LELY PATENT N.V.

Patent Trials and Appeals Board

Mar 2, 2022

2021005116 (P.T.A.B. Mar. 2, 2022)

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. 15/752,982 02/15/2018 Karel VAN DEN BERG 510914US 9960 22850 7590 03/02/2022 OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P. 1940 DUKE STREET ALEXANDRIA, VA 22314 EXAMINER NGUYEN, SON T ART UNIT PAPER NUMBER 3643 NOTIFICATION DATE DELIVERY MODE 03/02/2022 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): OBLONPAT@OBLON.COM iahmadi@oblon.com patentdocket@oblon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KAREL VAN DEN BERG, PAULUS JACOBUS MARIA VAN ADRICHEM, and DIK-JAN WISSE ____________ Appeal 2021-005116 Application 15/752,982 Technology Center 3600 ____________ Before STEFAN STAICOVICI, EDWARD A. BROWN, and ANNETTE R. REIMERS, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s decision rejecting claims 18-33, 35, and 36.2 An Oral Hearing was conducted on February 17, 2022. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies LELY PATENT N.V., as the real party in interest. Appeal Br. 1. 2 Claim 34 is withdrawn from consideration. Final Act. 1 (Office Act. Summ.). Appeal 2021-005116 Application 15/752,982 2 CLAIMED SUBJECT MATTER Claim 18, reproduced below, is the sole independent claim. 18. A system for milking a group of milking animals, including cows, wherein the system comprises: an accommodation space for the milking animals; a plurality of milking stations each arranged at a fixed location and next to each other, wherein the milking stations each comprise an entry opening for entry of a milking animal from the accommodation space to said milking station, and wherein each milking station at a head end thereof comprises a neck lock device, which can be moved by way of an actuator device between a locked state in which a milking animal in said milking station can be locked at the neck by the neck lock device, and an open state in which a milking animal in said milking station is free to move its head in and out of said neck lock device; a control system which is actively connected to the actuator device of each neck lock device, wherein the control system is configured to control the actuator devices; and an automatic milking system for automatic milking of milking animals present in the milking stations, wherein the milking system is configured to milk a milking animal which is locked at the neck in a milking station by way of the neck lock device of said milking station on condition that said milking animal fulfils a predefined milking criterion, wherein the control system is configured to determine, for each milking station, whether a milking animal in said milking station has at least one of a position and an attitude which is suitable for locking said milking animal at the neck by the neck lock device of said milking station, and to control the actuator devices such that each milking animal which enters one of the milking stations and then assumes said at least one of the position and the attitude, irrespective of whether said Appeal 2021-005116 Application 15/752,982 3 milking animal fulfils the milking criterion, is locked at the neck in said milking station by movement of the neck lock device of said milking station from the open state to the locked state. Appeal Br. 15 (Claims App.). REJECTION ON APPEAL Claims 18-33, 35, and 36 are rejected under 35 U.S.C. § 102(a)(1)/(a)(2) as being anticipated by Anglart et al. (WO 2014/055002 A1, pub. Apr. 10, 2014, hereinafter “Anglart”). Final Act. 2. ANALYSIS The Examiner finds that Anglart discloses all limitations of claim 18. Final Act. 2-4. Appellant contends that the rejection of claim 18 includes errors. Appeal Br. 8. Appellant first contends that the claim recites a “control system” configured to determine, for each milking station, whether a milking animal in said milking station has at least one of a position and an attitude which is suitable for locking said milking animal at the neck by the neck lock device of said milking station, and to control the actuator devices such that each milking animal which enters one of the milking stations and then assumes said at least one of the position and the attitude, irrespective of whether said milking animal fulfils the milking criterion, is locked at the neck in said milking station by movement of the neck lock device of said milking station from the open state to the locked state. Id. at 8-9 (emphasis omitted). This language is recited in the “wherein” clause in claim 18. Appellant contends that the broadest reasonable Appeal 2021-005116 Application 15/752,982 4 interpretation of the phrase “configured to” in relation to the controller system is to give the recited functional language patentable weight. Appeal Br. 10; Final Act. 10. The Examiner states that the recited language is merely a functional recitation of the control system, but nonetheless, submits that Anglart’s control system can perform the function. Id. In the Examiner’s Answer, the Examiner clarifies that the “[f]unctional recitation is given patentable weight and as long as the prior art has structures that can perform the intended function, then the prior art teaches the claimed function, which is what the control system of Anglart can do.” Ans. 5 (emphasis added). Accordingly, the Examiner has given patentable weight to the functional language following “the control system is configured to” in the “wherein” clause. Appellant also contends the Examiner fails to limit the milking stations in Anglart to only those stations that Anglart itself labels and describes as milking stations and containing structure for milking animals. Appeal Br. 8. Appellant also disagrees that Anglart discloses controlling the actuator devices such that each milking animal that enters one of the milking stations, and then assumes at least one of the position and attitude, is locked at the neck in the milking station. Id. Appellant quotes the Examiner: The control system of Anglart can unlock or lock a cow at the milking station with or without meeting milking criterion. In addition, the milking criterion is mainly for the stations that are designated with “M[.]” Otherwise, if the animal is just there to feed, then it goes into a station 35 and the neck locking device 39 will lock the animal regardless of milking criterion or not. Appeal 2021-005116 Application 15/752,982 5 Appeal Br. 10 (emphasis omitted); see also Final Act. 10-11. Appellant disagrees, stating: the claimed system is directed only to the milking stalls marked M in Anglart. The Final Office Action focuses on an activity that takes place only in the feeding stations 35 and not in the milking stations marked M in Anglart. The Office Action insists that any feeding station 35 may be a milking station, including stalls not designated