Ex Parte BORTH et al

Patent Trial and Appeal Board

Sep 24, 2018

14594613 (P.T.A.B. Sep. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/594,613 01/12/2015 Paul W. BORTH
107540 7590 09/26/2018
Barnes & Thornburg LLP (Dow)
11 South Meridian Street
Indianapolis, IN 46204
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.
14764-233253 4044
EXAMINER
MUI, CHRISTINE T
ART UNIT PAPER NUMBER
1797
NOTIFICATION DATE DELIVERY MODE
09/26/2018 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):
INDocket@btlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL W. BORTH, NAILAH ORR,
PETER N. SCHERER, BRIAN M. SCHNEIDER,
MIKE P. TOLLEY, CHRISTOPHER J. VOGLEWEDE,
GARY D. CROUSE, DAVID G. MCCASKILL,
KERRM Y. YAU, EDWARD L. OLBERDING,
JOSEPH J. DEMARK, and MARC L. FISHER
Appeal2017-010040
Application 14/594,613
Technology Center 1700
Before JAMES C. HOUSEL, GEORGE C. BEST, and A VEL YN M. ROSS,
Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL 1
1 In our Decision we refer to the Specification filed January 12, 2015, as
amended, ("Spec."), the Final Office Action appealed from dated August 17,
2016 ("Final Act."), the Appeal Brief filed March 17, 2017 ("Appeal Br."),
the Examiner's Answer dated May 19, 2017 ("Ans.") and the Reply Brief
filed July 18, 2017 ("Reply Br.").
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Appellant2 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 19-35. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
STATEMENT OF THE CASE
The subject matter on appeal relates to a bedbug detection,
monitoring, and control techniques. See generally Spec. In particular, one
embodiment described in the Specification includes a control device that
"obtain[ s] a sample of a substance from the room; analyz[ es] the sample to
determine if nitrophorin is present in the substance; and provid[ es] an
indication of the presence of bedbugs in response to the determination of the
presence ofnitrophorin." Id. ,r 8. Claim 19, reproduced below, is
illustrative of the claimed subject matter:
19. An insect control device, comprising:
a housing member including an exterior wall, the housing
member defining an internal chamber, and
a sensing arrangement positioned in the internal chamber
of the housing member, the sensing arrangement including:
one or more sensors configured to analyze a substance received
by the sensing arrangement and generate a sensor signal,
a controller electrically connected to the one or more
sensors and configured to receive the sensor signal, the controller
is further configured to determine if the substance is indicative
of the presence of one or more insects, and
a power source electrically connected to the controller and
configured to provide power to the one or more sensors and the
controller.
Appeal Br. 18 (Claims App.).
2 Appellant is Applicant, Dow AgroSciences, LLC, who, according to the
Appeal Brief, is also the real party in interest. Appeal Br. 2.
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REJECTIONS
The Examiner maintains the following rejections:
A. Claims 19, 20, 22, 23, 26, 27, 3 29, and 31-35 stand
rejected under 35 U.S.C. § 102(b) as anticipated by
Chyun. 4 Final Act. 4.
B. Claims 21, 24, and 30 stand rejected under 35 U.S.C.
§ I03(a) as unpatentable over Chyun. Id. at 8.
C. Claim 25 stands rejected under 35 U.S.C. § I03(a) as
unpatentable over Chyun in view of Farrell. 5 Id. at 10.
D. Claim 28 stands rejected under 35 U.S.C. § I03(a) as
unpatentable over Chyun in view of Studer. 6 Id.
OPINION
Rejection A-Anticipation (claims 19, 20, 22, 23, 26, 27, 29, and 31-35)
The Examiner rejects claims 19, 20, 22, 23, 26, 27, 29, and 31-35 as
anticipated by Chyun. Final Act. 4. Appellant presents arguments against
Rejection A by arguing the claims in Groups A-I (see Appeal Br. 4) which
correspond to numbered paragraphs 1-9 discussed below.
