Ex Parte Wolfley

Patent Trial and Appeal Board

Apr 3, 2014

11383936 (P.T.A.B. Apr. 3, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GREG WOLFLEY
____________

Appeal 2012-003366
Application 11/383,936
Technology Center 3600
____________

Before GAY ANN SPAHN, MICHAEL C. ASTORINO, and
THOMAS F. SMEGAL, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
rejection of claims 1-20 under 35 U.S.C. § 103(a) as unpatentable over Cripp
(US 2002/0098322 A1, published Jul. 25, 2002) and Brandt (US 4,065,926,
issued Jan. 3, 1978). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

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CLAIMED SUBJECT MATTER
Claim 1, reproduced below, with paragraph formatting added, is
illustrative of the appealed subject matter.
1. An irrigation system for delivering a fluid,
comprising:
a) a first network module of fluid conduit having:
al) a plurality of nodes, wherein each of the nodes
of the plurality of nodes are in direct fluid
communication with at least three other nodes;
a2) a first exterior side in redundant fluid
communication with the plurality of nodes;
a3) a plurality of juncture members extending from
a first exterior side; and
a4) a pressure compensating emitter in fluid
communication with at least one of the plurality of nodes
and configured to disperse fluid therethrough when
subject to at least a threshold pressure; and
b) a second network module of fluid conduit coupleable
to the first network of fluid conduit at two or more of the
plurality of juncture members, wherein the second network is in
redundant fluid communication with the first network when
coupled thereby.

OPINION
Appellant argues claims 1-20 as a group and we select independent
claim 1 as the representative claim. See App. Br. 13-30.1 Claims 2-19 fall
with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).

