Ex Parte Krouse

Patent Trial and Appeal Board

Dec 21, 2018

14092644 (P.T.A.B. Dec. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/092,644 11/27/2013
27268 7590 12/26/2018
Faegre Baker Daniels LLP
300 NORTH MERIDIAN STREET
SUITE 2700
INDIANAPOLIS, IN 46204
FIRST NAMED INVENTOR
Robert L. Krouse
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.
MID-POOl-02-US-e 9797
EXAMINER
NGUYEN, SON T
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
12/26/2018 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):
inteas@faegrebd.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT L. KROUSE
Appeal2018-005053
Application 14/092,644 1
Technology Center 3600
Before EDWARD A. BROWN, CHARLES N. GREENHUT, and
BRENT M. DOUGAL, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Robert L. Krouse ("Appellant") seeks review under 35 U.S.C.
§ 134(a) of the Examiner's decision rejecting claims 8-13 and 20-27. 2 We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Midwest Poultry Services LP is identified as the real party in interest.
Appeal Br. 3.
2 Claims 1-7 and 14--19 have been cancelled. Id.
Appeal2018-005053
Application 14/092,644
CLAIMED SUBJECT MATTER
Appellant's disclosure "relates generally to the treatment of water
within an egg processing facility and, more particularly, to the recycling and
treatment of water for consumption by egg producing birds." Spec. ,r 2.
Claims 8 and 23 are independent. Claim 8 is illustrative, and reads:
8. A method of recycling egg wash water, the method
comprising the steps of:
providing a plurality of birds at a facility configured to
produce eggs;
producing eggs from the plurality of birds;
washing the eggs at the facility with water and a cleaning
agent, the egg washing step producing an effluent;
treating the effluent at the facility to remove contaminants;
and
supplying the treated effluent to the birds at the facility for
consumption.
Appeal Br. (Claims App. Al).
REJECTIONS
The Final Office Action includes the following rejections under 35
U.S.C. § I03(a):
Claim 8 is rejected as unpatentable over Shanker (US 2004/0202728
Al, published Oct. 14, 2004), Phillips (US 4,230,071, issued Oct. 28, 1980),
and Palmer (EP O 388 071, published Sept. 19, 1990).
Claims 9-11 and 22 are rejected as unpatentable over Shanker,
Phillips, Palmer, and McKay (US 2002/0014460 Al, published Feb. 7,
2002).
Claim 12 is rejected as unpatentable over Shanker, Phillips, Palmer,
and Josse (US 6,692,642 B2, issued Feb. 17, 2004).
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Application 14/092,644
Claim 13 is rejected as unpatentable over Shanker, Phillips, Palmer,
and Dunn (US 4,790,943, issued Dec. 13, 1988).
Claim 20 is rejected as unpatentable over Shanker, Phillips, Palmer,
and Vion (US 6,210,588 Bl, issued Apr. 3, 2001).
Claim 21 is rejected as unpatentable over Shanker, Phillips, Palmer,
Vion, and McKay.
Claim 23 is rejected as unpatentable over Palmer, Shanker, Phillips,
and Vion.
Claim 24 is rejected as unpatentable over Palmer, Shanker, Phillips,
Vion, and Josse.
Claim 25 is rejected as unpatentable over Palmer, Shanker, Phillips,
Vion, and Dunn.
Claims 26 and 27 are rejected as unpatentable over Palmer, Shanker,
Phillips, Vion, and McKay.
ANALYSIS
Claim 8 over Shanker, Phillips, and Palmer
As for claim 8, the Examiner finds that Shanker teaches a method of
recycling contaminated water obtained from various sources that produces
an effluent; treating the effluent at a facility to remove contaminants; and
supplying the treated effluent to animals for consumption. Final Act. 2-3
( citing Shanker ,r,r 23, 27, 46, 55, 59, 60). The Examiner determines that
Shanker's water treatment method can be used in any system or method that
involves recycling waste water for consumption. Ans. 3. The Examiner
finds that Shanker does not disclose using this method in a method of
recycling egg wash water that comprises the "providing," "producing,"
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Application 14/092,644
"washing," and "supplying" steps, as recited in claim 8. Id. at 3. The
Examiner finds that Palmer teaches an egg cleaning method comprising
these "providing," "producing," and "washing" steps, but not the
"supplying" step. Id. The Examiner finds that Phillips teaches a poultry
processing system ( chicken house 10) comprising water supply pots 31 birds
drink from and also an egg cleaning room. Id. (citing Phillips, col. 2, 11. 24--
25, col. 3, 11. 25-28).