1. Claims 19, 20, and 22:
The Examiner finds that Chyun teaches an insect control device as
claimed by claim 19. In particular, the Examiner finds that Chyun teaches a
3 The Examiner omits claim 27 from the recitation of claims subject to
Rejection A in the heading (i110), however, claim 27 is addressed within the
body of the Rejection (Final Act. 5) and argued by Appellant (Appeal Br. 9-
10).
4 Chyun et al., PCT/KR 2005/00560, filed February 28, 2005 and
corresponding to US 2007/0169401 A 1, published July 26, 2007 ("Chyun").
5 Farrell et al., US 6,445,301 B 1, issued September 3, 2002 ("Farrell").
6 Studer et al., US 2004/0200129 Al, published October 14, 2004
("Studer").
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device having a housing (100) with an exterior wall that defines an inner
chamber, a sensing arrangement with one or more sensors (370) that receive
a sensor signal to determine if a substance indicating the presence of an
insect is present, and a power source to connect a controller to power the
sensors. Final Act. 4.
Appellant argues claims 19, 20, and 22 as a group and does not
present any argument for claims 20 and 22 that is distinct from claim 19.
Appeal Br. 4. We therefore limit our discussion to claim 19. Claims 20 and
22 stand or fall with claim 19. 37 C.F.R. § 4I.37(c)(l)(iv) (2013).
Appellant argues that Chyun fails to anticipate claim 19 because
Chyun fails to disclose a sensor that is "configured to analyze a substance
received by the sensing arrangement" according to the claims. Appeal Br. 4.
According to Appellant, Chyun detects the presence of insects on a birdlime
based on the difference in light intensity between areas with and without
insects. Id. As a result, Appellant explains, "the sensor receives only light
and analyzes only light intensities" as opposed to a "substance" as claimed.
Id. at 6. Appellant urges that the Examiner's rejection is based on an
incorrect understanding of "substance," which according to the common
understanding of the term and the Specification, "refers to specific
chemicals, fluids, and/or other physical matter as substances." Id.
Therefore, because the sensor of "Chyun does not receive the insects ... [it]
does not receive a substance" within the understanding of the invention. Id.
at 7.
Appellant's arguments do not persuade us of a reversible error by the
Examiner. As the Examiner explains, Chyun senses a substance as claimed
because Chyun's sensor "detects how many insects are attached to the
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birdlime, by, e.g., scanning one end of the birdlime and determining the
intensity." Ans. 10. As a result, the insects or bugs attached is an indication
of "the substance," i.e., a physical material, as claimed. Id. ("[A] dead insect
is [the] sum of its dead parts, including 'one or more or any combination of
... exoskeletons, lost antennae and other body parts.'"). Appellant's
contention that while Chyun's sensor may detect the presence of an insect, it
does not "receive" or "analyze" the insect parts as required by the claims
(Reply Br. 2) is similarly unpersuasive. Appellant's claims broadly require
"one or more sensors configured to analyze a substance," and do not require
the performance of a biochemical assay or other particularized test to
determine the precise nature of the substance detected. Appellant uses the
term "analyze" and "detect" interchangeably within the Specification. See
e.g., Spec. ,r,r 25, 27, 30, 32. Accordingly, the preponderance of the
evidence supports the Examiner's findings that, Chyun-which attracts bugs
to its birdlime using a UV light and then scans that birdlime to detect the
presence of bugs captured on the birdlime-"analyzes a substance" as
required by the instant claim 19.
We, therefore, affirm the Examiner's rejection of claim 19.
2. Claim 23:
Claim 23 ultimately depends from claim 19 and further requires that
the "the indicator produce[] a visual output using one or more light sources
in response to the controller determining that one or more insects are
present." Appeal Br. 18 (Claims App'x). The Examiner finds that Chyun
describes an indicator that "produces a visual output using one or more light
sources in response to the controller determining that one or more insects are
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present, [0063] ... attracting insects by using light." Final Act. 5. The
Examiner further finds that
the Chyun reference teaches in [0052 and 0056], the sensor may
be a CCD camera and the sensor can be a point or line detector
in connection to detect the changes in light intensities with a
controller to control movement of the birdlime and in [0057],
data obtained by the sensor is used to notify a user, for insect
control status monitoring system and displayed on a display.
