Ex Parte Blunier et alDownload PDFPatent Trial and Appeal BoardMay 31, 201813605209 (P.T.A.B. May. 31, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/605,209 09/06/2012 71475 7590 06/04/2018 CNH Industrial America LLC Intellectual Property Law Department 700 STATE STREET RACINE, WI 53404 FIRST NAMED INVENTOR Timothy R. Blunier 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. 50553 (CNHA:0130) 7186 EXAMINER TORRES, ALICIA M ART UNIT PAPER NUMBER 3671 NOTIFICATION DATE DELIVERY MODE 06/04/2018 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): napatent@cnhind.com vannette.azarian@cnhind.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TIMOTHY R. BLUNIER, BRIAN MCMAHON, and MATTHEW R. SUDBRINK Appeal2017-007435 1 Application 13/605,2092 Technology Center 3600 Before MICHAEL C. ASTORINO, KENNETH G. SCHOPPER, and BRADLEY B. BAY AT, Administrative Patent Judges. SCHOPPER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 1-16, 18, and 20-22. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Our decision references the Appeal Brief ("Appeal Br.," filed Apr. 29, 2016), the Reply Brief ("Reply Br.," filed Apr. 12, 2017), the Examiner's Answer ("Ans.," mailed Feb. 14, 2017), and the Final Office Action ("Final Act.," mailed Oct. 29, 2015). 2 According to Appellants, the real party in interest is CNH Industrial America LLC. Appeal Br. 2. Appeal2017-007435 Application 13/605,209 BACKGROUND According to Appellants, "[t]he invention relates generally to ground working equipment, such as agricultural equipment, and more specifically, to a pull frame for an agricultural implement." Spec. ,r 1. CLAIMS Claims 1, 9, and 16 are the independent claims on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. An agricultural implement, comprising: a tool bar assembly comprising a first tool bar, wherein the tool bar assembly is configured to couple to a main frame of the agricultural implement, and a height of the first tool bar is adjustable relative to a soil surface; a pull frame comprising a hitch assembly, a mounting portion, a hollow portion, a hitch on an end of a downward sloping portion of the hitch assembly, a first port to the hollow portion on the downward sloping portion of the hitch assembly, and a second port to the hollow portion proximate to the mounting portion, wherein the first port is positioned above the hitch and closer to the tool bar assembly than the hitch, the hitch is configured to be coupled to a work vehicle, the mounting portion is configured to be removably coupled to the main frame of the agricultural implement, the hollow portion extends over the first tool bar between the first port and the second port while the tool bar assembly and the pull frame are coupled to the main frame, and the hollow portion is configured to accommodate one or more conduits; and the one or more conduits extending through the hollow portion of the pull frame at least while the pull frame is coupled to the main frame, wherein each conduit of the one or more conduits is configured to convey a fluid, an electrical current, or any combination thereof, between the agricultural implement and the work vehicle. Appeal Br. 25. 2 Appeal2017-007435 Application 13/605,209 REJECTIONS 1. The Examiner rejects claims 1-8, 16, 18, 20, and 21 under 35 U.S.C. § I03(a) as unpatentable over Tomlonovic3 in view of Bulmahn. 4 2. The Examiner rejects claims 9-15 under 35 U.S.C. § I03(a) as unpatentable over Tomlonovic in view of Bulmahn and Boetto. 5 3. The Examiner rejects claim 22 under 35 U.S.C. § I03(a) as unpatentable over Tomlonovic in view of Bulmahn and Smith. 6 DISCUSSION Obviousness over Tomlonovic and Bulmahn Claims 1---8 As discussed below, we are persuaded by Appellants' argument that the rejection contains reversible error because the art does not render obvious claim 1 insofar as the claim requires "a first port to the hollow portion on the downward sloping portion of the hitch assembly" and "wherein the first port is positioned above the hitch and closer to the tool bar assembly than the hitch." With respect to the rejection of claim 1, the Examiner acknowledges that neither Tomlonovic nor Bulmahn teach the location of the first port required by claim 1, i.e., "on the downward sloping portion of the hitch assembly" and "positioned above the hitch and closer to the tool bar assembly than the hitch." Final Act. 3-5. Rather, the Examiner relies on Bulmahn as teaching two ports for conduits running through a hollow 3 Tomlonovic et al., US 7,150,419 Bl, iss. Dec. 19, 2006. 