Ex Parte Kinzenbaw

Patent Trial and Appeal Board

Feb 28, 2017

12728042 (P.T.A.B. Feb. 28, 2017)

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.
12/728,042 03/19/2010 Jon E. Kinzenbaw P10733US01 4521
106467 7590 03/02/2017
McKee, Voorhees & Sease PLC
801 Grand Ave.
Suite 3200
Des Moines, IA 52361
EXAMINER
BERRY JR, WILLIE WENDELL
ART UNIT PAPER NUMBER
3652
NOTIFICATION DATE DELIVERY MODE
03/02/2017 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):
patatty@ipmvs.com
michelle. woods @ ipmvs. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JON E. KINZENBAW
Appeal 2015-005488
Application 12/728,042
Technology Center 3600
Before JENNIFER D. BAHR, JAMES P. CALVE, and
WILLIAM A. CAPP, Administrative Patent Judges.
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35U.S.C. § 134 from the final rejection of
claims 1—11 and 13—21. Appeal Br. 3. Claim 12 has been cancelled. Id.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM but designate our affirmance as a NEW GROUND OF
REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b).
Appeal 2015-005488
Application 12/728,042
CLAIMED SUBJECT MATTER
Claims 1 and 18—20 are independent. Claim 1 is reproduced below.
1. A mobile cart for transporting particulate material
comprising:
a support frame having plural wheels and adapted for coupling
to a vehicle;
a bin for receiving particulate material and having a front, rear
and side panels, with each of said front, rear and side
panels having a respective fiat tapered lower portion so
as to provide said bin with an open upper portion and a
lower tapered portion;
a first auger coupled to the bin for receiving particulate material
from said bin and for displacing the particulate material
adjacent to a lower outer front portion of said bin; and
a second auger attached to an outer flat tapered lower portion of
the bin's front panel and including a lower section having
first lower and upper end portions, wherein the second
auger's lower section is aligned generally with an outer
front comer of said bin formed by said front panel and
one of said side panels and is in communication with said
first auger for receiving particulate material, said second
auger further including an upper section having second
lower and upper end portions, wherein said upper
section's second lower end portion is pivotally coupled to
the lower section's first upper end portion for allowing
said upper section to be moved between a folded
configuration for transport/storage and an extended
configuration for delivery of particulate material from
said bin, and wherein the second upper end portion of the
second auger's upper section is disposed laterally from
and forward of said bin when in the extended
configuration and is disposed below and in closely
spaced relation to the tapered lower portion of said front
panel when in the folded configuration, and further
wherein the second auger's lower and upper sections
when in the folded configuration are disposed within a
width/height front profile of the mobile cart;
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Appeal 2015-005488
Application 12/728,042
wherein the first and second augers are positioned external the
bin; and
wherein the second upper end portion of the second auger is
positioned generally beneath the tapered front panel of
the bin when the auger is in the transport position.
REJECTION
Claims 1—11 and 13—21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Deckler (US 5,139,314, iss. Aug. 18, 1992), McMahon
(US 6,776,569 Bl, iss. Aug. 17, 2004), and Wood (US 8,047,757 Bl, iss.
Nov. 1,2011).
ANALYSIS
The Examiner found that Deckler discloses support frame 18 with
wheels 30, 31, bin 12, first auger, and second auger 20, as in independent
claims 1 and 18—20. Final Act. 2, 4. The Examiner found that Deckler does
not disclose the first auger (that receives particulate material from the bin) as
being external to the bin, the specific shape of the bin, and the second auger
having upper and lower portions pivotally attached to one another and within
a width/height front profile of the mobile card when folded. Id.
The Examiner found that McMahon discloses a first auger 35 external
to a bin, and Wood discloses front, side, and rear bin panels with upper and
tapered lower portions and an auger with upper and lower portions attached
pivotally and generally parallel to one another when folded to be within the
width/height front profile of a grain cart. Id. at 2—3, 4.
The Examiner determined that it would have been obvious to modify
Deckler with teachings of McMahon and Wood to provide functionality to
the grain cart. Id. at 3, 5. The Examiner determined that the modification
teaches a grain cart with greater flexibility and ease of transport. Ans. 5.
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Appeal 2015-005488
Application 12/728,042
Appellant’s arguments that Wood is rendered inoperable (Appeal Br.
13—14, 17—19) are not persuasive because the Examiner proposes to modify
Decider’s grain cart so the side panels are tapered and the auger sections
attach pivotally, as taught by Wood (Final Act. 2—3, 4; see Ans. 5).
