Ex Parte Deppermann et al

Patent Trial and Appeal Board

Nov 15, 2017

12252832 (P.T.A.B. Nov. 15, 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.
12/252,832 10/16/2008 Thomas Deppermann 810731 8154
95683 7590 11/17/2017
Leydig, Voit & Mayer, Ltd. (Frankfurt office)
Two Prudential Plaza, Suite 4900
180 North Stetson Avenue
Chicago, IL 60601-6731
EXAMINER
LEE, DOUGLAS
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
11/17/2017 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):
chgpatent @ ley dig. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS DEPPERMANN, MICHAEL FINKE,
and OLAF WITTE1
Appeal 2015-000666
Application 12/252,832
Technology Center 1700
Before ADRIENE LEPIANE HANLON, CHUNG K. PAK, and
WESLEY B. DERRICK, Administrative Patent Judges.
PAK, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134(a) from the
Examiner’s decision2 rejecting claims 1-3, 5, and 7-15, which are all of the
claims pending in the above-identified application. We have jurisdiction
under 35 U.S.C. § 6(b).
For the reasons set forth below, we AFFIRM-IN-PART. However,
pursuant to 37 C.F.R. § 41.50(b), we designate our affirmance of the
1 Appellants identify the real party in interest as “M1EEE & CLE, KG.”
Appeal Brief filed May 2, 2014 (“App. Br.”) 1.
2 Final Action entered January 30, 2014 (“Final Act.”) 2-8; and the
Examiner’s Answer entered August 19, 2014 (“Ans.”) 2-13.
Appeal 2015-000666
Application 12/252,832
Examiner’s § 103(a) rejections of claims 1-3, 5, 7, and 9-15 as including
new grounds of rejection.
STATEMENT OF THE CASE
The subject matter of the claims on appeal relates to “a method for
operating a dispensing system for a washing machine including a suds
container for receiving wash liquid, at least one supply container for holding
a treating agent, such as detergent or washing or rinse additives, and an input
means for selecting and activating the wash or treatment cycle.” Spec. 12.
“The treating agent for delivery to the suds container is selected based on
suitability information corresponding to the selected wash or treatment
cycles.” Spec. 110. When “the suitability information is rated using a scale
from 1 to 6, for example, with 1 standing for ‘very suitable’ and 6 standing
for ‘unsuitable’, then the threshold value may be selected to be 3[,]” thus
automatically dispensing a detergent “for all wash cycles for which the
suitability rating is 3 or better.” Spec. 122.
Details of the appealed subject matter are recited in representative
claims 1 and 8,3 which are reproduced below from the Claims Appendix of
the Appeal Brief (with disputed limitations in italicized form):
Claim 1. A method of operating a dispensing system for
a washing machine including a suds container for receiving
wash liquid and at least one supply container for receiving a
treating agent, the method comprising:
selecting and activating a wash or treatment cycle from a
plurality of wash or treatment cycles using an input device;
3 Appellants have separately argued claims 1 and 8 only. App. Br. 4-9.
Therefore, for purposes of this appeal, we limit our discussion to claims 1
and 8 pursuant to 37 C.F.R. § 41.37(c)(l)(iv) (2013).
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Application 12/252,832
evaluating suitability information of the treating agent
based on the selected wash or treatment cycle, the suitability
information quantifying the suitability of the treating agent for
the specific selected wash or treatment cycle;
selecting the treating agent for delivery to the suds
container if the suitability information reaches a threshold
value and delivering the treating agent to the suds container at
a start of the activated wash or treatment cycle; and
performing the activated wash or treatment cycle using a
controller.
Claim 8. A method for operating a dispensing system for
a washing machine including a suds container for receiving
wash liquid and at least one supply container for receiving a
treating agent, the method comprising:
receiving a first treating agent in a first container of the at
least one supply container;
receiving a second treating agent in a second container of
the at least one supply container;
selecting and activating a wash or treatment cycle from a
plurality of wash or treatment cycles using an input device;
evaluating suitability information of the first and second
treating agents based on the selected wash or treatment cycle,
the suitability information quantifying the suitability of the
treating agents for the specific selected wash or treatment
cycle, the suitability information including a respective
suitability value for the first treating agent corresponding to
each of the plurality of wash or treatment cycles and a
respective suitability value for the second treating agent
corresponding to each of the plurality of wash or treatment
cycles;
comparing the respective suitability information value
for the first treating agent corresponding to the selected wash
or treatment cycle with the respective suitability information
value for the second treating agent corresponding to the
selected wash or treatment cycle;
selecting one of the first and second supply containers
based on the comparison if the corresponding suitability
information value reaches a threshold value and delivering the
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Application 12/252,832
respective treating agent from the selected supply container to
the suds container at a start of the activated wash or treatment
cycle; and
performing the activated wash or treatment cycle using a
controller.
