Ex Parte Pizano et al

Patent Trial and Appeal Board

Sep 12, 2016

12877631 (P.T.A.B. Sep. 12, 2016)

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.
12/877,631 09/08/2010 Miguel A. Pizano 26.2.E66/USA 3528
61145 7590 09/12/2016
JAMES W. MILLER, ATTORNEY
527 MARQUETTE AVENUE
SUITE 1960, RAND TOWER
MINNEAPOLIS, MN 55402
EXAMINER
MCGOWAN, JAMIE LOUISE
ART UNIT PAPER NUMBER
3671
MAIL DATE DELIVERY MODE
09/12/2016 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 PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MIGUEL A. PIZANO, BENJAMIN A. STREET,
CAL N. KOSIERACKI, and ANDREW J. KJOLHAUG
____________________

Appeal 2014-009238
Application 12/877,631
Technology Center 3600
____________________

Before LINDA E. HORNER, LYNNE H. BROWNE, and
BRENT M. DOUGAL, Administrative Patent Judges.

DOUGAL, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

Appeal 2014-009238
Application 12/877,631

2
CLAIMED SUBJECT MATTER
The claims are directed to a turf groomer for natural and artificial turf
surfaces. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A groomer for use in grooming an artificial turf surface having
a backing material that is laid atop the ground with the backing
material having upstanding ribbons of artificial fibers that
resemble blades of grass, the backing material having granular or
particulate infill material placed atop the backing material to
substantially fill in the spaces between the artificial fibers, which
comprises:
(a) a groomer frame which is movable over the artificial
turf surface to traverse the artificial turf surface, the groomer
frame having a front and a rear taken with respect to a forward
direction of motion of the groomer frame over the artificial turf
surface;
(b) at least one grooming brush carried on the groomer
frame in a substantially static manner and depending
downwardly from the groomer frame with the grooming brush
during a grooming operation extending down at least partially
into and substantially continuously engaging with the infill
material of the artificial turf surface as the groomer frame
traverses the artificial turf surface during the grooming
operation, wherein the grooming brush extends at least partially
laterally relative to the forward direction of motion of the
groomer frame, and wherein the grooming brush comprises:
(i) a first brush wall comprising a substantially
single row of brush bristles with top ends of the brush
bristles being substantially closely packed together and
with lower portions of the brush bristles fanning out as the
brush bristles extend downwardly from their packed
together top ends; and
(ii) a second brush wall which is substantially
identical to the first brush wall and which is parallel to but
spaced away from the first brush wall by a gap, wherein
the gap between the brush walls is large enough so that the
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Application 12/877,631

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first and second brush walls act substantially
independently of one another on the infill material.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Thompson
Ankenman
Pettigrew
Figura
Davis
Melroe
Davis ’469
Davis ’809
US 3,588,145
US 4,210,210
US 5,218,732
US 5,477,927
US 5,833,013
US 6,016,584
US 6,655,469 B1
US 8,209,809 B2
June 28, 1971
July 1, 1980
June 15, 1993
Dec. 26, 1995
Nov. 10, 1998
Jan. 25, 2000
Dec. 2, 2003
July 3, 2012

REJECTIONS
Claims 1–5, 16–18, and 20 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Davis and Melroe.
Claim 6 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Davis, Melroe, and Thompson.
Claims 7 and 11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Davis, Melroe, and Pettigrew.
Claims 8 and 9 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Davis, Melroe, Pettigrew, and Davis ’469.
Claim 10 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Davis, Melroe, Pettigrew, Davis ’809, and Ankenman.
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Application 12/877,631

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Claims 12–15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Davis, Melroe, Davis ’809, and Ankenman.
Claim 19 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Davis, Melroe, and Figura.

OPINION
Claims 1 and 20 are independent. Claims 2–19 depend from claim 1.
Appellants rely on their arguments over the rejection of claim 1 for reversal
of claims 2–19 all of the rejections. Thus, claims 2–19 stand or fall with the
rejection of claim 1. See 37 C.F.R. § 41.37(c)(iv).

