Gary A. SchreinerDownload PDFPatent Trials and Appeals BoardAug 16, 201915205585 - (D) (P.T.A.B. Aug. 16, 2019) 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. 15/205,585 07/08/2016 Gary A. Schreiner 87478-6US1 / ADB 2841 23529 7590 08/16/2019 ADE & COMPANY INC. 2157 Henderson Highway WINNIPEG, MANITOBA R2G1P9 CANADA EXAMINER YUEN, JESSICA JIPING ART UNIT PAPER NUMBER 3762 NOTIFICATION DATE DELIVERY MODE 08/16/2019 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): djones@adeco.com uspto@adeco.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GARY A. SCHREINER1 ____________ Appeal 2019-001328 Application 15/205,585 Technology Center 3700 ____________ Before DANIEL S. SONG, CHARLES N. GREENHUT, and MICHAEL L. WOODS, Administrative Patent Judges. WOODS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Gary A. Schreiner (“Appellant”) appeals from the Examiner’s rejection of claims 12–16. Appeal Br. 2. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF THE DECISION We REVERSE. 1 Appellant identifies Gatco Manufacturing Inc. as the real party in interest. Appeal Br. 1. Appeal 2019-001328 Application 15/205,585 2 CLAIMED SUBJECT MATTER Appellant’s invention relates to a system for aerating particulate materials, such as grains, stored in a storage bin, to eliminate moisture from the grain, which may result in spoilage. See Spec. 1, ll. 8–19 (FIELD and BACKGROUND). Claim 12 is the sole independent claim and is reproduced below with emphasis added to a particular limitation discussed in this Decision. 12. A method of storing and drying by aeration particulate material comprising: locating the particulate material in a storage bin having an upstanding cylindrical peripheral wall standing upwardly from a bin bottom, and a bin roof on top of the peripheral wall; mounting an elongate perforated venting tube approximately centrally within the storage bin, the venting tube extending generally through the particulate material upwardly toward the bin roof; collecting within the venting tube the air from the particulate materials and transmitting and venting the same; mounting a plurality of upstanding elongated hollow aerator ducts disposed inside the storage bin in proximity to the cylindrical peripheral wall at angularly spaced positions around the cylindrical peripheral wall; mounting the upstanding aerator ducts only at the cylindrical peripheral wall and having no portion of the aerator ducts on the bin bottom; providing in each aerator duct perforations for transmitting air from inside the aerator duct to the particulate materials within the storage bin; and drying the particulate material by aeration by driving exterior air by an air blower arrangement into the hollow aerator ducts by connecting the air blower arrangement directly to the aerator ducts by one or more supply conduits; causing substantially all of said air exterior to said storage bin from said air blower arrangement to pass into the Appeal 2019-001328 Application 15/205,585 3 particulate material through said aerator ducts at the peripheral wall and not at the bin bottom; and causing said air from said aerator ducts to move in a direction toward a center of the storage bin by passing through a perforated front wall of the ducts. Appeal Br. 18–19 (Claims App’x.) (emphases added). THE REJECTIONS2 1. Claims 12–15 under 35 U.S.C. § 103(a) as unpatentable over Sukup (US 4,009,520, issued Mar. 1, 1977), Kramer (US 1,220,240, issued Mar. 27, 1917), Cottrell (US 3,713,564, issued Jan. 30, 1973), and Boll (US 1,020,256, issued Mar. 12, 1912). Final Act. 3. 2. Claim 16 under 35 U.S.C. § 103(a) as unpatentable over Sukup, Kramer, Cottrell, Boll, and Badger (US 3,036,510, issued May 29, 1962). Final Act. 3. 2 In the Examiner’s Answer, the Examiner withdrew a rejection of claims 12–16 as being indefinite under 35 U.S.C. § 112, second paragraph. Ans. 2. As such, we do not consider this rejection in our Decision. Appeal 2019-001328 Application 15/205,585 4 ANALYSIS Examiner’s Rejections In rejecting claims 12–16 under Rejections 1 and 2, the Examiner relies on Sukup for disclosing several of the claimed features. See Final Act. 3–4 (Rejection 1); see also id. at 6 (relying on the same findings in rejecting claim 16 under Rejection 2). To illustrate several of these findings, we reproduce Sukup’s Figure 1, below: According to the Examiner, and as shown above in Sukup’s Figure 1, Sukup discloses storage bin 10 with peripheral wall 15 from bottom 14, and bin roof 16 on top of peripheral wall 15. Final Act. 3 (citing Sukup, Fig. 1). The Examiner also finds that Sukup discloses aerator ducts 19 with perforations 35 for transmitting air from inside duct 19 to the particulate material within the storage bin and drying the particulate material by aeration from air blower 13. Id. (citing Sukup Fig. 1). The Examiner recognizes, however, that Sukup does not disclose “an elongate perforated venting tube