Ex Parte Pirro et al

Board of Patent Appeals and Interferences

Oct 13, 2010

11301038 (B.P.A.I. Oct. 13, 2010)

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.
11/301,038 12/12/2005 Peter Pirro 09474-US 7013
30689 7590 10/14/2010
DEERE & COMPANY
ONE JOHN DEERE PLACE
MOLINE, IL 61265
EXAMINER
MCGOWAN, JAMIE LOUISE
ART UNIT PAPER NUMBER
3671
MAIL DATE DELIVERY MODE
10/14/2010 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PETER PIRRO, CHRISTOPHE DEBAIN,
BERNARD BENET, and MICHEL BERDUCAT
____________

Appeal 2009-007737
Application 11/301,038
Technology Center 3600
____________

Before STEVEN D.A. McCARTHY, MICHAEL W. O’NEILL, and KEN B.
BARRETT, Administrative Patent Judges.

O’NEILL, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown in the PTOL-90A cover letter attached to this decision.

Appeal 2009-007737
Application 11/301,038

2
STATEMENT OF THE CASE
Peter Pirro et al. (Appellants) seek our review under 35 U.S.C. § 134
of the final rejection of claims 1 and 3-6. Appellants cancelled claim 2. We
have jurisdiction under 35 U.S.C. § 6(b).

The Invention
The claimed invention is to a harvesting machine having an adjustable
chopping mechanism.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A harvesting machine comprising:
a chopper mechanism for cutting harvested
crop into short lengths;
a conveyor unit coupled for receiving crop
exiting from said chopper mechanism[;]
a discharge chute coupled for receiving crop
exiting from said conveyor unit;
a crop granulometric parameter sensor being
located and configured for measuring an actual
length of chopped crop flowing through said
discharge chute and for generating a control signal
representing said sensed granulometric parameter;
a crop feed arrangement coupled for feeding
harvested crop to the chopper mechanism;
a drive arrangement coupled for driving the
crop feed arrangement and the chopper means, the
drive arrangement including at least one adjustable
component driving at least one of said crop feed
arrangement and chopper mechanism at a variable
speed so as to change the length into which the
harvested crop is cut; and
a control device connected to the adjustable
component and to said crop parameter sensor;
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an input device connected to said control
device for inputting a desired length of cut; and
said control device being configured to
automatically control the adjustable component
such that the length into which crop is cut by said
chopper mechanism is a function of the desired
and actual lengths of said chopped crop, with the
resulting speed of at least one of the crop feed
arrangement and chopper mechanism being such
as to effect a length of cut which approximates
said desired length of chopped crop.

The Rejections
The following Examiner’s rejections are before us for review:
Claims 1, 3, and 6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Pirro (U.S. Patent Application Publication No.
2003/0217538 A1, published Nov. 27, 2003) in view of Pirard (U.S. Patent
Application Publication No. 2004/0151360 A1, published Aug. 5, 2004).
Claims 4 and 5 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Pirro in view of Pirard, as applied to claim 3 above, and further in view
of Affleck (U.S. Patent Application Publication No. 2004/0218804 A1,
published Nov. 4, 2004).2

SUMMARY OF DECISION
We AFFIRM.

