Ex Parte Swank

Board of Patent Appeals and Interferences

Aug 8, 2011

10990891 (B.P.A.I. Aug. 8, 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.
10/990,891 11/17/2004 Richard B. Swank TAS-14802/06 5598
13173 7590 08/08/2011
Patent Procurement Services
3200 Coolidge Highway, Suite A
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EXAMINER
PARSLEY, DAVID J
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
08/08/2011 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 RICHARD B. SWANK
____________

Appeal 2009-013753
Application 10/990,891
Technology Center 3600
____________

Before LINDA E. HORNER, KEN B. BARRETT, and
FRED A. SILVERBERG, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-013753
Application 10/990,891

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STATEMENT OF THE CASE
Richard B. Swank (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 1-9. We have jurisdiction
under 35 U.S.C. § 6(b). We REVERSE.
THE INVENTION
Appellant’s claimed invention is directed to animal litter formed from
an agglomerated biomass. Spec. 1, ll. 11-12. Claim 1, reproduced below, is
the sole independent claim and is representative of the subject matter on
appeal.
1. An animal litter comprising:
a plurality of sorbent granules each of said plurality of
sorbent granules comprising granule particulate that is 90% by
weight or more able to pass -20 screen sieve1 and a binder such
that greater than 90% of said granules have a size of between -5
and +60 screen sieve; and
an oil coating on each of said plurality of sorbent
granules.
THE REJECTIONS
Appellant seeks review of the following rejections:
1. The Examiner rejected claims 1-9 under 35 U.S.C. § 112, second
paragraph as being indefinite.