App. Br. 10-12, Claims Appendix.
Appellants seek review of, the following grounds of rejection
maintained by the Examiner:
1. Claims 1-3, 5, 7, 8, and 11-15 under 35 U.S.C. § 103(a) as
unpatentable over the combined disclosures of Skinner (EP 0 611 159 Al,
published August 17, 1994) and Wobkemeier (US 6,629,439 B2, published
October 7, 2003); and
2. Claims 9 and 10 under 35 U.S.C. § 103(a) as unpatentable over the
combined disclosures of Skinner, Wobkemeier, and Graf (GB 2 134 078 A,
published August 8, 1984). Final Act. 2-8; Ans. 2-13; App. Br. 2.
DISCUSSION
Having carefully considered the evidence relied upon by the Examiner
in light of Appellants’ arguments,4 we affirm the Examiner’s rejections of
claims 1-3, 5, 7, and 9-15 under 35 U.S.C. § 103(a), but reverse the
4 Any new arguments raised in the Reply Brief, which could have been
raised in the Appeal Brief, will not be considered. 37 C.F.R.
§ 41.37(c)(l)(iv) (“Except as provided for in §§ 41.41, 41.47 and 41.52, any
arguments or authorities not included in the appeal brief will be refused
consideration by the Board for purposes of the present appeal.”); see also Ex
parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (Informative)
(explaining that under the previous rules, which are similar to the current
rules, “the reply brief [is not] an opportunity to make arguments that could
have been made in the principal brief on appeal to rebut the Examiner’s
rejections, but were not.”).
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Examiner’s rejection of claim 8 under 35 U.S.C. § 103(a). However,
because some of our reasons for affirming the Examiner’s § 103(a)
rejections of claim 1-3, 5, 7, and 9-15 are materially different from those
expressed by the Examiner, we denominate our affirmance of such § 103(a)
rejections as including new grounds of rejection pursuant to
37 C.F.R. § 41.50(b). See In reLeithem, 661 F.3d 1316, 1319 (Fed. Cir.
2011) (“Mere reliance on the same statutory basis and the same prior art
references, alone, is insufficient to avoid making a new ground of rejection
when the Board relies on new facts and rationales not previously raised to
the applicant by the examiner.”). Our reasons follow.
In assessing the propriety of the Examiner’s § 103(a) rejections in
question, we evaluate the prior art references relied upon by the Examiner in
light of Appellants’ arguments, taking into account “demands known to the
design community,” “the background knowledge possessed by a person
having ordinary skill in the art,” and “the inferences and creative steps that a
person of ordinary skill in the art would employ” “in order to determine
whether there was an apparent reason to combine the known elements in the
fashion claimed.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Rejection 1
As evidence of obviousness of the subject matter recited in claims 1-
3, 5, 7, 8, and 11-15 under 35 U.S.C. § 103(a), the Examiner relied upon the
combined disclosures of Skinner and Wobkemeier. Final Act. 2. The
Examiner found, and Appellants do not dispute, that Skinner discloses a
method of operating a dispensing system for a washing machine, including a
suds container for receiving washing liquid, and at least one supply
container for receiving a treating agent. Compare Final Act. 2, with App.
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Br. 4-8. The Examiner also found, and Appellants do not dispute, that
Skinner’s method includes selecting and activating a wash or treatment cycle
using an input device. Compare Final Act. 2, with App. Br. 4-8; see also
Skinner, col. 3,11. 29^43 (“the desired wash programme is selected using the
machine’s own program controller ... as detected by the sensors 15
associated with detergent feed hoppers 8, the control device 13 will cause
the pump 10 to operate, thus dosing detergent from the detergent bulk
storage tank 11 into the washing tank 7 . . . the control device 13 will include
means by which an operator can select the amount of detergent to be
dispensed at each state of the cycle, dependent on the type and concentration
of detergent held in tank 11”). The Examiner further found that Skinner’s
method includes
evaluating the suitability information of the treating agent based
on the selected wash or treatment cycle, the suitability
information quantifying the suitability of the treating agent for
the specific selected wash or treatment cycle; selecting the
treating agent for delivery to the suds container if the suitability
information reaches a threshold value and delivering the
treating agent to the suds container at a start of the activated
wash or treatment cycle and performing the activated wash or
treatment cycle using a controller.
