Ex Parte Georgoulias et al

Patent Trial and Appeal Board

Aug 28, 2018

14172679 (P.T.A.B. Aug. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/172,679 02/04/2014
30689 7590 08/28/2018
DEERE & COMPANY
ONE JOHN DEERE PLACE
MOLINE, IL 61265
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Chris M. Georgoulias
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.
P21887-US 3689
EXAMINER
MCGOWAN, JAMIE LOUISE
ART UNIT PAPER NUMBER
3671
MAIL DATE DELIVERY MODE
08/28/2018 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 PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISM. GEORGOULIAS, STANLEY K. HALL,
and MARQUEZ PERKINS
Appeal2017-008832
Application 14/172,679 1
Technology Center 3600
Before KEN B. BARRETT, WILLIAM V. SAINDON, and
ANTHONY KNIGHT, Administrative Patent Judges.
KNIGHT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Office
Action dated June 24, 2016 (Final Act.) rejecting pending claims 1-9. We
have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 According to Appellants, the real party in interest is DEERE &
COMP ANY, the Applicant. Br. 2.
Appeal2017-008832
Application 14/172,679
CLAIMED SUBJECT MATTER
The invention is directed to "walk-behind aerators having coring
heads with a plurality of tines." Spec. ,r 1. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. An aerator with variable delay of the coring head,
compnsmg:
a lift/lower control on an aerator control panel that
provides signals to move a coring head between a transport
position and a coring position and rotate a crankshaft that
reciprocates a plurality of coring tines at a coring head
crankshaft speed;
a delay timer to provide a delay between starting to move
the coring head between the transport position and the coring
position and starting or stopping rotation of the crankshaft; the
coring head crankshaft rotating slower than the coring head
crankshaft speed while starting or stopping rotation as the
coring head is moving between the transport position and the
coring position; and
a switch on the control panel to preset the delay timer to
any of a plurality of operator adjustable time periods.
REJECTIONS
The Examiner made the following rejections:
Claims 1-6, 8, and 9 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Simon et al. (US 5,797,458 issued Aug. 25, 1998)
("Simon"), Podevels et al. (US 5,101,745, issued Apr. 7, 1992)
("Podevels"), and Sinkkila (US 4,616,715, issued Oct. 14, 1986); and
Claim 7 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Simon, Podevels, Sinkkila, and Official Notice.
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Appeal2017-008832
Application 14/172,679
OPINION
The rejection of claims 1-6, 8, and 9 under 35 US.C. § 103
The Examiner finds that Simon discloses the invention of independent
claim 1 with the exception of the aerator having a timer for delaying rotation
of the coring head. Final Act. 2. The Examiner relies upon Podevels to
teach the use of a delay timer to delay activation and deactivation of the
aerator for the purpose of ensuring proper aeration, and reasons that it would
have been obvious to modify Simon in light of Podevels "to control
actuation of rotation of the tines based on operating conditions of the
aeration machine." Id. at 2-3 (citing Podevels 14: 16-43). The Examiner
also finds that combination of Simon and Podevels does not teach that the
delay timer is adjustable. Id. at 3. The Examiner relies upon Sinkkila to
teach that it is known in the art of ground working devices to provide a timer
with an adjustable delay. Id. The Examiner states that modifying the delay
timer of the Simon-Podevels combination to be adjustable, as taught by
Sinkkila, would have been obvious to one of ordinary skill in the art at the
time the invention was made because "it has been held that the provision of
adjustability, where needed, involves only routine skill in the art." Id.
(citing In re Stevens, 101 USPQ 284 (CCPA 1954)).
Appellants argue that Simon does not disclose any time delays
between actuating switch 12 and changing the engine speed. Br. 6.
Appellants contend that Simon discloses actuating the electronic control
switch 12 and slowing the engine speed at the same time. Id. Appellants
contend that Podevels relates to a machine for injecting high pressure fluids
into the ground and Podevels' machine must satisfy preconditions before the
nozzles are pressurized. Id. Appellants point out that Podevels refers to
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Appeal2017-008832
Application 14/172,679
clutches 3 8 and 46 that are controlled through an electronic timer system
