Ex Parte Epp et al

Board of Patent Appeals and Interferences

Mar 14, 2011

11098617 (B.P.A.I. Mar. 14, 2011)

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.
11/098,617 04/05/2005 Richard J. Epp 83998-1702 ADB 9022
23529 7590 03/15/2011
ADE & COMPANY INC.
2157 Henderson Highway
WINNIPEG, MB R2G1P9
CANADA
EXAMINER
FOX, CHARLES A
ART UNIT PAPER NUMBER
3652
MAIL DATE DELIVERY MODE
03/15/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RICHARD J. EPP and DWAYNE S. EPP
____________

Appeal 2009-009175
Application 11/098,617
Technology Center 3600
____________

Before JOHN C. KERINS, MICHAEL W. O’NEILL, and
FRED A. SILVERBERG, Administrative Patent Judges.

O’NEILL, Administrative Patent Judge.

DECISION ON APPEAL1
STATEMENT OF THE CASE
Richard J. Epp and Dwayne S. Epp (Appellants) appeal under 35
U.S.C. § 134 from the Examiner’s decision rejecting:

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown in the PTOL-90A cover letter attached to this decision.

Appeal 2009-009175
Application 11/098,617

(1) claims 1-5 and 9-11 under 35 U.S.C.
§ 103(a) as unpatentable over Swanson (U.S.
Patent No. 4,619,577, issued Oct. 28, 1986) and
Epp (U.S. Patent Application Publication No.
2004/0213650 A1, published Oct. 28, 2004); and

(2) claims 6-8 under 35 U.S.C. § 103(a) as
unpatentable over Swanson, Epp, and Skromme
(U.S. Patent No. 3,239,279, issued Mar. 8, 1966).

We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.
The Invention
The claims on appeal relate to a sweep auger assembly for use in
storage bins for particulate material, such as grain.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A sweep auger assembly for use in a
storage bin for particulate material having a bin
floor and a generally cylindrical bin wall
upstanding from the floor and a discharge
apparatus for discharging material from a center of
the bin floor to an exterior location, the sweep
auger assembly comprising:
a sweep auger arranged to be pivotally
supported at an inner end of the sweep auger for
location adjacent the center of the bin so as to
extend therefrom across the floor to an outer end
for movement of the outer end of the sweep auger
about a periphery of the bin for sweeping
movement of the sweep auger over the floor;
a mounting member to be mounted at the
center of the bin for supporting the inner end of the
sweep auger;
the sweep auger including an auger shaft, an
auger flight mounted on the shaft, a motor for
driving rotation of the auger shaft about a
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Appeal 2009-009175
Application 11/098,617

longitudinal axis of the shaft, and a shroud for
partly surrounding the flight at least at the rear;
the shroud including two end plates at right
angles to the shaft each including a support for a
respective end of the shaft, including an inner end
plate and an outer end plate spaced radially
outwardly from the mounting member; and
a drive assembly for driving the sweep auger
in rotation around the mounting member, the drive
assembly comprising:
a hydraulic motor with a drive shaft thereon;
a wheel carried on the drive shaft of the
hydraulic motor so as to be driven in rotation by
the drive shaft in response to supply of hydraulic
fluid to the motor; and
a mounting assembly for mounting the
hydraulic motor on the sweep auger at the outer
end plate, the mounting assembly being arranged
to locate the wheel adjacent the outer end plate
with the shaft of the motor parallel to the auger
shaft and with the wheel in engagement with the
bin floor such that rotation of the wheel driven by
the drive shaft of the motor causes rotation of the
sweep auger around the bin.2

2 Claim 11 appears to be substantially identical to claim 1, except for the
recitation of a wherein clause in the last three lines thereof. In the Final
Office Action mailed Dec. 27, 2007, the Examiner objected to claim 11 for
containing duplicative subject matter. On Apr. 28, 2008, in response to the
Examiner’s objection, Appellants filed an amendment after final rejection
deleting the Examiner’s noted duplicative subject matter from the Oct. 17,
2007 version of claim 11 by deleting lines 35-38 thereof. However, in the
version of claim 11 in the Claims Appendix filed Jun. 30, 2008, duplicative
subject matter still remains. Line 28 duplicates of the subject matter in line
19 and lines 29-30 duplicate of the subject matter in lines 20-21. For the
purposes of this Appeal, we will construe claim 11 as if the duplicative
subject matter was not recited (i.e., claim 11 recited two motors (not three
motors) and a single wheel (not two wheels)).
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Appeal 2009-009175
Application 11/098,617

