Scott A. Long

Patent Trials and Appeals Board

Oct 2, 2019

13737903 - (D) (P.T.A.B. Oct. 2, 2019)

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.
13/737,903 01/09/2013 Scott A. Long 50921 (CNHA:0173) 2383
71475 7590 10/02/2019
CNH Industrial America LLC
Intellectual Property Law Department
700 STATE STREET
RACINE, WI 53404
EXAMINER
NEWAY, BLAINE GIRMA
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
10/02/2019 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):
napatent@cnhind.com
vannette.azarian@cnhind.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SCOTT A. LONG
___________

Appeal 2019-001290
Application 13/737,903
Technology Center 3700
____________

Before STEFAN STAICOVICI, JAMES P. CALVE, and
ANNETTE R. REIMERS, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject under 35 U.S.C. § 103(a) claims 1–14 as unpatentable over
Gostomski (US 4,522,440, issued June 11, 1985) and Sweet (US 1,592,508,
issued July 13, 1926). Claims 21–26 have been withdrawn from
consideration. Claims 15–20 have been canceled. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as CNH Industrial
America LLC. Appeal Brief (“Appeal Br.”) 2, filed June 15, 2018.
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Application 13/737,903

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CLAIMED SUBJECT MATTER
The claimed subject matter “relates generally to ground working
equipment, such as agricultural equipment, and more specifically, to a lid
prop system for an agricultural implement tank.” Spec. ¶ 1, Figs. 1, 4.
Claims 1 and 8 are independent.
Claim 1 is illustrative of the claimed subject matter and recites:
1. An agricultural implement comprising:
a seed tank body configured to store agricultural product
before distribution by the agricultural implement, wherein the
seed tank body comprises a first opening configured to provide
access to an interior portion of the seed tank body;
a first support rod configured to provide structural support
to the seed tank body, wherein the first support rod spans the first
opening and comprises:
a first end coupled to a first side of the first opening
in the seed tank body;
a second end coupled to a second side of the first
opening in the seed tank body; and
a trough formed between the first end and the
second end of the first support rod at a location
overlapping the first opening;
a tank lid pivotably connected to the seed tank body via a
hinge; and
a prop rod comprising:
a third end rotatably coupled to the tank lid; and
a fourth end slidably coupled to the first support rod,
wherein the fourth end is configured to:
slide along the first support rod across the
first opening toward the hinge as the tank lid
transitions toward a fully open position to enable
opening the tank lid at an obtuse angle relative to
the first opening in the seed tank body; and
engage the trough while the tank lid is in the
fully open position to hold the tank lid in the fully
open position by limiting movement of the prop rod
along the first support rod.
Appeal 2019-001290
Application 13/737,903

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ANALYSIS
Independent claim 1 requires, inter alia, a prop rod having a fourth
end “configured to: slide along the first support rod across the first opening
toward the hinge as the tank lid transitions toward a fully open position to
enable opening the tank lid at an obtuse angle relative to the first opening in
the seed tank body.” Appeal Br. 19 (Claims App.) (emphasis added).2
Similarly, claim 8 requires, inter alia, a prop rod having a second end
“configured to: slide along the first portion of the first support rod toward
the hinge as the tank lid is transitioned toward the fully open position to
enable opening the tank lid at an obtuse angle relative to the opening in the
seed tank body.” Id. at 21 (Claims App.) (emphasis added).
The Examiner finds that “it would have been obvious to one having
ordinary skill in the art at the time the invention was made to have made the
opening angle of [the lid of the modified Gostomski device] an obtuse angle
of 120 degrees, since the claimed values are merely an optimum or workable
range.” Final Act. 43 (citing In re Aller, 220 F.2d 454, 456 (CCPA 1955));
see also Ans. 24 (“[I]t is the [E]xaminer’s position that changing the opening
angle of a lid is a result[-]effective variable with the results being getting
better access of the interior of the tank body.”) (citing In re Boesch, 617 F.2d
272 (CCPA 1980)).

