Ex Parte Cote

Patent Trial and Appeal Board

Jul 13, 2016

12834350 (P.T.A.B. Jul. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/834,350 07/12/2010
110933 7590 07113/2016
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
FIRST NAMED INVENTOR
Kevin Cote
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.
CFLAY.00546 8329
EXAMINER
HARMON, CHRISTOPHER R
ART UNIT PAPER NUMBER
3649
MAILDATE DELIVERY MODE
07/13/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN COTE
Appeal2014-005976
Application 12/834,350
Technology Center 3600
Before JENNIFER D. BAHR, GEORGE R. HOSKINS, and
FREDERICK C. LANEY, Administrative Patent Judges.
HOSKINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEivIENT OF THE CASE
Kevin Cote ("Appellant") 1 appeals under 35 U.S.C. § 134 from the
Examiner's decision rejecting claims 1, 5-16, 18, and 20-45 in this
application. The Board has jurisdiction over the appeal under 35 U.S.C.
§ 6(b ).
We AFFIRM-IN-PART.
1 The Appeal Brief identifies Frito-Lay North America, Inc. as the real party
in interest. Appeal Br. 2.
Appeal2014-005976
Application 12/834,350
CLAIMED SUBJECT MATTER
Claims 1 and 18 are independent. Claim 1 illustrates the subject
matter on appeal:
1. A system for collecting and orienting packages
compnsmg:
a conveyor;
a first arm comprising a first end effector, wherein said
first arm is located downstream from said conveyor, wherein said
first arm is in a collecting position adjacent to said conveyor so
that packages on said conveyor are dropped into said first end
effector,
a second arm comprising a second end effector, wherein
said second arm is located downstream from said conveyor;
wherein said first and second end effectors each comprise a base
side, and wherein said first end effector is coupled to said first
arm at said base side, and wherein said second end effector is
coupled to said second arm at said base side;
a packaging chamber located downstream from said first
and second arms,
\~\rherein said second arm is in a depositing position
adjacent to said packaging chamber;
wherein said first and second end effectors each comprises
at least three sides, wherein one of said three sides comprises said
base side, and wherein said first and second end effectors each
comprises an open side through which product is collected, and
wherein product sits upon one of said at least three sides
wherein said first arm and said second arm each
independently move between said collecting position and said
depositing position.
Appeal Br. 21 (Claims App.) (emphasis added).
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Appeal2014-005976
Application 12/834,350
REJECTIONS ON APPEAL
Claims 1, 5-16, 18, 20-35, 39, and 41--45 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Black (US 7,856,797 B2, iss.
Dec. 28, 2010) and Domeier (US 5,487,257, iss. Jan. 30, 1996).
Claims 27, 28, 36-38, and 40 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Black, Domeier, and Pietrantonio (US 2001/0033788 Al,
pub. Oct. 25, 2001 ).
Claims 1, 5-16, 18, and 20--45 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Black and Pallas (US 7,644,558 Bl, iss. Jan. 12, 2010).
ANALYSIS
A. Obviousness based on Black and Domeier-
Claims 1, 5-16, 18, 20--35, and 41--45
Claims 1, 5-9, and 11-16
Appellant argues for the patentability of these claims over Black and
Domeier together as one group. Appeal Br. 6-10. We select claim 1 to
decide the appeal of this rejection of these claims, with the other claims
standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
In rejecting claim 1, the Examiner finds Black discloses a system for
collecting and orienting packages, including arm 100 with end effector 102
located downstream from conveyor 350, and moveable between a collecting
position and a depositing position. Final Act. 2; see Black, Figs. 1, 3, 4,
and 9. The Examiner finds Black does not disclose a second arm with a
second end effector. Final Act. 2; Ans. 3. The Examiner finds Domeier
discloses a transfer apparatus including multiple pickup and delivery heads 1
with end effectors 2. Final Act. 2; see Domeier, Fig. 1. The Examiner
determines it would have been obvious to include multiple effectors for
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Application 12/834,350
handling product delivery at the collection position in Black, by duplicating
Black's arm 100 with end effector 102, to increase product throughput.
