Ex Parte Mayer et alDownload PDFPatent Trial and Appeal BoardJun 20, 201612259918 (P.T.A.B. Jun. 20, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 12/259,918 91924 7590 NAOMIASSIA 32 Habarzel Street Tel-Aviv, 6971048 ISRAEL FILING DATE FIRST NAMED INVENTOR 10/28/2008 YaronMayer 06/22/2016 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. P-BBM-7365-US 1832 EXAMINER HWU,DAVISD ART UNIT PAPER NUMBER 3752 NOTIFICATION DATE DELIVERY MODE 06/22/2016 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): naomih@computer-law.co.il adi@computer-law.co.il PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte Y ARON MA YER, AI J.C. BAUR, and HAIM GADASSI Appeal2014-006969 Application 12/259,918 1 Technology Center 3700 Before JOHN C. KERINS, STEP AN ST AI CO VICI, and LEE L. STEPINA, Administrative Patent Judges. ST AI CO VICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Yaron Mayer et al. (Appellants) seek our review under 35 U.S.C. § 134 of the Examiner's final decision rejecting claims 55-58, 60-68, and 71-73.2 We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF DECISION We REVERSE. According to Appellants, the real party in interest is Batya Barhon. Appeal Br. 1 (filed May 1, 2014). 2 Claims 1-54, 59, 69, and 70 are cancelled. See Appellants' Amendment, filed Sept. 22, 2013 ("Amendment"), p. 2-11. Appeal2014-006969 Application 12/259,918 TI'-JVENTION Appellants' invention "relates to automatic irrigation with humidity sensors." Spec. 1. Claim 55, the sole independent claim, is representative of the claimed invention and reads as follows: 55. A system for efficient automatic irrigation, comprising: at least one main pipe for connection to a source of water at high pressure; a plurality of side channels branching off from said at least one main pipe for carrying water at considerably lower pressure compared to the main pipe; a low pressure automatic valve disposed in each of said side channels for dispensing of water from a side channel in which the valve is disposed; and a humidity sensor connected to each said automatic valve and disposed adjacent the valve, for controlling dispensing of water from the side channel in which the humidity sensor and the automatic valve are disposed; wherein the low pressure automatic valve includes an asymmetric capillary material for achieving equilibrium between dispensed water supply and earth being watered when a desired level of humidity of the earth is reached, including at least one of: an asymmetric capillary material based on an asymmetric shape of the pores of the capillary material; an asymmetric capillary material having asymmetric pores that are narrower at a side adjacent the water supply than at a side adjacent the soil; an asymmetric capillary material based on small capillary tubes which are narrower at a side adjacent the water supply; an asymmetric capillary material having at least one of static negative charge or more oxygen on a side adjacent the water supply; an asymmetric capillary material having V-shaped pores; 2 Appeal2014-006969 Application 12/259,918 an asymmetric capillary material made from a gradient of different materials, so that the materials adjacent the water supply have higher capillarity; an asymmetric capillary material based on materials which are more hydrophilic on a side adjacent the earth and more hydrophobic on a side adjacent the water supply; an asymmetric capillary material which is at least one of asymmetric capillary carbon membrane, asymmetric polysulfone membrane, and asymmetric ceramic membrane; asymmetric capillary materials inserted into a bottom of cut parts or plants that need to develop new roots and thus act as artificial roots, helping to nourish the plants until the plants develop their own real roots; and a plurality of asymmetric capillary materials with different degrees of asymmetry, so that various choices are used for various desired levels of humidity. THE REJECTIONS The following rejections are before us for review3: I. The Examiner rejected claims 55-58; 60; 65; and 71-73 under 35 U.S.C. § 103(a) as being unpatentable over Brundisini (US 6,240,336 Bl, iss. May 29, 2001), Hintz (US 6,394,368 Bl, iss. May 28, 2002), and Meunier (US 4,769,277, iss. Sept. 6, 1988). II. The Examiner rejected claims 61---64 under 35 U.S.C. § 103(a) as being unpatentable over Brundisini, Hintz, Meunier, and Nunn (US 5, 794,848, iss. Aug. 18, 1998). 