Ex Parte Poutre

Board of Patent Appeals and Interferences

Dec 3, 2009

10846115 (B.P.A.I. Dec. 3, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte BENOIT JOCELYN POUTRE
____________________

Appeal 2009-001783
Application 10/846,115
Technology Center 3600
____________________

Decided: December 3, 2009
____________________

Before ALLEN R. MACDONALD, Vice Chief Administrative Patent Judge,
and STEFAN STAICOVICI and FRED A. SILVERBERG, Administrative
Patent Judges.

SILVERBERG, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Benoit Jocelyn Poutre (Appellant) seeks our review under 35 U.S.C.
§ 134 of the final rejection of claims 1-18 and 20. We have jurisdiction
under 35 U.S.C. § 6(b) (2002).

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SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
Appellant’s claimed invention is directed to tillage sweeps with
angled contact surfaces (Spec. 1: ¶ [0001]).
The invention is readily understood by reference to Figure 1, and
Claim 1.
Figure 1 is reproduced below:

Figure 1 shows a top view of a tillage sweep 10 (Spec. 2: ¶ [0007]).

Claim 1, reproduced below, is representative of the claimed subject
matter on appeal:
1. An agricultural tillage sweep adapted
for forward movement through soil, the sweep
comprising:
a stem portion;
a leading nose portion extending forwardly
from the stem portion and having outwardly
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directed soil contacting surfaces for lifting the soil
and moving the soil outwardly around the stem
portion; and
wing structure extending outwardly from the
stem portion and rearwardly from the leading nose
portion, the wing structure including upwardly
directed wing surfaces extending outwardly from
the leading nose portion towards outer ends of the
wing rearwardly of leading wing edges, the
surfaces having an upwardly and outwardly
concave surface portion extending rearwardly from
the nose portion outwardly of the stem portion, the
concave surface portion extending along a
substantial portion of the wing structure from an
inward location outwardly of the stem portion, the
concave surface having a radius of curvature
centered above the sweep and providing increasing
outward soil deflection in the rearward direction.

THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Miner US 104,754 Jun. 28, 1870

The following rejection by the Examiner is before us for review:
Claims 1-18 and 20 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Miner.

ISSUES
The issues before us are: (1) whether the Examiner erred in finding
that Miner describes surfaces having an upwardly and outwardly concave
surface portion as called for in independent claims 1 and 17 (App. Br. 7, 10);
(2) whether the Examiner erred in finding that Miner describes an upper
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surface concavity along a substantial portion of the blade surfaces as called
for in independent claim 11 (App. Br. 8); and (3) whether the Examiner
erred in finding that Miner describes the wing angles as called for in claims
5 and 15 (App. Br. 9, 10).

FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
The Examiner’s Findings
1. The Examiner finds that Miner describes an upwardly concave
wing surface (Ans. 6). In support thereof, the Examiner references
(1) the one-way curve marks in figure 1 of Miner to indicate that
the wing surfaces bend upwardly and outwardly; (2) page 1,
column 1, lines 34-35 of Miner which states that “the wings are
turned upward and outward slightly and gradually.”; and (3)
markings on the underside of figure 2 of Miner. (Ans. 6).
2. The Examiner further finds: (1) that there is no structural
difference between the claimed invention and Miner’s plow, and
(2) that some soil would pass to the side of Miner’s wing structure
(Ans. 8).
The Board’s Findings
3. Miner describes a cultivator-plow A that is “intended to run
between growing crops to cut up the grass and throw the soil
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slightly toward the plants.” (p. 1, col. 1, ll. 15-17 and 30, and figs.
1-2).
4. Miner further describes forming “a cutting-edge upon the same by
bending and turning up all around the front of the implement a
ledge . . . ” (p. 1, col. 1, ll. 23-29).
5. Miner still further describes that “[t]he horizontal steel edge
running under the soil cuts up the weeds, and passes them, with the
crumbling dirt, behind the plow or toward the plants.” (p. 1, col. 2,
ll. 15-18).
6. Additional findings as necessary appear in the Analysis portion of
this opinion.

