Ex Parte Derscheid

Patent Trial and Appeal BoardAug 27, 2014

12407352 (P.T.A.B. Aug. 27, 2014)

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. 12/407,352 03/19/2009 Daniel Eric Derscheid 18712-US 7164 30689 7590 08/27/2014 DEERE & COMPANY ONE JOHN DEERE PLACE MOLINE, IL 61265 EXAMINER GERRITY, STEPHEN FRANCIS ART UNIT PAPER NUMBER 3721 MAIL DATE DELIVERY MODE 08/27/2014 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 DANIEL ERIC DERSCHEID ____________ Appeal 2012-003057 Application 12/407,3521 Technology Center 3700 ____________ Before JENNIFER D. BAHR, LYNNE H. BROWNE, and LISA M. GUIJT, Administrative Patent Judges. GUIJT, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1, 2, 5, 11, and 12. Br. 5. Claims 3, 4, and 18 have been cancelled, and claims 6–9, 10, 13–17, and 19 are objected to. Id.; Answer 4. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 According to Appellant, the real party in interest is Deere and Company. Appeal Br. 3. Appeal 2012-003057 Application 12/407,352 2 STATEMENT OF THE CASE Claimed Subject Matter Independent claim 1 is illustrative and reads as follows: 1. In a baler having a housing structure partially defining a baling chamber for forming large cylindrical bales and having a wrap material feed mechanism mounted to a lower rear region of the housing structure and including a pair of feed rolls and a roll support plate located rearward of said feed rolls for supporting an active roll of wrap material, with the feed rolls being selectively operable for feeding wrap material into the baling chamber from said active roll of wrap material for wrapping a bale contained therein, and a wrap material storage structure being located directly above said wrap material feed mechanism for holding an inactive roll of wrap material for use by the wrapping mechanism when an active roll has been depleted, the improvement comprising: a wrap material storage housing including at least one wrap material roll storage compartment, said wrap material storage housing having a raised working position wherein said at least one storage compartment is disposed above an active roll of wrap material supported on said roll support surface of said wrap material feeding mechanism, with said at least one roll storage compartment being adapted for holding a horizontally disposed, inactive roll of wrap material; and a coupling structure connected between a lower regions of said wrap material storage housing and said housing structure for allowing said wrap material storage housing to be selectively moved between said raised working position and a lowered storage housing loading position wherein said at least one roll storage compartment is approximately at a height above the ground in the range of from three feet to four feet. Appeal 2012-003057 Application 12/407,352 3 Rejections 1. Claims 1, 2, and 52 are rejected under 35 U.S.C. 103(a) as being unpatentable over Viaud (US Patent 6,272,816 B1; iss. Aug. 14, 2001) and Frerich (US Patent 4,691,403; iss. Sept. 8, 1987). 2. Claims 11 and 12 are rejected under 35 U.S.C. 103(a) as being unpatentable over Viaud, Frerich, and Chapon (US Patent 7,237,372 B2; iss. Jul. 3, 2007). ANALYSIS 1. Claims 1,2, and 5 – Viaud/Frerich The Examiner finds that Viaud discloses a housing including compartments formed by the housing and J-shaped roll supports 202 for holding an active roll and an inactive roll. Answer 5, 7. The Examiner further finds that Viaud discloses that housing cover 186 pivots upwardly rather than downwardly, and therefore, Viaud does not disclose the ability of the housing cover to be moved from a raised to a lowered loading position. Answer 5, 7. The Examiner finds that “Frerich teaches that it is old and well known in the art to provide a baler with a material storage area having a housing 214, which is rotated between a[n] upper raised working position to a lower load position for the purpose of loading a roll of wrapping material (see fig. 2).” Answer 5. The Examiner explains that “[t]he teaching of 2 Although the Examiner’s Grounds of Rejection states that “[C]laims 1, 2 and 5–8 are rejected[,]” the Examiner has rescinded the rejection of claims 6–8, stating, “Upon consideration of Appellant’s brief, the [E]xaminer has rescinded the rejection of claim 6–8. These claims now stand objected.” Answer 4 (emphasis added). Appeal 2012-003057 Application 12/407,352 4 Frerich was supplied to show [A]ppellant that the use of downward pivoting storage housing (as opposed to an upward pivoting housing) which can