Final Act. 2-3 (citing Skinner col. 4,11. 8-39). The Examiner acknowledged
that “Skinner does not explicitly disclose selecting and activating [a] wash or
treatment cycle from a plurality of wash or treatment cycles using an input
device.” Final Act. 3.
To account for such a missing feature, the Examiner relied upon the
disclosure of Wobkemeier. Final Act. 3. The Examiner found, and
Appellants do not dispute, that “Wobkemeier discloses a laundry machine in
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which an input device is used to select and activate a wash or treatment
cycle from a plurality of wash or treatment cycles (see abstract) which can
determine the required type of detergent and amount of detergent.”
Compare Final Act. 3, with App. Br. 5-6.
Appellants do not question the Examiner’s determination that “[i]t
would have been obvious to one of ordinary skill at the time of the invention
to use the dispensing system method disclosed by Skinner in the laundry
machine of Wobkemeier . . . .” Compare Final Act. 3, with App. Br. 5-6.
Rather, Appellants contend that Skinner and Wobkeimeier, “both
individually and in combination, fail to disclose or suggest evaluating
suitability information based on a selected wash or treatment cycle, where
that suitability information quantifies the suitability of a treating agent for a
specific selected wash or treatment cycle, as required by claim l.”5 App. Br.
5. Appellants again contend that “[tjhere is no suggestion in any of the cited
references of any reason to evaluate suitability information based on a
selected wash or treatment cycle, or provide suitability information that
quantifies suitability of a treating agent for the specific wash or treatment
cycle.” App. Br. 6. However, we are not persuaded by these contentions.
As correctly found by the Examiner, Skinner discloses, for example,
sensing (detecting) and measuring a temperature of hot or cold water which
is delivered to a washing tank based on a selected specific (hot or cold) wash
or treatment cycle. Final Act. 3; Skinner col. 4,11. 8-39. Skinner’s sensing
and measuring a temperature of hot or cold water, according to the
5 According to paragraph 38 of the Specification, the suitability information
recited in claim 1 includes, inter alia, the types of fabrics, types of fibers,
and colors of fabrics.
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Application 12/252,832
Examiner, constitutes or implies evaluating and quantifying the temperature
of hot or cold water in the washing tank, which determines the suitability
and delivery of the amounts or types of treating agents. Final Act. 3 and
Ans. 9; Skinner col. 4,11. 12-24. Indeed, the relevant portion of Skinner
relied upon by the Examiner discloses that
the control device 13 may be programmed to dose a pre-wash
amount of detergent when the temperature sensor 14 detects the
presence of cold water in the tank 7. When the temperature
detector 14 senses the presence of water in the tank 7 at 40°C,
the control device 13 may be arranged to trigger the dosing of a
main wash amount of detergent, and possibly also the addition
of alkali reagents to the wash.
When the temperature sensor 14 detects the presence of
water at 60°C, then the control device 13 may be programmed
to deliver either bleach, or a combination of the detergent and
bleach.
Id. The above disclosure of Skinner also indicates that the quantified
temperature of the hot or cold water functions as a threshold value, e.g.,
40°C or 60°C, for delivering the treating agent to the washing tank (suds
container). Id. We note that Appellants do not specifically dispute the
Examiner’s interpretation of the suitability information recited in claim 1 as
including the temperature of hot or cold water in the washing tank discussed
in Skinner. Compare Final Act. 3 and Ans. 8-9, with App. Br. 5-6. Thus,
we find that Appellants fail to identify reversible error in the Examiner’s
finding that Skinner expressly and impliedly teaches or suggests evaluating
suitability information of the treating agent based on a selected wash or
treatment cycle, with the suitability information quantifying the suitability of
the treating agent for the specifically selected wash or treatment cycle as
recited in claim 1.
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To the extent that the measurement of such temperature does not
constitute the recited evaluation and quantification, as argued by Appellants,
we find that Wobkemeier discloses that
[i]n the washing machine, there is an electronic control device 8
with an electronic decision-making means or electronic
decision-maker 10. The control device 8 and its decision-maker
10 may have permanently integrated or variable laundry
treatment programs and a storage device or means for storing a
large number of parameters. The parameters are, in particular,
data for detecting and identifying types of fabric of items of
laundry and types and degrees of soiling of the items of laundry
and data on how many different types of items of laundry and
different types of soiling can be treated by a washing program
and/or a drying program. Such parameters also include data on
permissible treatment temperatures, treatment time periods, and
data on chemical, inorganic, or organic agents for treating the
items of laundry and their soiling.
. . . The decision-maker 10 identifies the items of laundry
detected by the measuring head 14 and calculates, from the
measured data and the stated parameters, which washing
program the identified items of laundry can be washed and/or
dried together at the same time.
