2021001742 (P.T.A.B. Sep. 24, 2021)

Deere & Company

Patent Trials and Appeals BoardSep 24, 2021

2021001742 (P.T.A.B. Sep. 24, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/888,868 02/05/2018 Elijah B. Garner 208065-9146-US01 8150 132636 7590 09/24/2021 MICHAEL BEST & FRIEDRICH LLP (JOHN DEERE) 790 N WATER ST SUITE 2500 MILWAUKEE, WI 53202 EXAMINER MCGOWAN, JAMIE LOUISE ART UNIT PAPER NUMBER 3671 NOTIFICATION DATE DELIVERY MODE 09/24/2021 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): mkeipdocket@michaelbest.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ELIJAH B. GARNER, STANLEY R. BORKGREN, CARY S. HUBNER, BETH A. WOLFS, MICHAEL E. FRASIER, and JOSEPH W. MIGLIORINI Appeal 2021-001742 Application 15/888,868 Technology Center 3600 Before KEVIN F. TURNER, CHARLES N. GREENHUT, and CARL M. DEFRANCO, Administrative Patent Judges. DEFRANCO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–19. Claims 9 and 10 are indicated as being allowable if rewritten in independent form. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. CLAIMED SUBJECT MATTER The claimed subject matter relates to “a row unit for a seeding machine, such as a row crop planter for agricultural applications,” and more 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Deere & Company as the real party in interest. Appeal Br. 2. Appeal 2021-001742 Application 15/888,868 2 specifically, to “a row unit having a seed meter and a seed delivery mechanism.” Spec. ¶ 1. Of the pending claims, three are independent— claims 1, 14, and 19. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A row unit for a seeding machine, the row unit comprising: a seed reservoir; a seed meter including a metering member having a seed side facing the seed reservoir, a non-seed side opposite the seed side, and a plurality of apertures extending from the seed side to the non-seed side, the seed meter operable by pressure differential between the non-seed side and the seed side to adhere seeds to the seed side and move seeds from the seed reservoir; a conduit having a venturi with a throat disposed adjacent the metering member, the throat presenting an opening directed toward the seed side and the plurality of apertures, the opening configured to receive a seed adhered to one aperture of the plurality of apertures; and an air pressure source configured to provide greater than atmospheric air pressure on the non-seed side such that during operation of the row unit an air stream passes through the one aperture toward the opening. Appeal Br. 11 (Claims App.) (emphasis added). REJECTIONS 1) Claims 1–19 are provisionally rejected on the ground of nonstatutory double patenting over claims 1–22 of Application No. 15/888,882 and claims 1–20 of Application No. 15/888,912. Final Act. 3. 2) Claims 1–4, 6, 11, 13–17, and 19 are rejected under 35 U.S.C. § 103 as being unpatentable over Maury (US 4,399,757, issued Aug. 23, 1983) and Bristow (US 1,331,235, issued Feb. 17, 1920). Final Act. 4–6. Appeal 2021-001742 Application 15/888,868 3 3) Claims 5 and 12 are rejected under 35 U.S.C. § 103 as being unpatentable over Maury, Bristow, and Stufflebeam (US 5,740,747, issued Apr. 21, 1998). Final Act. 6–7. 4) Claims 7, 8, and 18 are rejected under 35 U.S.C. § 103 as being unpatentable over Maury, Bristow, and Official Notice. Final Act. 7. ANALYSIS A. Rejection 1 (Nonstatutory Double Patenting) Application 15/888,882 currently remains co-pending, the most recent entry being an Examiner’s Answer, and Application 15/888,912 has matured into U.S. Patent 10,820,489. The cited applications have the same effective filing date as the present application of February 5, 2018. Appellant does not seek our review of these provisional rejections or indicate that a terminal disclaimer has been or will be filed. Thus, we consider all arguments on this subject waived, and we do not reach the merits of these provisional rejections at this time. 37 C.F.R. § 41.37(c)(1)(iv); In re Mott, 539 F. 2d 1291, 1295-6 (CCPA 1976). As such, the Examiner’s provisional rejections are maintained. See MPEP 804(I)(B)(1)(b)(ii); see also In re Wetterau, 356 F. 2d 556 (CCPA 1966) (“an affirmance of a ‘double patenting’ rejection in a case such as the instant one is only provisional in that it might be obviated by future events”). B. Rejection 2 (Claims 1–4, 6, 11, 13–17, and 19) We begin with the independent claims—claims 1, 14, and 19. The Examiner finds that Maury discloses a seed metering device substantially as claimed, except for “an additional air pressure source