Ex Parte DewingDownload PDFPatent Trial and Appeal BoardJun 15, 201512455163 (P.T.A.B. Jun. 15, 2015) 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. 12/455,163 05/29/2009 David Dewing 09DD001 9874 71836 7590 06/15/2015 D. MORGAN TENCH 1180 CORTE RIVIERA CAMARILLO, CA 93010 EXAMINER BERRY, STEPHANIE R ART UNIT PAPER NUMBER 3727 MAIL DATE DELIVERY MODE 06/15/2015 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DAVID DEWING ____________ Appeal 2013-0064131, 2 Application 12/455,163 Technology Center 3700 ____________ Before JOSEPH A. FISCHETTI, PHILIP J. HOFFMANN, and BRADLEY B. BAYAT, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the rejection of claims 1–6 and 12–18.3 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. According to Appellant, the “invention is concerned with swimming pools, and in particular with means of cleaning and removing debris from 1 Our decision references Appellant’s Specification (“Spec.,” filed May 29, 2009), Appeal Brief (“Appeal Br.,” filed Oct. 25, 2012), and Reply Brief (“Reply Br.,” filed Apr. 4, 2013), as well as the Examiner’s Answer (“Answer,” mailed Feb. 20, 2013). 2 Appellant identifies “[t]he real party in interest . . . [as] David Dewing.” Appeal Br. 2. 3 The Examiner objects to, rather than rejects, pending claim 7. See Answer 3. Appeal 2013-006413 Application 12/455,163 2 swimming pools.” Spec. ¶ 1. Claims 1 and 2 are the only independent claims on appeal. Claim 1, which we reproduce below, is representative of the appealed claims. 1. A pool cleaning device for removing dirt and debris from a swimming pool bottom, comprising: a rectangular housing having two short and two long housing sides and a long housing centerline, a housing bottom with a suction hole centrally located within a housing bottom planar area, and a housing top with a pole attachment fitting and a tubular outlet for connecting the suction hole to a suction means via a hose; at least four transport wheels rotatably attached to said rectangular housing via transport wheel axles so as to enable the pool cleaning device to be rolled along the swimming pool bottom with the long housing sides perpendicular to the direction of motion and the width of the bottom gap between the housing bottom planar area and the swimming pool bottom remaining substantially uniform and constant at a predetermined value; two cylindrical rotary brushes each having a brush axle rotatably attached at both ends to said rectangular housing so as to be parallel with the transport wheel axles and adjacent to one of the opposing long housing sides such that the bristles of said cylindrical rotary brushes contact the swimming pool bottom; and at least two rotary drive mechanisms whereby rotation of said transport wheels, produced by rolling the pool cleaning device along the swimming pool bottom, drives rotation of the cylindrical rotary brush on the leading edge of the pool cleaning device in the same rotational direction as said transport wheels, whereby tree leaves and other debris are effectively captured due to a downward sweeping action produced by rotation of the cylindrical rotary brush on the leading edge as the pool cleaning device, connected to a suction means, is rolled back and forth over the swimming pool bottom by an operator pulling and pushing on a pole attached to the pole attachment fitting. Appeal 2013-006413 Application 12/455,163 3 Appeal Br., Claims App. REJECTIONS AND PRIOR ART Appellant appeals the following rejections made by the Examiner: the rejection of claims 1–6 and 12–14 under 35 U.S.C. § 102(b) as anticipated by Schatzmann (US 3,950,809, iss. Apr. 20, 1976); the rejection of claim 15 under 35 U.S.C. § 103(a) as unpatentable over Schatzmann; the rejection of claims 16 and 17 under 35 U.S.C. § 103(a) as unpatentable over Schatzmann and Lavabre (US 2008/0244842 A1, pub. Oct. 9, 2008); and the rejection of claim 18 under 35 U.S.C. § 103(a) as unpatentable over Schatzmann, Lavabre, and Erlich (US 2002/0129839 A1, pub. Sept. 19, 2002). ANALYSIS We determine that the Examiner reasonably establishes that Schatzmann discloses all of the limitations required by each of independent claims 1 and 2, as well as the limitations of each of claims 3–6 and 12–14 depending on claim 2. See Answer 5–8, 10–13. We further determine that the Examiner reasonably establishes that Schatzman and either Lavabre or Lavabre and Erlich discloses the limitations of each of dependent claims 15– 18. See id. at 8–10. We have reviewed Appellant’s arguments