Ex Parte Boudreau

Patent Trials and Appeals Board

Mar 29, 2019

12514551 - (D) (P.T.A.B. Mar. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/514,551 05/12/2009
4859 7590 04/02/2019
MACMILLAN SOBANSKI & TODD, LLC
ONE MARITIME PLAZA FIFTH FLOOR
720 WATER STREET
TOLEDO, OH 43604-1619
FIRST NAMED INVENTOR
Joseph Edward Boudreau
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.
1-50946 1724
EXAMINER
NGUYEN, SON T
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
04/02/2019 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):
MST@MSTFIRM.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH EDWARD BOUDREAU
Appeal2018-006167
Application 12/514,551
Technology Center 3600
Before STEP AN STAICOVICI, JEREMY M. PLENZLER, and
LISA M. GUIJT, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 100-110 and 112-117. 1 We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 Appeal is taken from the Final Office Action dated November 21, 2016, as
supplemented by the Advisory Action dated October 27, 2017.
Appeal 2018-006167
Application 12/514,551
CLAIMED SUBJECT MATTER
Claim 100, the sole independent claim on appeal, reproduced below
with disputed limitations italicized for emphasis, is exemplary of the subject
matter on appeal.
100. An apparatus for transporting live aquatic animals
comprising a trailer chassis including:
a trailer shell including a platform, side walls projecting
upwardly from the platform, and a ceiling extending between the
side walls to define an enclosed space, the enclosed space being
partitioned into a product storage compartment and a mechanical
chamber;
a plurality of wheel supports attached to the trailer shell;
a ground engaging wheel rotatably mounted to each of the
wheel supports;
an insulating layer provided on the side walls and the
ceiling of both the product storage compartment and the
mechanical chamber of the trailer shell;
a heat exchanger provided on the side walls and the ceiling
of the product storage compartment of the trailer shell and
including a supply air passageway and a return air passageway
that extend through the mechanical chamber, the heater
exchanger operative to maintain a predetermined temperature
within the product storage compartment of the enclosed space;
a liquid spray system provided on the ceiling of the
product storage compartment of the trailer shell, the liquid spray
system operative to spray liquid within the product storage
compartment of the enclosed space;
a collection tank attached to the trailer shell, which is
adapted to collect and store water from the product storage
compartment;
liquid temperature regulation equipment including a
chiller and a heater within the mechanical chamber, the liquid
temperature regulation equipment adapted to regulate liquid
temperature prior to being pumped to the liquid spray system,
a collection pump attached to the trailer shell, the
collection pump operative to return the spray liquid from the
collection tank to the liquid spray system;
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Appeal 2018-006167
Application 12/514,551
a biofilter that is operative to reduce metabolic waste in
the collected liquid prior to the liquid being pumped to the liquid
spray system;
a blower to aerate the collected liquid; and
a fog system comprising a fog reservoir, a fog pump, and
a fog distribution system, the fog system adapted to disperse
liquid as a fine fog within the product storage compartment to
maintain a desired humidity.
THE REJECTI0NS 2
I. Claims 100-103, 108-110, and 112-117 stand rejected under
35 U.S.C. § I03(a) as unpatentable Martin3 (EP O 072 334 Bl; published
July 31, 1985), Rayner (US 2007 /0245971 Al; published Oct. 25, 2007),
and Tomiyama (US 5,309,868; issued May 10, 1994).
II. Claims 104--107 stand rejected under 35 U.S.C. § I03(a) as
unpatentable Martin, Rayner, Tomiyama, and Cummins (US 2006/0191828
Al; published Aug. 31, 2006).
2 The Examiner's rejection of claim 115 under 35 U.S.C. § 112, second
paragraph, as being indefinite due to the lack of antecedent basis for the
limitations "the refrigeration system" and "the supply air" is understood to
be withdrawn, in view of the Examiner's "entry of the amendment" in
response to the reply filed October 26, 2017. Adv. Act. 2 (dated Oct. 27,
2017); see also Final Act. 2; Appeal Br. 2 (dated October 26, 2017) (stating
that "[a] proposed amendment to Claim 115 is being filed concurrently with
this Brief to address a rejection under 35 U.S.C. § 112, second paragraph").
The referenced Amendment filed October 26, 2017 states on page 8 that
"[ t ]he proposed amendment corrects a typographical error in dependent
claim 115 to read 'a refrigeration system"' and correctly points out that
"antecedent basis for the supply air passageway exists in independent claim
100, lines 13-14."
3 We rely on the English language translation, as provided in the record.
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Appeal 2018-006167
Application 12/514,551
ANALYSIS
Rejection I