PRINCIPLES OF LAW
Appellant’s Burden
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir.
2006) (“On appeal to the Board, an applicant can overcome a rejection
[under § 103] by showing insufficient evidence of prima facie obviousness
or by rebutting the prima facie case with evidence of secondary indicia of
nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir.
1998)). See also Ex parte Yamaguchi, 88 USPQ2d 1606, 1614 (BPAI 2008)
[burden on appeal] (on appeal, applicant must show examiner erred); Ex
parte Fu, 89 USPQ2d 1115, 1123 (BPAI 2008); Ex parte Catan, 83
USPQ2d 1569, 1577 (BPAI 2007); and Ex parte Smith, 83 USPQ2d 1509,
1519 (BPAI 2007).

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Anticipation
“Anticipation is established only when a single prior art reference
discloses, expressly or under the principles of inherency, each and every
element of a claimed invention.” RCA Corp. v. Applied Digital Data Sys.,
Inc., 730 F.2d 1440, 1444 (Fed. Cir. 1984). It is not necessary that the
reference teach what the subject application teaches, but only that the claim
read on something disclosed in the reference, i.e., that all of the limitations
in the claim be found in or fully met by the reference. Kalman v. Kimberly-
Clark Corp., 713 F.2d 760, 772 (Fed. Cir. 1983).

ANALYSIS
Appellant does not argue claims 2-4 separately from claim 1.
Accordingly, claims 2-4 stand or fall with claim 1. Appellant does not argue
claims 18 and 20 separately from claim 17. Accordingly, claims 18 and 20
stand or fall with claim 17. 37 C.F.R. § 41.37(c)(1)(vii) (2007). Appellant
argues claim 11 separately (App. Br. 8). In contesting the rejection of
claims 12-14, Appellant provides no further arguments regarding these
claims than those presented for claim 11 (App. Br. 10). Therefore, claims
12-14 will stand or fall with claim 11.

Regarding claims 1-4, 11-14, 17, 18 and 20
Appellant contends that Miner does not describe an upwardly directed
wing surface having an upwardly and concave surface portion extending
along a substantial portion of the wing structure as called for in independent
claims 1, 11 and 17 (App. Br. 7, 8 and 10). Appellant further contends that
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the upper wing surfaces of Miner show that the wing surface is upwardly
convex, not upwardly concave (App. 7).
The Examiner found that Miner describes an upwardly concave wing
surface (Fact 1). In support thereof, the Examiner references (1) the one-
way curve marks in figure 1 of Miner to indicate that the wing surfaces bend
upwardly and outwardly; (2) page 1, column 1, lines 34-35 of Miner which
states that “the wings are turned upward and outward slightly and
gradually.”; and (3) markings on the underside of figure 2 of Miner. (Fact
1). The Examiner annotated figures 1 and 2 of Miner to further support her
findings.
Miner’s Figure 1, as annotated by the Examiner, is reproduced below.

Miner’s annotated Figure 1 shows a top view of plow A.

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Miner’s Figure 2, as annotated by the Examiner, is reproduced below.

Miner’s annotated Figure 2 shows a longitudinal sectional view of the
plow A.

