Ex Parte Bush

Patent Trial and Appeal Board

Sep 20, 2017

13297753 (P.T.A.B. Sep. 20, 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.
13/297,753 11/16/2011 Shawn D. Bush 7025-111032 4495
28289 7590 09/22/2017
THE WEBB LAW FIRM, P.C.
ONE GATEWAY CENTER
420 FT. DUQUESNE BLVD, SUITE 1200
PITTSBURGH, PA 15222
EXAMINER
DEERY, ERIN LEAH
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
09/22/2017 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 SHAWN D. BUSH
Appeal 2016-006561
Application 13/297,753
Technology Center 3700
Before: JILL. D. HILL, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Shawn D. Bush (Appellant) appeals under 35U.S.C. § 134 from a
rejection of claims 1—5, 8—12, 15—17, and 20—25. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal 2016-006561
Application 13/297,753
CLAIMED SUBJECT MATTER
The claims are directed to a toilet fixture with directional jet flow.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A flush toilet, comprising:
a bowl having a waste receiving surface;
a drainage channel having an inlet connected with a
bottom portion of the bowl for discharging waste;
a throat adjacent the waste receiving surface and aligned
with the drainage channel;
a first water cleansing jet for supplying cleansing water
onto the waste receiving surface, the first water cleansing jet
disposed within the throat; and
a second water cleansing jet for supplying cleansing water
onto the waste receiving surface, the second water cleansing jet
disposed within the throat, wherein the second water cleansing
jet is offset from the first water cleansing jet, wherein the waste
receiving surface is substantially horizontal and the throat is
substantially vertical.
Appeal Br. 20 (Claims App.).
The prior art relied upon by the Examiner in rejecting the claims on
REJECTIONS
(I) Claims 1—3, 5, 8—10, 12,1 15—17, and 20-25 are rejected under
35 U.S.C. § 103(a) as unpatentable over Prokopenko and Maddock.
1 The heading of Rejection (I) lists claims 8—11, but claim 11 is not
discussed in the body of the rejection, and, rather, is separately discussed in
REFERENCES
appeal is:
Haas
Maddock
Prokopenko
US 1,111,746 Sept. 29, 1914
US 1,204,048 Nov. 7, 1916
US 2007/0113331 A1 May 24, 2007
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Application 13/297,753
(II) Claims 4 and 11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Prokopenko, Maddock, and Haas.
OPINION
Rejection (I); claims 1—3, 5, 8—10, 12, 15—17, and 20—25
Claim 1 requires that first and second water cleansing jets are
disposed within a throat, and that the throat is substantially vertical.
Independent claims 8 and 15 include substantially similar limitations.
The Examiner finds that Prokopenko discloses most of the limitations
of claim 1 including a first water cleansing jet within a substantially vertical
throat, but relies on Maddock as disclosing a second water cleansing jet.
Final Act. 3—A. The Examiner concludes that it would have been obvious to
have provided the throat of the flush toilet of Prokopenko with a second
water cleansing jet “so as to provide enhanced cleaning of the toilet bowl
structures.” Id. at 4. The Examiner alternately concludes that the second
water cleaning jet is a mere duplication of parts.* 2
Appellant argues that although Maddock “discloses a second jet (14),”
Maddock’s second jet is not located in the vertical throat. Appeal Br. 13.
According to Appellant, Maddock, “at most, suggests merely adding jets to
Rejection (II). Final Act. 3—5. Nonetheless, claim 12 is discussed in the
body of Rejection (I) (see Final Act. 4), and, thus, we understand that claim
12 is included in Rejection (I), and that claim 11 is rejected only as part of
Rejection (II).
2 Because we affirm the Examiner’s rejection based on the Examiner’s
reason for modifying Prokopenko using the teachings of Maddock, we do
not reach the Examiner’s additional reason for Rejection (I).
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Application 13/297,753
the horizontal waste receiving surface, not to any substantially vertical
throat.” Id.
