Ex Parte Wagers et al

Patent Trial and Appeal Board

Aug 29, 2017

13842326 (P.T.A.B. Aug. 29, 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.
13/842,326 03/15/2013 Jesse L. Wagers 2754.092US1 9712
21186 7590 08/31/2017
SCHWEGMAN LUNDBERG & WOESSNER, P.A.
P.O. BOX 2938
MINNEAPOLIS, MN 55402
EXAMINER
WILTEY, NICHOLAS K
ART UNIT PAPER NUMBER
3669
NOTIFICATION DATE DELIVERY MODE
08/31/2017 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):
uspto@slwip.com
SLW @blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JESSE L. WAGERS,
DOUGLAS SAMUEL PRAIRIE,
CHARLIE R. SCHOENFELDER,
RAYMOND K. MUNK, and
STEPHEN FILIP FJELSTAD
Appeal 2017-003262
Application 13/842,326
Technology Center 3600
Before JOSEPH L. DIXON, ERIC S. FRAHM, and JOYCE CRAIG,
Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-003262
Application 13/842,326
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1—3, 13—17, 21—23, 28—31, 34, 35, and 38-40. Claims 4—12, 18—20,
24—27, 32, 33, 36, 37, and 41—43 are withdrawn from consideration. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The claims are directed to a multi-seed planter control system and
method for the same. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method of automatically planting two or more seed
types with an agricultural planter comprising:
monitoring a planter location on a prescription map of an
agricultural field, the planter including one or more remotely
adjustable planting characteristics;
as the planter moves in the agricultural field selecting a
seed type based on the corresponding monitored planter location
on the prescription map, the seed type including two or more seed
types, each of the two or more seed types associated with
differing seed prescriptions, the differing seed prescriptions each
comprising a different set of static planting characteristics
associated with the selected seed type, wherein the static planting
characteristics of each seed prescription are static for a selected
seed type;
operating the planter in the agricultural field according to
the selected seed type and seed prescriptions with associated
static planting characteristics for the selected seed type,
operating including:
as the planter moves in the agricultural field
dispensing the selected seed type to one or more seed
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metering systems of one or more row units based on the
selected seed type, and
as the planter moves in the agricultural field
dynamically changing one or more of the remotely
adjustable planting characteristics of the planter based on
the seed type selected and the seed prescription associated
with the seed type selected according to the monitored
planter location; and
as the planter moves in the agricultural field repeating
monitoring the planter location and according to the planter
location selecting the seed type and dynamically changing one or
more of the remotely adjustable planting characteristics of the
planter based on the seed type selected and the seed prescription
associated with the seed type selected.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Bender et al. US 5,915,313 June 29, 1999
(hereinafter “Bender”)
Stehling et al. US 7,775,167 B2 Aug. 17, 2010
(hereainafter “Stehling”)
Straeter US 2011/0178632 Al July 21,2011
(hereinafter “Straeter”)
REJECTION
The Examiner made the following rejection:
Claims 1—3, 13—17, 21—23, 28—31, 34, 35, and 38-40 are rejected
under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Bender in
view of Stehling and further in view of Straeter.
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ANALYSIS
With respect to the obviousness rejection of independent claims 1,21,
and 34, Appellants present arguments to the prior art rejection in the Appeal
Brief (App. Br. 12—20), but contend that the Examiner has modified the
grounds of rejection in the Examiner’s Answer (Reply Br. 2—5).
Consequently, we respond to Appellants’ arguments as set forth in the Reply
Brief.
We additionally note that Appellants’ Specification does not
specifically identify how the hardware/planter dynamically changes one or
more remotely adjustable characteristics of the planter based on the seed
type selected.
With respect to claims 1—3, 13—17, 21—23, 28—31, 34, 35, and 38—40,
Appellants argue the claims together. (App. Br. 12; see generally Reply Br.
2—10). We select independent claim 1 as the representative claim for the
group and address Appellants’ arguments thereto. 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner responds to Appellants’ arguments in the Appeal Brief
regarding the claim limitation specifically,
“as the planter moves in the agricultural field selecting a seed
type based on the corresponding monitored planter location on
the prescription map, the seed type including two or more seed
types, each of the two or more seed types associated with
differing seed prescriptions, the seed prescriptions comprising a
set of static planting characteristics stored in a database and
associated with the selected seed type, wherein the seed
prescriptions do not change once a seed type is selected and only
change with the selection of a different seed type.”
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(Ans. 11 (emphasis omitted).)1
The Examiner maintains:
Bender discloses that as the planter moves in the agricultural
field selecting a seed type based on the corresponding monitored
planter location on the prescription map (See Figs. 3 and 5 and
also See Col. 7 line 34-Col 8 line 24), as discussed above.
Bender also discloses the seed type including two or more seed
types, each of the two or more seed types associated with
differing seed prescriptions (See Figs. 3 and 5 and also See Col.
7 line 34-Col 8 line 9) wherein prescription type and rate maps
for a seed for multiple areas of a map show areas that have the
same prescription type or rate. Bender further discloses the seed
prescriptions comprising a set of static planting characteristics
stored in a database and associated with the selected seed type,
wherein the seed prescriptions do not change once a seed type is
selected and only change with the selection of a different seed
type (See Figs. 3 and 5 and also See Col. 7 line 34-Col 8 line 24),
wherein the prescription comprises an application rate stored in
a database (“prescription type and rate maps for seed may be
stored”), and wherein the seed prescriptions do not change once
a seed type is selected and only change with the selection of a
different seed type, wherein Bender discloses changing the
application rate of seed 2 in prescription 2. Therefore the claim
limitations are in fact disclosed by Bender.
(Ans. 11—12.) While we agree with Appellants that the Examiner has
slightly modified the wording of the rejection from the Final Office Action
to the Examiner’s Answer, we find the Examiner still relies upon the
combination of the same three references to teach or suggest the claimed
invention.
Appellants contend:
1 We note the end of the limitation actually states “wherein the static
planting characteristics of each seed prescription are static for a selected
seed type.”
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Appellants respectfully submit Bender appears to use the
location of the planter independently to dictate seed type and
population rate. Stated another way, seed type in Bender does
not dictate a planting characteristic as is recited in Appellants’
claims. Instead Bender relies on planter location, separate from
seed type, to determine the population rate.
(Reply Br. 5.)
From our review of each of the three prior art references, each
reference teaches planting of seeds, where the type of the seed necessarily
dictates the settings on the machine to plant the seeds correctly.
Additionally, we find that there would be known characteristics or settings
for the machine for each of different types of seeds as evidenced by the prior
art planting of seeds known to those skilled in the art. As a result, those
skilled in the art would have appreciated that the change in seed type in a
specific location would necessarily require an adjustment to the planting
machine for variations in seed types. Whether the machine would need to
stop and have adjustment made, or have the adjustments made on the fly or
have the adjustments made in the field or as the machine moves through the
field does not change the known correlation of the seed type to the planting
characteristics for the machine for different seed types.
Appellants generally refer to Figure 4 of the Specification (App. Br.
13) and provide an annotated Figure 4 (App. Br. 14) identifying that the seed
database 406 contains “[sjeed type selected is static operational value for
one or more of vacuum level, down-pressure on [Cjoulter, population rate,
agricultural product, and the like.” Appellants further contends:
Appellants’ method selects a seed type haying associated seed
prescriptions, the seed prescriptions comprising a set of static
planting characteristics associated with the selected seed type,
wherein the static planting characteristics of each seed
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prescription are static for a selected seed type, the static planting
characteristics are then implemented while planting the selected
seed type. Put differently, once a seed type is selected in
Appellants’ method the associated operating parameters dictated
by the seed prescriptions are static (e.g., fixed) and do not change
as with the variations (e.g., spacings between seeds, etc.) for a
selected seed type.
