Ex Parte Schafer

Patent Trial and Appeal Board

Sep 18, 2012

11835477 (P.T.A.B. Sep. 18, 2012)

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.
11/835,477 08/08/2007 Rainer Schafer 09769-US 1495
30689 7590 09/19/2012
DEERE & COMPANY
ONE JOHN DEERE PLACE
MOLINE, IL 61265
EXAMINER
TORRES, ALICIA M
ART UNIT PAPER NUMBER
3671
MAIL DATE DELIVERY MODE
09/19/2012 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 RAINER SCHAFER
____________

Appeal 2010-003445
Application 11/835,477
Technology Center 3600
____________

Before JOHN C. KERINS, GAY ANN SPAHN, and
MICHAEL L. HOELTER, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Rainer Schafer (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner’s final rejection of claims 1-10. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

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The Claimed Subject Matter
The claimed subject matter relates to agricultural harvesters having “a
detector . . . for foreign bodies taken up with the crop, which detector allows
a foreign body taken-up to be readily detected.” Spec. 2, ll. 26-28. Claims 1
and 10 are independent and claim 1, reproduced below, is illustrative of the
subject matter on appeal.
1. A foreign body detector for an agricultural
harvester, comprising a sensing element fitted such
that it is movable transversely to a direction of
conveyance of a crop and which, during the
harvesting operation, bears against the received
crop, wherein the foreign body detector comprises
a position sensor set up to register the position of
the sensing element, and an evaluation circuit,
which is operated to calculate on the basis of the
signals of the position sensor information relating
to at least one of the velocity or acceleration of the
sensing element and, for the purpose of generating
a signal value indicating the presence of a foreign
body, to make a comparison with a threshold
value.

The Rejections
The following Examiner’s rejections are before us for review.
(1). Claims 1-3, 5-7, and 10 are rejected under 35 U.S.C. § 102(b)
as being anticipated by Duncan (US 6,637,179 B2, issued Oct. 28, 2003).
(2). Claim 4 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Duncan and Markham (US 3,388,538, issued Jun. 18,
1968).
(3). Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Duncan and Bohman (US 4,805,385, issued Feb. 21, 1989).
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(4). Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Duncan and Faivre (US 5,282,389, issued Feb. 1, 1994).

OPINION
Anticipation based on Duncan
Appellant argues claims 1-3, 5-7, and 10 as a group and we select
independent claim 1 as representative. See Br. 3; see also 37 C.F.R. §
41.37(c)(1)(vii) (2011). Claims 2, 3, 5-7, and 10 stand or fall with claim 1.
The Examiner finds that Duncan discloses each and every element of
independent claim 1 in order to anticipate claim 1. Ans. 3. In particular, the
Examiner finds that Duncan discloses, inter alia, “a position sensor (15, 20)
set up to register the position of the sensing element (3a),” and “an
evaluation circuit (31), which is operated to calculate[,] on the basis of
signals of the position sensor (15, 20)[,] information relating to acceleration
of the sensing element . . . to make a comparison with a threshold value.”
Ans. 3.
Appellant first argues that Duncan’s “sensor 15 is an inertial or
acceleration sensor . . . not a position sensor.” Br. 3.
The Examiner responds that “the acceleration sensor of Duncan is
inherently a position sensor for registering the position of the sensing
element since in order to know the acceleration of the sensor, one must
know the beginning and end times and positions of the sensor.” Ans. 4. In
other words, the Examiner’s position is that “[i]n order to sense acceleration,
a sensor must be capable of registering the position of the sensor.” Id.
Although Appellant argues that Duncan discloses an inertial sensor,
not a position sensor (Br. 3), the Examiner finds that the ability to register
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the position of the upper feed roll, though not explicitly described with
respect to Duncan’s inertial sensor, is inherent in Duncan’s inertial sensor.
Ans. 3, and 4-5. Further, the Examiner provided reasoning to support this
finding. Ans. 4-5. Once the PTO establishes a prima facie case of
anticipation based on inherency, the burden shifts to the applicant to prove
that the prior art does not possess the characteristic at issue. See In re King,
801 F.2d 1324, 1327 (Fed. Cir. 1986). Appellant does not challenge the
Examiner's finding of inherency, much less the technical reasoning in
support thereof, and thus has not discharged that burden.
Moreover, we note that Appellant’s Specification discusses Duncan in
the Background of the Invention section stating that “[t]he acceleration
sensors according to EP 1 632 128 A and US 6637179 respectively comprise
a mass which is movably connected to the pre-compacting roller and a
switch or a potentiometer which measures the position of the mass relative
to the pre-compacting roller.” Thus, Appellant appears to admit that
Duncan’s inertial or acceleration sensor 15 senses position. Accordingly, we
do not find error in the Examiner’s rejection based upon Appellant’s first
argument.
Appellant next argues that “Duncan lacks the required evaluation
circuit,” because “[t]he circuit 31 of Duncan is part of the sensor (see
paragraph 0047)1 and does not make calculations regarding speed (first