Final Act. 3, 6; see also Ans. 4 (discussing "providing two robots instead of
one" by "[d]uplicating" Black's robot 100, 102 to increase product
throughput). In the Examiner's view, this would not require Domeier's
rotational drive linking the arms and end effectors together, and each
arm 100 and end effector 102 in the modified Black system "could be
controlled independently as claimed." Final Act. 6; Ans. 4.
Appellant points out claim 1 recites the first and second arms "each
independently move between" the collecting position and the depositing
position. Appeal Br. 6-7 (emphasis added). Appellant contends the four
arms of Domeier do not move independently, because they are each coupled
to the same rotor 11. Appeal Br. 7; see Domeier, Fig. 1. Thus, Appellant
contends the rejection is deficient because neither Black nor Domeier
discloses two object transfer arms which are each independently moveable.
Appeal Br. 7.
We are not persuaded of Examiner error in determining it would have
been obvious to modify Black to add a second collector device 100,
controlled independently from the single collector device 100 disclosed by
Black, in order to increase product throughput, in light of Domeier. While
we agree with Appellant that Domeier' s rotor 11 rotates the four collector
heads 1 at the same time, along a common orbital path 30 as constrained by
cam tracks 101 and 102 (Domeier, 3 :24--44, Fig. 1 ), the rejection is not
premised on the bodily incorporation of Domeier's apparatus into Black's
system. See, e.g., Ans. 3. The rejection instead is premised on adding a
second device 100 to Black's system, in order to increase the product
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Application 12/834,350
throughput capabilities of Black's system, versus the single device 100
disclosed in Black. Final Act. 3, 6; Ans. 3--4. It is apparent from looking at
Black's Figures 3-9 that the second device 100 would be movable
independently from the first device 100, given the structural configurations
and permitted motions of the two devices 100. There is no structure or
operation in Black that is analogous to Domeier' s rotor 11 and cam
tracks 101 and 102 that would constrain the movement of the first
device 100 to be dependent on the movement of the added second
device 100. See Spec. i-f 19 (two arms may "move independently" when, for
example, "the location of a first arm 1 OOb is not dependent on the location of
a second arm 1 OOa").
Appellant also argues Black teaches away from the combination with
Domeier. Appeal Br. 8-9. Appellant relies on Black's accumulator
assembly 350, comprising two conveyors 352 and 354 and associated
selectors 351 and 355, providing "buffering of sets of objects [380] to be
collected" to allow for continuous provision of objects to improve system
efficiency. Id. at 8 (citing Black, 3:54--58); see Black, Fig. 3, 3:34--37. In
Appellant's view, this teaches away from using two collector devices 100 in
Black instead of just one, because Black "extolls the benefits of the start and
stop nature" of accumulator assembly 350. Appeal Br. 9.
We are not persuaded that Black's accumulator assembly 350 teaches
away from having two collector devices 100 downstream of assembly 350.
Black does not criticize, discredit, or discourage using assembly 350 with
two collector devices 100 to improve product throughput. See In re Fulton,
391 F.3d 1195, 1201 (Fed. Cir. 2004) (to teach away, reference must
actually criticize, discredit, or otherwise discourage the claimed solution).
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Application 12/834,350
Appellant further argues there is no reasonable expectation of success
in modifying Black in view of Domeier. Appeal Br. 9-10. Appellant
contends: "If Black were modified in light of Domeier, the combination
would be replacing the collector 102 and/or the collector device 100 [of
Black] with rotating rotor 11 of Domeier." Id. at 9 (emphases added).
Appellant contends such a modification would not work. Id. at 9-10.
Appellant's argument is not persuasive because, as discussed above,
the rejection is not premised on the bodily incorporation of Domeier's
apparatus into Black's system, but rather on the obviousness of adding a
second collector device 100 to Black to increase product throughput
capabilities. Final Act. 3, 6; Ans. 3--4. As the Examiner notes, adding a
second collector device 100 would not necessitate using Domeier's rotary
mounting. Final Act. 6; Ans. 3--4.
Appellant moreover argues, in the Reply Brief, that the Examiner's
proposed modification of Black is improper because it would change
Black's principle of operation. Reply Br. 5---6. This argument is not
persuasive, because Appellant does not identify the principle of operation
that is being changed, and we do not perceive any such change in adding a
second collector device 100 to Black.