2 We note that an ordinary and customary meaning of an “obtuse angle” is
an angle “exceeding 90 degrees but less than 180 degrees.” See
https://www.merriam-webster.com/dictionary/obtuse (last visited September
25, 2019).
3 Final Office Action (“Final Act.”), dated Nov. 17, 2017.
4 Examiner’s Answer (“Ans.”), dated Sept. 27, 2018.
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Application 13/737,903

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In the case of routine experimentation, it is incumbent upon the
Examiner to explain, or provide evidence to demonstrate, the parameter
optimized was recognized as a result-effective variable. A particular
parameter must first be recognized as a result-effective variable, i.e., a
variable which achieves a recognized result, before the determination of the
optimum or workable ranges of said variable might be characterized as
routine experimentation. In re Antonie, 559 F.2d 618 (CCPA 1977); see
also In re Applied Materials, Inc., 692 F.3d 1289, 1295 (Fed. Cir. 2012)
(stating it is not inventive to discover the optimum or workable ranges by
routine experimentation unless the optimized variable is a result-effective
variable).
In this case, Appellant correctly points out that Gostomski and/or
Sweet “do not appear to explicitly discuss angles between a cover/door and
an opening – let alone a range of angles that overlaps with an obtuse angle.”
Reply Br. 35; see also Appeal Br. 7 (“[T]he cited references do not appear to
explicitly discuss angle[s] between the cover/door and an opening.”).
Moreover, the Specification describes that “[t]he lid may be configured to
open to an obtuse angle, such as 120 degrees, to enhance access to the
opening.” Spec. ¶ 17 (emphasis added). The Specification also describes:
Enabling the lid 26 to open to the obtuse angle 47 may facilitate
filling the seed tank 22 by providing enhanced access to the
opening. Thus, the operator may have more room to perform
operations in the seed tank 22, such as filling the seed tank 22
with seeds. In addition, limiting the angle 47 enables the lid 26
to be more easily closed than lids 26 configured to open to 180
degrees. Comparatively, the present technique enables the
operator to exert less energy to close the lid 26 because the lid 26

5 Reply Brief (“Reply Br.”), filed Nov. 27, 2018.
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Application 13/737,903

5
has a shorter distance to travel. In addition, . . . the seed tank 22
may be of substantial size, thereby making the open lid difficult
for an operator to reach. At the obtuse angle 47, the lid 26 may
be closer to the operator, thereby making the lid 26 easier to
reach.

Spec. ¶ 26 (emphasis added), Fig. 4.
As there is no objective evidence presented in the Record by the
Examiner to support the finding that “changing the opening angle of a lid is
a results effective variable” (see Ans. 2), we are not persuaded that
achieving the claimed obtuse angle would have been an optimum value of a
result-effective variable involving only routine skill in the art. In addition to
not presenting objective evidence in the Record to support the finding that
“changing the opening angle of a lid is a result[-]effective variable,” the
Examiner’s proposed reasoning for the opening angle of the lid of the
modified Gostomski device being a result effective variable, i.e., “[to get]
better access of the interior of the tank body,” appears to be based on a
hindsight analysis because the reasoning is the same as Appellants.
Compare Ans. 2 with, Spec. ¶¶ 17, 26; See In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006) (cited with approval in KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 418 (2007) (citation omitted)) (“[R]ejections on obviousness
grounds cannot be sustained by mere conclusory statements; instead, there
must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.”). Consequently, we agree with
Appellant that “enabling the tank lid [of the subject invention] to be open at
an obtuse angle relative to the opening in the seed tank body is not merely
discovery of an optimum or workable range by routine experimentation.”
Appeal Br. 7; see also Reply Br. 2.
Appeal 2019-001290
Application 13/737,903

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Accordingly, we do not sustain the Examiner’s rejection of claims 1–
14 as unpatentable over Gostomski and Sweet.

DECISION
We REVERSE the decision of the Examiner to reject claims 1–14 as
unpatentable over Gostomski and Sweet.

REVERSED