Ex Parte Aarts et al

Board of Patent Appeals and Interferences

May 22, 2012

10249017 (B.P.A.I. May. 22, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ADRIANUS PETRUS HENDRIKUS AARTS,
ANTOON PETER ANDRE THEELEN, KAREL VAN DEN BERG, and
ADRIAAN COERT VAN LENTEREN
____________

Appeal 2010-003999
Application 10/249,017
Technology Center 3600
____________

Before STEFAN STAICOVICI, CHARLES N. GREENHUT, and
WILLIAM V. SAINDON, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Adrianus Petrus Hendrikus Aarts et al. (Appellants) appeal from the
Examiner’s decision to reject under 35 U.S.C. § 103(a) claims 1, 3-6, 8-10,
16-18, 21, 22, 24-30, 37-39, 53 and 541 as unpatentable over van der Lely
(US 5,816,190, issued Oct. 6, 1998), Forrest (WO 96/04551, published Feb.
15, 1996) and Burghardi (US 6,863,023 B2, issued Mar. 8, 2005); claim 7 as
unpatentable over van der Lely, Forrest, Burghardi, and Brethour (US
5,960,105, issued Sep. 28, 1999); claims 13-15 as unpatentable over van der
Lely, Forrest, Burghardi, and van den Berg (US 6,038,030, issued Mar. 14,
2000); and claims 19 and 20 as unpatentable over van der Lely, Forrest,
Burghardi, and Postma (WO 99/18774, published Apr. 22, 1999). Claims
40-52 and 55-64 have been withdrawn by the Examiner. Claims 2, 11, 12,
23 and 31-36 have been cancelled. We have jurisdiction over this appeal
under 35 U.S.C. § 6.

1 The Notice of Appeal does not specifically list which claims are appealed.
Notice of Appeal, filed Sep. 2, 2008. In the Appeal Brief filed Apr. 20,
2009, under the Status Of Claims heading, although claims 53 and 54 are
noted as “pending in the application,” claims 53 and 54, which were rejected
over prior art in the Final Rejection mailed Jan. 22, 2008, have not been
appealed by Appellants (App. Br. 2 and 5). Hence, it is clear that Appellants
do not intend to appeal the rejection of claims 53 and 54. Therefore, the
rejection of claims 53 and 54 will not be considered in this appeal.
Furthermore, consistent with the holding of BPAI precedential opinion Ex
Parte Ghuman, 88 USPQ2d 1478, 1480 (BPAI 2008), the Examiner should
cancel non-appealed claims 53 and 54. Appellants may not reserve
arguments for some later time.

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THE INVENTION
Appellants’ invention relates to a device for automatically measuring
a characteristic of the body of a living animal including a measuring device
having a profile meter 12, a processing device, an automatic milking
machine, and a feeding installation having a feed trough 17. Spec. paras.
[0001], [0047], [0048], [0050], and [0054] and fig. 1.
Claim 1, the sole independent claim, is illustrative of the claimed
invention and reads as follows:
1. A device comprising:
a measuring device comprising a profile meter for
measuring at least a part of the profile of a living animal and for
issuing a measurement signal, the profile meter comprising a
contactless telemeter;
a processing device for determining a value indicative of
a body score of the animal from the measurement signal,
an automatic milking machine for performing a milking
related action, selected from the group consisting of
stimulation, foremilking, pre-cleaning, main milking and
post-cleaning; and
a feeding installation comprising a feed trough for
supplying a quantity of feed to the animal, the feeding
installation being arranged to determine the quantity of feed
and provide it to the feeding trough on the basis of the
measurement signal,
wherein the device is arranged so that the measuring of
the profile is determined while the milking related action is
being performed.

SUMMARY OF DECISION
We AFFIRM.

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OPINION
Claims 1, 3-6, 8-10, 16-18, 21, 22, 24-30, and 37-39
First, Appellants argue that Burghardi fails to teach or suggest a
“quantity” of feed to be given to an animal, as required by claim 1. Supp.
App. Br. 5-9.2 According to Appellants, Burghardi discloses “a computer
system for creating a customized animal feed to fulfill particular nutritional
requirements.” Supp. App. Br. 5. Appellants argue that references to the
amounts of ingredients to use when making up the customized feed of
Burghardi does not refer to how much of the customized feed should be
given to the animal. Supp. App. Br. 5-9. See also Reply Br. 4. In other
words, according to Appellants, Burghardi “does not teach providing any
particular quantity of feed to an animal.” Supp. App. Br. 11. Emphasis
added.
At the outset, we are not persuaded by Appellants’ arguments,
because Appellants’ arguments are not commensurate with the scope of
claim 1, which does not require a feeding installation for supplying and
determining a particular quantity of feed to an animal, but merely an
installation for supplying and determining a “quantity of feed” be supplied to
the animal. Emphasis added. As stated by our reviewing court in In re
Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998), “the name of the game is
the claim.” It is well established that limitations not appearing in the claims
cannot be relied upon for patentability. In re Self, 671 F.2d 1344, 1348

2 Throughout this Opinion, we shall refer to Appellants’ Appeal Brief, filed
Apr. 20, 2009 as “App. Br.”; Appellants’ Supplemental Appeal Brief, filed
Jun. 18, 2009, as “Supp. App. Br.”; and Appellants’ Reply Brief, filed Nov.
5, 2009, as “Reply Br.”

