Ex Parte Hedlund et al

Patent Trials and Appeals Board

May 28, 2019

14039998 - (D) (P.T.A.B. May. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/039,998 09/27/2013
39231 7590 05/30/2019
SMITH LAW OFFICE
8517 EXCELSIOR DRIVE, SUITE 402
MADISON, WI 53717
FIRST NAMED INVENTOR
Nathan Hedlund
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
10004.771 8121
EXAMINER
TSANG, LISA L
ART UNIT PAPER NUMBER
3642
NOTIFICATION DATE DELIVERY MODE
05/30/2019 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):
JWS@JSMITHPATENTLAW.COM
paralegal@j smithpatentlaw .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NATHAN HEDLUND and TERRY THORNTON
Appeal2018-008193
Application 14/039,998
Technology Center 3600
Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
LISA M. GUIJT, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection2 of claims 1, 2, and 4--19. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 GEA Farm Technologies, Inc. ("Appellant"), the applicant as provided
under 3 7 C.F .R. § 1.46, is also identified as the real party in interest. Appeal
Br. 3.
2 Appeal is taken from the Final Office Action dated October 24, 2017.
Appeal2018-008193
Application 14/039,998
STATEMENT OF THE CASE
Claims 1 and 11 are the independent claims on appeal. Claim 1,
reproduced below, with disputed limitations italicized for emphasis, is
exemplary of the subject matter on appeal.
1. A teat cup assembly liner comprising:
a mouthpiece defining a teat opening; and
a barrel joined to the mouthpiece, and defining a bore and
a longitudinal axis aligned with the teat opening, and the barrel
is free of any shell engaging alignment recesses;
a lower locking ring joined to a lower portion of the barrel
and extending radially outwardly from the barrel; and
an upper locking ring joined to the lower portion of the
barrel, extending radially outwardly from the barrel, and spaced
apart from the lower locking ring to define an annular recess, and
the upper locking ring defines a shell-engaging alignment recess
spaced apart from and substantially parallel to the longitudinal
axis and to receive a mating shell key to inhibit twisting of the
liner barrel relative to a teat cup by preventing rotational
movement of the shell-engaging recess relative to the shell key.
THE REJECTIONS
I. Claims 1, 2, 4---6, and 9 stand rejected under 35 U.S.C. § 103 as
unpatentable over Larson (US 5,572,947; issued Nov. 12, 1996), Petterson
(US 2008/0035064 Al; published Feb. 14, 2008), and Giorgetti (US
2009/0184512 Al; published July 23, 2009).
II. Claims 7 and 8 stand rejected under 35 U.S.C. § 103 as
unpatentable over Larson, Petterson, Giorgetti, and Milbrath (US 6,435,132
B 1; issued Aug. 20, 2002).
III. Claims 11-15 and 18 stand rejected under 35 U.S.C. § 103 as
unpatentable over Noorlander (US 3,096,740; issued July 9, 1963),
Petterson, and Giorgetti.
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IV. Claims 16 and 17 stand rejected under 35 U.S.C. § 103 as
unpatentable over Noorlander, 3 Petterson, Giorgetti, and Milbrath.
V. Claim 10 stands rejected under 35 U.S.C. § 103 as unpatentable
over Larson, Petterson, Giorgetti, and Sanford (US 6,055,931; issued May 2,
2000).
VI. Claim 19 stands rejected under 35 U.S.C. § 103 as unpatentable
over Noorlander, Petterson, Giorgetti, and Sanford.
ANALYSIS
Rejection I
Appellant argues claims 1, 2, 4---6, and 9 as a group. Appeal Br. 12-
15; Reply Br. 3-18. We select claim 1 as representative, and claims 2, 4---6,
and 9 stand or fall with claim 18. See 37 C.F.R. § 4I.37(c)(l)(iv).
Regarding independent claim 1, the Examiner finds, inter alia, that
Larson discloses a teat cup assembly liner comprising an upper locking ring
(i.e., lower end 80 of barrel section 78) spaced apart from a lower locking
ring (i.e., upper end 92 of milking tube part 86) to define an annular recess,
as claimed. Final Act. 3 ( citing Larson, Figs. 4, 6); see also Larson ( 6:22-
36, Fig. 6). The Examiner also finds that Larson's upper locking ring (i.e.,
lower end 80) defines a shell-engaging alignment recess, namely, "recess
formed in [lower end] 80, where [ shell] 84 is attached," which is "spaced
apart from and substantially parallel to the longitudinal axis [ of the barrel
(i.e., barrel section part 78)] ... to receive a mating shell part (tip of 84)," as
3 The Examiner inadvertently lists Larson instead ofNoorlander in the
header for this rejection. See Final Act. 10.
