10434048 (B.P.A.I. Sep. 28, 2010)

Ex Parte Anstey et al

Board of Patent Appeals and InterferencesSep 28, 2010

10434048 (B.P.A.I. Sep. 28, 2010)

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. 10/434,048 05/08/2003 Henry Dennis Anstey (16345-US) 6621 30689 7590 09/28/2010 DEERE & COMPANY ONE JOHN DEERE PLACE MOLINE, IL 61265 EXAMINER YU, MICKEY ART UNIT PAPER NUMBER 3728 MAIL DATE DELIVERY MODE 09/28/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte HENRY DENNIS ANSTEY and JEAN VIAUD ____________________ Appeal 2009-011628 Application 10/434,048 Technology Center 3700 ____________________ Before: LINDA E. HORNER, WILLIAM F. PATE III, and KEN B. BARRETT, Administrative Patent Judges. PATE III, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-011628 Application 10/434,048 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1, and 3-5. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. The claims are directed to large round bale of crop material wrapped in a protective wrapping. Claim 1, reproduced below, is illustrative of the claimed subject matter: I. In a bale of wrapped crop material having a covering of a length of flexible material sufficient to wrap at least a circumference of said bale, the improvement comprising: said flexible material being a semi-permeable material which sheds water droplets but permits the passage of water vapor and wherein a permeability of said flexible material is diminished with additional layers; and said covering including an additional length of material sufficient to additionally cover said bale in a region of said bale that is to be placed in ground contact during storage, whereby said region is additionally protected from ground water and soil moisture due to the diminished permeability of the flexible material to moisture in said region. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Wiley van den Wildenberg Parrella US 4,891,918 US 4,917,008 US 5,794,780 Jan. 9, 1990 Apr. 17, 1990 Aug. 18, 1998 Müller DE 35 24 294 A1 Jan. 29, 1987 Appeal 2009-011628 Application 10/434,048 3 Perforation Technology, Products, Applications (2002), http://microperforation.com/page 1A.htm (hereinafter “Perforation Technology”). Dupont, Tyvek® Protective Covers, 2003 (hereinafter “Tyvek”). University of Wisconsin Forage Research and Extension, Minimizing Losses in Hay Storage and Feeding (2003), http://www.uwex.edu/ces/forage (hereinafter “Wisconsin”). REJECTIONS Claims 1, 3 and 5 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Wisconsin or Tyvek in view of Müller or van den Wildenberg. Ans. 4. Claim 3 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Wisconsin or Tyvek in view of Müller or van den Wildenberg and Perforation Technology. Ans. 5. Claim 4 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Wisconsin or Tyvek in view of Müller or van den Wildenberg and Parrella. Ans. 5. OPINION We have carefully reviewed the rejections on appeal in light of the arguments of the Appellants and the Examiner. As a result of this review we have determined that the applied prior art does not establish the prima facie obviousness of the claims on appeal. Therefore the rejections on appeal are reversed. Our reasons follow. The following constitutes our findings of fact with respect to the scope and content of the prior art and the differences between the prior art Appeal 2009-011628 Application 10/434,048 4 and the claimed subject matter. The Wisconsin reference is generally related to hay storage and notes that losses of up to 30 % or greater are often realized when hay is stored outside without protection. Wisconsin 1: 2-3. Wisconsin further discloses that at least one commercially available hay cover is made from slightly porous fabric. Wisconsin 4: 6-11. Slightly porous fabric keeps rainwater off the hay but allows moisture to escape during sunny drying days. Id. Wisconsin also states that some companies provide plastic sleeves to enclose the top and side of bales. Wisconsin 4:17- 23. It further notes that such bales should not be stored directly on the ground. Id. Finally, Wisconsin also mentions the protection of the bottom of bales. Wisconsin 4:34-39. The protection of the bottom of the bales can be more important than the protection of the top. Id. Wisconsin suggests several methods to keep the bales off the ground. Id. Wisconsin differs from the claimed subject matter in that Wisconsin does not mention enclosing the entire bale in a slightly porous fabric, nor does Wisconsin mention a double layer of fabric on the portion of the bale that could come in contact with the ground. Müller discloses wrapping of cylindrical bales of straw or hay in a rectangular piece of mesh or net. See p. 2, l. 22 - p. 3, l. 7. Applied to the center portion of