Ex Parte PETERSEN

Patent Trial and Appeal Board

Sep 28, 2018

14920904 (P.T.A.B. Sep. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/920,904 10/23/2015
32894 7590 10/02/2018
HOYNG ROKH MONEGIER LLP
Rembrandt Tower 31st Floor
Amstelplein 1
Amsterdam, 1096 HA
NETHERLANDS
FIRST NAMED INVENTOR
Gerth PETERSEN
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.
04132.0178.USCl 8034
EXAMINER
CLERKLEY, DANIELLE A
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
10/02/2018 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):
amdocketing@hoyngrokh.com
ronny.amirsehhi@hoyngrokh.com
david.owen@hoyngrokh.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GERTH PETERSEN
Appeal2018-000875
Application 14/920,904
Technology Center 3600
Before ANNETTE R. REIMERS, FRANCES L. IPPOLITO, and
BRENT M. DOUGAL, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Gerth Petersen (Appellant) 1 appeals under 35 U.S.C. § 134(a) from
the Examiner's decision to reject under 35 U.S.C. § 103(a): (1) claims 17,
18, and 20-22 as unpatentable over Oosterling (US 5,782,199, issued July
21, 1998) and Siddell (US 2011/0308465 Al, published Dec. 22, 2011); and
(2) claim 19 as unpatentable over Oosterling, Siddell, and Brown (US
4,000,718, issued Jan. 4, 1977). Claims 23-25 have been withdrawn from
consideration. Claims 1-16 have been canceled. We have jurisdiction under
35 U.S.C. § 6(b).
1 LEL Y PA TENT N. V. is indicated as the "real party in interest" of the subject
application. Appeal Brief 2 (hereinafter "Appeal Br.") (filed May 23, 2017).
Appeal2018-000875
Application 14/920,904
We REVERSE.
CLAIMED SUBJECT MATTER
The claimed subject matter "relates to an implement for keeping dairy
animals." Spec. ,r 2.
Claim 1 7, the sole independent claim on appeal, is representative of
the claimed subject matter and recites:
17. An implement for keeping dairy animals, comprising:
an accommodation area for a production group, the
production group comprising a group of lactating dairy animals,
at least one segregation area, separated from the
accommodation area, for dairy animals to be segregated from the
production group,
a first milk box,
a second milk box,
a control unit, and
a controllable passage which is provided between the first
and second milk boxes, wherein the controllable passage
comprises gates controlled by the control unit,
wherein the control unit is programmed so as to control the
gates of the controllable passage in such a manner that if the
second milk box accommodates a dairy animal which is to be
segregated, said dairy animal to be segregated is led from the
second milk box, via the controllable passage and through the
first milk box, to the segregation area.
2
Appeal2018-000875
Application 14/920,904
ANALYSIS
Obviousness over Oosterling and Siddell
Claims 17, 18, and 20-22
Independent claim 17 is directed to an implement for keeping dairy
animals including a segregation area, a first milk box, a second milk box, a
control unit, and a controllable passage "provided between the first and
second milk boxes [and] compris[ing] gates controlled by the control unit,"
wherein the control unit controls the gates of the controllable passage such
that "if the second milk box accommodates a dairy animal which is to be
segregated, said dairy animal to be segregated is led from the second milk
box, via the controllable passage and through the first milk box, to the
segregation area." Appeal Br. 16, Claims App. The Examiner finds that
Oosterling discloses a segregation area 4, a first milk box 5', a second milk
box 5", a control unit 25, "a controllable passage (defined by a path of travel
from gate 23 to areas 1-4) which is provided between the first and second
milk boxes, wherein the controllable passage comprises gates (21, 22)
controlled by the control unit" and the control unit wherein clause of claim
17. See Final Act. 2-3 (citing Oosterling, 3:21-23, 26-28, Figure). 2,3
Appellant contends that "[ t ]he controllable passage of claim 1 7
creates a path for a specific purpose: leading the animal from the second
milk box through the first milk box to the segregation area." Appeal Br. 9.
In particular, Appellant contends that "the identified cow [in Oosterling]
enters gate 23, gate 21 opens while gate 22 is closed. The cow leaves the
2 Final Office Action (hereinafter "Final Act.") (dated Sept. 28, 2016).