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Application 14/039,998
claimed. Final Act. 3 ( citing Larson Fig. 6). The Examiner provides an
Annotated Figure 6 of Larson, reproduced below. Ans. 10.
Shell-Engaging
Alignment Recess
Annular Recess
Annotated Figure 6 of Larson depicts a sectional, side elevational view of a
teat cup assembly (see Larson 3:47--48), whereupon the Examiner has placed
two arrows, each pointing to recess, or indentation, on the circumference of
teat cup assembly 10a identifying an annular recess and a shell-engaging
recess. 4
The Examiner relies on Petterson also for disclosing a shell-engaging
alignment recess (i.e., peripheral groove 50 of lower engagement member
4 An ordinary definition of the claim term "recess," consistent with the
Specification, is "an indentation in a straight line or in a surface bounded by
a line conceived of as straight." WEBSTER'S THIRD NEW INT'L DICTIONARY
1894 (1993).
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23) spaced apart from and substantially parallel to a longitudinal axis of the
barrel and to receive a mating shell key (i.e., engagement member 24), as
claimed. Final Act. 4 ( citing Petterson ,r 3 9 ( disclosing that "engagement
members 24, 26 may be designed in various ways"), Figs. 4, 6); see also
Petterson ,r,r 15, 37. The Examiner finds that Petterson teaches, "among
other types of connections, a bayonet-type connection could be used for
[lower engagement member 23, engagement member 24]," and therefore,
"[ engagement member 24] would be a 'key,"' as claimed. Ans. 1 O; see, e.g.,
Petterson ,r 39 ("instead of rel[]ying on merely a pulling movement for
completing the engagement, the engagement may be obtained by a rotating
movement or by means of a combination of a rotating movement and a
pulling movement," such as a "bayonet connection").
The Examiner reasons that it would have been obvious "to modify the
shell-engaging alignment recess of [Larson] to receive a mating shell key, as
taught by Petterson, in order to provide a more secure connection between
the barrel and the shell." Final Act. 4. The Examiner explains that "[s]uch a
modification-to replace the shell-engaging alignment recess of Larson with
the shell-engaging alignment recess and mating shell key of Petterson-
would have been obvious ... to provide a more secure connection between
the barrel and the shell." Ans. 11. The Examiner determines that "[i]t is
well-known in the art of milking devices, that teat cup liners are prone to
twisting" and that "[ m ]odifying the recess of Larson to have the recess and
mating shell key of Petterson, results in an engagement between the two
where the barrel is more prevented from twisting during milking." Id.
The Examiner relies on Giorgetti as evidence that it is known for a
mating shell key engaged with a shell-engaging alignment to prevent
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Application 14/039,998
rotational movement there between. Final Act. 4 ( citing Giorgetti ,r 28, Fig.
4).
First, Appellant argues that the Examiner erred by relying on Larson's
recess formed in lower end 80 where shell 84 is attached as a "shell-
engaging alignment recess," as claimed, because the Examiner failed to
recognize the separate structures and functions of an annular recess and a
shell-engaging alignment recess, as claimed. Appeal Br. 12-13; Reply Br.
3-9. Appellant submits that claim 1 requires certain orientations for "the
two types of recesses" (Reply Br. 4), wherein "the term 'alignment recess' is
defined and used throughout the specification ... as being 'engaged by the
mating keys 52, in the shell 18, "' whereas the term "annular recess 36 is
defined ... as joining to 'the shell lower opening 50 at the inwardly directed
annular edge 51 using the annular recess"' (id. at 6 (citing Spec. ,r 26, Figs.
1, 7)). Appellant submits that "'annular' means circular or ring-shaped" and
that "[t]he annular recess secures the lower end of the liner to the lower end
of the shell, but it does not align the liner or prevent rotational movement of
the shell-engaging alignment recess relative to a key." Id. Similarly,
Appellant argues that the Examiner erred by relying on the annular recess
depicted between Larson's lower end 80 and upper end 92, because such a
recess "does not engage nor is it intended to engage the shell." Reply Br.