Miner describes a cultivator-plow A that is “intended to run between
growing crops to cut up the grass and throw the soil slightly toward the
plants.” (Fact 3). Miner further describes forming “a cutting-edge upon the
same by bending and turning up all around the front of the implement a
ledge . . . ” (Fact 4). Miner still further describes that “[t]he horizontal steel
edge running under the soil cuts up the weeds, and passes them, with the
crumbling dirt, behind the plow or toward the plants.” (Fact 5).
We see no error in the Examiner’s findings that Miner describes an
upwardly concave wing surface. If the wing surface of Miner were
upwardly convex as Appellant contends, (1) Miner’s plow A would not
operate in the manner intended, that is, Miner’s plow A would not be able to
cut up the grass (Fact 3), and cut up the weeds and pass them with crumbling
dirt behind the plow or toward the plants (Fact 5), and (2) Miner’s wings
would not be turned upward and outward slightly and gradually (Fact 1, see
also Fact 4). Further, the curve marks of figures 1 and 2 in Miner indicate
that the wings are upwardly concave.
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We find that figures 1 and 2 of Miner show wings that are upwardly
concave over substantially the entire portion of the wing structure.
Therefore, we find that Miner describes an upwardly directed wing surface
having an upwardly and concave surface portion extending along a
substantial portion of the wing structure as called for in independent claims
1, 11 and 17.
Appellant still further contends (1) that Miner does not describe any
structure for increasing soil flow at slow speeds; and (2) that Miner’s wing
structure appears to let the soil pass over the wing structure and drop
alongside the stem, and therefore does not increase outward throw of the soil
at slower speeds. (App. Br. 8, 10).
The Examiner found (1) that there is no structural difference between
the claimed invention and Miner’s plow, and (2) that some soil would pass
to the side of Miner’s wing structure (Fact 2).
Miner‘s plow A runs between the crops (plants) (Fact 3). The plants
are located to the side of the wing structure of Miner’s plow A. Miner’s
wing structure throws plowed soil toward the plants (Facts 3, 5; see also
Fact 2). Since the plants are to the side of Miner’s wing structure, the
gathered soil would flow to the side of the wing structure. As the plow A
moves between the plants, plowed soil moves over the plow and toward the
plants (Facts 3, 5; see also Fact 2). As the plow A moves faster between the
plants, a greater amount of plowed soil collects on the wing structure. As a
result, newly plowed soil would then engage the collected soil on the plow A
as opposed to engaging the wing structure of the plow A. This would reduce
the overall effect of the wing structure and cause more soil to flow to the
rear of the plow A. Therefore, we find that as Miner’s plow A moves slower
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between the pants, a greater amount of soil engages Miner’s wing structure.
As a result, more plowed soil would flow outwardly toward the plants.
Thus, Miner’s plow A increases the outward throw of the soil at slower
speeds.
Therefore, we conclude that Appellant has not demonstrated that the
Examiner erred in rejecting claims 1, 11 and 17 over Miner. Appellant has
likewise not demonstrated error in the Examiner’s rejection of claims 2-4,
12-14, 18 and 20, which fall with claims 1, 11 and 17, respectively.

Regarding claims 5-10, 15 and 16

Appellant contends that Miner does not describe the wing angles as
called for in claims 5-10, 15 and 16 (App. Br. 9, 10).
The Examiner does not specifically rebut Appellant’s contention,
other than merely finding, without pointing to any evidence, that there is no
structural difference between the claimed invention and Miner’s plow A
(Fact 2).
For example, claims 5 and 15 specifically call for “soil contacting
surfaces forming an angle of less than 30 degrees . . .” and “the side blade
soil deflecting portions form angles of between 20 and 30 degrees . . . ,”
respectively.
Miner’s Specification is silent as to the angle of the wing structure.
The particular angle of Miner’s wing structure corresponding with the
claimed wing structure is not evident from figures 1 and 2 of Miner.
Therefore, it would be speculation at best as to whether Miner’s wing
structure is formed with the claimed angles. Accordingly, we find that
Miner does not describe the angles called for in claims 5-10, 15 and 16.
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Therefore, we conclude that Appellant has demonstrated that the
Examiner erred in rejecting claims 5-10, 15 and 16 over Miner.

CONCLUSIONS
Appellant has not established that the Examiner erred in finding that
Miner describes surfaces having an upwardly and outwardly concave surface
portion as called for in independent claims 1 and 17.
Appellant has not established that the Examiner erred in finding that
Miner describes an upper surface concavity along a substantial portion of the
blade surfaces as called for in independent claim 11.
Appellant has established that the Examiner erred in finding that
Miner describes the wing angles as called for in claims 5-10, 15 and 16.

DECISION
The decision of the Examiner to reject claims 1-4, 11-14, 17, 18 and
20 over Miner is affirmed. The decision of the Examiner to reject claims 5-
10, 15 and 16 over Miner 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)(iv) (2007).

AFFIRMED-IN-PART

Klh

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