The Examiner concludes that it would have been obvious to combine
the "providing" step and egg cleaning room, as taught by Phillips, and the
egg washing method, including the claimed "producing" and "washing"
steps, as taught by Palmer, with Shanker's method of recycling water, to
recycle the wastewater and re-use the water for poultry processing, such as
in egg washing and in a watering device, to save cost and the environment.
Id. at 3--4.
Appellant contends that the Examiner's proposed combination is
based on impermissible hindsight. Appeal Br. 7. Appellant also contends,
even if the references were combined, the combination would still not result
in the claimed method because each reference fails to disclose or suggest the
"re-use of egg wash effluent for external use, much less as drinking water
for birds within the same facility." Id.
Appellant's contentions are not persuasive. Palmer discloses an egg-
cleaning apparatus comprising conveyor means 1 including input conveyor
belt 6 for supplying eggs from laying batteries or nesting-boxes to cleaning
station 2. Palmer, col. 3, 11. 7-9 and 24--26, Fig. At cleaning station 2, the
eggs are cleaned by a solution of cleaning agent in water from reservoir 3.
Id. col. 3, 11. 9-10. Sprayed solution is collected in tank 33 and then pumped
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to treatment station 4. Id. col. 4, 11. 49--53. At treatment station 4, the water
is recovered and the effluent is placed in effluent tank 36. Id. col. 4, 11. 54--
55, Fig. The recovered water is returned to reservoir 3 for recirculation
through the apparatus. Id. col. 3, 11. 10-13, Fig.
Appellant contends that Palmer fails to disclose or suggest treating the
waste water for "external use," much less supplying waste water as drinking
water to birds within the facility. Appeal Br. 8. To the extent it is
Appellant's position that Palmer, Shanker, or Phillips is required to
explicitly disclose the claimed "supplying" step, we disagree. As stated in
KSR, "the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ." KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398,418 (2007).
Palmer discloses treating egg washing effluent and reusing recovered
water (i.e., "treated effluent") at the facility to clean eggs. The Examiner
determines that Palmer teaches that clean water is necessary in the egg-
cleaning apparatus. Ans. 5. Palmer's disclosure that eggs are supplied to
cleaning station 2 from laying batteries or nesting-boxes (Palmer, col. 3, 11.
7-9 and 24--26) implies or suggests that the source of the eggs, that is, "a
facility configured to produce eggs," is located at an egg processing facility
including the depicted egg-cleaning apparatus. Phillips teaches an egg
producing facility in which drinking water is supplied to birds. See Phillips,
Fig. 1. The Examiner determines that Phillips teaches that clean water
suitable for drinking by birds is necessary at an egg producing facility. Ans.
5. Shanker teaches treating waste water to make it suitable for consumption
by animals.
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Appellant does not apprise us of any error in the Examiner's findings,
or in the Examiner's reasoning that one of ordinary skill in the art would
have relied on Shanker's teaching in the egg processing facility taught by
Phillips and Palmer in order to recycle the wastewater and re-use the water
for egg washing and for consumption by birds "so as to save cost and the
environment." Ans. 5. Thus, we sustain the rejection of claim 8 as
unpatentable over Shanker, Phillips, and Palmer.
Claims 9-11 and 22 over Shanker, Phillips, Palmer, and McKay
Claim 9
Claim 9 depends from claim 8 and recites the steps of "providing raw
water," "treating the raw water to reduce levels of contaminants including
manganese and iron, the treating step producing a byproduct," and
"supplying the treated raw water for use in the egg washing step." Appeal
Br. (Claims App. Al). The Examiner relies on McKay for teaching the
limitations of claim 9. Final Act. 4 ( citing McKay ,r,r 102, 105, 106, 107).
The Examiner concludes that it would have been obvious to include the
steps of claim 9 in the combination of Shanker, Palmer, and Phillips "in
order to recycle the raw water and re-use the water for various poultry
processing[,] such as egg washing and a watering device so as to save cost
and the environment." Id. at 5.
