Ex parte CULLEN

Board of Patent Appeals and Interferences

Jun 15, 1998

08342603 (B.P.A.I. Jun. 15, 1998)

Application for patent filed November 21, 1994. 1
According to appellant, the application is a continuation of
Application, 07/912,873, filed July 13, 1992, now abandoned.
-1-
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 11
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte STEPHEN R. CULLEN
________________
Appeal No. 96-4004
Application 08/342,6031
________________
ON BRIEF
________________
Before STONER, Chief Administrative Patent Judge, FRANKFORT,
STAAB and McQUADE, Administrative Patent Judges.
McQUADE, Administrative Patent Judge.
DECISION ON APPEAL
This appeal is from the final rejection of claims 10
through 18, all of the claims pending in the application.
Appeal No. 96-4004
Application 08/342,603
-2-
The invention relates to a machine and method for bagging
silage material. A copy of the appealed claims appears in the
appendix to the appellant’s brief (Paper No. 9).
The references relied upon by the examiner as evidence of
obviousness are:
Eggenmuller et al. (Eggenmuller) 3,687,061 Aug. 29,
1972
Cox et al. (Cox) 4,653,553 Mar. 31,
1987
Claims 10 through 18 stand rejected under 35 U.S.C. § 103
as being unpatentable over Cox in view of Eggenmuller.
Reference is made to the appellant’s brief (Paper No. 9)
and to the examiner’s answer (Paper No. 10) for the respective
positions of the appellant and the examiner with regard to the
merits of this rejection.
Cox discloses a bag loading machine 10 which is designed
to form and deliver into an agricultural bag 18 a dense mass
of animal feed material such as forage or silage. The machine
includes an infeed conveyor 32, a hopper 42, a pair of
vertically-disposed, laterally-spaced tine shaft assemblies 34
and 36, a feed material compression and forming chamber 40,
and a delivery chamber 44. These components are arranged as
Appeal No. 96-4004
Application 08/342,603
-3-
best shown in Figures 1 and 3. As described by Cox,
the infeed conveyor 32 is operationally positioned
with the lower receiving end thereof disposed to
receive, conveyably elevate, and infeed material
from a silage wagon or the like, not shown, but
which would be moved into position along the side of
said machine 10 and displaced therewith during the
operational accomplishment of bag filling
operations. Thus, the loose infeed forage material
is delivered and directed into the hopper 42 by the
infeed conveyor . . . so that it is deposited to the
inside forward section of said hopper 42. The loose
infeed forage material to be processed by said
machine 10 is simultaneously and cooperatively
engaged by the vertically disposed laterally spaced
tine shaft assemblies 34 and 36 . . . so to
coactively engage cooperatively and compressively
urge feed material directionally and controllably
into and through the compression and forming chamber
40 of said machine 10 and into the delivery chamber
44 thereof for airtight compacted uniform sidewall
density self-supporting storage deposit of said feed
material into said bag 18 [column 6, lines 33
through 60].
The delivery chamber 44 includes a set of pivot panels
140 which define its effective cross-section. These panels
can be selectively positioned via inflatable bladders 136 to
vary the interdiction or retardation effect of the chamber so
as to control the density of the feed material passing
therethrough (see column 8, lines 42 through 60).
As conceded by the examiner (see page 4 in the answer),
the feed bagging machine and method disclosed by Cox do not
Appeal No. 96-4004
Application 08/342,603
-4-
meet the limitations in independent claims 10 and 16 relating
to the silage density control means. These limitations
require, inter alia, that the control means include a
plurality of horizontally spaced-apart density bars which are
secured to an elongated, horizontally disposed, rotatable
shaft for selective movement within the flow of silage
material. Although Cox’s pivot panels 140 correspond
generally to the claimed density control means, they lack the
spaced-apart bar configuration specified by claims 10 and 16.
As a result of this difference in configuration, Cox’s pivot
panels 140 also fail to control silage density in the
particular manner set forth in these claims.
Eggenmuller discloses a machine and method for pressing
loose feed material into a mass having a desired density. The
machine 2 includes “a receiving chamber 3 in which pressing
tools 4 are arranged which press the feed into a forming
channel and consists of a carriage with rollers 6. The
forming channel 5 has in cross-section the shape of the mass
of material 7 to be produced” (column 5, lines 9 through 13).
As depicted in Figures 1 through 3, the pressing tools 4
appear to consist of a plurality of horizontally spaced-apart
Appeal No. 96-4004