1 We note that Duncan does not have paragraph numbers, but we presume
that Appellant is referring to Duncan’s patent application publication (US
2003/0115846 A1, published Jun. 26, 2003). Duncan’s patent application
publication is not of record in the present application file; however, since
paragraph [0047] in Duncan’s patent application publication is the same as
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derivative) or acceleration (second derivative) before comparing the derived
signal with a threshold.” Br. 3.
The Examiner responds to Appellant’s argument by first asserting that
Appellant’s statement about Duncan’s circuit 31 being a part of the sensor
(15, 20) “is irrelevant since the claims never require that the circuit be
separate from the sensor.” Ans. 5. We agree.
The Examiner also responds to Appellant’s argument that Duncan’s
evaluation circuit does not make calculations regarding speed or acceleration
by finding that “Duncan discloses that the sensor may be an analog sensor”
including “an analog circuit which emits a signal proportional to the sensed
acceleration,” which may have “a comparator circuit for comparing the
sensed acceleration with a threshold value.” Ans. 5 (citing to Duncan col. 8,
ll. 9-10 and 34-39). From this disclosure, the Examiner concludes that
“Duncan discloses a circuit for working with the analog sensor that
calculates information relating to the acceleration of the analog sensor and
compares the information with a threshold value.” Id.
In Figures 8a and 8b, Duncan “graphically illustrate[s] the change
height (h) and acceleration (a) over time of the upper feed roll 3a . . . in
response to changing crop densities and foreign objects, respectively.”
Duncan, col. 7, 64-67. Duncan discloses that “[i]f an analog sensor is used,
it can emit a signal proportional to the sensed acceleration,” and the “analog
sensor can comprise an accelerometer.” Duncan, col. 8, ll. 9-10 and 32.
Duncan also discloses that the analog circuit further comprises “means such
as a comparator circuit for sensing when first signals emitted from the sensor

column 6, lines 62-65 of Duncan, we will consider that disclosure in
Duncan.
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exceed a predetermined threshold acceleration and then emitting an
additional signal or second signal indicative thereof which is used to shut
down the feed mechanism.” Duncan, col. 8, ll. 35-40. Thus, according to
Duncan’s Figure 8b, “large positive accelerations 186, 196 experienced by
the upper feed roll 3a exceed the present threshold and cause the sensor 20
to trigger the shut-down circuitry of the foreign object detector and stop the
feed mechanism 3.” Duncan, col. 8, ll. 51-54. As the measured time t and
height h appear to be used to calculate the change in acceleration a which is
compared with the threshold, we agree with the Examiner that under the
broadest reasonable interpretation, Duncan discloses “an evaluation circuit,
which is operated to calculate on the basis of the signals of the position
sensor information relating to at least one of the velocity or acceleration of
the sensing element . . . to make a comparison with a threshold value.” As
such, we are not persuaded by Appellant’s second argument that the
Examiner erred.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1, and claims 2, 3, 5-7, and 10 which fall therewith, under 35 U.S.C.
§ 102(b) as anticipated by Duncan.
Obviousness based on Duncan and Markham,
Duncan and Bohman, and Duncan and Faivre

Appellant has not presented any arguments assigning error to the
Examiner’s rejections of: claim 4 under 35 U.S.C. § 103(a) as being
unpatentable over Duncan and Markham; claim 8 under 35 U.S.C. § 103(a)
as unpatentable over Duncan and Bohman; and claim 9 under 35 U.S.C.
§ 103(a) as unpatentable over Duncan and Faivre. Accordingly, we
summarily sustain these rejections. See In re Berger, 279 F.3d 975, 984,
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985 (Fed. Cir. 2002) (holding that Board did not err in sustaining a rejection
under 35 U.S.C. § 112, second paragraph, when the Appellant failed to
contest the rejection on appeal.).

DECISION
We affirm the Examiner’s rejection of claims 1-3, 5-7, and 10 under
35 U.S.C. § 102(b) as being anticipated by Duncan.
We summarily affirm the Examiner’s rejections of: claim 4 under 35
U.S.C. § 103(a) as being unpatentable over Duncan and Markham; claim 8
under 35 U.S.C. § 103(a) as unpatentable over Duncan and Bohman; and
claim 9 under 35 U.S.C. § 103(a) as unpatentable over Duncan and Faivre.
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

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