Ex Parte Richards

Patent Trials and Appeals Board

Feb 27, 2019

13348360 - (D) (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/348,360 01/11/2012
39231 7590 03/01/2019
SMITH LAW OFFICE
8517 EXCELSIOR DRIVE, SUITE 402
MADISON, WI 53717
FIRST NAMED INVENTOR
Randall Richards
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.
10004.746 6813
EXAMINER
NGUYEN, SON T
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
03/01/2019 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):
JWS@JSMITHPATENTLAW.COM
paralegal@j smithpatentlaw .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RANDALL RICHARDS
Appeal2017-003758
Application 13/348,360
Technology Center 3600
Before JAMES P. CAL VE, GEORGE R. HOSKINS, and
BRANDON J. WARNER, Administrative Patent Judges.
HOSKINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Randall Richards ("Appellant") 1 appeals under 35 U.S.C. § 134 from
the Examiner's decision rejecting all pending claims 1-5 and 11-15 in this
application. The Board has jurisdiction over the appeal under 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 The Appeal Brief identifies GEA Farm Technologies, Inc., part of GEA
Group Aktiengesellshaft, as the real party in interest. Appeal Br. (filed
Feb. 10, 2016), 3.
Appeal2017-003758
Application 13/348,360
CLAIMED SUBJECT MATTER
Claim 1 illustrates the subject matter on appeal, and it recites:
1. A device to apply a hoof treatment fluid to animal hooves, the
device comprising:
an animal pathway;
a reservoir to contain a hoof treatment fluid;
a sensor to detect the presence of an animal in the animal
pathway;
a sprayer directed toward an anticipated animal hoof location
and in communication with the reservoir;
a recycle compartment positioned to receive hoof treatment
fluid from the sprayer that does not strike the hoof or the animal
pathway; and
a return system to return hoof treatment fluid received in the
recycle compartment to the reservoir.
Claims App. (filed July 5, 2016), 3.
REJECTIONS ON APPEAL
Claims 1-5 and 11-15 stand rejected under 35 U.S.C. § 112, first
paragraph, for lack of written description.
Claims 1, 3-5, 11, and 13-15 stand rejected under 35 U.S.C. § 102(e)
as anticipated by Keller (DE 20 2009 006 076 Ul, pub. Sept. 16, 2010).
Claims 2 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Keller.
ANALYSIS
A. Written Description (claims 1-5 and 11-15)
In appealing the written description rejection, Appellant argues for the
patentability of all claims 1-5 and 11-15 together in one group. See Appeal
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Br. 8-14. Accordingly, we select claim 1 to decide the appeal of the written
description rejection as to all claims. See 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds the Specification does not demonstrate possession
of the limitation in independent claims 1 and 11 reciting that the recycle
compartment receives fluid "that does not strike the hoof or the animal
pathway." Final Act. (dated May 8, 2015), 2-3. The dependent claims are
rejected on the same basis. Id. at 3.
Appellant asserts the Specification demonstrates possession of the
claimed subject matter, because it "describes and depicts the hoof treatment
spray as being directed toward the recycle component, above the pathway
and therefore not striking the animal pathway." Appeal Br. 8-9. Appellant
construes the claim phrase "'does not strike' to ... cover the invention
described throughout the [S]pecification, which is the recovery of spray that
reaches the recycling compartment unobstructed." Id. at 9 ( emphasis
added). In support of these contentions, Appellant cites various disclosures
in the Specification. Id. at 9-12 (citing Spec. 3:22--4:3, 12:20-22, 13:3-5,
15: 14--19, Figs. 3 & 6). Appellant asserts the Specification uses the terms
"pathway" and "floor" interchangeably, to refer to the walking surface that
supports the animal as it walks through the device. Id. at 12 ( citing
Spec. 3 :20-21, 4:2-3).
The Examiner explains that, while the Specification indicates "the
fluid sprayed from the sprayer does not strike the FLOOR or the WALKING
SURFACE," nonetheless "the floor or the walking surface is not being
claimed because the claim calls for the fluid sprayed from the sprayer does
not strike the animal pathway." Final Act. 6. The Examiner construes the
term "pathway" as "merely a path or a route that includes any space above
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Application 13/348,360
the floor, and it is not the same as a floor." Id. (italics added); Ans. 2. The
Examiner's position is that, in Appellant's Figures 3 and 6, fluid streams 51
and 83 "appear to strike or travel across the pathway," so those Figures
"contradict what is being claimed." Final Act. 6; Ans. 4.
Appellant replies that the Examiner's construction of the claim term
"pathway" to encompass an empty space above a floor is unreasonably
broad, particularly when read in conjunction with the claim term "strike,"
which a dictionary defines as "hit forcibly and deliberately." Reply Br. 2-3.
