Ex Parte Haltmayer et al

Patent Trial and Appeal Board

Apr 26, 2017

13354359 (P.T.A.B. Apr. 26, 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.
13/354,359 01/20/2012 Werner Haltmayer 2010P04361US 5366
46726 7590 04/28/2017
RS»H Home. Ann1ianrp.s Pomoratinn
EXAMINER
100 Bosch Boulevard
NEW BERN, NC 28562
SHAHINIAN, LEVON J
ART UNIT PAPER NUMBER
1711
NOTIFICATION DATE DELIVERY MODE
04/28/2017 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):
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 WERNER HALTMAYER, MATHIAS HERRMANN, STEFAN
KASBAUER, CLAUS KOTHER, MARTIN WEIS SENBERGER, and
MARK WOLDENBERG
Appeal 2016-002022
Application 13/3 54,3 591
Technology Center 1700
Before CHUNG K. PAK, CHRISTOPHER L. OGDEN, and
AVELYN M. ROSS, Administrative Patent Judges.
OGDEN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1—7 and 10—24 in the above-identified
application.2 We have jurisdiction pursuant to 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify BSH Bosch und Siemens Hausgerate GmbH as the real
party in interest. Appeal Br. 3, May 7, 2015.
2 Final Office Action, Nov. 18, 2014 [hereinafter Final Action]; Examiner’s
Answer, Oct. 22, 2015 [hereinafter Answer], Claims 8 and 9 have been
withdrawn from consideration. Final Action 1.
Appeal 2016-002022
Application 13/354,359
BACKGROUND
Appellants’ invention relates to a dishwasher. Spec. 11.3 It is
intended, at least in part, to address the problem of maintaining the
performance of a water filter, which tends to become clogged and thus lose
effectiveness after continuous use. See id. Tflf 2—7. Independent claim 1 is
illustrative:
1. A dishwasher, comprising:
a circulation pump for circulating a washing liquid in a
hydraulic circuit, said circulation pump having an induction
side;
a pump sump which is connected to the induction side of
the circulation pump and through which washing liquid flows,
said pump sump including at least one filter element that retains
dirt particles contained in the washing liquid; and
at least one cleaning device provided in the pump sump
for cleaning the filter element.
Appeal Br. 13 (emphasis added to highlight disputed limitation). Claim 24
is also independent, and includes a substantially similar limitation to define
the “cleaning device” limitation. See id. at 15.
The Specification describes an embodiment of the “cleaning device”
as including
at least one spray nozzle, in particular a multiplicity of spray noz­
zles, which can mechanically spray the filter element by means
of liquid jets. In this way, short powerful bursts of spray can be
directed at the filter element, in order to rinse the filter element
clean of dirt that has adhered. In this case, the effective direction
of these spray nozzles is counter to the usual flow direction of
the washing liquid during the washing operation.
3 Specification, Jan. 20, 2012.
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Appeal 2016-002022
Application 13/354,359
Spec. 19. The Specification also states that
the cleaning device can feature any type of cleaning body by
means of which filter residues can be removed from the filter el­
ement. For example, such a cleaning body can be a scraper, by
means of which the filter residues can be scraped off the filter
element. Alternatively, provision can be made for cleaning bod­
ies which can move freely within the circular space of the pump
sump. In this case, the cleaning bodies can be moved by the cir­
cular liquid flow in the circular space, thereby removing filter
residues from the filter element. According to the invention, the
cleaning bodies can move in particular transversely along the un­
derside of the flat filter in the circular space.
Id. ]f 14. Various other structural details of the cleaning device are found
throughout the Specification and the Drawings. See, e.g., id. ]Hf 19, 23—24,
Figs. 3, 4 (items 35).
The Examiner maintains the following grounds of rejection:
I. Claims 1—6, 10, 13, 14, 16, 17, 21, 22, and 24 are rejected under
35 U.S.C. § 102(b) as being anticipated by Lee.4 Final Action 8—13.
II. Claims 7 and 15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lee in view of Weaver.5 Final Action 14—15.
III. Claims 11, 12, and 23 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Lee. Final Action 15—16.
IV. Claims 18—20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lee in view of Yoon.6 Final Action 17—18.7
4 Lee et al., US 2006/0130878 A1 (published June 22, 2006).
5 Weaver et al., US 2006/0237049 Al (published Oct. 26, 2006).
6 Yoon et al., US 2006/0054201 Al (published Mar. 16, 2006).
7 The Examiner has withdrawn a rejection of claims 21 and 22 under 35
U.S.C. § 112, second paragraph. See Advisory Action 2, May 7, 2015; see
also Appeal Br. 1 n. 1. The Examiner also advises that should claim 1 be
found allowable, the Examiner will object to claim 24 under 37 CFR § 1.75
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Appeal 2016-002022
Application 13/354,359
DISCUSSION
The following is a reproduction of Figure 5 of Lee:
as being a substantial duplicate of claim 1. Final Action 7; Answer 22—23.
Appellants argue that claims 1 and 24 are patentably distinct. See Appeal Br.
11; Reply Br. 9, Dec. 3, 2015. Because this issue does not relate to matters