4 Bulmahn, US 4,679,634, iss. July 14, 1987. 5 Boetto et al., US 4,030,551, iss. June 21, 1977. 6 Smith et al., US 6,378,279 Bl, iss. Apr. 30, 2002. 3 Appeal2017-007435 Application 13/605,209 member, and regarding the specific location of the first port, the Examiner concludes: When [Tomlonovic and Bulmahn are] combined, it would have been obvious to one having ordinary skill in the art at the time the invention was made to locate the first port of Bulmahn on the forward downward sloping portion of Tomlonovic et al.' s hitch assembly (30) and above the hitch since this is the part corresponding to the front of Bulmahn's pull frame having the first port, as per claim 1. Similarly, when combined, it would have been obvious to one having ordinary skill in the art at the time the invention was made to locate Bulmahn[] 's second port proximate to Tomlonovic et al. 's mounting portion (28) since this is the part corresponding to Bulmahn' s rear pull frame having the second port, as per claim 1. Furthermore, it would have been obvious to locate these ports taught by Bulmahn on the downward portion of Tomlonovic et al.'s hitch above the hitch and closer to the tool bar assembly than the hitch, as per claim 1, and proximate Tomlonovic et al. 's mounting portion, as per claim 1, since it has been held that rearranging parts of an invention involves only routine skill in the art. Final Act. 5. The Examiner can satisfy the burden of establishing that every limitation of a claim would have been obvious by showing "some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness." KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398,418 (2007). Here, even if we were to agree that the art may otherwise disclose an agricultural implement as claimed other than with respect to the location of the first port, the Examiner does not provide a citation to any evidence or a line of technical reasoning adequate to support the determination that it would have been obvious to relocate the first port as provided in Bulmahn such that it is located closer to the tool bar assembly than the hitch. Rather, the Examiner appears to suggest a per se rule of obviousness. See generally 4 Appeal2017-007435 Application 13/605,209 MPEP § 2144.04 (VI)(C) ("Rearrangement of Parts"); see also Ex parte Chicago Rawhide Mfg. Co., 223 USPQ 351,353 (Bd. Pat. App. & Inter. 1984)) ("The mere fact that a worker in the art could rearrange the parts of the reference device to meet the terms of the claims on appeal is not by itself sufficient to support a finding of obviousness. The prior art must provide a motivation or reason for the worker in the art, without the benefit of appellant's specification, to make the necessary changes in the reference device."). The Examiner's position is unavailing because we agree with Appellants that the Examiner has not provided an adequate reason to move the port in Bulmahn from the end of the hitch to the claimed location distanced away from the hitch and closer to the tool bar assembly. At best, we determine that the Examiner provides a reason for combining Tomlonovic with ports for conduits at the locations provided by Bulmahn. Although Bulmahn teaches two ports in an assembly, Bulmahn teaches only that the first port is located at the end of the assembly near the point where Bulmahn's extension assembly is hitched to the tractor body. We see no indication, and the Examiner does not point to any evidence, showing that Bulmahn contemplates providing a first port at a different location. And beyond the mere allegation that moving the first port would have required only routine skill in the art, the Examiner does not provide a reason why one of ordinary skill in the art would have found it obvious to move the first port to the location required by the claim. In the Answer, the Examiner provides alternative proposals for the rejection. First, the Examiner finds "as shown by Bulmahn, it appears that extending the hoses directly from the vehicle to the first port in a horizontal 5 Appeal2017-007435 Application 13/605,209 direction is old and well-known in the art." Ans. 3. The Examiner asserts that "[ s ]uch a system would decrease chances of tangles