Ex Parte Johnson et al

Patent Trial and Appeal Board

Aug 30, 2017

12645279 (P.T.A.B. Aug. 30, 2017)

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.
12/645,279 12/22/2009 Lynn Johnson GRN.0004.US01 7932
54245 7590 09/01/2017
ARCHER DANIELS MIDLAND COMPANY
4666 FARIES PARKWAY
DECATUR, IL 62526
EXAMINER
COX, STEPHANIE A
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
09/01/2017 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):
patent @ adm. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LYNN JOHNSON, DELRON E. ALBERT,
VANE CASE, and KEVIN C. JOHNSON
Appeal 2016-007384
Application 12/645,2791
Technology Center 1700
Before MARKNAGUMO, AVELYN M. ROSS, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1, 2, 4, 5, 8—10, 14, 18—21, 24, and 25. We have jurisdiction under 35
U.S.C. § 6(b).
1 Appellants identify Archer-Daniels-Midland Company as the real party in
interest. Appeal Br. 3.
2 In our Opinion, we refer to the Final Action issued January 13, 2015
(“Final Act.”); the Advisory Action issued May 27, 2015 (“Adv. Act.”); the
Appeal Brief field November 12, 2015 (“Appeal Br.”); the Examiner’s
Answer issued May 20, 2016 (“Ans.”); and the Reply Brief filed July 20,
2016 (“Reply Br.”).
Appeal 2016-007384
Application 12/645,279
We REVERSE.
The subject matter on appeal is methods for continuous ozone
treatment of grain for toxins. Claims 1 and 18, reproduced below with
disputed claim language emphasized, are illustrative of the claimed subject
matter:
1. A method for continuous treatment of grain for toxins,
comprising:
separating grain into a plurality of grain streams with a
density separator, thus producing more dense grain having
lower levels of toxins and less dense grain having higher
levels of toxins ',
placing an initial quantity of the less dense grain in a
storage container having a grain storage space and an aeration
floor that allows air to flow through the aeration floor into the
grain storage space;
wherein the storage container is one of a plurality of
storage containers, each storage container having the grain
storage space and the aeration floor that allows the air to flow
through the aeration floor into the grain storage space;
supplying ozone through the aeration floor under positive
pressure to the less dense grain at a concentration of 200-800
ppm, whereby the ozone is forced through the aeration floor
into a lower portion of the grain storage space;
waiting for an initial treatment time allowing for the
ozone to reduce toxins in a lower treated portion of the initial
quantity of the less dense grain;
performing the following while continuing to supply
ozone through the aeration floor under positive pressure:
removing the lower treated portion of the less
dense grain in the grain storage space; and
adding new grain on top of the less dense grain in
the grain storage space.
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Appeal 2016-007384
Application 12/645,279
18. A method for treatment of grain for toxins in one of a
continuous first-in-first-out process and a batch process using a
system comprising a plurality of storage containers, each
storage container having a grain storage space and an aeration
floor that allows air to flow through the aeration floor into the
grain storage space, the method comprising:
separating incoming grain into a plurality of grain
streams having different amounts of toxins to be treated, thus
producing more dense grain having lower levels of toxins and
less dense grain having higher level of toxins',
providing grain from the plurality of grain streams to
different storage containers;
treating the grain of the plurality of grain streams with
ozone for different amounts of time, wherein treating the grain
from each grain stream comprises:
periodically to continuously adding grain from a
selected grain stream to a storage container assigned to the
selected grain stream;
supplying ozone through the aeration floor of the
assigned storage container under positive pressure to the grain
at a concentration of 200-800 ppm, whereby the ozone is forced
through the aeration floor into a lower portion of the grain
storage space and does not pass to or through an upper surface
of the grain and into a storage space of the storage container,
the ozone reducing toxins and/or odor in a lower portion of the
grain an effective amount;
periodically to continuously removing a quantity
of treated grain from the bottom of the assigned storage
container; and
mixing the quantity of the treated grain having the
toxins reduced with grain having a desired amount of toxins.
Appeal Br. 13, 14—15 (Claims App’x).
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Appeal 2016-007384
Application 12/645,279
REFERENCES
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Moore
Lambert, Jr.
Le Gigan
Vetter et al.
(“Vetter”)
Decker et al.
(“Decker”)
US 1,220,160
US 3,755,917
US 5,181,616
