Ex Parte Coers et al

Patent Trial and Appeal Board

Feb 22, 2016

12608557 (P.T.A.B. Feb. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/608,557 10/29/2009
30689 7590 02/23/2016
DEERE & COMPANY
ONE JOHN DEERE PLACE
MOLINE, IL 61265
FIRST NAMED INVENTOR
Bruce Alan Coers
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.
18957-US 6681
EXAMINER
NGUYEN, MAI T
ART UNIT PAPER NUMBER
3671
MAILDATE DELIVERY MODE
02/23/2016 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 BRUCE ALAN COERS, DANIEL JAMES BURKE,
RYAN PATRICK MACKIN, JAMES KELLEY ADAMSON, and
MARK L. PEARSON
Appeal2013-010951
Application 12/608,557
Technology Center 3600
Before EDWARD A. BROWN, GEORGE R. HOSKINS, and
BRANDON J. WARNER, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Bruce Alan Coers et al. (Appellants) 1 appeal under 35 U.S.C. § 134
from the Examiner's decision rejecting claims 1, 4--10, and 13-18. Br. 5.
We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFFIRM-IN-PART.
1 The Appeal Brief identifies the real party in interest as Deere and
Company. Br. 3.
Appeal2013-010951
Application 12/608,557
CLAIMED SUBJECT MATTER
Claims 1 and 10 are independent. Claim 1 is illustrative of the
claimed subject matter, and recites:
1. A reciprocating knife assembly of an agricultural
implement, the implement having a laterally extending
mainframe carrying a draper platform including a center endless
conveyor arranged for conveying harvested crop rearward, and
right and left side endless conveyors respectively located at
opposite sides of said center endless conveyor and respectively
including first and second endless belts respectively formed into
first and second loops having respective inner ends disposed
adjacent said center endless conveyor, with the right and left side
endless conveyors being respectively arranged for conveying
harvested crop laterally onto said center endless conveyor, the
reciprocating knife assembly comprising:
a stationary knife support disposed along a leading edge
of, and extending substantially a full width of, said implement
just forwardly of said draper platform;
a first elongate reciprocating knife disposed along said
stationary knife support at said leading edge of the agricultural
implement on the left hand side of the implement,
a second elongate reciprocating knife disposed along said
stationary knife support at said leading edge of the agricultural
implement on the right side of the implement;
said first and second reciprocating knives being disposed
end to end and extending colinearly for simultaneous
reciprocation in opposite directions,
said first and second reciprocating knives being supported
on said stationary knife support for sliding movement on the
agricultural implement in a lateral direction generally
perpendicular to the direction of travel of the agricultural
implement as it travels through an agricultural field harvesting
crop; and
a reciprocating knife drive assembly, said reciprocating
knife drive assembly comprising,
a first bell crank coupled to the first reciprocating
knife to reciprocate said knife in the lateral direction; and
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Appeal2013-010951
Application 12/608,557
Br. 17-18.
a second bell crank coupled to the second
reciprocating knife to reciprocate the second reciprocating
knife,
wherein each of the first and second bell cranks are
disposed within, and adjacent to, the respective inner end
of one of said first and second loops, and wherein said first
and second reciprocating knives respectively extend
leftward and rightward from said first and second bell
cranks[.]
REJECTION
Claims 1, 4--10, and 13-18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Nienberg (US 4, 166,351, issued Sept. 4, 1979) and Andre
(US 1,351,939, issued Sept. 7, 1920).
ANALYSIS
Claims 1 and 4-8
Regarding claim 1, the Examiner finds that Nienberg discloses a
reciprocating knife assembly comprising, inter alia, right and left endless
conveyors 56a including first and second endless belts formed into first and
second loops, first and second elongate reciprocating knives 58, and a
reciprocating knife drive assembly 114--116 disposed within one of the first
and second loops. Final Act. 2-3 (citing Nienberg, Figs. 5, 13, 17). The
Examiner determines that Nienberg does not disclose that reciprocating
knife drive assembly 114--116 is driven by first and second bell cranks
coupled to the first and second reciprocating knives 58. Id. at 3. The
Examiner finds that Andre discloses these features, and concludes that it
would have been obvious to replace Nienberg's reciprocating knife drive
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Application 12/608,557
assembly with Andre's as a substitution of one known element for another to
yield predictable results. Id. at 3--4 (citing Andre, Fig. 2).
Appellants acknowledge that Nienberg discloses reciprocating knife
drive assembly 114--116 disposed within a loop of endless belt 56a. Br. 14.
However, Appellants then contend that the only part of knife drive assembly
114--116 that is shown located within the loop of endless belt 56a is the
hydraulic hose 115. Id. Appellants assert that "the entire drive
mechanism (motor 114, rotor 115 and dog 116) [is] located exteriorly of
the conveyor loop." Id.
These contentions are not persuasive. Claim 1 recites only that "each
of the first and second bell cranks are disposed within ... the respective
inner end of one of said first and second loops." Br. 18 (emphasis added).