1 Although the Appeal Brief does not have page numbers thereon, page 1 is
the page beginning with “PATENT APPLICATION” and “Docket No.:
3355.2.1NP” in the upper right hand corner and ending with “. . . under 35
U.S.C. §§ 134(a) and 6(b)” in the last line. Pages 2-30 are numbered
consecutively therefrom.
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The Examiner finds that Cripp substantially discloses the subject
matter of claim 1, but “fails to disclose each of the nodes in direct fluid
communication with at least three other nodes.” Ans. 4-5. To cure the
deficiency of Cripp, the Examiner turns to Brandt to disclose an irrigation
system including “a plurality of nodes (72), wherein each of the nodes (72)
is in direct fluid communication with at least three other nodes (72).” Ans. 5
(citing Brandt, col. 5, ll. 1-15 and Fig. 4). The Examiner concludes that it
would have been obvious to one of ordinary skill in the art to have modified
Cripp’s apparatus with the arrangement of nodes as taught by Brandt to: (1)
“provide a more uniform distribution of liquid throughout the irrigation grid
and into the irrigated region through holes in the irrigation piping”; (2)
“improve water efficiency by allowing excess water to flow directly from
one part of the irrigation system to another part of the irrigation system
where there is a water deficit,” i.e., “once the maximum discharge rate is
reached for a particular node, the water flows to a region in which the
maximum discharge rate has not been reached”; and (3) “because the simple
substitution of one known element [i.e., the interconnected nodal
arrangement as taught by Brandt] for another [i.e., the linear nodal
arrangement as taught by Cripp] would have yielded predictable results.”
Ans. 5-6 (citing KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007)).
Appellant argues that the Examiner’s reasoning of “provid[ing]
uniform distribution of liquid through the irrigation grid and into the
irrigated region through holes in the irrigation piping” is flawed for three
reasons. App. Br. 14-15. First, Appellant argues that the Examiner’s
uniform distribution of liquid reasoning is flawed because “Brandt explicitly
teaches that the structure of Brandt does not provide uniform distribution of
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liquid throughout the irrigation and into the irrigated region through holes in
the irrigation piping.” App. Br. 15. More particularly, Appellant argues that
“Brandt’s pattern of nodes has particular difficulties with and results in an
uneven distribution of liquid,” and “Brandt’s solution to [the] problems with
the node structure . . . is a ‘varying [of] aperture size and/or spacing[]’ . . .
that is customized to each particular situation.” App. Br. 15-16 (citing
Brandt, col. 3, ll. 40-49). Appellant also argues that “the node structure of
Brandt provides non-uniform distribution of fluid” and “combining the node
structure of Brandt with the structure of Cripp would likely have resulted in
a problem with non-uniform distribution of fluid.” App. Br. 16.
Brandt discloses that “[d]ue to the variety of parameters involved,
e.g., flow patterns, frictional loss, drainage and moisture-holding capacity of
the soil, there must be a counterbalancing factor which can equalize the
parameters thereby providing for substantially even distribution of liquid,”
and “[o]ne way of achieving such balance is by varying aperture size and/or
spacing.” Brandt, col. 3, ll. 40-46. Thus, we are not persuaded by
Appellant’s arguments because Brandt does not disclose a non-uniform
distribution of fluid, but rather discloses that a uniform distribution of fluid
is achieved by varying aperture side and/or spacing as indicated by the
Examiner. See Ans. 9.
In addition, Appellant’s characterization of Brandt’s teachings “as a
possible workaround for the explicitly stated problem of Brandt with uneven
distribution of liquid” is without merit. Reply Br. 4. Brandt discloses that
“for the majority of average irrigation applications, it should be noted that
the holes or apertures which are closest to the opening 28 will have a smaller
size than those farther from the opening” and this will “equalize[e] factors of
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flow and frictional loss. Brandt, col. 3, ll. 49-54. Thus, Brandt’s disclosure
is directed to a water distribution grid 16 that uniformly distributes liquid
and using varying aperture size and/or spacing to achieve this is not a mere
“workaround.”
Second, Appellant argues that the Examiner’s uniform distribution of
liquid reasoning is flawed because “Cripp already teaches using devices that
provide substantially even fluid emission and one of ordinary skill in the art
would not consider the structure of Brandt to be of meaningful benefit to the
uniform distribution of liquid.” App. Br. 15; see also App. Br. 17-18.
Appellant explains that “Cripp teaches using pressure compensating
emitters,” which are “devices known in the art to permit fluid distribution
only at predetermined pressure thresholds,” and that “[s]uch emitters are
designed to make the distribution of liquid through such a system more even
because they will not permit liquid to pass unless the pressure in [the]
system reaches a particular threshold.” App. Br. 17-18. Based upon the
foregoing explanation, Appellant argues that “[s]ince the structure of Cripp
already provides for uniform emission of fluid, . . . that Cripp has no need to
improve the evenness of its fluid distribution.” App. Br. 18. Appellant
further argues that “if further improvements on the distribution [in Cripp]
were desired, one of ordinary skill in the art would have customized emitter
flow rates to match soil conditions as suggested in Brandt,” rather than using
the node structure of Brandt. Id.
In the Examiner response to Appellant’s arguments, the Examiner
disagreed that Cripp has no need to improve evenness of its fluid distribution
because the Examiner noted that Cripp’s apparatus “ensures uniform
emission of liquid along a longitudinal axis of the system, but does not
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ensure uniform emission of liquid along a horizontal axis of the system,” and
“Brandt teaches an irrigation system comprising a uniform emission of
liquid along both a longitudinal axis and a horizontal axis of the irrigation
system.” Ans. 9. We are not persuaded by Appellant’s arguments because
we agree with the Examiner that Cripp would benefit from Brandt’s teaching
of having uniform distribution along an axis perpendicular to the
longitudinal axis. In addition, it is mere speculation on Appellant’s part that
one of ordinary skill in the art would further improve on the distribution in
Cripp by customizing emitter flow rates to match soil conditions by the
teachings of Brandt. Given Brandt’s teachings of a water distribution grid
16 (col. 3, ll. 7-17 and Figs 1 and 2), it appears more likely that one of
ordinary skill in the art would have improved on Cripp’s distribution by
including Brandt’s teachings of flow along a horizontal axis.
Third, Appellant argues that the Examiner’s uniform distribution of
liquid reasoning is flawed because “there is no rational underpinning or
supporting evidence on the record that one skilled in the art at the time of the