16.
We are not persuaded by Appellant's argument. As set forth supra,
the Examiner relies on separate structures at different locations along
Larson's teat cup assembly for disclosing the two types of recesses recited in
the claims (i.e., an annular recess and a shell-engaging alignment recess),
and to the extent claim 1 recites functions for the two types of recesses, the
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Examiner explains how claim 1 reads on the two types of recesses as
identified by the Examiner in Larson. For example, claim 1 requires an
annular (or ring-shaped) recess to be defined by the spacing apart of upper
and lower locking rings, and as set forth supra, the Examiner finds that an
annular recess corresponding to the claimed annular recess is defined
between lower end 80 of barrel section 7 8 and upper end 92 of milking tube
part 86. Appellant does not dispute the Examiner's finding that an annular
recess is located between lower end 80 and upper end 92, nor does Appellant
argue that such structures are not "spaced apart," as claimed. See Appeal Br.
12-13; Reply Br. 3-20. Contrary to the argument presented by Appellant,
claim 1 does not specify a function for the annular recess (i.e., for engaging
the shell). See Arlington Indus., Inc. v. Bridgeport Fittings, Inc., 345 F.3d
1318, 1327 (Fed. Cir. 2003) (it is improper to read a limitation from the
specification into the claims).
The Examiner relies on the outer circumferential annular recess in
upper end 92 of Larson's teat cup assembly, which receives the edge of shell
84, as the claimed shell-engaging alignment recess. Appellant's argument
that the claimed shell-engaging alignment recess cannot be annular is
without merit, because neither the claims nor the Specification excludes a
shell-engaging alignment recess from being annular; claim 1 merely requires
the shell-engaging alignment recess to function to receive a mating shell key
to inhibit twisting of the liner barrel relative to the teat cup by preventing
rotational movement of the shell-engaging recess relative to the shell key, as
claimed. Notably, as set forth supra, the Examiner relies on the combination
of Larson and Petterson to result in such a configuration, and not on Larson
alone.
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Second, Appellant argues that the Examiner has failed to explain how
Larson's annular recess in upper end 92, or Petterson's peripheral groove 50
of lower engagement member 23 when replacing Larson's recess according
to the Examiner's modification, discloses that the shell-engaging alignment
recess is "spaced apart from and substantially parallel to the
longitudinal axis [of the barrel]," as claimed and as set forth supra. Appeal
Br. 12-13; Reply Br. 11-15. Appellant submits that "[n]othing but a portion
of a curved back wall of [Larson's] annular recess 80 is parallel to the
longitudinal axis, so the annular recess is not substantially parallel to the
longitudinal axis." Appeal Br. 12. Appellant also submits that Petterson's
shell-engaging alignment recess (i.e., lower engagement member 23)
includes "a peripheral groove 50 extending in the outer surface of the lower
portion 22 and an inclined peripheral surface 51 sloping upwardly and
outwardly to the [groove] 50." Appeal Br. 14 (citing Petterson ,r 37, Fig. 6).
Appellant argues that Petterson's peripheral groove 50 of lower engagement
member 23 is not a shell-engaging alignment recess spaced apart from and
substantially parallel to the barrel's longitudinal axis, as claimed, because
Petterson's groove 50 is unlike "item 40" and is "more like" annular recess
36 in Figure 5 of the Specification. Reply Br. 14.
The Examiner provides an Annotated Figures 6 of Larson, reproduced
below. Ans. 5.
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Application 14/039,998
The annotated section of Figure 6 of Larson depicts a longitudinal axis of the
barrel identified by dashed lines provided by the Examiner, and also
longitudinal axes corresponding to the annular recess about the upper
locking ring (i.e., the shell-engaging alignment recess) identified by dashed-
dotted lines provided by the Examiner, wherein the Examiner explains that
Larson's annular recess about the upper locking ring is spaced apart from
and substantially parallel to the longitudinal axis of the barrel, as claimed.
Id. The Examiner also provides a similar Annotated Figure 6 of Petterson,
which depicts Petterson's lower engagement member 23 with peripheral
groove 50 meeting such claim limitations.