Ans. 11-12.
Appellant argues that the Examiner mischaracterizes Chyun's
teachings and that Chyun's paragraph 63 "fails to disclose anything about
producing 'a visual output in response to the controller determining that one
or more insects are present' as required by claim 23." Appeal Br. 7-8. And
with respect to the Examiner's findings regarding the CCD camera as a
sensor, Appellant explains that,
[a]lthough paragraph [0057] discloses that sensor data may be
used as data notifying the insect control status to a remote person
observing the insect control status, Chyun fails to disclose what
the form of that notification. As quoted above, none of the
paragraphs cited by the Examiner disclose an indicator that
"produces a visual output using one or more light sources in
response to the controller determining that one or more insects
are present" as required by claim 23.
Reply Br. 5---6.
Appellant's arguments that no form of visual output is taught by the
paragraphs cited by the Examiner (id.) or that the visual output is not in
response to the presence of insects (Appeal Br. 7-8) does not persuade us of
reversible error by the Examiner. 7 The Examiner explains that when a
7 Appellant also argues that the Examiner's findings in the Answer constitute
a new ground and should be disregarded. Reply Br. 10. However,
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camera is used, the insect control status is visually indicated on a display.
Ans. 11-12. In this regard, paragraph 51 explains that the insect control
device may include a display, located on the insect control device (see
Chyun Fig. 6), having a visual indicator in the form of an LED or LCD
which displays various types of information including the "status of
capturing insects." Chyun specifically states that
the display 180 may be implemented with LED, LCD etc. and
the driving circuit may be included within a controller 400. The
display 180 may display, as needed, various information such as
today's ( or this month's) status of capturing insects, the
environmental conditions such as the current temperature and
humidity, and the remaining length of the birdlime ( or whether
the birdlime should be replaced or not).
Id. ,r 51; see also id. ,r 53 ( describing the display). Therefore, on this record,
the preponderance of the evidence supports the Examiner's findings and we
sustain the rejection of claim 23.
i Claim 26:
Claim 26, depending from claim 19, additionally recites a "sensing
arrangement [that] further includes an extermination module positioned in
the internal chamber of the housing member and being electrically
connected to the controller, wherein the extermination module is configured
to exterminate one or more insects in response to the controller determining
that one or more insects are present." Appeal Br. 19 (Claims App.). The
Examiner finds that the sensing arrangement includes an internal
extermination module
complaints about the existence of a new ground are a petitionable, as
opposed to appealable, matter. See 37 C.F.R. § 4I.40(a).
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wherein the extermination module is configured to exterminate
one or more insects in response to the controller determining that
one or more insects are present, [0126, 0148] ... reports may
contain activity information of insect, which is to be
exterminated, ... he/she may perform a regular examination and
other insect control operation when exterminating the insects.
Final Act. 5.
Appellant contends that Chyun fails to teach "an extermination
module that is triggered by a controller in response to a determination that
insects are present." Appeal Br. 9. Rather, Appellant explains that "Chyun
appears to contemplate a service technician carrying out a typical
extermination process himself." Id.
Appellant's arguments are not persuasive of reversible error. Here, in
the Answer, the Examiner further clarifies his position and explains that "the
UV light to attract the insects to the device and the roll of birdlime are part
of the extinction module located within the device and is electrically
connected to roll the birdlime to kill the insects." Ans. 12. Appellant does
not dispute these findings by the Examiner, rather, Appellant argues that
Chyun fails to disclose "an extermination module positioned in the internal
chamber of the housing member and being electrically connected to the
controller." Reply Br. 6. In doing so, Appellant fails to rebut, or otherwise
challenge, the Examiner's findings. We adopt these findings as fact. Cf In
re Kunzmann, 326 F.2d 424,425 n.3 (CCPA 1964) (a finding not shown by
the Appellant to be erroneous may be accepted as fact). And, we affirm the
Examiner's rejection of claim 26.