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(CCPA 1982). As such, we agree with the Examiner that the amounts of the
different ingredients used to make the custom feed of Burghardi collectively
represent a “quantity” of feed, as called for by independent claim 1. Ans.
15-16.
Furthermore, even assuming arguendo that claim 1 requires a feeding
installation arranged to determine and to provide a “particular” quantity of
feed (e.g., 100 lbs. per day per animal), as Appellants contend, we agree
with the Examiner that it is common sense to control the quantity of feed
supplied to an animal in order to keep the animal at a healthy body weight.
Ans. 14. Hence, it would have been obvious as a matter of common sense to
modify the individual amounts of the various ingredients used to make the
custom feed of Burghardi (see Burghardi, col. 1, ll. 12-14) in the device of
van der Lely as modified by Forrest to devise a “particular” quantity of feed
to provide to an animal. See Perfect Web Techs. v. InfoUSA, Inc., 587 F.3d
1324, 1328-29 (Fed. Cir. 2009) (the examiner when analyzing the evidence
may employ common sense not inconsistent with the ordinary level of
knowledge and skill in the art at the time of the invention). Thus, we agree
with the Examiner, that it would have been obvious to a person having
ordinary skill in the art at the time the invention was made to include a
feeding installation wherein quantity of feed is provided based on a
measurement signal from animal characteristic data, as taught by Burghardi,
in the feeding installation of van der Lely as modified by Forrest “in order to
customize each feed quantity accordingly to the animal's need based on its
characteristic so as to control the animal’s weight.” Ans. 5 and 14.
Second, Appellants argue that the combined references fail to teach or
suggest a processing device for determining a value indicative of a body
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score of an animal, as required by claim 1. Supp. App. Br. 9. In response,
the Examiner notes that “Forrest also teaches a processing device 30-32 for
determining a value indicative of the fat content, hence, body score.” Ans.
4. In other words, as far as we understand, the Examiner appears to take the
position that the body score of an animal is indicative of the fat content of
the animal. Appellants respond that “[b]ody score is not merely the fat
content of an animal,” but “is a measure of the state of health of live
animals”; and (2) although the device of Forrest measures an animal profile,
Forrest fails to teach or suggest a body score value. App. Br. 9-10. We are
not persuaded by Appellants’ arguments for the following reasons.
Appellants’ Specification describes the body score of an animal as
being directly related (indicative) to the fat-content of an animal. Spec.,
para. [0005]. Similarly, Forrest specifically discloses that a parameter of the
profile is indicative (directly related) of a degree of fatness or leanness (e.g.,
undernourishment/emaciation) of an animal. See Forrest, p. 2, ll. 12-13, p.
6, l. 15, p. 9, ll. 12-17. Moreover, Forrest discloses that (1) “[a] known
grading of ‘fatness’ of animals is on a scale of 1 to 5”; and (2) “[t]he
analysing means 31 [of Forrest] may include an analysis of the [animal
profile] parameter measured so as to provide an output in the 1 to 5 range.”
See Forrest, p. 10, ll. 17-18 and 20-22. As such, in contrast to Appellants’
position, we find that Forrest discloses a processing device for determining a
value indicative of a body score of an animal, as required by claim 1.
Third, Appellants argue that (1) Forrest fails to teach or suggest using
a profile meter to monitor weight; (2) one of skill in the art would not use a
profile meter rather than a weigh scale to monitor weight; and (3) there is no
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reason to believe that use a profile meter to monitor weight would yield a
satisfactory result. Supp. App. Br. 11. See also Reply Br. 6.
Although we appreciate that the body-score of an animal is not an
exact measurement of the weight of an animal, and other methods may
provide better results (e.g., weigh scale), nonetheless, a relation exists
between body score (i.e., fat content) and weight. See Spec., para. [0003].
Accordingly, we agree with the Examiner that it is reasonable to use the
body score measurement in the device of van der Lely, Forrest and
Burghardi “to monitor the animal’s weight, in addition to blood pressure,
heartbeat, etc.” Ans. 4. “The fact that the motivating benefit comes at the
expense of another benefit … should not nullify its use as a basis to modify
the disclosure of one reference with the teachings of another. Instead, the
benefits, both lost and gained, should be weighed against one another.”
Winner Int'l Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir.
2000). Since Appellants have not provided any evidence to show that (1) a
profile meter cannot be used to monitor weight; or (2) use of a profile meter
to monitor weight would not yield a satisfactory result, we are not persuaded
by Appellants’ arguments. An attorney’s arguments in a brief cannot take
the place of evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
Lastly, Appellants argue that the combined teachings of van der Lely,
Forrest, and Burghardi fail to teach or suggest that “the milking related
actions and measuring should proceed together.” Supp. App. Br. 10.
Specifically, Appellants argue that (1) Van der Lely fails to disclose profile
measurements; (2) Forrest discloses “taking measurements while sending the
animals through a race”; and (3) Burghardi discloses “nothing about how or
when any measurements should be taken.” Id.
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At the outset, we find Appellants’ arguments unpersuasive because
Appellants appear to attack the teachings of van der Lely, Forrest and
Burghardi individually, rather than the combination of van der Lely, Forrest
and Burghardi. Nonobviousness cannot be established by attacking the
references individually when the rejection is predicated upon a combination
of prior art disclosures. See In re Merck & Co, 800 F.2d 1091, 1097 (Fed.
Cir. 1986).
We agree with the Examiner that van der Lely discloses “performing
milking related actions and measuring the animal’s health conditions [e.g.,
heartbeat, blood pressure and temperature] simultaneously.” Ans. 17. See
also van der Lely, col. 6, ll. 64-65. We further agree with the Examiner that
(1) Forrest discloses measurement of the fat content of an animal; and (2)
measurement of the fat content of an animal “is a health criteria of concern
in any livestock managing system.” Final Rejection, p. 14. Hence, we agree
with the Examiner’s that one’s reasons for measuring an animal’s fat content
are the same as those for measuring an animal’s heartbeat, blood pressure,
and temperature (i.e., “to maintain the proper health of the animal”). Id. It
is well settled that an artisan must be presumed to know something about the
art apart from what the references disclose. See In re Jacoby, 309 F.2d 513,
516 (CCPA 1962). After all, “[a] person of ordinary skill is also a person of
ordinary creativity, not an automaton.” KSR Int'l. Co. v. Teleflex lnc., 550
U.S. 398, 421 (2007). Thus, we agree with the Examiner that it would have
been obvious to a person of ordinary skill in the art to include measurement
of the fat content of an animal, as taught by Forrest, together with heartbeat,
blood pressure, and temperature, as disclosed in van der Lely, “in order to
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obtain a more detail[ed] measurement of the animal’s health.” Final
Rejection, p. 14.
In conclusion, for the foregoing reasons, the rejection of independent
claim 1 under 35 U.S.C. § 103(a) as unpatentable over van der Lely, Forrest
and Burghardi is sustained.
With respect to the rejection of dependent claims 3-6, 8-10, 16-18, 21,
22, 24-30, and 37-39, Appellants do not present any arguments separate
from those presented above with respect to the rejection of independent
claim 1. Supp. App. Br. 2-12. Therefore, the rejection of claims 3-6, 8-10,
16-18, 21, 22, 24-30, and 37-39 is also sustained.

