Ex Parte Eubanks et al

Board of Patent Appeals and Interferences

Sep 22, 2009

10736465 (B.P.A.I. Sep. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte DEERE & COMPANY
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Appeal 2009-005619
Application 10/736,465
Technology Center 3600
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Decided: September 23, 2009
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Before JAMESON LEE, RICHARD TORCZON, and
SALLY C. MEDLEY, Administrative Patent Judges.

LEE, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
This is a decision on appeal by the real party in interest, Deere &
Company (Deere), under 35 U.S.C. § 134(a) from a final rejection of claims
1 and 8. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
Appeal 2009-005619
Application 10/736,465

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References Relied on by the Examiner
Scarnato et al. (Scarnato) 3,673,779 July 4, 1972

The Rejections on Appeal
The Examiner rejected claims 1 and 8 under 35 U.S.C. § 102(b) as
anticipated by Scarnato.1

The Invention
The invention relates to crop mowing implements having rotary disc
cutter bars and a crop-lifting arrangement for directing harvested crop to a
crop processing device located on the mowing implement. (Spec. pp. 1-2;
¶¶ 1, 5, and 6.)
Independent claim 1 is reproduced below (App. Br. 5 Claims App’x)2:
1. In combination with

a mowing implement equipped with a rotary disc cutter bar
having a gear housing extending transversely, relative to a forward
direction of travel during mowing operation, and including a plurality
of transversely spaced, knife-carrying rotary discs mounted, and being
respectively driven, for rotating in desired directions above an upper
surface of said gear housing for cutting and delivering crop into a
discharge zone at the rear of the cutter bar,

a crop processing device located in said discharge zone just
downstream from said cutter bar,

1 Although page 3 of the Examiner’s Answer indicates claim 7 was rejected
as anticipated by Scarnato (Ans. 3:3), page 6 indicates that the rejection of
claim 7 is withdrawn (Ans. 6:5). We regard the rejection as withdrawn.

2 Claim 1 has been reproduced in a format that complies with 37 C.F.R.
§ 1.75(i).
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and a crop-lifting arrangement for directing cut crop delivered
by said rotary discs upwardly and rearwardly from said cutter bar so
as to be in a favorable location for engagement by said crop
processing device,

the improvement comprising:

said crop-lifting arrangement including a lip extending
transversely across, and projecting substantially upright from, at least
a rear region of said cutter bar located just forward of said crop
processing device; and

said lip extending closely adjacent to, and to a height above, a
path traced by knives of said knife-carrying rotary discs.

B. ISSUE
Has Deere shown that the Examiner was incorrect in finding that
Scarnato discloses a lip that is “substantially upright”?
C. FINDINGS OF FACT
1. Scarnato discloses a harvesting machine for cutting and
conditioning crops. (Scarnato 1:18-22.)

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Application 10/736,465

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2. Scarnato’s Figure 4 is reproduced below:

Figure 4 above depicts a harvesting machine.

D. ANALYSIS
The Examiner rejected claims 1 and 8 as anticipated by Scarnato.
Dependent claim 8 is argued collectively with independent claim 1. Claim 1
requires “a lip extending transversely across, and projecting substantially
upright from, at least a rear region of said cutter bar . . . .” The dispute
centers on the meaning of “substantially upright.”
The Examiner determined that “upright” means vertical. (Ans. 5:7-8.)
That meaning is not in dispute. Claim 1 thus requires a lip that is
substantially vertical. The Examiner found that Scarnato discloses a crop-
lifting arrangement that includes a lip 170 that extends substantially upright
from cutter bar 150. (Ans. 3:16-17.) Evidently, according to the Examiner,
Scarnato’s “lip” 170 is “substantially upright” because it extends upwardly
above a horizontal plane. (Id. at 5:6-12.)
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Scarnato’s Figure 4 is reproduced below:

Figure 4 above depicts a harvesting machine.
For the issue on appeal, we need not determine the precise angle of
incline beyond which a structure becomes “substantially upright.” At a
minimum, a lip that is “substantially upright” must be more vertical than
horizontal. Scarnato’s guide wall 170, however, is more horizontal than
vertical. By the Examiner’s own stated definition of “upright” as meaning
vertical, guide wall 170 is not substantially upright. It is incorrect to regard
everything that is not flat or perfectly horizontal as substantially vertical.
We do not sustain the rejection of claims 1 and 8 as anticipated by
Scarnato.
E. CONCLUSION
Deere has shown that the Examiner was incorrect in finding that
Scarnato discloses a lip that is “substantially upright.”
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Application 10/736,465

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F. ORDER
The rejection of claims 1 and 8 under 35 U.S.C. § 102(b) as
anticipated by Scarnato is reversed.

REVERSED

saw

DEERE & COMPANY
ONE JOHN DEERE PLACE
MOLINE, IL 61265