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4. Claim 27:
Claim 27 depends from claim 26 and includes "a reservoir configured
to hold insecticide configured to exterminate one or more insects, and an
applicator tip configured to deliver the insecticide to the one or more
insects" as part of the extermination module. Appeal Br. 19 (Claims App.).
The Examiner finds that Chyun's extermination device "includes: a reservoir
configured to hold insecticide configured to exterminate one or more insects,
and an applicator tip configured to deliver the insecticide to the one or more
insects, abstract, Figure 6 and 8, Item 360, 360', [0008, 0049]." Final
Act. 5.
Appellant argues that Chyun fails to anticipate claim 27 because
Chyun does not describe "a reservoir" which holds an insecticide or an
"applicator tip configured to deliver the insecticide." Appeal Br. 10.
The Examiner further explains that Chyun describes a device where
a UV lamp, for attraction and exterminating an insect as well as
a roll of birdlime that is a contained space configured to hold
insecticide an[ d] exterminate one or more insect. The birdlime
and rolling of the birdlime is considered to be reservoir to contain
in [sic] insects and is also considered to be the insecticide to
exterminate the insects.
Ans. 12.
On this record, we agree with Appellant. The Examiner's rejection
fails to identify a reservoir for containing an insecticide as well as an
applicator tip for delivering the insecticide. There is simply no showing by
the Examiner that these elements are present in Chyun. The Examiner's
further finding that the roll of birdlime is configured to hold an insecticide is
not supported by the record. Accordingly, we reverse the Examiner's
rejection of claim 27.
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5. Claim 29:
Claim 29, depending from claim 26, further includes "a user interface
[that] is positioned in the internal chamber and is electrically connected to
the extermination module, wherein the user interface is configured to cause
the extermination module to release an insecticide in response to a user
interacting with the user interface." Appeal Br. 19-20 (Claims App.). The
Examiner finds that Chyun describes a user interface that is electrically
connected to the extermination module and "is configured to cause the
extermination module to release an insecticide in response to a user
interacting with the user interface, [0051, 0077], Figure 6, Item 180, Figure
10 Item 740/750, Figure 12, Item 1014." Final Act. 5.
Appellant contends that the cited portions of Chyun fail to describe an
internal extermination module or one that releases insecticide in response to
a user. Appeal Br. 12. Therefore, Appellant urges that Chyun fails to
anticipate claim 29.
We find Appellant's arguments persuasive of reversible error. Even
the Examiner's additional findings that "the Chyun reference teaches
information displayed on the display is transferred to the remote control unit
operated by the user, [0051, 0077, 0096]" (Ans. 12), fails to remedy the
original deficiency of Chyun. Specifically, Chyun does not teach an internal
extermination module with a "user interface [that] is configured to cause the
extermination module to release an insecticide" as required by this claim.
We, therefore, do not sustain the Examiner's rejection of claim 29.
6. Claims 31 and 32:
Independent claim 31 (and claim 32 by virtue of dependence from
claim 3 1) is similar to independent claim 19 except that claim 3 1 is directed
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to a method of controlling insects. Appeal Br. 20 (Claims App.). The
Examiner finds that Chyun describes the method of claim 31, citing the
similar evidence discussed above for claim 19. Final Act. 6.
Appellant relies on the same argument presented in support of claim
19 to urge the reversal of the Examiner's rejection of claims 31 and 32.
Appeal Br. 12; see also Reply Br. 8. For the reasons discussed above, we
sustain the Examiner's rejection.
