Ex Parte Straeter

Patent Trial and Appeal Board

Jun 28, 2018

13591293 (P.T.A.B. Jun. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/591,293 08/22/2012
34082 7590 07/02/2018
ZARLEY LAW FIRM P.L.C.
CAPITAL SQUARE
400 LOCUST, SUITE 200
DES MOINES, IA 50309-2350
FIRST NAMED INVENTOR
James E. Straeter
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.
P07591USO 6705
EXAMINER
NGUYEN, MAI T
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
07/02/2018 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):
kconrad@zarleylaw.com
crasmussen@zarleylaw.com
emarty@zarleylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES E. STRAETER
Appeal2017-009516
Application 13/591,293
Technology Center 3600
Before JOHN C. KERINS, EDWARD A. BROWN, and
ANNETTE R. REIMERS, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
James E. Straeter (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner's final decision rejecting claims 8 and 24--32. 1 We have
jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 Claims 1-7 and 11-23 are withdrawn from consideration. See Response
dated July 9, 2014. Claims 9 and 10 are canceled. See Amendment dated
April 15, 2015.
Appeal2017-009516
Application 13/591,293
CLAIMED SUBJECT MATTER
Appellant's invention relates to a chopper assembly for a harvesting
implement. Spec. p. 1, 11. 4---6.
Claims 8 and 29 are independent. Claim 8 is illustrative of the
claimed invention and reads as follows:
8. A chopping assembly for a farm implement, comprising:
a crop picking head mounted on a frame;
the crop picking head having a folding portion and a non-
folding portion;
the crop picking head having a crop picking assembly;
the crop picking head having a chopping assembly
positioned below the crop picking head;
the chopping assembly having a first housing mounted to
the folding portion of the crop picking head having an input port
and an outlet port which connects to an exhaust channel;
a blade assembly partially disposed within the first
housing and positioned to cut a crop received within the input
port to supply stover to the exhaust channel; and
a folded conveyor portion removably connected to a non-
foldable primary conveyor and positioned below a com picking
auger to receive stover from the exhaust channel.
THE REJECTIONS
The Examiner has rejected:
(i) Claims 8, 24--27, and 29 under 35 U.S.C. § 103(a) as being
unpatentable over Straeter (US 7,856,800 B2, issued Dec. 28, 2010) in view
of Richardson (US 5,673,543, issued Oct. 7, 1997);
(ii) Claims 28, 31, and 32 under 35 U.S.C. § 103(a) as being
unpatentable over Straeter in view of Richardson and Johnston (US
1,979,470, issued Nov. 6, 1934); and
2
Appeal2017-009516
Application 13/591,293
(iii) Claim 30 under 35 U.S.C. § 103(a) as being unpatentable over
Straeter in view of Richardson and Deutsch (US 4,875,330, issued Oct. 24,
1989).
ANALYSIS
Claims 8, 24-27, and 29--0bviousness--Straeter and Richardson
The Examiner finds that Straeter discloses an assembly for a farm
implement comprising a crop picking head ( com head 12), a chopping
assembly 24 having an exhaust channel, and a conveyor 54 positioned below
a com picking auger 22 to receive stover from the exhaust channel. Final
Act. 2-3 (citing Straeter, Figs. 1--4). The Examiner acknowledges that
Straeter fails to disclose that the crop picking head has a folding portion and
a non-folding portion and that the conveyor has a folded conveyor portion
and a non-foldable primary conveyor. Id. at 3. The Examiner finds that
Richardson discloses a foldable com header having foldable portions ( outer
frame portions 34, 34 ') and a non-foldable portion (fixed frame 32). Id.
(citing Richardson, Fig. 1, col. 5, 11. 5-15). The Examiner concludes that it
would have been obvious to modify the assembly of Straeter to separate the
crop picking head and the conveyor into folding and non-folding portions, as
taught by Richardson, to reduce the width of the com header for travel over
public roads. Id. ( citing Richardson, col. 4, 11. 52-54).
Appellant contends that neither Straeter nor Richardson discloses a
foldable conveyor portion. Appeal Br. 2-3. Appellant argues that
Richardson discloses a crop picking head having foldable features but is
silent as to a separate conveyor. Id. at 3 (citing Richardson, col. 5, 11. 5-11).
As such, Appellant contends that the articulated reason to modify the
3
Appeal2017-009516
Application 13/591,293
assembly of Straeter lacks rational underpinning. Id. Appellant also
contends that the Examiner's rationale for combining the teachings of
Straeter and Richardson is improperly based on Appellant's own disclosure.
Id. at 4.
The Examiner responds by taking the position that, because a crop
picking head and a conveyor are transverse elements, i.e., are elements that
are positioned such that they extend width-wise relative to the direction of
travel of the farm implement, it would be necessary to separate both the crop
picking head and the conveyor into folding and non-folding portions in order
to effectively reduce the width of the assembly for traveling over roads.
Ans. 8. In addressing Appellant's argument that Richardson does not teach
a conveyor having a foldable portion, the Examiner reasons that folding a
crop picking head without folding the conveyor, presumably with reference
to the Straeter device, would defeat the purpose of folding anything at all.
Id. In other words, the Examiner takes the position that both the crop
picking head and the conveyor must be folded in order for the assembly to
travel over the roads.
The Examiner's position is based on an underlying premise that the
conveyor 54 of Straeter must have a dimension requiring that it be folded in
order for the assembly to travel over the roads. Straeter does not disclose,
and the Examiner fails to provide evidence that, conveyor 54 extends
transversely to a width that would prevent travel over roads. Straeter
mentions in passing that com head 12 is to have a plurality of gathering
shoes, thus implying that the com head will have some transverse extent, but
even that does not amount to a disclosure that the com head would require
folding in order to travel on roads. Straeter, 2:5-7. Beyond that, Straeter
4
Appeal2017-009516
Application 13/591,293
contains no disclosure that the conveyor therein would span substantially the
entire width of its com head. See Straeter, passim. As such, the articulated
reason to modify the assembly of Straeter, namely to provide the crop
picking head and conveyor with foldable portions, lacks rational
underpinnings.
The rejection of claims 8 and 29, and of claims 24--27 depending
therefrom, is not sustained.
Claims 28, 31, and 32--0bviousness--Straeter, Richardson, and Johnston
Claim 3 0--0bviousness--Straeter, Richardson, and Deutsch
The Examiner does not rely on Johnston and Deutsch in any manner
that would remedy the above-noted deficiency in the rejection of claims 8
and 29, from which claims 28 and 30-32 depend therefrom, over Straeter
and Richardson. Final Act. 5-7. For the same reasons discussed supra, we
do not sustain the obviousness rejections of claims 28 and 30-32.
DECISION
The rejections of claims 8 and 24--32 are reversed.
REVERSED
5