Ex Parte Ellingson et al

Patent Trial and Appeal Board

Mar 9, 2017

13082558 (P.T.A.B. Mar. 9, 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.
13/082,558 04/08/2011 Jeff P. Ellingson 1092-096US01 / 2641US01 6310
124175 7590 03/13/2017
Shumaker & Sieffert, P.A./Ecolab
1625 Radio Drive
Suite 100
Woodbury, MN 55125
EXAMINER
LEE, DOUGLAS
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
03/13/2017 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):
pairdocketing @ ssiplaw.com
ecolab_PAIR @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFF P. ELLINGSON, BRYAN J. HENNEMAN,
ANDREW M. JENSEN, and JASON A. KAHLHAMER
Appeal 2016-001890
Application 13/082,5581
Technology Center 1700
Before PETER F. KRATZ, CATHERINE Q. TIMM, and BRIAN D.
RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 8, 9, and 12—17. We have jurisdiction. 35 U.S.C.
§ 6(b).
We AFFIRM.
1 According to the Appellants, the real party in interest is Ecolab USA Inc.
Appeal Br. 3.
Appeal 2016-001890
Application 13/082,558
STATEMENT OF THE CASE2
Appellants describe the invention as relating to a dishwasher and
parameters (e.g., temperature and flow rate) for operating a dishwasher.
Spec. 4—7. Claim 8, reproduced below with emphasis added to certain
key recitations, is illustrative of the claimed subject matter:
8. A dish machine, comprising:
a single chamber wash tank sized to receive articles to be
washed;
a computer readable medium that stores one or more dish
machine operating parameters, wherein the dish machine
operating parameters include a wash water temperature of
between 160°F and 164.5°F, a rinse water temperature of
between 182°F and 211°F, and a rinse flow rate of between 0.4
gal/rack and 0.66 gal/rack; and
a processor that controls application of wash water into the
wash tank during a wash phase based on the wash water
temperature, and controls application of rinse water into the wash
tank during a rinse phase based on the rinse water temperature
and the rinse flow rate.
Appeal Br. 14 (Claims App’x).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Eberhardt, Jr. US 4,561,904 Dec. 31, 1985
Femholz US 5,501,742 Mar. 26, 1996
Jungetal. US 2004/0118435 A1 June 24, 2004
(hereinafter “Jung”)
2 In this decision, we refer to the Final Office Action mailed December 5,
2014 (“Final Act.”), the Appeal Brief filed May 5, 2015 (“Appeal Br.”), the
Examiner’s Answer mailed September 25, 2015 (“Ans.”), and the Reply
Brief filed November 25, 2015 (“Reply Br.”).
2
Appeal 2016-001890
Application 13/082,558
Doherty et al. US 2008/0047588 A1 Feb. 28, 2008
(hereinafter “Doherty”)
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1. Claims 8, 9, and 13—17 under 35 U.S.C. § 103 as
unpatentable over Doherty in view of Femholz and Eberhardt, Jr. Ans. 2.
Rejection 2. Claim 12 under 35 U.S.C. § 103 as unpatentable over
Doherty in view of Femholz and Eberhardt, Jr. and further in view of Jung.
Id. at 6.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by appellants and in light of the arguments and evidence produced
thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (“it has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections”)). After considering
the evidence presented in this Appeal and each of Appellants’ contentions,
we are not persuaded that Appellants identify reversible error. Thus, we
affirm the Examiner’s rejections for the reasons expressed in the Final Office
Action and the Answer. We add the following primarily for emphasis.
Appellants argue rejections 1 and 2 together, and argue all claims as a
group. See Appeal Br. 6. Therefore, consistent with the provisions of 37
C.F.R. § 41.37(c)(l)(iv) (2013), we limit our discussion to claim 8, and all
other claims on appeal stand or fall together with claim 8.
The Examiner finds that Doherty discloses a dish washing machine
(i.e., a dishwasher) comprising a wash tank and configured with wash water
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Appeal 2016-001890
Application 13/082,558
temperature, rinse water temperature, and flow rates that overlap those
recited in claim 8. Ans. 2 (providing citations to Doherty). The Examiner
finds that Doherty discloses its dishwasher may have only one chamber and
also finds that single tank washers were well known in the art. Id. at 3
(citing Doherty 133 and Femholz 9:37-40). The Examiner finds that
Doherty does not explicitly disclose use of a computer readable medium to
store dishwasher operating parameters or a process to control the dishwasher
based on parameters, but the Examiner finds that use of computers for these
purposes was well-known in the art. Id. (citing Eberhardt 10:62—11:68).
The Examiner thus concludes that it would have been obvious to use a
computer to automate the dishwasher of Doherty because “automating a
manual activity is prima facie obvious.” Id. A preponderance of the
evidence supports the Examiner’s findings and conclusions.
Appellants argue that Doherty is “directed to a multi-chamber
conveyor-type dishwasher,” but Appellants concede that Doherty also refers
to “dishwashers with only one cleaning chamber.” Appeal Br. 7; see also
Ans. 9—10. Appellants argue that Doherty does not teach a single chamber
with a rinse operation at a higher temperature than the wash cycle
temperature as recited in claim 8. Appeal Br. 8. This argument, however,
does not fairly meet the Examiner’s rejection.
The Examiner finds that the hot post-wash zone temperature taught by
Doherty overlaps the rinse water temperature recited in claim 8. Ans. 8—10.
The preponderance of the evidence supports that the “hot post-wash” is a
“rinse” as recited by claim 8 because it follows the main wash. Id. at 7;
Doherty 29—34, 59—60. The recitations of claim 8 do not forbid another
final rinse step following the recited rinse. Ans. 9; see also, e.g., Spec. 2,
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Appeal 2016-001890
Application 13/082,558
25, 27 (indicating that Appellants’ wash process may include more than one
rinse phase). Appellants do not persuasively dispute that the main wash and
the hot-post wash meet the temperature recitations of claim 8.
Although Doherty states that its single chamber embodiment has a
“final-rinse operation with a lower water temperature,” the same paragraph
of Doherty states that “the method [i.e., the method of Doherty] is also
advantageous for such dishwashers [i.e., for single chamber dishwashers].”
Doherty 133; see also Ans. 9—10. Appellants do not persuasively dispute
that the method of Doherty, i.e., the same method that “is also
advantageous” in a single chamber dishwasher, includes a main wash, a
final-rinse, and a hot-post wash as further discussed above. App. Br. 8 (“if
the techniques of Doherty were applied to [a] single chamber dishwasher,
the resulting single chamber machine would include a wash cycle, a hot
post-wash cycle at a relatively higher temperature, and then a final-rinse
cycle . . . .”); see also Doherty || 29—34, 59—60.
Appellants also attempt to differentiate claim 8 from Doherty by
arguing that the Specification establishes that a lower temperature final rinse
“may be undesirable” and “may have the effect of reducing cleaning
performance.” Appeal Br. 9—10. Claim 8, however, does not forbid a final
rinse. Claim scope depends on the claim’s recitations, not the teachings of
the Specification. See In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir.
1998) (holding that claims as written swept in prior art notwithstanding that
a potentially outstanding invention disclosed in written description because
“the name of the game is the claim”) (quoting Giles Sutherland Rich, Extent
of Protection and Interpretation of Claims—American Perspectives, 21 Inf 1
Rev. Indus. Prop. & Copyright L. 497, 499 (1990)).
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Appeal 2016-001890
Application 13/082,558
Appellants do not dispute the Examiner’s combining of references and
have therefore waived arguments regarding that issue. Ex parte Frye, 94
USPQ2d at 1075.
Because Appellants do not identify reversible error, we sustain the
Examiner’s rejections.
DECISION
For the above reasons, we affirm the Examiner’s rejection of claims 8,
9, and 12—17.
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
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