that requires the machine to move after engagement. Id. Appellants
describe Podevels as disclosing a motor with clutches for a water pump that
is controlled through an electric timer. Id. at 5. Appellants argue that the
delay timer of Podevels works for a different purpose than the aerator of
Simon and for a different purpose than the present invention. Id. at 7.
In response, the Examiner states that Podevels discloses the use of a
timer to delay aeration until certain conditions are met, and that it would
have obvious to include a delay timer in Simon "to ensure that the coring
head is low enough to prevent damage to the turf before initializing rotation
of the tines." Ans. 5-6.
Having outlined the Examiner's and the Appellant's positions, we tum
to the prior art to see what it teaches. Podevels teaches an apparatus and
method for cultivating soil using high-pressure fluids to aerate. Podevels
1: 12-15. Referring to the passage cited by the Examiner in support of the
rejection, Podevels describes the operation of the machine stating that water
is supplied through either connector 56 or 57 from a source. Id. at 14:16-18.
In Podevel' s machine, a water pump and a gear box are controlled by
suitable means with clutches 3 8, 46 controlled by an electric timer that
requires the machine to move after engagement and the water system is
pressurized with the tires lifted off the ground. Id. at 14: 19-31. Podevels'
system will not pressurize until the roller assembly is on the ground to act as
a safety interlock. Id. at 14:23-37. Thus, Podevels' delay timer acts as a
safety interlock for a high-pressure fluid aerator.
Whether a combination of references has reasoning or a rational
underpinning is a question of fact. See Nike, Inc. v. Adidas AG, 812 F.3d
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Appeal2017-008832
Application 14/172,679
1326, 1335 (Fed. Cir. 2016) ("Whether a person of ordinary skill in the art
would have had such a reason to combine the teachings of prior art
references is also a question of fact.") ( citation omitted). See also KSR Int 'l
Co. v. Teleflex Inc., 550 U.S. 398,418 (2007) (quoting with approval In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)) ("[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."). Here, the Examiner's
rationale for combining Simon and Podevels is faulty because, as Appellants
point out, the delay timer of Podevels is used to overcome a problem faced
in a hydraulic aerator; a problem not faced in the Simon aerator. Podevel's
timer acts as a safety interlock to prevent clutches 3 8 and 46 from operating
and thus prevents the pump from pressurizing. This operating mechanism is
different than Simon's use of a core tine aerator with a crankshaft that
continues to tum while in transport mode and through switching to aeration
mode without stopping. See Simon 2:61---65 ("The solenoid 24, plunger 26,
spring 28, arm 30 and governor 34 thereby serve as a power source control
means which automatically slows the vehicle power source 36 when the
aerator mechanism 14 shifts between its transport and operating positions.").
The action of a safety interlock for preventing pressurization is different
from "the coring head crankshaft rotating slower than the coring head
crankshaft speed while starting or stopping rotation as the coring head is
moving between the transport position and the coring position" as required
by claim 1, and the Examiner has not explained sufficiently why the
proposed combination would have been obvious despite these differences.
Accordingly, the rejection of claim 1 is not sustained.
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Application 14/172,679
Claims 2-5 depend from claim 1. Br. 10 (Claims App'x.). Claims 6
and 9 are independent claims containing limitations similar to claim 1.
Compare id. (Claims App'x.) (Claim 1) with id. at 10-11 (Claims
App'x.)(Claim 6) and id. at 11 (Claims App'x.) (claim 9). Examiner relies
upon the same reasoning as advanced in the rejection made with respect to
claim 1. Final Act. 2-3. For the reasons discussed supra, we also do not
sustain the rejection of claims 2-6, 8, and 9.
The rejection of claim 7 under 35 US.C. § 103
Claim 7 depends from claim 6. Br. 11 (Claims App'x.). The
Examiner's invocation of Official notice that displays are well known (Final
Act. 3--4) does not cure the deficiencies in the rejection of claim 6.
Accordingly, the rejection of claim 7 is not sustained.
DECISION
For the above reasons, the Examiner's rejection of claims 1-9 is
reversed.
REVERSED
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