with open upper end disposed Appeal 2019-001328 Application 15/205,585 5 approximately centrally within the storage bin, the venting tube extending generally through the particulate material upwardly toward the bin roof.” Id. at 4. To address this limitation, the Examiner relies on Kramer for disclosing an elongate perforated venting tube. Id. (citing Kramer Fig. II). To illustrate this finding, we reproduce Kramer’s Figure II, below: According to the Examiner, and as shown above in Kramer’s Figure II, Kramer discloses an aeration system with venting tube 22, 23 disposed centrally within the storage bin and extending upwardly toward bin roof 34 for collecting and transmitting the air from the particulate material. Id. at 4 (citing Kramer Fig. II). The Examiner cites to the following excerpt in Kramer: In order to provide ventilation within the bin, I provide a sweat tube comprising a lower cylinder 22, which is adapted to rest on the bottom of the bin and extends to near the top thereof, and which is perforated throughout its length so that air may enter the tube from the body of grain and carry off moisture therefrom. Appeal 2019-001328 Application 15/205,585 6 Kramer 2, ll. 26–33; see also Final Act. 4 (citing Kramer 2, ll. 24–33). In combining Sukup with Kramer, the Examiner reasons that a skilled artisan would have modified “Sukup to include steps of mounting an elongate perforated venting tube approximately centrally within the storage bin . . . in order to vent moisture air to from central of the storage bin to a location external to the storage bin and therefore improve drying efficiency.” Final Act. 5 (emphasis added). The Examiner also acknowledges that Sukup does not disclose that “each of said aerator ducts has a perforated front wall arranged to transmit said air in a direction toward a center of the storage bin.” Id. at 4. To address this difference, the Examiner relies on Boll. Id. at 5 (citing Boll’s Fig. 1 and 2). To illustrate this finding, we reproduce Boll’s Figures 1 and 2, below. Appeal 2019-001328 Application 15/205,585 7 According to the Examiner, and as shown in Boll’s Figure 1 (top) and Figure 2 (bottom), Boll discloses a storage bin with aerator ducts 11 with perforated 11a front wall 12 arranged to transmit air in a direction toward a center of the storage bin. Final Act. 5 (citing Boll Figs. 1 and 2). In further modifying Sukup with Boll, the Examiner reasons that a skilled artisan Appeal 2019-001328 Application 15/205,585 8 would have further modified Sukup “to locate the aerator ducts on the bin floor with no portion of the aerator ducts on the bin bottom and to provide the aerator ducts with perforated front wall as taught by Boll in order to transmit air in a direction toward a center of the storage bin from the aerator ducts above bin floor.” Id. (emphasis added). The Examiner further finds that Sukup does not disclose the step of connecting the air blower directly to the aerator ducts by one or more supply conduits “and substantially all of air exterior to the storage bin passes into the particulate material through said aerator ducts.” Final Act. 4. To address this difference, the Examiner relies on Cottrell for teaching an aeration system with a blower connected to ducts by supply conduits. See id. at 5. The Examiner reasons that a skilled artisan would have further modified Sukup to arrange Sukup’s air blower directly to aerator ducts thru conduits as taught by Cottrell in order to “supply all of the exterior air to the storage bin thru aerator ducts.” Id. (emphasis added). Appellant’s Argument Appellant argues, inter alia, that a skilled artisan would not have modified Sukup to include a central vent tube. See Appeal Br. 12. In particular, Appellant contends, “Sukup requires . . . the presence of the under floor plenum through which air passes” and that in Sukup’s system “forced air passes through the floor across the whole area of the bin” and that moisture is “carried upwardly to the roof space.” Id. Appellant further argues that the Examiner’s modification to add a centrally positioned vent tube in Sukup “will simply discharge to vent a large proportion of the air flow and divert it from its intended path.” Id. Appellant explains that, in Appeal 2019-001328 Application 15/205,585 9 Sukup’s system, “[t]he air must pass through the grain to do its work of drying” and that “[a]ny air that passes through a center duct simply escapes to waste.” Id. Appellant’s argument is persuasive. Our Analysis We are not persuaded that a person having ordinary skill in the art would have been motivated to modify Sukup by mounting an elongate, perforated, venting tube centrally within its storage bin, as the Examiner proposes. See Final Act. 5. Our reviewing court has cautioned us from succumbing to hindsight bias if a proposed combination would run contrary to the stated purpose of one of the references. See Polaris Indus., Inc. v. Arctic