Ex Parte Birrell et alDownload PDFPatent Trial and Appeal BoardApr 25, 201312062860 (P.T.A.B. Apr. 25, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte STUART J. BIRRELL, BENJAMIN J. SCHLESSER, and MARK D. DILTS ____________ Appeal 2011-002442 Application 12/062,860 Technology Center 3600 ____________ Before MICHAEL L. HOELTER, LYNNE H. BROWNE and MITCHELL G. WEATHERLY, Administrative Patent Judges. BROWNE, Administrative Patent Judge DECISION ON APPEAL Appeal 2011-002442 Application 12/062,860 2 STATEMENT OF THE CASE Stuart J. Birrell et al. (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-7, 10-18 and 20-24. Claims 8, 9 and 19 have been canceled. App. Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. THE INVENTION Claim 1, reproduced below, is illustrative of the subject matter on appeal: 1. A double shear chopper for chopping a material, comprising: a counter shear bar having a main counter shear surface; a plurality of stationary knives associated with the counter shear bar; a shaft; at least one rotor section operatively connected to the shaft, the at least one rotor section configured to rotate with the shaft; at least one knife holder in each of the at least one rotor section; at least one knife operatively connected to each of the at least one knife holder; slots in each of the at least one knife holder, wherein opposite edges of each of the slots provide counter shear surfaces for the plurality of stationary knives; and the main counter shear surface of the counter shear bar providing a counter shear surface for each of the at least one knife. App. Br. 22. Appeal 2011-002442 Application 12/062,860 3 PRIOR ART Kalverkamp US 5,269,126 Dec. 14, 1993 Schrattenecker US 6,120,373 Sep. 19, 2000 Redekop US 6,478,674 B2 Nov. 12, 2002 REJECTIONS1 1. Claims 1, 3-7, 10, 13, 16 and 20-24 stand rejected under 35 U.S.C. § 102(b) as anticipated by Redekop. Ans. 4. 2. Claims 1-7, 10, 13, 16 and 20-24 stand rejected under 35 U.S.C. § 102(b) as anticipated by Schrattenecker.2 Ans. 9. 3. Claims 1-7 stand rejected under 35 U.S.C. § 102(b) as anticipated by Kalverkamp.3 Ans. 13. 1 The Examiner has withdrawn the rejections under 35 U.S.C. § 102(b) of claims 1, 3-7, and 10-18 as anticipated by Pick (US 5,161,356, iss. Nov. 10, 1992); claims 1-7 and 10-18 as anticipated by Bateman, US 5,413,286, iss. May 9, 1995); and claims 10-18 and 20-24 as anticipated by Kalverkamp. Ans. 2. 2 On pages 12 and 13 of the Examiner’s Answer in the Grounds of Rejection claims 11, 12 and 14-16 are included in the rejection based on Schrattenecker; however, these claims were not rejected in the non-final Office action mailed March 26, 2010 as anticipated by Schrattenecker. Furthermore, neither Appellant nor the Examiner have included these claims in their statements of the rejections on appeal. 3 The Answer on page 4 indicates that claims 1 and 3-7 are rejected as anticipated by Kalverkamp; however, in the Office action mailed March 26, 2010, claims 1-7 are rejected. Appeal 2011-002442 Application 12/062,860 4 OPINION Anticipation Redekop The Examiner finds that Redekop discloses each and every limitation of claims 1, 3-7, 10, 13, 16 and 20-24 and concludes that Redekop anticipates these claims. Ans. 4-9. Appellants argue that “Redekop [] does not disclose slots in a knife holder.” App. Br. 10. Appellants further argue [t]he Examiner appears to consider the space between mounting portions 191 of adjacent twist blade members to be the claimed slots. One of the problems with the Examiner's interpretation is that there are no slots in the mounting portions 191, let alone slots which have opposite edges which provide counter shear surfaces. App. Br. 11. The Examiner states “Appellant[s’] argument that the space between mounting portions are not slots is not agreed with. Examiner considers the slots to be in between the knife holders.” Ans. 17. In response, Appellants argue Redekop does not disclose the claimed slots. The Examiner marks up FIG. 4 of Redekop in an attempt to support his position by arbitrarily attempting to map structure of Redekop to language of the claims. Yet, there are numerous errors in the Examiner's attempted mapping and the Examiner's position is inconsistent with the disclosure of Redekop as well as common sense. Consider for example, what the Examiner considers to be the “knife holder.” In the Examiner's marked up FIG. 4, the Examiner draws an arbitrary line and states “above the line ‘knife holder’” and “below this line ‘least one knife’ (cutting edge shown).” The arbitrary line Appeal 2011-002442 Application 12/062,860 5 transverses a blade 19A. Thus, the Examiner is apparently considering a part of the blade a knife holder and part of the blade a knife. This type of “interpretation” by the Examiner ignores both the plain language of the claim as well as disclosure of Redekop. Reply Br. 2-3. Appellants’ arguments are convincing. Claim 1 requires at least one knife holder and at least one knife operatively connected to each of the at least one knife holder. App. Br. 22. While Redekop’s elements 19A are described as blades, and thus, can fairly be read on the claim language requiring at least one knife, the Examiner’s designation of a portion of blades 19A as knife holders is not a fair reading of Redekop’s disclosure. Redekop clearly describes the portion identified by the Examiner as the base portion 191 of the blade as still part of the blade. Redekop, col. 5, ll. 18-37. In Redekop, the element corresponding to the