Appellant argues that the Examiner’s reasons for combining the
teachings of these references to “provide functionality” and more flexibility
and greater ease of transport are conclusory statements that lack rational
underpinnings and indicate hindsight. Appeal Br. 14—15; Reply Br. 2—3.
A conclusion of obviousness must be supported by explicit findings
and analysis establishing an apparent reason to combine the known elements
in the manner required in the claim at issue. KSR Int 7 Co. v. Teleflex Inc.,
550 U.S. 398, 418 (2007). We agree with Appellant that the Examiner’s
reasons for combining teachings of Deckler, McMahon, and Wood lack the
requisite explicit findings and analysis to support a conclusion of
obviousness; however, we determine that bases with rational underpinnings
support a combination of these teachings. As our reviewing court has held:
Indeed, we have repeatedly held that an implicit motivation to
combine exists not only when a suggestion may be gleaned
from the prior art as a whole, but when the “improvement” is
technology-independent and the combination of references
results in a product or process that is more desirable, for
example because it is stronger, cheaper, cleaner, faster, lighter,
smaller, more durable, or more efficient. Because the desire to
enhance commercial opportunities by improving a product or
process is universal—and even common-sensical—we have
held that there exists in these situations a motivation to combine
prior art references even absent any hint of suggestion in the
references themselves. In such situations, the proper question is
whether the ordinary artisan possesses knowledge and skills
rendering him capable of combining the prior art references.
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Appeal 2015-005488
Application 12/728,042
E.g., DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co.,
464 F.3d 1356, 1368 (Fed. Cir. 2006). The Examiner has taken elements
from the prior art and used them according to their known usages to modify
and improve the grain cart of Deckler in a predictable manner that is well
within the level of ordinary skill in the art. As KSR held
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill.
KSR, 550 U.S. at 417.
The Examiner proposes to modify Deckler’s horizontal auger (col. 3,
lines 20—25) (the claimed first auger) to be external to the bin based on the
teachings of McMahon to do so. In this regard, McMahon teaches it is well
known in the art to place horizontal grain feed augers external to a grain bin
and use gates to meter grain inside the bin to the auger. McMahon, 1:11—22.
McMahon uses four gates 20 at the bottom of grain bin 15 to meter grain to
horizontal auger 35 and teaches that it is advantageous to open only two of
the opposing gates at a time to limit the power requirements on auger 35. Id.
at 1:51—63, 2:45—63, 3:2-4, Fig. 1. Employing McMahon’s external auger
on Deckler would improve the functionality and flexibility of Deckler in that
grain could be dispensed via gates 20 in the bin floor to external auger 35 in
a more precise, controlled manner, than Deckler’s internal, horizontal auger
that lacks the controlled metering capability of McMahon’s external auger.
This operation also prevents clogging of augers 35, 45. Id. at 3:9-17.
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Appeal 2015-005488
Application 12/728,042
The Examiner proposes to modify Decider further to include tapered
bin wall panels and a hinged vertical lift auger of Woods. Final Act. 3, 4. In
this regard, the Background of the Invention discloses both of these features
as known. Spec. 4 (“To reduce the size of the grain wagon for facilitating
storage and transport to and from a field, the unloading auger is typically
comprised of upper and lower sections which are pivotally coupled such as
by a hinge.”), 5 (“because these earlier designs require gravity to feed the
unloading auger, the sides, front and rear of the bin must be at an angle
sufficient to provide adequate downward flow of the grain.”).
Wood teaches the utility of these features for the same reasons. The
tapered bin panels 42, 44, 46 direct grain to an auger at a bottom of the bin.
See Wood, 2:66—3:12, Fig. 2. Wood also teaches the utility of a hinged lift
auger as allowing storage of the top half within the vertical and side planes
of the cart. See id. at 2:15—26, Figs. 1,3. Wood further teaches that upper
conveyor section 82 is hinged to allow loading of semi-trailer 120 spaced at
a substantial distance from grain cart 20 and discharge to higher semi-trailers
120. Id. at 4:10-65, Figs. 4, 6, 8. Therefore, the Examiner’s proposal to add
these features to Deckler is supported by rational underpinnings as set forth
in Wood of the advantages of these features in grain carts.