and kinks in the hoses and minimize the opportunity for the hoses to catch on moving parts." Id. We disagree with the Examiner that Bulmahn supports a finding that it was old and well-known to extend hoses from the vehicle to the first port in a horizontal direction. Rather, Bulmahn clearly shows that the conduit does not extend horizontally from the vehicle to the hollow portion of the frame in Bulmahn. See Bulmahn Fig. 1 (showing the conduit turning from a nearly vertical to a horizontal position before entering the hollow frame). Further, even if the conduits were added to Tomlonovic and made horizontal in this manner, the Examiner has not shown that the resulting assembly would include a first port positioned as claimed because it is not clear that conduits extending horizontally from Tomlonovic's tractor would intersect T omlonovic' s pull frame at a position such that the first port would be closer to the tool bar assembly than the hitch. Second, the Examiner asserts that a bodily incorporation of Bulmahn's ports into Tomlonovic's pull frame would result in a first port at the end of the horizontal portion of Tomlonovic's pull frame, which is closer to the tool bar assembly than the hitch as required by the claim. Ans. 3--4. However, we are not persuaded that this would be the result of bodily incorporating Bulmahn's ports into Tomlonovic's pull frame. Rather, we agree with Appellants that Bulmahn teaches only that the first port is located at the end of the frame closest to the body of the tractor. See Reply Br. 5---6. Thus, we agree that a bodily incorporation would place the port at the end of Tomlonovic's pull frame closest to the tractor. Further, the Examiner has not adequately shown in this configuration that the resulting first port would 6 Appeal2017-007435 Application 13/605,209 be located on the downward sloping portion of the hitch assembly in Tomlonovic. Rather, it appears the first port would be located on the end of the horizontal portion of the assembly and not on the downward sloping portion. Based on the foregoing, we are persuaded of reversible error in the rejection of claim 1. Accordingly, we do not sustain the rejection of claim 1. For the same reasons, we also do not sustain the rejection of dependent claims 2-8. Claims 16, 18, 20, and 21 Claim 16 recites "[a] method of manufacturing an agricultural implement" including, inter alia, the step of "inserting one or more conduits through a first port of a first hollow portion of the first pull frame, wherein the first port is positioned above the hitch on a downward sloping surface of the first pull frame and closer to the tool bar assembly than the hitch .... " Appeal Br. 28. The Examiner relies on substantially the same reasoning to reject this claim as that discussed above with respect to claim 1. See Final Act. 6-8. For the reasons discussed above, we are also persuaded of reversible error in the rejection of claim 16. Accordingly, we do not sustain the rejection of claim 16. We also do not sustain the rejection of dependent claims 18, 20, and 21 for the same reasons. Rejection over Tomlonovi, Bulmahn, and Boetto Claim 9 recites "[ a ]n agricultural implement" comprising, inter alia, a pull frame with "a first port to a hollow portion of the pull frame on a downward sloping portion of the hitch assembly, ... wherein the first port is positioned above the hitch and closer to the tool bar assembly than the hitch . . . . " With respect to this claim requirement, the rejection relies on 7 Appeal2017-007435 Application 13/605,209 substantially the same reasoning as discussed above with respect to claim 1. See Final Act. 10-12. Further, the Examiner does not rely on Boetto with respect to the location of the first port. See id. at 12-13. Thus, for the reasons discussed above, we are also persuaded of reversible error in the rejection of claim 9. Accordingly, we do not sustain the rejection of claim 9. We also do not sustain the rejection of dependent claims 10-15 for the same reasons. Obviousness over Tomlonovic, Bulmahn, and Smith The Examiner does not rely on Smith to cure the deficiency in the rejection of claim 1. Accordingly, we do not sustain the rejection of claim 22, which depends from claim 1. CONCLUSION We REVERSE the rejections of claims 1-16, 18, and 20-22. REVERSED 8 Copy with citationCopy as parenthetical citation