Ex Parte Leskiw

Patent Trial and Appeal Board

Jan 25, 2017

13625370 (P.T.A.B. Jan. 25, 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.
13/625,370 09/24/2012 Leonard LESKIW THOLAM P459USD1 (tac) 8142
7590
DAVIS & BUJOLD, P.L.L.C.
112 PLEASANT STREET
CONCORD, NH 03301
EXAMINER
NOVOSAD, CHRISTOPHER J
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
01/27/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
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Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LEONARD LESKIW
Appeal 2015-000459
Application 13/625,370
Technology Center 3600
Before BRETT C. MARTIN, MICHELLE R. OSINSKI, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant Leonard Leskiw appeals under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 8—11.1 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
i Claims 1—7 are cancelled. Final Act. 2.
Appeal 2015-000459
Application 13/625,370
THE CLAIMED SUBJECT MATTER
The claims are directed to a “method and apparatus for enhancing the
soil structure of land.” Spec. 11. Claim 8, reproduced below, is the only
independent claim and is representative of the claimed subject matter:
8. An apparatus for use in enhancing the soil structure of land
having a topsoil layer and a subsoil layer, the apparatus
comprising:
a support frame;
at least one subsoil tiller blade mounted below the support
frame, the at least one subsoil tiller blade having a tilling surface
that loosens the subsoil when driven through the land, and a
bottom end, the at least one tilling surface being spaced from the
support frame a distance that causes the tilling surface to extend
to a depth of between 20cm and 50cm below a top surface of the
topsoil layer and into the subsoil layer;
a storage tank having a conveyor for conveying nutrients
into an outlet of the storage tank;
at least one channel having an inlet connected to the outlet
of the storage tank and an outlet toward the bottom end of the at
least one subsoil tiller for depositing the nutrients into the subsoil
layer.
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Brannan US 3,908,567 Sept. 30, 1975
Robillard US 6,860,336 B2 Mar. 1, 2005
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Application 13/625,370
REJECTIONS
The Examiner made the following rejections:
1. Claims 8—11 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brannan.
2. Claims 8—11 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brannan and Robillard.
Appellant seeks our review of these rejections.
ANALYSIS
Appellant argues claims 8—11 as a group. Br. 3—11. We select claim 8
as the representative claim, and claims 9—11 stand or fall with claim 8.
37 C.F.R. §41.37(c)(l)(iv).
With respect to the rejection of claim 8 over Brannan alone, the
Examiner finds that Brannan discloses all of the limitations of claim 8
except that Brannan does not explicitly state that its tilling surface of its
subsoil tiller blade 15 extends to a depth of between 20 cm and 50 cm below
a top surface of the topsoil layer and into the subsoil layer. Final Act. 2—3.
The Examiner, however, determines that it would have been obvious to use
the recited tillage depth because “the selection of a specific tillage depth
range of between 20 cm and 50 cm below a top surface of the topsoil layer
and into the subsoil layer merely represents an obvious choice of
engineering design for optimum tillage efficiency and operation.” Id. at 3^4.
With respect to the alternate rejection of claim 8 over Brannan and
Robillard, the Examiner finds that Brannan discloses all of the limitations of
claim 8 except for (1) the land having a subsoil layer, (2) the disclosed tiller
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Application 13/625,370
blade being a subsoil tiller blade in particular, and (3) the tilling surface of
the tiller blade extending to the tillage depth of “between 20 cm to 50 cm
below a top surface of the topsoil layer.” Final Act. 5—6. The Examiner
determines that it would have been obvious to use Robillard’s subsoil tiller
blade for Brannan’s tiller blade 15 “for application of fertilizer to a subsoil
layer of soil for greater versatility of use” and “the use of a subsoil tillage
blade is notoriously old in the vlantins and asriculture arts for tillage in
situations where tillage of deep layers of soil is required.” Id. at 6. The
Examiner again stated that “the selection of a specific tillage depth range of
between 20 cm and 50 cm below a top surface of the topsoil layer and into
the subsoil layer merely represents an obvious choice of engineering design
for optimum tillage efficiency and operation.” Id.
Appellant presents several arguments asserting that the Examiner’s
rejections are incorrect. First, Appellant argues that “the cited art is
designed for a shallow application of fertilizer and seed to a field for the
purpose of growing crops, and that it would not be obvious to modify the
devices of either Brannan [] or Robillard [] to extend to the claimed tillage
depth range of between 20 cm and 50 cm.” Br. 4. In unsupported attorney
argument, Appellant argues that “[i]t is well known in the industry” that
“seeding deeper than 7.5 cm to 10 cm would be counterproductive” and
fertilizer should “be deposited around 5 cm deep, with a maximum depth of
about 10 cm.” Id. at 4—5. According to Appellant, “if seeds are planted any
deeper, they will not grow. If the fertilizer is deposited any deeper, it will
not be available for uptake by the seeds or the resulting plants.” Id. at 5.
Thus, Appellant concludes that
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Application 13/625,370
[NJeither Brannan [] nor Robillard [] relates to or describe tillers
that extend into the subsoil layer, which is the layer of soil
located below the topsoil, to the claimed depth range of between
20 cm and 50 cm. Moreover, since this depth is at least twice as
deep as the conventional depth at which seeds and fertilize [r] are
deposited, it is respectfully submitted that there would be no
motivation — in either Brannan [] or Robillard [] — to deposit the
nutrients from the storage tank to an outlet located “toward the
bottom end of the at least one subsoil tiller blade for depositing
the nutrients into the subsoil layer,” as presently claimed.
Br. 6-7.
The Examiner is correct that the selection of a specific tillage depth
range of between 20 cm and 50 cm below a top surface of the topsoil layer
and into the subsoil layer merely represents an obvious choice of
engineering design for optimum tillage efficiency and operation. “[WJhere
the general conditions of a claim are disclosed in the prior art, it is not
inventive to discover the optimum or workable ranges by routine
experimentation.” In re Applied Materials, Inc., 692 F.3d 1289, 1295 (Fed.
Cir. 2012) (citations omitted). “This rule is limited to cases in which the
optimized variable is a ‘result-effective variable.’” Id.', see Boesch, 617 F.2d
272, 276 (CCPA 1980) (“[DJiscovery of an optimum value of a result
effective variable ... is ordinarily within the skill of the art.”). “A
recognition in the prior art that a property is affected by the variable is
sufficient to find the variable result-effective.” In re Applied Materials, 692
F.3d at 1297. Here, Appellant admits that it is well-known that seeding and
fertilizer efficiency and efficacy are affected by tillage depth. See, e.g., Br.
4—5. Consequently, there can be no dispute that tillage depth is a result-
effective variable, and it is not inventive to discover the optimum tillage
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Application 13/625,370
depth by routine experimentation. Appellant does not identify any evidence
that the claimed range produced new, unpredictable, and unexpected results,
or that obtaining the claimed ranges was beyond the capabilities of one of
ordinary skill in the art.2 * * * 6In re Applied Materials, 692 F.3d at 1297—98.
Appellant’s unsupported argument also does not identify any evidence in the
prior art, and we have found none, that teaches or suggests that Brannan’s
and Robillard’s tillers cannot till the subsoil layer. Nothing indicates that the
optimization of the tillage depth variable was anything other than the
exercise of routine experimentation. Appellant does not show error by the
Examiner.
Second, Appellant argues that Brannan and Robillard disclose
“subsoil tillers” which only operate in the topsoil, and, thus, are different
from the claimed invention which operates in the subsoil layer below the
topsoil layer. See, e.g., Br. 6. There is nothing in the Brannan and Robillard
disclosures that limit their tillage, seeding, and fertilization depths, and,
other than unsupported attorney argument, Appellant does not identify
evidence supporting its argument. In re De Blauwe, 736 F.2d 699, 705 (Fed.
2 Appellant’s assertion that Appellant “discovered” that plants develop
“deeper roots, which further breaks down the compacted subsoil layer, and
rebuilds the structure of the soil more quickly than would otherwise be the
case” and “this [plant] growth matches or exceeds that on normal non-
compacted soils” is unsupported attorney argument. See, e.g., Br. 8; In re
De Blauwe, 736 F.2d at 705 (lawyer arguments and conclusory statements
which are unsupported by factual evidence are entitled to little probative
value). These allegations also are consistent with the purpose of Brannan
and Robillard to till, seed, and fertilize the soil to achieve better crop yields.
