Ex Parte O et al

Patent Trial and Appeal BoardJan 7, 2013

10474692 (P.T.A.B. Jan. 7, 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. 10/474,692 09/02/2004 Christopher Brian O'Toole 14642.0001 5629 7590 01/07/2013 D Douglas Price Steptoe & Johnson 1330 Connecticut Avenue NW Washington, DC 20036 EXAMINER TORRES, ALICIA M ART UNIT PAPER NUMBER 3671 MAIL DATE DELIVERY MODE 01/07/2013 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 CHRISTOPHER BRIAN O’TOOLE and GARY CHARLES LANE ____________ Appeal 2010-000754 Application 10/474,692 Technology Center 3600 ____________ Before CHARLES N. GREENHUT, BRETT C. MARTIN, and TIMOTHY J. O’HEARN, Administrative Patent Judges. O’HEARN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 involving claims to an aquatic plant harvester. The Examiner has rejected all pending claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2010-000754 Application 10/474,692 2 THE INVENTION Appellants’ claimed invention relates to a device for harvesting underwater plants. Claims 14, 32, 37, and 38 are independent. Claim 14, reproduced below, is representative of the subject matter on appeal. 14. An aquatic harvester for use with an aquatic craft, the aquatic craft including sides, a bow and a stem, the aquatic harvester including a frame which includes one or more arms, each arm having a forward end portion and each arm being pivotally connected to the aquatic craft at a position spaced from the bow, said forward end of each arm being adapted for connection with an implement, the implement including a collection zone for collecting harvested material or articles, the harvester further including a suction pump operatively carried by the aquatic craft in spaced relation from the implement, and a transfer conduit between the suction pump and the implement arranged to transfer collected material or articles from the collection zone of the implement to the aquatic craft, a controller for controlling the pivotal position of each arm relative to the aquatic craft, a strainer assembly on the craft for receiving a flow of water with the harvested material or articles therein from the suction pump and releasing the water and retaining material or articles and a conduit extending from an outlet of said pump to said strainer assembly, the strainer assembly including a straining bag having at least a collapsed form and an open form, and a support for supporting said straining bag, said support including a platform at an elevation above at least a part of one side of the craft, said platform extending towards and over the side of the craft, the platform being enclosed around its perimeter, other than to let water flow over the side of the craft, and said bag being disposed on and above said platform. In addition, claims 32, 37, and 38 also specify that the frame “includes no more than one arm.” Appeal 2010-000754 Application 10/474,692 3 THE REJECTION Claims 14-17, 21-23, 27, 32-34, and 37-48 are rejected under 35 U.S.C. § 103(a) as being unpatentable over O’Brien (US 3,962,803; June 15, 1976) in view of Niewiera (US 4,261,160; Apr. 14, 1981). ANALYSIS Rejection of Claims 14-17, 21-23, 27, 32-34, and 37-48. Regarding claims 14 and 37 and their dependent claims, each of these claims specifies that the straining bag that captures the harvested material is “disposed on and above said platform” which supports it. The Examiner cites Niewiera for this feature. The Niewiera patent shows a bag that is almost entirely hanging over the edge of a platform. See Fig. 2. Appellants argue that this configuration does not match Appellants’ claim language. Appeal Br. 8-9. A review of the Specification and drawings shows that Appellants’ invention involves a strainer bag within the confines of the water craft to receive the pumped output of the plant clippings. No portion of the bag is off or below the platform on which it is disposed. The claims also specify that the platform is “enclosed around its perimeter, other than to let water flow over the side of the craft” which would mean that the entire bag is contained above the platform. In contrast, the Niewiera bag is slung over the edge and most of it hangs freely in space. When construed in light of the Specification and in the context of the claim, the claim language “disposed on and above said platform” would therefore be understood to refer to the entire bag and not merely a portion of it. Thus, the claim should not be construed to encompass a harvester having the free hanging Appeal 2010-000754 Application 10/474,692 4 configuration disclosed in Niewiera. Accordingly, the rejection is not sustainable. Regarding claims 32 and 38 and their dependents, each of these claims specifies that the harvester include a frame “which includes no more than one arm disposed generally centrally of the underside of the aquatic craft...” The Examiner cites O’Brien for this feature. The O’Brien patent shows an assembly that involves two structural members that are attached to the cutting assembly head. These members are identified as “boom arms 55.” Col. 2, l. 47. Consequently, Appellants argue that this prior art does not match the claim language, which is limited to a single arm disposed generally centrally of the underside of the aquatic craft. The Examiner appears to take the view that O’Brien has only one of the particular type of arm defined by the claim. The negative limitation of a single arm in the claims appears to only refer to the “disposed generally centrally” clause of the claim. The O’Brien patent itself refers to the members 55 as “arms,” and the Examiner has not made it clear what features distinguish boom arms 55 such that they would not reasonably be considered arms as defined by the claims. Accordingly, the rejection of these claims is not sustainable. DECISION The Examiner’s rejection of claims 14-17, 21-23, 27, 32-34, and 37- 48 under 35 U.S.C. § 103(a) is reversed. REVERSED babc