Ex Parte Henderson

Patent Trial and Appeal Board

Jun 13, 2016

12505129 (P.T.A.B. Jun. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/505, 129 07/17/2009
53609 7590 06/15/2016
REINHART BOERNER VAN DEUREN P.C.
2215 PERRYGREEN WAY
ROCKFORD, IL 61107
FIRST NAMED INVENTOR
Toby D. Henderson
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.
506570 1469
EXAMINER
RODRIGUEZ, SAUL
ART UNIT PAPER NUMBER
3652
NOTIFICATION DATE DELIVERY MODE
06/15/2016 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):
RockMail@reinhartlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TOBY D. HENDERSON
Appeal2014-005140
Application 12/505, 129
Technology Center 3600
Before CHARLES N. GREENHUT, LYNNE H. BROWNE, and
ERIC C. JESCHKE, Administrative Patent Judges.
JESCHKE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Toby D. Henderson (Appellant) seeks review, under 35 U.S.C.
§ 134(a), of the Examiner's decision to reject claims 2-8, 10-18, 20, and 21.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
BACKGROUND
The disclosed subject matter "generally relates to product distribution
systems and more particularly product distribution systems within a
warehouse." Spec. i-f 2. Claims 5, 6, and 8 are independent. Claim 5 is
reproduced below:
Appeal2014-005140
Application 12/505, 129
5. An end-effector for a robotic system
compnsmg:
a frame structure;
a first product engagement structure mounted
to and movable relative to the frame structure;
a second product engagement structure
movable toward and away from the first product
engagement structure along a first axis; and
a floor moveable relative to the frame
structure and the first and second product
engagement structures between a closed position in
which the floor covers at least a portion of a product
opemng formed between the first and second
product engagement structures, and an open
position in which the floor exposes the product
opening, the floor traveling along a path between
the open position and the closed position; and
wherein all portions of the floor travel in a
same direction along the path when transitioning
from the open position to the closed position; and
a vacuum pad mechanism defining a vacuum
surface facing the floor when the floor is in the
closed position.
REJECTIONS
1. Claims 2-7 and 21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Blanc (US 2005/0265817 Al, published Dec. 1, 2005) and
Focke (US 5,088,878, issued Feb. 18, 1992).
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Application 12/505, 129
2. Claims 8, 15, 17, 18, and 20 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Kaspar (DE 42 06 038 Al, published Sept. 2,
1993) 1 and Blanc.
3. Claims 10, 11, 13, 14, and 16 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Kaspar, Blanc, and Mabey (US 4,032,021,
issued June 28, 1977).
4. Claim 12 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Kaspar, Blanc, Mabey, and Tygard (US 6,003,917, issued Dec. 21,
1999).
DISCUSSION
Rejection I -The rejection of claims 2-7 and 21
under 35 US.C. § 103(a)
For this Rejection, the Examiner found that Blanc discloses various
claimed structures and that "Focke discloses frame structure, first, second,
third and fourth product engagement structures and further discloses a
vacuum pad mechanism 33, 34." Final Act. 2-3 (dated Dec. 4, 2012).
According to the Examiner, it would have been obvious:
to modify the stacker of Blanc to include a vacuum pad
mechanism, as per the teachings of Focke, where during the
lifting and transportation of pack units such as round
(cylindrical), cuboid or otherwise shaped individual packs, lie or
stand on the bottom part, "it is necessary to allow for the
relatively low stability in respect of mechanical loads, but also
the fact that the individual packs are not anchored on the bottom
1 The Examiner appears to rely on a combination of the German
language version of DE 42 06 038 Al and the DERWENT Abstract of DE
42 06 038 Al as "Kaspar." Those documents were entered into the record
together on October 27, 2011. A machine translation of DE 42 06 038 Al
from the EPO was also entered into the record on January 22, 2013.
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Application 12/505, 129
part. It is especially difficult to handle pack units in which the
individual packs are sensitive to mechanical stresses, for
example tray packs with biscuit rolls."
Id. at 3 (quoting Focke, col. 1, 11. 23-2 8).
A. Claims 2-5 and 21
Appellant argues claims 2-5 and 21 as a group. Appeal Br. 7-9.
Appellant states that "[ t ]he Examiner's stated rationale for adding the
suction capabilities of Focke to the system of Blanc is to stabilize the
products when the individual packs are not anchored on the bottom part" and
asserts that "because Blanc teaches a particular method for stabilizing
products using curtain 100, one would not be motivated to modify the
system of Blanc using the teachings of Focke, as suggested by the
Examiner." Appeal Br. 8. Appellant argues that "Blanc includes a curtain
100, which vertically supports the bottom of the objects as they are
transitioned horizontally off of table 20" and that "[t]herefore, the curtain
l 00 of Rlanc stabilizes, and vertically supports, the bottom of the objects,
and thus, there is no need for the vacuum functionality of Focke because the
objects transported by the system of Blanc do not suffer from the problems
described in Focke." Id. (also discussing Blanc i-f 72).