For the foregoing reasons, we sustain the rejection of claims 1, 5-9,
and 11-16 as unpatentable over Black and Domeier.
Claim 10
Appellant argues for the patentability of claim 10 over Black and
Domeier separately from its parent claim 1. Appeal Br. 10-11. Claim 10
depends from claim 1 to add "said system does not comprise a surge
conveyor." Id. at 22 (Claims App.) (emphasis added).
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Application 12/834,350
The Examiner finds Black does "not disclose conveyor 350 as 'surge
conveyor,'" but Black discusses variations of the conveyor. Final Act. 3
(emphasis added). The Examiner determines "[i]t would have been an
obvious design choice to provide a surge conveyor" in Black for feeding
products to collector devices 100. Final Act. 3 (emphasis added); Ans. 5---6.
We are persuaded of Examiner error in rejecting claim 10. See
Appeal Br. 10-11. The Examiner misconstrues the scope of claim 10. The
claim recites that the system does not comprise a surge conveyor, whereas
the Examiner's rejection is premised upon the obviousness of adding a surge
conveyor to Black. Moreover, the Examiner's predicate finding that Black's
accumulator assembly 350 is not a "surge" conveyor is not supported by a
preponderance of the evidence. See Black, 3:34--58 (conveyors 352 and 354
of accumulator assembly 350 "provide[] for a buffering of sets of objects ...
to be continuously provided to the collector system 300, improving system
efficiency"); Spec. i-f 2 ("surge conveyors ... can store the extra packages
until the packaging line can package the product," thereby requiring
"additional floor space"). Thus, we do not sustain the rejection of claim 10
as unpatentable over Black and Domeier.
Claims 18, 20--35, 39, and 41--45
Appellant argues for the patentability of these claims over Black and
Domeier together as one group. Appeal Br. 11-15. We select claim 18 to
decide the appeal of this rejection of these claims, with the other claims
standing or falling with claim 18. See 37 C.F.R. § 41.37(c)(l)(iv).
Although presented in different sections, Appellant's arguments for
the patentability of claim 18 over Black and Domeier (Appeal Br. 11-15) are
the same as for claim 1 (id. at 6-10). Thus, for the reasons provided in
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connection with claim 1, we sustain the rejection of claims 18, 20-35, 39,
and 41--45 as unpatentable over Black and Domeier.
B. Obviousness based on Black, Domeier, and Pietrantonio-
Claims 27, 28, 36--38, and 40
Appellant argues for the patentability of dependent claims 27, 28, 36-
38, and 40 over Black, Domeier, and Pietrantonio based solely on the
arguments presented for the patentability of their common parent
independent claim 18 over Black and Domeier. Appeal Br. 15. As
discussed above, those arguments are not persuasive. Thus, we sustain the
rejection of claims 27, 28, 36-38, and 40 as unpatentable over Black,
Domeier, and Pietrantonio.
C. Obviousness based on Black and Fallas-
Claims 1, 5-16, 18, and 20--45
Claims 1, 5-9, and 11-16
Appellant argues for the patentability of these claims over Black and
Pallas together as one group. Appeal Br. 16-17. We select claim 1 to
decide the appeal of this rejection of these claims, with the other claims
standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner relies upon the same findings concerning the Black
disclosure discussed above. Final Act. 5. The Examiner finds Pallas
discloses utilizing multiple pick and place robots 30 for transferring products
from conveyor 15 to containers. Id. (citing Pallas, "col. 6, lines 40+"); see
Pallas, 6:41-59. The Examiner determines it would have been obvious "to
include multiple robotic manipulating devices (arms and end effectors) as
taught by Pallas in the invention of Black for handling increased
throughput." Final Act. 5---6.
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Application 12/834,350
Appellant argues Pallas teaches away from a combination with Black.
Appeal Br. 16. Appellant contends "Pallas discloses a two-axis robot and
teaches away from multi-axis robots," such as Black's collector device 100.
