Ex Parte Scuilla et al

Patent Trial and Appeal Board

Jan 17, 2018

13386946 (P.T.A.B. Jan. 17, 2018)

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.
13/386,946 03/23/2012 Vincent J. Scuilla Osprey 4.1-23 (141499-005 8845
35684 7590
BUTZEL LONG, P.C.
IP DEPARTMENT
41000 Woodward Avenue
Stoneridge West
Bloomfield Hills, MI 48304
01/19/2018 EXAMINER
CLARKE, TRENT R
ART UNIT PAPER NUMBER
1651
NOTIFICATION DATE DELIVERY MODE
01/19/2018 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):
PATENT@BUTZEL.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VINCENT J. SCUILLA, CHRISTOPHER J. REUTER,
and LAUREN G. DANIELSON
Appeal 2017-003763
Application 13/386,946
Technology Center 1600
Before DEMETRA J. MILLS, JEFFREY N. FREDMAN,
and TIMOTHY G. MAJORS, Administrative Patent Judges.
MILLS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2017-003763
Application 13/386,946
STATEMENT OF CASE
The following claims are representative.1
28. A system for concurrently degrading waste and
controlling insects in a drain having a waste trap, comprising:
a first container holding a bacterial culture which
metabolizes grease;
a second container holding a fungus culture which is a
pesticide for insects in the drain;
a first conduit for conveying the bacterial culture which
metabolizes grease from the first container to a waste trap of a
drain;
a second conduit for conveying the fungus culture which
is a pesticide for insects from the second container to the waste
trap of the drain; and
a pump having a timer for regulating flow of the bacterial
culture and fungus culture to the waste trap of the drain.
29. A system for controlling insects in a drain having a
waste trap, comprising:
a container holding a fungus culture which is a pesticide
for insects in the drain;
a conduit conveying the fungus culture from the
container to the waste trap of the drain; and
a pump having a timer for regulating flow of the fungus
culture to the waste trap of the drain.
14. The system of Claim 28 wherein the bacterial strain
or culture is a Bacillus sp or a Pseudomonas sp.
16. The system of Claim 28 wherein the fungus culture
is introduced into the drain as a spray.
20. The system of Claim 28 wherein the fungus culture
is Metarhizium.
1 Claim order is presented to show proper claim dependency.
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Application 13/386,946
Cited References
Johal et al.
Glendening et al.
Tobey, Jr. et al.
Stamets
US 5,512,280
US 5,935,843
US 6,325,934 B1
US 2005/0176583
Apr. 30, 1996
Aug. 10, 1999
Dec. 4, 2001
Aug. 11,2005
World Health Organization, Cockroaches 288-301 (1997), http://www.who.
int/water_sanitation_health/resources/vector2 8 8to3 01 .pdf (“WHO”).
Peristaltic Pumps Offer Economical Multichannel Pumping, Cole-Parmer
(Aug. 20, 2015, 9:52 AM), https://www.masterflex.com/tech-
article/economical-multichannel-pumping (“Multichannel pumps”).
Grounds of Rejection
Claims 14-16, 20, 28, and 29 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Glendening in view of Johal, the NPL
documents WHO, and Multichannel pumps.
FINDINGS OF FACT
The Examiner’s findings of fact are set forth in the Final Action at
pages 2-11.
PRINCIPLES OF LAW
In making our determination, we apply the preponderance of the
evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings
before the Office).
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Application 13/386,946
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
Obviousness Rejection
The Examiner finds that:
A person of ordinary skill in the art at the time of the
invention would have found it obvious that a simple way of
incorporation of application of Metarhizium to the drain
treatment system of Glendening to allow concurrently
degrading waste and controlling insects in the drain would be to
duplicate the containers and conduits of Glendening to give a
drain treatment system comprising: a first container holding a
bacterial culture which metabolizes grease; a second container
holding a fungus culture which is a pesticide for insects in the
drain; a first conduit for conveying the bacterial culture which
metabolizes grease from the first container to a waste trap of a
drain; a second conduit for conveying the fungus culture from
the second container to the waste trap of the drain; and a pump
having a timer for regulating flow of the bacterial culture and
fungus culture to the waste trap of the drain.
A person of ordinary skill in the art at the time of the
invention would have found it obvious that both the bacterial
and fungal cultures could be easily pumped and controlled by
using a dual channel pump because “Multichannel pumps”
teaches that multichannel pumps can be advantageously used to
simultaneously control metering and dispensing of multiple
fluids (1st page); therefore, the claimed inventions of instant
claims 14-16, 20, 28 and 29 are prima facie obvious.
Ans. 3—4.
Appellants contend, among other things, that:
1) The prior art does not teach, suggest or provide any information
that could have led the person having ordinary skill in the art to expect that
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insects could be effectively controlled by pumping a fungal insecticide into a
waste trap of a drain. App. Br. 7.
2) Glendening does not teach or suggest a container holding a fungus
culture which is a pesticide for insects in a drain, a conduit conveying the
fungus culture from the container to the waste trap of the drain, or a pump
having a timer for regulating flow of the fungus culture to the waste trap of a
drain. Id.
3) Johal does not suggest controlling insects using a system
conveying an insecticidal fungus culture to a waste trap of a drain, and does
not provide information from which a person having ordinary skill in the art
could deduce that such system could be effective. Id. at 8.
4) The person of ordinary skill in the art would not consult
Glendening in matters regarding insect control, because Glendening is
completely silent with respect to insect control. Id. at 10.
5) There is not any reasonable sense in which a sewer shaft could be
regarded as a drain trap, and no evidence of such has been provided. Sewer
shafts are distinctly different from and far removed from waste traps. Reply
Br. 2.
6) WHO teaches (page 295) that “[f]requent washing of a treated
surface or coatings of dust or grease can render an insecticide useless.” If
frequent washings will render insecticide spraying useless, then pumping an
