Brandt Agricultural Products Ltd.

Patent Trials and Appeals Board

Jun 9, 2021

2020005873 (P.T.A.B. Jun. 9, 2021)

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.
15/453,158 03/08/2017 Jonathan Robert Carteri 0100024.0645426 3097
26874 7590 06/09/2021
FROST BROWN TODD LLC
3300 Great American Tower
301 East Fourth Street
Cincinnati, OH 45202
EXAMINER
HARP, WILLIAM RAY
ART UNIT PAPER NUMBER
3651
NOTIFICATION DATE DELIVERY MODE
06/09/2021 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):
patents@fbtlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JONATHAN ROBERT CARTERI, NICHOLAS BROBERG,
MICHAEL RYAN KAEDING, and CHANCE PEUTERT
____________________

Appeal 2020-005873
Application 15/453,158
Technology Center 3600
____________________

Before JENNIFER D. BAHR, PHILLIP J. KAUFFMAN, and
SEAN P. O’HANLON, Administrative Patent Judges.

BAHR, 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 1–6 and 8–11. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

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 “Brandt Agricultural
Products LTD.” Appeal Br. 3.
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THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A vacuum conveyor for conveying granular material, the
vacuum conveyor comprising:
a frame;
a housing supported by the frame;
a fan assembly provided in the housing, the fan assembly
operative to create a vacuum in the housing;
a drive mechanism comprising:
an input shaft;
a toothed input pulley operably connected to the
input shaft;
a toothed output pulley operably connected to the
fan section;
a cogged belt provided around the toothed input pulley
and the toothed output pulley to transfer rotational motion of
the toothed input pulley to the toothed output pulley; and
an intake tube connectable to a distal end of a hose
section,
wherein the vacuum created in [the] housing by the fan
assembly is in fluid communication with the intake tube to
create an air flow in the hose section connected to the intake
tube,
and wherein granular material carried into an intake
nozzle connected to the hose section is carried through the hose
section into the vacuum conveyor by the air flow created in the
hose section.
EVIDENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Schweitzer US 3,117,459 Jan. 14, 1964
Rempel US 4,881,855 Nov. 21, 1989
Bodie US 8,911,182 B2 Dec. 16, 2014
Poole US 9,907,234 B2 Mar. 6, 2018
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REJECTION
Claims 1–6 and 8–11 stand rejected under 35 U.S.C. § 103 as
unpatentable over Bodie, Schweitzer, Poole, and Rempel.
OPINION
In contesting the rejection, Appellant references certain limitations
recited in independent claim 1, but otherwise presents arguments without
regard to any particular claim. See Appeal Br. 6–14; Reply Br. 2–12. We
select claim 1 as representative, and claims 2–6 and 8–11 stand or fall with
claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Bodie discloses a vacuum conveyer
including, in relevant part, a fan assembly and a drive mechanism having
“an input shaft (30); an[] input pulley (50) operably connected to the input
shaft; an output pulley (52) operably connected to the fan section; and a belt
(54) provided around the input pulley and the output pulley to transfer
rotational motion of the input pulley to the output pulley.” Final Act. 5. The
Examiner finds that Bodie does not disclose, inter alia, that the input and
output pulleys are toothed and the belt is cogged. Id. at 6.2 However, the
Examiner finds that Schweitzer teaches “a toothed input gear (11), a toothed
output gear (12), and a cogged belt (10) having a series of spaced teeth that
correspond to spacing[] of teeth on the gears (pulleys) and the teeth of the
belt mesh with the teeth of the gears (pulleys).” Id. The Examiner explains
that Schweitzer’s “cogged belt results in a smooth, quiet, vibration-free
operation of gears and a reduction of slippage.” Id. (citing Schweitzer,

