Ex Parte VanBuuren

Patent Trial and Appeal Board

Oct 1, 2018

14609165 (P.T.A.B. Oct. 1, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/609,165 01/29/2015
29973 7590 10/03/2018
Shutts & Bowen LLP
ATTN: STEVEN M. GREENBERG, ESQ.
525 Okeechobee Blvd
Suite 1100
West Palm Beach, FL 33401
FIRST NAMED INVENTOR
Darren VanBuuren
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.
1083-167U 6337
EXAMINER
PARSLEY, DAVID J
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
10/03/2018 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):
docketing@crgolaw.com
sgreenberg@shutts.com
aschneider@crgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DARREN V ANBUUREN
Appeal2018-000334
Application 14/609,165
Technology Center 3600
Before BENJAMIN D. M. WOOD, JEFFREY A. STEPHENS, and
SEAN P. O'HANLON, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Poly Dome Ontario Inc. ("Appellant") 1 seeks our review under 35
U.S.C. § 134(a) from the Examiner's Final Office Action ("Final Act.")
rejecting claims 1---6. We have jurisdiction under 35 U.S.C. § 6(b ).
For the reasons explained below, we do not find error in the
rejections. Accordingly, we AFFIRM.
1 Appellant is the applicant pursuant to 37 C.F.R. § 1.46. Appellant is also
identified as the real party in interest. Appeal Br. 2.
Appeal2018-000334
Application 14/609, 165
Claimed Subject Matter
Claim 1, the sole independent claim on appeal, illustrates the claimed
subject matter and is reproduced below.
1. An animal housing unit, comprising:
an enclosure, the enclosure comprising:
a front wall;
a rear wall opposed to the front wall;
two opposed side walls extending between the front
wall and the rear wall;
and
a roof spanning the walls;
a base remote from the roof and adapted to support the
enclosure on a surface;
a doorway formed in the front wall;
at least two selectively closable vents in the rear wall
adjacent respective junctions between the rear wall and the side
walls;
wherein each of the vents includes at least one vent
aperture positioned less than about 24 inches from the base.
Rejection
Claims 1---6 stand rejected under 35 U.S.C. § 103 as unpatentable over
Anderson (US 6,691,644 Bl, issued Feb. 17, 2004) and Van Buuren (US
2011/0100302 Al, published May 5, 2011). Final Act. 3-5.
DISCUSSION
The Examiner finds Anderson teaches most limitations of the animal
housing unit recited in claim 1, including at least one selectably closable
vent in the rear wall adjacent respective junctions between the rear wall and
the side walls, wherein the vent includes at least one vent aperture. Final
Act. 3. As the Examiner finds, "Anderson does not disclose the vent
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Application 14/609, 165
aperture is positioned less than about 24 inches from the base, but does
disclose the vent can be positioned in any desired location - see column 2
lines 25-32." Id. The Examiner also determines there is no criticality to
placing the vent in the claimed position, and reasons that it would have been
obvious to place Anderson's vent less than 24 inches from the base "so as to
yield the predictable result of allowing for a user controlled proper airflow
into and out of the device as necessary for the animal in the device." Id.
The Examiner also finds one of skill in the art would have used a plurality of
vents as taught by Van Buuren "so as to yield the predictable result of
increasing the amount of airflow into and out of the device as desired." Id.
at 4.
Appellant argues neither Anderson nor Van Buuren teaches
positioning the vent aperture less than about 24 inches from the base, and
argues the Examiner has failed to consider the patentability of the claimed
invention in view of the evidence in the Specification and in the Declaration
of Marwan Essa submitted by Appellant ("Essa Declaration" or "Essa
Deel.," see Appeal Br., Evid. App.). Appeal Br. 3--4. Appellant contends
that the Examiner's "assertion that 'there is no criticality to placing the vent
in the claimed position' ignores the specific use of the word 'importantly' in
describing the placement of the vents." Id. at 5.
The Specification provides:
Importantly, for each of the vents 120, the lowermost of
the vertically aligned vent apertures 124 (i.e. the vent aperture
124 closest to the base 112), and preferably both vent apertures
124, are positioned less than about 24 inches from the base 112,
measured vertically toward the roof 110, as shown schematically
by line D1 in Figure 4.
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Application 14/609, 165
Spec. ,r 15 ( emphasis added). 2 We agree with Appellant that the
Specification provides some context for why it is important to position the
vent aperture less than about 24 inches from the base, see Reply Br. 3-5,
which the Specification suggests would space the vent aperture from the roof
of an animal housing unit sized for bovine calves or goats, "for which the
roof 110 should be at least 3 6 inches from the base 112," Spec. ,r 15. As
Appellant notes, the Specification suggests that one object of the disclosure
is to promote air exchange in the lower areas of the housing units opposite
the doorways. See id. ,r 4.
Nevertheless, we agree with the Examiner that use of the term
"importantly" in paragraph 15 of the Specification is insufficient to show
criticality of the claimed distance of the vent apertures from the base. See
Ans. 2. An applicant may show a claimed variable or range is critical,
