Ex Parte Schweitzer et al

Patent Trial and Appeal Board

Sep 14, 2018

12940618 (P.T.A.B. Sep. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/940,618 11/05/2010
132636 7590 09/18/2018
Michael Best & Friedrich LLP (John Deere)
100 East Wisconsin A venue
Suite 3300
Milwaukee, WI 53202
FIRST NAMED INVENTOR
John M. Schweitzer
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
208065-9054 7879
EXAMINER
COLLINS, MICHAEL
ART UNIT PAPER NUMBER
3651
NOTIFICATION DATE DELIVERY MODE
09/18/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN M. SCHWEITZER, JASON D. WALTER,
and JAMES R. PETERSON
Appeal2018-001435 1
Application 12/940, 618 2
Technology Center 3600
Before PHILIP J. HOFFMANN, KENNETH G. SCHOPPER, and
AMEE A. SHAH, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of
claims 1-16. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 Our decision references the Appeal Brief ("Br.," filed Apr. 27, 2017), the
Examiner's Answer ("Ans.," mailed Aug. 25, 2017), and the Non-Final
Office Action ("Non-Final Act.," mailed Nov. 25, 2016).
2 According to Appellants, the real party in interest is Deere & Company.
Br. 2.
Appeal2018-001435
Application 12/940,618
BACKGROUND
The Specification describes a seeding apparatus that incorporates a
method of determining seed spacing while planting. See, e.g. Spec. 1-3
CLAIMS
Claims 1, 7, 15, and 16 are the independent claims on appeal. Claim 1
is illustrative of the appealed claims and recites:
1. A seeding apparatus comprising:
a row unit having a seed meter adapted to sequentially
discharge seeds and a seed sensor to generate a seed signal in
response to a passing seed;
a visual display; and
a processor operably coupled to the seed sensor for
receiving the generated seed signals, the processor configured to
determine a numeric seed spacing variability value based on
intervals between adjacent seeds, the processor further operably
coupled to the visual display to display the seed spacing
variability value in real time during operation of the apparatus.
Br. 12.
REJECTIONS
1. The Examiner rejects claims 1-14 under 35 U.S.C. § I02(b) as
anticipated by Svoboda. 3
2. The Examiner rejects claim 15 under 35 U.S.C. § I03(a) as unpatentable
over Svoboda in view of Peterson. 4
3. The Examiner rejects claim 16 under 35 U.S.C. § I03(a) as unpatentable
over Svoboda in view of Ketkar. 5
3 Svoboda et al., US 6,386,128 Bl, iss. May 14, 2002.
4 Peterson et al., US 2006/0282467 Al, pub. Dec. 14, 2006.
5 Ketkar et al., US 2010/0257621 Al, pub. Oct. 7, 2010.
2
Appeal2018-001435
Application 12/940,618
DISCUSSION
Anticipation rejection
As discussed below, we are persuaded by Appellants' argument that
the Examiner has not established that Svoboda discloses an apparatus as
recited in claim 1.
With respect to claim 1, the Examiner finds that Svoboda discloses a
seeding apparatus as claimed, and in particular, the Examiner finds that
Svoboda's device includes a processor operable as required by the claim.
Final Act. 6 (citing Svoboda col. 7, 11. 12--43). Further, in response to
Appellants' arguments, the Examiner finds that Svoboda discloses that the
device "is configured to indicate the integrated variation in seed spacing
over a predetermined time interval, preferably the immediately preceding ten
second time period, and is displayed on monitor 502." Ans. 4--5 (quoting
Svoboda col. 7, 11. 22-26) ( emphasis omitted).
Appellants argue that "Svoboda fails to teach a numeric seed
variability value as specific in claim 1." Appeal Br. 6. More specifically,
Appellants assert that Svoboda only discloses variation in seed spacing two
times, both of which are related to graphical representations. Id. Appellants
argue that a graphical representation of seed variation is not a numeric value
as required by claim 1. Id. at 7. Appellants also assert that to the extent
Svoboda references an "integrated variation" in seed spacing, the term is not
defined and Svoboda lacks enabling disclosure for this term. Id.
We find that Svoboda does not sufficiently explain the process by
which Svoboda's computer generates a summary seed placement histogram
such that it can be determined that Svoboda's computer necessarily makes a
determination of a value representing seed spacing variability, which is then
3
Appeal2018-001435
Application 12/940,618
displayed, as required by the claim. Svoboda discloses a device that records
"seed deposition data" and "seed location data," which is used by a
computer to "generate[], among other things, a summary seed placement
histogram that represents the real time variation in seed spacing." Svoboda
col. 7, 11. 1-10. Svoboda also discloses that "the summary seed placement
histogram generated by computer 500 is configured to indicate the integrated
variation in seed spacing over a predetermined time interval." Id. at col. 7,
11. 20-25. However, Svoboda does not provide further disclosure regarding
what the "integrated variation" is or how it is indicated. Thus, we find that
variation may be indicated only to the extent that a user may discern it from
the location and deposition data displayed, i.e., without the computer
actually making a numerical determination of what any seed variation value
is. Further, Svoboda does not appear to otherwise explain what calculations
are made using the seed deposition and location data or how the seed
placement histograms are created.
In short, the Examiner has not established that Svoboda necessarily
discloses such a computer or processor as required by claim 1, which would
be required to show that Svoboda anticipates such a determination. See In re
Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) ("Inherency, however, may
not be established by probabilities or possibilities. The mere fact that a
certain thing may result from a given set of circumstances is not
sufficient."). Accordingly, we find that the Examiner has not established
that Svoboda discloses a processor that is configured to determine a numeric
seed spacing variability value as required by claim 1.
Based on the foregoing, we are persuaded of reversible error in the
rejection of claim 1 as anticipated by Svoboda. Accordingly, we do not
4
Appeal2018-001435
Application 12/940,618
sustain the rejection. We also do not sustain the rejection of independent
claim 7, which similarly recites "processing ... to determine a numeric seed
spacing variability value." And we also do not sustain the rejection of
dependent claims 2-6 and 8-14, which depend from independent claims 1
and 7.
Obviousness
Independent claims 15 and 16 recite limitations similar to those
discussed above with respect to claims 1 and 7. See Appeal Br. 15-16.
With respect to these limitations, the Examiner relies on Svoboda as
discussed above, and the Examiner does not otherwise rely on the art of
record to cure the deficiency discussed above. Accordingly, for the reasons
discussed above, we do not sustain the rejections over claims 15 and 16.
CONCLUSION
We REVERSE the rejections of claims 1-16.
REVERSED
5