Ex Parte Bell

Patent Trials and Appeals Board

Apr 30, 2019

14028762 - (D) (P.T.A.B. Apr. 30, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/028,762 09/17/2013
22902 7590 05/01/2019
CLARK & BRODY
1700 Diagonal Road, Suite 510
Alexandria, VA 22314
FIRST NAMED INVENTOR
Don Bell
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
12310-0008 5341
EXAMINER
PALMER, LUCAS EA
ART UNIT PAPER NUMBER
3731
MAIL DATE DELIVERY MODE
05/01/2019 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 PATENT TRIAL AND APPEAL BOARD
Ex parte DON BELL
Appeal2018-008190
Application 14/028, 7 62
Technology Center 3700
Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
LISA M. GUIJT, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1--4, 8, and 14--18. Claims 5-7 and 9-13 have been
canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal2018-008190
Application 14/028, 7 62
CLAIMED SUBJECT MATTER
The claimed subject matter "relates to a device and method for
collecting and storing of urine, particularly deer urine, for hunting purposes,
wherein the urine is collected and packaged in an oxygen free environment
to reduce degradation of the urine during the collection and packaging
process as well as during its storage." Spec. 1, 1 Fig. 1. Claims 1 and 8 are
independent.
Claim 1 is illustrative of the claimed subject matter and recites:
1. A system for collecting and storing animal urine
compnses,
a funnel, a valve, and a collection container, the valve
positioned between a discharge end of the funnel and an inlet end
of the collection container, the valve controlling flow of the
animal urine entering the funnel into the collection container, the
collection container having a side portion and a bottom portion
with an outlet therein, the collection container in communication
with a discharge end of the funnel,
a sensor positioned with respect to the funnel to detect a
presence and absence of the animal urine flowing into the funnel,
and
means for opening the valve when urine flow begins in the
funnel and closing the valve when the urine flow in the funnel
stops,
means for determining a period of time of urine flow at
least into the funnel, and
means for removing air in the collection container at least
prior to opening of the valve and entry of urine into the collection
container, and optionally after filling supplying inert gas to the
collection container containing the urine.
1 As the Specification does not include line numbers, we refer to the page
numbers only. Specification ("Spec."), filed Sept. 17, 2013.
2
Appeal2018-008190
Application 14/028, 7 62
THE REJECTIONS
I. Claims 1 and 4 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Barker (US 4,891,993, issued Jan. 9, 1990) and Kelsey
(US 2005/0133536 Al, published June 23, 2005).
II. Claims 2 and 15-17 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Barker, Kelsey, and Tchekneva (US 2011/0239953 Al,
published Oct. 6, 2011 ).
III. Claim 3 stands rejected under 35 U.S.C. § I03(a) as unpatentable over
Barker, Kelsey, and Claudio-Alvarado (US 7,303,665 Bl, issued Dec. 4,
2007).
IV. Claim 8 stands rejected under 35 U.S.C. § I03(a) as unpatentable over
Barker, Kelsey, and Copping (US 3,804,133, issued Apr. 16, 1974).
V. Claims 14 and 18 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Barker, Kelsey, Copping, and Kahn (US 7,131,250 B2,
issued Nov. 7, 2006).
ANALYSIS
Rejection I- Obviousness over Barker and Kelsey
The Examiner finds that Barker discloses a system for collecting and
storing animal urine comprising most of the components of claim 1. Final
Act. 3--4 ( citing Barker Fig. 2). 2 The Examiner acknowledges that Barker
does not disclose a means for removing air from a collection container. Id.
at 4. The Examiner, however, finds that Kelsey discloses a means for
removing air from a collection container. Id. (citing Kelsey ,r,r 22, 38). The
2 Final Office Action ("Final Act."), dated June 21, 2017.
3
Appeal2018-008190
Application 14/028, 7 62
Examiner concludes that it would have been obvious to modify the system
of Barker to include a means for removing air from a collection container as
taught by Kelsey "for the purpose of preventing contamination/ oxidation of
the urine since it was known that prolong exposure with air degrades urine."
Final Act. 4. The Examiner explains that "it is known in the art [that] gas
degrades [ u ]rine" as evidenced by Kunimune. " 3 Ans. 2 ( citing Kunimune ,r,r
3, 15, 16, 39). 4
Barker's system is an open system constructed for determining the
amount of sodium that leaves an individual's body through urine within a
24-hour period. See Barker 1: 10-64; 4:58-60; see also Appeal Br. 16. 5
Although we agree with the Examiner that certain components in urine can
degrade from exposure to air, neither Kelsey nor Kunimune evidences that
sodium, which is tested by Barker, degrades when exposed to air. See
Kelsey, passim; Kunimune, passim. As Appellant explains,
there is no sodium testing in Kunimune among the numerous
urine testing performed and this backs up the teachings of Barker
that testing for sodium concentration does not have the
degradation worry that is expressed in Kunimune. In other
words, the fact that Kunimune teaches that degradation of urine
can affect certain test results does not mean that this degradation
applies to the collection of urine over a 24 period as is the case
in Barker.
Reply Br. 5; see also Appeal Br. 15-16. 6
We understand that Barker addresses testing urine for sodium content,
which is not shown to degrade or oxidize over the test period. Thus, the
3 US 2003/0164051 Al, published Sept. 4, 2003.
4 Examiner's Answer ("Ans."), dated June 13, 2018.
5 Appeal Brief ("Appeal Br."), filed Mar. 20, 2018.
6 Reply Brief ("Reply Br."), filed Aug. 13, 2018.
4
Appeal2018-008190
Application 14/028, 7 62
Examiner's inclusion of Kelsey's air removal teachings into Barker for the
purpose of preventing contamination/ oxidation is suspect when there is no
indication in any of the references that Barker's sodium testing would be
affected by such inclusion. In short, the Examiner has failed to provide
articulated reasoning with rational underpinnings to support the conclusion
of obviousness. For these reasons, we do not sustain the Examiner's
rejection of claim 1 and claim 4 depending therefrom.
Rejection 11-V- Obviousness over Barker, Kelsey, and any of Tchekneva,
Claudio-Alvarado, Copping, or Kahn
The Examiner's rejections of claims 2 and 15-17 as unpatentable over
Barker, Kelsey, and Tchekneva, of claim 3 as unpatentable over Barker,
Kelsey, and Claudio-Alvarado, of claim 8 as unpatentable over Barker,
Kelsey, and Copping, and of claims 14 and 18 as unpatentable over Barker,
Kelsey, Copping, and Kahn, are each based on the same improper rationale
discussed above concerning the combination of Barker and Kelsey.
See Final Act. 4--7. The Examiner does not rely on the teachings of
Tchekneva, Claudio-Alvarado, Copping, or Kahn to remedy the deficiencies
of Barker and Kelsey. Accordingly, for reasons similar to those discussed
above for claim 1, we do not sustain the Examiner's rejections of claims 2,
3, 8, and 14--18 over the variously indicated combinations of cited art.
DECISION
We REVERSE the decision of the Examiner to reject claims 1--4, 8,
and 14--18.
REVERSED
5