Ex Parte Martin et al

Patent Trial and Appeal Board

Jul 26, 2017

13843622 (P.T.A.B. Jul. 26, 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.
13/843,622 03/15/2013 Brooke Alicia Martin I030-0001US 2011
29150 7590
LEE & HAYES, PLLC
601 W. RIVERSIDE AVENUE
SUITE 1400
SPOKANE, WA 99201
EXAMINER
WAGGONER, TIMOTHY R
ART UNIT PAPER NUMBER
3651
NOTIFICATION DATE DELIVERY MODE
07/28/2017 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):
lhpto@leehayes.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BROOKE ALICIA MARTIN, LEVI ROBERT WILSON,
ROBERT CHRISTOPHER MARTIN, and
JAMES FRANCIS PELLAND
Appeal 2016-004922
Application 13/843,6221
Technology Center 3600
Before JASON V. MORGAN, BRUCE R. WINSOR, and
AMBER L. HAGY, Administrative Patent Judges.
WINSOR, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1—4 and 6—25, which constitute all the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b). Claim 5 is
cancelled. Br. 5.
We affirm-in-part.
1 The real party in interest identified by Appellants is Bondgy Inc.,
which is one of the Applicants. Br. 3.
Appeal 2016-004922
Application 13/843,622
STATEMENT OF THE CASE
Appellants’ disclosed invention relates to “an interactive unit (IU) that
facilitates communication, bonding, and training with an animal located
away from a user.” Spec. 113. Claims 1 and 22, which are illustrative, read
as follows:
1. A device comprising:
a housing comprising:
at least one channel configured to hold a first
clamp, the first clamp being selectively moveable in the
at least one channel;
a second clamp;
the first clamp and the second clamp being
configured to accept a communications device, the
communication device being operatively couplable to a
network;
a delivery opening;
a container affixable to the housing, the container being
sized to hold at least one product; and
a motor operatively couplable to the network and a power
source, the motor operatively coupled to a mechanism for
pushing, to cause the mechanism for pushing to rotate about the
motor to cause the at least one product to be dispensed from the
container through the delivery opening.
22. A system comprising:
an application loadable on at least a first communication
device and a second communication device;
a motor operatively coupled to the first communication
device, the motor configured to:
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receive an input via the application from the
second communication device; and
responsive to receiving the input, activate a
mechanism for pushing, wherein the mechanism for
pushing transits through a container configured to hold a
plurality of units of product, and pushes at least one unit
of product out of the container and into a delivery
passageway to be dispensed.
The Examiner relies on the following prior art in rejecting the claims:
Williams et al. US 2004/0007651 A1 Jan. 15, 2004
Carelli et al. US 2013/0013104 Al Jan. 10, 2013
Claims 1—8, 10-17 and 21 stand rejected under 35 U.S.C. § 103(a)2 as
being unpatentable over Carelli et al. (hereinafter “Carelli”), Williams et al.
(hereinafter “Williams”), and Wu et al. (hereinafter “Wu”). See Final Act.
4-5.
Claims 18—20 and 22—24 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Carelli and Wu et al. See Final Act. 6—7.
Claims 25 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Carelli, Williams, Wu, and Araujo. See Final Act. 7—8.
Rather than repeat the arguments here, we refer to the Appeal Brief
(“Br.” filed Sept. 14, 2015) and the Specification (“Spec.” filed Mar. 15,
2013) for Appellants’ positions and to the Final Office Action (“Final Act.”
2 All rejections are under the provisions of 35 U.S.C. in effect prior to the
effective date of the Feahy-Smith America Invents Act of 2011. Final Act 2.
Wu et al.
Araujo
US 7,984,694 B2 July 26, 2011
US 2012/0240863 Al Sept. 27, 2012
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Application 13/843,622
mailed June 12, 2015) and Examiner’s Answer (“Ans.” mailed Jan. 15,
2016) for the reasoning, findings, and conclusions of the Examiner. Only
those arguments actually made by Appellants have been considered in this
decision. Arguments that Appellants did not make in the Briefs have not
been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2015).
OBJECTIONS TO THE DRAWINGS
Appellants ask that we reverse the Examiner’s objection to the
drawings under 37 C.F.R. § 1.83 for failure to show every feature of the
invention specified in the claims. See Br. 10—11. This Board is empowered
to “review adverse decisions of examiners upon applications for patents
pursuant to section 134(a).” 35 U.S.C. § 6(b)(1) (emphasis added); see also
37 C.F.R. § 41.31(a)(1). Section 134(a) of 35 U.S.C. provides that “[a]n
applicant for patent, any of whose claims have been twice rejected, may
appeal from the decision of the primary examiner to the Patent Trial and
Appeal Board.” (Emphases added.) In other words, the Board considers
appeals from the rejection of claims. Other matters, such as objections to the
drawings, are reviewable by petition to the Director of the U.S. Patent and
Trademark Office or as delegated by the Director. See 37 C.F.R. § 1.181 et
seq.; MPEP §§ 1001 et seq. Therefore the Examiner’s objection to the
drawings is not before us on appeal. See MPEP § 1201 (“The Board will not
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Application 13/843,622
ordinarily hear a question that should be decided by the Director on petition
. . . cf. MPEP §§ 608.04(c), 2163.06 (II).
