Ex Parte PETERSON

Patent Trials and Appeals Board

Apr 24, 2019

14850335 - (D) (P.T.A.B. Apr. 24, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/850,335 09/10/2015 RANDALL PETERSON
21658 7590 04/26/2019
SHA VER & SW ANSON, LLP
P.O. BOX877
BOISE, ID 83701-0877
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.
PETElOl 6405
EXAMINER
ZHOU, QINGZHANG
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
04/26/2019 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):
bob@shaverswanson.com
amy@shaverswanson.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RANDALL PETERSON
Appeal2018-001545
Application 14/850,33 51
Technology Center 3700
Before ANTON W. PETTING, BRUCE T. WIEDER, and
BRADLEY B. BAY AT, Administrative Patent Judges.
WIEDER, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner's rejection of claims 1, 2, 4, 5, 7, and 8. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Appellant's invention "relates to irrigation tools, and more
specifically to support structures for stabilizing irrigation risers." (Spec.
1 According to Appellant, the real party in interest is Randall Peterson.
(Appeal Br. 1.)
Appeal2018-001545
Application 14/850,335
Claim 1 is the sole independent claim on appeal. It recites:
1. An irrigation riser support stake, for stabilizing an
irrigation riser with an attached sprinkler head from rotation
around a water pipe, said riser support stake comprising:
a stake body, comprising a planar and elongate shaft with
a first end and a second end, with said first end forming a point
for soil penetration, and with said shaft having one or more
support ribs attached along the long axis;
a foot pad at the second end of said stake body, configured
for pushing or hammering said riser support stake by a user into
the soil;
an extension piece attached at an angle to the stake body
at the second end of said stake body, said extension piece having
a first end attached to said stake body, and a second end attached
to a bracket formed from two flat side pieces and a flat bottom
portion, which form a U when seen from the second end of said
stake body, with said bracket configured for limiting movement
of said riser in at least two directions.
REJECTIONS
Claims 1, 2, 4, and 7 are rejected under 35 U.S.C. § 103 as
unpatentable over Christen (US 5,158,231, iss. Oct. 27, 1992) and Corbett
(US 2004/0089739 Al, pub. May 13, 2004).
Claim 2 is also rejected under 35 U.S.C. § 103 as unpatentable over
Christen, Corbett, and Nelson (US 1,058,090, iss. Apr. 8, 1913).
Claims 5 and 8 are rejected under 35 U.S.C. § 103 as unpatentable
over Christen, Corbett, and Dean (US 5,687,909, iss. Nov. 18, 1997).
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Appeal2018-001545
Application 14/850,335
ANALYSIS
Appellant's declarations
Appellant filed a document titled"§ 1.132 Declaration of Randall
Peterson" on March 10, 2016, containing 27 numbered paragraphs
(hereinafter "Declaration I"). Appellant filed a document titled "§ 1.132
Declaration of Randall Peterson" on August 26, 2016, containing 28
numbered paragraphs (hereinafter "Declaration II"). Appellant filed a
document titled "37 CPR§ 1.132 Declaration of Randall Peterson In Support
of Appeal Brief' on March 22, 2017, containing 34 numbered paragraphs
(hereinafter "Declaration III"), the same date on which the Appeal Brief was
filed.
Section 1.132 provides: "When any claim of an application ... is
rejected or objected to, any evidence submitted to traverse the rejection or
objection on a basis not otherwise provided for must be by way of an oath or
declaration under this section." Section 1. 68 provides:
Any document to be filed in the Patent and Trademark
Office and which is required by any law, rule, or other regulation
to be under oath may be subscribed to by a written declaration.
Such declaration may be used in lieu of the oath otherwise
required, if, and only if, the declarant is on the same document,
warned that willful false statements and the like are punishable
by fine or imprisonment, or both (18 U.S.C. 1001) and may
jeopardize the validity of the application or any patent issuing
thereon. The declarant must set forth in the body of the
declaration that all statements made of the declarant's own
knowledge are true and that all statements made on information
and belief are believed to be true.
Neither Declaration I nor Declaration II meet the requirements set
forth in § 1.68. In particular, neither Declaration I nor Declaration II "set[ s]
forth in the body of the declaration that all statements made of the
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Application 14/850,335
declarant's own knowledge are true and that all statements made on
information and belief are believed to be true." In other words, neither is a
proper declaration under our regulations. Therefore, we consider neither as
proper declarations under§ 1.132. It follows that we do not consider the
recitations contained in these non-compliant documents as evidence in this
appeal. Additionally, we note that while the Examiner did not explicitly
reject either Declaration I or Declaration II, the record does not show that
the Examiner considered either to be a proper declaration under§ 1.132.
Declaration III, submitted with the Appeal Brief, includes, for the first
time, the following statement:
The undersigned, being hereby warned that willful false
statements and the like so made are punishable by fine or
imprisonment, or both, under 18 U.S.C. 1001, and that such
willful false statements may jeopardize the validity of the
application or any resulting registration, declares that the facts
set forth in the application [sic] are true; all statements made of
his own knowledge are true; and all statements made on
information and belief are believed to be true."
(Declaration III 7-8.)
Section 41.3 7 ( c )(2) recites, in relevant part, that "[a] brief shall not
include ... any new or non-admitted affidavit or other Evidence. See
§ 1.116 of this title for treatment of ... affidavits or other evidence filed
after final action but before or on the same date of filing an appeal." Section
1.116(e) recites:
An affidavit or other evidence submitted after a final
