Ex Parte VAN DEN BERG et al

Patent Trial and Appeal Board

Sep 21, 2016

13087406 (P.T.A.B. Sep. 21, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/087,406 04/15/2011
32894 7590 09/23/2016
HOYNG ROKH MONEGIER LLP
Rembrandt Tower 31st Floor
Amstelplein 1
Amsterdam, 1096 HA
NETHERLANDS
FIRST NAMED INVENTOR
KAREL VAN DEN BERG
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.
04132.0193.USPO 6162
EXAMINER
WALTERS, JOHN DANIEL
ART UNIT PAPER NUMBER
3618
NOTIFICATION DATE DELIVERY MODE
09/23/2016 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):
amdocketing@hoyngrokh.com
ronny.amirsehhi@hoyngrokh.com
david.owen@hoyngrokh.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAREL VAN DEN BERG, MATTHEW VAN MEURS, and
JAN MARTINUS VAN KUILENBURG
Appeal2014-009983
Application 13/087 ,406
Technology Center 3600
Before JILL D. HILL, LISA M. GUIJT, and ERIC C. JESCHKE,
Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Karel Van Den Berg et al. ("Appellants") 1 appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision to reject claims 1, 3, 7-12, and 16-
22.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Lely Patent N.V. Br.
2.
2 Claim 6 is cancelled. Br. 2. Claims 4, 5, and 13-15 are objected to as
being dependent upon a rejected base claim. Final Act. 10-11.
Appeal2014-009983
Application 13/087,406
CLAIMED SUBJECT MATTER
Independent claim 1, reproduced below, is representative of the
subject matter on appeal.
1. An unmanned vehicle to carry out an animal-related
action, comprising:
a frame,
a control device to control the vehicle,
a locomotion device to move the unmanned vehicle,
and
a protective device to protect the vehicle against
obstacles,
wherein the protective device comprises a touchable
electrical conductor which extends on the outside of the
vehicle, and a voltage source to supply voltage to the
conductor under the control of the control device, and
wherein the control device is configured to activate
the voltage source during performance of a predetermined
action.
REJECTIONS 3
I. Claims 1, 3, 7, and 8 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Van Den Berg (WO 00/70941 Al; pub. Nov. 30, 2000)
(hereinafter "Van Den Berg '941 ").
II. Claims 1, 3, 7-9, 11, 16, 19, 20, and 22 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Van Den Berg '941 and Van Den Berg
(WO 2007/120036 Al; pub. Oct. 25, 2007) (hereinafter "Van Den Berg
'036").
3 The Examiner's rejections of claim 2 under 35 U.S.C. § 103(a) as
unpatentable over Van Den Berg '941, and also as unpatentable over Van
Den Berg '941 and Van Den Berg '036, are withdrawn. Ans. 9-10.
Therefore, there is no standing rejection of claim 2 on appeal.
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Application 13/087,406
III. Claims 9, 10, 12, 17, and 18 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Van Den Berg '941 and Wilson (US
3,560,922; iss. Feb. 2, 1971).
IV. Claims 9, 10, 12, 17, and 18 also stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Van Den Berg '941, Van Den Berg '036, and
Wilson.
V. Claim 21 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Van Den Berg '941 and van der Ploeg (EP 0 943 235 A2;
pub. Sept. 22, 1999).
VI. Claim 21 also stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Van Den Berg '941, Van Den Berg '036, and van der
Ploeg.
ANALYSIS
Rejection I
Regarding independent claim 1, the Examiner finds, inter alia, that
Van Den Berg '941 discloses "a protective device (14) to protect the vehicle
against obstacles, wherein the protective device comprises a touchable
electrical conductor ... which extends on the outside of the vehicle." Final
Act. 3 (citing Van Den Berg '941, p. 3, 11. 16-18).
Appellants argue that Van Den Berg '941 's driving means 14 does not
protect the vehicle against obstacles. Br. 6. Appellants explain that driving
means 14 is an "electric shock device ... used to drive an animal by its
reaction to the electric shock, and in that manner separate animals which
need to be separated from a group." Id. The Examiner responds that driving
means 14 "extends outward past an outer edge of said vehicle" and
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Appeal2014-009983
Application 13/087,406
"functions to keep animals, i.e. obstacles, from impacting a front section of
the vehicle body." Ans. 10.
Appellants' argument is not persuasive. Claim 1 recites a structural
limitation: "the protective device comprises a touchable electrical conductor
which extends on the outside of the vehicle," and a functional limitation: "a
protective device to protect the vehicle against obstacles." Br. 15 (Claims
App.). Claims directed to an apparatus must be distinguished from the prior
art in terms of structure rather than function. See In re Schreiber, 128 F.3d
1473, 1477-78 (Fed. Cir. 1997). Appellants do not dispute that Van Den
Berg '941 discloses the structural limitation stated supra, in that Van Den
Berg '941 discloses that driving means 14 is "connected to an electric shock
device which is capable of emitting a pulse" and extends outside of the
vehicle. Van Den Berg '941, p. 2, 11. 2-8, p. 3, 11. 14--19, Fig. 2. Further,
Appellants have not identified, nor can we find, any additional structure