Regarding independent claim 1, the Examiner finds, inter alia, that
Martin discloses a liquid spray system (i.e., sprayers 27) provided on the
ceiling of a product storage compartment of a trailer shell, which is operative
to spray liquid within the storage compartment, as claimed. Final Act. 4;
see, e.g., Martin ,r 17 ("sprayers 27 [] pass[] through the panels constituting
the ceilings of the loading spaces 4 and 5"). The Examiner determines that
"Martin is silent about ... a fog system comprising a fog reservoir, a fog
pump, and a fog distribution system, the fog system adapted to disperse
liquid as a fine fog within the product storage compartment to maintain a
desired humidity," as claimed. Id. at 4; see also Ans. 3 ("Martin is silent in
regard to a fog system comprising a fog reservoir, a fog pump and a fog
distribution system"). The Examiner relies on Tomiyama for teaching a fog
system, as claimed, and reasons that it would have been obvious to a person
of ordinary skill in the art to modify Martin "to include a fog system
comprising a fog reservoir, a fog pump, and a fog distribution system as
further taught by Tomiyama in order to provide added moisture or humidity
in the container to keep the marine animal moist." Final Act. 5---6; see also
Ans. 3 ("Tomiyama only teaches a fog system and not a sprayer system and
a fog system").
Appellant argues, inter alia, that "[t]he system described by Martin
creates a thick fog of water, to ensure intense moistening of the atmosphere
of the cargo spaces" and that "[ a ]ccording to Martin, the amount of water
suspended in this fog is relatively low, and so it is not necessary to carry a
large amount of water." Appeal Br. 4 (citing Martin ,r,r 9, 19). Thus,
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Appeal 2018-006167
Application 12/514,551
Appellant submits that "neither reference teaches the use of a separate spray
system to spray liquid within the product storage compartment in addition to
the fog system," and that "combining the teachings of Martin and Tomiyama
[ fails to] arrive at a system that includes a spray system in addition to the fog
system." Id. at 5. Rather, according to Appellant, the Examiner's
combination results in "two fog systems." Id. Appellant concludes that "the
Examiner's characterization of the Martin system as a spray system and not
a fog system is clearly incorrect." Reply Br. 2.
Claim 100, as set forth supra, requires two separate systems: a liquid
spray system and a fog system. The Specification provides particular
definitions for each system, as follows:
Spray System (33) - The function of the spray system is
to provide a means for dispersing water intermittently over the
live aquatic animals held in the trays in the product storage area.
Fog System (35) - The function of the fog system is to
provide a means for dispersing a fine fog intermittently in the
product storage area to keep the humidity at or near 100%
moisture when the spray system is not operating. The fog system
may be made of plastic pipe complete with fittings, valves and
nozzle for dispersing the water into a fine fog ....
Spec. p. 27.
A preponderance of the evidence supports Appellant's argument that
Martin's system is a/og system. Martin expressly discloses that sprayers 27
create a thickfog. Martin ,r 19 (disclosing that "sprayers 27, creating, at the
top of each cargo space 4 and 5, a thick fog of fresh or salt water, which
ensures intense moistening the atmosphere in which aquatic animals are").
Further, Martin discloses that an advantage of the invention is that "the
amount of water suspended in the thick fog as air is relatively low" (Martin ,r
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Appeal 2018-006167
Application 12/514,551
9 (emphasis added)) and also that ''fine water droplets [are] projected by the
sprayers 17'' (id. ,I 19) (emphasis added). Cf WEBSTER'S THIRDNEWINT'L
DICTIONARY 881 (1993) ( defining "fog" as "a fine spray of any substance").
Thus, we are persuaded by Appellant that the Examiner erred by not
recognizing that Martin's system is disclosed as a fog system, and therefore,
the Examiner's reason to modify Martin's fog system to include a second
fog system, as taught by Tomiyama, lacks rational reasoning.
The Examiner's use of Rayner does not remedy the deficiency of the
Examiner's proposed combination of Martin and Tomiyama, as discussed
supra. See Final Act. 3---6. Accordingly, we do not sustain the Examiner's
rejection of independent claim 100, and claims 101-103, 108-110, and 112-
11 7 depending therefrom.
Re} ection II
The Examiner's reliance on Cummins fails to cure the deficiencies in
the Examiner's reliance on Martin with respect to independent claim 100,
and therefore, for essentially the same reasons as set forth supra, we do not
sustain the Examiner's rejection of claims 104--107, which depend from
claim 1.
DECISION
The Examiner's decision rejecting claims 100-110 and 112-117 is
REVERSED.
REVERSED
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