Ex Parte Johnson et al

Patent Trial and Appeal Board

Mar 30, 2017

12716298 (P.T.A.B. Mar. 30, 2017)

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.
12/716,298 03/03/2010 Kevin C. Johnson GRN.0005.US01 1467
54245 7590 04/03/2017
ARCHER DANIELS MIDLAND COMPANY
4666 FARIES PARKWAY
DECATUR, IL 62526
EXAMINER
COX, STEPHANIE A
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
04/03/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patent @ adm. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN C. JOHNSON, LYNN JOHNSON,
DELRON E. ALBERT, and VANE CASE1
Appeal 2016-002627
Application 12/716,298
Technology Center 1700
Before JEFFREY T. SMITH, MARKNAGUMO,
and CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 1, 2, 4—11, 23, and 24. We have jurisdiction under
35 U.S.C. § 6(b).
1 According to the Appeal Brief, the real party in interest is Archer-Daniels-
Midland Company. (App. Br. 3.)
Appeal 2016-002627
Application 12/716,298
Claim 1 illustrates the subject matter on appeal and is reproduced
from the Claims Appendix to the principal Brief (italicizes added to identify
disputed claim language).
1. A method for downdraft ozone treatment of grain
with minimal generation of ozone related objectionable odors
comprising:
separating the grain based on density into a first, more
dense batch having mycotoxins and a second, less dense batch
having mycotoxins, where the first, more dense batch has less
mycotoxins than the second, less dense batch;
placing the second, less dense batch of the grain into a
storage container;
providing a negative air pressure at a bottom of a volume
of the second batch of the grain in the storage container;
placing ozone at a concentration exceeding 200 parts per
million (ppm) in air above an upper surface of the volume of the
second batch of the grain; and
drawing the ozone down into the volume of the second
batch of the grain using the negative air pressure for a treatment
time sufficient to effectively reduce toxins in the second batch of
the grain without causing significant ozone-related
commercially-objectionable foreign odors in the second batch of
the grain.
The Examiner maintains, and Appellants appeal, the following
rejections:
I. Claims 1, 2, 4, 5, and 9-11 rejected under 35 U.S.C. § 103(a)
as unpatentable over Walker et al. (US 2005/0112209 Al; pub.
May 26, 2005) in view of Vetter et al. (US 2007/0134380 Al;
pub. June 14, 2007) and Le Gigan (US 5,181,616; iss. Jan. 26,
1993).
II. Claims 6—8, 23, and 24 rejected under 35 U.S.C. § 103(a) as
unpatentable over Walker, Vetter, Le Gigan, and Stephen A.
2
Appeal 2016-002627
Application 12/716,298
Kells et al., Efficacy and fumigation characteristics of ozone in
stored maize 37 Journal of Stored Products Research, 371—82
(2001).
OPINION
The dispositive issue on appeal is: Did the Examiner err harmfully in
determining that the teachings of Le Gigan would have led one skilled in the
art to separating the grain based on density into a first, more dense batch
having less mycotoxins and a second, less dense batch having more
mycotoxins, where the first, more dense batch has less mycotoxins than the
second, less dense batch as required by the subject matter of independent
claims 1 and 23 ?2
After review of the respective positions provided by Appellants and
the Examiner, we REVERSE for the reasons presented by Appellants.
We refer to the Examiner’s Final Office Action for a complete
statement of the rejection. Final Act. 3—8.
Appellants argue Walker, Vetter, and Le Gigan do not teach the
elements of separating grain based on density into a first, more dense batch
having mycotoxins and a second, less dense batch having mycotoxins, where
the first, more dense batch has less mycotoxins than the second, less dense
batch as recited in independent claim 1. (App. Br. 9). Appellants argue
[Wjhile Le Gigan teaches removing impurities from good grain,
including dust, broken or small grain having a density
comparable to good grain but of inferior dimensions, medium
impurities having dimensions comparable to good grain but of
inferior density, and large impurities having different densities
and larger dimensions, Le Gigan does not teach separating
2 We limit our discussion to independent claim 1.
3
Appeal 2016-002627
Application 12/716,298
“good grain” based on density into batches having different
amounts of mycotoxins and further treating a batch having
more mycotoxins. The only types of grain being separated from
each other in Le Gigan are good grain and broken or small
grain, and those are separated not based on density, but rather
based on differences in dimensions (size). The impurities which
are separated in Le Gigan based on density are dust, medium
impurities, and large impurities, none of which are grain.
Therefore, the Examiner has factually erred in interpreting Le
Gigan as nothing in Le Gigan can be construed as teaching
separating grain based on density into a first, more dense batch
having mycotoxins and a second, less dense batch having
mycotoxins, where the first, more dense batch has less
mycotoxins than the second less dense batch.
(App. Br. 10-11).
The Examiner cited Walker and Vetter to show that it was well known
in the art to treat grain piles with ozone to remove impurities and toxins,
(final Act. 3—4). The Examiner cited Le Gigan for teaching separating grain
having different densities. (Id.). In response to Appellants’ argument, the
Examiner asserts Le Gigan teaches separating grain based on density and,
therefore, one pile of grain will be denser than another. (Ans. 10). The
Examiner agrees with Appellants that Le Gigan does not recognize that the
denser grain pile has less mycotoxins than the less dense grain pile;
however, the Examiner asserts this is an inherent property of the grain pile.
(Id.).
On this record, the weight of the evidence favors Appellants’
arguments. The Examiner’s attempt to reconstruct the teaching of Le Gigan
to associate the density of grain with mycotoxins is misplaced. The
impurities which are separated in Le Gigan based on density are dust,
medium impurities, and large impurities, none of which are grain.
(Le Gigan, col. 1,1. 60 — col. 2,1. 5). Le Gigan does not discuss mycotoxins
4
Appeal 2016-002627
Application 12/716,298
and a relation to the density of grain. Thus, we agree with Appellants that
the Examiner has factually erred in interpreting Le Gigan as teaching
separating grain based on density into a first and second batch wherein the
denser batch has less mycotoxins than the less dense batch. Consequently,
the Examiner has not identified evidence sufficient to suggest separating
grain based on density into a first, more dense batch having mycotoxins and
a second, less dense batch having mycotoxins, where the first, more dense
batch has less mycotoxins than the second, less dense batchas required by
claim 1.
Under these circumstances, we cannot conclude that the Examiner has
met the minimum threshold of establishing obviousness under 35 U.S.C.
§ 103(a). See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); KSRInt’l
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006)). Accordingly, we reverse the Examiner’s prior
art rejections of claims 1, 2, 4—11, 23, and 24 under 35 U.S.C. § 103(a) for
the reasons presented by Appellants and given above.
ORDER
The Examiner’s decision to reject claims 1, 2, 4—11, 23, and 24 under
35 U.S.C. § 103(a) is reversed.
REVERSED
5