Marcus D. Rust et al.

Patent Trials and Appeals Board

Feb 20, 2020

14530801 - (D) (P.T.A.B. Feb. 20, 2020)

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.
14/530,801 11/02/2014 Marcus D. Rust P02741-US-00
(32413.0045)
3862
22446 7590 02/20/2020
ICE MILLER LLP
ONE AMERICAN SQUARE, SUITE 2900
INDIANAPOLIS, IN 46282-0200
EXAMINER
PRICE JR, RICHARD THOMAS
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
02/20/2020 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):
CHIIPDOCKET@ICEMILLER.COM
IPDOCKET@ICEMILLER.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARCUS D. RUST, JOSEPH M. DART, and DAVID HURD
____________

Appeal 2019-001221
Application 14/530,801
Technology Center 3600
____________

Before DANIEL S. SONG, STEFAN STAICOVICI, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–23.2 We have jurisdiction over the appeal under
35 U.S.C. § 6(b).

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Rose Acre Farms,
Inc. Appeal Br. 3.
2 Claims 1–24 are pending. The Examiner is silent regarding claim 24.
Both the Office Action Summary and the body of the rejection refer only to
claims 1–23. Final Act. 2–4. In response to Appellant pointing out that the
Examiner has not rejected claim 24 in the Final Action (Appeal Br. 17), the
Examiner continues to make no reference to claim 24 in the Answer (Ans.
3–7). Thus, we do not consider claim 24 to be before us on appeal.
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We REVERSE.

THE CLAIMED SUBJECT MATTER
Claims 1, 11, and 17 are independent. Claim 1 is reproduced below.
1. A method of building an aviary comprising a floor, a roof, a
frame, an exterior wall, and a cage tower including a plurality of
support members, the method comprising:
disposing the cage tower on the floor;
attaching the frame to the plurality of support members;
and
attaching at least one of the exterior wall and the roof to
the frame.

EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Smith US 5,145,460 Sept. 8, 1992