Appellant contends that each applied reference fails to disclose
supplying treated raw water for use in egg washing. Appeal Br. 10. Instead,
Appellant contends, McKay teaches using the treated water for scale control.
Id. (citing McKay ,r 104).
To the extent Appellant is contending that McKay must explicitly
disclose supplying treated raw water for use in egg washing, we disagree.
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See KSR, 550 U.S. at 418. We note Appellant's Specification discloses that
municipal water systems are a traditional source of raw water. See Spec.
,r 3. Palmer discloses that reservoir 3 is fed from a mains water supply 18.
See Palmer, col. 4, 11. 3--4. We understand the Examiner's position to be
that, in the proposed combination, the treated raw water would be used in the
egg washing step, and because the treated raw water contains reduced levels
of contaminants, it would be suitable for recycling and re-use in the poultry
processing facility. We note claim 9 does not recite that the raw water is
treated at the facility. As Appellant's contentions do not apprise us of any
error in the Examiner's findings or reasoning, we sustain the rejection of
claim 9, and of claims 11 and 22, which depend from claim 9 and are not
separately argued, as unpatentable over Shanker, Palmer, Phillips, and
McKay.
Claim 10
Claim 10 depends from claim 9 and recites, "further comprising the
step of treating the byproduct from the raw water treating step together with
the effluent from the egg washing step." Appeal Br. (Claims App. Al
(emphasis added)). The Examiner concludes that it would have been
obvious to one of ordinary skill in the art to include the step of claim 10 in
the method of Shanker, Phillips, Palmer, and McKay, to save cost, time and
the environment, as the treatments could be performed together.
We agree with Appellant that the Examiner has not explained
adequately why one of ordinary skill in the art would have modified the
combination to include the step of claim 10. Appeal Br. 12. For example,
claim 8 recites "treating the effluent [ from the egg washing step] at the
facility to remove contaminants." Accordingly, we construe claim 10 as
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Application 14/092,644
requiring treating the byproduct from the raw water treating step also at the
same facility, in order to meet the limitation "together with the effluent from
the egg washing step." The Examiner has not explained adequately how this
limitation would be met in the combination, or why one of ordinary skill in
the art would have treated the effluent from the egg washing step together
with the byproducts from the raw water treating step. Accordingly, we do
not sustain the rejection of claim 10 as unpatentable over Shanker, Palmer,
Phillips, and McKay.
Claim 12 over Shanker, Phillips, Palmer, and Josse; and
Claim 13 over Shanker, Phillips, Palmer, and Dunn
Appellant does not provide separate argument for patentability for
claim 12 or 13, which depend from claim 8. Accordingly, we sustain the
rejection of claim 12 as unpatentable over Shanker, Phillips, Palmer, and
Josse, and the rejection of claim 13 as unpatentable over Shanker, Phillips,
Palmer, and Dunn.
Claim 20 over Shanker, Phillips, Palmer, and Vian
Claim 20 depends from claim 8 and recites that the method further
comprises the steps of "collecting stormwater runoff from the facility,"
"treating the stormwater runoff at the facility to remove contaminants," and
"supplying the treated stormwater to the birds for consumption." Appeal Br.
(Claims App. Al). The Examiner relies on Vion for teaching a method of
collecting and treating stormwater runoff to remove contaminants, and
supplying the treated stormwater for consumption. Final Act. 7-8 ( citing
Vion, col. 1, 1. 18, col. 5, 11. 42-53). The Examiner concludes that it would
have been obvious to modify the combination of Shanker, Palmer, and
Phillips to include the teachings of Vion "to recycle the storm water and re-
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use the water for various poultry processing such as egg washing and
watering device so as to save cost and the environment." Id. at 8.
Appellant contends that Vion is also silent as to supplying the treated
stormwater to birds for consumption. Appeal Br. 12. To the extent
Appellant is contending that Vion must explicitly disclose supplying the
treated stormwater to birds for consumption, we disagree. See KSR, 550
U.S. at 418. As Appellant's contention for claim 20 does not otherwise
apprise us of error in the Examiner's reasoning for combining the teachings
of Vion with those of Shanker, Palmer, and Phillips to result in the method
recited in claim 20, we sustain the rejection of claim 20.