with an M, and indeed that even a barn area can be called a milking station. Pages 12- 13. Applicants disagree. The “milking locations M” in Anglart are distinguished by Anglart itself from the “feeding stations 35” which are not milking locations M. Not all feeding stations 35 illustrated in figure 2 are milking stations. Only the feeding stations designated milking locations M are milking stations, i.e. an animal can only be milked while standing at one of these locations M. Appeal Br. 11 (emphasis added). Appellant also disagrees with the Examiner that “Anglart employs an automated robot milker, thus, the robot milker can go to any stations and milk the animal therein, which makes that station ‘a milking station.’” Appeal Br. 11 (quoting Final Act. 12). Rather, Appellant submits: in Anglart only the milking stations M have the required second coupling arrangement 19 needed for the self-driven milking device to perform a milking. This is also clearly indicated in Figure 2. The Final Office Action is thus wrong to suggest that Anglart’s self-driven device can go to any feeding station 35 and milk an animal. The self-driven device l can only go to the feeding stations 35 adjacent to a second coupling arrangement 19, i.e. the milking stations marked M in Fig. 2. Thus, what takes place in feeding stations not marked M is irrelevant to claim 18 and does not satisfy claim 18 as those stations, according to Anglart itself, are not milking stations. Id. at 12. Appeal 2021-005116 Application 15/752,982 6 Appellant’s contentions are persuasive. Anglart discloses that “[s]ome of the feeding stations are designated milking locations M, meaning that an animal can be milked while standing in a feeding position at one of these locations.” See Anglart 27:6-8. Figure 2 of Anglart shows feeding stations 35, including some labeled as milking stations “M.” Anglart describes “feeding stations which are not milking locations and at which milking is not possible.” See id. at 42:23-24 (emphasis added). Thus, Anglart distinguishes feeding stations where milking is not possible from feeding stations that are milking locations where milking is possible. Figure 2 of Anglart shows an animal “A” at a milking location M. As also shown, a self-driving device 1 is positioned in a feeding station 35 located between the milking location M where animal A is located and another milking location M. The Examiner does not establish with evidence that a milking animal can enter and be milked at the intermediate feeding station 35, or at any other feeding station 35 that is not designated as a milking location M. In the Examiner’s Answer, the Examiner asserts: Anglart did not teach that the milking animals are held at the neck during some visits but not during other visits as stated by appellant because page 26 of Anglart appears to teach that the neck lock device 39 locks the animal when the animal is in the position during feeding so as to prevent the animal from pulling its head back from the feed trough. This clearly means that at any time when the animal is in position to feed, the neck lock device locks the neck during that visit and not selectively during some visits but not during other visits. The only reason the animal goes to the feed station 35 is for feeding so during the animal’s visit to station 35 for feeding, the animal’s neck will always be locked. Otherwise, the animal is free to roam as stated in Anglart. As a matter of fact, even while milking, the animal is being fed and the neck is being locked with the neck lock device 39. Appeal 2021-005116 Application 15/752,982 7 Ans. 4 (additional emphasis added). We disagree with the Examiner’s reasoning. Anglart discloses: An animal identification device 38 is provided adjacent each feeding station 35 for recognising an animal approaching the feeding station to eat, such as by detecting a transponder worn by the animal on a neck collar. When an animal A is identified at a feeding station a control computer can decide from stored data whether the animal is due to receive some food and if appropriate actuate the metering means 37 to deliver the calculated quantity of food into the feed trough 36. When the animal’s head is in an eating position over the feed trough, the neck lock device 39 can be actuated so that the animal is retained in this position. See Anglart 26:25-27:3 (emphasis added). We interpret this passage as disclosing that the neck lock device 39 is actuated to retain the animal if both the control computer decides the animal is due to receive food and the animal’s head is in the eating position over feed trough 36. This passage does not disclose that the neck lock device 39 will be actuated to retain the animal if the control computer decides the animal is not due to receive food. As quoted by the Examiner, Anglart also discloses: To avoid animals becoming distressed, the control system can of course be programmed to admit an animal not eligible to be milked into a feeding station 35 which is designated a milking location M if all the feeding stations not designated milking locations are already occupied, and similarly to admit entry of an animal eligible to be milked into a feeding station that is not a milking location when all the feeding stations that are designated milking locations are occupied by other animals. Ans. 4; see also Anglart 42:24-30. According to the Examiner, this disclosure “clearly indicates that the control system can be programmed to admit an animal not eligible to be milked to be in feeding station 35 that is designated as M regardless of milking or not.” Ans. 4 (emphasis added). Appeal 2021-005116 Application 15/752,982 8 The Examiner determines that Anglart’s control system can clearly perform the function of the control system recited in the “wherein” clause. Id. However, the quoted disclosure in Anglart does not disclose that the control system is necessarily configured to: (a) admit an animal not eligible to be milked into a milking location M if all the feeding stations not designated as milking locations M are already occupied; and (b) control actuator devices such that each animal not eligible to be milked which enters one of the milking locations M and then assumes at least one of the position and the attitude is locked at the neck in the respective milking location M, as required by claim 18. Accordingly, the Examiner has not established by a preponderance of the evidence that Anglart discloses all limitations of the “wherein” clause recited in claim 18. Thus, we do not sustain the rejection of claim 18, and claims 19-33, 35, and 36 depending therefrom, as anticipated by Anglart. CONCLUSION We reverse the rejection of claims 18-33, 35, and 36. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 18-33, 35, 36 102(a)(1)/(a)(2) Anglart 18-33, 35, 36 REVERSED