Ex Parte Richards

Patent Trial and Appeal BoardFeb 27, 2019

13348360 (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/348,360 01/11/2012 39231 7590 03/01/2019 SMITH LAW OFFICE 8517 EXCELSIOR DRIVE, SUITE 402 MADISON, WI 53717 FIRST NAMED INVENTOR Randall Richards 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 10004.746 6813 EXAMINER NGUYEN, SON T ART UNIT PAPER NUMBER 3643 NOTIFICATION DATE DELIVERY MODE 03/01/2019 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): JWS@JSMITHPATENTLAW.COM paralegal@j smithpatentlaw .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RANDALL RICHARDS Appeal2017-003758 Application 13/348,360 Technology Center 3600 Before JAMES P. CAL VE, GEORGE R. HOSKINS, and BRANDON J. WARNER, Administrative Patent Judges. HOSKINS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Randall Richards ("Appellant") 1 appeals under 35 U.S.C. Â§ 134 from the Examiner's decision rejecting all pending claims 1-5 and 11-15 in this application. The Board has jurisdiction over the appeal under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 The Appeal Brief identifies GEA Farm Technologies, Inc., part of GEA Group Aktiengesellshaft, as the real party in interest. Appeal Br. (filed Feb. 10, 2016), 3. Appeal2017-003758 Application 13/348,360 CLAIMED SUBJECT MATTER Claim 1 illustrates the subject matter on appeal, and it recites: 1. A device to apply a hoof treatment fluid to animal hooves, the device comprising: an animal pathway; a reservoir to contain a hoof treatment fluid; a sensor to detect the presence of an animal in the animal pathway; a sprayer directed toward an anticipated animal hoof location and in communication with the reservoir; a recycle compartment positioned to receive hoof treatment fluid from the sprayer that does not strike the hoof or the animal pathway; and a return system to return hoof treatment fluid received in the recycle compartment to the reservoir. Claims App. (filed July 5, 2016), 3. REJECTIONS ON APPEAL Claims 1-5 and 11-15 stand rejected under 35 U.S.C. Â§ 112, first paragraph, for lack of written description. Claims 1, 3-5, 11, and 13-15 stand rejected under 35 U.S.C. Â§ 102(e) as anticipated by Keller (DE 20 2009 006 076 Ul, pub. Sept. 16, 2010). Claims 2 and 12 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Keller. ANALYSIS A. Written Description (claims 1-5 and 11-15) In appealing the written description rejection, Appellant argues for the patentability of all claims 1-5 and 11-15 together in one group. See Appeal 2 Appeal2017-003758 Application 13/348,360 Br. 8-14. Accordingly, we select claim 1 to decide the appeal of the written description rejection as to all claims. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). The Examiner finds the Specification does not demonstrate possession of the limitation in independent claims 1 and 11 reciting that the recycle compartment receives fluid "that does not strike the hoof or the animal pathway." Final Act. (dated May 8, 2015), 2-3. The dependent claims are rejected on the same basis. Id. at 3. Appellant asserts the Specification demonstrates possession of the claimed subject matter, because it "describes and depicts the hoof treatment spray as being directed toward the recycle component, above the pathway and therefore not striking the animal pathway." Appeal Br. 8-9. Appellant construes the claim phrase "'does not strike' to ... cover the invention described throughout the [S]pecification, which is the recovery of spray that reaches the recycling compartment unobstructed." Id. at 9 ( emphasis added). In support of these contentions, Appellant cites various disclosures in the Specification. Id. at 9-12 (citing Spec. 3:22--4:3, 12:20-22, 13:3-5, 15: 14--19, Figs. 3 & 6). Appellant asserts the Specification uses the terms "pathway" and "floor" interchangeably, to refer to the walking surface that supports the animal as it walks through the device. Id. at 12 ( citing Spec. 3 :20-21, 4:2-3). The Examiner explains that, while the Specification indicates "the fluid sprayed from the sprayer does not strike the FLOOR or the WALKING SURFACE," nonetheless "the floor or the walking surface is not being claimed because the claim calls for the fluid sprayed from the sprayer does not strike the animal pathway." Final Act. 6. The Examiner construes the term "pathway" as "merely a path or a route that includes any space above 3 Appeal2017-003758 Application 13/348,360 the floor, and it is not the same as a floor." Id. (italics added); Ans. 2. The Examiner's position is that, in Appellant's Figures 3 and 6, fluid streams 51 and 83 "appear to strike or travel across the pathway," so those Figures "contradict what is being claimed." Final Act. 6; Ans. 4. Appellant replies that the Examiner's construction of the claim term "pathway" to encompass an empty space above a floor is unreasonably broad, particularly when read in conjunction with the claim term "strike," which a dictionary defines as "hit forcibly and deliberately." Reply Br. 2-3. We, first, determine that the Examiner's claim construction of the term "animal pathway" is consistent with the Specification. 