the wrapping net is an area of waterproof film 18 which provides a roof for the hay in the bale. Id.; 4:1-10. As can be seen in Figure 1, the length of the net strip is selected so that end areas overlap themselves over a relatively large circumferential zone U which constitutes approximately 1/3 of the bale’s circumference. Id. While Müller teaches overlapping the ends of the mesh, Müller does not disclose wrapping the entire bale in a waterproof film. Müller also does not disclose the use of a Appeal 2009-011628 Application 10/434,048 5 slightly porous fabric, and Müller does not disclose a double layer of waterproofing film on the side of the bale facing the ground. Van den Wildenberg discloses a net-like material for wrapping bales of hay. According to van den Wildenberg, when such netting is used, approximately three turns of netting is necessary to hold the bale in shape. Col. 1, ll. 11-15. However, van den Wildenberg has found that providing edge zones in the wrapping net which are elastic and which cover a side portion or face of the bales to a minor extent allows the net wrapping to be cut to only 1 ½ layers around the bales. Col. 1, ll. 42-45. Van den Wildenberg also discloses in the Figure 4 embodiment, wrapping a bale of hay in a plastic film, having perforations. On the other hand, van den Wildenberg does not disclose wrapping a bale with a slightly porous fabric. Nor does van den Wildenberg disclose covering the portion of the bale facing the ground with an additional layer of semi-permeable material. The Tyvek disclosure mentions that Tyvek® material is often used as an agricultural cover and further mentions that such covers have been used to cover bales of cotton. Tyvek 1. Tyvek does not disclose hay, the wrapping of round bales, the use of multiple layers, or the use of multiple layers on only a portion of the wrapped bundle. We do note, however, that some types of Tyvek® material are slightly porous fabrics. While we acknowledge that Wisconsin teaches slightly porous fabrics have been used to wrap bales of hay, it is our view that Wisconsin suggests wrapping the bale in one layer of fabric. Furthermore, it is apparent to us that if additional sealing is needed, Wisconsin would teach wrapping the bale entirely in two layers of semi-permeable or slightly porous fabric. Wisconsin certainly does not suggest wrapping the entire bale in one layer Appeal 2009-011628 Application 10/434,048 6 and providing an additional layer on the portion of the bale likely to come into contact with the ground. The Examiner is relying on Müller or van den Wildenberg to provide this teaching. We are in agreement with the argument made by Appellants that the reason that van den Wildenberg and Müller overlap their net or mesh is that the overlap, in cooperation with the stems and leaves of the hay, tends to lock the net or mesh in position on the bale. Since this interlocking arrangement is not applicable to a sheet of flexible material, it is our view that these two patents would not suggest an overlap of the slightly porous or semi-permeable fabric as required by the claimed subject matter. We note the Examiner’s argument that the additional length of material is obvious from the overlap in van den Wildenberg or Müller. The Examiner cites to the obvious for one reason/obvious for all reasons cases such as In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992). Ans. 7. In this case, however, we do not believe that it was obvious to overlap the semi- permeable fabric for any reason, since van den Wildenberg discloses that it is in the interest of one of ordinary skill to limit the number of turns of wrapping to save time and material. See van den Wildenberg col. 1, ll. 40- 47. Both van den Wildenberg and common sense teach that one should use the least amount of wrapping as possible, since overlapping a continuous film does not serve the benefit of locking the mesh or net wrapping with the included hay. Accordingly, one of ordinary skill would not overlap the semi-permeable film to any great degree. Based on the foregoing reasoning, it is our conclusion that the Examiner has not provided convincing reasoning with rational underpinnings as to why the claimed subject matter of claim 1 would have been prima facie obvious from Wisconsin or Tyvek in view of Müller or van Appeal 2009-011628 Application 10/434,048 7 den Wildenberg. The other references cited by the Examiner do not ameliorate the difficulties we have found with respect to the prima facie obviousness of claim 1. Accordingly, the obviousness rejection of claims 3, 4 and 5 are also reversed. DECISION The rejection of claims 1, and 3-5 under 35 U.S.C. § 103(a) are reversed. REVERSED nlk DEERE & COMPANY ONE JOHN DEERE PLACE MOLINE IL 61265