Ex Parte Fransen et al

Board of Patent Appeals and Interferences

May 24, 2012

11087631 (B.P.A.I. May. 24, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte RENATUS IGNATIUS FRANSEN, GERARD MOSTERT,
EDUARD LODEWIJK MEIJER, TJARK ONNO KLEE,
and ALEXANDER ADRIANUS VAN LEEUWEN
__________

Appeal 2011-002648
Application 11/087,631
Technology Center 3600
__________

Before DONALD E. ADAMS, DEMETRA J. MILLS, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
of milking animals. The Examiner rejected the claims as failing to comply
with the written description requirement and as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.

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Statement of the Case
Background
“The invention is based on the insight that a cleaning method that
begins with disinfection by means of steam is also able to remove milk or
other residues that are present on at least a part of the teat liner. This enables
saving of at least resources, time and energy” (Spec. 2 ¶ 0006).
The Claims
Claims 1-19 and 24 are on appeal. Claims 1 and 24 are representative
and read as follows:
1. A method of milking animals and cleaning at least a
part of a milking device for milking animals, the method
comprising:
connecting at least one teat cup to a teat of an animal
to be milked,
milking the animal, and
cleaning at least a part of the teat cup that has come
into contact with the animal or with the milk from the
animal, wherein
a first cleaning step comprises disinfecting said
part of the teat cup with steam without previously
removing milk or other residues from said part with a
cleaning fluid, and
a subsequent cleaning step comprises treating
with a further fluid at least that part of the teat cup
that has been treated with steam.

24. A method as claimed in claim 1, wherein a duration of
the first cleaning step is between 3 seconds and 15 seconds.

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The issues
A. The Examiner rejected claims 1-19 and 24 under 35 U.S.C. § 112,
first paragraph as failing to comply with the written description requirement
(Ans. 4).
B. The Examiner rejected claims 1, 2, 17, and 24 under 35 U.S.C. §
103(a) as obvious over Bosma
1
and Ericsson
2
(Ans. 4-6).
C. The Examiner rejected claims 3-6 and 11 under 35 U.S.C. § 103(a) as
obvious over Bosma, Ericsson, and Gascoignes
3
(Ans. 6-7).
D. The Examiner rejected claims 7-10, 12, 13, 14-16, 18, and 19 under
35 U.S.C. § 103(a) as obvious over Bosma, Ericsson, and Berger
4
(Ans. 7-
10).
A. 35 U.S.C. § 112, first paragraph - written description
The Examiner finds that the amendment “„without previously
removing milk or other residue from said part with a cleaning fluid‟ is still
considered new matter. This is a limiting negative limitation that limits a
multitude of options to one specific option that was not particularly pointed
out by the specification” (Ans. 4).
Appellants contend that the “specification plainly discloses a cleaning
method that begins with applying steam for disinfection and without a
previous cleaning step for removing milk or other residues with a cleaning
fluid” (App. Br. 10).