The Examiner responds that "Focke' s vacuum assist moves articles
which are subject to mechanical stress" and that "[t]here is no disclosure in
Blanc that such articles would be stable when supported by curtain 100."
Ans. 8. The Examiner also states that "there is no explicit or implicit
teaching of any additional feature in Blanc that provides stability." Id.
We determine that the Examiner has provided sufficient "articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness." In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006), cited with
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Application 12/505, 129
approval in KSR Int? Co. v. Telejlex Inc., 550 U.S. 398, 418 (2007).
Although Appellant is correct that retractable base 100 in Blanc "vertically
supports" objects (Appeal Br. 8) (i.e., prevents objects fromfalling
downwards), Appellant has not demonstrated that retractable base 100
provides the improved "vertical stability" (i.e., preventing objects in motion
from toppling over) that Appellant acknowledges is the relied-upon reason
to modify Blanc with the vacuum system of Focke (Appeal Br. 7 (discussing
Final Act. 3)). That Blanc is silent regarding a lack of vertical stability does
not, on the facts here, lead to the conclusion that the device in Blanc solved
that issue or would not have that issue ifhanding objects such as those in
Focke (see Final Act. 3). See Appeal Br. 8 ("Indeed, the fact that Blanc does
not suffer from the vertical instability has been acknowledged by the
Examiner. On page 7 of the Office Action, dated August 27, 2012, the
Examiner stated, 'examiner has thoroughly searched Blanc and can find no
mention of "stability" much less solving low stability problems."').
We tum now to Appellant's contention that "applying suction to lift
the products to be moved does change a principle of operation for the system
of Blanc, which would otherwise move products by supporting them on a
base with a vertical wall." Reply Br. 7. We are not apprised of error based
on this argument because the Examiner proposes to "modify the stacker of
Blanc to include a vacuum pad mechanism, as per the teachings of Focke"
(Final Act. 3 (emphasis added)), rather than to replace retractable base 100
in Blanc with Focke's vacuum pad mechanism. Moreover, even ifthe
Examiner did propose such a replacement, Appellant has not persuasively
demonstrated that modifying Blanc to grasp each layer using a vacuum pad
mechanism-rather than other structure-would change the basic principle
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Application 12/505, 129
under which Blanc operates: grasping layers of objects to add layers to a
palletized load (see, e.g., Blanc, Figs. 7a-7e). Cf In re Ratti, 270 F.2d 810,
813 ( CCP A 1959) (stating that the proposed modification would "require a
substantial reconstruction and redesign of the elements shown in [the prior
art] as well as a change in the basic principles under which the [prior art]
was designed to operate"); see also Ans. 9 ("The combined teaching of
Focke and Blanc provide for movement of a layer of articles.").
For these reasons, we sustain the rejection of claims 2-5 and 21 as
unpatentable over the combined teachings relied upon by the Examiner.
B. Claims 6 and 7
Independent claim 6 recites, in relevant part, "a gantry system coupled
to the end-effector and configured to move and support the end-effector in
three dimensions." Appeal Br., Claims App. 2. The Examiner identified
element 61 in Blanc regarding this limitation. See Final Act. 2. The
Examiner takes the position that the limitation recites "movement in three
dimensions" and that "movement in three dimensions requires a three-
dimensional object that has movement." Ans. 10. Thus, the Examiner finds
the limitation satisfied because "gantry 61 moves ... an end effector" and
the "end effector"---elements 64 and 73-"has length, width and height."
Id. Appellant argues that Blanc does not disclose the limitation at issue
because "structure 61 of Blanc only moves in two dimensions not three
dimensions." Appeal Br. 10. We agree.
The Examiner has applied an unreasonably broad construction of the
limitation at issue, when considering that claim language in light of the
Specification. See In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990). In
relevant part, the limitation at issue requires that (based on the configuration
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Application 12/505, 129
of the gantry system) the end-effector can move in three dimensions. See
Appeal Br. 11 (arguing that "just because an object has three dimensions, as
all objects do, this does not mean that the object is moveable in those three
dimensions"). The language "in three dimensions" cannot reasonably be
construed as instead addressing the physical dimensions of the "end-
effector." The Specification supports this understanding, providing that
"[t]he robotic system 100 includes gantry system 106 for positioning an end-
effector 110 in three dimensions along an x-axis, y-axis and z-axis that are
preferably orthogonal to one another." Spec. i-f 30 (discussing Fig. 1).