Appellant's arguments do not persuade us of error in the Examiner's
reliance on either Larson or Petterson for disclosing a shell-engaging
alignment recess spaced apart from and substantially parallel to the
longitudinal axis, as claimed; rather, a preponderance of the evidence
supports the Examiner's finding that both recesses, as identified by the
Examiner supra, are spaced apart from and have at least vertical walls,
which are substantially parallel to the longitudinal axis of the barrel, as
claimed. See Ans. 6-7. Notably, the Specification neither includes the
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Application 14/039,998
words "substantially" or "parallel" with respect to the relative positions
between the longitudinal axis of the barrel and the shell-engaging alignment
recess, nor does claim 1 specify any certain structure of the recess that is
required to be substantially parallel to the longitudinal axis of the barrel.
To the extent Appellant is arguing that neither reference individually
discloses "the key and recess arrangement" recited in claim 1, non-
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references. Appeal Br. 15; In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986); In re Keller, 642 F.2d 413,425 (CCPA 1981).
Appellant also argues that "item 24" of Petterson "is not a key, and is
instead an inwardly projecting edge of a lower shell opening that engages
the annular recess in the liner" and that "a vague reference to a bayonet
connector that is not explained or described by the Examiner's Answer or
even in [Petterson] is not a teaching to one skilled in the art to arrive at the
claimed invention." Reply Br. 17, 18. We disagree. The Specification
discloses that "keys 52 ... are provided in a number, size, and arrangement
to mate with the alignment recesses 40." Spec. ,r 23. Neither the claims nor
the Specification exclude Petterson's engagement member 24 of shell 3 from
being a key. Rather, Petterson discloses that "lower engagement member 23
[is] adapted to be in engagement with an engagement member 24 of shell 3."
Petterson ,r 29; see also id. ,r 37 ("engagement member 24 of the shell 2 is
formed by an annular flange extending inwardly from the inner surface of
the shell 2 and designed to fit in the groove 50" of lower engagement
member 23).
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Finally, Appellant argues that Giorgetti is "an unrelated tube
connector, which fails to recognize the problems solved by the present
invention." Reply Br. 18. However, Appellant's argument does not apprise
us of error in the disclosures of Giorgetti, as relied on by the Examiner
supra. To the extent Appellant is arguing that Giorgetti is non-analogous
art, we determine that Giorgetti is reasonably pertinent to the particular
problem with which the inventor is involved (i.e., "the recited combination
of elements [provides] a simple and elegant liner" (Reply Br. 16)), because
Giorgetti addresses the need for a "simple coupling" (Giorgetti ,r 4) to "limit
rotational movement of the connecting element via positive locking" (id. ,r
5). See also id. ,r 16 ("the connection body may be fixed via the locking
element to a connecting element in a very fast and in a very simple way
without the need for special tools"); cf Spec. ,r 7 ( disclosing that prior art
liners are "relatively expensive to manufacture and time-consuming to
install"); see In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011) (quoting In
re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004)). Thus, the Examiner's
reliance on Giorgetti as analogous art is proper.
Accordingly, we sustain the Examiner's rejection of independent
claim 1, and claims 2, 4---6, and 9 fall therewith.
Re} ection II
Regarding dependent claims 7 and 8, the Examiner relies on Milbrath
for teaching that "it is well-known in the art to have a pair of alignment
recesses and keys." Final Act. 6-7 (citing Milbrath, Figs. 6, 7). The
Examiner reasons that it would have been obvious "to modify [Larson] as
modified by Petterson and Giorgetti to have a second pair of alignment
recesses spaced apart from the first pair of alignment recesses, in order to
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provide more key and recess engagements to further ensure that the barrel
does not twist relative to the shell." Id.
Appellant argues that
[Milbrath] would not work without the ribs 26 along most of the
length of the liner barrel that engage elongated recesses 27 in the
shell. Such a liner construction would expensive to make, and
more difficult and time-intensive to install in a shell because the
ribs 26 must be aligned with the shell recesses 27 and then
pushed down into the long recesses.
Appeal Br. 16; Reply Br. 19.
The Examiner correctly responds that the modification does not
involve replacing the shell-engaging alignment recess and mating shell key
of Larson, as modified by Petterson and Giorgetti, with the recesses and
keys of Milbrath, but merely relies on Milbrath as teaching that it is well-
known to have "first and second pairs of diametrically opposed and
substantially parallel spaced apart alignment recesses ... to provide more
connection points to ensure that no part of the liner rotates within the shell."