DISCUSSION
Issue
The determinative issue in this appeal is:
Whether a person of ordinary skill in the art would find it obvious to
add a second motor to Swanson’s bin sweep auger by the teachings of Epp
since the bin sweep auger of Swanson uses a single motor to drive both the
rotation of the auger flightings and the rotation of the wheel about the bin.
Analysis
Appellants contend Swanson and Epp operate in different, mutually
exclusive ways so that the provision of a second motor on the sweep auger
of Swanson is unnecessary since Swanson’s wheel 34 is already driven by
the motor 74 via shaft 38 and the shafts of auger sections 12 and 14. App.
Br. 6.
The Examiner finds that Swanson discloses the invention substantially
as claimed, except that Swanson fails to explicitly disclose a motor mounted
on the auger at the outer plate. Ans. 4-5. The Examiner finds that Epp
discloses a motor 54 mounted on an auger at an outer plate. Ans. 6. The
Examiner concludes that it would have been obvious to one of ordinary skill
in the art “to modify the auger of Swanson with an outer motor, as in Epp, in
order to drive the auger and wheels.” Id.
Swanson discloses an elongated sweep auger attachment 10
comprised of first and second auger sections 12, 14 connected by a universal
joint 16. Fig. 1A and col. 3, ll. 3-4. A hydraulic motor 74 is located at an
inner end of the sweep auger attachment 10 and drives the shafts of the first
and second auger sections 12, 14. Fig. 1A and col. 4, ll. 14-18. The first
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Appeal 2009-009175
Application 11/098,617

auger section 12 connects to a shaft 38 that drives a drive wheel 34. Fig. 1A
and col. 3, l. 31 and ll. 40-43.
Epp discloses a bin sweep system 10. The sweep system 10
comprises a sweep auger 20 and a takeout auger 16. Figs. 1-3 and para.
[0037]-[0038]. The sweep auger 20 rotates about its longitudinal axis by a
hydraulic motor 30 which is coupled to the auger’s flighting at the inner end
24. Para. [0039]. An outer end 26 of the sweep auger 20 is coupled to an
auger sweep drive 28 at a peripheral wall of the bin and rolls on the bin floor
via a pair of wheels 34 also located at the outer end of the auger 20. Id. The
auger sweep drive 28 includes an annular housing 36 which receives a rigid
block carriage 4 and an endless chain 42 that extends a full periphery of the
bin 12. Para. [0040]-[0041]. Rotation of the chain 42 is driven by a
hydraulic motor 54 supported at a periphery of the bin 12 adjacent the bin
door. Para. [0043]. The motor 54 is below the takeout auger 16. Id. The
motor 54 includes a flow control valve 56 coupled to hydraulic flow lines for
controlling the drive rate of the motor. Id. A drive housing 58 receives
main drive gear 60. Id. Drive gear 60 meshes with the outwardly facing
side of the chain 42 and two idler gears 62. Id. The idler gears 62 mesh
with a radially opposing inner side of the chain 42. Id. This arrangement
controls the speed of rotation of the chain about the periphery of the bin 12.
Id.
We agree with Appellants that it would not have been obvious to a
person of ordinary skill in the art to modify Swanson by including a second
motor as taught by Epp. Swanson’s hydraulic motor 74, located at the inner
end of the sweep auger attachment 10 as shown in Figure 1A, rotates the
shafts of both the second and first auger sections 14, 12 and, in turn, the
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Appeal 2009-009175
Application 11/098,617

shaft 38 and the drive wheel 34 that drives the sweep auger in rotation about
the bin. Since Swanson’s motor 74 is capable of both rotating the auger
flightings of the first and second auger sections 12, 14 of the sweep auger
attachment 10 and rotating the drive wheel 34 around the bin floor, there
does not appear to be a rational reason with logical underpinnings why a
person of ordinary skill in the art would want to have modified Swanson to
include a second motor for driving the sweep auger in rotation about the
center of the bin as taught by Epp.
Moreover, the hydraulic drive motor 54 of Epp rotates the main drive
gear 60 to control the speed of rotation of the chain 42 about the periphery of
the bin. Epp fails to teach that the hydraulic motor has a drive shaft and a
wheel carried on the drive shaft, as called for in the claims. Further, Epp
does not teach that the wheel is driven in rotation by the drive shaft and
having a mounting assembly “for mounting the hydraulic motor on the
sweep auger at the outer end plate,” as called for in the claims. Thus, we find
that the arrangement of the hydraulic drive motor 54 of Epp would not meet
the particulars of the claimed drive assembly, as called for in claims 1 and
11.
In view of the foregoing, we do not sustain the Examiner’s rejection
of claims 1-5 and 9-11 under 35 U.S.C. § 103(a) as unpatentable over
Swanson and Epp. The Examiner has not relied on Skromme for any
teaching that would remedy the deficiency in the underlying rejection of
claims 1-5, 9, and 10 based on Swanson in view of Epp as set forth supra.
Thus, we also do not sustain the Examiner’s rejection of claims 6-8 under 35
U.S.C. § 103(a) as unpatentable over Swanson, Epp, and Skromme.

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Appeal 2009-009175
Application 11/098,617

CONCLUSION
A person of ordinary skill in the art would not find it obvious to add a
second motor to Swanson’s bin sweep auger by the teachings of Epp since
the bin sweep auger of Swanson uses a single motor to drive both the
rotation of the auger flightings and the rotation of the wheel about the bin.

DECISION
We reverse the Examiner’s rejections of claims 1-5 and 9-11 under 35
U.S.C. § 103(a) as unpatentable over Swanson and Epp, and of claims 6-8
under 35 U.S.C. § 103(a) as unpatentable over Swanson, Epp, and Skromme.

REVERSED

Klh

ADE & COMPANY INC.
2157 HENDERSON HIGHWAY
WINNIPEG, MB R2G1P-9
CANADA
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