claimed at least one knife holder are the lugs 21. Redekop, col. 4, ll. 21-25. Thus, the Examiner’s finding is not supported by substantial evidence. Claim 1 further requires slots in each of the at least one knife holder. The space between the blades 19A identified by the Examiner as corresponding to the claimed slots does not meet the claim language requiring slots in each of the knife holders. Accordingly, the Examiner’s finding that Redekop discloses the claimed slots is not supported by substantial evidence. For these reasons we do not sustain the Examiner’s rejection of independent claim 1 and claims 3-6, which depend therefrom. The rejection of independent claims 7, 10, 13, 16, 21 and 22 are not supported by substantial evidence for the same reasons. Accordingly, we do Appeal 2011-002442 Application 12/062,860 6 not sustain the Examiner’s rejection of independent claims 7, 10, 13, 16, 21 and 22 or claim 20 which depends from claim 13. Regarding independent claim 23, the Examiner finds that Redekop’s bottom wall 12 is a counter shear bar. Ans. 4. Appellants argue Redekop does not disclose “(a) a counter shear bar, [and] (b) a plurality of stationary knives associated with the counter shear bar.” Reply Br. 9. Appellants’ argument is convincing. Redekop’s bottom wall 12 of housing 10 cannot be fairly read on the claimed counter shear bar as it is not a bar and Redekop discusses wall 12 as aiding in the discharge of straw, not its shearing. Redekop, col. 4, ll. 1-11. Thus, the Examiner’s finding that Redekop discloses a counter shear bar is not supported by substantial evidence. Accordingly, we do not sustain the Examiner’s anticipation rejection of independent claim 23 or claim 24 which depends therefrom. Schrattenecker The Examiner finds that Schrattenecker discloses each and every limitation of claims 1-7, 10, 13, 16 and 20-24 and concludes that Schrattenecker anticipates these claims. Appellants argue “Schrattenecker does not disclose the claimed slots in the knife holders. The slits 14 of Schrattenecker are not the claimed slots as they are not in the knife holders but rather in the knife blades.” App. Br. 14. Appellants’ argument is convincing. While the Examiner correctly finds that Schrattenecker’s rotary cutting tools correspond to the at least one knife set forth in independent claim 1; as clearly shown e.g., in Figure 4 and explicitly disclosed in Schrattenecker, the slits 14 are in the rotary cutting tools rather than in a knife holder. Schrattenecker, col. 2, l. 28. The Examiner’s finding that “the blades 11 pass through the slits/slots 14 and the retaining plates/knife Appeal 2011-002442 Application 12/062,860 7 holders of the stationary blades 8 as shown in figs. 1-3” (Ans. 9) is speculative and appears to be based on an incorrect interpretation of the position of the counter blades 11 with respect to the retaining plates 6. Thus, the Examiner’s finding that Schrattenecker discloses slots in the at least one knife holder is not supported by substantial evidence. Accordingly, we do not sustain the Examiner’s anticipation rejection of independent claim 1 and claims 2-6 which depend therefrom. The rejection of independent claims 7, 10, 13, 16, 21 and 22 is not supported by substantial evidence for the same reasons. Accordingly, we do not sustain the Examiner’s rejection of independent claims 7, 10, 13, 16, 21 and 22 or claim 20 which depends from claim 13. Regarding claim 23, Appellants argue “Schrattenecker does not disclose that grain is collected and the Examiner cites to no portion of Schrattenecker in support of that allegation.” App. Br. 16. In other words, Appellants argue that Schrattenecker fails to disclose the step of “collecting the grain using the harvesting machine” as required by claim 23. Appellants’ argument is persuasive. Neither the rejection nor the Examiner’s Response to Arguments address why collecting the grain using the harvesting machine is a necessarily present step in the method described by Schrattenecker. Accordingly, we do not sustain the Examiner’s anticipation rejection of independent claim 23 or claim 24 which depends therefrom. Kalverkamp The Examiner finds that Kalverkamp discloses each and every limitation of claims 1-7 and concludes that Kalverkamp anticipates these claims. Appellants argue “the claims recites that there is a slot in each knife Appeal 2011-002442 Application 12/062,860 8 holder. This structure is simply not disclosed by Kalverkamp.” App. Br. 19. The Examiner finds that Kalverkamp discloses “each of the at least one knife holder having slots [] 7” (Ans. 14), however, Kalverkamp explicitly states that “blades 3 to 6 are provided with longitudinally spaced apart slots 7.” Kalverkamp, col. 5, ll. 34-36. For this reason, we do not sustain the Examiner’s anticipation rejection of independent claim 1 and claims 2-6 which depend therefrom. The rejection of independent claim 7 suffers from the same shortcomings as the rejection of claim 1. Accordingly, we do not sustain the Examiner’s rejection of independent claim 7. DECISION We reverse the Examiner’s rejection of claims 1, 3-7, 10, 13, 16 and 20-24 under 35 U.S.C. § 102(b) as being anticipated by Redekop. We reverse the Examiner’s rejection of claims 1-7, 10, 13, 16 and 20- 24 under 35 U.S.C. § 102(b) as being anticipated by Schrattenecker. We reverse the Examiner’s rejection of claims 1-7 under 35 U.S.C. § 102(b) as being anticipated by Kalverkamp. REVERSED mls Copy with citationCopy as parenthetical citation