The Examiner responds that the rejection does not rely on a “bodily
incorporation” of Maddock into the structure of Prokopenko, rather, the
rejection relies on “what the combined teachings of the references would
have suggested to those of ordinary skill in the art.” Ans. 2 (citing In re
Keller, 642 F.2d 413 (CCPA 1981). According to the Examiner, because
Prokopenko teaches “a water jet on a vertical throat” and because Maddock
teaches that “a plurality of jets aimed at a common focal point” provides
enhanced cleaning, the ordinary artisan would have used “a plurality of
water jets on the vertical throat of Prokopenko for enhanced cleaning of the
bowl.” Ans. 3. The Examiner states that positioning jets “to ensure
sufficient cleaning is a design choice easily resolved by the ordinary
artisan.” Id.
Appellant replies that Maddock has a specific arrangement of
elements to prevent clogs, and does not suggest that jets 13 and 14 provide
“enhanced cleaning.” Reply Br. 3. Appellant argues that although jets 13
and 14 of Maddock are “aimed at a common focal point, Maddock in no way
discloses or suggests that such an arrangement affects cleaning in any way.”
Id. According to Appellant, Maddock is silent to “any interaction that may
occur between the two jets 13, 14,” and does not suggest that adding “an
additional jet in the throat would provide any kind of improvement in
cleaning.” Id.
We do not agree with Appellant’s arguments. Maddock discloses that
reference numerals “13 and 14 indicate two jets both directed toward the
siphon leg 7, the jet 13 ... assisting materially in quickly cleaning the bowl
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Application 13/297,753
of its contents.” Maddock 1,11. 94—100. Although Maddock does not
explicitly disclose that jet 14 enhances cleaning, one of ordinary skill in the
art would understand that it does because jets 13 and 14 are both directed
toward discharge siphon 7, and any flow toward discharge siphon 7 will
increase the flow of material exiting the bowl and, thus, improve cleaning.
That is, preventing clogs and assisting in cleaning, both result in a cleaner
bowl. Maddock also discloses that “the invention is not limited to the exact
construction or arrangement as shown.” Id. at 1,11. 102—104. Hence, any
arrangement of two jets that enables the jets to both be directed toward the
siphon leg 7 appears to be within the teachings of Maddock, including the
arrangement depicted by the Examiner. See Final Act. 6. Accordingly, we
are not apprised of Examiner error on this point.
Appellant also argues that for any modification of “Prokopenko, based
on the teachings of Maddock the jet would be added to the substantially
horizontal waste receiving surface, not the substantially vertical throat...
and would be directed through the waste receiving surface, not onto the
waste receiving surface,” as required by the independent claims. Appeal Br.
15.
We disagree with Appellant’s argument because it relies on the bodily
incorporation of the particular embodiment of the jets shown by Maddock
and does not address the way the Examiner applies Maddock in the rejection
of claim 1. See Ans. 2. As discussed above, Maddock is not limited to the
specific embodiment shown. Appellant does not argue that the Examiner’s
proposed modification of Prokopenko based on Maddock does not result in
the second water cleansing jet supplying cleansing water onto the waste
receiving surface. See Final Act. 6. Indeed, Appellant’s jets 38, 39 depicted
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Application 13/297,753
in Figure 4, reproduced below, and Prokopenko’s jet 95 depicted in Figure
2A, reproduced below, are similarly angled, and, thus, the Examiner has a
solid basis for concluding that a second water cleansing jet would supply
cleansing water onto the waste receiving surface. See id.', see also Ans. 3.
Figure 4 is reproduced below:
f%. H
Figure 4 is a schematic front view of an embodiment of Appellant’s toilet.
Figure 2A is reproduced below:
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Application 13/297,753
FIG. U
Figure 2A an enlarged view of Prokopenko’s jet delivery means.