ISSUES
The issues presented by Appellants’ arguments are as follows:
Does the Examiner err in finding that Wu, when combined with
Carelli, teaches or suggests “[a] motor operatively coupled to a mechanism
for pushing, to cause the mechanism for pushing to rotate about the motor to
cause the at least one product to be dispensed from the container through the
delivery opening,” as recited in claim 1?
Does the Examiner err in finding that Wu, when combined with
Carelli, teaches or suggests
[a] motor activating a mechanism for pushing, wherein the motor
causes the mechanism for pushing to rotate about an axis in order
to push at least one unit of a plurality of units of product; and
releasing, via the mechanism for pushing, the at least one unit of
the plurality of units of product from a container,
as recited in claim 18?
Does the Examiner err in concluding it would have been obvious at
the time of the invention to combine the teachings of Wu and Carelli?
Does the Examiner err in finding that Wu, when combined with
Carelli, teaches or suggests “a mechanism for pushing, wherein the
mechanism for pushing transits through a container configured to hold a
plurality of units of product, and pushes at least one unit of product out of
the container and into a delivery passageway to be dispensed,” as recited in
claim 22?
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ANALYSIS
Claim 1
Appellants contend as follows:
Wu makes clear that “the first turntable 21 is driven to rotate first,
so that the fodder inlet 211 of the first turntable 21 and the fodder
outlet 11a of the fodder bin 10a are aligned with each other
axially” (Wu, col. 4, lines 51-54) so that a principle fodder A will
drop into the container (see e.g., Wu, col. 4, lines 57-58) “and
then the second turntable 22 is driven to rotate, so that the hole
221 is interconnected with the passage 212” (Wu, col. 4, lines 63-
65) so that “the principal fodder A in the passage 212 is passed
through the hole 221 and dropped onto the receiving board 24”
(Wu, col. 4, lines 65-67). In other words, Wu describes a
dispenser with a rotating cup of food that is aligned with a hole
for dispensing the food. See Wu, col. 4, lines 52-54 and 64-65.
Because the rotating cup described in Wu relies on gravity to
load the cup and dispense the food, Wu does not describe, teach
or suggest “[a] mechanism for pushing ... [that] rotate[s]... to
cause ... at least one product to be dispensed from . . . container
through [a] . . . delivery opening,” as claim 1 recites (emphasis
added).
Br. 14—15 (alterations of claim language in original).
We are not persuaded of error. Wu teaches that once passage 212 is
filled to a predetermined height with the principal fodder A, “the first
turntable 21 is driven to rotate, so that the fodder inlet 211 is separated from
the fodder outlet 11 a of the fodder bin 10a.” Wu, col. 4,11. 60-62; see also
Wu, Figs. 7, 8. We find that the rotation of Wu’s first turntable “push[es]”
(claim 1) the principal fodder A (“at least one unit of product” (claim 1)) in
passage 212. We further find that this rotation, which is part of the process
of causing fodder A to be delivered to passage 212 is “to cause ... at least
one product to be dispensed from . . . container through [a] . . . delivery
opening” (claim 1). Specifically, this rotation of turntable 21 stops the
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outputting of fodder bin l(k before second turntable 22 is rotated to
continue the delivery process through hole 221. See Wu, col. 6,11. 62—67.
That gravity may also play a part in the delivery of fodder A through
passage 212 does not change our analysis, as the claim does not preclude
gravity from playing a part in the delivery of the product through the
delivery opening. Compare Wu Fig. 5, item 24, with Spec. Fig. 4, item 418.
Claim 18
Appellants’ arguments for the patentability of claim 18 are similar to
those presented for claim 1. We are not persuaded of error for similar
reasons. As discussed supra, we find that the rotation of Wu’s first turntable
“push[es]” (claim 18) the principal fodder A (“at least one unit of. . .
product” (claim 18)) in passage 212. See Wu, col. 4,11. 60-62. We further
find that this rotation by Wu’s “mechanism for pushing” (claim 18) is at
least a part of Wu’s function of “releasing ... the at least one unit of the
plurality of units of product from a container” (id.). We note that claim 18
recites that the releasing occurs via the mechanism for pushing, but does not
recite that the releasing occurs as a result of the pushing.
Combination
The Examiner concludes as follows:
It would have been obvious to one skilled in the art to
modify the dispenser of Carelli ... to use a disk-shaped body
which rotates about a motor to push out at least one product as
taught by Wu because it is a simpler design which would cost
les[s] to manufacture and have fewer modes of failure.