3 As claim 59 is cancelled, the rejection of claim 59 under 35 U.S.C. § 103(a) as being unpatentable over Brundisini, Hintz, Meunier, and Orsi (US 6,039,267, iss. Mar. 21, 2000) is moot and therefore, is not before us. See Final Act. 3; see also Amendment 4. 3 Appeal2014-006969 Application 12/259,918 III. The Examiner rejected claim 66 under 35 U.S.C. § 103(a) as being unpatentable over Brundisini, Hintz, Meunier, and Cooksley (US 4,045,293, iss. Aug. 30, 1977). IV. The Examiner rejected claim 67 under 35 U.S.C. § 103(a) as being unpatentable over Brundisini, Hintz, Meunier, and Ortiz (US 5,641,915, iss. June 24, 1997). V. The Examiner rejected claim 68 under 35 U.S.C. § 103(a) as being unpatentable over Brundisini, Hintz, Meunier, and Turner (US 4, 168, 799, iss. Sept. 25, 1979). ANALYSIS Rejection I The Examiner finds that the combined teachings of Brundisini and Hintz disclose most of the limitations of independent claim 55 including an irrigation water flow channel and a low pressure automatic valve in the channel, but that Brundisini and Hintz do not disclose that the low pressure automatic valve includes an asymmetric capillary material. Final Act. 2 (citing Brundisini, col. 8, 11. 15-30). Nonetheless, the Examiner finds that Meunier discloses "an irrigation system which uses an asymmetric capillary material 4 for achieving equilibrium between dispensed water supply and earth being watered when a desired level of humidity of the earth is reached." Id. According to the Examiner, the "asymmetric capillary material (of Meunier is) based on an asymmetric shape of the pores of the capillary material." Id. The Examiner concludes that "[i]t would have been obvious to one having ordinary skill in the art at the time the invention was made ... to have used capillary material to provide irrigation," because such 4 Appeal2014-006969 Application 12/259,918 "capillary material would function to absorb water from the ground if the ground is saturated if the water supply is shut off." Id. at 2-3. In the Response to Arguments section of the Final Action, the Examiner asserts that: It is well known by ones having ordinary skill in the art that capillary tubes have pores which allow the movement of liquids and just due to the nature of the material of the capillary tube of Meunier, the pore shapes will not all be identical, and therefore the capillary material will be asymmetric based on the shape of the pores. Id. at 5-6. Appellants argue that "the Meunier disclosure of a capillary tube is not a disclosure of an asymmetric capillary material as recited [in the] claims." Appeal Br. 4. Appellants assert that "[a] capillary tube is well understood to be a tube having a very fine bore or, in other words, a tube having a small internal diameter that holds liquid by capillary action," and that "the only elements in capillary tube 4 of Meunier that could remotely be considered pores are the two opening[s], which are not described in Meunier other than to suggest that [they] have circular (or at most nearly circular) cross-sections." Id. at 5. Appellants thus argue that "nothing is identified by the examiner nor found by appellants in their review of . . . [Meunier] to suggest that the openings are asymmetric as claimed." Id. Appellants also argue that the Examiner's conclusion that "the capillary material will be asymmetric based on the shape of the pore," is not supported, because even if "the two openings of the Meunier capillary tube were not identical, that does [not] mean that the shapes are asymmetric." Id. at 6. In the Answer, the Examiner relies on Henttonen (WO 01/01758 Al, pub. Jan. 11, 2001) in support of the assertion that it is well known that 5 Appeal2014-006969 Application 12/259,918 capillary tubes have pores. Ans. 5---6. The Examiner then asserts that "due to the nature of the porous material of capillary tubes, the pore shapes will not all be identical, and therefore the capillary material will be asymmetric based on the shape of the pores, thus meeting the limitation of claim 55." Id. at 6. In response, Appellants argue that, "[t]he examiner cannot rely on a new reference without formally declaring a new grounds of rejection." Reply Br. 3. Nonetheless, Appellants contend that the Examiner cites no portion of Henttonen that discloses, nor do Appellants discern in Henttonen, a disclosure