Ex Parte Montgomery et al

Patent Trial and Appeal BoardApr 28, 2013

11373383 (P.T.A.B. Apr. 28, 2013)

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. 11/373,383 03/10/2006 James Leonard Montgomery 17323-US 5935 30689 7590 04/29/2013 DEERE & COMPANY ONE JOHN DEERE PLACE MOLINE, IL 61265 EXAMINER TROUTMAN, MATTHEW D ART UNIT PAPER NUMBER 3671 MAIL DATE DELIVERY MODE 04/29/2013 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 JAMES LEONARD MONTGOMERY, BRETT ERRTHUM, and JASON MICHAEL PLINE ____________ Appeal 2011-000600 Application 11/373,383 Technology Center 3600 ____________ Before NEAL E. ABRAMS, ANNETTE R. REIMERS, and BRADFORD E. KILE, Administrative Patent Judges. ABRAMS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE James Leonard Montgomery et al. (Appellants) seek our review under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 13-19. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. Appeal 2011-000600 Application 11/373,383 2 THE INVENTION The claimed invention is directed to a method for retrofitting a work vehicle having a hydraulics system for controlling operation of a blade with a control system without modifying the hydraulics system. Claim 13, reproduced below, is illustrative of the subject matter on appeal. 13. A method for use with a work vehicle comprising a blade and a hydraulics system for controlling operation of blade and non-blade functions of the work vehicle, the method comprising retrofitting the work vehicle with any one of multiple blade position sensing and control systems, each having cooperating on board and vehicle remote instrument packages, without modifying the hydraulics system. THE PRIOR ART The Examiner relied upon the following as evidence of unpatentability: Nielsen US 4,805,086 Feb. 14, 1989 Ohtomo US 6,450,267 B2 Sep. 17, 2002 Lumpkins US 7,121,355 B2 Oct. 17, 2006 THE REJECTIONS Claims 13-19 stand rejected under 35 U.S.C. § 102(a) as being anticipated by Lumpkins. Claims 13-19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ohtomo in view of Lumpkins. Claims 13-19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ohtomo in view of Nielsen. Appeal 2011-000600 Application 11/373,383 3 OPINION Claims 13-19 – Anticipation Lumpkins Central to this rejection is the Examiner’s finding that Lumpkins teaches retrofitting the work vehicle with a blade sensing and control system (Col. 5, l. 10) without modifying the hydraulics system (Col. 5, ll. 9-20), as required by claim 13. Ans. 3-4. Appellants argue in rebuttal that “Lumpkins actually teaches retrofitting the vehicle with a particular system by modifying the hydraulic system of the vehicle, i.e., the blade pitch control system 132, when Lumpkins couples the pilot hydraulic valve 140 to the existing main hydraulic valve 142. (See Figure 2 and column 5, lines 9- 14).” Br. 4; Reply Br. 4. Lumpkins is directed to a system for automatically controlling the pitch of a bulldozer blade as the machine moves over uneven ground so that the blade levels the ground. Col. 2, ll. 20-31. With reference to Figure 2, Lumpkins discloses a bulldozer blade pitch control system 132 comprising an operator control device 128 for allowing the operator to manually control the pitch of blade 112 by sending signals to an electronic controller 136, which in turn positions a pilot valve 140 that controls hydraulic fluid flow to a main hydraulic valve 142. Col. 4, ll. 25-27. The system also can automatically control the pitch of blade 112 by means of a blade position sensor 134 that sends signals to electronic controller 136 and thence to pilot valve 140 and main hydraulic valve 142. Col. 4, ll. 32-37. Mode selection is made at the option of the operator by manipulation of switch 144. Col. 6, ll. 4-9. Lumpkins explains Appeal 2011-000600 Application 11/373,383 4 [a] bulldozer can be retrofitted with a blade pitch control system such as that described herein, by coupling pilot hydraulic valve 140 to an existing bulldozer blade control system to that bulldozer’s existing main hydraulic valve 142. In this manner, the operator can use the bulldozer’s existing blade control input devices to drive the bulldozer’s existing valve 142 and control the bulldozer blade position, or the operator can release those controls (which may be electrical, mechanical, fluidic or a combination of any of the three) and control the blade using the blade control system described herein. Col. 5, ll. 10-20. Lumpkins describes retrofitting the blade control system described in the reference by “coupling pilot hydraulic valve 140 to an existing bulldozer blade control system” that has an “existing main hydraulic valve 142” (id., emphasis added), and therefore it is clear that pilot hydraulic control valve 140 is not an existing component of the bulldozer’s blade control system. In the Lumpkins system, a source of hydraulic fluid 148 is coupled to both pilot hydraulic valve 140 and main hydraulic valve 142 to provide the hydraulic fluid used to operate the valves and the hydraulic cylinders. Col. 6, ll. 50- 56. Since the output of pilot hydraulic control valve 140 “is applied to both ends of [the] main hydraulic valve 142,” which causes blade 112 to move (Col. 5, ll. 1-9; Fig. 2), the insertion of pilot hydraulic control valve 140 constitutes a modification to the bulldozer’s existing hydraulic control system. This being the case, Lumpkins fails to comply with the limitation in claim 13 that the retrofitting of the work vehicle be accomplished “without modifying the hydraulics system,” and therefore Lumpkins does not anticipate the method recited in the claim. This rejection of claim 13 is not sustained nor, it follows, is the like rejection of claims 14-19, which depend from claim 13. Appeal 2011-000600 Application 11/373,383 5 Claims 13-19 – Obviousness Ohtomo In View Of Lumpkins Here the Examiner has found all of the subject matter recited in claim 13 to be taught by Ohtomo, except for the teaching of retrofitting the work vehicle with a blade positioning sensing and control system without modifying the hydraulic system. Ans. 5. However, the Examiner has taken the position that Lumpkins teaches that “it is known to retrofit a work vehicle with a blade positioning system (Col. 5 Line 10) without modifying the hydraulics system,” and it would have been obvious to a person of ordinary skill in the art “that the system disclosed by Ohtomo could be used to retrofit a work vehicle that does not include a blade position sensing and control apparatus as Lumpkins has taught it to be well known . . . for aiding in the control of the position of the blade.” Ans. 6. On the basis of the reasoning set forth supra, we determined that Lumpkins fails to teach retrofitting a blade positioning and sensing system to a work vehicle “without modifying the hydraulics system,” as required by claim 13. This being the case, even assuming, arguendo, that it would have been obvious to combine the teachings of Ohtomo and Lumpkins, the result would not render the subject matter recited in claim 13 obvious, and therefore this rejection of independent claim 13 and dependent claims 14-19 is not sustained. Claims 13-19 – Obviousness Ohtomo In View Of Nielsen Again, the Examiner found all of the subject matter recited in claim 13 to be present in Ohtomo, except for the teaching of retrofitting the work vehicle with a blade positioning sensing and control system without modifying the hydraulic system. Ans. 8. The Examiner has taken the Appeal 2011-000600 Application 11/373,383 6 position that this feature is taught by Nielsen (Col. 2, ll. 57-58), and it would have been obvious to combine the teachings of these two references “for aiding in the control of the position of the tool.” Id. Nielsen is directed to a method and apparatus for controlling an excavator bucket to accurately position the cutting edge to a desired depth. Col. 2, ll. 34-37. The passage of Nielsen cited by the Examiner states, in its entirety, “[i]n an alternative embodiment, a field-installable control system is provided for retrofit of existing excavators.” Id. at ll. 57-58. However, claim 13 requires not only that a blade position sensing and control system retrofitted to the work vehicle, but that this be accomplished without modifying the vehicle hydraulics system, and the Examiner has not pointed out where this teaching is found in Nielsen. Thus, even if it were obvious to combine the teachings of the two references, the result would not meet all the limitations of claim 13. This rejection of claims 13-19 is not sustained. DECISION The rejection of claims 13-19 as being anticipated by Lumpkins is reversed. The rejection of claims 13-19 as being unpatentable over Ohtomo in view of Lumpkins is reversed. The rejection of claims 13-19 as being unpatentable over Ohtomo in view of Nielsen is reversed. REVERSED hh