Ex Parte LeskiwDownload PDFPatent Trial and Appeal BoardJan 25, 201713625370 (P.T.A.B. Jan. 25, 2017) Copy Citation 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. 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 @ nhpat. com tclark@nhpat.com mbuj old @ nhpat. com 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 2 Appeal 2015-000459 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 3 Appeal 2015-000459 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 4 Appeal 2015-000459 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 5 Appeal 2015-000459 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. 6 Appeal 2015-000459 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 7 Appeal 2015-000459 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 8 Appeal 2015-000459 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 9 Copy with citationCopy as parenthetical citation