(Reply Br. 6 (emphasis omitted).) Appellants provide a comparison to the
third embodiment of Bender to the claimed invention. (Reply Br. 7.) We
note that the Examiner has not specifically relied upon the third embodiment
of the Bender reference in the grounds of rejection. (Final Act. 3—6; Ans. 4—
9.) Consequently, Appellants’ proffered distinction does not show error in
the Examiner’s factual findings or conclusion of obviousness of independent
claim 1.
Appellants further argue:
As stated in Bender, the control circuit utilizes two control
signals one associated with seed type (first control signal) a
second that is associated with rate (second control signal). As
best understood by the Appellants, these signals are not
associated with one another in the manner Appellants claim—
“that as the planter moves in the agricultural field, the one or
more planting characteristics of the planter dynamically changes
based on the seed type selected and the seed prescription
associated with the seed type selected according to the monitored
planter location.”
(Reply Br. 7.) Appellants further argue:
Bender again indicates “geo-referenced seed type and rate
maps” (Emphasis added; note plural) are stored and utilized. As
best understood, these type and rate maps are not associated with
one another in the manner Appellants claim— “that as the planter
moves in the agricultural field, the one or more planting
characteristics of the planter dynamically changes based on the
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seed type selected and the seed prescription associated with the
seed type selected according to the monitored planter location.”
(Reply Br. 8.) Moreover, Appellants argue:
Again as best understood by the Appellants, the data
indicative of prescribed types of seeds of Bender is not associated
in the manner Appellants claim—“that as the planter moves in
the agricultural field, the one or more planting characteristics of
the planter dynamically changes based on the seed type selected
and the seed prescription associated with the seed type selected
according to the monitored planter location.”
(Reply Br. 9.) Appellants further contend:
Bender again indicates “the type or rate of seed
prescribed” (Emphasis added note use of the alternative “or” in
passage). As best understood by the Appellants, the prescription
type or rate maps are not associated with one another in the
manner Appellants claim—“that as the planter moves in the
agricultural field, the one or more planting characteristics of the
planter dynamically changes based on the seed type selected and
the seed prescription associated with the seed type selected
according to the monitored planter location.”
Thus, as best understood, Bender discloses that location of
the planter dictates seed type independently from population
rate. Put simply, location and seed type are not married together
in Bender to determine population rate. In contrast, in
Appellants’ method “the one or more planting characteristics of
the planter dynamically changes based on the seed type selected
and the seed prescription associated with the seed type selected
according to the monitored planter location.” Furthermore,
Appellants’ method “selects a seed type having associated seed
prescriptions, the seed prescriptions comprising a set of static
planting characteristics associated with the selected seed type,
wherein the static planting characteristics of each seed
prescription are static for a selected seed type.”
(Reply Br. 9—10.) As a result, Appellants contend that the prior art does not
teach or suggest the claimed invention:
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as the planter moves in the agricultural field dynamically
changing one or more of the remotely adjustable planting
characteristics of the planter based on the seed type selected and
the seed prescription associated with the seed type selected
according to the monitored planter location;
and the claim limitation:
as the planter moves in the agricultural field selecting a seed type
based on the corresponding monitored planter location on the
prescription map, the seed type including two or more seed types,
each of the two or more seed types associated with differing seed
prescriptions, the seed prescriptions comprising a set of static
planting characteristics stored in a database and associated with
the selected seed type, wherein the seed prescriptions do not
change once a seed type is selected and only change with the
selection of a different seed type.
(Reply Br. 10.)2 We find Appellants’ argument does not show error in the
Examiner’s findings of fact or conclusion of obviousness of the invention of
representative independent claim 1.
We find that a majority of the proffered limitations for the distinction
pertain to details of the data which is used as the planting machine moves
through the field. We conclude that it would have been obvious to one of
ordinary skill in the art at the time of the invention that planting machine of
the Bender reference uses that same data because the settings of the
characteristics are set according to the selected seed type whether the seed
type is selected by the user or by the characteristic/prescription map to plant
the seeds correctly according to seed type.
