Ex parte SCHOESSOW

Board of Patent Appeals and Interferences

Oct 10, 1997

08114391 (B.P.A.I. Oct. 10, 1997)

Application for patent filed August 31, 1993. 1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 15
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte JOHN R. SCHOESSOW
____________
Appeal No. 96-0079
Application No. 08/114,3911
____________
ON BRIEF
____________
Before LYDDANE, FRANKFORT, and NASE, Administrative Patent
Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's rejection
of claims 1, 4 and 5. Subsequent to the final rejection, claims
2 through 4 were amended, resulting in the allowance of claims 2
and 3, the withdrawal of the 35 U.S.C. § 112, second paragraph,
Appeal No. 96-0079
Application No. 08/114,391
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rejection of claims 4 through 6 and the objection to claim 6 as
depending from a rejected claim.
We REVERSE.
BACKGROUND
The appellant's invention relates to a livestock feeding
structure. Claims 1 and 4 are representative of the subject
matter on appeal and a copy of claims 1 and 4 is attached to this
decision.
The prior art references of record relied upon by the
examiner as evidence of obviousness under 35 U.S.C. § 103 are:
Schoessow 4,258,663 Mar. 31, 1981
Harton 4,930,449 June 5, 1990
Claims 1, 4 and 5 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Harton in view of Schoessow.
Rather than reiterate the conflicting viewpoints advanced by
the examiner and the appellant regarding the § 103 rejection, we
make reference to the examiner's answer (Paper No. 12, mailed
Appeal No. 96-0079
Application No. 08/114,391
3
June 27, 1995) for the examiner's complete reasoning in support
of the rejection, and to the appellant's brief (Paper No. 11,
filed May 5, 1995) for the appellant's arguments thereagainst.
Appeal No. 96-0079
Application No. 08/114,391
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OPINION
In reaching our decision in this appeal, we have given
careful consideration to the appellant's specification and
claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the
examiner. As a consequence of our review, we make the
determinations which follow.
Before addressing the examiner's rejection based upon prior
art, it is an essential prerequisite that the claimed subject
matter be fully understood. Analysis of whether a claim is
patentable over the prior art under 35 U.S.C. § 103 begins with a
determination of the scope of the claim. The properly
interpreted claim must then be compared with the prior art.
Claim interpretation must begin with the language of the claim
itself. See Smithkline Diagnostics, Inc. v. Helena Laboratories
Corp., 859 F.2d 878, 882, 8 USPQ2d 1468, 1472 (Fed. Cir. 1988).
The general rule is that terms in claims are to be given
their ordinary and accustomed meaning, unless it appears that the
inventor used them differently. See Envirotech Corp. v. Al
George, Inc., 730 F.2d 753, 759, 221 USPQ 473, 477 (Fed. Cir.
Appeal No. 96-0079
Application No. 08/114,391
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1984) and Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575,
1578, 38 USPQ2d 1126, 1129 (Fed. Cir. 1996). Furthermore, in
proceedings before the PTO, claims in an application are to be
given their broadest reasonable interpretation consistent with
the specification, and that claim language should be read in
light of the specification as it would be interpreted by one of
ordinary skill in the art. In re Sneed, 710 F.2d 1544, 1548, 218
USPQ 385, 388 (Fed. Cir. 1983).
In this case we find it necessary to construe the meaning of
the terminology "permanently affixed" as recited in claim 1 with
regard to the mounting of the feed hopper in the livestock
feeding structure. In the background of the invention
(specification, p. 1), the appellant describes the livestock
feeder wagon of his prior patent (Schoessow 4,258,663) as
including removable panels which can be secured to an inner
framework to provide a feed bunker. In the summary of the
invention (specification, p. 1), the appellant states that his
livestock feeding bunker in the present invention is constructed
with permanently mounted panels carried on a framework grating to
form a hopper. In the description of the invention
(specification, p. 4), the appellant explains that plates 16 form
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a feed hopper and that the plates 16 are preferably rigidly
welded in place. The American Hertigage Dictionary, Second
College Edition (1982), defines "permanent" as "Fixed and
changeless; lasting or meant to last indefinitely."
Our review of the specification, as originally filed, and
the dictionary definition leads us to conclude that one of
ordinary skill in the art would understand the terminology
"permanently affixed" as recited in claim 1 to mean that the
hopper is nonremovably affixed (such as by welding) in the
livestock feeding structure.
Additionally, we find it necessary to construe the
terminology "one side of the structure" recited in claims 1 and
4. In the description of the invention (specification, p. 3),
the appellant explains that gates, such as gate 12 in Figures 1
and 2, may be provided along one or both sides of the wagon.
Thus, the appellant's specification clearly distinguishes the
sides of the wagon 10 from the ends of the wagon (i.e., end
frames 15 and 26 seen in Figures 1 and 2). Our review of the
specification, as originally filed, thus leads us to conclude
that one of ordinary skill in the art would understand that the
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Application No. 08/114,391
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terminology "one side of the structure" as recited in claims 1