Application 08/342,603
-5-
bars.
According to the examiner, it would have been obvious to
one of ordinary skill in the art at the time the invention was
made
“to substitute a spaced-apart bar configuration as taught by
Eggenmuller for the density control panel configuration in the
Cox device and method, since this modification would have been
to simply select an alternative density control configuration,
known in the art” (answer, page 4).
The appellant, on the other hand, contends that
[i]nasmuch as the pressing tools 4 of
Eggenmuller are for a completely different purpose
than to provide a means for adjusting the density of
the material in the storage bag, appellant believes
that it would not have been obvious for one having
ordinary skill in the art to rely on Eggenmuller,
since the pressing tools of Eggenmuller were not
designed to have the silage material flow between
the bars, but were designed to force the material
into the tunnel. It therefore is believed that it
would not have been obvious to substitute the
structure of Eggenmuller into Cox inasmuch as the
panels of Cox are not provided for forcing material
into the bag, but are merely provided to narrow the
opening in the area where the material is passing
therethrough. It is believed that this is
especially significant in that Cox designed his
Appeal No. 96-4004
Application 08/342,603
-6-
equipment so that the entire upper surface and sides
of the silage would be engaged by panels or
bladders. Cox did not desire to control the density
by passing the material through spaced-apart bars,
as in appellant’s apparatus. Inasmuch as
Eggenmuller was not concerned with varying the
density by permitting silage to pass between
adjustable bars, it certainly would not have been
obvious to combine the teachings of Cox and
Eggenmuller, since the same would have taught away
from appellant’s invention [brief, page 5].
The essence of the appellant’s argument is persuasive.
As indicated above, Eggenmuller’s pressing tools 4 function to
press feed material into forming channel 5. In this regard,
they correspond to Cox’s tine shaft assemblies 34 and 36 which
function to compressively urge feed material into compression
and forming chamber 40 and delivery chamber 44. While both of
these feed pressing/urging mechanisms play a role in
controlling the density of the feed products produced by their
respective machines, their purpose differs markedly from that
of Cox’s pivot panels 140. In this light, the examiner’s
conclusion that one of ordinary skill in the art would have
found the configuration of Eggenmuller’s pressing tools 4 to
be an obvious alternative to the configuration of Cox’s pivot
panels 140 is not well taken. In short, the combined
teachings of Cox and Eggenmuller would not have suggested an
Appeal No. 96-4004
Application 08/342,603
Given this circumstance, the statement on page 1 of the2
appellant’s brief that “[t]here are no appeals or
interferences which are related to this case” is somewhat
perplexing. 37 CFR
§ 1.192(c)(2) requires an appeal brief to contain “[a]
statement identifying by number and filing date all other
appeals or interferences known to appellant, the appellant’s
legal representative, or assignee which will directly affect
or be directly affected by or have a bearing on the Board’s
decision in the pending appeal” (emphasis added). Giving the
appellant the benefit of the doubt, we assume that the failure
to identify the prior appeal in the appellant’s brief was due
to an inadvertent oversight rather than any attempt to conceal
the result of the earlier appeal.
-7-
agricultural bagging machine or method meeting the particular
limitations in independent claims 10 and 16 relating to the
silage density control means.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103 rejection of claims 10 and 16, or of claims 11 through
15, 17 and 18 which depend therefrom, as being unpatentable
over Cox in view of Eggenmuller.
As a final matter, we note that in a decision on appeal
involving parent Application 07/912,873, a different panel of
this Board acted pursuant to 37 CFR § 1.196(b) to enter a
rejection essentially similar to the rejection involved in the
instant appeal against essentially similar claimed subject
matter. To the extent that the decision in the instant2
Appeal No. 96-4004
Application 08/342,603
-8-
appeal may conflict with that in the earlier appeal, we are
satisfied that the result reached here is the correct one.
The decision of the examiner is reversed.
REVERSED
BRUCE H. STONER, JR. )
Chief Administrative Patent Judge )
)
)
)
CHARLES E. FRANKFORT ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
LAWRENCE J. STAAB )
Administrative Patent Judge )
)
)
)
JOHN P. McQUADE )
Administrative Patent Judge )
Dennis L. Thomte
Zarley McKee Thomte Voorhees and Sease
2120 South 72nd Street Suite 1111
Omaha, NE 68124