insecticide into a water sealed containment (i.e., a waste trap) would also be
expected to be useless. This is a direct teaching against the claimed
processes. Reply Br. 2.
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Application 13/386,946
ANALYSIS
We agree with the Examiner’s fact finding, statement of the rejection
and responses to Appellants’ arguments as set forth in the Answer. We find
that the Examiner has provided evidence to support a prima facie case of
obviousness. Appellants do not argue individual claims separately, therefore
we select claim 1 as representative claim. We provide the following
additional comment to the Examiner’s argument set forth in the Final
Rejection and Answer.
The Examiner essentially finds that Johal teaches antifiingals such as
M. anisopliae can be used to control insects such as cockroaches. One of
ordinary skill in the art would understand from Johal that M. anisopliae can
be used to control cockroaches wherever they are found. Ans. 3. WHO
discloses that cockroaches may be found in ducts, pipes, sewers and
manholes. WHO, 294-295. Glendening discloses a pump system for
distributing microorganisms such as bacteria to assist in waste trap waste
degradation. Multichannel pumps discloses that a variety of fluids and
mixed phase fluids can be distributed via multichannel pumps.
Thus, we agree with the Examiner that one of ordinary skill in the art
desiring to address the problem of cockroaches in pipes and sewers would
have used the antifungals of Johal, which are stable in either dry or wet
form. Johal, Abstract. The antifungal would have been applied with a
reasonable expectation of success in areas where cockroaches are found,
such as the pipes and sewers disclosed in WHO. One of ordinary skill in the
art would have also known from Glendening that microorganisms such as
bacteria are also useful in addressing drain pipe problems, such as grease in
the drain, and that a peristaltic pump having multiple conduits would
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administered the microorganisms such as bacteria or microbes such as
fungal spores. Multichannel pumps also discloses the administration of
multiple substances through multichannel pumps. Thus, it would have been
obvious to administer two substances for drain treatment via the devices of
Glendening and Multichannel pumps.
It is prima facie obvious to combine two compositions each of
which is taught by the prior art to be useful for the same
purpose [drain associated issues such as grease and
,cockroaches], in order to form a third composition which is to
be used for the very same purpose. . . . [T]he idea of combining
them flows logically from their having been individually taught
in the prior art.
In reKerkhoven, 626 F.2d 846, 850 (CCPA 1980).
With respect to Appellants’ specific arguments, Appellants argue that
WHO teaches (page 295) that “[f]requent washing of a treated surface or
coatings of dust or grease can render an insecticide useless.” We are not
persuaded. The fungal product of Johal is not a chemical insecticide that is
washed away by frequent washing. Johal teaches fungal propagules or
conidia that can be applied in either wet or dry form. Abstract. The conidia
are long term, efficacious, and storage stable as monodispersed aqueous
suspension. Abstract; col. 2,1. 9-14. The conidia maintain an acceptable
germination profile. Table 5, col. 10. After about four and a half months of
storage at room temperature, the conidia-surfactant suspensions of Johal
were diluted with water to produce a suspension of about 105 conidia per
milliliter. The diluted, aqueous suspensions were then used to successfully
treat wax moth larvae and meal worms. Cols. 7-8. One of ordinary skill in
the art would have expected the conidia of Johal to be effective in a water
environment. Appellants present no evidence that the conidia of Johal
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would have been ineffective in a water environment, such as a drain, to rebut
the teachings of Johal. Appellants have not presented evidence that the
conidia of Johal would not be effective against cockroaches wherever they
are found.
Appellants contend that, “[t]he person of ordinary skill in the art
would not consult Glendening in matters regarding insect control, because
Glendening is completely silent with respect to insect control.” App. Br. 10.
We are not persuaded. One of ordinary skill in the art would consult
Glendening for dispersal of microbes, such as bacteria or conidia, and with
respect to treatment of drains. Abstract.
Appellants argue that there is not any reasonable sense in which a
sewer shaft could be regarded as a drain trap, and no evidence of such has
been provided. App. Br. 2. We are not persuaded. WHO discloses that
cockroaches may be found in ducts, pipes, sewers and manholes. WHO,
294-295. Johal discloses that M. anisopliae conidia can be used to control
insects such as cockroaches. One of ordinary skill in the art would
understand from Johal, that M. anisopliae can be used to control
cockroaches wherever they are found. Ans. 3. Glendening discloses a pump
system for distributing microorganisms such as bacteria to assist in waste
trap, waste degradation. Multichannel pumps discloses that a variety of
fluids and mixed phase fluids can be distributed via multichannel pumps.
One of ordinary skill in the art desiring to treat cockroaches in drain traps
would have looked to technology such as Glendening and Multichannel
pumps to disperse microbes into drains. As the Supreme Court pointed out
mKSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), analysis under 35
U.S.C. § 103 “need not seek out precise teachings directed to the specific
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subject matter of the challenged claim, for a court can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.” Id. at 418; see also id. at 421 (“A person of ordinary skill is ... a
person of ordinary creativity, not an automaton.”).
The preponderance of the evidence favors the Examiner in this case,
and the obviousness rejection is affirmed.
CONCLUSION OF LAW
The cited references support the Examiner’s obviousness rejection,
which is affirmed for the reasons of record. All pending, rejected claims
fall.
DECISION
The Examiner’s decision rejecting claims 14-16, 20, 28, and 29 are
affirmed.
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). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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