2 The Examiner relies on Rempel for other features of claim 1 that we need
not address because they are not disputed by Appellant. Final Act. 6.
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1:10–30). The Examiner also finds that Poole teaches “a fan assembly (132)
driven by a motor (150) through pulleys (146, 147) and a belt (142)[, which]
. . . may be cogged.” Id. (citing Poole, 6:43–47). The Examiner determines
that it would have been obvious “to substitute toothed gears and a cogged
belt for the pulleys and belt . . . of Bodie . . . to achieve a smoother operation
of the vacuum conveyor with less slippage between the belt and pulleys.”
Id.
Appellant argues that Poole is non-analogous art. Appeal Br. 6–7.
Appellant asserts that “Poole is in the field of battery-powered backpack
blowers to be worn by a user for blowing air,” whereas “the claimed
invention is directed to . . . a pneumatic or vacuum conveyor for conveying
grain.” Id. at 6. Appellant asserts that “[n]o teachings of Poole are
concerned with powering a vacuum conveyor with more efficiency such that
Poole is not reasonably pertinent to the problem addressed by the
Appellant.” Id. at 7. We are not persuaded by this argument.
Regarding the issue of analogous art, the Federal Circuit has
explained that “[t]he analogous art inquiry is a factual one, requiring inquiry
into the similarities of the problems and the closeness of the subject matter
as viewed by a person of ordinary skill.” Sci. Plastic Prods., Inc. v. Biotage
AB, 766 F.3d 1355, 1360 (Fed. Cir. 2014).
Criteria for determining whether prior art is analogous may be
summarized as “(1) whether the art is from the same field of
endeavor, regardless of the problem addressed, and (2) if the
reference is not within the field of the inventor’s endeavor,
whether the reference still is reasonably pertinent to the
particular problem with which the inventor is involved.”
Id. at 1359 (quoting In re Clay, 966 F.2d 656, 658–59 (Fed. Cir. 1992)).
For purposes of showing obviousness under 35 U.S.C. § 103(a),
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[a] reference is reasonably pertinent if, even though it may be in
a different field from that of the inventor’s endeavor, it is one
which, because of the matter with which it deals, logically
would have commended itself to an inventor’s attention in
considering his problem.
In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379–80 (Fed. Cir. 2007)
(quoting Clay, 966 F.2d at 659).
The Examiner takes the position that Poole is analogous art at least
because it is reasonably pertinent to the problem with which Appellant was
concerned. Ans. 7. The Examiner explains that, according to the
Specification, the problem facing Appellant was “reducing loss of rotational
motion between a drive (the PTO of the tractor) [and] a fan or air pump.”
Id. (citing Spec. ¶ 5). Appellant’s Specification describes “a vacuum
conveyor using a cogged drive belt to transfer rotation motion from a vehicle
to a fan assembly.” Spec. ¶ 2. The Specification states that “vacuum
conveyors are usually powered off the PTO of a tractor, [and] the less loss of
rotational motion from the PTO of the tractor to the fan or air pump, the
better the vacuum conveyor will perform.” Id. ¶ 5. Poole discloses
backpack blower 100 having motor 150 operatively connected to fan
member 134 via belt drive system 144. Poole, col. 6, ll. 26–32, Figs. 6C–D.
Belt drive system 144 includes motor drive shaft member 161 having first
pulley 147, second pulley 146 connected to second shaft member 160 of fan
member 134, and belt 142 connecting the pulleys. Id. at col. 6, ll. 35–40.
Poole also discloses that pulleys 146, 147, and belt 142 may have teeth and
ridges, respectively. Id. at col. 6, ll. 43–45. The Examiner explains that
Poole “would have logically commended itself to an inventor[’]s attention
because it has shown how to transfer rotation between a drive and a fan.”
Ans. 7. Appellant does not persuasively refute the Examiner’s position.
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Appellant contends that Poole “address[es] the problem of how to
blow air from an apparatus, which in turn could be construed to be a
problem that is the polar opposite of the problem of creating a vacuum to
draw air into an apparatus.” Reply Br. 3 (emphasis omitted). However, as
discussed above, Poole involves a belt drive system between a motor and a
fan (Poole, col. 6, ll. 25–42), and Appellant does not persuasively explain
why using these elements to drive a fan to blow air would preclude Poole’s
disclosure from being reasonably pertinent in the context of powering a fan
to generate a vacuum with these elements.
Appellant also asserts that the torque required to drive a vacuum
conveyor “is far greater than any torque created by any electric motor in a
