Ex Parte Fauth et alDownload PDFPatent Trial and Appeal BoardFeb 25, 201613058543 (P.T.A.B. Feb. 25, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/058,543 02/11/2011 46726 7590 02/29/2016 BSH Home Appliances Corporation 100 Bosch Boulevard NEW BERN, NC 28562 FIRST NAMED INVENTOR Michael Fauth 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 2008P04029WOUS 2176 EXAMINER BLAN, NICOLE R ART UNIT PAPER NUMBER 1714 NOTIFICATION DATE DELIVERY MODE 02/29/2016 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): MBX-NBN-IntelProp@bshg.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL FAUTH, HELMUT JERG, KAI P AINTNER, ANDREAS REITER, and ROLAND RIEGER Appeal2014-005531 Application 13/058,543 Technology Center 1700 Before PETER F. KRATZ, ROMULO H. DELMENDO, and BEYERL YA. FRANKLIN, Administrative Patent Judges. KRATZ, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. § 134 from the Examiner's final rejection of claims 19, 20, 22-32, and 34--44. We have jurisdiction pursuant to 35 U.S.C. § 6. Appellants' claimed invention is directed to a method of operating a dishwasher (GS) and a dishwasher (GS) constructed to be so operable. In the method, a fluid outlet opening (AU), which opening conducts air together with fluid from a drying material (ZEO) into the interior (IR) of a dishwasher (GS), has a cap attached thereto for at least partially covering the outlet opening (AU) and wherein cooling agent contacts the cap and is Appeal2014-005531 Application 13/058,543 employed to cool the outlet opening and the cap (Specification 4--7, 28, 29; Fig. 1). Claim 19 is illustrative and reproduced below: 19. A method for operating a dishwasher, the method comprising: at least periodically applying a heated fluid to items to be washed that are supported in an interior of the dishwasher, the heated fluid being applied to the items to be washed by spraying the heated fluid through a spray arm; in order to heat the fluid, first conducting air through a drying material suitable for exothermic drying and then conducting the air, together with the heated fluid driven out of the drying material, through an outlet opening through which the air, together with the heated fluid driven out of the drying material, enters the interior of the dishwasher, the outlet opening having a cap that is directly attached to the outlet opening and at least partially covers the outlet opening; and cooling the cap and the outlet opening by having a cooling agent contacting the cap. The Examiner relies on the following prior art references as evidence in rejecting the appealed claims: Gustavsson Jung Jerg ('257) Jerg ('875) us 2004/0050092 i\.l US 2004/0163679 Al US 2006/0278257 Al US 2008/0295875 Al l\1ar. 18, 2004 Aug.26,2004 Dec. 14, 2006 Dec. 4, 2008 The Examiner maintains the following grounds of rejection: Claims 19, 20, 22-32, and 34--44 stand rejected under 35 U.S.C. § 112, first paragraph as failing to comply with the written description requirement. Claims 19, 20 22-24, 27-32, 34--36, and 38--44 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Jerg '257 in view of Jung and Jerg '875. Claims 25, 26, and 37 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Jerg '257 in view of Jung, Jerg '875, and Gusta vs son. 2 Appeal2014-005531 Application 13/058,543 After consideration of the opposing positions of the Examiner and Appellants respecting the rejections advanced by the Examiner in this appeal, we determine that Appellants do not expose reversible error in any of the Examiner's maintained rejections based on the arguments presented in the Appeal Brief. Accordingly, we affirm the stated rejections for the fact findings and reasoning as set forth by the Examiner in the Final Office Action and in the Answer. We add the following for emphasis. Written Description Rejection It is well settled that whether a specification complies with the written description requirement of 35 U.S.C. § 112, first paragraph, is a question of fact. Gentry Gallery Inc. v. Berkline Corp., 134 F.3d 1473, 1479 (Fed. Cir. 1998). The test for determining compliance with the written description requirement of 35 U.S.C. § 112, first paragraph for later claimed subject matter is whether the disclosure of the application as originally filed reasonably conveys to the artisan that the inventor had possession, as of the filing date, of the later claimed subject matter, rather than the presence or absence of literal support in the specification for the claim language. See Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563-64 (Fed. Cir. 1991) and In re Kaslow, 707 F.2d 1366, 1375 (Fed. Cir. 1983). The burden of showing that the claimed invention is not described in the specification rests on the Examiner. In re Alton, 76 F.3d 1168, 1175 (Fed. Cir. 1996); In re Wertheim, 541F.2d257, 262-265 (CCPA 1976). The Examiner meets this burden by adducing "evidence or reasons why persons 3 Appeal2014-005531 Application 13/058,543 skilled in the art would not recognize in the disclosure a description of the invention defined by the claims." Wertheim, 541 F.2d at 263-64. Here, the Examiner has determined that the rejected appealed claims fail to comply with the written description requirement because the Specification, as filed, furnishes no written descriptive support for "the outlet opening having a cap that is directly attached to the outlet opening" as recited in independent claims 19 and 31 (Final Office Action 3). In this regard, the Examiner has found that the depicted outlet AU of drawing Figure 1 does not show nor does the subject Specification describe the outlet AU as including a cap that "is directly attached to the outlet opening and at least partially covers the outlet opening" (Final Office Action 3--4 ). The Examiner has further found that "[t]he specification at paragraph 0029 states that the cap covers the outlet opening" however, "Figure 1 does not illustrate a cap directly attached to the outlet opening" (Ans. 2). Thus, the Examiner has advanced evidence and reasoning as to why artisans would not recognize a description of the invention as now claimed in the originally filed disclosure. Appellants argue that "[t]he specification at paragraph 0029 clearly states that a cap covers the outlet opening AU" and that "Fig. 1 shows a cap covering outlet opening AU with the cap being directly attached to the outlet opening AU" (App. Br. 7). For reasons stated by the Examiner in the Answer, we are not persuaded that Appellants' argument indicates reversible error in the Examiner's factual determination as to a lack of written descriptive support in the Specification, as filed, for the limitation in question (Ans. 2). The outlet opening AU for the sorption container SB depicted in drawing Figure 4 Appeal2014-005531 Application 13/058,543 1 does not establish that the depicted outlet opening AU has a cap that at least partially covers the outlet opening and which cap is directly attached to the outlet opening as found by the Examiner. Nor does the cited paragraph 0029 of the subject Specification describe the cap covering the outlet opening mentioned in this paragraph as a cap that is directly attached to the outlet opening. Nor does the latter Specification paragraph make reference to any drawing Figures, including Figure 1, that depict a cap covering outlet AU, which cap is directly attached thereto. While it may have been obvious to construct an outlet of the disclosed sorption container SB and a cap, including the outlet opening AU, such that a cap is directly attached to the outlet opening AU and at least partially covers the opening, Appellants have not described such an embodiment in the Specification as filed. See, e.g., Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1571-72 (Fed. Cir. 1997) ("One shows that one is "in possession" of the invention by describing the invention, with all of its claimed limitations, not that which makes it obvious"). Thus, on this record and upon due consideration of Appellants' arguments, we find that the weight of the evidence supports the Examiner's lack of written description determination with respect to the rejected appealed claims. It follows that we shall affirm the Examiner's lack of written description rejection as to all of the appealed claims. Obviousness Rejections After a careful review of the opposing positions furnished by Appellants and the Examiner and the evidence bearing on the obviousness 5 Appeal2014-005531 Application 13/058,543 rejections before us, we determine that the Appellants' arguments are insufficient to identify reversible error in the Examiner's obviousness rejections. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Concerning the Examiner's first stated obviousness rejection, Appellants present substantially the same argument, an argument that is limited to "the feature of the outlet opening having a cap that is directly attached to the outlet opening" as called for by independent claims 19 and 31 and do not argue the dependent claims separately (App. Br. 8-9). We select claim 19 as the representative claim on which we shall primarily focus in deciding this appeal as to this ground of rejection. We affirm the stated obviousness rejection over Jerg '257 in view of Jung and Jerg '875 for substantially the fact findings and the reasons set forth by the Examiner in the Final Office Action and in the Examiner's Answer. We offer the following for emphasis. Appellants argue that "the office action defined cap (passive sealing means 15) of Jerg '875 is not directly attached to the opening through which flow C passes" and because of "this lack of direct attachment, any liquid that contacts passive sealing means 15 would not cool the opening" (App. Br. 8). In this regard, Appellants maintain that "[ t ]he direct attachment of the cap of the claimed invention, and the cooling agent contacting the cap, results in the cooling of the outlet opening" (id.). In contrast, "Appellants submit that none of the references acknowledge any benefit to cooling a cap that is directly attached to an outlet opening of a sorption container, and, as a result, none of the references suggest attaching a cap directly to such an outlet opening" (id.). 6 Appeal2014-005531 Application 13/058,543 As explained by the Examiner, however, this argument has no persuasive merit because the combined teachings of the applied references reasonably suggest the benefits of using a cap for an outlet opening of a sorption container, which outlet is subjected to cooling in a method of operating a dishwasher and would have reasonably suggested employing a directly attached cap for this purpose to one of ordinary skill in the art for reasons articulated by the Examiner (Ans. 3-4; Final Office Action 5-6). In this regard, the Examiner has basically determined that Jerg '257 teaches or suggests a method of operating a dishwasher including cooling an outlet opening (8, Fig. 1) using a cooling agent to prevent damage to crockery, which opening corresponds to the claimed opening that is cooled and Jerg '875 teaches or suggests a method of operating a dishwater similar to that of Jerg '257 wherein an outlet (8, Fig. 1) corresponding to the outlet 8 of Jerg '257 has a cap/seal (15, Fig. 1) at least partially covering the outlet opening in order to prevent water passing through the opening into a sorption chamber/drying device (Final Office Action 5---6; Jerg '875 i-fi-f l 0- 13, 19-21; Fig. 1, 8, 15). Jerg discloses that the cap/sealing means can be passive or active and teaches or suggests that the cap/sealing cover can have any suitable design. (i-fi-f 20-21 ). Consequently, we concur with the Examiner that providing a direct attachment of the cap/cover to the outlet opening would have been reasonably suggested to one of ordinary skill in the art as an obvious option for achieving the desired functionality for the cap (Ans. 4). Appellants have not persuaded us otherwise based on the attorney argument presented in the Appeal Brief. Consequently, we affirm the Examiner's first stated obviousness rejection. 