Ex Parte Gardner

Board of Patent Appeals and Interferences

Nov 30, 2011

11020713 (B.P.A.I. Nov. 30, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JAMES P. GARDNER, JR.
____________

Appeal 2010-000597
Application 11/020,713
Technology Center 3700
____________

Before LINDA E. HORNER, JOHN C. KERINS and STEVEN D. A.
McCARTHY, Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL

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STATEMENT OF THE CASE
James P. Gardner (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s final rejection of claims 1, 2, 4-8, 10-12 and 14-25.
Claims 3, 9 and 13 have been canceled. We have jurisdiction under 35
U.S.C. § 6(b) (2002). An oral hearing was held on November 17, 2011, with
Kari H. Bartingale, Esq., appearing on behalf of Appellant.
We REVERSE.

THE INVENTION
Appellant’s invention is directed to a method for distributing chemical
products, specifying dispensing and operating parameters, receiving and
analyzing data related to the dispensing and operating parameters, and
generating a management report based on the analysis of the data. Claim 1,
reproduced below, is illustrative of Appellant’s invention:
1. A method comprising:

distributing one or more chemical products to one
of a plurality of chemical application systems;

specifying a first target parameter corresponding to
desired amount of chemical product usage of the
chemical application system;

specifying a second target parameter
corresponding to a desired operating parameter of
the chemical application system;

receiving operating parameter data associated with
operation of the chemical application system;

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receiving dispenser data relating to amounts of the
one or more chemical products distributed to the
chemical application system;

analyzing the received operating parameter data
relative to the second target parameter;

analyzing the received dispenser data relative to
the first target parameter; and

generating a management report comprising
information relating to operation of the
chemical application system and amounts of
chemical product distributed to the chemical
application system based on the analysis of the
operating parameter data and the dispenser data.
THE REJECTION
The Examiner has rejected claims 1, 2, 4-8, 10-12 and 14-25 under 35
U.S.C. § 103(a) as being unpatentable over Koropitzer (US 5,694,323,
issued December 2, 1997) in view of Livingston (US 4,756,321, issued July
12, 1988) and Kuroda (US 5,777,895, issued July 7, 1998).

ISSUE
Has the Examiner supported the conclusion of obviousness of the
claims with a reason to combine the teachings of the references that is
supported by rational underpinnings?

