Ex Parte ViaudDownload PDFPatent Trial and Appeal BoardFeb 3, 201612849362 (P.T.A.B. Feb. 3, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/849,362 08/03/2010 30689 7590 02/03/2016 DEERE & COMPANY ONE JOHN DEERE PLACE MOLINE, IL 61265 FIRST NAMED INVENTOR Jean Viaud 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. 01039-US 7717 EXAMINER TROOST, AARON L ART UNIT PAPER NUMBER 3668 MAILDATE DELIVERY MODE 02/03/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JEAN VIAUD Appeal2013-010980 Application 12/849,362 1 Technology Center 3600 Before STEFAN STAICOVICI, BRANDON J. WARNER, and FREDERICK C. LANEY, Administrative Patent Judges. ST AI CO VICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Jean Viaud (Appellant) appeals under 35 U.S.C. § 134(a) from the Examiner's final decision rejecting claims 1-11. Claim 12 has been canceled. Br. 1. We have jurisdiction over this appeal under 35 U.S.C. § 6(b ). SUMMARY OF DECISION We AFFIRM. According to Appellant, the real party in interest is Deere & Company. Br. 1 (filed Apr. 26, 2013). Appeal2013-010980 Application 12/849,362 INVENTION Appellant's invention relates "to a device for monitoring the correct functioning of a crop pick-up mechanism." Spec. 1, 11. 4--5. Claim 1, the sole independent claim, is representative of the claimed invention and reads as follows: 1. A device for monitoring the correct functioning of a crop pick-up mechanism, the device comprising a sensor that monitors the crop pick-up mechanism and a region situated in front thereof referred to the forward moving direction and is connected to a signal processing device, wherein the signal processing device derives information on crop accumulations upstream of the crop pick-up mechanism that do not occur during proper operation from the signals of the sensor and generates an error signal in case of a crop accumulation. REJECTIONS The following rejections are before us for review: I. The Examiner rejected claims 1, 3, 5-9, and 11under35 U.S.C. § 103(a) as unpatentable over Scarlett (US 6,546,705 B2, iss. Apr. 15, 2003) and Bottinger (US 5,913,801, iss. June 22, 1999). II. The Examiner rejected claim 2 under 35 U.S.C. § 103(a) as unpatentable over Scarlett, Bottinger, and Viaud (US 2008/0224445 Al, pub. Sept. 18, 2008, hereinafter "Viaud '445"). III. The Examiner rejected claims 4 and 10 under 35 U.S.C. § 103(a) as unpatentable over Scarlett, Bottinger, and Viaud (US 2002/0059787 Al, pub. May 23, 2002, hereinafter "Viaud '787"). 2 Appeal2013-010980 Application 12/849,362 ANALYSIS Rejection I Appellant has not presented arguments for the patentability of claims 3, 5-9, and 11 apart from claim 1. Therefore, in accordance with 37 C.F.R. § 41.37(c)(l)(iv) (2015), we select claim 1 as the representative claim to decide the appeal of the rejection of these claims, with claims 3, 5-9, and 11 standing or falling with claim 1. The Examiner finds that Scarlett discloses most of the limitations of claim 1, but fails to disclose a "sensor monitoring the crop pick-up mechanism." Final Act. 3 (citing Scarlett, col. 15, 11. 26-44, Figs. la, and 3). Nonetheless, the Examiner finds that Bottinger discloses an electronic sensor 46 "that monitors the crop pick-up mechanism and a region situated in front thereof." Id. (citing Bottinger, col. 5, 11. 6-8, Fig. 1 ). The Examiner concludes that it would have been obvious for a person of ordinary skill in the art to "provide[] the apparatus of Scarlett with the sensor as taught by [Bottinger] to detect yield deviation." Id. Appellant argues that: (1) Scarlett's heap sensor 3 7 "is not able to detect crop accumulations on the pickup;" (2) Bottinger's sensor 46 "is a mass flow sensor ... and cannot detect crop accumulations;" and (3) there is no reason to combine the teachings of Scarlett and Bottinger because yield sensing and heap sensing are different. Br. 3. We are not persuaded by Appellant's first argument because nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, claim 1 requires, inter alia, "a sensor that monitors the crop 3 Appeal2013-010980 Application 12/849,362 pick-up mechanism and a region situated in front thereof" Br. 4. In contrast to Appellant's position, the Examiner employed Bottinger, and not Scarlett, to disclose "a sensor that monitors the crop pick-up mechanism and a region situated in front thereof." Ans. 3 (emphasis added). With respect to Appellant's second argument, an artisan must be presumed to know something about the art apart from what the reference discloses. See In re Jacoby, 309 F.2d 513, 516 (CCPA 1962). Here, because Bottinger specifically discloses that sensors 46 "sense the swath" to detect yield deviation, a person of ordinary skill in the art would readily recognize that Bottinger's sensors 46 detect crop accumulations. See Bottinger, col. 5, 11. 6-8. We thus agree with the Examiner that, because Bottinger' s sensors 46 "detect relative deviation of the supplied product mass," Bottinger teaches "a measure of difference in the amount of crop, or crop accumulation." Ans. 3. Appellant has not persuasively shown error in the Examiner's findings regarding the teachings of Bottinger. Moreover, attorney argument, namely that Bottinger's sensor 46 is a mass flow sensor, cannot take the place of evidence in the record. Estee Lauder, Inc. v. L 'Orea!, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997). As to Appellant's third argument, merely because yield sensing and heap sensing are different is not persuasive of Examiner error. "When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation,§ 103 likely bars its patentability." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). As discussed above, the Examiner reasons that the combination of the teachings of Scarlett and Bottinger would have been 4 Appeal2013-010980 Application 12/849,362 obvious "to detect yield deviation." See Final Act. 3. Appellant has not explained why any differences in technologies between Scarlett and Bottinger are of such a nature as to have dissuaded a person of ordinary skill in the art from providing Bottinger's sensor 46 to Scarlett's device to obtain "a combined device that can detect yield deviation," as reasoned by the Examiner. See Ans. 3. In conclusion, for the foregoing reasons, we sustain the rejection under 35 U.S.C. § 103(a) of claim 1, and claims 3, 5-9, and 11 falling with claim 1, as unpatentable over Scarlett and Bottinger. Rejections II and III For these rejections, Appellant relies on the arguments presented supra with respect to the rejection of claim 1. Br. 3. Accordingly, for the same reasons as discussed above, we also sustain the rejections under 3 5 U.S.C. § 103(a) of claim 2 as unpatentable over Scarlett, Bottinger, and Viaud '445, and of claims 4 and 10 as unpatentable over Scarlett, Bottinger, and Viaud '787. SUMMARY The Examiner's decision to reject claims 1-11 is 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)(l )(iv). AFFIRMED 5 Copy with citationCopy as parenthetical citation