Ex Parte Wolters et al

Board of Patent Appeals and Interferences

Sep 7, 2010

09727134 (B.P.A.I. Sep. 7, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
09/727,134 11/30/2000 Norbert Wolters 08874-US 2924
30689 7590 09/08/2010
DEERE & COMPANY
ONE JOHN DEERE PLACE
MOLINE, IL 61265
EXAMINER
FABIAN-KOVACS, ARPAD
ART UNIT PAPER NUMBER
3671
MAIL DATE DELIVERY MODE
09/08/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte NORBERT WOLTERS and RICHARD WÜBBELS
____________

Appeal 2009-003045
Application 09/727,134
Technology Center 3600
____________

Before LINDA E. HORNER, WILLIAM F. PATE, III, and JENNIFER D.
BAHR, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-003045
Application 09/727,134

2
STATEMENT OF THE CASE
Norbert Wolters and Richard Wübbels (Appellants) appeal under 35
U.S.C. § 134 (2002) from the Examiner’s decision rejecting claims 1-7 and
20-24 under 35 U.S.C. § 103(a) as being unpatentable over Wiegert (WO
99/03323, pub. Jan. 28, 1999), Thompson (US 2,777,267, iss. Jan. 15, 1957),
and Leposa2 (GB 2012154 A, pub. Jul. 25, 1979).3 The Examiner has
indicated that claims 8-13, 15, and 17-19 are allowable. No other claims are
pending in the application. We have jurisdiction over this appeal under 35
U.S.C. § 6 (2002).
The Invention
Appellants’ claimed invention is directed to an agricultural crop
feeding and picking device having a feeding element with a vertical axis of
rotation. Spec. 1:6-7. Claim 1, reproduced below, is illustrative of the
claimed subject matter.
1. A feeding and picking device for feeding and picking a
standing agricultural crop wherein individual plants in the crop
are provided with plant stalks, the feeding and picking device

2 The Examiner and Appellants refer to this publication in the Answer and
Appeal Brief as “Pottinger.”
3 This appeal is the second appeal to the Board in this application. In a prior
decision dated February 11, 2005 (Appeal 2005-0352), a panel of this Board
reversed a rejection of claims 1-4, 20, and 21 under 35 U.S.C. § 102(b), and
summarily sustained a rejection of claims 5-7 under 35 U.S.C. § 103(a) as
being unpatentable over Wiegert, Thompson, and Leposa (on the basis that
Appellants failed to point out how the claimed subject matter distinguishes
from the device of Wiegert modified as proposed by the Examiner). Ex
parte Wolters, No. 2005-0352, at 3-5 (BPAI Feb. 11, 2005),
http://des.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd050352.
Independent claims 1, 2, and 20 have been amended subsequent to that
decision.
Appeal 2009-003045
Application 09/727,134

3
comprising a picking device and a rotating feeding element that
is rotated in a circle about a vertical axis and comprises a body
with outwardly extending fingers, the rotating feeding element
grasps plant stalks and directs the plant stalks to the picking
device which separates useable parts from plant stalks, the
picking device having an effective length, wherein [the]
rotating feeding element is designed to transport the plant
throughout the effective length of the picking device and further
wherein the picking device is provided with an inlet, the inlet
being located in front of the vertical axis of the feeding element.

SUMMARY OF DECISION
We REVERSE.

OPINION
An issue in this appeal is whether the combined teachings of Wiegert,
Thompson, and Leposa render obvious a feeding and picking apparatus as
called for in claims 1, 2, and 20, wherein the feeding element is designed to
transport the plant throughout the effective length of the picking device (as
required in claims 1 and 20) or to support the plant stalk while it is being
processed by the picking device (as required in claim 2), and further wherein
the picking device inlet is located in front of the vertical axis of the feeding
element (as required in each of independent claims 1, 2, and 20). See App.
Br. 19-23; Reply Br. 4-5.
Presumably to make up for the deficiency in Wiegert pointed out in
the decision of the Board in Wolters, at 4 (i.e., that neither the chopping unit
21 nor the feed chains 18, 19 grasp the plant stalks), the Examiner concluded
that it would have been obvious to substitute either the feeder unit 31, with
shaft 32 and fingers 37, of Thompson or the feeding unit of Leposa (pick-up
Appeal 2009-003045
Application 09/727,134

4
wheels 2 with bent tines 10) for the feeding chain arrangement of Wiegert.
Ans. 5-6. In addressing the limitations in claims 1, 2, and 20 that the feeding
element is designed to transport the plant throughout the effective length of
the picking device (or to support the plant stalk while it is being processed
by the picking device) and that the picking device inlet is located in front of
the vertical axis of the feeding element, the Examiner reasoned that “the
vertical axis of the combination’s feeding element is where the chain (18,
19) mid point is located” and that, consequently, “the inlet of the picking
device is located in front of the vertical axis of the feeding element.” Ans. 9.
The particular positioning proposed by the Examiner for the rotating
shafts of the feeding unit of either Thompson or Leposa in the apparatus of
Wiegert (i.e., with the rotating shafts located at the mid point of the run of
the chains 18, 19) is not supported by the applied references. Specifically,
as clearly illustrated in figures 1 and 2 of Thompson and figures 2 and 4 of
Leposa4, the feeding units of Thompson and Leposa are positioned upstream
of the processing unit to which they feed (shredding mechanism of
Thompson or infeed means of maize chopper (or conveying means of pick-
up apparatus or infeed means of maize chopper) of Leposa), such that they
feed stalks up to, but not through, the subsequent processing unit, and such
that the vertical axes of rotation of the feeding units are upstream (in front)
of the inlet to the subsequent processing unit. Absent hindsight gleaned
from Appellants’ disclosure, it is not apparent why a person of ordinary skill

4 See Leposa, p. 4, ll. 24-26 and 44-50 describing the guide means 3, 4
extending “up to the immediate range of the infeed means of the maize
chopper” (fig. 2) or ending “in the immediate range of the pick-up drums 37,
37' of the conveying means of the pick-up apparatus or the infeed means of
the maize chopper” (fig. 4).
Appeal 2009-003045
Application 09/727,134

5
in the art would position such feeding units differently (i.e., with the vertical
axes of rotation of the feeding units downstream of the picking device inlet)
if incorporated into the apparatus of Wiegert.
For the above reasons, we conclude that the combined teachings of
Wiegert, Thompson, and Leposa do not render obvious a feeding and
picking apparatus as called for in claims 1, 2, and 20, wherein the feeding
element is designed to transport the plant throughout the effective length of
the picking device (as required in claims 1 and 20) or to support the plant
stalk while it is being processed by the picking device (as required in claim
2), and further wherein the picking device inlet is located in front of the
vertical axis of the feeding element (as required in each of independent
claims 1, 2, and 20).

DECISION
The Examiner’s decision is reversed.

REVERSED

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DEERE & COMPANY
ONE JOHN DEERE PLACE
MOLINE, IL 61265