accept a roll of material was well known in the art.” Answer 7 (emphasis added). The Examiner reasons that “[t]here is sufficient evidence to support a determination that it would be obvious to one of ordinary skill in the art to combine the primary reference of Viaud with the teaching of Frerich to arrive at Appellant’s invention[,]” because “[b]oth references are analogous art and utilize similar structures for loading and storing rolls of wrapping material[,]” and “[m]oreover, the combined references generally reflect an appropriate level of skill of an ordinary person in the art to support a determination of obviousness.” Id. Finally, regarding Frerich’s failure to disclose the loading of an inactive roll, the Examiner cautions against individually attacking the features of each reference in order to rebut obviousness. Answer 7–8. Appellant argues that Viaud’s housing 186 “does not include a wrap material storage compartment[,]” but “spare roll supports 202” fixed relative to, and which do not pivot with, housing 186, and which “are located at a height requiring an operator to extend his arms a considerable distance above his waist.” Br. 10. Moreover, Appellant argues that “neither Viaud [] nor Frerich disclose a housing having a compartment for receiving an inactive [] roll . . . , and no obvious combination of Viaud [] and Frerich would result in the claimed housing which includes at least one compartment for holding an inactive roll at a location above an active roll support plate, as claimed.” Br. 12. Appellant contends that “Frerich’s teaching of mounting the housing so as to pivot downwardly to a loading position for receiving . . . an active roll does not make obvious the idea of Appeal 2012-003057 Application 12/407,352 5 pivoting a housing downwardly for receiving at least one . . . inactive roll, especially since Viaud [] already has the arm portion 132 which serves to load a wrap material roll onto the support plate so as to serve as an active roll.” Id. Although we agree with the Examiner’s finding that Viaud discloses a material storage housing including at least one storage compartment for holding an inactive roll, wherein the storage compartment is above an active roll in the raised position, we are persuaded by Appellant that neither reference discloses that the housing (which, as called for in claim 1, includes such storage compartment for an inactive roll) can be selectively moved to a lowered storage housing loading position. In particular, the storage compartment described in Viaud is fixed, as discussed by Appellant above, and Frerich does not disclose a storage compartment for holding an inactive roll, but rather a housing that may be pivoted downwardly for loading an active role into a compartment used to dispense the wrap material when pivoted into the raised position. We also conclude that the Examiner’s reasoning for the Examiner’s determination of obviousness, namely, that Viaud and Frerich are analogous art involving similar structures, or that the combined references generally reflect an appropriate level of skill to an ordinary person in the art, is insufficient to support a determination of obviousness, because the Examiner has failed to articulate rational underpinnings for the proposed reason to modify Viaud’s fixed storage compartment, in view of Frerich’s downwardly pivoting compartment for loading an active roll. See, e.g., 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, Appeal 2012-003057 Application 12/407,352 6 418 (2007). Accordingly, we do not sustain the Examiner’s rejection of claim 1. Appellants assert that “[c]laims 2 and 5–8 each depend directly or indirectly from claim 1 and are likewise allowable.” We note that the Examiner has withdrawn the rejection of claims 6–8, and we do not sustain the Examiner’s rejection of claims 2 and 5 for the reasons provided above. 2. Claims 11 and 12 – Viaud, Frerich, Chapon Appellants assert that “[c]laims 11 and 12 are thought allowable over this combination of art for the same reasons stated above for the allowance of claim 1[,]” by virtue of their dependencies, and “Chapon et al. does not overcome the above-discussed deficiencies of Viaud et al. and Frerich.” Br. 14. Because the Examiner relies on Chapon for disclosing “the use of a power assisted lift system to load the wrapping material,” we agree with Appellant’s assertion. Answer 9. Accordingly, we do not sustain the Examiner’s rejection of claims 11 and 12. DECISION We reverse the rejection of claims 1, 2, 5, 11, and 12. REVERSED Klh