Moreover, Appellant’s argument applies a rigid requirement for a
teaching, suggestion, or motivation (TSM) within the references cited. This
is not the standard for determining whether claimed subject matter would
have been obvious. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415
(2007) (stating “We begin by rejecting the rigid approach of the Court of
Appeals. Throughout this Court’s engagement with the question of
obviousness, our cases have set forth an expansive and flexible approach
inconsistent with the way the Court of Appeals applied its TSM test here.”).
We are satisfied that the Examiner’s proposed modification (providing the
throat of Prokopenko with a second water jet) is adequately connected to the
rationale (to provide enhanced cleaning) set forth by the Examiner. See
Final Act. 4.
Accordingly, we affirm the Examiner’s rejection of claim 1 as
unpatentable over Prokopenko and Maddock. Claims 2, 3, 5, 8—10, 12, 15—
17, and 20-25 fall with claim 1.
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Application 13/297,753
Rejection (II); claims 4 and 11
The Examiner finds that the combined teachings of Prokopenko and
Maddock do not suggest jets having different water cleansing velocities.
Final Act. 5. The Examiner finds, however, that Haas teaches “first and
second water jets (A3, A4)” that will have different exit velocities, “owing
to their different diameters.” Id. The Examiner concludes that it would
have been obvious to have jets of various water velocities “to allow for the
waste receiving surface to be more completely cleaned.” Id.
Appellant argues that Examiner’s rejection relies on assumptions
including “that the water supplied to the two jets of Haas is supplied at the
same pressure such that the difference in diameter would cause the velocities
of the water expelled from the jets to be different.” Appeal Br. 17.
According to Appellant, Haas does not disclose any parameters that suggests
that that the jets would have different velocities. Id. at 17—18. Appellant
thus asserts that “the Examiner is going well beyond the disclosure of Haas
in asserting that FIG. 2” of Haas suggests two jets with different velocities,
as recited. Id. at 18.
The Examiner responds that the jets in Figure 2 of Haas are (1) fed by
lines that are “approximately equal,” (2) have “different diameters,” and (3)
are fed by a single “water supply.” Ans. 4. The Examiner states that Figure
2 of Hass thus suggests “that the water exiting the pipes of Haas will have
two different velocities owing to their different diameters.” Id. The
Examiner notes that “unintended or unexplained” features in the drawings
cannot be discounted and, rather, “must be evaluated for what they
reasonably disclose and suggest to one of ordinary skill in the art.” Id.
(citing In re Aslanian, 590 F.2d 911 (CCPA 1979).
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Application 13/297,753
We agree with Appellant that Figure 2 of Hass is insufficient to
support a finding that Hass provides two jets having different velocities.
Although Figure 2 of Hass may show that jets a3 and a4 have different
diameters,3 Hass does not disclose a difference between jets and rather,
discloses that “instead of a single jet... I may use a plurality of the same.”
Hass, 3,11. 65—67. Moreover, even though Haas discloses a single water
inlet D “connected with a water supply” (Haas, 2,11. 17—20) and shows two
lines ending at jets a3 and a4 that have a similar length (Haas, Fig. 2), each of
the above features relates to volume of flow in, or through the pipe, not
velocity. Given that velocity and diameter are not necessarily directly
related, the evidence falls short of supporting the Examiner’s rejection.
Accordingly, we reverse the Examiner’s rejection of claims 4 and 11
as unpatentable over Prokopenko, Maddock, and Haas.
DECISION
The Examiner’s decision to reject claims 1—3, 5, 8—10, 12, 15—17, and
20—25 is affirmed.
The Examiner’s decision to reject claims 4 and 11 is reversed.
3 Hockerson-Halberstadt, Inc. v. Avia Group Inti, 222 F.3d 951, 956 (Fed.
Cir. 2000) (“[I]t is well established that patent drawings do not define the
precise proportions of the elements and may not be relied on to show
particular sizes if the specification is completely silent on the issue.”).
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Appeal 2016-006561
Application 13/297,753
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)(l)(iv).
AFFIRMED-IN-PART
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