Ex Parte Schafer

Patent Trial and Appeal BoardSep 18, 2012

11835477 (P.T.A.B. Sep. 18, 2012)

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. 11/835,477 08/08/2007 Rainer Schafer 09769-US 1495 30689 7590 09/19/2012 DEERE & COMPANY ONE JOHN DEERE PLACE MOLINE, IL 61265 EXAMINER TORRES, ALICIA M ART UNIT PAPER NUMBER 3671 MAIL DATE DELIVERY MODE 09/19/2012 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 RAINER SCHAFER ____________ Appeal 2010-003445 Application 11/835,477 Technology Center 3600 ____________ Before JOHN C. KERINS, GAY ANN SPAHN, and MICHAEL L. HOELTER, Administrative Patent Judges. SPAHN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Rainer Schafer (Appellant) seeks our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1-10. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2010-003445 Application 11/835,477 2 The Claimed Subject Matter The claimed subject matter relates to agricultural harvesters having “a detector . . . for foreign bodies taken up with the crop, which detector allows a foreign body taken-up to be readily detected.” Spec. 2, ll. 26-28. Claims 1 and 10 are independent and claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A foreign body detector for an agricultural harvester, comprising a sensing element fitted such that it is movable transversely to a direction of conveyance of a crop and which, during the harvesting operation, bears against the received crop, wherein the foreign body detector comprises a position sensor set up to register the position of the sensing element, and an evaluation circuit, which is operated to calculate on the basis of the signals of the position sensor information relating to at least one of the velocity or acceleration of the sensing element and, for the purpose of generating a signal value indicating the presence of a foreign body, to make a comparison with a threshold value. The Rejections The following Examiner’s rejections are before us for review. (1). Claims 1-3, 5-7, and 10 are rejected under 35 U.S.C. § 102(b) as being anticipated by Duncan (US 6,637,179 B2, issued Oct. 28, 2003). (2). Claim 4 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Duncan and Markham (US 3,388,538, issued Jun. 18, 1968). (3). Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable over Duncan and Bohman (US 4,805,385, issued Feb. 21, 1989). Appeal 2010-003445 Application 11/835,477 3 (4). Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable over Duncan and Faivre (US 5,282,389, issued Feb. 1, 1994). OPINION Anticipation based on Duncan Appellant argues claims 1-3, 5-7, and 10 as a group and we select independent claim 1 as representative. See Br. 3; see also 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 2, 3, 5-7, and 10 stand or fall with claim 1. The Examiner finds that Duncan discloses each and every element of independent claim 1 in order to anticipate claim 1. Ans. 3. In particular, the Examiner finds that Duncan discloses, inter alia, “a position sensor (15, 20) set up to register the position of the sensing element (3a),” and “an evaluation circuit (31), which is operated to calculate[,] on the basis of signals of the position sensor (15, 20)[,] information relating to acceleration of the sensing element . . . to make a comparison with a threshold value.” Ans. 3. Appellant first argues that Duncan’s “sensor 15 is an inertial or acceleration sensor . . . not a position sensor.” Br. 3. The Examiner responds that “the acceleration sensor of Duncan is inherently a position sensor for registering the position of the sensing element since in order to know the acceleration of the sensor, one must know the beginning and end times and positions of the sensor.” Ans. 4. In other words, the Examiner’s position is that “[i]n order to sense acceleration, a sensor must be capable of registering the position of the sensor.” Id. Although Appellant argues that Duncan discloses an inertial sensor, not a position sensor (Br. 3), the Examiner finds that the ability to register Appeal 2010-003445 Application 11/835,477 4 the position of the upper feed roll, though not explicitly described with respect to Duncan’s inertial sensor, is inherent in Duncan’s inertial sensor. Ans. 3, and 4-5. Further, the Examiner provided reasoning to support this finding. Ans. 4-5. Once the PTO establishes a prima facie case of anticipation based on inherency, the burden shifts to the applicant to prove that the prior art does not possess the characteristic at issue. See In re King, 801 F.2d 1324, 1327 (Fed. Cir. 1986). Appellant does not challenge the Examiner's finding of inherency, much less the technical reasoning in support thereof, and thus has not discharged that burden. Moreover, we note that Appellant’s Specification discusses Duncan in the Background of the Invention section stating that “[t]he acceleration sensors according to EP 1 632 128 A and US 6637179 respectively comprise a mass which is movably connected to the pre-compacting roller and a switch or a potentiometer which measures the position of the mass