battery-powered backpack leaf blower” and “any torque generated by a
battery to power a leaf blower is sufficiently less than the torque required for
vacuum by the PTO of a tractor or a ‘vacuum conveyor for conveying
granular material.’” Reply Br. 4. This argument is not persuasive because it
appears to improperly presume a bodily incorporation of Poole’s backpack
blower drive belt system structure into the vacuum conveyer of Bodie. “It is
well-established that a determination of obviousness based on teachings
from multiple references does not require an actual, physical substitution of
elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012); see also
citing In re Keller, 642 F.2d 413, 425 (CCPA 1981) (stating, “[t]he test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference”).
Moreover, as discussed above, the Examiner also finds that
Schweitzer teaches a cogged belt and toothed pulleys (Final Act. 6), which
Appellant does not contest (see generally Appeal. Br). Thus, regardless of
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whether Poole is analogous art, Poole’s teachings regarding a cogged belt
and toothed pulleys are cumulative to the teachings of Schweitzer relied on
by the Examiner in the rejection.
Appellant argues that Poole teaches “away from using a belt having
ridges in a vacuum conveyor instead of a conventional belt, because the
Poole reference fails to describe any advantages as a result of using the belt
142 having ridges.” Appeal Br. 13. According to Appellant,
[i]f the battery-powered backpack leaf blower 100 achieved the
same advantages as the presently claimed vacuum conveyor by
using a cogged belt or if the inventor had been aware of such
advantages, the use of a belt 142 with ridges would have most
likely [been] described as [the] preferred embodiment, these
advantages would have been described in the Poole reference[,]
and/or the use of ridges on the belt 142 would have not been
relegated to only two sentences in the Poole reference.
Id. We are not persuaded by this argument.
A reference teaches away from a claimed invention or a proposed
modification if “a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant.” In re Kubin, 561 F.3d 1351, 1357 (Fed. Cir. 2009) (quoting In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)). Prior art does not teach away
from claimed subject matter merely by disclosing a different solution to a
similar problem unless the prior art also criticizes, discredits, or otherwise
discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004). Here, Appellant does not point to any disclosure in Poole
criticizing, discrediting, or otherwise discouraging the combination of
teachings proposed by the Examiner in the rejection. To the contrary,
Appellant states that, “although Poole does not specifically criticize,
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discredit or otherwise discourage using a cogged belt, Poole also does not
suggest to one of ordinary skill in the art that it is particularly advantageous
to do so.” Reply Br. 4. That Poole may not disclose specific advantages of
a cogged belt, nor use one in its preferred embodiment, does not constitute a
teaching away from the Examiner’s proposal to modify Bodie to use a
cogged belt.
Appellant argues that there is no motivation to combine the cited
references as proposed by the Examiner. Appeal Br. 10–13. In particular,
Appellant asserts that one of ordinary skill in the art would not “have found
any motivation in the cited reference[s] for making the suggested
combination.” Id. at 11; see also id. at 13 (asserting that the “cited
references provide neither reason nor motivation to amend the teaching of
Bodie by incorporating a cogged belt in order to solve the objective
technical problem”). Appellant also asserts that, although “the Schweitzer
reference does generally describe some advantages of using the disclosed
belt 10, Schweitzer fails to do so in relation to a vacuum conveyor.” Id.
at 11. According to Appellant, “[w]hen the Schweitzer reference is referring
to ‘smooth, quiet, vibration-free operation’ as a possible advantage of the
disclosed belt 10, it is comparing the operation of the belt 10 to gears not to
a conventional non-cogged belt.” Id. at 9–10 (emphasis omitted). This line
of argument is unpersuasive.
Appellant appears to insist on an explicit teaching, suggestion, or
motivation in the cited references to establish obviousness, but such a
requirement has been foreclosed by the Supreme Court. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 419 (2007) (stating that a rigid insistence on
teaching, suggestion, or motivation is incompatible with the Court’s
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precedent concerning obviousness). The Court noted that an obviousness