invention would have believed that the node structure of Brandt would have
provided any benefit to the structure of Cripp.” App. Br. 15; see also App.
Br. 18-19. More particularly, Appellant argues that the Examiner’s
reasoning “is devoid of any reference to the Cited Art or to any evidence
beyond mere assertion of what one of ordinary skill in the art would have
known, thought, believed, or been motivated to do,” and “the Office . . .
failed to provide any evidentiary support for the conclusory reasoning.” Id.
A rigid application of the “teaching, suggestion, motivation” or TSM
test for nonobviousness is incompatible with Supreme Court precedent.
KSR, 550 U.S. at 419. The Examiner thus need not establish the existence of
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a teaching, suggestion, and motivation in combining teachings from prior art
references; rather, the Examiner must provide an articulated reasoning with
some rational underpinning to support a legal conclusion of obviousness. In
re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). The analysis need not seek out
precise teachings directed to the specific subject matter of the claim but can
take into account the inferences and the creative steps that a person of
ordinary skill in the art would employ. KSR Int’l, 550 U.S. at 418.
Although the Examiner’s uniform distribution of liquid reasoning does not
appear in, and is not suggested by, one or more of the references on which
the Examiner relies, the Examiner’s reasoning analyzes the evidence and
employs common sense not inconsistent with the ordinary level of
knowledge and skill in the art. See Perfect Web Techs. v. InfoUSA, Inc., 587
F.3d 1324, 1328-29 (Fed. Cir. 2009). In the present case, the Examiner’s
uniform distribution of liquid reasoning is supported by a rational
underpinning and thus, we are not persuaded by Appellant’s arguments.
Moreover, because we have determined that the Examiner’s first
reasoning for modifying Cripp by the teachings of Brandt, i.e., uniform
distribution of liquid, is not flawed, we need not reach Appellant’s
arguments with respect to the Examiner’s second and third reasonings. See
App. Br. 19-25.
Finally, Appellant also argues that “Cripp and Brandt each teach away
from one another and teach away from the claimed invention.” App. Br. 13;
see also App. Br. 25-20. More particularly, Appellant argues that “[b]oth
Cripp and Brandt criticize and discourage the suggested modification of
Cripp and the claimed invention” with respect to: (1) cost savings; (2)
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installation efficiency; and (3) design efficiency and simplicity. See App.
Br. 29; see also App. Br. 26-28.
In order to “teach away” a reference must “criticize, discredit, or
otherwise discourage the solution claimed.” In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004). While we acknowledge that Cripp indicates the
“OBJECTS OF THE INVENTION” to be:
[0011] It is a primary object the present invention to
provide a unified approach to erosion prevention and irrigation
that is more efficient and cost effective than the conventional
independent approaches to these two requirements.
[0012] It is a further object to simplify, expedite and
facilitate the original design, development and specification
activity requirements for irrigation/erosion prevention projects.
[0013] It is a further object to provide a single unified
product that can be implemented and installed in a single
operation instead of the conventional practice of performing
separate erosion prevention and irrigation operations for the
same region.
[0014] It is a further object to provide a product that
performs both irrigation and erosion prevention simultaneously,
and that can be readily installed as a single combined product in
a single unified operation.
(Cripp 1, paras. [0011]-[0014]), we note that the “conventional”
approaches or practices that Cripp’s objects are referring to in
paragraphs quoted supra are a list of known erosion control mats and
blankets set forth in six prior art patents listed in paragraph [0009] and
that Brandt is not one of the six patents listed. Thus, we do not agree
with Appellant that Cripp criticizes, discredits, or otherwise
discourages modifying its anti-erosion irrigation matting panel 10 to
include the node structure of Brandt because Cripp’s stated objects are
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specifically addressing a list of prior art patents which Brandt is not
included in.
Additionally, even if Brandt discloses “the importance of cost savings,
simplicity of design, and efficiency of installation” as suggested by
Appellant, we are not persuaded that “Brandt . . . discourages and criticizes
the modification of Cripp with the structure of Brandt” for the same reasons
as discussed with respect to Cripp supra, and that “Brandt criticizes and
discourages the claimed invention because it would be more expensive, less
simple, and more difficult to install.” App. Br. 28 (citing Brandt, col. 1, ll.
17-[]2[0] and 40-45, and col. 2, ll. 7-10). An attorney's arguments in a brief
cannot take the place of evidence (see In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974)) and Appellant has failed to provide evidence explaining why
modifying Cripp with the node structure of Brandt would result in greater
expense, less simplicity, and more difficulty to install.
Finally, Appellant notes Cripp indicates “the importance of
simultaneously providing irrigation and erosion control through use of a
combination of a drip line system with and erosion control mat” and “[f]or
erosion control matting to operate effectively, it must at least temporarily
remain in contact with the soil over the surface area of the area to be
protected.” App. Br. 28 (citing Cripp, paras. [0001] and [0008]-[0012]).
Appellant also notes that “Brandt teaches that in the process of creating the
node structure of Brandt, it is desired to remove the areas within the lines
using a punch mechanism, ‘thus leaving a void’ for ‘weight reduction and
material usage.” Id. (citing Brandt, col. 4, ll. 41-59). Appellant then argues
that “the teachings of Cripp and Brandt, especially in regard to the node
structure, are incompatible as each teaches away from the other by
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discouraging/criticizing the structure of the other as failing to meet desired
result.” Id.
Appellant has failed to cogently explain why Cripp’s teaching of at
least temporary contact of the erosion control mat with the soil over the area
to be protected teaches away, by discouraging or criticizing, from
modification by Brandt’s node structure which requires removal of areas
within the lines for weight reduction and material usage. Since after
modification of Cripp by the teachings of Brandt at least the remaining
portions of the grid area would remain for contact with the soil, we are not
persuaded by Appellant’s arguments.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1, and claims 2-19 which fall therewith, under 35 U.S.C. § 103(a) as
unpatentable over Cripp and Brandt.

DECISION
We AFFIRM the Examiner’s decision to reject claims 1-20.
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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