Cat, Inc., 882 F.3d 1056, 1069 (Fed. Cir. 2018). Even if a reference does not teach away, its statements regarding preferences are relevant to a finding regarding whether a skilled artisan would have been motivated to combine that reference with another reference. See Apple Inc. v. Samsung Elecs. Co., 839 F.3d 1034, 1051 n.15 (Fed. Cir. 2016) (en banc) (noting that, even if a reference “does not teach away, its statements regarding users preferring other forms of switches are relevant to a finding regarding whether a skilled artisan would be motivated to combine the slider toggle in” that reference with the invention of a second reference). In the present case, Sukup discloses: The blower unit is connected by a duct 26 to a portion of the interior of the bin 11 between the subfloor 12 and the floor 14a and which constitutes a transition or plenum chamber 24. Warmed dry air fills this entire space 24, being forced therein, Appeal 2019-001328 Application 15/205,585 10 and flows upward through the perforations and through the grain stored above said subfloor 12. The dry air being stored above said subfloor 12. The warmed dry air, being forced through the grain through an opening in 27 in the roof. Sukup, col. 3, ll. 19–22 (italicized emphases added) We find that Sukup operates to remove moisture from stored grain by circulating warm, dry air from the bottom of the stored grain and upward. We agree with Appellant that adding a centrally located sweat tube, which would extend from the bottom of Sukup’s bin to its top, as disclosed in Kramer, would divert the flow of warm, dry air away from the grain, mostly near the top of the stored grain. See Appeal Br. 12. We further note that Kramer’s system operates much differently from Sukup’s system, and we are not persuaded that a skilled artisan, upon reviewing Kramer, would have been motivated to apply Kramer’s centrally located sweat tube to Sukup. Notably, Kramer’s system does not force air through its bin to remove moisture. Rather, in Kramer’s bin, the joints are “effectively sealed to make them water tight, wherein ventilation is afforded through the side walls” (Kramer 1, ll. 15–22), and, in such a configuration, Kramer’s sweat tube “allows surplus moisture to escape from the grain” (id. at 3, ll. 93–95). Because Kramer’s system does not force any air into its storage bin to dry the grain—let alone by forcing warm, dry air into the bin floor, like Sukup’s system—we are not persuaded that a skilled artisan would have added Kramer’s sweat tube to Sukup’s system. The record does not support the Examiner’s assertion that such a sweat tube would have improved Sukup’s drying efficiency (see Final Act. 5; see also Ans. 7–8) and the Appeal 2019-001328 Application 15/205,585 11 Examiner’s reason for modifying Sukup is unsupported by rational underpinnings (see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)). Moreover, and in addition to those reasons discussed above, we are not persuaded that a skilled artisan would have rearranged Sukup’s aerator ducts so that “no portion of the aerator ducts [are] on the bin bottom and to provide the aerator ducts with perforated front wall as taught by Boll in order to transmit air in a direction toward a center of the storage bin from the aerator ducts above bin floor.” Final Act. 5. The only reason to modify Sukup with Boll—so that no portion of the ducts are on the bin bottom and redirecting air toward the center—appears to be based on impermissible hindsight in striving to meet those claim limitations. See Appeal Br. 19 (Claim 12 reciting, “mounting the upstanding aerator ducts only at the cylindrical peripheral wall and having no portion . . . on the bin bottom” and “causing said air from said aerator ducts to move in a direction toward a center . . . .”). We are also doubtful that a skilled artisan would have modified Sukup to rearrange Sukup’s air blower to “supply all of the exterior air to the storage bin thru aerator ducts” (Final Act. 5 (emphasis added)), while still maintaining Sukup’s bin floor air plenum. See Ans. 4 (“To modify Sukup to include a centrally located venting tube on the bin floor as taught by Kramer would not require removal of the plenum of Sukup.”) Indeed, if “all of the exterior air to the storage bin [is circulated] thru aerator ducts” (Final Act. 5), as the Examiner explains, then there is presumably no air being supplied to Sukup’s bin floor, and we do not see a purpose for Sukup’s bin floor air plenum. Appeal 2019-001328 Application 15/205,585 12 For the foregoing reasons, we do not sustain the rejection of claims 12–16 as unpatentable under either Rejection 1 or 2. SUMMARY The rejection of claims 12–15 as unpatentable over Sukup, Kramer, Cottrell, and Boll is reversed. The rejection of claim 16 as unpatentable over Sukup, Kramer, Cottrell, Boll, and Badger is reversed. REVERSED Copy with citationCopy as parenthetical citation