Claims 7, 13-15, 19 and 20
Appellants argue that the Examiner’s conclusion of obviousness is
based on hindsight. Supp. App. Br. 12-13. Specifically, Appellants argue
that, “[n]o underlying problem can be seen in the prior art that would have
guided the person of ordinary skill from van der Lely towards the
combination of features presently claimed.” Id. We are not persuaded by
Appellants’ arguments for the following reasons.
Appellants’ argument appears to be holding the Examiner to the old
TSM standard; such a standard is not required. KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 415 (2007) ("We begin by rejecting [TSM]"). In this
case, the Examiner has provided a reason with rational underpinning to
combine the teachings of van der Lely, Forrest, Burghardi, and Brethour “in
order to compare fat contents (fat content relating to determination of body
score) at different stages of the animal's growth.” Ans. 10. Similarly, the
Examiner has provided a reason with rational underpinning to combine the
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teachings of van der Lely, Forrest, Burghardi, and van den Berg, that is, “in
order to analyze the fat content in the milk.” Ans. 11. Finally, the Examiner
has provided a reason with rational underpinning to combine the teachings
of van der Lely, Forrest, Burghardi, and Postma “since such equipment is
notoriously well known in the art for measurement so the choice of which
types of equipment depends on the user.” Ans. 12.
Thus, in each situation, we find that the Examiner has set forth a
reasonable rationale underlying the conclusion of obviousness. Therefore,
the Examiner did not rely on impermissible hindsight but rather relied on the
knowledge of one skilled in the art at the time of the invention.
Accordingly, for the foregoing reasons, the rejections under 35 U.S.C.
§ 103(a) of claim 7 as unpatentable over van der Lely, Forrest, Burghardi,
and Brethour: claim 13 as unpatentable over van der Lely, Forrest,
Burghardi, and van den Berg; and claim 19 as unpatentable over van der
Lely, Forrest, Burghardi, and Postma is sustained.
Regarding dependent claims 15, 16 and 20, Appellants do not present
any additional arguments separate from those presented above. Supp. App.
Br. 12-13. Consequently, for the reasons presented supra, the rejections of
claims 15 and 16 as unpatentable over van der Lely, Forrest, Burghardi, and
van den Berg and claim 20 as unpatentable over van der Lely, Forrest,
Burghardi, and Postma are also sustained.

DECISION
The decision of the Examiner to reject claims 1, 3-10, 13-22, 24-30,
37-39 is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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