Ex Parte Tobin et al

Patent Trial and Appeal Board

Dec 31, 2014

11864216 (P.T.A.B. Dec. 31, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JON S. TOBIN, TIMOTHY LEMLEY,
DUANE L. HAWKINS, DAVID A. D’ORAZIO,
SCOTT C. TRESCOTT, MARK W. VANDESANDE, and
TODD W. VANDESANDE
____________________

Appeal 2012-009213
Application 11/864,216
Technology Center 3600
____________________

Before: EDWARD A. BROWN, LYNNE H. BROWNE, and
LEE L. STEPINA, Administrative Patent Judges.

BROWNE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Jon S. Tobin et al. (Appellants) appeal under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 1–7, 9–14, and 18–21.1 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Claim 8 is canceled. Claims 15–17 are withdrawn from consideration.
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Application 11/864,216
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CLAIMED SUBJECT MATTER
The claims are directed to an apparatus for and method of filling a
container with similar articles. Claim 1, reproduced below, is illustrative of
the claimed subject matter:
1. An apparatus for filling an upright container with a number
of similar articles from an elevated source, the container having
a base and an open top, the apparatus comprising:
an auger comprising a substantially helical ramp disposed
about a shaft, the auger being rotatable about a longitudinal axis
of the shaft and translatable along the longitudinal axis, the
auger being arranged proximate the elevated source to receive
the articles from the source, and an end of the auger comprising
a discharge through which the articles are discharged into the
container, the auger being selectively translatable along the
longitudinal axis between a first position in which the discharge
is disposed relatively closer to a bottom of the container and a
second position in which the discharge is disposed relatively
farther from the bottom of the container, translation of the auger
between the first position and the second position maintaining a
non-zero drop distance between the discharge and a fill level of
the articles in the container.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Driscoll
Allen
Myers
US 2,114,104
US 3,258,112
US 4,194,343
Apr. 12, 1938
June 28, 1966
Mar. 25, 1980

REJECTIONS
I. Claims 13, 57, 9, 10, and 12 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Driscoll and Myers.
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II. Claims 4, 11, and 1821 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Driscoll, Myers, and Allen.
III. Claims 13 and 14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Driscoll, Myers, and Appellants’ Admitted Prior
Art (AAPA).

OPINION
Rejection I
Appellants argue claims 1–3, 57, 9, 10, and 12 together. See Br. 4–
6, 9. We select independent claim 1 as the illustrative claim, and claims 2,
3, 5–7, 9, 10, and 12 stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2011).
The Examiner determines that the combined teachings of Driscoll and
Myers render claim 1 obvious. Ans. 5. In particular, the Examiner finds
that Myers teaches “utilizing a vertically movable filling tube discharge head
14 for maintaining a specified distance above the bin bottom and the upper
product height level.” Id. (citing Myers Figs. 3, 4; col. 8, ll. 67+). The
Examiner’s determination is based on the reasoning that it would have been
obvious “to include the position maintaining system of Myers et al. in the
invention to Driscoll et al. for positioning the filling auger tube at a desired
level above the product fill line for a desired density without material
deformation/ compaction.” Id.2

2 We note that claim 1 recites an apparatus comprising “an
auger.” Claim 1 does not recite an apparatus comprising a
“container” or “articles.” We also note that neither the Answer
nor the Appeal Brief specifically addresses whether the claim
language “translation of the auger between the first position and

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Appellants argue that “Driscoll teaches away from the claimed
invention because a person having ordinary skill in the art would be [led] by
Driscoll down a path divergent from the path taken by Applicants in their
invention.” Br. 6. In support of this argument, Appellants contend that
“Driscoll is directed to tightly packing flowable materials in bags or
containers and makes clear that loosely packing the materials is undesirable”
(id. (citing, e.g., Driscoll, col. 1. ll. 51–55)); whereas, “[t]he present
invention does not provide a tight pack, and instead teaches maintaining a
non-zero drop distance between the discharge and the fill level of the
articles.” Id. at 7.
Appellants’ contention is not well taken because claim 1 is silent with
respect to the tightness or looseness of the pack. Br. 10, Clms. App’x.
Furthermore, Appellants’ contentions that “Driscoll is directed to tightly
packing flowable materials” and that “Driscoll achieves this desired tight
packing of materials by maintaining intimate contact of the auger with the
material” mischaracterize Driscoll’s teachings. Id. at 6. Driscoll states:
To insure a tight packing of the material in the bag or
container 3 and to vary the tightness of the pack, means are
provided to control the upward movement of the screw in the
bag during a filling and packing operation. It will be apparent
that when the screw 9 is lowered into the bag 3 and is rotated to
feed and pack the material in the bag, the increasing amount of
material which is fed into the bag will force the screw upward
as the bag is filled with material. In the absence of resistance

the second position maintaining a non-zero drop distance
between the discharge and a fill level of the articles in the
container” recites an intended use or function of the claimed
apparatus, or instead requires specific structural features in the
claimed apparatus.