and 4 refers to the long sides of the wagon (structure), not the
short ends of the wagon (structure).
Next, we turn to the issue of whether the limitations in
claims 1 and 4 relative to the size of the "openings" are
entitled to be given weight. We agree with the appellant's
argument (brief, pp. 8-11) that the examiner inappropriately
ignored the limitations in claims 1 and 4 relative to the size of
the "openings." The limitations in claims 1 and 4 relative to
the size of the "openings" limit the size of the "openings" in
the structure being claimed and therefore must be given weight.
See In re Stencel, 828 F.2d 751, 754, 4 USPQ2d 1071, 1073 (Fed.
Cir. 1987).
Having interpreted the claims on appeal in the manner
explained above, we find ourselves in agreement with the
appellant that the claimed invention would not have been obvious
to one of ordinary skill in the art at the time of the
appellant's invention based on the combined teachings of Harton
and Schoessow. While we agree with the examiner that it would
have been obvious to provide the feeder of Harton with a
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Application No. 08/114,391
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hopper/bin in view of Schoessow, we do not see that the applied
prior art suggests a feed hopper that is permanently affixed in
the livestock feeding structure, or wherein at least a portion of
one side of the feed hopper is permanently affixed to the hinged
portion of one upright framework side so as to rotate therewith,
as required in claim 1 on appeal. In our opinion, a combination
of the applied prior art would have provided a removable
hopper/bin in the feeder of Harton, not a hopper/bin that is
permanently affixed in the feeder of Harton. Since all the
limitations of claim 1 are not met or rendered obvious by the
prior art applied by the examiner, we will not sustain the
35 U.S.C. § 103 rejection of claim 1.
We agree with the appellant's argument (brief, p. 7)
regarding claim 4 that Harton's feeder, even when modified by
Schoessow in the manner set forth by the examiner, does not
provide unobstructed access into the structure above the level of
the floor. In that regard, we note that Harton's crossbar 9,
reinforcing structure 4 and roof 3 would obstruct access into the
feeder above the level of the floor 7 as shown in Figures 1 and
2. Since all the limitations of claim 4 are not met by the prior
art applied by the examiner, we will not sustain the 35 U.S.C.
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Application No. 08/114,391
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§ 103 rejection of claim 4 and its dependent claim 5.
CONCLUSION
To summarize, the decision of the examiner to reject claims
1, 4 and 5 under 35 U.S.C. § 103 is reversed.
No period for taking any subsequent action in connection
with this appeal may be extended under 37 CFR § 1.136(a).
REVERSED
WILLIAM E. LYDDANE )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
Appeal No. 96-0079
Application No. 08/114,391
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KEITH SCHOFF
2257 EAST WASHINGTON AVENUE
MADISON, WI 53704
Appeal No. 96-0079
Application No. 08/114,391
1
APPENDIX
1. In a livestock feeding structure embodying a floor and
at least one upright framework side provided with openings for
livestock to reach with their heads and necks into the structure
for the purpose of feeding, an improvement comprising:
a) at least a portion of at least one upright
framework side being hinged to rotate about a substantially
vertical axis for providing unobstructed access into said
structure through at least a portion of one side of said
structure above the level of said floor to facilitate loading
large round bales into said structure in side by side
disposition,
b) a feed hopper having an open bottom elevated above
said floor wherein said hopper is permanently affixed in said
structure with at least a portion of one side of said hopper
being carried by said portion of at least one upright framework
side.
4. A livestock feeding structure which is universally
applicable for dispersing substantially all forms of solid feed,
including large round bales and fine feed, said structure
comprising:
a) a manger configured floor,
b) a framework rising, substantially vertically from
the peripheral portion of the floor, wherein at least a portion
of said framework is provided with openings for livestock to
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Application No. 08/114,391
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reach with their heads and necks into the structure for the
purpose of feeding,
c) a feed hopper carried on said framework above said
floor, said feed hopper being configured with side plates with a
smaller opening dimension at the bottom of said plates than at
the top thereof, a lesser dimension of said opening between said
plates at the bottom of said hopper being sufficient to receive
therein a hay bale,
d) at least one portion of said framework on at least
one side of said structure being hinged about a substantially
vertical axis at one end to swing open carrying one said side
plate of said hopper attached thereto to provide at least a
portion of said side of said structure unobstructed above the
level of said floor to facilitate loading of bales into said
structure from said side,
e) latch means for securing said at least one portion
of said framework.
APPEAL NO. 96-0079 - JUDGE NASE
APPLICATION NO. 08/114,391
APJ NASE
APJ FRANKFORT
APJ LYDDANE
DECISION: REVERSED
Prepared By: Delores A. Lowe
DRAFT TYPED: 23 Sep 97
1st Rev. 01 Oct 97
FINAL TYPED: