Ex Parte Deppermann et alDownload PDFPatent Trial and Appeal BoardNov 15, 201712252832 (P.T.A.B. Nov. 15, 2017) Copy Citation 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). 2 Appeal 2015-000666 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 3 Appeal 2015-000666 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.”). 4 Appeal 2015-000666 Application 12/252,832 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. 5 Appeal 2015-000666 Application 12/252,832 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 6 Appeal 2015-000666 Application 12/252,832 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. 7 Appeal 2015-000666 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. 8 Appeal 2015-000666 Application 12/252,832 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. 9 Appeal 2015-000666 Application 12/252,832 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 10 Appeal 2015-000666 Application 12/252,832 “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. 11 Appeal 2015-000666 Application 12/252,832 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. . . . 12 Appeal 2015-000666 Application 12/252,832 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) 13 Copy with citationCopy as parenthetical citation