regarding the rejection of independent claims 1 and 2, as well as the rejections of dependent claims 3–6 and 12–18 (see Appeal Br. 5–13; see also Reply Br. 3–4). We are unpersuaded by any of Appellant’s arguments that any claim rejection is erroneous. Therefore, we sustain the anticipation and obviousness rejections of claims 1–6 and 12–18. Appeal 2013-006413 Application 12/455,163 4 Appellant’s main argument is that Schatzmann does not disclose claim 1’s limitation, “two cylindrical rotary brushes each having a brush axle rotatably attached at both ends to said rectangular housing so as to be parallel with the transport wheel axles and adjacent to one of the opposing long housing sides” (Appeal Br., Claims App. (emphases added)), or the similar limitation from claim 2. See Appeal Br. 5–11; see also Reply Br. 3– 4. Essentially, Appellant argues that because Schatzmann discloses cylindrical brushes in a hollow housing vacuum chamber, Schatzmann’s brushes are not mounted adjacent opposing long housing sides as required by the claims. See, e.g., Appeal Br. 6. We are unpersuaded by Appellant’s argument. Appellant does not provide evidence or technical reasoning, or point to anything in the Specification including the claims, sufficient to convince us that the Examiner unreasonably determines that Schatzmann’s brushes that are mounted within the vacuum chamber are not mounted adjacent opposing long housing sides. Further, even assuming we agree with Appellant that the claim term “‘adjacent’ is defined . . . as ‘very near, next to or touching’” (Appeal Br. 6), Appellant does not provide evidence or technical reasoning, or point to anything in the Specification including the claims, sufficient to persuade us that such a definition “could not be used to describe a brush mounted in a bottom suction cavity” as occurs in Schatzmann (id.). Restated, Appellant fails to establish, for example, that Schatzmann’s brushes are not “near” the long housing sides. Still further, even if we agreed with Appellant that “whereby tree leaves and other debris are effectively captured due to a downward sweeping action produced by rotation of the cylindrical rotary brush on the leading edge” is a limitation of the claims, Appellant does not provide evidence or Appeal 2013-006413 Application 12/455,163 5 technical reasoning, or point to anything in the Specification including the claims, sufficient to persuade us that such does not occur as a result of Schatzmann’s arrangement of brushes within the vacuum chamber, which we determine are adjacent long housing sides as required by the independent claims. Appellant does not argue separately dependent claims 3, 6, 12, and 13. With respect to dependent claim 4, Appellant argues that Schatzmann fails to disclose the claimed rotary drive mechanism. See Appeal Br. 10. We disagree with Appellant’s argument that “Schatzmann column 2, lines 42–53 cited by the Examiner describes a device for attaching a pole to the Schatzmann device and has nothing to do with rotary drive mechanisms.” Id. (emphasis added). We determine that the Examiner’s finding that the cited portion of Schatzmann discloses the claimed drive mechanism is reasonable (Schatzmann, col. 5, ll. 50–53, “Tool 10 is illustrated as movably supported by six rollers 20 mounted in aprons 16, and by track belts 40a and 40b movably mounted in the side skirts 14a and 14b respectively.”). With respect to dependent claim 5, Appellant argues that Schatzmann fails to disclose a sufficient amount of weight, attached to the housing, to press the transport wheels against the swimming pool bottom with sufficient force to produce adequately fast rotation of said cylindrical rotary brushes. See Appeal Br. 10. We determine that the Examiner’s finding that Schatzmann discloses these limitations is reasonable. See Answer 7, 12–13. With respect to dependent claim 14, Appellant argues that Schatzmann fails to disclose that each brush axle is supported at one or more intermediate locations between the ends of the brush axle. See Appeal Br. 11. Appellant notes the Examiner relies on Schatzmann’s Figure 2, Appeal 2013-006413 Application 12/455,163 6 showing plates 12a and 12b. See id. We determine that Schatzmann’s Figure 2 shows plates 12a and 12b supports shaft 58 at two intermediate locations between ends of shaft 58. DECISION We AFFIRM the Examiner’s rejections of claims 1–6 and 12–18. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED em Copy with citationCopy as parenthetical citation