Final Act. 4—5 (discussing claim 1); see also Final Act. 6 (discussing claim
18).
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Appellants contend the Examiner “has failed to provide any
motivation as to why a person having ordinary skill in the art would look to
Wu to add to the teachings of Carelli.” Br. 22. Appellants further contend
the Examiner “fails to point to any suggestion in Carelli, Wu, or elsewhere
in the art, to combine the documents as suggested in the Office Action.” We
are not persuaded of error.
“[T]here must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006)). However, “[t]he obviousness analysis cannot be
confined ... by overemphasis on the importance of published articles and
the explicit content of issued patents.” Id. at 419. Furthermore, “[rjigid
preventative rules that deny factfinders recourse to common sense . . . are
neither necessary under [Supreme Court] case law nor consistent with it.”
Id. at 421.
Here the Examiner has articulated a reason to combine and supported
it with underpinnings that are rational on their face, see Final Act. 4—5, 6;
see KSR, 550 U.S. at 418, and are implicitly the result of the application of
the Examiner’s common sense, see KSR, 550 U.S. at 421. As such, that the
Examiner did not quote statements in the prior art to underpin the rationale is
not dispositive. See id. at 419. Appellants’ argument, which asserts the non­
existence of such rational underpinnings, but does not challenge the
correctness of the underpinnings, does not demonstrate error.
For emphasis, we note that Wu suggests the interchangeability of
known mechanisms for moving product from a container to discharge
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opening. Compare Wu, Figs. 4—9, with id. Fig. 14, and with id. Fig. 15, and
with id. Fig. 17. The combination of the teachings of Carelli and Wu is
“[t]he combination of familiar elements according to known methods
. . . [that] does no more than yield predictable results,” KSR, 550 U.S. at 416,
thus representing a predictable variation that can be implemented by a
person of ordinary skill in the art, id. at 417.
Claim 22
Appellants contend as follows:
Because the rotating cup described in Wu relies on gravity to
load the cup and dispense the food, Wu does not describe, teach
or suggest “[a] mechanism for pushing [that] transits through a
container configured to hold a plurality of units of product, and
pushes at least one unit of product out of the container, ” as
claim 22 recites (emphasis added).
Br. 25 (alterations to claim language in original). We agree with Appellants.
Claim 22, unlike claims 1 and 18, requires that the mechanism transit
through the container holding the product and push at least one unit of
product out of the container. We accept, arguendo and without deciding,
that the Examiner is correct that Appellants drawings do not illustrate the
pushing mechanism passing through the product container. Ans. 5—6
(discussing Spec. Figs. 4, 5). The Examiner takes the position that, in light
of Appellants’ Specification, the broadest reasonable interpretation of
“through the container” encompasses immediately below the container. See
id. However, the plain meaning of “through[3] the container” precludes an
3“through . . . prep[osition\ ... 1 a (1) — used as a function word to
indicated into at one side or point and out at another and especially] the
opposite side of.” Merriam-Webster’s Collegiate Dictionary 1230
(10th ed. 1999).
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embodiment where the pushing mechanism passes immediately adjacent the
container, e.g., below the container. We note that this conclusion is
supported by Appellants’ Specification at paragraph 33, which states that
“the mechanism for pushing 306 travels along a pre-determined path through
an opening in a container 308.” See also Spec, 17, 42, 58, 67. In Wu the
pushing mechanism passes below the product container 10a and receives
product by gravity. See Wu, Wu, col. 4,1. 51—col. 5,1. 2, Figs. 4—9. In other
words, in Wu, the pushing is subsequent to the removal of the at least one
unit of product from the container, and the mechanism neither passes
through the container nor removes a unit of product from the container.
Summary
Appellants have not persuaded us of error in the rejection of claims 1
and 18. Appellants assert that neither Williams nor Araujo cure the
deficiencies in the teaching of Carelli and Wu regarding claims 1 and 18,
and dependent claims, See, e.g., Br. 6, 28—29. Because we find no
deficiencies in the teaching of Carelli and Wu regarding claims 1 and 18, we
find these assertions to be unpersuasive. Accordingly we sustain the
rejections of claims 1 and 18 and claims 2—\ and 6—17, 19-21, and 25,
which variously depend from claims 1 and 18 and were not otherwise
separately argued with particularity.
Appellants have persuaded us of error in the rejection of claim 22.
Accordingly, we do not sustain the rejection of claim 22 and claims 23 and
24, which depend from claim 22.
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DECISION
The decision of the Examiner to reject claims 1—4, 6—21, and 25 is
affirmed.
The decision of the Examiner to reject claims 22—24 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§§ 41.50(f), 41.52(b).
AFFIRMED-IN-PART
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