Appeal Br. 16. Appellant relies on the Pallas disclosure that "[m]any"
multi-axis robots "have proven to be fairly slow and heavy," and "while
such robots may provide greater flexibility in motion, they have also
provided a need for an even greater number of robots to meet the speed
requirements in the marketplace today." Appeal Br. 16 (quoting Pallas,
1 :37--42). Appellant additionally asserts "Pallas continues to extoll the
numerous advantages two-axis robots have over multi-axis robots." Id.
(providing no citation to Pallas).
The Examiner responds: "While two ax[i]s robotic devices may have
benefits over six ax[i]s robotic devices, this does not have significant
bearing to the overall teachings of the invention to Pallas which include
providing for multiple independent manipulating devices for a processing
line in order to increase throughput handling of products." Final Act. 6-7.
The Examiner further states multi-axis robots are common in the art, and one
of ordinary skill could borrow Fallas's teaching of providing multiple robots
"for handling greater product quantities at greater speed." Ans. 6 (quoting
Pallas, 6:41--43).
We are not persuaded that Pallas teaches away from using multi-axis
robots, such as Black's collector device 100. Pallas does teach that "two-
axis robots" are advantageously faster than "multi-axis robots." Pallas,
1:36--42, 1:58---61, 6:28-31. However, Pallas further discloses two-axis
robots disadvantageously "do not accommodate three dimensional
movement of an article," so Pallas proposes providing a desired third axis of
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Application 12/834,350
movement by mounting a two-axis robot on a pivotal, oscillating structure.
Id. at 2: 1-3, 6: 12-22, 6:28-35. Pallas similarly recognizes multi-axis robots
provide flexibility. Id. at 1 :39--40. In short, Pallas discloses two-axis robots
are advantageously faster than multi-axis robots, but multi-axis robots
advantageously provide more degrees of movement than two-axis robots.
This is not a teaching away from multi-axis robots. The "mere disclosure of
alternative designs does not teach away" and "just because better
alternatives exist in the prior art does not mean that an inferior combination
is inapt for obviousness purposes." In re Mouttet, 686 F.3d 1322, 1334
(Fed. Cir. 2012) (citations omitted).
Appellant also argues, as discussed above in connection with the
Black and Domeier rejection, that Black's accumulator assembly 350
teaches away from using multiple collection devices 100. Appeal Br. 16-17.
This argument is not persuasive for the reasons provided above.
For the foregoing reasons, we sustain the rejection of claims 1, 5-9,
and 11-16 as unpatentable over Black and Pallas.
Claim 10
Appellant argues for the patentability of claim 10 over Black and
Pallas separately from its parent claim 1. Appeal Br. 17. The rejection of
claim 10 over Black and Pallas relies upon the same misunderstanding of
claim 10, and the same erroneous finding concerning the Black disclosure,
discussed above in connection with the rejection over Black and Domeier.
Final Act. 5---6; Ans. 5---6. We therefore do not sustain the rejection of
claim 10 as unpatentable over Black and Pallas.
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Application 12/834,350
Claims 18 and 2{}-45
Appellant argues for the patentability of these claims over Black and
Pallas together as one group. Appeal Br. 18-19. We select claim 18 to
decide the appeal of this rejection of these claims, with the other claims
standing or falling with claim 18. See 37 C.F.R. § 41.37(c)(l)(iv).
Although presented in different sections, Appellant's arguments for
the patentability of claim 18 over Black and Pallas (Appeal Br. 18-19) are
the same as for claim 1 (id. at 16-17). Thus, for the reasons provided in
connection with claim 1, we sustain the rejection of claims 18 and 20-45 as
unpatentable over Black and Pallas.
DECISION
The rejection of claims 1, 5-16, 18, 20-35, 39, and 41--45 as
unpatentable over Black and Domeier is AFFIRMED as to claims 1, 5-9,
11-16, 18, 20-35, 39, and 41--45, and REVERSED as to claim 10.
The rejection of claims 27, 28, 36-38, and 40 as unpatentable over
Black, Domeier, and Pietrantonio is AFFIRMED.
The rejection of claims 1, 5-16, 18, and 20-45 as unpatentable over
Black and Pallas is AFFIRMED as to claims 1, 5-9, 11-16, 18, and 20-45,
and REVERSED as to claim 10.
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 )(iv).
AFFIRMED-IN-PART
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