2 The rejection has been reworded to correctly reflect that it is based on the
rejection of claim 3.
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DISCUSSION
Issues
In light of the Appellants’ contentions and the Examiner’s positions,
the issues before us are as follows:
1) Did the Examiner err in concluding that it would have been obvious
to one of ordinary skill in the art to modify the harvester of Pirro by making
the crop parameter sensor be a granulometric parameter sensor as taught by
Pirard?
2) Did the Examiner err in concluding that it would have been obvious
to one of ordinary skill in the art to modify the resulting harvester from the
combination of Pirro and Pirard to include a flash device as taught by
Affleck?
Analysis
We adopt the Examiner’s factual findings and legal conclusion
articulated on pages 4-6 of the Examiner’s Answer that establish a prima
facie case of obviousness as our own. We now turn to Appellants’
arguments.
Issue (1)
Appellants contend that “the current invention resides in the idea of
providing a closed loop control for obtaining an actual length of cut of a
harvested crop which closely approximates a desired length of cut, with the
length of cut being a function of the speed of an adjustable component of
either a crop feed arrangement, or of a crop chopping means.” App. Br. 11.
Appellants also contend that the Examiner’s “rejection is in error for the
reason that [Pirro and Pirard] do not teach the idea of using a closed loop
system to control the drive speed of a variable speed component of a crop
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feed arrangement or of a crop chopping means so as to arrive at an actual
length of cut which closely approximates a desired length of cut.” Id.
Appellants also contend that neither Pirro nor Pirard recognized the problem
of crop slippage between the feed arrangement and the chopping drum so
that the crop being processed may result in the actual length of cut being
different from the desired length of cut thought to be equal to the calculated
length of cut. App. Br. 12. Finally, Appellants also contend that “without
recognizing the problem of inaccurate length of cut resulting from crop
slippage either through the crop feed arrangement or the chopping drum, it is
submitted that one skilled in the art would not have been looking for a
solution to the slippage problem in the Pirro design.” App. Br. 13.
We are not persuaded by Appellants’ contentions that the Examiner’s
rejection is in error. In response to Appellants’ contention that “the current
invention resides in the idea of providing a closed loop control for obtaining
an actual length of cut of a harvested crop which closely approximates a
desired length of cut, with the length of cut being a function of the speed of
an adjustable component of either a crop feed arrangement, or of a crop
chopping means,” we note that mere “ideas” are not patentable.
With respect to Appellants’ contention regarding using a closed loop
system, the Examiner found that the combination of Pirro in view of Pirard
does indeed disclose a closed loop system. See Ans. 5 and 6. Appellants
have not supplied any persuasive evidence or argument to show that the
Examiner’s finding is incorrect. Regardless, a “closed loop system” is not
recited in the claims and therefore, need not be shown by the combination of
Pirro and Pirard.
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With regard to Appellants’ contention that neither Pirro nor Pirard
recognized the problem of crop slippage, we note that whether or not Pirro
and Pirard recognized the crop slippage problem is not dispositive. In
making determinations of obviousness, courts and patent examiners are
cautioned not to look only to the problem Appellants were trying to solve.
The problem motivating Appellants may be only one of many addressed by
the claimed subject matter. “The question is not whether the combination
was obvious to [Appellants] but whether the combination was obvious to a
person with ordinary skill in the art. Under the correct analysis, any need or
problem known in the field of endeavor at the time of invention and
addressed by the [claim] can provide a reason for combining the elements in
the manner claimed.” KSR Int’l. Co. v. Teleflex, Inc., 550 U.S. 398, 420
(2007). Indeed, KSR reminds us that, in making determinations of
obviousness, we must not limit our analysis only to the problem(s)
Appellants were trying to solve. Thus, we disagree with Appellants because
even if Pirro and Pirard did not recognize the crop slippage problem, this
does not necessarily lead to Appellants’ conclusion that the Pirro and Pirard
references are not combinable in the manner suggested by the Examiner.
Moreover, the harvester of Pirro has all of the structure recited in
Appellants’ claim 1, except that the crop parameter sensor of Pirro is not a
granulometric parameter sensor as recited in the claim. The Examiner has
pointed to lines 9-12 of paragraph no. [0019] of Pirro which states that “any
other sensors can be used, alternatively or additionally, that ascertain the
moisture or other parameters of the harvested crop, and whose signals can be
used for adjusting the cutting length.” Thus, we agree with the Examiner
that “[g]iven the teaching of Pirro[,] it would have been obvious to one of
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ordinary skill in the art at the time the invention was made to include the
optical sensor and granulometric measurement system of Pirard in the
harvester of Pirro so as to directly and therefore more accurately measure the
actual length of crop (i.e. closed loop) instead of indirectly measuring
through the use of moisture tables thereby controlling the adjustable
component such that the cut length is a function of the desired and actual
lengths of the chopped crop.” (Ans. 5)
In view of the foregoing, we sustain the Examiner’s rejection of
claims 1, 3, and 6 as unpatentable under 35 U.S.C. § 103(a) over Pirro in
view of Pirard.
Issue 2
Appellants contend that the Examiner’s rejection of claims 4 and 5 “is
in error for the reason that [Pirro, Pirard and Affleck] do not teach the idea
of using a closed loop system to control the drive speed of a variable speed
component of a crop feed arrangement or of a crop chopping means so as to
arrive at an actual length of cut which closely approximates a desired length
of cut.” App. Br. 13. Appellants also contend that Affleck “in no way
recognize[s] that there is a [crop] slippage problem associated with the
automatic length of cut control arrangement of the prior art Pirro forage
harvester.” Id.
We are not persuaded by Appellants’ contentions that the Examiner’s
rejection is in error. As discussed supra, the Examiner has concluded that
the combination of Pirro and Pirard suggest a closed loop system and
Appellants have not provided any evidence to show that the Examiner’s
conclusion is incorrect. Modifying the harvester resulting from the
combination of Pirro and Pirard by the addition of Affleck’s flash device
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would not affect the Examiner’s conclusion of a closed loop system.
Additionally, even if the combination of Pirro, Pirard, and Affleck does not
disclose a closed loop system, a “closed loop system” is not recited in the
claims and therefore, need not be present in the combination of Pirro, Pirard
and Affleck.
As stated supra with respect to Appellants’ arguments that Pirro and
Pirard did not recognize the crop slippage problem, that fact that Affleck did
not recognize the crop slippage problem is not dispositive because the
question is not whether the combination was obvious to Appellant but
whether it was obvious to a person of ordinary skill in the art. Here, we
conclude that the combination of Pirro, Pirard, and Affleck would have been
obvious to one of ordinary skill in the art for the reasons set forth by the
Examiner.
In view of the foregoing, we sustain the Examiner’s rejection of
claims 4 and 5 under 35 U.S.C. § 103(a) as unpatentable over Pirro, Pirard,
and Affleck.

CONCLUSIONS
The Examiner did not err in concluding that it would have been
obvious to one of ordinary skill in the art to modify the harvester of Pirro by
the teachings of Pirard to include a crop granulometric parameter sensor.
The Examiner did not err in concluding that it would have been
obvious to one of ordinary skill in the art to modify the resulting harvester
from the combination of Pirro in view of Pirard to include a flash device as
taught by Affleck.

Appeal 2009-007737
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DECISION
We affirm the rejections of claims 1, 3, and 6 under 35 U.S.C.
§ 103(a) as unpatentable over Pirro and Pirard and claims 4 and 5 under 35
U.S.C. § 103(a) as unpatentable over Pirro, Pirard, and Affleck.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED

Klh

DEERE & COMPANY
ONE JOHN DEERE PLACE
MOLINE, IL 61265