ANALYSIS
The Examiner has rejected all claims on appeal over a combination of
the teachings of Koropitzer, Livingston and Kuroda. (Ans. 3). The
Examiner found that the Koropitzer patent teaches a method of monitoring
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commercial installations including laundromats in which information on
operating parameters is received and in which reports based on the received
information is generated. (Id.). The Examiner further found that the
operating parameter information received for various locations includes
information on “chemical dispensers for vending chemicals that are used in
the washing machines”. (Id., citing to Spec., col. 8, ll. 11-14). The
Examiner, however, acknowledges that Koropitzer “does not disclose target
operating data for chemicals used in the cleaning machines that use their
own chemical supply nor clearly defined parameter comparisons.” (Id.).
Livingston is relied on as teaching a system that employs washing
machines (dishwashers) that have their own chemical supply; that monitors
the level of chemicals (detergent) in the machines; and that compares the
detected levels to target data “for the purpose of optimizing chemical usage
and supply and to ensure the proper concentration and usage of chemical is
present for effecting proper cleaning.” (Id.). The Examiner found that
Livingston, in measuring the concentration of detergent in the wash water,
also measures the amount of detergent used, “because in order to determine
the concentration level one must divide the amount or volume of detergent
by the amount or volume of wash water.” (Ans. 8, citing to Livingston, col.
1, ll. 43-49).
The Examiner concluded that it would have been obvious, in view of
Livingston (and, to an extent, Kuroda) to modify the system of Koropitzer to
include:
a method step of using at least some machines with
their own chemical supply, comparing chemicals
used in the washing machines with a target data
and specific operating parameters . . . in order to
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ensure the proper concentration of chemical is
present for effecting proper cleaning and to better
compare various operating parameters to optimize
the business.
(Ans. 4).
The Examiner further maintains that modifying the Koropitzer
cleaning machines such that they would have their own chemical supply and
monitoring of the chemical level relative to target data would provide a
“clear operating benefit for users of the Koropitzer laundromats since they
would not be required to measure and add detergent”, and the modification
thus would have been obvious. (Ans. 7).
Appellant contends that the Livingston patent does not specify a target
parameter “corresponding to [a] desired amount of chemical product usage”;
does not monitor or determine the amount of detergent dispensed, and thus
further does not “receiv[e] dispenser data relating to amounts of the one or
more chemical products distributed to the chemical application system”, as
claimed. (Appeal Br. 7; Reply Br. 7). Appellant points out that the
Livingston dispenser controller measures the concentration of detergent in
the disclosed dishwasher system rather than the amount of detergent
dispensed, and does so by measuring the conductivity of the wash water, not
by performing the calculation asserted by the Examiner. (Appeal Br. 7;
Reply Br. 6).
We agree with Appellant that the Examiner has erroneously found that
Livingston provides a teaching of measuring or monitoring the amount of
chemical product distributed to the chemical application system, and thus
does not specify a target parameter directed to the desired amount of
chemical product usage, nor perform a step of receiving dispenser data
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relating to amounts of the chemical products distributed to the chemical
application system. As such, the conclusion of obviousness is not well
supported by factual underpinnings. In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006)(obviousness rejections may not be supported by mere conclusory
statements; must instead be supported by articulated reasoning with some
rational underpinning), cited with approval in KSR Int'l Co. v. Teleflex Inc.,
550 U.S. 398, 418 (2007).
Regarding the purported “clear operating benefit” to modifying the
Koropitzer cleaning machines to have their own detergent supply, we are not
persuaded that this would prove to be a benefit to users, and would appear to
yield another service and maintenance issue for the operator of the facility.
At a minimum, users would no longer have the option of using detergent
brought from outside the facility, and would be required to use and pay for
detergent at a price set by the operator. From the operator’s standpoint, if a
detergent dispenser ceases to function properly, so does the entire cleaning
machine. Since the Koropitzer disclosure focuses on remote monitoring by
an owner/proprietor (col. 7, ll. 15-19), modifications that produce additional
potential service and maintenance issues, such as the Examiner’s proposed
modification, would be discouraged. We thus do not see this as a reason to
combine the teachings that can be gleaned from the prior art.
The Examiner, in what appears to be an alternative rationale, further
maintains that Koropitzer discloses the concept of maintaining and servicing
laundromat machinery including chemical detergent vending, and that this
would include refilling the vending machines, in particular, delivering
chemical detergent product to the detergent vending machines when the
monitoring system determined that they were empty. (Ans. 5). From this,
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the Examiner found that Koropitzer discloses the claimed “distributing one
or more chemical products” (servicing/refilling detergent vending machines)
to various remote locations that are monitored in the system, with the remote
locations 121, 122, 123, meeting the limitation of “chemical application
systems”, to which the chemical products are distributed. (Id.). According
to the Examiner,
[c]onsequently, the Koropitzer reference as a
whole would disclose to one of ordinary skill in
the art the transfer of data . . . regarding . . . the use
and distribution of chemicals used in the cleaning
machines via the monitoring and servicing of the
detergent vending machines in the remote
locations.
(Ans. 6).
Appellant contends that “[a] detergent vending machine that vends
packets of detergent to a customer does not . . . dispense a chemical product
to a chemical application system”. (Appeal Br. 9). Implicit in this argument
is that Appellant takes issue with the Examiner’s position that the claimed
“chemical application system” is sufficiently broad to include a “remote
location”, such as a laundromat, at which a detergent vending machine and a
washing machine are present.
The USPTO is, during prosecution of an application, obligated to give
claim terms their broadest reasonable interpretation consistent with their
ordinary meaning, as well as what persons of ordinary skill in the art would
understand from reading the specification. See In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997). While the claim term “chemical application system”
is not specifically defined in the Specification, the term itself connotes the
existence of a system in which a chemical or chemicals are applied. A
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“remote location” having a washing machine and a separate detergent
vending machine, as is common in laundromats, is outside the broadest
reasonable construction of the claimed “chemical application system”. As
such, the distribution of detergent packets to a detergent vending machine at
a given location does not teach or suggest “distributing one or more
chemical products to one of a plurality of chemical application systems.”
This alternative rationale thus also lacks the rational underpinnings
necessary to support a conclusion of obviousness. The rejection of claims 1,
12 and 17 as being unpatentable over Koropitzer, Livingston and Kuroda
will not be sustained. As all of the remaining claims depend from one of
these independent claims, and as the Examiner employs the same rationale
as discussed above in support of the conclusion of obviousness, the rejection
of those claims will not be sustained, either.

CONCLUSION
The Examiner has not adequately supported the conclusion of
obviousness with a reason to combine the teachings of the references that is
supported by rational underpinnings.

DECISION
The decision of the Examiner to reject claims 1, 2, 4-8, 10-12 and 14-
25 is reversed.

REVERSED

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