We, first, determine that the Examiner's claim construction of the
term "animal pathway" is consistent with the Specification. 2 See In re Am.
Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (during
examination of a patent application, pending claims are given their broadest
reasonable construction consistent with the Specification). Starting with the
claim language, claim 1 pertinently recites the device comprises "an animal
pathway"; "a sensor to detect the presence of an animal in the animal
pathway"; and a recycle compartment that receives fluid "that does not
strike . .. the animal pathway." Claims App. 3 (emphases added). In
reciting that the animal may be present "in" the animal pathway, the claim
language supports the Examiner's interpretation that the animal pathway
includes the space through which the animal passes as the animal moves
through the device. If the animal pathway were limited to the floor of the
device, as Appellant contends, then the claim would instead have recited a
2 The issue presented by the arguments on appeal is the proper claim
construction of the term "animal pathway," in light of the Specification.
Appellant does not assert the Examiner's construction fails to comport with
the broadest reasonable construction. See Appeal Br. 8-16; Reply Br. 2-5.
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Application 13/348,360
sensor to detect the animal "on" the animal pathway. See also Spec. 7: 17-
19 ("sensor 16 senses the presence of an animal by detecting the animal
itself of an ear tag or other such device"), 8: 19-9: 12 ("sensor 16 can be a
photoelectric sensing system that is activated when the animal breaks a beam
of light," or "a wand type sensor ... tripped when an animal bends or pivots
the wand").
The Specification similarly indicates the "hoof treatment device is
placed in a pathway for an animal such that the animal can pass across it
when it walks." Spec. 3:20-21 (emphasis added); id. at 5:14--15
(substantially same disclosure in connection with device 100). These
passages refer to an animal pathway that exists independently of the device,
wherein the device is "placed in" the animal pathway so the animal passes
"across" the device when it walks. Thus, they do not correspond directly to
the animal pathway of claim 1, because they describe a pathway into which
the device is placed, rather than a device that includes an animal pathway.
Nonetheless, they are consistent with the Examiner's claim construction of
"animal pathway" as including the space through which the animal passes as
it walks, and not just the surface that supports the animal as it walks.
We have reviewed the other portions of the Specification cited by
Appellant, and we find no support therein for Appellant's position that
"pathway" is used interchangeably with "floor." The Specification indicates
"overspray" that "does not strike the hoof' "is directed above the animal
walking surface," but it does not equate the walking surface or floor to the
animal pathway. Spec. 4:1-3; id. at 12:20-22 ("stream 51 sprays above the
floor between the sprayer compartment 1 and the recycle compartment 2
when unobstructed"), 13:3-5, 15: 14--19.
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Based on the foregoing considerations, we agree with the Examiner's
construction of the claimed "fluid ... that does not strike the hoof or the
animal pathway" to mean that the fluid does not strike the hoof, or strike the
space through which the animal passes as the animal moves through the
device.
We acknowledge that it is difficult to imagine a device in which the
fluid can contact the animal's hoof, and thereby achieve the hoof treatment
result of Appellant's invention, without the fluid first striking the space
through which the animal passes as the animal moves through the device.
See Spec. 1:16-17, 3:12-14. In this regard, however, we note that claim 1
does not entirely preclude the hoof treatment fluid from striking the hoof or
animal pathway at all. The claim, more narrowly, specifies that the "recycle
compartment [is] positioned to receive" fluid that does not strike the hoof or
the animal pathway. Claims App. 3. Some fluid is free to strike the hoof, so
long as the recycle compartment is positioned to receive fluid that does not
strike the hoof or the animal pathway. See id. Thus, this construction of
claim 1 does not result in an inoperative device.
We conclude that Appellant's Specification does not demonstrate
possession of the invention recited in claim 1, as construed above. For
example, Figure 3 reflects fluid stream 51 is received by recycle
compartment 2 only after stream 51 strikes the space through which the
animal passes as the animal moves through the device. See Spec., Figs. 1-3,
5: 14---6:2, 7:22-8: 1, 9: 18-21, 12: 17-13: 11. Similarly, Figure 6 reflects fluid
streams 82, 83 are received respectively within recycle areas 85, 84 only
after the streams strike the space through which the animal passes as the
animal moves through the device. See id. at 15: 14--19.
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Application 13/348,360
Accordingly, we sustain the written description rejection of claims 1-
5 and 11-15.
B. Anticipation by Keller (claims 1, 3-5, 11, and 13-15)
Claims 1 and 3-5
In rejecting independent claim 1, the Examiner finds Keller discloses
a hoof treatment fluid sprayer in which a recycle compartment is positioned
to receive fluid that does not strike the hoof or the animal pathway. Final
Act. 3 ( citing the English-language translation of Keller entered into the
record by Appellant on July 31, 2012 ("Keller") ,r,r 27-28).