configured to provide greater than atmospheric air pressure on the non-seed side of the metering member through the apertures to deposit the seeds in the conduit.” Final Appeal 2021-001742 Application 15/888,868 4 Act. 4–5. For that missing aspect of the claimed invention, the Examiner turns to Bristow’s teaching of “the use of pressurized air on the non-seed side of the metering member to aid in moving the seeds from the seed side of the metering member to the conduit for planting.” Id. at 5. As such, the Examiner determines that one skilled in the art would have found it obvious “to utilize pressurized air on the non-seed side of the metering disc to aid in propelling the seed toward the discharge conduit in Maury as taught by Bristow as the use of a known technique to improve similar devices in the same way.” Id. (citing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007)). Appellant disputes that one skilled in the art would pursue the proposed combination of Maury and Bristow. Appeal Br. 8. We agree. As Appellant correctly notes, Maury’s venturi, which is disposed on the seed side of the disk (i.e., the seed meter), already serves to release the seed from the disk by means of high-velocity compressed air flowing past the seeds as they rotate past the suction chamber and into the neck of the venturi. See Maury, 4:45–63, Figs. 1, 2. The Examiner does not adequately explain why an additional air pressure source on the non-seed side of the disk would provide any improvement over Maury’s venturi on the seed side of the metering disk which operates effectively to release and transfer the seeds away from the metering disk. In other words, the Examiner does not explain why any further air pressure source on the non-seed side of Maury’s metering disk would not simply be redundant to the seed-releasing system already provided on the seed side of Maury’s metering disk. Moreover, we agree with Appellant that adding an air pressure source to the non-seed side of Maury’s metering disk, as contemplated by the Examiner, would likely interfere with the high-velocity compressed air Appeal 2021-001742 Application 15/888,868 5 flowing through the neck of Maury’s venturi, thereby detrimentally affecting the timing of seed placement. See Appeal Br. 8. The Examiner asserts that “[a]n additional positive pressure forcing the seeds to unseat from the orifices would provide additional benefit if seeds were to become lodged in the holes due to inconsistent seed size, seed weight, various shapes, sticky seeds due to varying moisture content/humidity, debris buildup within the orifices etc.” Ans. 3–4 (emphasis added). But this assertion is speculative at best, given the Examiner’s failure to point to any actual objective evidence that seed-jamming is a recognized problem in the art, let alone a problem in Maury’s seed meter. In sum, we are not persuaded that one skilled in the art would have undertaken to modify Maury by incorporating the teaching of Bristow. Thus, we cannot sustain the rejection of independent claims 1, 14, and 19, or the dependent claims rejected on the same basis, i.e., claims 2–4, 6, 11, 13, and 15–17. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)) (“[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”). C. Rejections 3 and 4 (Claims 5, 7, 8, 12, and 18) Claims 5, 7, 8, and 12 depend from claim 1, and claim 18 depends ultimately from claim 14. Appeal Br. 11–13 (Claims App.). The Examiner does not rely on either the teaching of Stufflebeam or the taking of official notice in a manner that would remedy the deficiencies discussed above regarding the rejection based on Maury and Bristow. See Final Act. 6–7. Appeal 2021-001742 Application 15/888,868 6 Thus, for the reasons discussed above, we do not sustain the rejection of dependent claims 5, 7, 8, 12, and 18. CONCLUSION Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1–4, 6, 11, 13–17, 19 103 Maury, Bristow 1–4, 6, 11, 13–17, 19 5, 12 103 Maury, Bristow, Stufflebeam 5, 12 7, 8, 18 103 Maury, Bristow, Official Notice 7, 8, 18 1–19 Provisional Obvious Double Patenting Claims 1-20 of Application No. 15/888,912 1–19 1–19 Provisional Obvious Double Patenting Claims 1–22 of Application No. 15/888,882 1–19 Overall Outcome 1–19 AFFIRMED2 2 “The affirmance of the rejection of a claim on any of the grounds specified constitutes a general affirmance of the decision of the examiner on that claim, except as to any ground specifically reversed. The Board may also remand an application to the examiner.” 37 C.F.R. § 41.50(a)(1).