Claim 1 does not call for the first and second bell cranks, much less the
whole reciprocating knife drive assembly, to be "disposed entirely within"
one of the first and second loops. Appellants acknowledge that an element
ofNienberg's reciprocating knife drive assembly 114--116 is disposed within
a loop of endless belt 56a. The Examiner correctly finds that the placement
of hose 115 in Nienberg's drive mechanism "demonstrates that it is known
and possible to place elements within the loops to drive the reciprocating
knives without disrupting operation of the loops." Ans. 9.
Also, Appellants acknowledge that Andre's teaching "may be broadly
applied to Nienberg to make obvious the idea of using a pair of bell cranks
to drive a pair of adjacent knives 56a." Br. 14. Appellants contend,
however, that in view ofNienberg's hose placement, it would not have been
obvious to place any part of the drive mechanism within the conveyor belt
loop. Id. According to Appellants, mounting the bell cranks within
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Application 12/608,557
Nienberg's conveyor belt loop would require the use of a drive support other
than the supports 57a because "the supports 57a extend fore-and-aft within
the conveyor belt loop and support the upper run of the loop with conveyor
belt support rollers," and the presence of these conveyor belt support rollers
makes using supports 57a "problematic." Id. (citing Nienberg, Fig. 17).
Appellants also contend that it would not have been obvious to modify
Nienberg by omitting the support for the upper conveyor run to provide
space for a knife drive, as claimed. Id.
To the extent that Appellants are contending that the structures of
Nienberg and Andre must be physically combinable, we disagree. "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, 1333 (Fed. Cir. 2012) (citations
omitted); see also In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983) ("[I]t is
not necessary that the inventions of the references be physically combinable
to render obvious the invention under review."); In re Keller, 642 F.2d 413,
425 (CCPA 1981) ("The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the structure of the
primary reference .... "). Accordingly, Appellants' contention is not
persuasive of Examiner error.
Appellants also fail to provide any persuasive reason why the
Examiner's proposed modification ofNienberg in view of Andre would not
have been within the level of skill of one of ordinary skill in the art. The
Examiner finds that Andre teaches that it is well known to use bell cranks 34
as a reciprocating knife drive assembly. Ans. 9 (citing Andre Figs. 6, 7).
The Examiner also determines that Andre's bell cranks could be placed
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Application 12/608,557
either within Nienberg's loop, or above or below the loop. Id. at 9-10. The
Examiner reasons that placing the bell cranks within the loop would have
been a viable solution with a reasonable expectation of success, whereas
placing the bell cranks either above or below the loop would have presented
other issues making such placements at least less desirable. Id. Appellants
fail to apprise us of any error in the Examiner's reasoning.
We sustain the rejection of claim 1, and claims 4--8 depending
therefrom, as unpatentable over Nienberg and Andre.
Claim 9
Claim 9 depends from claim 1 and calls for "at least one conveyor
support arm extending beneath said one of the first and second loops." Br.
18 (emphasis added). The Examiner finds that Nienberg discloses at least
one conveyor support arm 54 (Fig. 5), 57a (Fig. 17), extending beneath one
of the first and second loops. Final Act. 5. According to the Examiner,
Nienberg shows conveyor support arm 54 or conveyor support arm 57a
"extending beneath an upper portion of the loop." Ans. 10 (emphasis
added).
Appellants contend that Nienberg does not teach positioning the
conveyor support arm beneath the conveyor loops. Br. 15. We agree. In
Nienberg's apparatus, conveyors 56 and 56a form loops. Conveyor support
arm 54 extends beneath an upper portion of conveyor 56, but above a lower
portion of conveyor 56. See Nienberg, Fig. 5. In other words, support arm
54 is disposed within conveyor 56. Likewise, conveyor support arm 57a
extends beneath an upper portion of conveyor 56a, but above a lower
portion of conveyor 56a. See Nienberg, Fig. 17. As such, although support
arm 54 extends beneath a portion of the loop, it does not extend beneath the
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Application 12/608,557
loop itself~ and, although support arm 57a extends beneath a portion of the
loop, it also does not extend beneath the loop itself, as required by claim 9.
Accordingly, we agree with Appellants that the Examiner's combination of
Nienberg and Andre does not include all of the claimed limitations.
We do not sustain the rejection of claim 9 as unpatentable over
Nienberg and Andre.
Claims 10 and 13-18
Appellants rely on the same arguments made in relation to claim 1 for
the patentability of claim 10. Br. 15. We also sustain the rejection of claim
10, and claims 13-18 depending therefrom, as unpatentable over Nienberg
and Andre for the same reasons as those discussed for claim 1.
DECISION
The decision of the Examiner to reject claims 1, 4--8, 10, and 13-18 is
affirmed, and the decision to reject claim 9 is reversed.
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)(l )(iv).
AFFIRMED-IN-PART
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