Claim 1
The Examiner finds that Davis teaches a majority of the features of
claim 1. Final Act. 2. Melroe is relied upon for “a brush head with two
rows of bristles spaced by a gap sufficient for the brush walls to act
independently.” Id. at 3. The Examiner explains:
It would have been obvious to one of ordinary skill in the art at
the time the invention was made to use the brush heads of Melroe
in place of the brush heads of Davis as a simple substitution of
one known element for another to obtain predictable results since
both brush heads work to groom turf surfaces.
Id. (citation omitted).
Appellants argue that Davis and Melroe are “two very different
devices” (Appeal Br. 9)—Davis is a turf groomer (id.) while Melroe is a
“sweeping/cleaning” device (id. at 10). Appellants argue that turf groomers
“continuously engage and act on the infill material of an artificial turf
surface to level such infill material” which “is fundamentally different from
what Melroe was trying to accomplish, namely sweeping a path clean of any
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Application 12/877,631

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particulate matter.” Id. at 11. Appellants further argue: “Leaving the
particulate matter in place but simply leveling it out as is desired in a turf
groomer is diametrically opposite to sweeping all the particulate matter
away as is desired in a path cleaning device.” Id. at 12.
The Examiner counters that both Davis and Melroe disclose
“apparatuses with brush members for engagement with the ground.”
Answer 9. The Examiner also argues that the function of Melroe “is
irrelevant because the basic operation of Davis is not being altered in the
combination.” Id. at 10.
In reviewing the Examiner’s position, that Davis’s and Melroe’s brush
systems are interchangeable (i.e., a simple substitution), we must determine
“whether the improvement is more than the predictable use of prior art
elements according to their established functions.” KSR Int'l Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007). For this reason, the functions of both Davis
and Melroe are relevant.
On the record before us, it has not been established that the brush
implements of Davis and Melroe are equivalents. As outlined by
Appellants, the “established functions” of Davis and Melroe are very
different and thus, it has not been demonstrated that the substitution of the
brush of Melroe, used to remove material, would yield predictable results for
grooming artificial turf in the system of Davis. Thus, Appellants have
convincingly argued that the Examiner has not shown that using the brush of
Melroe with the Davis device is a simple substitution with predictable
results.
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For the above reasons, we do not sustain the rejection of claim 1. For these
same reasons, we do not sustain the rejections of claims 2–19, which depend
from claim 1.

Claim 20
The Examiner finds that Davis teaches a majority of the features of
claim 20. Final Act. 4. Melroe is relied upon for disclosing “a turf groomer
with brush heads connected to a channel member” and for teaching “that
either a single brush member or a brush member with two spaced walls of
bristles can be used to adjust the sweeping action of the brush members.”
Id. at 5. The Examiner explains: “It would have been obvious to one of
ordinary skill in the art at the time the invention was made to utilize different
brush heads in Davis as taught by Melroe to adjust the sweeping action of
the brush heads depending on the needs of the user.” Id.
Appellants note that the rejection of claim 20 “relies upon the
powered rotary sweeper of Melroe that teaches a pair of spaced brush walls
for sweeping and cleaning a path to purportedly support the obviousness of
using such brush walls in place of the push boom brushes of Davis for
grooming a turf surface.” Appeal Br. 14. Appellants contend that “the
reasons advanced above for reversing the rejection of claim 1 also mandate a
reversal of the rejection of claim 20.” Id. We agree.
For the reasons set forth above in our analysis of the rejection of claim
1, we disagree with the Examiner’s finding that Melroe teaches a turf
groomer, and thus, the Examiner has not shown that using the sweeper brush
of Melroe with the turf groomer of Davis would have been obvious to a
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person having ordinary skill in the art at the time of Appellants’ invention.
For these reasons, we do not sustain the rejection of claim 20.

DECISION
The Examiner’s rejection of claims 1–20 is reversed.

REVERSED