Ex Parte Schafer et al

Patent Trial and Appeal BoardOct 22, 2012

10881082 (P.T.A.B. Oct. 22, 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. 10/881,082 06/30/2004 Charlie J. Schafer 14500/0008 8770 47608 7590 10/22/2012 Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C 666 Grand Ave Suite 2000 Des Moines, IA 50309 EXAMINER MAYO-PINNOCK, TARA LEIGH ART UNIT PAPER NUMBER 3671 MAIL DATE DELIVERY MODE 10/22/2012 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 CHARLIE J. SCHAFER, BRITT DINSDALE, WILLIAM LITTLER, IV, and PHIL ALGREEN ____________________ Appeal 2010-006302 Application 10/881,082 Technology Center 3600 ____________________ Before: JENNIFER D. BAHR, MICHAEL C. ASTORINO, and JAMES P. CALVE, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-006302 Application 10/881,082 2 STATEMENT OF THE CASE Charlie J. Schafer et al. (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1 and 3-17. Specifically, the Examiner rejected claims 13 and 15 under 35 U.S.C. § 102(b) as anticipated by McCarthy (US 5,342,144, iss. Aug. 30, 1994), rejected claims 14, 16, and 17 under 35 U.S.C. § 103(a) as unpatentable over McCarthy, and rejected claims 1 and 3-12 under 35 U.S.C. § 103(a) as unpatentable over McCarthy and Hampton (US 5,323,317, iss. Jun. 21, 1994). The Examiner withdrew the provisional obviousness-type double patenting rejection. Ans. 2. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. The Claimed Subject Matter Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A groundwater control system for an agricultural field to regulate the level of groundwater in said field according to selected criteria, said system comprising: (a) a buried field drainage tile line extending underground in said field to serve to drain water therefrom; (b) a water flow regulator located in said tile line and having a movable gate that is powered to control the flow of water therethrough; (c) means located in-ground, and exterior to said tile line and said water flow regulator, for sensing the amount of groundwater in said field before the groundwater enters said tile line on at least a periodic basis and for providing output signals representative of said groundwater information, said means for sensing is located exterior of both said drainage tile line and said regulator; (d) processing means programmed with the selected criteria for said groundwater level for receiving said output signals representative of said groundwater information and Appeal 2010-006302 Application 10/881,082 3 providing output signals to said flow regulator to control the position of said gate for meeting said selected criteria; and (e) a communication link linking said processing means, said means for sensing the amount of groundwater, and said flow regulator, said link comprising satellite receiving and transmitting means. OPINION Claims 13-17 In contesting the rejection of claims 13 and 15 as anticipated by McCarthy, Appellants argue that McCarthy’s soil moisture sensor is not a means for sensing groundwater. App. Br. 9, 10. In response, the Examiner points out that McCarthy discloses multiple exemplary embodiments, in addition to the soil moisture meter, for determining and collecting groundwater information. Ans. 11-12 (pointing to McCarthy, col. 9, l. 59 – col. 10, l. 7). Notably, one of the examples enumerated by McCarthy in the text cited by the Examiner is a pressure sensor, which is the same type of sensor disclosed by Appellants for monitoring the level of groundwater in the field. McCarthy, col. 10, l. 1; Spec., p. 5, ll. 20-22. Additionally, the Examiner explains that a soil moisture sensor would determine the percentage of water in the void spaces between soil particles and that an indication of saturation could readily be used to determine the level of groundwater in a soil volume. Ans. 12; see Spec., p. 2, ll. 12-15 (alluding to groundwater “in the soil”). Moreover, McCarthy’s ultrasonic water level sensor 82 could be used “to sense conditions indicative of wetland water level or water level rate of change” (McCarthy, col. 14, ll. 44-46) and in controlling drainage rates from agricultural and forest land, thereby allowing water tables to be managed more precisely (McCarthy, col. 3, ll. 26-29). As further pointed out by the Appeal 2010-006302 Application 10/881,082 4 Examiner, regulation of tidal fluctuations, water level, and hydroperiod is an object of McCarthy’s invention. Ans. 12; McCarthy, col. 4, ll. 55-60. Indeed, McCarthy discloses that the flow control structure 30 of the agricultural or forest drainage system of figure 16 “regulates water level in the collector ditch 114 and therefore water table level in the crop growing area 112.” McCarthy, col. 14, ll. 31-34. For the above reasons, the Examiner establishes a sound basis for the finding that the sensor in McCarthy’s agricultural or forest drainage system relied upon in the Examiner’s rejection determines information concerning the groundwater in the field (crop growing area 112). We sustain the rejection of claims 13 and 15 as anticipated by McCarthy. In contesting the rejection of claims 14, 16, and 17 as unpatentable over McCarthy, Appellants rely on the same unpersuasive argument asserted for claims 13 and 15. App. Br. 10. Thus, we also sustain the rejection of claims 14, 16, and 17. Claims 1 and 3-12 Independent claim 1 requires means located in-ground for sensing the amount of groundwater in a field, a water flow regulator, a processing means for receiving signals representative of the groundwater information from the sensing means, and a satellite receiving and transmitting means linking the processing means, means for sensing, and flow regulator. Independent claim 10 contains similar limitations, including a communication link including field transceivers for receiving output signals from the sensing means and providing gate control signals to the regulators, a base unit in communication with each of the field transceivers, and a satellite communication link between the base unit and the processing means. Appeal 2010-006302 Application 10/881,082 5 The Examiner finds that McCarthy lacks, inter alia, a communication link including a satellite receiving and transmitting means, as called for in claims 1 and 10. Ans. 9. The Examiner finds that Hampton discloses an apparatus for obtaining data relating to soil conditions, the apparatus comprising a satellite receiving and transmitting means 10 with an on-board sensor system 14 for remotely detecting an area 16, and a satellite processing system 18 for transmitting sensor output data from the satellite to a remote ground station 20. Ans. 10. The Examiner then determines it would have been obvious to modify McCarthy’s device “such that it would further include satellite receiving and transmitting means as taught by Hampton . . . to permit remote monitoring of the field by satellite.” Id. Appellants point out that neither Hampton nor McCarthy discloses transmitting between a satellite and means buried in a field for sensing groundwater levels as called for in Appellants’ claims. App. Br. 12. Thus, Appellants argue that the cited combination fails to teach or render obvious each and every element of claims 1 and 10. App. Br. 12, 13. We agree with Appellants. Hampton discloses a satellite communication link between sensors on board the satellite and a ground station 20. Even assuming the elements of Hampton and McCarthy are combined “for their known functions,” as explained by the Examiner (Ans. 15), the Examiner does not adequately explain how the elements would be combined to arrive at the claimed invention, namely a system including a satellite receiving and transmitting means linking the processing means, means for sensing, and flow regulator, as called for in claim 1, or a communication link including field transceivers for receiving output signals from the sensing means and providing gate control signals to the regulators, a base unit in communication with each of the field transceivers, and a Appeal 2010-006302 Application 10/881,082 6 satellite communication link between the base unit and the processing means, as required in claim 10. Thus, we do not sustain the rejection of claims 1 and 10 and their dependent claims 3-9, 11, and 12 as unpatentable over McCarthy and Hampton. DECISION The Examiner’s decision rejecting claims 1 and 3-17 is affirmed as to claims 13-17 and reversed as to claims 1 and 3-12. 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-IN-PART hh