Ex Parte Sarver et al

Patent Trial and Appeal BoardMar 15, 2017

13449789 (P.T.A.B. Mar. 15, 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. 13/449,789 04/18/2012 Larry C. Sarver 2543-120876 7429 28289 7590 03/17/2017 THE WEBB LAW FIRM, P.C. ONE GATEWAY CENTER 420 FT. DUQUESNE BLVD, SUITE 1200 PITTSBURGH, PA 15222 EXAMINER PAN, YUHUI R ART UNIT PAPER NUMBER 2121 NOTIFICATION DATE DELIVERY MODE 03/17/2017 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): patents @ webblaw. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LARRY C. SARVER and SOREN HAXVIG Appeal 2017-000679 Application 13/449,789 Technology Center 2100 Before BRADLEY W. BAUMEISTER, BETH Z. SHAW and ADAM J. PYONIN, Administrative Patent Judges. BAUMEISTER, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejections of claims 1—7 and 15—18. App. Br. 6.1 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Rather than repeat the Examiner’s positions and Appellants’ arguments in their entirety, we refer to the following documents for their respective details: the Final Action mailed March 27, 2015 (“Final Act.”); the Appeal Brief filed May 13, 2016 (“App. Br.”); the Examiner’s Answer mailed August 11, 2016 (“Ans.”); and the Reply Brief filed October 11, 2016 (“Reply Br.”). Appeal 2017-000679 Application 13/449,789 STATEMENT OF THE CASE Appellants describe the present invention as follows: In an irrigation system and method, a controller acquires data regarding soil moisture from one or more soil moisture sensors disposed in an irrigation area and determines whether to irrigate or withhold irrigation from the irrigation area based on a combination of evapotranspiration (ET) data and the acquired soil moisture data. An irrigation means is responsive to the controller determining whether to apply or withhold irrigation from the irrigation area for respectively applying or withholding irrigation from the irrigation area. Abstract. Independent claim 1, reproduced below, is illustrative of the appealed claims: 1. An irrigation method comprising: (a) a controller acquiring data regarding soil moisture from one or more soil moisture sensors disposed in an irrigation area, wherein the controller adjusts evapotranspiration (ET) data based on the soil moisture data; (b) the controller determining whether to irrigate or withhold irrigation from the irrigation area based on a combination of the ET data and the soil moisture data acquired in step (a); and (c) an irrigation means responsive to the controller determining whether to apply or withhold irrigation from the irrigation area in step (b) for respectively applying or withholding irrigation from the irrigation area. Claims 1—7, 15, 17, and 18 stand rejected under 35 U.S.C. § 103(a) as obvious over Evelyn-Veere (US 2006/0184285 Al; published 2 Appeal 2017-000679 Application 13/449,789 Aug. 17, 2006)2 in view of Allen et al., FAO Irrigation and Drainage Paper No. 56, Crop Evapotranspiration (guidelines for computing crop water requirements) (“Allen”). Claim 16 stands rejected under 35 U.S.C. § 103(a) as obvious over Evelyn-Veere in view of Allen and Hopkins et al. (US 5,097,861; issued Mar. 24, 1992). We review the appealed rejections for error based upon the issues identified by Appellants, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). FINDINGS AND CONTENTIONS The Examiner finds that Evelyn-Veere discloses all of the limitations of independent claim 1 other than teaching that the controller adjusts evapotranspiration (ET) data based on the soil moisture data. Final Act 4—5. The Examiner finds that Allen teaches that limitation (id. at 5—6 (citing Allen, pp. 135, 142, 144-46) and that motivation existed to modify Evelyn- Veere to include this teaching of Allen. Id. at 6. Appellants assert that “[Evelyn-jVeere and Allen both only consider using predetermined ET data (not ET data based on actual soil moisture data)[,] and Allen actually teaches away from measuring soil moisture. As such, features of the claims are not found or suggested in the cited references.” App. Br. 8. 2 The Examiner and Appellants refer to this reference more simply as “Veere.” See, e.g., Final Act. 5; App. Br. 6. 3 Appeal 2017-000679 Application 13/449,789 To support this contention, Appellants contend that the cited pages of Allen only describe determining a maximum evaporation based on values for a maximum soil water content at field capacity [m3 m-3], i.e., 0fc, and a minimum soil water content at wilting point [m3 m-3], i.e., 0fc. These are merely predetermined values and are not soil moisture data acquired from one or more soil moisture sensors disposed in an irrigation area. Id. at 9. ANALYSIS It is irrelevant whether some of Allen’s other ET data, such as maximum soil water content, constitutes predetermined data obtained from tables. The relevant question is whether Allen teaches that ET data may be based, at least in part, on soil moisture data that was acquired from soil moisture sensors. Allen makes clear that soil moisture data may be acquired in the manner claimed. Chapter 5 of Allen, entitled “Introduction to crop evapotranspiration (ETC),” includes a section “Calculation procedures.” Allen, pp. 89—91. This section includes two procedures: direct calculation (id. at 89) and the crop coefficient approach (id. at 90—91). Allen states the following in relation to the direct calculation approach: The evapotranspiration rate from a cropped surface can be directly measured by the mass transfer or the energy balance method. It can also be derived from studies of the soil water balance determined from cropped fields or from lysimeters? 3 A lysimeter is “an instrument for determining the amount of water-soluble matter in soil.” Webster’s Encyclopedic Unabridged Dictionary of the English Language 856 (1989). 4 Appeal 2017-000679 Application 13/449,789 Id. at 89 (emphasis added). Appellants further argue that no motivation existed to combine the teachings of Allen with Evelyn-Veere to achieve the claimed invention. App. Br. 12—14. But this argument also is premised on the inaccurate position that Allen fails to teach acquiring soil moisture data from actual soil moisture sensors. For the foregoing reasons, Appellants have not persuaded us of error in the Examiner’s obviousness rejection of independent claim 1. Accordingly, we sustain the Examiner’s rejection of that claim, as well as claims 2—7, 15, 17, and 18, which are not separately argued. App. Br. 14. See 37 C.F.R. § 41.37(c)(l)(iv). With respect to the remaining rejection of dependent claim 16, Appellants provide no patentability arguments directed to the additional reference, Hopkins. Rather, Appellants argue that Hopkins does not cure the alleged deficiency of Allen. App. Br. 14—15. Accordingly, for the reasons discussed above, we also sustain the rejection of claim 16. DECISION The Examiner’s decision rejecting claims 1—7 and 15—18 is 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)(1). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 5