involving the rejection of claims, we have no jurisdiction to review whether
or not claim 24 is a substantial duplicate of claim 1. See In re Hengehold,
440 F.2d 1395, 1404 (CCPA 1971).
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Appeal 2016-002022
Application 13/354,359
Figure 5 depicts an embodiment of a dishwasher system. Lee 1102. In this
embodiment,
[a] sump 220 is communicated with a water supply pump 230 for
pumping washing water, an exhaust pump 290 for exhausting the
washing water, and a main passageway 261 for supplying the
pumped washing water to a water jetting arm 211. A filtering
device 250 including a sewage chamber 252 and a filter 251 is
connected to the water supply pump 230 by an auxiliary passage­
way 262, and receives and filters some of the washing water
pumped from the water supply pump 230.
Id. 1103. Lee discloses that
[djuring the operation, when the filter 251 of the filtering device
250 is not blocked, the washing water pumped by the water sup­
ply pump 230, as shown in FIG. 5, is supplied to the filtering
device 250 through the auxiliary passageway 262. Next, the
washing water overflows from the filtering device 250 and is fil­
tered, then is recovered to the sump 220.
Id. 1108.
The Examiner finds that the “cleaning device” of claims 1 and 24
corresponds to sewage chamber 252 in Figure 5 of Lee. Final Action 8. In
addition, the Examiner determines that the phrase “for cleaning the filter
element” is an intended use, and apparently gives this phrase no patentable
weight. See id. at 8—9. The Examiner also finds that “[sjewage chamber
252 would be capable of cleaning filtering device 250.” Id. at 9 (emphasis
added) (citing Lee 1108, Fig. 5).
Appellants argue that Lee does not disclose that sewage chamber 252
is capable of cleaning, and therefore is not a cleaning device, particularly
with the capability to clean filter element 250. Appeal Br. 5—7; Reply Br. 1—
3.
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Appeal 2016-002022
Application 13/354,359
We interpret claims according to “the broadest reasonable meaning of
the words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant's specification.” In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997). If a claim element “is expressed as a means or step
for performing a specified function without the recital of structure, material,
or acts in support thereof,” we interpret the claim “to cover the
corresponding structure, material, or acts described in the specification and
equivalents thereof.” 35 U.S.C. § 112 para. 6 (2006) (amended 2011). Even
if a claim does not use the word “means,” paragraph 6 of § 112 is applicable
if the claim recites “function without reciting sufficient structure for
performing that function.” Williamson v. Citrix Online, LLC, 792 F.3d 1339,
1348 (Fed. Cir. 2015) (en banc) (quoting Watts v. XL Sys., Inc., 232 F.3d 877,
880 (Fed. Cir. 2000).
Claims 1 recites “at least one cleaning device provided in the pump
sump for cleaning the filter element.” Appeal Br. 13. Similarly, claim 24
recites “at least one cleaning device provided in the pump sump that is
configured to clean the filter element.” Id. at 15. Typically, the term
“device” does not itself connote sufficiently definite structure to avoid the
application of § 112, paragraph 6. See Massachusetts Inst, of Tech. & Elecs.
For Imaging, Inc. v. Abacus Software, 462 F.3d 1344, 1354 (Fed. Cir. 2006)
(citing In Personalized Media Commc ’ns, LLC v. Int 7 Trade Com ’n, 161
F.3d 696 (Fed. Cir. 1998)). This is the case in claims 1 and 24, where the
term “device” is a nonce word equivalent to the word “means,” and conveys
no connotation of structure to a person or ordinary skill in the art. The term
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Application 13/354,359
“cleaning” and the phrases “for cleaning the filter element” or “that is
configured to clean the filter element” only specify the function of the
device, and not its structure. The phrase “provided in the pump sump”
merely indicates where the device is located, but does not require the device
itself to have any particular structure. For these reasons, the broadest
reasonable interpretation of claims 1 and 24 is that they recite the function of
“cleaning the filter element,” but without a recitation of structure, material,
or acts in support of that function. Thus, claims 1 and 24 must be interpreted
to cover the corresponding structure, materials, and acts described in the
Specification and equivalents thereof. See 35 U.S.C. § 112 para. 6.
Because the Examiner did not construe claims 1 and 24 as covering
disclosed embodiments in the Specification and their equivalents, and has
not compared them with Lee’s sewage chamber 252, the Examiner
reversibly erred in rejecting claims 1 and 24. See In re Donaldson Co., 16
F.3d 1189, 1194—95 (Fed. Cir. 1994) (holding that an Examiner is required to
construe a means-plus-fimction claim as limited to the corresponding
structure disclosed in the specification and equivalents thereof). Because the
rejections of dependent claims 1—7 and 10—23 rely on this error, the
Examiner also reversibly erred in rejecting the dependent claims.
DECISION
The Examiner’s decision is reversed.
REVERSED
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