2 See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (during examination of a patent application, pending claims are given their broadest reasonable construction consistent with the Specification). Starting with the claim language, claim 1 pertinently recites the device comprises "an animal pathway"; "a sensor to detect the presence of an animal in the animal pathway"; and a recycle compartment that receives fluid "that does not strike . .. the animal pathway." Claims App. 3 (emphases added). In reciting that the animal may be present "in" the animal pathway, the claim language supports the Examiner's interpretation that the animal pathway includes the space through which the animal passes as the animal moves through the device. If the animal pathway were limited to the floor of the device, as Appellant contends, then the claim would instead have recited a 2 The issue presented by the arguments on appeal is the proper claim construction of the term "animal pathway," in light of the Specification. Appellant does not assert the Examiner's construction fails to comport with the broadest reasonable construction. See Appeal Br. 8-16; Reply Br. 2-5. 4 Appeal2017-003758 Application 13/348,360 sensor to detect the animal "on" the animal pathway. See also Spec. 7: 17- 19 ("sensor 16 senses the presence of an animal by detecting the animal itself of an ear tag or other such device"), 8: 19-9: 12 ("sensor 16 can be a photoelectric sensing system that is activated when the animal breaks a beam of light," or "a wand type sensor ... tripped when an animal bends or pivots the wand"). The Specification similarly indicates the "hoof treatment device is placed in a pathway for an animal such that the animal can pass across it when it walks." Spec. 3:20-21 (emphasis added); id. at 5:14--15 (substantially same disclosure in connection with device 100). These passages refer to an animal pathway that exists independently of the device, wherein the device is "placed in" the animal pathway so the animal passes "across" the device when it walks. Thus, they do not correspond directly to the animal pathway of claim 1, because they describe a pathway into which the device is placed, rather than a device that includes an animal pathway. Nonetheless, they are consistent with the Examiner's claim construction of "animal pathway" as including the space through which the animal passes as it walks, and not just the surface that supports the animal as it walks. We have reviewed the other portions of the Specification cited by Appellant, and we find no support therein for Appellant's position that "pathway" is used interchangeably with "floor." The Specification indicates "overspray" that "does not strike the hoof' "is directed above the animal walking surface," but it does not equate the walking surface or floor to the animal pathway. Spec. 4:1-3; id. at 12:20-22 ("stream 51 sprays above the floor between the sprayer compartment 1 and the recycle compartment 2 when unobstructed"), 13:3-5, 15: 14--19. 5 Appeal2017-003758 Application 13/348,360 Based on the foregoing considerations, we agree with the Examiner's construction of the claimed "fluid ... that does not strike the hoof or the animal pathway" to mean that the fluid does not strike the hoof, or strike the space through which the animal passes as the animal moves through the device. We acknowledge that it is difficult to imagine a device in which the fluid can contact the animal's hoof, and thereby achieve the hoof treatment result of Appellant's invention, without the fluid first striking the space through which the animal passes as the animal moves through the device. See Spec. 1:16-17, 3:12-14. In this regard, however, we note that claim 1 does not entirely preclude the hoof treatment fluid from striking the hoof or animal pathway at all. The claim, more narrowly, specifies that the "recycle compartment [is] positioned to receive" fluid that does not strike the hoof or the animal pathway. Claims App. 3. Some fluid is free to strike the hoof, so long as the recycle compartment is positioned to receive fluid that does not strike the hoof or the animal pathway. See id. Thus, this construction of claim 1 does not result in an inoperative device. We conclude that Appellant's Specification does not demonstrate possession of the invention recited in claim 1, as construed above. For example, Figure 3 reflects fluid stream 51 is received by recycle compartment 2 only after stream 51 strikes the space through which the animal passes as the animal moves through the device. See Spec., Figs. 1-3, 5: 14---6:2, 7:22-8: 1, 9: 18-21, 12: 17-13: 11. Similarly, Figure 6 reflects fluid streams 82, 83 are received respectively within recycle areas 85, 84 only after the streams strike the space through which the animal passes as the animal moves through the device. See id. at 15: 14--19. 