3 The Examiner relies on the teachings of Siddell for disclosure of a
"programmable controller." See Final Act. 3--4.
3
Appeal2018-000875
Application 14/920,904
milk box following pathway Bl to C2 to be segregated." Id. at 14; see also
id. at 6-7, Oosterling, Figure. As such, according to Appellant, "[ t ]here is
no disclosure at all [in Oosterling] that the same cow to be segregated and
that was in the second milk box can enter the first milk box." Id. at 14.
"The broadest reasonable interpretation of a system claim having
structure that performs a function, which only needs to occur if a condition
precedent is met, still requires structure for performing the function should
the condition occur." Ex parte Schulhauser (Appeal No. 2013-007847
(PTAB April 28, 2016) (precedential)). This is because the structure for
performing the function is present in the system regardless of whether the
condition is met and the function is actually performed. Id. "Thus, in order
to show anticipation or obviousness [for] ... a claim reciting structure that
performs a function tied to a condition precedent, the Examiner must cite
prior art that discloses or renders obvious such structure." Id.
As an initial matter, similar to the subject invention, a shared
controllable passage, C2, to segregation area 4 is provided between first and
second milk boxes 5' and 5" of Oosterling. Compare Oosterling, Figure and
the dashed line in Figure 3 of the subject invention; see also Oosterling,
3:49--54; Spec. ,r 47; Final Act. 3. Further, under the broadest reasonable
interpretation, controllable passage, C2, includes gates 21, 22 that are
controlled by control unit 25. See Oosterling, 3:21-23, Figure; see also
Final Act. 3. 4 However, Oosterling fails to disclose that a "dairy animal to
4 Claim 17 merely requires that "the controllable passage comprises gates" not
that the controllable passage comprises gates "located between the first and
second milk boxes." See Appeal Br. 16, Claims App.; see also id. at 9--10,
12. In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (Limitations not appearing
in the claims cannot be relied upon for patentability).
4
Appeal2018-000875
Application 14/920,904
be segregated is led from the second milk box, via the controllable passage
and through the first milk box, to the segregation area." Appeal Br. 16,
Claims App. ( emphasis added). Rather, Oosterling merely discloses that
"the cow [to be segregated] will then leave milking stall 5' in a direction
C2." Oosterling, 3:49--54, Figure. There is no discussion in Oosterling of
the cow to be segregated going from one milk box and through another milk
box to reach segregation area 4. See id.; see also Reply Br. 6 ("With
Oosterling, a dairy animal which is to be segregated, when accommodated in
the second milk box 5', is led from the second milk box 5', not through the
first milk box 5 11 , but next to and past the first milk box 5 11 to the
segregation area."). 5
Further, the Examiner fails to provide sufficient evidence or technical
reasoning to establish that a cow to be segregated in Oosterling necessarily
goes from one milk box and through another milk box to reach segregation
area 4. See Final Act. 2-3; see also Ans. 5-7; id. at 7 (The Examiner's
annotated version ofOosterling's Figure). 6 We agree with Appellant that
"[ t ]he path indicated by dashed arrows in the annotated figure referred to by
the Examiner is not disclosed nor suggested by Oosterling." Reply Br. 6.
As such, the Examiner fails to establish by a preponderance of the evidence
that Oosterling discloses or renders obvious the claimed control unit.
Accordingly, we do not sustain the Examiner's rejection of claims 17,
18, and 20-22 as unpatentable over Oosterling and Siddell.
5 Reply Brief (hereinafter "Reply Br.") (filed Nov 3, 2017).
6 Examiner's Answer (hereinafter "Ans.") (dated Sept. 8, 2017).
5
Appeal2018-000875
Application 14/920,904
Obviousness over Oosterling, Siddell, and Brown
Claim 19
The Examiner does not rely on Brown to remedy the deficiencies of
Oosterling. See Final Act. 5. Accordingly, for reasons similar to those
discussed above for claim 17, we do not sustain the Examiner's obviousness
rejection of claim 19 as unpatentable over Oosterling, Siddell, and Brown.
DECISION
We REVERSE the decision of the Examiner to reject claims 17-22
under 35 U.S.C. § 103(a).
REVERSED
6