The Examiner takes the position that the limitation at issue does not
require movement in three dimensions because, in describing gantry system
106, paragraph 3 0 of the Specification "identifies two perpendicular
members which provide X and Y movement" but that "[ n Jo other structure is
identified in the drawings as providing Z axis movement." Ans. 9; see also
Spec., Fig. 1. The Examiner states, "[ c ]onsequently, the full disclosure
defines a gantry as two perpendicular members providing X axis movement
and Y axis movement." Ans. 9. Although Figure 1 of the Specification does
depict gantry system 106 as two perpendicular members, this depiction does
not "define[]" a gantry as providing only two dimensions of movement
because the related written description plainly provides that the gantry
system does move the end-effector up and down (i.e., along the z-axis of
Figure 1 ). See Spec. i-f 30 ("The robotic system 100 includes gantry system
106 for positioning an end-effector 110 in three dimensions along an x-axis,
y-axis and z-axis that are preferably orthogonal to one another."); i-f 53
(providing that "end-effector 110 is actuated vertically upward along the z-
axis to lift and remove the top two layers of products 112 (See FIG. 9)"); see
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Application 12/505, 129
also In re Andersen, 743 F.2d 1578, 1581 (Fed. Cir. 1984) (stating that
"[t]he referenced drawing is merely a simplified schematic intended to
provide a summary overview of' an aspect of a prior art reference and that
an "ambiguity in this simplified drawing does not outweigh the consistent
and unambiguous detailed teachings of the specification"), overruled, in
part, on other grounds, by In re Etter, 756 F.2d 852 (Fed. Cir. 1985).
Applying this construction, we agree with Appellant that element 61
in Blanc moves elements 64/73 in only two dimensions---e.g., up/down and
left/right in Figure 2 of Blanc-rather than in three dimensions. See Blanc
i-fi-166-69; Appeal Br. 10. Thus, we do not sustain the rejection of claim 6,
nor the rejection of claim 7, which depends from claim 6.
Rejection 2 - The rejection of claims 8, 15, 17, 18,
and 20 under 35 US.C. § 103(a)
For this Rejection, the Examiner found that Kaspar discloses various
asnects and that Blanc discloses various asnects. includirn.! "2:rasnirn.! a _._ _._ / '-''-' _._ '-'
second layer which includes at least one product with a clamping mechanism
88, 89" and "transitioning a movable floor out from underneath a second
layer prior to releasing a product from a clamping mechanism." Final Act.
3--4. According to the Examiner, it would have been obvious "to modify the
method of Kaspar to include Blanc's grasping and transitioning steps to
improve wear and adapt ... stacking robots to small-volume production in
relative unclean environments." Id. at 4.
Appellant argues that "the Examiner fails to explain how the proposed
modification of Kaspar improves wear or how it adapts the robot of Kaspar
to small-volume production." Appeal Br. 12.
The Examiner responds:
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Application 12/505, 129
In this case, Blanc is consistent with Kaspar insomuch that both
teach grippers and movable floors. Blanc merely reverses the
order of Kaspar's identical elements. Blanc further teaches that
previous palletizers not designed accordingly were subject to
wear and could not adapt to small-volume production. The case
for obviousness is not what the primary reference lacks or
doesn't teach but what the modifying reference teaches and
improves upon. In this case, both Kaspar and Blanc perform a
palletizing functi[ on] wi[ th] identical components. A skilled
artisan would have been well aware of both when looking to
solve industry wear and accommodating small-volume
production as identified in Blanc.
Ans. 12.2
Here, the Examiner has not provided adequate articulated reasoning
with rational underpinning to modify Kaspar based on Blanc to support the
conclusion of obviousness. See In re Kahn, 441 F .3d at 988. As argued by
Appellant, the Examiner has not identified "exactly what part experience[ s] .
. . wear and how that wear is reduced via the proposed modification" and has
not explained "ho\v the system of Rlanc is specifically adapted to small-
volume production in a way that the system of Kaspar is not." Appeal Br.
12. The Examiner has also not identified the alleged teachings from Blanc
related to "previous palletizers." Ans. 12. Thus, we do not sustain the
rejection of claim 8, 15, 17, 18, and 20.
2 Although Appellant contends that certain aspects of the Answer
constitute a new ground of rejection (Reply Br. 11 ), we note that this issue
was addressed in a Decision on Petition, entered into the record on February
28, 2014.
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Application 12/505, 129
Rejections 3 and 4-T'he rejection of claim 10-14
and 16 under 35 USC§ 103(a)
Claims 10-14 and 16 depend from independent claim 8. Appeal Br.,
Claims App. 3--4. The Examiner's additional reliance on Mabey (regarding
Rejection 3) and Mabey/Tygard (regarding Rejection 4) does not remedy the
deficiencies in the combined teachings of Kaspar and Blanc, discussed
above (see supra Rejection 2). Thus, for the same reasons discussed above,
we do not sustain the rejection of claims 10-14 and 16.
DECISION
We AFFIRM the decision to reject claims 2-5 and 21 and REVERSE
the decision to reject claims 6-8, 10-18, and 20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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