Ans. 12. "The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the structure of the
primary reference .... " In re Keller, 642 F.2d 413,425 (CCPA 1981); In re
Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012). In other words, Appellant's
argument does address the rejection, as articulated by the Examiner, or
apprise us of error in the Examiner's reliance on Milbrath for teaching that
more than one point of connection may be beneficial to Larson's teat cup, as
modified by Petterson and Giorgetti.
Accordingly, we sustain the Examiner's rejection of claims 7 and 8.
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Rejection III
Appellant argues claims 11-15 and 18 as a group. Appeal Br. 17;
Reply Br. 19-20. We select claim 11 as representative, and claims 12-15
and 18 stand or fall with claim 18. See 37 C.F.R. § 4I.37(c)(l)(iv).
Regarding independent claim 11, the Examiner finds, inter alia, that
Noorlander discloses a teat cup assembly comprising an upper locking ring
(i.e., annular ridge 27) spaced apart from a lower locking ring (i.e., annular
ridge 28) to define a shell-engaging annular recess, and a shell 10, as
claimed. Final Act. 7-8 ( citing Noorlander, Fig. 2). The Examiner
acknowledges that Noorlander does not disclose that the upper locking ring
defines an alignment recess or that the shell includes a key, as claimed, and
the Examiner relies on Petterson for disclosing a teat cup assembly having
an upper locking ring (i.e., portion above engagement member 23) that
defines an alignment recess (i.e., recess formed by engagement member 23)
radially spaced apart from and substantially parallel to a longitudinal axis of
a barrel to receive a shell key (i.e., engagement member 24). Id. at 8 ( citing
Petterson, Fig. 6). The Examiner reasons that it would have been obvious to
modify the teat cup assembly ofNoorlander to "have the upper locking ring
define an alignment recess and the shell to include a key disposed in the
alignment recess, as taught by Petterson, in order to provide a more secure
connection between the barrel and the shell." Id. at 9.
Appellant argues that, in Noorlander, "there is no disclosure of an
alignment recess engaged with a key that at least partially restricts rotational
movement or twisting of the liner relative to the shell" and "there is no hint
to one of ordinary skill in the art to modify or combine these patents to
arrive at the claimed invention." Appeal Br. 17; see also Reply Br. 20.
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These arguments are unpersuasive as they do not address the rejection
as articulated by the Examiner. The Examiner does not rely on Noorlander,
but on Petterson, for disclosing the alignment recess and the shell key, and
Appellant appears to be holding the Examiner to the old TSM (teaching,
suggestion, or motivation) standard; such a standard is not required. "Non-
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see
also KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,415 (2007). Further, as set
forth supra, the Examiner provides rationale for modifying Noorlander, in
view of Petterson.
Accordingly, we sustain the Examiner's rejection of claim 11 and
claims 12-15 and 18 fall therewith.
Rejection IV
The Examiner relies on Milbrath for disclosing the limitations of
claims 16 and 17, and reasons that it would have been obvious to modify
Noorlander's teat cup assembly to have a second pair of alignment recesses,
as claimed, "to provide more key and recess engagements to further ensure
that the barrel does not twist relative to the shell." Final Act. 10-11 ( citing
Milbrath, Figs. 6-7).
Appellant argues that Milbrath "uses an arrangement that is not the
same as the barrel recited in independent claim [] 11 because it uses
connectors on the liner barrel," "[t]he claims herein do not recite a barrel
with such connectors," "[t]he Milbrath[] design would not work without
[its] ribs 26 along most of the length of the liner barrel that engage elongate
recesses 27 in the shell," "the present invention does not engage the liner
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barrel," and claim 11 "expressly recite[ s] that 'the barrel is free of any
engaging alignment recesses.'" Appeal Br. 16; see also Reply Br. 19.
These arguments are unpersuasive because they do not address the
rejection. The Examiner relies on Milbrath for the limited purpose of
providing a second pair of alignment recesses as claimed. Final Act. 10-11;
see also Ans. 12. Accordingly, the rejection of claims 16 and 17 is
sustained.
Rejection VI
Appellant does not provide any substantive argument in connection to
the rejection of claim 19. See Appeal Br. 9-13. Accordingly, the rejection
of claim 19 is sustained.
DECISION
The Examiner's decision rejecting claims 1, 2, and 4--19 is
AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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