7. Claim 33:
Claim 33, similar to claim 23, requires that "outputting the indication
comprises outputting, by an indicator, a visual output by one or more light
sources indicating the presence of one or more insects." Appeal Br. 20
(Claims App.). The Examiner, in the Answer, states that "the Chyun
reference teaches the display seen in Figure 6 that outputs the indication and
includes the visual output by indicating the presence of insects, [0051,
0052]." Ans. 13.
Appellant urges that the Examiner now relies on new reasoning that
amounts to a new ground and thus, should be disregarded by the Board.
Reply Br. 9.
Appellant's contention that the rationale set forth in the Answer is not
the original rationale set forth by the Examiner and should be considered a
new ground of rejection (id.), is a petitionable-not an appealable-matter.
See 37 C.F.R. § 4I.40(a). 8 Thus, in failing to address the Examiner's
rejection, Appellant fails to identify reversible error in the rejection.
8 "Any request to seek review of the primary examiner's failure to designate
a rejection as a new ground of rejection in an examiner's answer must be by
way of petition to the Director under § 1.181 of this title filed within two
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8. Claim 34:
Claim 34 depends from claim 31 and further recites that "outputting
the indication comprises outputting, by an extermination module, an
insecticide configured to exterminate one or insects." Appeal Br. 20 (Claims
App.). The Examiner finds that "outputting the indication comprises
outputting, by an extermination module, an insecticide configured to
exterminate one or insects, [0126, 0148]." Final Act. 6. The Examiner also
finds that "the Chyun reference teaches a display to indicate the presence of
insects and the controller for rolling of the birdlime sheet once insects have
been attached to the birdlime. This has been interpreted to be outputting the
indication and the extermination module." Ans. 13.
Appellant relies on the same argument presented in support of claim
26--i.e., there is not an extermination module that is activated in response to
the presence of an insect (Appeal Br. 13-14}-to urge the reversal of the
Examiner's rejection of claim 34.
Appellant's arguments are persuasive of reversible error. Here, the
Examiner finds that the rolling of the birdlime sheet is an outputting
indication of the extermination module. See Ans. 13. However, the
Examiner has not established that there is any "outputting, by the
extermination module[, identified as the birdlime sheet, of] an insecticide."
Therefore, based on the present record, we do not sustain the Examiner's
rejection.
months from the entry of the examiner's answer and before the filing of any
reply brief. Failure of appellant to timely file such a petition will constitute
a waiver of any arguments that a rejection must be designated as a new
ground of rejection."
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9. Claim 35:
Claim 35, requires "outputting, by an indicator, a visual output by one
or more light sources indicating the presence of one or more insects, and
outputting, by an extermination module, an insecticide configured to
exterminate one or insects." Appeal Br. 20-21 (Claims App.). The
Examiner finds that Chyun describes "outputting, by an indicator, a visual
output by one or more light sources indicating the presence of one or more
insects, and outputting, by an extermination module, an insecticide
configured to exterminate one or insects, [0126, 0148]." Final Act. 7. The
Examiner finds that the UV light attracts and, in combination with the roll of
birdlime, kills the insects and further finds that the UV light scans for the
presence of insects which is then displayed on an LCD. Ans. 13.
Appellant relies on the same arguments presented in support of claims
31-34 to urge the reversal of the Examiner's rejection of claim 35. Id. at 12.
Appellant argues that even under the new reasoning, the Examiner's
rejection must fail because Chyun does not teach that either the birdlime or
the UV lamp can be used to exterminate insects. Reply Br. 10.
For the reasons discussed above for claims 34, as well as claim 29, we
do not sustain the Examiner's rejection.
Rejection B----Obviousness (claims 21, 24, and 30)
The Examiner rejects claims 21, 24, and 30 as obvious over Chyun.
Final Act. 8. Appellant argues the claims in Groups A and B (see Appeal
Br. 14) which correspond to numbered paragraphs 1 and 2 below.
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1. Claims 21 and 30:
Claim 21 further requires that the housing member of the insect
control device is configured to be attached to the leg of a bed. Appeal Br. 18
(Claims App.). And, claim 30 additionally includes "a handle structured for
engagement by [the] hand of a user." Id. at 20. The Examiner finds that
while Chyun does not expressly describe these requirements, these elements
would have been obvious to the person of ordinary skill in the art. Final Act.