See, e.g., Brannan 1:5—10, 1:34—37, and Robillard, 1:6—8.
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Application 13/625,370
Cir. 1984) (lawyer arguments and conclusory statements which are
unsupported by factual evidence are entitled to little probative value). To
distinguish the prior art, Appellant initially alleges, without support, that
fertilizer/nutrients deposited more than “a maximum depth of 10 cm” “will
not be available for uptake by seeds or the resulting plants” (Br. 5), plants
grow primarily in the topsoil layer (id.), and “fertilizing and seeding a field
below at a depth of 20 to 50 cm . . . into the soil would significantly
negative impact crop yield” (Br. 10). Contradicting these assertions are
claim 8 which delivers nutrients into the subsoil layer, and Appellant’s
assertions that deeper roots actually grow into the subsoil layer and “allow[]
the plant to access more moisture and nutrients and this contributes to much
better growth.” Br. 8. Appellant’s argument is not persuasive.
Third, Appellant argues that “it would be necessary to redesign and
reinforce the tillers in order to withstand the additional forces that would be
encountered as the tiller passes through the ground at the claimed depth of
between 20 cm and 50 cm, e.g., below the top soil and into the subsoil.” Br.
7. Such unsupported and conclusory attorney argument is not persuasive. In
re De Blauwe, 736 F.2d at 705 (lawyer arguments and conclusory statements
which are unsupported by factual evidence are entitled to little probative
value).
Fourth, Appellant argues that the purpose of the claimed invention is
different from the purpose of Brannan and Robillard. Br. 7—8. According to
Appellant, the claimed invention seeks “to enhance the soil structure of land,
such as in reclamation efforts after the soil structure has been damaged by
heavy equipment” whereas “Brannan [] and Robillard [] both relate to
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Application 13/625,370
planting and growing crops - not reclamation efforts after the soil structure
has been damaged by heavy equipment.” Br. 7. Because the broad language
of claim 8 is not limited to “reclamation efforts,” Appellant’s argument is
not commensurate in scope with claim 8. See In re Self, 671 F.2d 1344,
1348 (CCPA 1982) (“[AJppellanf s arguments fail from the outset because
. . . they are not based on limitations appearing in the claims.”). Like claim
8 which allegedly enhances the soil with “nutrients,” Robillard and Brannan
also enhance the soil with fertilizer. See, e.g., Robillard 1:5—10 (Robillard
“invention relates to tillage equipment and, more particularly, to a subsoil
applicator which may be used to apply starter fertilizer or the like at the
same time it opens a seed furrow for accepting seeds from a trailing planter
opener”) and 1:34—37 (“enhances soil flow and achieves improved loosening
or fluffing action”); Brannan 1:6—8 (“The present invention relates to
agricultural apparatus for depositing [fertilizer] material beneath the surface
of the ground.”). Appellant’s argument is not persuasive.
Fifth, Appellant argues that there is “no motivation — in either
Brannan [] or Robillard [] — to deposit nutrients from the storage tank to an
outlet” as recited in claim 8 (Br. 7), and the Examiner’s combination of
Brannan and Robillard has “no real benefit” (Br. 9). Appellant, however,
does not address the Examiner’s articulated reasoning — to obtain optimum
tillage efficiency and operation and to apply “fertilizer to a subsoil layer of
soil for greater versatility of use” (Final Act. 6) — and, therefore, does not
show error by the Examiner. Appellant also fails to address the Examiner’s
finding that it is old and well known in the planting and agriculture arts to
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Application 13/625,370
till “deep layers of soil.” Id. The Examiner’s articulated reasoning has
rational underpinning.
Finally, Appellant argues that the Examiner’s rejections are based on
hindsight. See, e.g., Br. 7, 8. However, as discussed above, the Examiner’s
findings regarding the tillage depth of between 20 cm and 50 cm are routine
optimization. Appellant does not identify any knowledge relied upon by the
Examiner that was gleaned only from Appellant’s disclosure and that was
not otherwise within the level of ordinary skill in the art at the time of the
invention, thereby obviating Appellant’s assertion of hindsight. See In re
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Thus, Appellant does not
apprise us of error.
For the reasons above, the rejections of claim 8 are sustained. Claims
9—11 fall with claim 8.
DECISION
For the above reasons, the Examiner’s rejections of claims 8—11 are
AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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