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to this upward thrust of the material the resulting packing will
be less tight than if resistance to the upward thrust of the
material is provided. And the amount of resistance provided
will control the tightness of the pack.
Driscoll, p. 2, col. 1, ll. 54–69 (emphasis added). Thus, Driscoll’s disclosure
contemplates a “less tight” packing where there is no resistance to the
upward thrust of the material. Appellants do not persuasively explain why
such “absence of resistance” would not correspond to a “loose pack.”
Accordingly, Driscoll cannot fairly be said to “teach away” from a loose
pack as “teaching away” requires that the reference “criticize, discredit, or
otherwise discourage” the use of other alternatives. See In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004). We will not read into a reference a
teaching away from a proposed combination when no such language exists.
See DyStar Textilfarben GmbH & Co. v. C.H. Patrick Co., 464 F.3d 1356,
1364 (Fed. Cir. 2006).
Appellants further argue that the proposed modification “would
produce a ‘seemingly inoperative device,’” because “[m]odifying Driscoll as
proposed, i.e., by controlling the distance between a discharge and the
material as suggested by Myers, would render Driscoll unable to perform its
intended purpose of creating a tight pack.” Br. 8.
Appellants’ argument is similarly unconvincing because Appellants
do not persuade us that Driscoll’s intended purpose is limited to to creating a
tight pack. As discussed supra, Driscoll contemplates a “less tight” (i.e.,
loose) pack. Driscoll, p. 2. col. 1, ll. 54–69.
For these reasons, we sustain the Examiner’s decision rejecting claims
1–3, 57, 9, 10, and 12.
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Rejection II
Claim 4 depends from independent claim 1 and claim 11 depends
from independent claim 9. Appellants do not present separate arguments for
the patentability of claims 4 and 11. Accordingly, we sustain the
Examiner’s decision rejecting claims 4 and 11 for the reasons discussed
supra.
Appellants argue claims 18–21 together. See App. Br. 8–9. We select
independent claim 18 as the representative claim, and claims 19–21 stand or
fall with claim 18.
Regarding claim 18, Appellants argue that “[i]t would not have been
obvious to provide peripheral sides as in Allen on Driscoll’s auger.” Br. 8.3
In support of this argument, Appellants argue that “[s]uch an arrangement
would function only to collect the material-to-be-packed at the bottom of the
auger, which is contrary to the stated goal of dispersing and packing such
material as it slides down the auger.” Id. at 8–9.
In response to this argument, the Examiner notes that “the
incorporation of a known type of auger such as that taught by Allen et al.
[i.e. an auger with peripheral sides] in the invention to Driscoll et al. would
have been within the capability of one of ordinary skill in the art.” Ans. 7.
The Examiner further notes that “a person of ordinary skill in the art would
recognize that [Allen] would improve similar devices in the same way, using
the technique [of including peripheral sidewalls] is obvious unless its actual
application is beyond that person’s skill.” Id.

3 Appellants’ reference to claim 19 in the last full paragraph on page 8 of the
Brief appears to be a typographical error.
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Appellants do not provide evidence or persuasive argument
demonstrating that it is beyond the level of skill of a person of ordinary skill
in the art to substitute Allen’s auger for Driscoll’s auger. Nor do Appellants
provide evidence or persuasive argument in support of their contention that
modifying Driscoll’s auger to include sidewalls while maintaining the
auger’s ability to disperse and pack material is beyond the skill of a person
of ordinary skill in the art. Rather, Appellants’ argument is based on
speculation, as noted by the Examiner, and is not persuasive. Ans. 7.
For these reasons, we sustain the Examiner’s decision rejecting claim
18, and claims 19–21 which fall therewith.
Rejection III
Appellants do not present separate arguments for the patentability of
claims 13 and 14 which depend from claim 9. Accordingly, we sustain the
Examiner’s decision rejecting these claims for the reasons discussed supra.

DECISION
The Examiner’s rejections of claims 1–7, 9–14, and 18–21 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED
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