2 We note the end of the limitation actually states “wherein the static
planting characteristics of each seed prescription are static for a selected
seed type.”
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To the extent Appellants contend that the planting characteristics for
specific seed types were unknown to those of ordinary skill in the art at the
time of the invention, then we cannot accept Appellants’ proffered
distinction because it is clear that one of ordinary skill in the art (a farmer
planting a field) knew that there are certain characteristics for differing seeds
and those characteristics would be either preset or changeable on the
planting machine.
To the extent Appellants contend that the data is stored and retrieved
in a different organization, we cannot accept Appellants’ proffered
distinction because the claim does not set forth how the data is stored, but
merely that it is used as the planter moves through the field.
Consequently, we find Appellants have not set forth any patentable
distinction on the organization of the data and how it changes the planting or
control of the planting apparatus beyond what is taught and fairly suggested
by the combination of prior art references.
We find the data and relationships between seeds and settings were
known and suggested to those skilled in the art as evidenced by the three
prior art references (Bender Figs. 5, 6 , col. 2; Stehling col. 2; Straeter col.
1.), but Appellants contend that the claimed invention dynamically change
the settings as the planter moves through the field. (Reply Br. 4—10.) We
find Appellants do not identify any difference in the planting machinery nor
the manner that the characteristics are changed by Appellants’ machinery or
by the computer control interface. Consequently, we find that Appellants’
claim merely recites that the characteristics are changed for different seed
types, but we find that the Bender reference teaches and fairly suggests the
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changing of settings for the planter from the relationship of the seeds to the
characteristics.
As a result, Appellants’ invention at most goes to storing the known
data in a database in some unclaimed manner and using that data in the
known manner to adjust the characteristics of the planting device to the seed
type to be planted. We find this to be well within the level of skill in the art
at the time of the invention.
We find Appellants’ claims to contain lengthy limitations about the
data that is merely used by the multi-seed planter, but the claims do not
detail how the data changes the operation/control of the planter beyond what
would have been apparent to one of ordinary skill in the art at the time of the
invention. We find Appellants merely repeat the language of the claim and
proffer that their data is different than the data of the Bender reference in
combination with the Stehling and Straeter references.
Consequently, we find Appellants’ mere recitation of the language of
the claim is insufficient. See 37 C.F.R. § 41.37(c)(vii) (“A statement which
merely points out what a claim recites will not be considered an argument
for separate patentability of the claim.”). Merely alleging that the references
fail to support an obviousness rejection is insufficient to persuade us of
Examiner error. Attorney arguments and conclusory statements that are
unsupported by factual evidence are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984); and Ex parte Belinne, No. 2009-004693,
slip op. at 7—8 (BPAI Aug. 10, 2009) (informative), available at
http://www.uspto.gov/web/offices/dcom/bpai/its/fd09004693.pdf.
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Here, we find Appellants’ arguments are conclusory in nature and fail
to address the thrust of the Examiner’s obviousness rejections. “Argument
in the brief does not take the place of evidence in the record.” In re Schulze,
346 F.2d 600, 602 (CCPA 1965) (citing In re Cole, 326 F.2d 769 (CCPA
1964)). This reasoning is applicable here.
On this record, we find Appellants have failed to present substantive
arguments and supporting evidence persuasive of Examiner error. Cf. In re
Baxter TravenolLabs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the
function of this court to examine the claims in greater detail than argued by
an appellant, looking for [patentable] distinctions over the prior art.”).
Based upon our review of the record, we find Appellants have failed
to present substantive arguments supported with specific factual evidence of
sufficient character and weight to persuade us of error regarding the
Examiner’s findings of obviousness regarding the Bender reference in
combination with the Stehling and Straeter references.
CONCEUSION
The Examiner did not err in rejecting claims 1—3, 13—17, 21—23, 28—
31, 34, 35, and 38—40 as obvious under 35 U.S.C. § 103.
DECISION
For the above reasons, we sustain the Examiner’s obviousness
rejection of claims 1—3, 13—17, 21—23, 28—31, 34, 35, and 38-40.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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