relative to the pre-compacting roller.” Thus, Appellant appears to admit that Duncan’s inertial or acceleration sensor 15 senses position. Accordingly, we do not find error in the Examiner’s rejection based upon Appellant’s first argument. Appellant next argues that “Duncan lacks the required evaluation circuit,” because “[t]he circuit 31 of Duncan is part of the sensor (see paragraph 0047)1 and does not make calculations regarding speed (first 1 We note that Duncan does not have paragraph numbers, but we presume that Appellant is referring to Duncan’s patent application publication (US 2003/0115846 A1, published Jun. 26, 2003). Duncan’s patent application publication is not of record in the present application file; however, since paragraph [0047] in Duncan’s patent application publication is the same as Appeal 2010-003445 Application 11/835,477 5 derivative) or acceleration (second derivative) before comparing the derived signal with a threshold.” Br. 3. The Examiner responds to Appellant’s argument by first asserting that Appellant’s statement about Duncan’s circuit 31 being a part of the sensor (15, 20) “is irrelevant since the claims never require that the circuit be separate from the sensor.” Ans. 5. We agree. The Examiner also responds to Appellant’s argument that Duncan’s evaluation circuit does not make calculations regarding speed or acceleration by finding that “Duncan discloses that the sensor may be an analog sensor” including “an analog circuit which emits a signal proportional to the sensed acceleration,” which may have “a comparator circuit for comparing the sensed acceleration with a threshold value.” Ans. 5 (citing to Duncan col. 8, ll. 9-10 and 34-39). From this disclosure, the Examiner concludes that “Duncan discloses a circuit for working with the analog sensor that calculates information relating to the acceleration of the analog sensor and compares the information with a threshold value.” Id. In Figures 8a and 8b, Duncan “graphically illustrate[s] the change height (h) and acceleration (a) over time of the upper feed roll 3a . . . in response to changing crop densities and foreign objects, respectively.” Duncan, col. 7, 64-67. Duncan discloses that “[i]f an analog sensor is used, it can emit a signal proportional to the sensed acceleration,” and the “analog sensor can comprise an accelerometer.” Duncan, col. 8, ll. 9-10 and 32. Duncan also discloses that the analog circuit further comprises “means such as a comparator circuit for sensing when first signals emitted from the sensor column 6, lines 62-65 of Duncan, we will consider that disclosure in Duncan. Appeal 2010-003445 Application 11/835,477 6 exceed a predetermined threshold acceleration and then emitting an additional signal or second signal indicative thereof which is used to shut down the feed mechanism.” Duncan, col. 8, ll. 35-40. Thus, according to Duncan’s Figure 8b, “large positive accelerations 186, 196 experienced by the upper feed roll 3a exceed the present threshold and cause the sensor 20 to trigger the shut-down circuitry of the foreign object detector and stop the feed mechanism 3.” Duncan, col. 8, ll. 51-54. As the measured time t and height h appear to be used to calculate the change in acceleration a which is compared with the threshold, we agree with the Examiner that under the broadest reasonable interpretation, Duncan discloses “an evaluation circuit, which is operated to calculate on the basis of the signals of the position sensor information relating to at least one of the velocity or acceleration of the sensing element . . . to make a comparison with a threshold value.” As such, we are not persuaded by Appellant’s second argument that the Examiner erred. Accordingly, we sustain the Examiner’s rejection of independent claim 1, and claims 2, 3, 5-7, and 10 which fall therewith, under 35 U.S.C. § 102(b) as anticipated by Duncan. Obviousness based on Duncan and Markham, Duncan and Bohman, and Duncan and Faivre Appellant has not presented any arguments assigning error to the Examiner’s rejections of: claim 4 under 35 U.S.C. § 103(a) as being unpatentable over Duncan and Markham; claim 8 under 35 U.S.C. § 103(a) as unpatentable over Duncan and Bohman; and claim 9 under 35 U.S.C. § 103(a) as unpatentable over Duncan and Faivre. Accordingly, we summarily sustain these rejections. See In re Berger, 279 F.3d 975, 984, Appeal 2010-003445 Application 11/835,477 7 985 (Fed. Cir. 2002) (holding that Board did not err in sustaining a rejection under 35 U.S.C. § 112, second paragraph, when the Appellant failed to contest the rejection on appeal.). DECISION We affirm the Examiner’s rejection of claims 1-3, 5-7, and 10 under 35 U.S.C. § 102(b) as being anticipated by Duncan. We summarily affirm the Examiner’s rejections of: claim 4 under 35 U.S.C. § 103(a) as being unpatentable over Duncan and Markham; claim 8 under 35 U.S.C. § 103(a) as unpatentable over Duncan and Bohman; and claim 9 under 35 U.S.C. § 103(a) as unpatentable over Duncan and Faivre. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Klh