rejection or other final action(§ 1.113) in an application ... but
before or on the same date of filing an appeal ( § 41.31 or § 41. 61
of this title), may be admitted upon a showing of good and
sufficient reasons why the affidavit or other evidence is
necessary and was not earlier presented.
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Application 14/850,335
Even if Declarations I and II were proper declarations under our
regulations, Declaration III, on its face, differs from both Declaration I and
Declaration II, i.e., it is a new declaration and, thus, improper under
§ 4I.37(c)(2). Additionally, Appellant does not argue why Declaration III
should be admitted as evidence in this appeal, i.e., Appellant does not show
"good and sufficient reasons why the affidavit or other evidence is necessary
and was not earlier presented." (See 37 CPR§ 1.116(e)). Therefore, we do
not consider Declaration III to be admitted as evidence in this appeal, and
we do not consider the recitations contained in the document as evidence in
this appeal.
The § 103 reiections
Appellant argues that Christen is non-analogous art. (Appeal Br. 8-
9.) Specifically, Appellant argues that "Applicant's device solves a
longstanding problem of how to reliably and efficiently stabilize irrigation
risers used in commercial industrial farming. Thus, the pertinent art field is
that of solid set irrigators, not drip irrigators." (Id. at 5.) Appellant further
argues that Christen is "directed to drip irrigation" and that
the problem facing solid set irrigators in commercial irrigation is
an entirely different world than that facing drip irrigators. Solid
set irrigation is set up and moved constantly, often being set up
in one position for no more than a day or part of a day. This is
different from drip irritation, where the sprinklers are
permanently set adjacent to a grape plant, a fruit tree, or
shrubbery in a yard of [sic] planter.
(Id. at 8.) Thus, Appellant argues, "[n]ot only is the world of drip-irrigators
a different field of endeavor, the world of drip-irrigators cannot be said to be
'reasonably pertinent' to the problem Applicant faced." (Id. at 9.)
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Application 14/850,335
The Examiner answers that "[ t ]he claimed invention is an irrigation
riser support stake, NOT solid set irrigators. All of the art cited by the
Examiner relate to an irrigation riser support stake. Therefore, all of the art
cited by the Examiner are analogous art." (Answer 7 .)
Two criteria have evolved for determining whether prior art is
analogous: (1) whether the art is from the same field of endeavor,
regardless of the problem addressed, and (2) if the reference is
not within the field of the inventor's endeavor, whether the
reference still is reasonably pertinent to the particular problem
with which the inventor is involved.
In re Clay, 966 F.2d 656, 658-59 (Fed. Cir. 1992).
Appellant's Specification is titled "Irrigation Riser Support Stake."
(Spec. 1.) Appellant's Specification discloses that "[ t ]he presently disclosed
technology relates to irrigation tools, and more specifically to support
structures for stabilizing irrigation risers." (Spec. ,r 2.) Appellant's
Specification further discloses
that there is no intention to limit the inventive concept(s) to the
specific form disclosed, but, on the contrary, the presently
disclosed and claimed inventive concept(s) is to cover all
modifications, alternative constructions, and equivalents falling
within the spirit and scope of the inventive concept(s) as defined
in the claims.
(Id. ,I 17.)
Christen's "invention relates generally to irrigation sprinklers, and
more particularly to a new and improved low volume mini-sprinkler
irrigation stake assembly." (Christen, col. 1, 11. 7-9.) Christen discloses that
"[t]he present invention provides a new and improved mini-sprinkler stake
assembly which can be quickly and easily adapted for use in a wide variety
of applications." (Id. at col. 2, 1. 67 - col. 3, 1. 1.) Christen also discloses:
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While the present invention has been illustrated and described in
connection with the presently preferred embodiment, it will be
readily apparent to those skilled in the art that various changes
and modifications can be made without departing from the spirit
and scope of the invention as defined by the appended claims.
(Id. at col. 12, 11. 38--43.)
Based on the title of Appellant's application and the disclosures in
Appellant's Specification, as discussed above, it is clear that the field of
Appellant's endeavor is irrigation sprinklers and, in particular, support
stakes for irrigation risers. (Spec. Title, ,r 2.) Christen also is clearly in the
field of irrigation sprinklers, albeit mini-sprinklers, and, in particular,
support stakes for mounting the sprinkler units. (Christen, Abstract.)
Although Appellant argues that "the problem facing solid set irrigators in
commercial irrigation is an entirely different world than that facing drip
irrigators" (Appeal Br. 8), Appellant does not indicate how the claims are
limited to solid set irrigators in commercial irrigation systems. Nor does
Appellant persuasively argue why Appellant's field of endeavor is not
irrigation systems, and, in particular, irrigation riser support stakes. And
both Appellant's claimed invention and the disclosure in Christen relate to
irrigation systems, and, in particular, irrigation riser support stakes.
Therefore, we are not persuaded that the Examiner erred in finding
that Christen is analogous art, i.e., that it is at least in the same field of
endeavor, regardless of the problem being addressed.
Appellant's other arguments rely on evidence that, for the reasons
discussed above, is not properly before us. (See Appeal Br. 4--8, 9--12.) We
do not find the unsupported arguments persuasive of error.
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DECISION
The Examiner's rejections of claims 1, 2, 4, 5, 7, and 8 under
35 U.S.C. § 103 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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