Ex Parte Pullara

Board of Patent Appeals and Interferences

Dec 6, 2011

11192745 (B.P.A.I. Dec. 6, 2011)

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.
11/192,745 07/29/2005 Sam Pullara JR. 6876
33376 7590 12/07/2011
KENNETH L. TOLAR
2908 Hessmer Avenue
Metairie, LA 70002
EXAMINER
NGUYEN, DINH Q
ART UNIT PAPER NUMBER
3752
MAIL DATE DELIVERY MODE
12/07/2011 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 SAM PULLARA JR.
____________________

Appeal 2009-014350
Application 11/192,745
Technology Center 3700
____________________

Before: STEVEN D.A. MCCARTHY, KEN B. BARRETT, and
CHARLES N. GREENHUT, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-014350
Application 11/192,745
2
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 8-
11. Br. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

The claims are directed to a fertilizer dispenser. Claim 8, reproduced
below, is illustrative of the claimed subject matter:
8. A fertilizer distributor comprising:
a hollow frustoconical housing having an open upper end
defined by a continuous rim, said open upper end in
communication with a hollow interior, said housing also having
a lower end with a dispersal opening thereon;
a rotary sifting blade received within the housing interior
immediately above the dispersal opening;
a compartment immediately beneath the dispersal
opening having an interior in communication with the dispersal
opening and a rotatable disc received therein, said compartment
also having a semi-circumferential dispensing opening in
communication with the compartment interior; said disc
including a plurality of radially extending dispersal blades on
an upper surface thereof;
a motor mounted beneath said compartment for
automatically rotating said sifting blade and said disc whereby
fertilizer within said housing interior is pulverized, forced
through said dispersal opening and onto said disc and is
projected through said dispensing opening.

REFERENCES
The Examiner relies on the following prior art:
Baughman
Manni
Chow
Courtney
US 2,243,996
US 3,993,225
US 5,054,693
US 5,123,598
Jun. 3, 1941
Nov. 23, 1976
Oct. 8, 1991
Jun. 23, 1992

Appeal 2009-014350
Application 11/192,745
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REJECTIONS
Claims 8-11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Chow in view of Baughman. Ans. 3.
Claims 8-11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Manni in view of Baughman. Ans. 4.

OPINION
The rejection of claims 8-11 as being unpatentable over Chow in view of
Baughman is reversed.
Appellant correctly points out that the Examiner improperly
interpreted Chow’s “stirrer 59, or vane wheel” as the claimed “rotable disc.”
Br. 6. There does not appear to be anything thin, flat and circular or plate-
like about Chow’s stirrer so it is not reasonable to interpret it as a “disc.”
Since this is the ordinary meaning of the term1 no further definition of the
term is required to cause the term “disc” to include such properties. Contra
Ans. 6. “[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary usage as they
would be understood by one of ordinary skill in the art.” In re Morris, 127
F.3d 1048, 1054 (Fed. Cir. 1997). Further, the claim requires blades included
on an “upper surface” of the disc. Chow’s vanes do not appear to be, nor are
they described as being, on the upper surface of anything. See, e.g., Chow
figs. 1, 3; Br. 6-7. Since the rejection is based on an erroneous claim
construction and since Baughman is not applied by the Examiner to remedy
this deficiency, we are constrained to reverse this rejection.

1 See, e.g., disk. THE AMERICAN HERITAGE® DICTIONARY OF THE ENGLISH
LANGUAGE (Houghton Mifflin 2007) (2000) available at
http://www.credoreference.com/entry/hmdictenglang/disk.
Appeal 2009-014350
Application 11/192,745
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The rejection of claim 8 as being unpatentable over Manni in view of
Baughman is affirmed.
Other than stating “Applicant hereby repeats the arguments pertaining
to the lack of motivation to combine the references as set forth in the
previous section” and discussing a handle (which is not a limitation of claim
8), Appellant does not address the rejection of claim 8 based on the
combination of Manni and Baughman. Thus, we adopt the Examiner’s
factual findings and reasoning (see Ans. 4-5) regarding this rejection as our
own. In the rejection based on Chow and Baughman the Examiner relies on
Baughman to teach the use of a “frustoconical housing” and “rotary sifting
blade.”2 However, in the rejection based on Manni and Baughman the
Examiner relies on Baughman only to teach the “rotary sifting blade.”
In Manni’s device, particulate material such as fertilizer drops under
the influence of gravity from the hopper 25 through aperture 39 to the
chamber 23 for distribution by the rotor 50. Col. 2, l. 58 – col. 3, l. 28; col. 4,
ll. 8-27; figs. 1-3A. Baughman teaches that it is desirable to include sleeves
22 carrying flights 23 or “rotary sifting blade[s],” that function like a
conveyor screw, in order to “to force the material downward… [and] reduce
to small particles such chunks or bodies of fertilizing materials…as may lie
in the hopper.” 1, col. 2, ll. 41-59. Thus, incorporating Baughman’s flights
into Manni’s device is merely applying a known technique to improve a
known device in order to yield predictable results. Thus, we agree with the
Examiner that the subject matter of claim 8 would have been obvious to one

2 We note the obvious typographical error referencing Manni in place of
Chow on page 4 of the Answer.
Appeal 2009-014350
Application 11/192,745
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having ordinary skill in the art. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 416 (2007).

The rejection of claims 9-11 as being unpatentable over Manni in view of
Baughman is reversed.
Although not mentioned by claim number and not placed under a
separate subheading3, Appellant correctly points out that the Examiner has
not established that the subject matter of claim 9 would have been obvious to
one of ordinary skill in the art. Br. 10-11. Claim 9 calls for a “handle having
two opposing ends, a first of said ends pivotally attached to a first portion of
said rim, a second of said ends pivotally attached to a second, opposing
portion of said rim.” See e.g., reference numeral 4 in Appellant’s figures.
The Examiner has not explained how Manni’s handle 21 or the other cited
art meets this limitation. See Ans. 5, 7-8. As Appellant correctly points out,
Manni’s handle 21 is fixed and not pivotally attached to any portion of the
frustoconical housing rim. Br. 10-11. Baughman is intended for a truck or
other carrier but does not describe a handle. To the extent that Courtney is
relevant to this rejection4, Courtney only describes a fixed handle 14
attached at only one end to the housing 12 (at 26). Col. 4, l. 65 - col. 5, l. 11.
All words in a claim must be considered in judging the obviousness of the

3 37 CFR 41.37(c)(1)(vii), in relevant part, states:
Any claim argued separately should be placed under a
subheading identifying the claim by number. Claims argued as
a group should be placed under a subheading identifying the
claims by number.

4 Even if the prior art reference is cited to support the rejection in a minor
capacity, it should be positively included in the statement of rejection. See,
e.g., In re Hoch, 428 F.2d 1341, 1342 n.3 (CCPA 1970).
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Application 11/192,745
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claimed subject matter. See In re Wilson, 424 F.2d 1382, 1385 (CCPA
1970). Since the Examiner has not articulated a reason with rational
underpinning as to why the subject matter of claim 9, and therefore
dependent claims 10 and 11, would have been obvious to one of ordinary
skill in the art, we are constrained to reverse this rejection. See In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR, 550 U.S. at
418.

DECISION
The rejection of claims 8-11 as being unpatentable over Chow in view
of Baughman is reversed.
The rejection of claim 8 as being unpatentable over Manni in view of
Baughman is affirmed.
The rejection of claims 9-11 as being unpatentable over Manni in
view of Baughman 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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