Finally, the Examiner’s finding that the modified Deckler grain cart
would position the second upper end portion of the second auger “generally
beneath the tapered front panel of the bin when the auger is in the transport
position” as recited in independent claims 1 and 18—20 (Ans. 6) is supported
by a preponderance of evidence. Wood discloses this upper end portion as
grain hood 95 and illustrates it as being generally beneath tapered front wall
42. See Wood, Figs. 1—3.
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Appeal 2015-005488
Application 12/728,042
The Examiner proposes to employ this feature on Decider where it
would fold generally parallel to the lower vertical auger 20 and store the
head “generally beneath the tapered front panel of the bin” 12 as shown in
Figure 1 of Decider. Including Wood’s hinged, pivotal upper section on
Decider’s vertical auger 20 would yield an upper section that folds upon the
lower section, as claimed, and would place the upper grain discharge hood
beneath Decider’s and Wood’s tapered front wall 12, 42. See Ans. 6. This
hinged, pivotal, vertical auger feature of Wood is readily combinable with
vertical auger 20 of Decider in that both recognize the utility of placing the
auger at the front of the grain bin and angled outwardly to facilitate visibility
to drivers and discharge to a truck. See Deckler, 3:21—24; Wood, 4:58—65.
Appellant also argues that the prior art’s vertical front walls are not
the same as the claimed “tapered front panel.” See Appeal Br. 19—23. This
argument is not persuasive as the Examiner relied on Wood to teach tapered
and inclined front 42, side 36, and rear 44 bin walls. See Final Act. 3, 4.
Appellant’s arguments do not address these findings and therefore do not
persuade us of error in these findings or the Examiner’s reason for including
these features in Deckler. Moreover, the Specification describes the lower
panels of the bin as being inclined and inwardly inclined. Appeal Br. 19-20
(citing Spec. H 19, 28). Appellant also discloses the lower panels as being
tapered, i.e., smaller than the upper portion, and as being inwardly tapered.
Spec. H20, 31. Side walls can taper so their width reduces from one end to
the other without being inclined or sloped. They can be inclined without
being tapered. The claims recite the front, rear, and side walls as tapered.
The claims do not require the tapered lower portions to taper inwardly.
Even so, the Examiner relies on Wood for this feature, as discussed above.
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Appeal 2015-005488
Application 12/728,042
Each of independent claims 19 and 20 and dependent claims 13
and 17 recite that the upper and lower sections of the second or vertical lift
auger are generally parallel in the folded state. Appellant argues that the
Examiner’s rationale for modifying Decider, McMahon, and Wood in this
manner as an obvious rearrangement of parts involving only routine skill in
the art (Final Act. 4, 5) is a conclusory statement that lacks a rational
underpinning and hints of impermissible hindsight. Appeal Br. 15—16.
Although we appreciate Appellant’s concern with a perceived use of
per se rules of patentability, in this context, the Examiner’s modification is
supported by rational underpinnings provided by the references themselves.
As discussed above, Deckler and Wood teach orienting a discharge auger in
an inclined manner at a front comer of a grain bin. We find that modifying
Deckler’s vertical auger 20 to include a hinged upper conveyor section of
Wood would result in the upper section being generally parallel to the lower
section when the upper section is folded into a stored position. Wood shows
how upper conveyor section 82 folds to a stored position. Wood, Fig. 3.
This arrangement would be generally parallel to Deckler’s vertical auger 20
when folded to a stored position against vertical auger 20 with the grain
hood below tapered front panel 12b of Deckler and below tapered, inclined
front panel 42 of Wood, as claimed. Cf. Deckler, Fig. 1 and Wood, Fig. 3.
Appellant’s arguments that the absence in the prior art of a dual auger
with folding auger system, despite the knowledge of both within the art, is
evidence of patentability is not persuasive absent evidence of long-felt need
or failure of the prior art to solve the problem. Nike, Inc. v. Adidas AG, 812
F.3d 1326, 1337—38 (Fed. Cir. 2016); see Reply Br. 3^4. As discussed
above, the prior art is directed to solving the same problems as Appellant.
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Appeal 2015-005488
Application 12/728,042
Accordingly, we sustain the rejection of independent claims 1 and 18—
20. We also sustain the rejection of claims 2—11 and 13—17, which depend
from claim 1, as Appellant does not separately argue those claims apart from
the issue discussed above regarding generally parallel upper and lower auger
sections. Appeal Br. 13—23. Because our analysis above extends beyond
that employed by the Examiner, the affirmance of the rejection is designated
as a new ground of rejection under 37 C/.F.R. § 41.50(b), in order to provide
Appellants with a fair opportunity to respond to the additional rationales.
DECISION
We affirm the rejection of claims 1—11 and 13—21. The affirmance is
designated as a new ground of rejection under 37 C.F.R. § 41.50(b).
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant
to this paragraph shall not be considered final for judicial review.” Section
41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this subpart.
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Application 12/728,042
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
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; 37 C.F.R, $ 41.50(b)
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