6 Appeal2017-003758 Application 13/348,360 Accordingly, we sustain the written description rejection of claims 1- 5 and 11-15. B. Anticipation by Keller (claims 1, 3-5, 11, and 13-15) Claims 1 and 3-5 In rejecting independent claim 1, the Examiner finds Keller discloses a hoof treatment fluid sprayer in which a recycle compartment is positioned to receive fluid that does not strike the hoof or the animal pathway. Final Act. 3 ( citing the English-language translation of Keller entered into the record by Appellant on July 31, 2012 ("Keller") ,r,r 27-28). Appellant contends Keller does not disclose such a recycle compartment. Appeal Br. 14--16. According to Appellant, Keller's apparatus "requires the hoof treatment chemicals to contact the animal pathway," because the bottom of Keller's apparatus collects "all spray ... whether or not it strikes the hoof' or "the animal pathway." Id. at 15-16. The Examiner responds that: There is no indication in the claimed limitation that the fluid is received in the recycle compartment directly from the sprayer; thus, anywhere that the recycle compartment is positioned, the recycle compartment will receive unused or overspray fluid from the sprayer that does not strike the hoof or the animal pathway because all fluids will eventually be received in the recycle compartment for recycling. Ans. 5-7. The Examiner finds Keller discloses such a recycle compartment, because "the fluid is recycled through pump E with filter F and returned back into the cycle in compartment of reservoir K," any one of which "can be considered a recycled compartment" as recited in claim 1. Id. at 6, 7. Appellant in reply maintains that Keller's pump E, filter F, and reservoir K are not "positioned to receive fluid that does not strike a pathway 7 Appeal2017-003758 Application 13/348,360 or an animal," as claimed, "because they all receive fluid that has been on the pathway, at least, and possibly an animal hoof as well." Reply Br. 4. Appellant's view is that Keller "only collects contaminated fluid after it strikes some surface of the apparatus and flows down to the pathway where it drains into a recycle compartment." Id. at 4--5. Appellant asserts such a "flow path causes the fluid to be contaminated with the manure, dirt, and other debris," which "is the very problem solved by the present invention" and therefore is excluded "in any reasonable interpretation of the claims." Id. at 5 (citing Spec. 13:20-23). We understand that the Examiner construes claim 1 to encompass a device in which the recycle compartment receives (a) fluid that strikes the hoof or the animal pathway, so long as the recycle compartment also receives (b) fluid that does not strike the hoof or the animal pathway. See, e.g., Ans. 5---6, 8-9. Even applying the Examiner's claim construction, however, we determine a preponderance of the evidence does not support the Examiner's finding that Keller's device has a recycle compartment that receives (b) fluid that does not strike the hoof or the animal pathway. As construed above, claim 1 in this regard requires the recycle compartment to receive fluid that does not strike the hoof or the space through which the animal passes as the animal moves through the device. Keller's Figure 3 illustrates that nozzles I, which spray the hoof treatment fluid, are placed within lattice H, which "serves as a running surface for the" animals. Keller, Fig. 3, ,r 24. It is not readily apparent to us, and the Examiner does not explain, exactly where or how Keller's device collects and recycles the hoof treatment fluid sprayed from nozzles I. It is clear that the fluid is recycled through pump D and/or pump E. See id. 8 Appeal2017-003758 Application 13/348,360 ,r,r 26-28. What is not clear, however, is what path(s) the liquid follows in between exiting nozzles I and entering pump D and/or pump E. See id. Figs. 1--4. Given that lack of clarity in the Keller disclosure, the Examiner's finding-that the recycled fluid will necessarily include (b) fluid that does not strike the space through which the animal passes as the animal moves through the device-is not supported by a preponderance of the evidence. The Examiner's finding requires that there is some pathway for fluid exiting nozzles I to be recycled from the animal treatment area without striking the space through which the animal passes. We see no support for such a finding in the Keller disclosure. Thus, we do not sustain the rejection of claim 1 as anticipated by Keller. The Examiner's additional consideration of dependent claims 3-5 does not cure the noted deficiency concerning claim 1. See Final Act. 3--4. Thus, we likewise do not sustain the rejection of those claims as anticipated by Keller. Claims 11 and 13-15 Independent claim 11, similarly to claim 1, recites a recycle compartment for receiving a sprayed chemical "that does not contact an animal hoof or the animal pathway." Claims App. 5. The Examiner's rejection of claim 11 is likewise substantially similar to the rejection of claim 1. See Final Act. 4. Therefore, for the reasons provided above in connection with claim 1, we do not sustain the rejection of claim 11 as anticipated by Keller. The Examiner's additional consideration of dependent claims 13-15 does not cure the noted deficiency concerning claim 11. See id. Thus, we likewise do not sustain the rejection of those claims as anticipated by Keller. 9 Appeal2017-003758 Application 13/348,360 C. Obviousness over Keller (claims 2 and 12) The Examiner's additional consideration of dependent claims 2 and 12 does not address the deficiency of Keller noted above in relation to independent claims 1 and 11. See Final Act. 5. Therefore, for the reasons provided above, we do not sustain the rejection of claims 2 and 12 as having been obvious over Keller. DECISION The rejection of claims 1-5 and 11-15 for lack of written description is AFFIRMED. The rejections of claims 1, 3-5, 11, and 13-15 as anticipated by Keller, and of claims 2 and 12 as unpatentable over Keller, are REVERSED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 10