8. In particular, the Examiner finds that modification to include attachment
to the leg of a bed would have been obvious "so that one is able to determine
the presence of the kind and amount of insects in and or around an
individual's bed to determine the ecology of insects at a subject site,
[0084]." Id. The Examiner also reasons that including a handle would have
been obvious in order to allow for "easy mobility of the device ... since
Chyun et al already provides motivation to have the device be place[ d] in
different locations." Id. at 9.
Appellant contends that because the Examiner does not rely on any
evidence to establish that the missing limitations would have been obvious,
the Examiner has failed to establish obviousness of claims 21 and 30.
Appeal Br. 14.
Appellant's argument does not identify a reversible error in the
Examiner's rejection. The test for obviousness is not whether the claimed
invention is expressly taught in any one or all of the references, but whether
the claimed subject matter would have been obvious to those of ordinary
skill in the art in light of the combined teachings of those references. See In
re Keller, 642 F.2d 413,425 (CCPA 1981). One of ordinary skill can use
his or her skill, creativity, and common sense to make the necessary
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adjustments and further modifications to result in a properly functioning
device. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007) ("a
court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ"). Here, the Examiner determines
that the skilled artisan would have reason to place an insect control device
on the leg of a bed based on the ecology of the insects being controlled.
Final Act. 8 (relying on Chyun ,r 84 which states that "[t]he locations for
installing the capturing apparatuses ... [is] determined by the ecology of
insects in the subject site"). Further, the Examiner explains that ease of
mobility would have led a person of ordinary skill in the art to attach a
handle to the insect control device. Id. ( citing Chyun ,r,r 84--86). Appellant
does not explain why the ordinarily skilled artisan applying his or her skill,
creativity, and common sense would not have made the modifications
proposed by the Examiner. "A person of ordinary skill is also a person of
ordinary creativity, not an automaton." KSR, 550 U.S. at 421.
Accordingly, on this record, we sustain the Examiner's rejection of
claims 21 and 3 0.
2. Claim 24:
Claim 24 further modifies claim 19 to recite
the exterior wall of the housing member includes one or
more sensor openings, and
each of the one or more sensors include a sensing portion
positioned outside the internal chamber of the housing member
and configured to be exposed to an environment external to the
internal chamber, wherein each of the one or more sensors
extends from the sensing portion, through one of the one or more
sensor openings, and into the internal chamber.
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Appeal Br. 19 (Claims App.). The Examiner concludes that while Chyun
does not expressly describe these additional features, they would have been
obvious to the person having ordinary skill in the art "to quickly scan or
produce images of the exterior of the housing for efficient detection and
capture of insects by the device." Final Act. 9.
Appellant contends that the Examiner's analysis is conclusory.
Appeal Br. 15. Appellant states that there is no evidence supporting the
Examiner's modification and that "Chyun's sensor 370 detects differences in
light intensity; there is no discussion or disclosure of a sensor that may be
used to produce images" (id.) or that such a modification would permit for
"efficient detection." Reply Br. 11.
We agree with Appellant that the Examiner's reason to modify Chyun
in order "to quickly scan or produce images of the exterior of the housing for
efficient detection and capture of insects by the device," is conclusory.
"[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with
approval inKSR, 550 U.S. at 418). The Examiner's rejection fails to direct
our attention to any teaching that would suggest the desirability of scanning
or producing exterior images or how that permits the "efficient detection and
capture" of insects. Therefore, on this record, we do not sustain the
Examiner's rejection of claim 24.