required by the functional limitation stated supra, which would otherwise
differentiate the claimed unmanned vehicle from the unmanned vehicle
disclosed in Van Den Berg '941. Therefore, in accordance with In re
Schreiber, we are not apprised of error in the Examiner's finding that Van
Den Berg '941 discloses the claimed protective device.
Appellants' argument also does not apprise us of error in the
Examiner's findings that Van Den Berg '941 's "electrified prod (14) ...
extends outward past an outer edge of [the] vehicle," and that
notwithstanding Van Den Berg '941 's disclosure that the function of prod 14
is "to drive animals," prod 14 "also functions to keep animals, i.e. obstacles,
from impacting a front section of the vehicle body, i.e., protects the vehicle
front." Ans. 10. In other words, prod or driving means 14 is capable of
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Appeal2014-009983
Application 13/087,406
protecting Van Den Berg '941 's vehicle 3 from obstacles (animals), because
Figure 2 of Van Den Berg '941 depicts driving means 14, which is mounted
on rotatable upper part 7, as extending significantly beyond the front of
vehicle 3, such that animals shocked by driving means 14 would move away
from vehicle 3, whereby vehicle 3 would be protected from contact with
such animals. See Van Den Berg '941, p. 3, 11. 14--18.
Accordingly, we sustain the Examiner's rejection of independent
claim 1. Appellants do not present separate arguments for the patentability
of the dependent claims 3, 7, and 8. Br. 5---6. Thus, we also sustain the
Examiner's rejection of claims 3, 7, and 8.
Rejection II
Regarding independent claim 1, the Examiner finds, inter alia, that
Van Den Berg '036 teaches the claimed unmanned vehicle except for the
protective device. Final Act. 4--5. The Examiner relies on driving means 14
of Van Den Berg '941 for disclosing the protective device, and concludes
that it would have been obvious to modify Van Den Berg '036's vehicle to
include a protective device as taught by Van Den Berg '941 "to provide the
vehicle with a means to motivate animals to move and/or control their
movement when needed." Id. at 5.
Appellants argue that Van Den Berg '941 does not disclose the
claimed protective device. Br. 10-11. We do not find this argument
persuasive for the reasons discussed supra.
Appellants also argue that a person of skill would not modify Van
Den Berg '036 to include driving means 14 of Van Den Berg '941 because
Van Den Berg '036 "is particularly concerned with preventing the vehicle
from causing unrest in the animals." Br. 11. According to Appellants, "it
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Appeal2014-009983
Application 13/087,406
would be undesirable to modify [Van Den Berg '036] with means for
deliberate animal interaction, which means would cause unrest in the
animals." Id. The Examiner responds that providing the driving means on
the vehicle of Van Den Berg '036 "would allow the vehicle to direct or
control movement of animals ... [and] position animals before dispensing
feed." Ans. 11.
Appellants' argument is not persuasive. The issue is whether the
Examiner's reason for modifying the unmanned vehicle of Van Den Berg
'036 to include the driving means of Van Den Berg '941, i.e., in order to
motivate animals to move and/or control their movement when needed (see
Final Act. 4--5; Ans. 11), is supported by rational underpinnings. The
Examiner has provided a benefit to including the driving means, i.e., to
move animals when needed (see Final Act. 4--5; Ans. 11), which is
supported by Van Den Berg '941 and which provides that the driving means
14 is provided on the unmanned vehicle to drive animals. Van Den Berg
'941, p. 2, 11. 2-8, p. 3, 11. 14--18. Appellants' argument that one of skill
would not modify Van Den Berg '036 to include the drive means 14 of Van
Den Berg '941 because Van Den Berg '036 discloses approaching animals at
a feed gate too closely during operation might lead to an undesirably great
unrest with the animals does not show error in the Examiner's proffered
reasoning that it may be desirable to move the animals at other times, such
as before moving the feed. Thus, Appellants have failed to apprise us of
error in the Examiner's reasoning.
Accordingly, we sustain the Examiner's rejection of independent
claim 1. Appellants do not present separate arguments for the patentability
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Application 13/087,406
of the dependent claims 3, 7-9, 11, 16, 19, 20, and 22. Br. 10-11. Thus, we
also sustain the Examiner's rejection of claims 3, 7-9, 11, 16, 19, 20, and 22.
Rejection III-VI
Appellants state that claims 9, 10, 12, 17, and 18 "are allowable at
least by virtue of their dependency from allowable claim 1." Br. 14.
Appellants do not present any separate arguments for the patentability of
claim 21, which depends from claim 1. See id. For the reasons discussed
with respect to claim 1 supra, we sustain the Examiner's rejection of claims
9, 10, 12, 17, 18, and 21.
DECISION
We AFFIRM the Examiner's rejection of claims 1, 3, 7-12, and 16-
22.
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)(l )(iv).
AFFIRMED
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