11930837 (B.P.A.I. Mar. 29, 2012)

Ex Parte Gordon et al

Board of Patent Appeals and InterferencesMar 29, 2012

11930837 (B.P.A.I. Mar. 29, 2012)

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. 11/930,837 10/31/2007 Tal Gordon 1460TAL-US2 1409 7590 03/29/2012 David Klein DEKEL PATENT LTD. Beit HaRof'im 18 Menuha VeNahala Street, Room 27 REHOVOT, ISRAEL EXAMINER NGUYEN, SON T ART UNIT PAPER NUMBER 3643 MAIL DATE DELIVERY MODE 03/29/2012 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 TAL GORDON, EREL BENJAMINI, and SHALOM LEVIN ____________ Appeal 2010-003014 Application 11/930,837 Technology Center 3600 ____________ Before EDWARD A. BROWN, CHARLES N. GREENHUT and MICHAEL C. ASTORINO, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-003014 Application 11/930,837 2 STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1, 3, 5-9, 11, 14 and 15 under 35 U.S.C. § 102(b) as anticipated by Tamba (US 6,079,364, issued Jun. 27, 2000) and claim 12 under 35 U.S.C. § 103(a) as unpatentable over Tamba and Bédard (US 6,568,348 B1, issued May 27, 2003). Claims 2, 4, 10, 13, and 16-22 have been cancelled. Claims 23-26 have been withdrawn. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER Claim 1 is the sole independent claim on appeal, is representative of the subject matter on appeal, and recites: 1. A method comprising: soaking feline exudates deposited in reusable litter; afterwards separating said feline exudates from said litter with a mechanical separator, wherein said litter passes through said separator; flushing away said feline exudates; and drying said litter. OPINION Tamba discloses an embodiment, wherein an automatic cat litter-tray saves the owner of the cat from all unpleasant cleaning operations and allows the cat excreta to be disposed of in the same way as domestic waste water. Abstract, col. 2, ll. 15-20. More specifically, Tamba discloses an embodiment represented in Figure 6 where a rake 48 automatically moves floating excreta to hopper 42 (hereinafter “rake embodiment”), and the Appeal 2010-003014 Application 11/930,837 3 embodiment represented in Figure 7 where a grille 51 automatically moves excreta to hopper 42 (hereinafter “grille embodiment”). Col. 8, ll. 33-60. The Examiner finds: Tamba teaches a method comprising: soaking feline exudates deposited in reusable litter (col. 8, lines 7-60, the exudates float in the water); afterwards separating said feline exudates from said litter with a mechanical separator (col. 8, lines 7-60, any one of rake 48 or grill 51), wherein said litter passes through said separator (col. 8, lines 35-50) . . . Ans. 3 (Emphasis added). As such, the Examiner finds the operation of the mechanical separator as recited in claim 1 reads on the use of rake 48 or, alternatively, the use of grille 51. Ans. 4. The Appellants contend that both the rake and grille embodiments fail to fulfill the steps of claim 1. Br. 6. Regarding the Examiner’s finding that Tamba’s rake embodiment discloses the claimed invention, the Examiner further finds that Figure 6 depicts that the prongs of rake 48 hang below a bar that resides in lateral guides 49. See Ans. 7-8. Tamba discloses pumping water via an electric pump 33 through water-galleries 39 in the base 26 of tray 110 filling the tray with water to submerge granules 104. The cat excreta then floats off the granules and rake 48 automatically pushes the floating excreta to hopper 42. See Col. 8, ll. 16-18, 23-25, 33-42. The Appellants contend that Tamba does not disclose that litter passes through rake 48 because rake 48 is higher than granules 104 and only passes through water. Br. 6-7. Furthermore, although it is clear that the prongs of rake 48 must contact the water to push the floating excreta, it is not clear that the rake’s prongs contact the litter granules 104. The Examiner further finds that “there will be some litter either floating around in the water and litter attaches to the feces, [so] some Appeal 2010-003014 Application 11/930,837 4 litter particles [(granules)] will pass through the rake.” Br. 6. However, since Tamba discloses that the granules are denser than water, the granules would not be reasonably expected to float. Col. 2, ll. 49-54; see also col. 5, ll. 8, 9. As for feces having attached granules, since feces are not disclosed as being able to pass through rake 48, is not likely that feces with attached granules would be able to pass through rake 48 either. As such, the Examiner’s finding that granules pass through rake 48 is not sufficiently supported. Regarding the alternative finding that Tamba’s grille embodiment discloses the claimed invention, the Examiner finds that the grille embodiment includes the structural features of Figures 3 and 4. Ans. 8; see also col. 6, ll. 45-49, 58-61. The Examiner also finds that because the embodiment of Figures 3 and 4 includes soaking features, the grille embodiment also includes the soaking features. See Ans. 8; contra Br. 7-8. The Appellants point out that grille 51 is used to separate exudates from granules 104 when the granules are dry. Br. 7, 8; see col. 8, ll. 44-61. Furthermore, although the embodiment represented in Figures 3 and 4 has similar structure to the grille embodiment, it is not clear that the structure in the grille embodiment performs the same steps as those discussed in Figures 3 and 4. Tamba’s disclosure with respect to the grille embodiment does not explicitly disclose soaking excreta prior to automatically moving the excreta towards hopper 42. See col. 8, ll. 43-60. Tamba does disclose that a flexible grille 51 is supported as an endless conveyor belt between rollers 53 and 56, is vertically movable via piston 52 external to the layer of granules, and is driven by motor 56 towards hopper 42. See Id. Alternatively, Tamba discloses that a rigid grille 51 may vibrate in the direction of the hopper 42. Appeal 2010-003014 Application 11/930,837 5 In either case, the grille embodiment does not reasonably appear to “separate the exudates from the litter after soaking the exudates.” Br. 6, 8. As such, the Examiner’s finding that the operation of the Tamba grille embodiment corresponds to the steps recited in claim 1, “soaking feline exudates deposited in reusable litter; afterwards separating said feline exudates from said litter with a mechanical separator” is not sufficiently supported. See Id. Thus, for the reasons provided above the rejection of claims 1, 3, 5-9, 11, 14 and 15 as anticipated by Tamba is not sustained. The remaining rejection of claim 12 based on Tamba and Bédard relies on the same erroneous findings as discussed above with respect to claim 1. Thus, for the reasons provided above, the rejection under 35 U.S.C. § 103(a) of claim 12 as unpatentable over Tamba and Bédard is also not sustained. DECISION We REVERSE the rejections of claims 1, 3, 5-9, 11, 14 and 15 as anticipated by Tamba and claim 12 as unpatentable over Tamba and Bédard. REVERSED Klh