analysis “need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for [an examiner] can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.” Id. at 418. Instead, the relevant inquiry is whether the Examiner
has set forth “some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006), cited with approval in KSR, 550 U.S. at 418.
Here, as discussed above, the Examiner reasons that one of ordinary
skill in the art would have modified Bodie to include toothed pulleys and a
cogged belt “to achieve a smoother operation of the vacuum conveyor with
less slippage between the belt and pulleys.” Final Act. 6; see also id. at 2
(reasoning that “reduction of slippage would result in more power transfer
between an input pulley and output pulley than that provided by a frictional
transmission belt”); Schweitzer, col. 1, ll. 16–30 (alluding to slippage and
power loss as issues of concern with transmission belts). In this regard,
Appellant does not identify error in the Examiner’s articulated reasoning.
Even assuming, arguendo, that Schweitzer’s teaching regarding smooth,
quiet, and vibration-free operation does not refer to advantages of a cogged
belt over a non-cogged belt (see Appeal Br. 9–10), Appellant does not
persuasively refute the Examiner’s additional reasoning that a cogged belt
would reduce slippage as compared to a non-cogged belt.
Appellant asserts that, “[t]o the best of Appellant’s knowledge,
slippage between a belt and pulleys should not be an issue if the belt is
properly tensioned.” Appeal. Br. 11. However, as explained in more detail
below, Appellant does not provide adequate evidentiary support for this
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assertion, and Milton (US 5,417,617, issued May 23, 1995), cited by the
Examiner as evidence that cogged belts were known to be more energy
efficient in drive systems than v-belts, appears to support the Examiner’s
reasoning regarding cogged belts reducing slippage and refute Appellant’s
assertion to the contrary. See Final Act. 7 (stating that “[t]he prior art to
Milton discloses the use of cogged belts to operate ventilation fans and
further discloses energy saving[s] achieved by using a cogged belt”);
Ans. 8–9 (explaining that “Milton discloses that v-belt systems are known to
be less efficient than toothed (cogged) drive belt system[s] and that energy
savings may be achieved by replacing a v-belt with a toothed belt” (citing
Milton, col. 1, ll. 15–23)). In particular, Milton teaches the following:
V-belt drive systems are known to be less efficient than
timing belt (toothed) drive belt systems. This is chiefly due to
belt slippage in V-belt systems. The teeth on the timing belt
and pulley prevent such slipping in timing belt systems. In
some applications, a 5–10% energy savings may be achieved by
replacing a V-belt drive system with a timing belt drive system.
This energy savings is very significant in high-power
transmission systems.
Milton, col. 1, ll. 15–23. In other words, Milton evidences that belt slippage
was a known issue in V-belt drive systems, and using toothed pulleys with a
timing belt (i.e., cogged) prevents slippage.
Appellant argues that secondary considerations demonstrate non-
obviousness of the claimed invention. Appeal Br. 9–10. In particular,
Appellant asserts that the Declaration under 37 C.F.R. § 1.132 of named
inventor Jonathan Robert Carteri, dated September 27, 2018 (“Declaration”
or “Decl.”), evidences “that significant and unexpected advantages were
achieved using the cogged belt in the grain vacuum as claimed and that these
advantages were not expected based on what was generally thought by
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persons skilled in the art and using fan laws to predict the behavior of the
grain vacuum.” Id. at 9. Appellant asserts that “by using the cogged belt of
the claims, the grain vacuum could be operated at lower RPM and still
simultaneously have a measured increase in capacity of the grain vacuum
and a lowered measured horsepower compared to the grain vacuum using a
conventional v-belt and running at a higher RPM.” Id. (citing Decl. ¶ 24).
Appellant also asserts that
the initial experiments disclosed in the Declaration reveal what
appears to be have been a previously unrecognized problem
with vacuum conveyors using conventional belts, specifically,
that the fan laws used to theoretically calculate the performance
of a vacuum conveyor predicted a higher level [of] performance
than was actually being achieved in real world experiments and
especially at higher air volumes.
Reply Br. 7. According to Appellant, one of ordinary skill in the art of
designing vacuum conveyors “would have every reason to believe that the
vacuum conveyor would perform better than it actually does in practice, and
therefore would not have had any motivation to seek a solution to a
performance deficiency of which he or she was clearly not aware.” Id.3

