Ex Parte Mesmer et al

Board of Patent Appeals and Interferences

Sep 30, 2003

09072333 (B.P.A.I. Sep. 30, 2003)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 18
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte DENIS MESMER, MARTIN HAWLAS,
ANSGAR NONHOFF and EGBERT SCHOLZ
____________
Appeal No. 2002-1970
Application No. 09/072,333
____________
ON BRIEF
____________
Before ABRAMS, STAAB and BAHR, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 1, 3-9
and 11-13, which are all of the claims pending in this application.
We REVERSE.
BACKGROUND
Appeal No. 2002-1970
Application No. 09/072,333
Page 2
The appellants’ invention relates to a method and device for measuring the
length of bales in a baler for harvesting crops. Representative claims 1 and 9 are
reproduced below in the opinion section of this decision.
The examiner relied upon the following prior art references in rejecting the
appealed claims:
Bergvall et al. (Bergvall) 4,398,348 Aug. 16, 1983
McPherson 5,855,166 Jan. 5, 1999
(filed Feb. 28, 1997)
The following is the sole rejection before us for review.
Claims 1, 3-9 and 11-13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over McPherson in view of Bergvall.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellants regarding the above-noted rejection, we make reference to the answer
(Paper No. 12) for the examiner's complete reasoning in support of the rejection and to
the brief and reply brief (Paper Nos. 11 and 13) for the appellants’ arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellants’ specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellants and the examiner. As a consequence
of our review, we make the determinations which follow.
Appeal No. 2002-1970
Application No. 09/072,333
Page 3
Independent claims 1 and 9 read as follows:
1. In a square baler for baling harvested crops and having a
pick-up device, a feeding channel, a baling chamber, a
baling ram for forming a crop bundle in the baling chamber,
and a tying apparatus for tying the crop bundle and forming
a bale; the improvement comprising:
sensing means including a symmetrical measuring
wheel for sensing both forward and backward movements of
the crop bundle in the baling chamber;
means for determining an actual length value of the
crop bundle and triggering the tying apparatus when a pre-
set length for the crop bundle is reached; and
the sensing means including an electronic measuring
device which measures, via the rotational movement and the
direction of rotation of the measuring wheel, the forward and
backward movements of the crop bundle in the baling
chamber.
9. A baling method for controlling the length of a square
bale, comprising the steps of:
providing a measuring wheel;
sensing the measuring wheel’s rotary movement and
direction of rotation and thereby sensing both the forward
and backward movement of a crop bundle in a baling
chamber;
adding the measured forward and backward
movements of the crop bundle to determine an actual length
of the crop bundle;
and triggering a tying device once a pre-set target
length value is reached to tie the crop bundle into a bale.
McPherson, the jumping-off point in the examiner’s rejection, discloses a retrofit
measuring device for a baler of the type recited in claim 1 which measures the length of
the hay bale, determines when the bale being formed has reached a predetermined
size and actuates a tying mechanism on the baler. The measuring and actuation
Appeal No. 2002-1970
Application No. 09/072,333
Page 4
device of McPherson comprises a star wheel 44 which contacts the hay bale and
rotates as the bale is formed, a measuring wheel 45, coaxial with and spaced apart
from the star wheel, a rotation detecting device for detecting the rotation of the
measuring wheel and generating the bale measuring signal 70, and a control and
display module 73 for inputting the desired bale length and for actuating a signal 77
when the bale reaches the desired size to trigger the tying mechanism 64. McPherson
does not disclose a means for or step of sensing both the forward and backward
movements of the crop bundle (bale), as called for in claims 1 and 9.
To overcome the above-noted deficiency of McPherson, the examiner relies on
the teachings of Bergvall of a device for measuring movement of material using a wheel
rolling on the material. Bergvall’s invention
relates to a device for measuring distance and converting a
number representing the measured distance to a digital
form. The invention is especially adapted for use in a
machine for measuring distances on a workpiece to be
treated in a machine such as a sewing machine, and for
guiding the operation of the machine during feeding of the