REJECTION
Claims 1–23 are rejected under 35 U.S.C. § 103 as unpatentable over
Smith. Final Act. 2–3.
OPINION
The Examiner finds that:
Smith teaches a method and device of building an aviary
comprising a floor, a roof, a frame, an exterior wall and a cage
floor. The cage tower is disposed on the floor, attaching the
frame to the plurality of support members, and attaching at least
one of the exterior wall and the roof to the frame. The drawings
clearly show the various elements are joined together to form a
floor, a roof, a frame, exterior wall and a plurality of cage towers
joined together.
Final Act. 2. The Examiner acknowledges that “although shown, the
[S]pecification [of Smith] does not discuss how the various elements are
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attached.” Id. The Examiner concludes that it would have been obvious “to
modify the apparatus of Smith . . . with an attachment connection between
various elements such as the frame, roof and support members, in order to
structurally secure the elements together.” Id. at 3.
Appellant asserts that “claim 1 requires ‘a cage tower including a
plurality of support members,’” such that “the plurality of support members
are part of the cage tower.” Appeal Br. 14 (underlining omitted). Appellant
argues that “Smith fails to teach or suggest ‘support members.’” Id. In
particular, Appellant argues that “[t]he cage towers of Smith . . . are
disposed upon the floor of a freestanding building and do not form a part of
the structure of the aviary.” Id. at 15. According to Appellant, “[t]he prior
art cage towers are contents of the building, while Appellant’s claimed cage
towers form a part of the structure of the building.” Id. (underlining
omitted).
Appellant further argues that “Smith fails to teach, suggest, or disclose
at least claim 1’s requirement of ‘attaching the frame to the plurality of
support members.’” Appeal Br. 13. Appellant points out that Smith
“discloses a ‘ventilation subject 68’ (‘a row of poultry cages which are
stacked in a pyramidal fashion,’ see col. 4, ll. 45–47) that is disposed on the
floor (unnumbered, see FIG. 2).” Id. Appellant asserts that “nowhere in the
disclosure of Smith are the ventilation subjects 68 shown or disclosed as
being attached to any part of the structure except the floor of the livestock
building 20.” Id.
Appellant also argues that the Examiner has not adequately explained
what would have led one of ordinary skill in the art to modify Smith to
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arrive at the missing limitation of “attaching the frame to the plurality of
support members.” Appeal Br. 14–15.
The Examiner determines that “the ‘support members’ read broadly
on any of the elements shown in the figures.” Final Act. 4. In particular, the
Examiner determines that “the cage tower includes at least one aviary cage
and each cage includes at least one support member.” Id. at 3. In the
Specification, the support members are described as supporting and
providing attachment points for the roof and the exterior walls. Spec. ¶ 164–
165. Significantly, the support members are also described as “supporting at
least one aviary cage . . . within the cage tower.” Id. Thus, the Specification
describes a “support member” of a cage tower as something other than the
cage itself, in that the disclosed support member supports the cage (and also
supports the roof and walls). In view of the Specification, a person of
ordinary skill in the art would have understood a support member of a cage
tower, as claimed, to be something other than an arbitrary part of the cage
itself. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004) (claims are to be given their broadest reasonable interpretation
consistent with the specification, reading claim language in light of the
specification as it would be interpreted by one of ordinary skill in the art).
The Examiner’s finding that Smith teaches a cage tower including a
plurality of support members is not adequately supported by Smith when the
term “support member” is given its broadest reasonable interpretation as
understood by a person of ordinary skill in the art in light of the
Specification. That is, the Examiner does not adequately explain, nor is it
readily apparent, how Smith teaches a cage tower including a plurality of
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support members, in which the support members are something other than
parts of the cages themselves.
Moreover, even to the extent that the term “support member” could be
construed so broadly as to encompass, for example, the “wire caging
material” forming outside surfaces 70 and inside surfaces 72 of the “poultry
cages” of Smith that are “stacked in a pyramidal fashion” (Smith 4:45–49),
the Examiner has not adequately explained how Smith teaches attachment of
a frame to any such Examiner-identified support members, as required by
the claim. That is, merely because “[t]he cage tower is disposed on the
floor” (Final Act. 2) is not indicative by a preponderance of the evidence
that a frame (a separately recited element from the floor) is attached to the
cage tower or attached to any alleged support member of the cage tower. At
most, Smith shows only the floor, and not a frame, in contact with the
stacked poultry cages. Smith, Fig. 2.
To the extent that the Examiner is taking the position that it would
have been obvious to a skilled artisan to modify Smith so as to have an
attachment connection between the frame and any alleged support member
of the cage tower “in order to structurally secure the elements together”
(Final Act. 3), this reasoning is not clearly set forth, and nevertheless only
explains why any alleged support member of the cage tower would be
attached at all to the livestock building of Smith, not why any alleged
support member of the cage tower would be attached specifically to the
frame of the livestock building. In other words, such articulated reasoning
might explain why any components of Smith’s livestock building, or the
poultry cages contained therein, that are already in contact with each other
might be secured at the point where they are already in contact with each
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other (e.g., the bottom poultry cage being secured to the floor and each
subsequent poultry cage being secured to the one below and above it), but
does not explain adequately why one of ordinary skill in the art would have
been led to modify the frame and/or the stacked poultry cages so as to enable
the frame to be attached to any alleged support member of the stacked
poultry cages. We agree with Appellant that Smith’s stacked poultry cages
are merely contents within a building, and the Examiner has not adequately
explained why it would have been obvious to a person of ordinary skill in
the art to modify the frame and/or the stacked poultry cages so as to make
the cages be part of the structure of the building (through attachment
between the frame and the cages). See Appeal Br. 15.
Each of remaining independent claims 11 and 17 require attaching the
frame (or more specifically the roof frame and/or wall frame) to support
members of the cage tower. Appeal Br. 20–21 (Claims App.). For the same
reasons described above, the Examiner has not adequately explained how
Smith teaches or renders obvious a cage tower including support members,
and further, attachment of the frame (a differently recited element than the
floor) to a plurality of support members included in a cage tower.
For the foregoing reasons, we find that the Examiner’s rejection to be
insufficiently supported by the presented evidence and reasoning. We do
not sustain the rejection of claims 1, 11, and 17, and claims 2–10, 12–16,
and 18–23 depending therefrom, under 35 U.S.C. § 103 as unpatentable over
Smith.

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–23 103 Smith 1–23

REVERSED