According to a preferred embodiment, the display
devices 6 displays the values of the items of laundry measured
by the measuring head 14.
Wobkemeier col. 5,1. 44-col. 6,1. 5. The Examiner also referred to column
7, lines 6-13 of Wobkemeier, which discloses that
the control device 8 or its decision-maker 10 includes a
spectrometer, by which types of material, in particular, textiles,
fibers, type of soiling, and amount of soiling of items of laundry
are analyzed. From these parameters, the required type of
detergent and amount of detergent, and the laundry treatment
program to be recommended are then calculated and displayed
on the display device 6.
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According to paragraph 3 8 of the Specification, the suitability information
recited in claim 1 at least includes the types or colors of fabrics and/or types
of fibers discussed in Wobkemeier. The suitability information, such as the
types of fabrics identified as items of laundry, according to column 5, line
44-column 6, line 5 and column 7, lines 6-13 of Wobkemeier, is analyzed
(evaluated) and calculated to display values (quantified) for the purpose of
determining suitability of the required type of detergent and the required
amount of detergent. Implicit in the above teachings of Wobkemeier is that
the values or parameters are used as a threshold value for delivering the
required type of detergent and the required amount of detergent. Id. Thus,
we also determine that one of ordinary skill in the art would have been led to
evaluate the suitability information of the type disclosed in Wobkemeier,
which not only determines the desired or selected wash or treatment cycle,
but also quantifies suitability of the required treating agent for the given
selected wash or treatment cycle, in the dispensing method disclosed by
Skinner, with a reasonable expectation of successfully and effectively
treating or washing various laundry items in a washing machine. This is
particularly true in this situation because the use of hot or cold water in the
washing tank (suds container) taught by Skinner was known to be dependent
on the types or colors of fabric of laundry items to be washed.
Accordingly, we concur with the Examiner that the collective
teachings of Skinner and Wobkemeier would have rendered the subject
matter recited in claims 1-3, 5, 7, and 11-15 obvious within the meaning of
35U.S.C. § 103(a).
Claim 8, however, is on different footing. As Appellants correctly
argue, the Examiner erred in finding that Skinner discloses or suggests
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“comparing the suitability information values for the first and second
treating agents and selecting one of the supply containers holding the
treating agents based on the comparison, as required by claim 8.” App. Br.
7. Although the Examiner relied upon column 4, lines 40 48 of Skinner for
teaching such comparison, we cannot discern such comparison from the
disclosure of Skinner relied upon by the Examiner. Compare Final Act. 5,
with Skinner col. 4,11. 40^48. In particular, Skinner, at column 4, lines 40-
48, only discloses “comparison means to enable the outputs of sensors 14,
15, etc[.] to be compare[d] with predefined programmes [sic] so that the
control device 13 may identity the particular wash cycle being used by the
machine . . . and make the appropriate dosage of detergent, fabric
conditioner or other reagents at the appropriate time.” As contended by
Appellants, “selecting detergent or bleach based on a sensed water
temperature” is not such a selection, and nowhere does the above portion of
Skinner compare the suitability information values for the first and second
treating agents and select one of the supply containers holding the treating
agents based on such comparison, as recited in claim 8.
Accordingly, we concur with Appellants that the Examiner erred in
determining that the collective teachings of Skinner and Wobkemeier would
have rendered the subject matter recited in claim 8 obvious within the
meaning of 35 U.S.C. § 103(a).
Rejection 2
Appellants appear to rely upon the same arguments advanced in
connection with claim 1 discussed above to impart patentability to the
subject matter recited in claims 9 and 10. App. Br. 5-8.
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Accordingly, based on the same findings and reasons indicated supra,
we concur with the Examiner that the collective teachings of Skinner,
Wobkemeier, and Graf would have rendered the subject matter recited in
claims 9 and 10 obvious within the meaning of 35 U.S.C. § 103(a).
DECISION
For the reasons discussed above, we AFFIRM the Examiner’s
decision rejecting claims 1-3, 5, 7, and 9-15 under 35 U.S.C. § 103(a), but
REVERSE the Examiner’s decision rejecting claim 8 under 35 U.S.C.
§ 103(a). Pursuant to 37 C.F.R. § 41.50(b), we also denominate our
affirmance of the Examiner’s decision rejecting claims 1-3, 5, 7, and 9-15
as including new grounds of rejection because some of our reasons for such
affirmance are materially different from those expressed by the Examiner.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides “new ground[s] of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that the appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . . .
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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).
AFFIRMED-IN-PART; 37 C.F.R, $ 41.50(b)
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