workpiece, e.g., the forming of a fancy seam in a sewing
machine [Bergvall, column 1, lines 6-13].
Specifically, Bergvall discloses a toothed wheel 14 which rotates freely on a pin
15 and follows the motion of the cloth forwards as well as backwards. As explained in
column 2, line 22, et seq., the direction and degree of rotation of the wheel 14 is
measured and input to a control device which controls the feeding of the cloth so as to
stitch, for example, a buttonhole.
Appeal No. 2002-1970
Application No. 09/072,333
Page 5
Appellants argue that the examiner’s obviousness rejection is improper because
Bergvall is non-analogous art. For the reasons which follow, we agree with appellants.
As explained in In re Clay, 966 F.2d 656, 658-59, 23 USPQ2d 1058, 1060 (Fed.
Cir. 1992), a prerequisite to a finding of obviousness
is determining what is “prior art,” in order to consider
whether “the differences between the subject matter sought
to be patented and the prior art are such that the subject
matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the
art.” 35 U.S.C. § 103. Although § 103 does not, by its
terms, define the “art to which [the] subject matter [sought to
be patented] pertains,” this determination is frequently
couched in terms of whether the art is analogous or not, i.e.,
whether the art is “too remote to be treated as prior art.”
Two criteria have evolved for determining whether prior art is analogous: (1)
whether the art is from the same field of endeavor, regardless of the problem
addressed, and (2) if the reference is not within the field of the inventor's endeavor,
whether the reference still is reasonably pertinent to the particular problem with which
the inventor is involved. Id. See also In re Deminski, 796 F.2d 436, 442, 230 USPQ
313, 315 (Fed. Cir. 1986); In re Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174
(CCPA 1979).
Even giving the teachings of Bergvall and appellants’ invention their broadest
reading and application, they cannot reasonably be considered to be within the same
field of endeavor so as to satisfy the first criterion for analogous art. Bergvall is directed
to a device for measuring distances on a workpiece to be treated by a machine and for
Appeal No. 2002-1970
Application No. 09/072,333
Page 6
guiding operation of the machine during feeding of the workpiece (column 1, lines 6-12)
and thus is not from within appellants’ field of endeavor, namely, formation of crop
bundles or bales.
Moreover, Bergvall is concerned with monitoring the distance and direction of
feed of the workpiece, for example, cloth in a sewing machine, and does not address
appellants’ problem of measuring the length of a product, namely, a crop bale, and
taking into account re-expansion of the bale as the ram is withdrawn. There is no
mention in Bergvall of a concern about expansion or extension of the cloth or workpiece
discussed therein. Thus, it is not apparent to us why one of ordinary skill in the art of
crop baling would have looked to a reference such as Bergvall, concerned with
monitoring and control of workpiece feeding within a machine, to solve appellants’
problem of accurately measuring the length of a crop bale as it is formed in a baler.
Accordingly, we agree with appellants that Bergvall also fails to meet the second
criterion for analogous art.
In any event, even if Bergvall were considered to be analogous art, we find no
suggestion from the teaching therein of a feed monitoring and control system to modify
the bale length measuring device of McPherson. In particular, neither of the applied
references recognizes a need or desirability to take into account both forward and
backward movement of the crop bundle in the chamber in McPherson’s device.
Appeal No. 2002-1970
Application No. 09/072,333
Page 7
For the foregoing reasons, we conclude that the combined teachings of
McPherson and Bergvall are insufficient to establish that the differences between the
subject matter of claims 1 and 9 and the prior art are such that the subject matter as a
whole would have been obvious at the time the invention was made to a person of
ordinary skill in the art. It thus follows that we shall not sustain the rejection of claims 1
and 9 or claims 3-8 and 11-13 depending therefrom.
Appeal No. 2002-1970
Application No. 09/072,333
Page 8
CONCLUSION
To summarize, the decision of the examiner to reject claims 1, 3-9 and 11-13
under 35 U.S.C. § 103(a) is reversed.
REVERSED
NEAL E. ABRAMS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
Appeal No. 2002-1970
Application No. 09/072,333
Page 9
ROBERT E. MUIR
HUSCH & EPPENBERGER
401 MAIN STREET, SUITE 1400
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