioning device . . . may be
used instead” (App. Br. 17). This is not consistent with the requirements of
Appellant’s claimed invention which uses the open transitional term
“comprises” or “comprising” and therefore may include sensors that detect a
variety of the animals’ movements.
We are also not persuaded by Appellant’s assertion that “Oosterling
lacks any teaching of registering at least one value related to an actual
number of movements of an automatic positioning device” (Reply Br. 3).
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Oosterling’s system detects “the high frequency of the movements, for
instance during arranging of the milking cluster and/or the movements of a
leg” (Oosterling, col. 3, ll. 26-30). Absent evidence to the contrary, of
which there is none; we interpret this teaching in Oosterling to include the
registering of at least one value related to an actual number of movements of
an automatic positioning device.
Appellant asserts that Oosterling’s disclosure of the detection of high
frequency movements during the arrangement of the milking cluster does
not refer “to movements of the milking cluster” (Reply Br. 3). No doubt
Oosterling’s device is capable of detecting a variety of movements, e.g., the
movement of the animals’ leg. Nevertheless, Oosterling distinguishes
between movement during the arrangement of the milking cluster and the
movement of a leg (see Oosterling, col. 3, ll. 26-30). Accordingly, absent
evidence to the contrary, of which there is none; we are not persuaded by
Appellant’s argument.
We are also not persuaded by Appellant’s assertion that “nowhere in
Oosterling is there any evidence of registering a value related to an actual
number of movements of an automatic positioning device” (Reply Br. 4).
Claim 1 comprises the registering of at least one value, related directly to an
actual number of movements of the automatic positioning device when
positioning said automatic position device. Oosterling teaches that “[i]n the
central control system the different sensor data is combined . . . [a]
comparison is made as to whether the functions correspond with the
preprogrammed pattern of the relevant animal and with that which can be
expected in the occurring situation” (FF 6). There is no evidence on this
record to suggestion that Oosterling’s central control system does not
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register at least one value that is related directly to an actual number of
movements of the automatic positioning device.
For the foregoing reasons we disagree with Appellant’s assertion that
claim 1 is “in condition for allowance” (App. Br. 17).
Accordingly we affirm the rejection of claim 1 under 35 U.S.C.
§ 102(b) as being anticipated by Oosterling. Claims 2, 6-9, and 15 fall
together with claim 1.

2. Claims 3-5, 10-13, and 16-18 stand rejected under 35 U.S.C § 103(a) as
unpatentable over Oosterling. Appellant argues the claims as a single group
(App. Br. 18). Accordingly, we limit our discussion to claim 12. 37 C.F.R.
§ 41.37(c)(1)(vii).
Claim 12 depends from and further limits claim 1 to further require
the step of: after the automatic positioning device establishes the position of
the teats, the automatic positioning device tries to apply the animal related
means to the teats. According to the Examiner this process is obvious in
view of the teachings of Oosterling (Ans. 5; FF 1-3). We find no error in the
Examiner’s prima facie case of obviousness.
We are not persuaded by Appellant’s assertion that “Oosterling
provides no suggestion whatsoever about a procedure to position the
automatic positioning device” (App. Br. 19). See FF 1-3, particularly,
Oosterling’s teaching of placing system 14 and milking system 15.
Accordingly, we affirm the rejection of claim 12 under 35 U.S.C
§ 103(a) as unpatentable over Oosterling. Claims 3-5, 10, 11, 13, and 16-18
fall together with claim 12.

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3. Claims 14 and 19 stand rejected under 35 U.S.C § 103(a) as unpatentable
over the combination of Oosterling and Hansson. Appellant groups claims
14 and 19 together (App. Br. 19). Accordingly, we limit our discussion to
claim 14. 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner finds that Appellant’s claimed invention is prima facie
obvious in view of the combination of references relied upon.
According to Appellants “dependent claim[ ] 14 . . . is in condition for
allowance due to its dependence on an allowable independent claim, or due
to the additional novel features set forth therein” (App. Br. 19). For the
reasons set forth above, we disagree with Appellant’s assertion that the
independent claims are allowable. Further Appellant has failed to identify
any novel feature of claim 14 not taught by the combination of Oosterling
and Hansson. Accordingly, we affirm the rejection of claim 14 under 35
U.S.C § 103(a) as unpatentable over the combination of Oosterling and
Hansson. Claim 19 falls together with claim 14.

CONCLUSION
In summary, we affirm the rejections of record.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CFR § 1.136(a).

AFFIRMED

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