3 Appellant also contends that the Examiner “impermissibly introduced what
could be construed to be a new grounds for a rejection of independent claim
1 in the Examiner’s Answer.” Reply Br. 5 (emphasis omitted) (citing Ans.
9). We note that the issue of whether an Examiner’s Answer includes a new
ground of rejection is a petitionable matter that does not fall within the
Board’s jurisdiction, and, therefore, we do not address this matter.
See 37 C.F.R. § 41.40(a) (“Any request to seek review of the primary
examiner’s failure to designate a rejection as a new ground of rejection in an
examiner’s answer must be by way of a petition to the Director under
§1.181” and “[f]ailure of appellant to timely file such a petition will
constitute waiver of any arguments that a rejection must be designated as a
new ground of rejection.”); Manual of Patent Examining Procedure (MPEP)
§ 1002.02(c).
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Appellant’s contention that using a cogged belt in the grain vacuum
produced unexpected results appears to be based on a premise that slippage
would not be expected with a conventional belt drive arrangement. See
Appeal Br 11 (stating that, “[t]o the best of Appellant’s knowledge, slippage
between a belt and pulleys should not be an issue if the belt is properly
tensioned”). Similarly, the Declaration states the “results are unexpected
because[,] if the conventional v-belt is operating properly and tensioned to
the required tension, it should be transferring all of the rotational motion to
the fan.” Decl. ¶ 24. However, Declarant does not present any objective
evidence or cite any technical authority to corroborate this conclusory
statement. As such, this premise lacks adequate evidentiary support.
See 37 C.F.R. § 41.158(a) (“Expert testimony that does not disclose the
underlying facts or data on which the opinion is based is entitled to little or
no weight.”). To the contrary, as discussed above, the evidence of record
shows (1) that slippage was a known issue with V-belt drive systems, and
(2) using a toothed (i.e., cogged) belt drive was known to prevent slippage
and improve efficiency. See Milton, col. 1, ll. 15–23. In other words, in
view of Milton’s disclosure, it appears more likely than not that the
purported unrecognized problem asserted by Appellant (i.e.,
underperformance of the vacuum conveyer relative to theoretical
projections) was attributable to the known tendency of V-belt drive systems
to experience slippage. See In re Baxter Travenol Labs., 952 F.2d 388, 392
(Fed. Cir. 1991) (stating that “[m]ere recognition of latent properties in the
prior art does not render nonobvious an otherwise known invention”).
The Declaration also states that,
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[s]ince the grain vacuum using the cogged belt and running at a
lower 5285 RPM has a higher measured capacity than the grain
vacuum using a v-belt and running at 5570 RPM, it could be
theorized that the v-belt is slipping, however, if this was the
case one would expect the measured horsepower requirements
to be less because the increased capacity observed with the
cogged belt should also translate into an increased horsepower
requirement. Unexpectedly, using a cogged belt not only
allowed the grain vacuum to be run at a lower RPM and still
have a better measured capacity than running the grain vacuum
at a higher RPM with a v-belt, but it also unexpectedly required
less horsepower using the cogged belt even though an increased
measured capacity was observed. It is completely unexpected
that better measured capacity, operation at a lower RPM and
reduced horsepower requirements can all be simultaneously
achieved by using a cogged belt.
Decl. ¶ 24. Appellant contends that “slipping would be expected to result in
the required horsepower being less than of the cogged belt, because the
greater measured capacity of the cogged belt should translate into a higher
horsepower requirement for the cogged belt to achieve this higher
throughput of crop material.” Reply Br. 10 (citing Decl. ¶ 24). However, it
is unclear upon what technical rationale this position is based. The
Declaration appears to merely opine, from a named inventor’s point of view,
as to what one of ordinary skill in the art would have expected regarding
vacuum conveyer performance and efficiency metrics (e.g., capacity, RPM,
and horsepower) for a cogged belt drive as compared to a conventional
V-belt drive without sufficient factual corroboration. In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004) (explaining that the Board
is entitled to weigh declarations expressing opinions as to fact and conclude
that the lack of factual corroboration warrants discounting the opinions
expressed in the declarations); In re Bulina, 362 F.2d 555, 559 (CCPA
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1966) (stating that “an affidavit by an applicant or co-applicant as to the
advantages of his invention is less persuasive than one made by a
disinterested person”). Given the known efficiency improvements
associated with replacing a non-cogged belt drive with a cogged belt drive,
as evidenced by Milton, a preponderance of the evidence supports the
Examiner’s position that the results observed by Appellant would not have
been unexpected. See Ans. 9 (explaining that “it would be expected that a
cogged belt would lead to reduced power loss, which would affect both
conveyor capacity and horsepower required to operate the conveyor”).
Having considered all the evidence presented by Appellant against
obviousness and weighing all the evidence, both of obviousness and of
nonobviousness, it is our conclusion that the evidence of obviousness
outweighs the evidence of nonobviousness of the subject matter of claim 1.
See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed.
Cir. 2007) (agreeing that, “given the strength of the prima facie obviousness
showing, the evidence on secondary considerations was inadequate to
overcome a final conclusion that [the claimed subject matter] would have
been obvious”). Accordingly, we sustain the rejection of claim 1, and claims
2–6 and 8–11 falling therewith, as unpatentable over Bodie, Schweitzer,
Poole, and Rempel.
CONCLUSION
In summary:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–6, 8–11 103 Bodie, Schweitzer,
Poole, Rempel
1–6, 8–11
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED