Ex Parte Dyson et alDownload PDFPatent Trial and Appeal BoardNov 30, 201713608648 (P.T.A.B. Nov. 30, 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. 13/608,648 09/10/2012 James DYSON 424662057200 5914 25227 7590 12/04/2017 MORRTSON fr FOFRSTFR T T P EXAMINER 1650 TYSONS BOULEVARD CARLSON, MARC SUITE 400 MCLEAN, VA 22102 ART UNIT PAPER NUMBER 3723 NOTIFICATION DATE DELIVERY MODE 12/04/2017 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): EOfficeVA @ mofo.com PatentDocket @ mofo. com pair_mofo @ firsttofile. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAMES DYSON, PETER DAVID GAMMACK, MARK STAMFORD VANDERSTEGEN-DRAKE, and PAUL JOSHUA BOTT Appeal 2016-006809 Application 13/608,648 Technology Center 3700 Before CHARLES N. GREENHUT, PAUL J. KORNICZKY, and BRENT M. DOUGAL, Administrative Patent Judges. KORNICZKY, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-006809 Application 13/608,648 STATEMENT OF THE CASE Appellants Janies Dyson et al.1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision, as set forth in the Final Office Action dated December 12, 2014 (“Final Act.”) and the Advisory Action dated April 17, 2015 (“Adv. Act.”), rejecting claims 1—17 under 35 U.S.C. § 103(a) as being unpatentable over Reindle (US 2005/0217042 Al, published October 6, 2005), Girson (Andrew Girson, “High-Mobility Tactical Micro-Robot Enters the Field with InHand’s Fingertip Technology,” Information Quarterly, Vol. 1, No. 1, 2002, pp. 54—55), and Explorations (“Smaller is Better — HMTM and Spike Ball Robots,” Explorations, Winter 2005, pp. 3^4).2’3 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE CLAIMED SUBJECT MATTER The claims are directed to an autonomous floor cleaning appliance. Claim 1, the only independent claim on appeal, is reproduced below with disputed limitations italicized for emphasis: 1 Appellants identify Dyson Technology Limited as the real party in interest. Appeal Brief, dated November 11, 2015 (“Appeal Br.”), at 2. 2 The Examiner refers to the two prior art articles as “Girson,” and Appellants refer to the two articles as “Girson/Explorations.” See, e.g., Final Act. 3 and Appeal Br. 4. For consistency, we use Appellants’ terminology. 3 Contrary to statements in the Answer, dated May 4, 2016 (“Ans.”), at pages 15—16 and the Reply Brief, dated June 30, 2016 (“Reply Br.”), at pages 2—10, we understand the rejection is an obviousness-based rejection under 35 U.S.C. § 103(a), not an anticipation-based rejection under 35 U.S.C. § 102. 2 Appeal 2016-006809 Application 13/608,648 1. An autonomous floor cleaning appliance comprising a chassis having a drive arrangement and a control system operatively connected to the drive arrangement so as to enable control of the appliance across a surface to be cleaned, wherein the drive arrangement comprises at least one traction unit, the at least one traction unit comprising a surface- engaging track constrained around a leading wheel and a trailing wheel so as to provide a track portion adjacent to a floor surface and extending between a first vertical plane extending through a rotational axis of the leading wheel and a second vertical plane extending through a rotational axis of the trailing wheel, the leading wheel and the trailing wheel being arranged so that the track portion provides a ramped climbing surface, that is not parallel to the floor surface, between the first vertical plane and the second vertical plane. DISCUSSION The Rejection of Claims 1—17 as Unpatentable Over Reindle, Girson, and Explorations Appellants argue claims 1—17 as a group. Appeal Br. 2—17. We select independent claim 1 as the representative claim, and dependent claims 2—17 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds that Reindle discloses all of the limitations of claim 1, including the requirement that the “track portion defines a ramped climbing surface that is not parallel to the floor surface.” Final Act. 4 (citing to the Office Action, dated November 29, 2013) (emphasis omitted), Adv. Act. 2. In response to Appellants’ arguments, the Examiner explains that the earlier rejection is buttressed by Girson/Explorations that disclose an autonomous robot that uses an adjustable, inclined track drive to climb over obstacles such as rocks and stairs. Final Act. 5—6; Adv. Act. 2; see also Girson 54—55; Explorations 3^4. 3 Appeal 2016-006809 Application 13/608,648 The Examiner finds that it is “common knowledge” that Reindle’s track “should be able [to] overcome commonly expected obstacles that would be found on a typical house,” including “transitions from wood to rug, electrical wires, and avoid stairways.” Adv. Act. 2. The Examiner also finds that it “is common knowledge that any autonomous vehicle would need to be able to overcome commonly expected obstacles in order to be a viable solution for the consumer” and “that raised obstacles such as electrical cords, transition edges or rugs, etc. are commonly found in the areas where the device would be operated.” Adv. Act. 2. The Examiner determines that it would have been obvious to modify Reindle’s “track drive to include the combination of the Girson[/Explorations] device to enhance the ability to climb larger versions of commonly found obstacles during operation.” Adv. Act. 2. According to the Examiner, the “Girson[/Explorations] device provides a teaching of an improved track drive arrangement that would improve the ability for the Reindle device to meet the designer’s performance requirements and therefore would be an obvious modification.” Adv. Act. 2. The Examiner also determines that [although it may be true that the Reindle device may not need to be able to climb stairs or operate on rough terrain like the Girson[/Explorations] device, the Girson [/Explorations] design concept allows for a designer to use an arrangement gleaned from Girson[/Explorations] to enhance the track arrangement of the Reindle device to more effectively overcome larger obstacles than originally designed for. Adv. Act. 2. Appellants contend that the rejection is erroneous for several reasons. First, Appellants argue that “a person of ordinary skill in the art would not have looked to Girson and Explorations to modify Reindle to overcome 4 Appeal 2016-006809 Application 13/608,648 larger obstacles or to climb stairs.” Appeal Br. 3. Appellants argue that the Examiner’s determination that that “a person of ordinary skill in the art would have looked to Girson/Explorations to solve the problem of overcoming larger commonly found obstacles, such as surface transitions, electrical wires, and other obstacles commonly encountered by a vacuum cleaning robot” “is erroneous because the tracks on the HMTM of Girson/Explorations are incapable of overcoming such obstacles.” Appeal Br. 7 ; see also Reply Br. 11—14. According to Appellants, in the Girson/Explorations HMTM device, “the wheels are the primary means of driving the HMTM, while the tracks are used when encountering obstacles larger than the wheels can overcome, such as curbs and stairs, to engage the large obstacles and pull the robot up and over them” (Appeal Br. 5) and “[sjhould the HMTM encounter floor transitions, electrical cables, or other such commonly found obstacles, the tracks would be useless because the wheels themselves would do the necessary climbing of such relatively small obstacles” (id. at 7—8). See Reply Br. 11—14. Contrary to Appellants’ argument that Girson/Explorations’ tracks are useless and incapable of overcoming obstacles, Girson/Explorations expressly disclose that the “robot can utilize both wheeled and tracked mobility in traversing rough terrain,” and the inclined track is capable of climbing over different-size obstacles such as rocks, curbs, and stairs. Explorations 3 (e.g., lower right photo) (emphasis added). Appellants’ argument that the tracks are useless is unsupported attorney argument. See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s arguments in a brief cannot take the place of evidence.”); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (lawyer arguments and conclusory statements which 5 Appeal 2016-006809 Application 13/608,648 are unsupported by factual evidence are entitled to little probative value). Girson/Explorations does not disclose that the tracks cannot be used to climb over rugs, cords, and other common obstacles, and Appellants offer no persuasive technical reason that they cannot be used in such a manner. In addition, Appellants are attacking the teachings of Girson/Explorations individually. Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, the Examiner uses Reindle’s track, not Girson/Explorations’ wheels, as the drive mechanism to drive over the commonly-encountered obstacles. The Examiner’s rejection merely proposes to modify Reindle’s track portion so that it is inclined, as disclosed by Girson/Exploration. Final Act. 5—6; Adv. Act. 2. The Examiner’s proposed modification is illustrated below: R£H®LE*S CURRENT ARRANGED NT TRACKS ROTATED UPWARD UKi SiRSON DEVICE * * 'OV T- :•** '' »N •* *•* * * irwG -v ^448 SMALL STAIR- SHAPES OBSTACLE THAT WILL BE CUMBED BY DEVICE REiNOLE'S CURRENT ARRANGEMENT MODIFIED BY TEACHINGS FROM GiRSON 6 Appeal 2016-006809 Application 13/608,648 Ans. 23—24. Appellants’ argument does not persuasively address the rejection as articulated by the Examiner, and, thus, does not identify error by the Examiner. Second, Appellants argue that the Examiner’s combination of Reindle and Girson/Explorations is based on “impressible hindsight.” Appeal Br. 8. Appellants argue that because “Reindle teaches avoiding obstacles rather than overcoming them,” “the motivation asserted by the Examiner of overcoming commonly expected obstacles in the working area cannot be gleaned from Reindle, but rather, is improperly gleaned from [Appellants’] own disclosure.” Appeal Br. 11. Appellants’ argument, however, does not identify any knowledge relied upon by the Examiner that was gleaned only from Appellants’ disclosure and that was not otherwise within the level of ordinary skill at the time of the invention, thereby obviating Appellants’ assertion of hindsight. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Here, Girson/Explorations’ disclosure that the inclined tracks are used to climb over obstacles (see, e.g., Girson 54—55, Explorations 3 4) and the Examiner’s findings regarding common knowledge of the need of robotic appliances to overcome room obstacles (see, e.g., Final Act. 5—6, Adv. Act. 2) supports the Examiner’s findings and reasoning. Thus, Appellants do not apprise us of error. Third, Appellants argue that the “Examiner’s rationale for the modification of Reindle with Girson/Explorations is also flawed because a person of ordinary skill in the art would not have looked to modify the tracks of Reindle to climb stairs” and “[s]uch modification would render the tracks of Reindle either inoperable or unsuitable for their intended purpose.” Appeal Br. 8. Appellants’ argument mischaracterizes the Examiner’s 7 Appeal 2016-006809 Application 13/608,648 articulated reasoning for combining Reindle and Girson/Explorations. Contrary to Appellants’ argument that the device needs to “climb stairs,” the Examiner finds that it is common knowledge that autonomous devices need to be able to overcome “raised obstacles such as electrical cords, transition edges or rugs, etc. [that] are commonly found in the areas where the device would be operated.” Adv. Act. 2. The Examiner also determines that [although it may be true that the Reindle device may not need to be able to climb stairs or operate on rough terrain like the Girson[/Explorations] device, the Girson[/Explorations] design concept allows for a designer to use an arrangement gleaned from Girson[/Explorations] to enhance the track arrangement of the Reindle device to more effectively overcome larger obstacles than originally designed for. Adv. Act. 2. Contrary to Appellants’ assertion that the Examiner does not rebut their arguments, the Examiner provided the illustration (presented above) of the modified track arrangement based on the teachings of Reindle and Girson/Explorations. See, e.g., Ans. 23—24. Appellants’ proposal to mount the “tracks forward of a wheeled robot” as purportedly disclosed in Girson/Explorations (Appeal Br. 9) is contrary to the Examiner’s proposed modification to incline the Reindle’s tracks as shown above. In addition, contrary to Appellants’ unsupported attorney argument that the tracks must be located within the casing (see, e.g., id. at 9-10), Girson/Explorations does not disclose any maneuverability problems when the tracks and wheels are located outboard of the housing. Pearson, 494 F.2d at 1405; De Blauwe, 736 F.2d at 705. Because Appellants do not address the rejection as articulated by the Examiner, Appellants do not persuasively identity Examiner error. 8 Appeal 2016-006809 Application 13/608,648 Fourth, Appellants argue that the Examiner’s findings and reasoning are “unsupported and conclusory” and “do nothing to cure the lack of evidence in the references supporting the Examiner’s reason to combine— wanting to overcome larger commonly found obstacles.” Appeal Br. 13. Appellants’ argument that Reindle and Girson/Explorations do not disclose a motivation to combine is unpersuasive. Contrary to Appellants’ argument, an express teaching or motivation in the references is not required. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Instead, the Examiner need only articulate a reason to combine the references with some rational underpinning to support the legal conclusion of obviousness. Id. Nevertheless, the Examiner’s findings and articulated reasoning is fully supported by Girson/Explorations, which discloses an inclined track for overcoming different-sized obstacles. See, e.g., Girson 54—55, Explorations 4. Contrary to Appellants’ argument, we do not find that Girson/Explorations track mechanism is limited to climbing over stairs and rocks, but agree with the Examiner that it is also useful for climbing over common obstacles such as rugs, cords, and other obstacles found indoors. The Examiner’s articulated reasoning that robot appliances should be able to climb over such common obstacles has rational underpinning. KSR, 550 U.S. at 418. Fifth, Appellants argue that Girson/Explorations are non-analogous art. Appeal Br. 13—17. “To quality as prior art for an obviousness analysis, a reference must quality as ‘analogous art,’ i.e., it must satisfy one of the following conditions: (1) the reference must be from the same field of endeavor; or (2) the reference must be reasonably pertinent to the particular problem with which the inventor is involved.” K-TEC, Inc. v. Vita-Mix 9 Appeal 2016-006809 Application 13/608,648 Corp., 696 F.3d 1364, 1375 (Fed. Cir. 2012). With regard to the second test, Appellants argue that the Specification discloses two problems with which the inventor is involved: “(a) improving the ability of the robot to climb over imperfections in the surface to be treated, as well as over raised obstacles such as electrical cables/flexes or edges of rugs; and (b) maintaining a small contact patch to improve maneuverability.” Appeal Br. 16 (citing Spec. 3:4—15). The Specification also states a “disadvantage of the wheeled mobile robot... is its limited ability to climb over objects, or even over or onto floor coverings such as cables or rugs.” Spec. 2:4—5. In response to Appellants’ argument, the Examiner correctly states that Girson/Explorations is reasonably pertinent to the problem faced by the inventor because “the tracked portion on the Girson[/Explorations] device has an inclined track portion that allows it to quickly and easily overcome obstacles and even climb curbs and stairs.” Final Act. 5—6. The Examiner further explains that “Girson[/Explorations] clearly teaches an innovative solution to overcoming raised obstacles that can be scaled down on the Reindle device [to] overcome the miniature stair-shaped obstacles such as electrical cables or edges of rugs.” Ans. 34—35. Because Explorations explicitly states that the “robot can utilize both wheeled and tracked mobility in traversing rough terrain,” and the inclined track is capable of climbing over different-size obstacles (Explorations 3 (e.g., lower right photo)(emphasis added)), Girson/Explorations are directed to improving the ability of the robot to climb over raised obstacles such as electrical cables/flexes or edges of rugs, as broadly disclosed in Appellants’ Specification. We agree with the Examiner that Girson/Explorations are 10 Appeal 2016-006809 Application 13/608,648 analogous art under the second test, and Appellants’ argument is unpersuasive. Sixth, Appellants argue that the Examiner’s finding in the Final Action and Advisory Action that it is common knowledge that “robotic device[s have] trouble overcoming commonly found obstacles” such as rugs and wires is unsupported by the evidence. Reply Br. 17—22; see, e.g., Adv. Act. 2 (finding that it “is common knowledge that any autonomous vehicle would need to be able to overcome commonly expected obstacles in order to be a viable solution for the consumer” and “that raised obstacles such