Ex Parte Temple et alDownload PDFPatent Trial and Appeal BoardDec 16, 201412234983 (P.T.A.B. Dec. 16, 2014) Copy Citation 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. 12/234,983 09/22/2008 Douglas G. Temple 18531 5192 30689 7590 12/16/2014 DEERE & COMPANY ONE JOHN DEERE PLACE MOLINE, IL 61265 EXAMINER TORRES, ALICIA M ART UNIT PAPER NUMBER 3671 MAIL DATE DELIVERY MODE 12/16/2014 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 DOUGLAS G. TEMPLE and BRIAN J. TANK ____________________ Appeal 2012-009439 Application 12/234,983 Technology Center 3600 ____________________ Before: JENNIFER D. BAHR, JAMES P. CALVE, and LISA M. GUIJT, Administrative Patent Judges. CALVE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the final rejection of claims 8–13 and 15–17. App. Br. 5. Claims 1–7 and 14 are cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2012-009439 Application 12/234,983 2 CLAIMED SUBJECT MATTER Claims 8, 13, and 17 are independent. Claim 8 is reproduced below. 8. A grain flow deflector for use in an agricultural harvester of a type for performing threshing and cleaning operations, and presenting clean grain to a conveyor for conveyance to a temporary onboard storage location, the deflector located near the outlet end of the conveyor and comprising: first and second interconnected grain flow directing plates, the first plate rigidly fixed to the outlet end of the conveyor and operable to control scattering of grain, and the second plate adjustably fixed to the outlet end of the conveyor and operable to direct grain flow in adjustably selectable directions, the outlet end of the conveyor being substantially open in a longitudinal direction of the conveyor for the conveyance of grain through the outlet end; and a journal being generally centrally positioned in the outlet end of the conveyor, the journal being coupled to the conveyor, the outlet end being a distal end of the conveyor, the outlet end being substantially open on opposite sides of the journal. REJECTION Claims 8–13 and 15–17 are rejected under 35 U.S.C. § 102(b) as being anticipated by Haag (US 5,167,581; iss. Dec. 1, 1992). ANALYSIS Appellants argue claims 8–13, 15, and 16 as a group and present separate arguments for claim 17. See App. Br. 11–16. We select claim 8 as representative and address Appellants’ regarding claim 17 separately. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 9–13, 15, and 16 stand or fall with claim 8. Appeal 2012-009439 Application 12/234,983 3 Claims 8–13, 15, and 16 Appellants argue that Haag discloses a directable spout for a conveyor where the grain path comes from a side opening in an auger tube that opens in a radial connection. App. Br. 12. As a result, Appellants contend that the fixed first plate and adjustable second plate are not connected to the outlet end of the conveyor. Id. This argument does not persuade us of error in the Examiner’s findings that Haag discloses an adjustable plate 22 and fixed plate (stationary housing 24) connected to a distal end 16 of a conveyor tube as claimed and as disclosed by Appellants. Ans. 4, 9. Haag discloses that conveyor 12 moves material through a hollow tube 14 and a distal end 16 of tube 14 includes an outlet (opening 18). Haag, col. 2, ll. 24–29; Figs. 1, 2. Appellants assert that Haag does not disclose the end of the conveyor tube as substantially open in the longitudinal direction. App. Br. 13; Reply Br. 2–3. Appellants argue that Haag opens in a radial direction. Id. This argument does not persuade us of error in the Examiner’s findings that Haag discloses a conveyor whose outlet end is substantially open in a longitudinal direction of the conveyor as indicated by Arrow “A” on the Examiner’s annotated reproduction of Figure 2 of Haag, or that a transverse cross section of the conveyor tube is open as indicated by Arrow “B” on the annotated Figure 2 of Haag. Ans. 9–10. The longitudinal axis or direction of the conveyor 12 of Haag extends along the length of the auger conveyor 12 and hollow tube 14. Appellants disclose a similar configuration in which an auger 44 extends in a longitudinal direction along the auger axis 46. Spec. 5, para. 17; Fig. 3. Appellants’ arguments do not apprise us of error in the Examiner’s findings in this regard. The Examiner’s annotations of Figure 2 of Haag are reproduced below along with Figure 1 of Haag. Appeal 2012-009439 Application 12/234,983 4 Figure 1 is a partial perspective of a spout. Figure 2 is a side sectional view of the auger conveyor and spout with annotations of the Examiner. Appellants also contend that Haag does not disclose a journal that is centrally positioned in the end opening or an end that is substantially open on opposite sides of the journal. App. Br. 13–14. Appellants assert that Haag’s conveyor end is open around the tube less than 180 degrees and the journal is centrally located in the tube, which makes it impossible for the opening of Haag to be open on opposite sides of the journal. Id. These Appeal 2012-009439 Application 12/234,983 5 arguments do not persuade us of error in the Examiner’s findings that Haag discloses such a configuration in Figure 3. Ans. 10–11. Haag discloses that the opening 18 is located at a distal end 16 of tube 14. Haag, col. 2, ll. 25– 29; fig. 2. The outlet of Haag is open on both sides of the journal, as shown by the Examiner’s annotations of Figure 3, which is reproduced below. Figure 3 is a sectional view of the conveyor and spout with annotations of the Examiner. We sustain the rejection of claims 8–13, 15, and 16. Claim 17 Appellants argue that claim 17 recites a deflector that is configured to minimize the additional power required to move grain when the outlet end is submerged in grain. Reply Br. 4. Appellants assert that Haag discloses a flow path of grain as coming from a side of auger 12 and impacting deflector plate 22. App. Br. 14–15. Appellants contend that the power required to operate Haag’s auger increases substantially because the auger is not just moving grain but is attempting to compress it downwardly so that the outlet will clog and stop working if the conveyor is submerged. Id.; Reply Br. 4. Appeal 2012-009439 Application 12/234,983 6 These arguments are not persuasive of error in the Examiner’s finding that Haag discloses the structure recited in claim 17, including the deflector, which appears to give rise to the reduced power limitation, and that this structure is capable of meeting this functional limitation. See Ans. 12. As a result, Appellants have a burden of showing that Haag’s structure is not capable of performing the claimed function of minimizing additional power required. See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) (where the PTO has reason to believe that a functional limitation is an inherent characteristic of the prior art, appellant has the burden to show that the prior art structure does not inherently possess the functional feature). Appellants’ attorney argument is not evidence sufficient to establish that Haag’s conveyor and deflector do not minimize the additional power required.1 See Reply Br. 4; App. Br. 14–15. We sustain the rejection of claim 17. DECISION We AFFIRM the rejections of claims 8–13 and 15–17. 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)(iv). AFFIRMED mls 1 Appellants disclose that the claimed configuration with deflector reduces the additional power required (plot 68), as compared to a conveyor with a configuration disclosed in U.S. Patent No. 5,695,399 (plot 70), but not as much as removing the deflector entirely (plot 66). See Spec. 6–7, para. 21; Fig. 6. Copy with citationCopy as parenthetical citation