"generally by showing that the claimed range achieves unexpected results
relative to the prior art range." In re Woodruff, 919 F.2d 1575, 1578 (Fed.
Cir. 1990). Here, although the Specification indicates a reason for placing a
vent in the "lower areas" of the animal housing unit, i.e., to promote air
exchange in that area, see Spec. ,r 4, there is no indication that one of
ordinary skill in the art would not have expected this result.
Appellant also argues that the Essa Declaration establishes that
positioning a vent aperture less than about 24 inches from the base of the
structure achieves results that would have been unexpected to one of skill in
the art. Appeal Br. 5-10; Reply Br. 7-10. We agree with the Examiner,
2 Appellant's citation to Specification paragraph 14, see Appeal Br. 5,
appears to be in error.
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Application 14/609, 165
however, that the Essa Declaration does not show unexpected results
relevant to non-obviousness in this case. See Ans. 4.
Mr. Essa conducted air flow testing on three different hutches with
different arrangements of vents. Essa Deel. ,r 16. Appellant explains that
"the basis for the concluding that there is criticality to the claimed
positioning of the vent apertures is the comparison between Hutch A and
Hutch B." Reply Br. 7-8. Hutches A and B were substantially identical
except that Hutch A had vents in the lower portion of the rear wall
approximately 19 inches from ground level, and such vents were absent in
Hutch B. Essa Deel. ,r,r 20-21. Both hutches had two opposed vents in the
roof and a multi-aperture vent in an upper portion of the rear wall. Id.
Based on airflow measured through each vent, Mr. Essa concluded that "the
positioning of vent apertures less than 24 inches from the base as described
and claimed in the Application does not divert air flow from the other vents,
but, when present, actually increases air flow through the other vents." Id.
,r 27(d); see id. ,r,r 27(b), 27(c). Mr. Essa declares that, prior to conducting
the tests, he "would not have expected the specific positioning of vent
apertures, as described and claimed in the Application, to have promoted air
exchange in the upper areas of pens opposite a doorway." Id. ,r 15.
Even if the Essa Declaration were sufficient to establish that
positioning vents in the lower area of Hutch A increased air flow through all
the vents, and that one of ordinary skill in the art would not have expected
such a result, this does not refute the Examiner's reasoning that one of
ordinary skill in the art would have expected a vent in the lower area of a
hutch to provide increased air flow in the lower area. Essentially, the Essa
Declaration at most establishes an additional advantage to placing the vents
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Application 14/609, 165
in this area. We are of the opinion that this additional advantage, which
flows naturally from placement of the vents in the claimed location for the
reason given by the Examiner, is not the type of unexpected result that
would show criticality in this case. In other words, the expected result, i.e.
increased ventilation in the area where the vent is positioned, still occurs.
We also observe a few additional reasons why the Essa Declaration
does not establish criticality that would tend to show non-obviousness in this
case. First, we note that the vents in Hutch A "in the lower portion of the
rear wall" were "approximately 19 inches from the ground level." Essa
Deel. ,r 20. Although 19 is less than 24, it is unclear how a single data point
at 19 inches could establish criticality of the range of "less than about 24" as
claimed. See In re Peterson, 315 F.3d 1325, 1331 (Fed. Cir. 2003)
( concluding that "substantial evidence supports the Board's finding that
Peterson has not shown unexpected results that are commensurate in scope
with the claimed range of 'about 1-3 percent' rhenium" because unexpected
results were not shown for the entire claimed range). Second, Mr. Essa
provides no explanation as to why the increased air flow in other vents was
unexpected. See, e.g., Essa Deel. ,r 15. Although his statement to that effect
is entitled to some weight, we give it little weight without additional
explanation as to the reasons one of ordinary skill in the art would not have
expected such an additional advantage. Third, the testing does not rule out
the possibility that merely adding additional vents, without the exact location
being critical, would increase airflow throughout the structure. In this
regard, we note that there is no comparison of air flows in Hutch A to, for
example, a hutch that has the same number and type of vents as Hutch A
except the rear wall vents are not positioned than less than 24 inches from
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Application 14/609, 165
the base. Lastly, we note that, although the Essa Declaration states that
"[a]mbient air velocity was also measured for reference purposes," id.
,r 28(a), the Declaration does not explicitly state that ambient airflow was the
same during all tests.
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of claim 1 under
35 U.S.C. § 103 as unpatentable over Anderson and Van Buuren. For the
same reasons, we sustain the rejection of claims 2---6, which are not argued
separately.
DECISION
We affirm the Examiner's rejection of claims 1---6 under 35 U.S.C.
§ 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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