US 2007/0134380 Al
Mar. 20, 1917
Sept. 4, 1973
Jan. 26, 1993
June 14, 2007
US 2009/0117016 Al May 7, 2009
REJECTIONS3
The Examiner maintains and Appellants seek review of the rejections
of claims 1, 2, 4, 5, 8—10, 14, 18—21, 24, and 25 under 35 U.S.C. § 103(a)
over (1) Decker in view of Lambert, Vetter, and Le Gigan; and (2) Lambert
in view of Moore, Vetter, and Le Gigan. Appeal Br. 4, 11.
OPINION
The claims require “separating grain into a plurality of grain streams
with a density separator, thus producing more dense grain having lower
levels of toxins and less dense grain having higher levels of toxins” (claim 1)
or “separating incoming grain into a plurality of grain streams having
different amounts of toxins to be treated, thus producing more dense grain
having lower levels of toxins and less dense grain having higher level[s] of
toxins” (claim 18).
3 The Examiner’s rejection of the pending claims under 35 U.S.C. § 112(a)
or 35 U.S.C. § 112 (pre-AIA), first paragraph, was withdrawn in the
Advisory Action as a result of Appellants’ amendment under
37C.F.R. § 1.116 on May 6, 2015.
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Appeal 2016-007384
Application 12/645,279
We refer to the Final Action for a complete statement of the
Examiner’s rejection. Final Act. 4—17.
The Examiner finds that the combination of cited prior art teaches
separating grain based on different densities and toxins and further treating
such grain to reduce the level of toxins. Ans. 16. The Examiner finds that
the references do not specifically teach that a more dense pile has less toxins
than a less dense pile, but finds that such property is inherent in different
grain piles based on density. Id.', see also Final Act. 5 (“With respect to
more dense grain having lower levels of toxins and less dense grain having
higher levels of toxins, the examiner believes such property to be inherent in
the different grain piles of Decker in view of Le Gigan as they are separated
based on density.”)(emphasis added); id. at 12 (same)
“In relying upon the theory of inherency, the examiner must provide
a basis in fact and/or technical reasoning to reasonably support the
determination that the allegedly inherent characteristic necessarily flows
from the teachings of the applied prior art.” In re Levy, 17 USPQ2d 1461
(BPAI 1990) (internal citations omitted). The extrinsic evidence “must
make clear that the missing descriptive matter is necessarily present in the
thing described in the reference, and that it would be so recognized by
persons of ordinary skill.” Continental Can Co. v. Monsanto Co., 948 F.2d
1264, 1268 (Fed. Cir. 1991). “Inherency . . . may not be established
by probabilities or possibilities. The mere fact that a certain thing may result
from a given set of circumstances is not sufficient.” Id. at 1269 (quoting In
re Oelrich, 666 F.2d 578, 581 (CCPA 1981). The initial burden of
establishing a prima facie case to deny patentability to a claimed invention
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Appeal 2016-007384
Application 12/645,279
rests upon the examiner. In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir.
1984).
Appellants persuasively argue that the Examiner has not met this
initial burden. Appeal Br. 10. None of the cited references discloses
separating grain based on density into more dense grain having lower levels
of toxins and less dense grain having higher levels of toxins, according to
Appellants. Id. at 9. Appellants argue that Le Gigan is the only cited
reference that mentions separating grain in any way, but the reference does
not mention toxins or that grains of different densities may have different
toxin levels. Id. at 10. Le Gigan discloses separating good grain from
impurities, such as dust, broken or small grain, medium impurities, and large
impurities. Le Gigan col. 1, In. 61—col. 2, In. 5.
The Examiner has not provided any evidence showing that a higher
toxin level in lower density grain necessarily flows from the teachings of the
cited art or that it would be so recognized by a person of ordinary skill in the
art. The Examiner’s stated belief that such property is inherent is
inadequate. See Final Act. 5.
In addition, Appellants provide extrinsic evidence that a number of
factors other than toxins affect grain density, including insect infestation,
moisture, frost damage, maturity, growing conditions, harvest conditions,
drying conditions, fine material, the degree of kernel damage, and the
variety of the grain. Appeal Br. 10.
On this record, the Examiner reversibly erred in rejecting claims 1,2,
4, 5, 8—10, 14, 18—21, 24, and 25 as obvious.
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Appeal 2016-007384
Application 12/645,279
DECISION
For the above reasons, we do not sustain the Examiner’s rejection of
claims 1, 2, 4, 5, 8—10, 14, 18—21, 24, and 25.
REVERSED
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