Ex Parte Fauth et al

Patent Trial and Appeal Board

Feb 25, 2016

13058543 (P.T.A.B. Feb. 25, 2016)

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.
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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
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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
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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
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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.).
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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.
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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.
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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
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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
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