7 Appeal2014-005531 Application 13/058,543 Concerning the Examiner's separate obviousness rejection of dependent claims 25, 26, and 37, Appellants present substantially the same argument for each of the rejected claims in asserting that Gustavsson represents non-analogous art and, as such is unavailable for use as relevant prior art for consideration in a rejection under 35 U.S.C. § 103(a), as maintained by the Examiner. (App. Br. 9). In rejecting claims 25, 26, and 37 as obvious over the combined teachings of the applied prior art, the Examiner additionally relies on Gustavsson for teaching or suggesting the use of lower speeds for a circulating pump during a cooling operation than the speeds employed during a washing step that would be applicable by one of ordinary skill in the art to the circulating pump employed in the modified Jerg '257 (Final Office Action 12; Gustavsson i-f 105). In this regard and in rejecting claim 24 in the base rejection (claim 25 depends from claim 24), the Examiner determined that Jung, in combination with Jerg '257 and Jerg '875, teaches/suggests the use of a circulating pump in a dishwashing process for producing a spray of liquid via spray arms and together with the applied Jerg references would have suggested using such a circulating pump to circulate the cooling agent and to circulate washing fluid supplied by spray arm in Jerg '257 (Final Office Action 7). Dependent claim 25, as well as commonly rejected claims 26 and 37, further require, inter alia, that the circulation pump operates at lower speed for applying cooling agent to the outlet opening during a cooling operation than when the circulation pump is involved in applying heated fluid to items to be washed in the dishwasher during a washing step. 8 Appeal2014-005531 Application 13/058,543 In rejecting these latter claims, the Examiner additionally relies on Gustavsson for teaching or suggesting this additional feature. As for Appellants' argument that Gustavsson represents non- analogous art, the Examiner does not argue that Gustavsson is drawn to the same field of endeavor in that Gustavsson is directed to controlled cooling of milk whereas the other applied prior art and Appellants' claims are directed to dishwashing methods and apparatus. Rather, the Examiner has essentially determined that Gustavsson is reasonably pertinent prior art because it is concerned with a similar problem as regards the appropriate speed for a circulating pump during a washing step where increased speed would be expected to be effective for washing operations and the appropriate speed for the pump during a cooling step where a decreased speed would be expectedly effective for cooling (Final Office Action 12; Ans. 5). In this record, we concur with the Examiner that Gustavsson is pertinent prior art in so far as confirming that a recirculating pump would be expected to operate at different speeds when supplying different fluids or the same fluid for a different purpose such as washing or cooling. In this regard, even if, arguendo, we considered Appellants' arguments effective for establishing that Gustavsson represents non-analogous art, Appellants have not reasonably conveyed by their argument why the employment of a different higher speed for circulating a fluid during a washing step than the speed employed for circulating a fluid for purposes of cooling an outlet opening as suggested by the applied references even without Gustavsson would represent an unobvious speed selection for the pump. After all, one of ordinary skill in the art has some skill and would have readily recognized that workable/optimum pump speeds for the washing step would be 9 Appeal2014-005531 Application 13/058,543 expected to be high pump speeds for a washing step for increasing fluid wash flow speeds and enhancing the cleaning of wares in the dishwasher of Jerg '257 even without the benefit of Gustavsson's teaching respecting higher circulation pump speeds during a tank washing step as compared to a cooling step. Unlike the washing step, the cooling step would not be expected to require the same high level of fluid force appropriate for removal of dirt and contaminants from objects to be cleaned in a dishwasher. Looked at another way, Appellants have not articulated why one of ordinary skill in the art would have been led to only employ the same and/or higher circulating pump speed for the cooling step as compared to the washing step in a dishwasher. Consequently, we concur with the Examiner's dismissal of Appellants' separate arguments for the separate patentability of dependent claims 25, 26, and 37 based on the asserted non-analogous art argument with respect to Gustavsson and the unsubstantiated assertion of hindsight (App. Br. 9--12). On this record, we determine that the preponderance of the evidence supports the Examiner's obviousness rejections. Accordingly, we sustain both of the Examiner's obviousness rejections. CONCLUSION/ORDER The Examiner's decision to reject the appealed claims 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). AFFIRMED 10 Copy with citationCopy as parenthetical citation