as electrical cords, transition edges or rugs, etc. are commonly found in the areas where the device would be operated.”); Final Act. 6 (“It is common knowledge that if an autonomous vehicle were to get stuck on an obstacle in a room it would jeopardize the operation of the device.”). The Examiner may take notice of facts or common knowledge in the art which are capable of such instant and unquestionable demonstration as to defy dispute. In reAhlert, 424 F.2d 1088, 1091 (CCPA 1970). Although the Examiner made the same findings in the Final Action (e.g., pages 5—6) and the Advisory Action (page 2), Appellants offer only a bald challenge to the Examiner’s findings without presenting the requisite information or argument that creates, on its face, a reasonable doubt regarding the validity of the Examiner’s findings. In re Boon, 439 F.2d 724, 727—28 (CCPA 1971). To adequately traverse an official notice, Appellants must specifically point out the supposed errors in the Examiner’s assertions, which includes stating why the noticed fact is not considered to be common knowledge or well-known in the art. Compare In re Knapp-Monarch Co., 296 F.2d 230, 232 (CCPA 1961) (considering challenge to taking of judicial 11 Appeal 2016-006809 Application 13/608,648 notice by Trademark Trial and Appeal Board); see also 37 C.F.R. § 1.111(b) and MPEP § 2144.03. Here, Appellants have not stated in the record why the noticed fact is not considered to be common knowledge or well-known in the art. See Appeal Br. 2—12; Reply Br. 17—22. In addition, the Examiner supported the finding with an article entitled “Robot Vacuum Cleaner Reviews, The Dirt Devil Roommate Robot Vacuum Does the Job,” December 15, 2011, (http://www.robotvacuumcleaner.org/2011/12/the-dirt-devil-roommate- robot-vacuum-does-the-job/),” which states: During testing the robot didn’t have any problems moving around rooms, but it did have some trouble with floor mats and area rugs. In particular, depending on its angle of approach, the robot sometimes got stuck trying to climb up area rugs and floor mats. Like every other robot floor cleaner in the world, when left unattended, this robot may get stuck in unexpected places and can get tangled in cords. Reply Br. 33 (Appendix 6). According to the Examiner, this reference supports the finding that autonomous robotic vacuum cleaners had problems overcoming floor mats, area rugs, cords, and floor to floor transitions. Appellants’ argument that the reference addresses only wheeled-robotic appliances, and does not state that tracked-robotic appliances had the same problems is not persuasive because Appellants offer no persuasive technical reason why wheeled- and tracked-appliances function differently or face different problems overcoming such common obstacles.4 Reply Br. 17—22. 4 The Specification states that a “disadvantage of the wheeled mobile robot as described above is its limited ability to climb over objects, or even over or onto floor coverings such as cables or rugs.” Spec. 2:4—5. 12 Appeal 2016-006809 Application 13/608,648 Finally, Appellants argue that “there was a long felt but unresolved need to provide a robotic vacuum cleaner with an improved ability to overcome obstacles without sacrificing maneuverability, which is an objective indicia of nonobviousness.” Reply Br. 23—24. Because this argument could have been presented in the Appeal Brief to address the rejection in the Final Office Action, thus, affording the Examiner an opportunity to consider and respond to it, the argument is untimely. See 37 C.F.R. § 41.37(c)(vii)(second sentence); In re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir. 2000) (noting that an argument not first raised in the brief to the Board is waived on appeal); Ex part Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative) (The Board is not required “to take up a belated argument that has not been addressed by the Examiner, absent a showing of good cause.”). Appellants offer no justification for their untimely argument. For the reasons above, the rejection of independent claim 1 is sustained. Claims 2—17 fall with claim 1. DECISION For the above reasons, the Examiner’s rejection of claims 1—17 is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 13 Copy with citationCopy as parenthetical citation