Claim 21 over Shanker, Phillips, Palmer, Vian, and McKay
Claim 21 depends from claim 20. As Appellant does not provide
separate argument for patentability of claim 21, we sustain the rejection of
this claim as unpatentable over Shanker, Phillips, Palmer, and McKay.
Claim 23 over Palmer, Shanker, Phillips, and Vian
Claim 23 recites limitations similar to those recited in claim 8 and,
additionally, recites limitations as to stormwater collection and treatment.
Particularly, claim 23 additionally recites, among other things, "a
stormwater collector supported within the geographical boundary" defined
by an egg production and processing facility; "collecting, by the plurality of
stormwater drains; stormwater runoff from within the geographical
boundary"; "treating the stormwater runoff to remove contaminants"; and
"supplying the treated effluent and the treated stormwater runoff to the birds
within the at least one hen house for consumption." Appeal Br. (Claims
App. A2).
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Appellant contends that one of ordinary skill in the art would not have
combined Shanker' s water treatment method with Phillips' poultry
processing system, Palmer's egg cleaning method, and Vion's effluent
chemical treatment method to result in the method of recycling egg wash
water recited in claim 23. Appeal Br. 9. As discussed above for claim 8, we
are not persuaded by this contention that one of ordinary skill in the art
would not have combined these teachings of Shanker, Phillips, and Palmer.
Appellant also contends that, even if the applied references were
combined, the combination would still not arrive at the claimed method.
Appeal Br. 9. Appellant contends that none of the applied references
discloses the steps of "washing eggs with water and a cleaning agent, the
washing step producing an effluent," "treating the effluent at the wastewater
treatment facility to remove contaminants," and "supplying the treated
effluent and the treated stormwater runoff to the birds within the at least one
hen house for consumption." Id. However, as discussed above for the
rejection of claim 8, Palmer disclose these "washing" and "treating" steps,
and the Examiner articulated an adequate reason with a rational
underpinning why one of ordinary skill in the art would have combined the
teachings of Shanker, Phillips, and Palmer to meet these "washing" and
"treating" steps, and also "supplying the treated effluent ... to the birds
within the at least one hen house for consumption."
However, Appellant's contentions as to the Examiner's reliance on
Vion are persuasive. Appellant contends that there is no suggestion to use
Vion's water treatment method in combination with the other applied
references to result in the claimed method to treat both egg washer effluent
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and stonnwater runoff, and "supply treated water to birds within the same
egg production and processing facility." Appeal Br. 9.
This contention is persuasive. First, the Examiner does not find that
Palmer or Phillips teaches a stormwater collector or a stormwater storage
device, as claimed. Second, the Examiner does not explain how modifying
Palmer and Phillips to include a stormwater collector having a stormwater
storage device, recycling the stormwater, and re-using the stormwater in a
watering device would "save cost," where the combination of Palmer,
Phillips, and Shanker already provides treated effluent for consumption by
birds in an egg production and processing facility.
Thus, we are persuaded that the Examiner has not provided an
adequate reason with a rational underpinning for combining the teachings of
Vion with those of Shanker, Palmer, and Phillips to result in the method
recited in claim 23. Therefore, we do not sustain the rejection of claim 23 as
unpatentable over Palmer, Shanker, Phillips, and Vion.
Claim 24 over Palmer, Shanker, Phillips, Vian, and Josse;
Claim 25 over Palmer, Shanker, Phillips, Vian, and Dunn; and
Claims 26 and 27 over Palmer, Shanker, Phillips, Vian, and McKay
Claims 24--27 depend from claim 23. The Examiner's reliance on
Josse in rejecting claim 24 (Final Act. 12), Dunn in rejecting claim 25 (id. at
12-13), or McKay in rejecting claims 26 and 27 (id. at 13-14) does not cure
the deficiencies in the rejection of claim 23. Thus, we do not sustain the
rejection of claim 24 as unpatentable over Palmer, Shanker, Phillips, Vion,
and Josse, claim 25 as unpatentable over Palmer, Shanker, Phillips, Vion,
and Dunn, or claims 26 and 27 are rejected as unpatentable over Palmer,
Shanker, Phillips, Vion, and McKay.
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Application 14/092,644
DECISION
We affirm the rejections of claims 8, 9, 11-13, and 20-22, and reverse
the rejections of claims 10 and 23-27.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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