Brandt Agricultural Products Ltd.Download PDFPatent Trials and Appeals BoardJun 9, 20212020005873 (P.T.A.B. Jun. 9, 2021) Copy Citation 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. Appeal 2020-005873 Application 15/453,158 2 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 Appeal 2020-005873 Application 15/453,158 3 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. Appeal 2020-005873 Application 15/453,158 4 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), Appeal 2020-005873 Application 15/453,158 5 [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. Appeal 2020-005873 Application 15/453,158 6 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 Appeal 2020-005873 Application 15/453,158 7 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, Appeal 2020-005873 Application 15/453,158 8 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 Appeal 2020-005873 Application 15/453,158 9 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 Appeal 2020-005873 Application 15/453,158 10 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 Appeal 2020-005873 Application 15/453,158 11 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). Appeal 2020-005873 Application 15/453,158 12 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, Appeal 2020-005873 Application 15/453,158 13 [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 Appeal 2020-005873 Application 15/453,158 14 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 Appeal 2020-005873 Application 15/453,158 15 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 Copy with citationCopy as parenthetical citation