1
Bosma et al., WO 2004/004791 A1, published Jan. 15, 2004.
2
Ericsson et al, WO 03/077645 A1, published Sep. 25, 2003.
3
Gascoignes, G., GB 629,017, issued Sep. 9, 1949.
4
Berger et al, US 6,619,227 B1, issued Sep. 16, 2003.
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The issue with respect to this rejection is: Does the evidence of record
support the Examiner‟s finding that the limitation “without previously
removing milk or other residue from said part with a cleaning fluid” in claim
1 is new matter?
Findings of Fact
The following findings of fact (“FF”) are supported by a
preponderance of the evidence of record.
1. The Specification teaches that the “known cleaning methods
consist of the steps of: removing milk or other residues that are present on at
least the teat liner by means of a cleaning fluid; removing the cleaning fluid,
and disinfecting at least a part of the teat liner with steam” (Spec. 1 ¶ 0003).
2. The Specification teaches that the “invention is based on the
insight that a cleaning method that begins with disinfection by means of
steam is also able to remove milk or other residues that are present on at
least a part of the teat liner. This enables saving of at least resources, time
and energy” (Spec. 2 ¶ 0006).
3. The Specification teaches that “the first cleaning step takes
place after the milking of the animal has finished. This means that at least a
part of a teat liner is exposed to steam” (Spec. 2 ¶ 0007).
Principles of Law
To satisfy the written description requirement, the inventor must
“convey with reasonable clarity to those skilled in the art that, as of the filing
date sought, he or she was in possession of the invention.” Vas-Cath Inc. v.
Mahurkar, 935 F.2d 1555, 1563-64 (Fed. Cir. 1991).
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“Although [the inventor] does not have to describe exactly the subject
matter claimed … the description must clearly allow persons of ordinary
skill in the art to recognize that [the inventor] invented what is claimed.” In
re Gosteli, 872 F.2d 1008, 1012 (Fed. Cir. 1989).
Analysis
While the Examiner is correct that the specific language of the claims
was not disclosed ipsis verbis in the Specification (Ans. 4), ipsis verbis
support is not required. Fujikawa v. Wattanasin, 93 F.3d 1559, 1570 (Fed.
Cir. 1996).
We agree with Appellants that the person of ordinary skill would read
the Specification, particularly the contrast between the prior art methods
which use cleaning fluids to remove the milk (FF 1) and the inventive
method that begins with steam (FF 2), and immediately recognize that the
inventive method omits the use of cleaning fluids prior to steam treatment.
The Specification makes this point even more clearly in teaching that
“the first cleaning step takes place after the milking of the animal has
finished. This means that at least a part of a teat liner is exposed to steam”
(Spec. 2 ¶ 0007; FF 3). This statement would be reasonably interpreted by
the ordinary artisan as teaching that the first cleaning step after milking is a
steam cleaning step, which is consistent with, and supportive of, the claim
requirement that steam cleaning occurs prior to any other cleaning methods.
Conclusion of Law
The evidence of record does not support the Examiner‟s finding that
the limitation “without previously removing milk or other residue from said
part with a cleaning fluid” in claim 1 is new matter.
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B. 35 U.S.C. § 103(a) over Bosma and Ericsson
The Examiner finds that Bosma teaches “a first cleaning step
comprises cleaning or disinfecting said part of the teat cup with steam
without previously removing milk or other residues from said part with a
cleaning liquid” (Ans. 5). The Examiner finds that “Ericsson teaches it is
known to treat the teat cups with a fluid after steam treatment” (id.).
The Examiner finds it obvious “to modify the teachings of Bosma
with the teachings of Ericsson at the time of the invention for the advantage
of cooling the teat cups for subsequent application to a cow to reduce injury
to the next cow to be milked as taught by Ericsson” (id.).
Appellants contend that the Examiner “equates the lack of a mention
of cleaning as a teaching that cleaning is not required. There is no evidence
to support these hypotheses, and considerable evidence of record to refute
them” (App. Br. 16).
Appellants contend that
one of ordinary skill in the art would not interpret Bosma‟s
lack of discussion of a particular step as suggesting that it
should be omitted. One of ordinary skill in the art also
would not interpret the lack of detail shown in the drawings
as suggesting that the equipment not shown is not necessary.
A means of cleaning the milking station of Bosma is so
obviously required - without this the entire milking system
of Bosma would quickly become clogged with dried milk
residues and coagulated milk proteins.

(App. Br. 18-19.)
The issue with respect to this rejection is: Does the evidence of record
support the Examiner‟s finding that Bosma and Ericsson teach or suggest
“disinfecting said part of the teat cup with steam without previously
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removing milk or other residues from said part with a cleaning fluid” as
required by claim 1?
Findings of Fact
4. Bosma teaches that “it is an object of the present invention to
provide a method and a device, respectively for automatically disinfecting or
sterilizing in an automated milking system, which overcome the above-
identified problems associated with prior art” (Bosma 3, ll. 1-5).
5. Bosma teaches disinfecting “wherein the disinfection or the
sterilization is performed after that the infectious animal has left the station”
(Bosma 3, ll. 19-21).
6. Bosma teaches that:
The milking station 3 comprises further an automatic
milking machine 10 including teat cups 11 connected to an
end unit 12 by means of milk lines 13. The milking machine
10 includes a robot or automatic handling device 14 having
an arm 15 provided with a gripper. The handling device 14
is arranged to automatically apply the teat cups 11 of the
milking machine 10 to the teats of a cow present in the
milking station 3 prior to milking.

(Bosma 6, ll. 19-25.)
7. Bosma teaches that the milking station 3 is “provided with an
apparatus 29 for disinfection and/or sterilization of various parts of the
milking station 3 that a cow may contact for a specified purpose or
accidentally, e.g. surfaces of the teat cups 11, the teat cleaning devices 21,
22” (Bosma 9, ll. 7-11).
8. Bosma teaches that
each feeding station 24 and each resting station 26 is
provided with a respective apparatus 30, 31 for disinfection
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and/or sterilization of various parts of that station. Parts to
be disinfected and/or sterilized may be inner walls, and the
floor of the station and in case of a feeding station the
manger/feeding device thereof may need to be disinfected
and/or sterilized.

(Bosma 9, ll. 15-21.)
9. Bosma teaches that “in order to ensure that no infection is
transmitted from cow to cow . . . all surfaces of that station, which a cow in
the area 1 may contact for a specified purpose or accidentally, shall be
disinfected or sterilized after a visit by an infectious cow” (Bosma 13, ll. 14-
19).
10. Bosma teaches “three different apparatuses 32, 33, 34 for
disinfection and sterilization that may be used, by themselves or in any
combination” (Bosma 10, ll. 10-12).
11. Bosma teaches that the “disinfection and/or sterilization
apparatus 32 is based on heat treatment and includes an injector 35
connected to a hot fluid generator 36 via a supply tube 37. . . . The hot fluid
generator 36 may be adapted for generation of steam” (Bosma 10, ll. 14-18).
12. Bosma teaches that “disinfection and/or, sterilization apparatus
33 is based on use of chemicals or disinfectants such as an alcohol and
includes an injector 39 connected to a supply unit 40 via a supply tube 41”
(Bosma 10, ll. 22-25).
13. Ericsson teaches that the “surfaces of the teat cup liner 34b are
cleaned by means of flowing cleaning fluid” (Ericsson 11, ll. 20-21).
14. Ericsson teaches that by “removing substantially all [cleaning]
fluid, less steam energy is needed to heat up the teat cup liner to a given
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temperature (since no energy is wasted in heating and evaporating the
remaining fluid)” (Ericsson 12, ll. 15-18).
15. Ericsson teaches that the “teat cleaning cup is cooled by means
of flushing a fluid, which typically is water . . . to quickly decrease the
temperature of the teat cleaning cup 25” (Ericsson 18, ll. 13-16).
Principles of Law
The Supreme Court has emphasized that “the [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l v. Teleflex Inc., 550 U.S. 398, 418 (2007).
As noted by the Court in KSR, “[a] person of ordinary skill is also a
person of ordinary creativity, not an automaton.” Id. at 421. “The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” Id. at 416.
Analysis
Claim 1
Bosma teaches a method of milking animals which comprises
connecting a teat cup to a teat of an animal to be milked (FF 6). Bosma
teaches disinfecting a teat cup which has come into contact with an animal
with steam (FF 7, 11). Bosma teaches that the teat cup may also be further
disinfected with chemicals (FF 12) and that this chemical disinfection may
occur subsequent to the steam disinfection (FF 10). Ericsson teaches
treating a steam disinfected teat cup with subsequent fluid treatment (FF 15).
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Applying the KSR standard of obviousness to the findings of fact, we
agree with the Examiner that the ordinary artisan would have reasonably
found it obvious to treat teat cups with steam for sterilization as taught by
Bosma (FF 7, 11), after which the teat cups would have been treated either
with an additional sterilization fluid as suggested by Bosma (FF 10, 12) or
simply another fluid as suggested by Ericsson (FF 15). Such a combination
is merely a “predictable use of prior art elements according to their
established functions.” KSR, 550 U.S. at 417.
Appellants contend that the Examiner “equates the lack of a mention
of cleaning as a teaching that cleaning is not required. There is no evidence
to support these hypotheses, and considerable evidence of record to refute
them” (App. Br. 16). Appellants contend that
one of ordinary skill in the art would not interpret Bosma‟s
lack of discussion of a particular step as suggesting that it
should be omitted. One of ordinary skill in the art also
would not interpret the lack of detail shown in the drawings
as suggesting that the equipment not shown is not necessary.
A means of cleaning the milking station of Bosma is so
obviously required - without this the entire milking system
of Bosma would quickly become clogged with dried milk
residues and coagulated milk proteins.

(Id. at 18-19.)
While we appreciate Appellants argument, the internal evidence in
Bosma supports the Examiner‟s position. The issue is whether Bosma, who
does not expressly state whether the steam sterilization step occurs without a
previous washing step, necessarily performs a previous washing step or not.
Bosma not only teaches sterilization of the teat cup (FF 7), but Bosma
teaches that “[p]arts to be disinfected and/or sterilized may be inner walls,
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and the floor of the station and in case of a feeding station the
manger/feeding device thereof may need to be disinfected and/or sterilized”
(Bosma 9, ll. 15-21; FF 8). Bosma also teaches that “in order to ensure that
no infection is transmitted from cow to cow . . . all surfaces of that station,
which a cow in the area 1 may contact for a specified purpose or
accidentally, shall be disinfected or sterilized after a visit by an infectious
cow” (Bosma 13, ll. 14-19; FF 9).
Thus, Bosma teaches that the steam sterilization can be applied not
only to the teat cups, but also to the walls, floor, or other portions of the
milking or feeding stations (FF 8-9). Bosma never teaches or suggests that a
washing step is required before steam sterilization in any of these contexts,
and Appellants argument, that washing must inherently occur, is much less
persuasive in the context of sterilization of the walls or floor, where dried
milk or other bodily fluids would be irrelevant to the sterilization. We
therefore agree with the Examiner that the reasonable interpretation of
Bosma is that “Bosma explicitly teaches that one of ordinary skill in the art
may select to use only steam to disinfect/sterilize the teat cup. Bosma does
not teach that the teat cup has to be rinsed first” (Ans. 11).
We also are not persuaded by Appellants‟ argument that without
washing “the entire milking system of Bosma would quickly become
clogged with dried milk residues and coagulated milk proteins” (App. Br.
19). While Appellants cite two references, the references provide no
evidence that supports the conclusion that the milking system of Bosma
would be clogged and incapable of function without a washing step. See In
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re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney‟s argument in a
brief cannot take the place of evidence.”)
Claim 24
Appellants contend that “such values are in fact particularly
significant in achieving adequate disinfection while not prolonging the time
required for the overall cleaning and also in avoiding encrustation of milk
proteins” (App. Br. 21).
The Examiner finds that “the limitations of claim 24 are merely
optimization measures and do not present patentably distinct limitations.
Choosing from a finite number of identified, predictable solutions, with a
reasonable expectation of success is not patentably distinct” (Ans. 13-14).
We find that the Examiner has the better position. Having found that
Bosma and Ericsson render claim 1 obvious, we agree that selection of a
particular time for the initial steam disinfection step of Bosma represents a
matter of routine optimization. See In re Aller, 220 F.2d 454, 456 (CCPA
1955) (“[W]here the general conditions of a claim are disclosed in the prior
art, it is not inventive to discover the optimum or workable ranges by routine
experimentation.”) Appellants have provided no evidence to suggest that the
particular range of claim 24 demonstrates any unexpected properties.
Conclusion of Law
The evidence of record supports the Examiner‟s finding that Bosma
and Ericsson teach or suggest “disinfecting said part of the teat cup with
steam without previously removing milk or other residues from said part
with a cleaning fluid” as required by claim 1.

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C. 35 U.S.C. § 103(a) over Bosma, Ericsson, and Gascoignes
Appellants contend that in “relation to claims 5 and 6, it is believed to
be nonobvious to adapt Bosma to provide steam having the claimed
temperatures when in contact with the teat cup” (App. Br. 22). Appellants
contend that “Gascoignes offers no teaching as to how a higher temperature
could be achieved in the jet of Bosma” (id.).
The Examiner finds that “one of ordinary skill in the art would be
motivated through routine tests and experimentation to modify the
temperature range to a higher temperature then 95 degrees C to insure
sterilization in an efficient manner” (Ans. 7). The Examiner finds that
“Gascoignes was cited to teach the general knowledge in the art to
[e]ffectively ster[i]lize . . . the temperature of the steam should reach 130F to
remove milk fat and 210F for sterilization” (Ans. 13).
We find that the Examiner has the better position. Gascoignes teaches
that “[s]team at a temperature of 210° F is suitable for sterilizing”
(Gascoignes 2 ll. 66-67). Thus, an ordinary artisan combining the teaching
of Gascoignes with those of Bosma and Ericsson would perform the
sterilization to permit the use of the temperature necessary for sterilization
taught by Gascoignes. In addition, both Bosma (FF 11) and Ericsson (FF
14) expressly suggest sterilization with steam, which necessarily begins at
220° F. Finally, Appellants contention that when using Bosma‟s device “[i]t
is believed that such a jet aimed at a teat cup would produce a temperature at
the teat cup of less than 100°C” is not evidence, but simply attorney
argument. (App. Br. 22.) See In re Pearson, 494 F.2d at 1405 (“Attorney‟s
argument in a brief cannot take the place of evidence.”)
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D. 35 U.S.C. § 103(a) over Bosma, Ericsson, and Berger
Appellants contend that “Applicant cannot find any reference in
Berger to measuring the temperature of the steam in contact with the teat
cup” (App. Br. 23). Appellants contend that in “Berger, a wash solution
temperature sensor 48 is disclosed in a circulatory washing system. This is
substantially different from the situation when steam is applied
instantaneously to a teat cup” (id.).
The Examiner finds that Berger teaches “measuring the temperature
of the steam (Berger #52) that is in contact with the part of the teat cup,
generating a first temperature signal that is indicative of the measured steam
temperature, and supplying the first temperature signal to the control unit”
(Ans. 8).
We find that the Examiner has the better position. There is no dispute
that Berger teaches the use of a temperature sensor 48 in a milking machine
to ensure that the temperature of the wash solution is sufficiently high (see,
e.g., Berger, col. 4, ll. 31-46). The dispute is whether it would have been
obvious to place the temperature sensor at the teat cup. “A person of
ordinary skill is also a person of ordinary creativity, not an automaton.”
KSR, 550 U.S. at 421. We agree with the Examiner that the person of
ordinary creativity would have placed the temperature sensor which
measures whether the temperature is sufficiently high into the component
which is being sterilized, here the teat cup, since the person of ordinary
creativity would recognize that this is the element which must be heated to
sterilizing temperature.
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SUMMARY
In summary, we reverse the rejection of claims 1-19 and 24 under 35
U.S.C. § 112, first paragraph as failing to comply with the written
description requirement.
We affirm the rejection of claims 1, 2, 17, and 24 under 35 U.S.C. §
103(a) as obvious over Bosma and Ericsson.
We affirm the rejection of claims 3-6 and 11 under 35 U.S.C. § 103(a)
as obvious over Bosma, Ericsson, and Gascoignes.
We affirm the rejection of claims 7-10, 12, 13, 14-16, 18, and 19
under 35 U.S.C. § 103(a) as obvious over Bosma, Ericsson, and Berger.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

cdc