that "the pores of element 6 are asymmetric as claimed." Id. At the outset, we note that Appellants' Specification describes an asymmetric material as having pores that are "narrower at the side of the water supply than at the side of the soil." Spec. 33; see also at 34 (describing asymmetric pores as funnel shaped). Appellants' Specification then sets forth several different methods of attaining asymmetric capillary materials that have asymmetric pores, wherein the pores are specifically formed or modified to have an asymmetric shape. See Spec. 38--40. As Meunier broadly discloses capillary tubes 4 fed by distribution conduit 5 (see Meunier, col. 8, 11. 40--42), we agree with Appellants that the Examiner fails to adequately explain why the openings in the tube of Meunier are asymmetric. In other words, merely because Meunier discloses capillary tubes 4, this does not mean that tubes 4 are made from an asymmetric capillary material and thus, necessarily have asymmetric openings (pores). As correctly stated by Appellants, Meunier' s openings (pores) could equally be symmetric. See Appeal Br. 5. 6 Appeal2014-006969 Application 12/259,918 In regards to the Examiner's use of Henttonen, based on the Examiner's position on pages 5---6 of the Final Action that it is well known that capillary tubes have pores, we understand the Examiner's assertion to amount to Official Notice and thus, the Examiner is using Henttonen in support of Official Notice. Nonetheless, we agree with Appellants that the Examiner fails to adequately explain why the pores of Henttonen's porous material are asymmetric. Specifically, Henttonen's porous material has pores that are "narrow," "open," "communicate with each other," have cross-sectional dimensions to provide even water distribution, and thus, "can be considered as a very large number of narrow vertical tubes that are interconnected." Henttonen, p. 7, 11. 1-15. As such, in view of Henttonen' s explicit teachings, we do not agree with the Examiner's position that Henttonen's pores are asymmetric merely because the capillary material is porous. Although Henttonen discloses a porous material having pores, Henttonen does not disclose an asymmetric capillary material having pores that are asymmetric or are formed in a manner that results in asymmetric pores. As noted above, Appellants disclose several methods of making asymmetric capillary materials having asymmetric pores and Henttonen fails to disclose such methods. As none of Brundisini, Hintz, Meunier, or Henttonen discloses an asymmetric capillary material having pores that are asymmetric or a process in which pores are formed asymmetrically, or modified to be asymmetric, we do not agree with the Examiner's determination that the resulting pores of Brundisini, Hintz, Meunier, and Henttonen necessarily include pores of an asymmetric shape. In other words, the Examiner's finding that the resulting pores of Brundisini, Hintz, Meunier, and Henttonen have an asymmetric shape is speculation and 7 Appeal2014-006969 Application 12/259,918 conjecture based on an unsupported finding that Henttonen necessarily discloses such pores due to the nature of a porous capillary tube. See Ans. 6. Therefore, we find that the Examiner's legal conclusion of obviousness is not supported by facts, and thus, cannot stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). Accordingly, for the foregoing reason, we do not sustain the rejection of claims 55-58, 60, 65, and 71-73 under 35 USC§ 103(a), as being unpatentable over Brundisini, Hintz, and Meunier. Rejections 11-V The Examiner does not rely on the teachings of Nunn, Cooksley, Ortiz, or Turner in any manner that would remedy the deficiencies in the rejection based on Brundisini, Hintz, and Meunier as described supra. See Final Act. 3-5. Accordingly, for the same reasons as discussed above, we do not sustain the rejections under 35 U.S.C. § 103(a) of claims 61-64 as being unpatentable over Brundisini, Hintz, Meunier, and Nunn; of claim 66 as being unpatentable over Brundisini, Hintz, Meunier, and Cooksley; of claim 67 as being unpatentable over Brundisini, Hintz, Meunier, and Ortiz; and of claim 68 as being unpatentable over Brundisini, Hintz, Meunier, and Turner. SUMMARY The decision of the Examiner to reject claims 55-58, 60-68, and 71- 73 is reversed. REVERSED 8 Copy with citationCopy as parenthetical citation