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Rejection C----Obviousness (claim 25)
The Examiner rejects claim 25 as obvious over the combination of
Chyun and Farrell. Final Act. 10. Claim 25, depending from claim 19,
further requires that "the power source comprises one or more batteries
configured to provide electrical power to the sensing arrangement." Appeal
Br. 19 (Claims App'x). The Examiner acknowledges that Chyun does not
teach a battery power source but, the Examiner finds that Farrell describes
"an electronic pest monitoring system that includes a batter[y]
compartment." Final Act. 10. The Examiner reasons that the addition of a
battery power source would have been obvious to the person skilled in the
art in order "to have the device be able to function away from an electrical
socket and to provide power to the device in any location that one is
suspected to have insects." Id.
Appellant argues that "the Examiner has not established that claim 19
or any of its dependent claims, including claim 25, is rendered obvious by
Chyun [and that t]he addition of Farrell fails to cure the deficiencies of
Chyun." Appeal Br. 16.
Appellant relies on the same argument presented in support of claim
19; for the reasons discussed above, we sustain the Examiner's rejection.
Rejection D--Obviousness (claim 28)
The Examiner rejects claim 28 as obvious over Chyun in view of
Studer. Final Act. 10. Claim 28 ultimately depends from claim 19 and
additionally recites that "the exterior wall includes an extermination module
opening, and the applicator tip of the extermination module is positioned
outside the internal chamber of the housing member, wherein the
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extermination module extends from the applicator tip, through the
extermination module opening, and into the internal chamber of the housing
member." Appeal Br. 19 (Claims App'x). The Examiner finds that Studer
"discloses an insect trap including an extermination module opening" with
an applicator tip positioned outside the internal chamber and where the
extermination module extends from the applicator tip through the opening
and into the inner chamber of the housing. Final Act. 10-11. The Examiner
reasons that such a modification "to include a reservoir of an extermination
module on the exterior of internal chamber of the housing member to for
easy extermination of the device and easy remove and replacement of the
extermination module." Id. at 11.
Appellant contends that the Examiner has failed to show that the
modification of Chyun would have been obvious. Appeal Br. 16. Appellant
asserts that "[t ]he addition of Studer fails to cure the deficiencies of Chyun."
Id.
Appellant relies on the same argument presented in support of claims
19, 26, and 27. Unlike Chyun, Studer does teach an "insect neutralizer,
which is preferably an adhesive surface 30, [that] functions to immobilize,
kill or otherwise adversely affect insects which approach the insect trap 10
or enter the enclosure of the insect trap 10." Studer ,r 24. Studer continues
to explain that "the adhesive surface 30 may be a liquid contained in a
reservoir." Id. However, neither Chyun (discussed above) nor Studer
describes an applicator tip positioned outside the internal chamber to deliver
the insecticide. Instead, Studer suggests that the entirety of the
extermination module is contained within the internal chamber. See
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Appeal2017-010040
Application 14/594,613
generally id. ,r,r 20-25. Accordingly, we do not sustain the Examiner's
rejection of claim 28.
CONCLUSION
Appellant failed to identify a reversible error in the Examiner's
rejection of claims 19, 20, 22, 23, 26, and 31-33 under 35 U.S.C. § 102(b) as
anticipated by Chyun.
Appellant identified a reversible error in the Examiner's rejection of
claims 27, 29, 34, and 35 under 35 U.S.C. § 102(b) as anticipated by Chyun.
Appellant failed to identify a reversible error in the Examiner's
rejection of claims 21 and 30 under 35 U.S.C. § 103(a) as unpatentable over
Chyun.
Appellant identified a reversible error in the Examiner's rejection of
claim 24 under 35 U.S.C. § 103(a) as unpatentable over Chyun.
Appellant failed to identify a reversible error in the Examiner's
rejection of claim 25 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Chyun in view of Farrell.
Appellant identified a reversible error in the Examiner's rejection of
claim 28 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Chyun in view of Studer.
DECISION
For the above reasons, we affirm the Examiner's rejection of claims
19-23, 25, 26, and 30-33 and reverse the Examiner's rejection of claims 24,
27-29, 34, and 35.
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Appeal2017-010040
Application 14/594,613
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED-IN-PART
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