Appellant contends Keller does not disclose such a recycle
compartment. Appeal Br. 14--16. According to Appellant, Keller's
apparatus "requires the hoof treatment chemicals to contact the animal
pathway," because the bottom of Keller's apparatus collects "all spray ...
whether or not it strikes the hoof' or "the animal pathway." Id. at 15-16.
The Examiner responds that:
There is no indication in the claimed limitation that the fluid is
received in the recycle compartment directly from the sprayer;
thus, anywhere that the recycle compartment is positioned, the
recycle compartment will receive unused or overspray fluid from
the sprayer that does not strike the hoof or the animal pathway
because all fluids will eventually be received in the recycle
compartment for recycling.
Ans. 5-7. The Examiner finds Keller discloses such a recycle compartment,
because "the fluid is recycled through pump E with filter F and returned
back into the cycle in compartment of reservoir K," any one of which "can
be considered a recycled compartment" as recited in claim 1. Id. at 6, 7.
Appellant in reply maintains that Keller's pump E, filter F, and
reservoir K are not "positioned to receive fluid that does not strike a pathway
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or an animal," as claimed, "because they all receive fluid that has been on
the pathway, at least, and possibly an animal hoof as well." Reply Br. 4.
Appellant's view is that Keller "only collects contaminated fluid after it
strikes some surface of the apparatus and flows down to the pathway where
it drains into a recycle compartment." Id. at 4--5. Appellant asserts such a
"flow path causes the fluid to be contaminated with the manure, dirt, and
other debris," which "is the very problem solved by the present invention"
and therefore is excluded "in any reasonable interpretation of the claims."
Id. at 5 (citing Spec. 13:20-23).
We understand that the Examiner construes claim 1 to encompass a
device in which the recycle compartment receives (a) fluid that strikes the
hoof or the animal pathway, so long as the recycle compartment also
receives (b) fluid that does not strike the hoof or the animal pathway. See,
e.g., Ans. 5---6, 8-9. Even applying the Examiner's claim construction,
however, we determine a preponderance of the evidence does not support
the Examiner's finding that Keller's device has a recycle compartment that
receives (b) fluid that does not strike the hoof or the animal pathway. As
construed above, claim 1 in this regard requires the recycle compartment to
receive fluid that does not strike the hoof or the space through which the
animal passes as the animal moves through the device.
Keller's Figure 3 illustrates that nozzles I, which spray the hoof
treatment fluid, are placed within lattice H, which "serves as a running
surface for the" animals. Keller, Fig. 3, ,r 24. It is not readily apparent to us,
and the Examiner does not explain, exactly where or how Keller's device
collects and recycles the hoof treatment fluid sprayed from nozzles I. It is
clear that the fluid is recycled through pump D and/or pump E. See id.
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,r,r 26-28. What is not clear, however, is what path(s) the liquid follows in
between exiting nozzles I and entering pump D and/or pump E. See id.
Figs. 1--4. Given that lack of clarity in the Keller disclosure, the Examiner's
finding-that the recycled fluid will necessarily include (b) fluid that does
not strike the space through which the animal passes as the animal moves
through the device-is not supported by a preponderance of the evidence.
The Examiner's finding requires that there is some pathway for fluid exiting
nozzles I to be recycled from the animal treatment area without striking the
space through which the animal passes. We see no support for such a
finding in the Keller disclosure.
Thus, we do not sustain the rejection of claim 1 as anticipated by
Keller. The Examiner's additional consideration of dependent claims 3-5
does not cure the noted deficiency concerning claim 1. See Final Act. 3--4.
Thus, we likewise do not sustain the rejection of those claims as anticipated
by Keller.
Claims 11 and 13-15
Independent claim 11, similarly to claim 1, recites a recycle
compartment for receiving a sprayed chemical "that does not contact an
animal hoof or the animal pathway." Claims App. 5. The Examiner's
rejection of claim 11 is likewise substantially similar to the rejection of
claim 1. See Final Act. 4. Therefore, for the reasons provided above in
connection with claim 1, we do not sustain the rejection of claim 11 as
anticipated by Keller. The Examiner's additional consideration of
dependent claims 13-15 does not cure the noted deficiency concerning
claim 11. See id. Thus, we likewise do not sustain the rejection of those
claims as anticipated by Keller.
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C. Obviousness over Keller (claims 2 and 12)
The Examiner's additional consideration of dependent claims 2 and
12 does not address the deficiency of Keller noted above in relation to
independent claims 1 and 11. See Final Act. 5. Therefore, for the reasons
provided above, we do not sustain the rejection of claims 2 and 12 as having
been obvious over Keller.
DECISION
The rejection of claims 1-5 and 11-15 for lack of written description
is AFFIRMED.
The rejections of claims 1, 3-5, 11, and 13-15 as anticipated by
Keller, and of claims 2 and 12 as unpatentable over Keller, are REVERSED.
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
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