1 We understand that a “-” before the sieve size indicates that particles pass
through a sieve of that size and that a 20 screen sieve (U.S. sieve size) would
have an opening size of approximately 0.841 mm. See PARTICLE SIZE – US
SIEVE SERIES AND TYLER MESH SIZE EQUIVALENTS, AZOM, May 15, 2002,
http://www.azom.com/article.aspx?ArticleID=1417.
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2. The Examiner rejected claims 1-9 under 35 U.S.C. § 103(a) as
unpatentable over Evans (US 6,206,947 B1; issued March 27, 2001)
and Kory (US 6,053,125; issued April 25, 2000).
ISSUES
The issues presented by this appeal are:
Are the particle sizes recited in claim 1 understandable to a person
skilled in the art when the claim is read in light of Appellant’s Specification?
Does Evans disclose granule particulate having the claimed particle
size?
FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence.
1. Appellant’s Specification describes:
An animal litter is produced by milling sorbent material
to a particulate size such that greater than 90% by weight
of said particulate is -20 screen sieve size or finer. The
sorbent material is then agglomerated to the milled
particulate to a granule size of between -5 and +60 screen
sieve with a binder.
Spec. 2, ll. 15-20.
2. Appellant’s Specification further describes, “the litter base granule
material is initially cleaned and dried and milled to a size where
greater than 90% by weight of the material is -20 screen sieve or
finer.” Spec. 3, ll. 9-11.
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3. Appellant’s Specification further describes, “[u]pon mixing the
milled granule feedstock with a binder, the moisture content is
controlled so as to achieve a granule size where greater than 90%
by weight of the granules are between -5 and +60 screen sieve.”
Spec. 4, ll. 6-8.
4. Evans discloses “a calcined calcium sulfate absorbent as an animal
litter which is made by compacting the calcium sulfate to increase
the density or by adding a binder to the calcium sulfate powder and
agglomerating or compacting.” Evans, col. 2, ll. 51-55.
5. With regard to the compacted embodiment, Evans discloses that
the calcium sulfate is “passed through an extruder to increase the
density to produce a litter having the desired properties” and “is
then screened to a particle size range between a 4 mesh and about
100 mesh, U.S. sieve series . . . .” Evans, col. 2, ll. 60-65. See
also Evans, col. 4, ll. 17-31.
6. Evans discloses another embodiment in which “animal litter may
be made by crushing calcium sulfate . . . to a powder” and then
mixing the powdered calcium sulfate “with a dry binder prior to
introduction onto a pelletizer” or adding the binder “by misting an
aqueous solution containing the binder onto the powdered calcium
sulfate in a pelletizer” and then pelletizing, screening to a
predetermined size, and drying to calcine the pellets. Evans, col. 3,
ll. 31-40. See also Evans, col. 6, ll. 41-51.
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7. Evans discloses that “[f]or domestic litters, dusting and tracking is
a problem and therefor a litter of at least +100 mesh is desirable.”
Evans, col. 5, ll. 42-43.
8. Evans discloses an example in which waste gypsum wallboard was
ground in a roll crusher to a powder having a particle size between
about 2 to 5 mm, the powder was mixed with water to form a
paste, and the paste was then agglomerated by passing it through
an extruder to compact the calcium sulfate, the resulting hard
pellets were then crushed and screened to a particle size of from 6
mesh to 30 mesh. Evans, col. 8, ll. 5-15 (EXAMPLE 1).
9. Evans discloses another example in which waste gypsum was
ground in a roll crusher to a powder having a particle size between
about 2 to 5 mm and then the powder was sprayed with a urea
stock solution (a binder). Evans, col. 8, ll. 26-31 (EXAMPLE 2).
ANALYSIS
Rejection under 35 U.S.C. § 112, second paragraph
Claim 1 recites “a plurality of sorbent granules each of said plurality
of sorbent granules comprising granule particulate that is 90% by weight or
more able to pass -20 screen sieve and a binder such that greater than 90% of
said granules have a size of between -5 and +60 screen sieve.” The test for
definiteness under 35 U.S.C. § 112, second paragraph, is “whether those
skilled in the art would understand what is claimed when the claim is read in
light of the specification.” Orthokinetics, Inc. v. Safety Travel Chairs, Inc.,
806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations omitted). Appellant’s
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Specification describes milling sorbent material to a particulate size such
that greater than 90% by weight of said particulate is -20 screen sieve size or
finer (Facts 1, 2) and then agglomerating the milled particulate with a binder
to a granule size of between -5 and +60 screen sieve (Facts 1, 3).
We find that a person skilled in the art would understand this claim
limitation, when read in light of Appellant’s Specification, to define each
sorbent granule as comprised of granule particulate and a binder. We further
find that a person skilled in the art would understand “said granules,” when
read in light of Appellant’s Specification, to refer back to the sorbent
granules, and not the granule particulate. As such, we conclude that a
person skilled in the art would understand this claim limitation, when read in
light of Appellant’s Specification, to call for 90% by weight or more of the
granule particulate component of the sorbent granules to be able to pass -20
screen sieve, and to call for greater than 90% of the sorbent granules (i.e.,
the agglomerated granule particulate and binder formed into granules) to
have a size of between -5 and +60 screen sieve.
We disagree with the Examiner’s determination that claim 1 is unclear
as to what the particle size is as claimed. Claim 1 calls for two particle size
limitations, a first particle size for the granule particulate and a second
particle size for the sorbent granules. As such, we do not sustain the
Examiner’s rejection of claim 1 under 35 U.S.C. § 112, second paragraph.
Rejection under 35 U.S.C. § 103(a)
The Examiner found that “Evans et al. discloses an animal litter
comprising, a plurality of sorbent granules comprising granule particulate
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that is 90% by weight or more able to pass -20 screen sieve and a binder
such that greater than 90% of the granules have a size between -5 and +60
screen sieve. Ans. 3-4 (citing Evans, col. 4, ll. 17-61). While Evans
discloses compacted calcium sulfate absorbent screened to a particle size
range between 4 and 100 mesh (Facts 4, 5), compacted calcium sulfate
absorbent with a binder screened to a particle size of 6 to 30 mesh (Fact 8),
and teaches that for domestic litter, a litter of a litter of at least +100 mesh is
desirable (Fact 7), Evans fails to disclose the calcium sulfate powder, which
is used as granulate particulate starting material in each embodiment, having
a particle size as claimed. In the examples provided by Evans, the particle
size of the powder is disclosed as being between 2 to 5 mm (Facts 8, 9).
Particles of this size would not be able to pass a -20 screen sieve2, as called
for in claim 1. As such, we find that Evans fails to disclose a plurality of
sorbent granules comprising granule particulate that is 90% by weight or
more able to pass -20 screen sieve, as called for in claim 1. The Examiner
relies on Kory for the teaching of adding an oil coating to the sorbent
granules, and does not rely on Kory to cure the deficiency in Evans.
Accordingly, we will not sustain the Examiner’s rejection of claim 1 or its
dependent claims 2-9 as being unpatentable over Evans and Kory.
CONCLUSIONS
A person skilled in the art would understand the particle sizes recited
in claim 1 when the claim is read in light of Appellant’s Specification.

2 As noted supra in n.1, we understand that a 20 screen sieve (U.S. sieve
size) would have an opening size of approximately 0.841 mm.
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Evans does not disclose granule particulate having the claimed
particle size.
DECISION
The decision of the Examiner to reject claims 1-9 is REVERSED.

REVERSED

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