Ex Parte Moschütz et al

Patent Trial and Appeal Board

Jul 12, 2017

12665778 (P.T.A.B. Jul. 12, 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.
12/665,778 05/30/2010 Harald Moschtitz PTB-6032-68 3732
23117 7590 07/14/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
KHAN, AMINA S
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
07/14/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HARALD MOSCHUTZ, INGO SCHULZE, and
ANDREAS HANAU
Appeal 2017-000172
Application 12/665,7781
Technology Center 1700
Before ROMULO H. DELMENDO, KAREN M. HASTINGS, and
JAMES C. HOUSEL, Administrative Patent Judges.
PER CURIAM.
DECISION ON APPEAL
1 The Applicants (hereinafter “Appellants”) states that the real party in
interest is “BSH HAUSGERATE GMBH.” Appeal Brief filed on January
26, 2016, hereinafter “Appeal Br.,” 3.
Appeal 2017-000172
Application 12/665,778
The Appellants appeal under 35 U.S.C. § 134(a) from the Primary
Examiner’s final decision to reject claims 24—26 and 28—34.2,3’2 3 4 We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
BACKGROUND
The subject matter on appeal relates to a washing machine that heats a
substantially lower amount of water or washing lye in comparison with a
conventional machine, and, thus, saves water and energy. Specification,
hereinafter “Spec.,” 1:24-29; 6:19-22.
Representative claim 24 is reproduced from page 14 of the Appeal
Brief (Claims Appendix), as follows (emphases added):
2 Claims 35—46 have been withdrawn from consideration pursuant to a
restriction requirement. Final Office Action (notice emailed on October 8,
2015), hereinafter “Final Act.,” 2.
3 Appeal Br. 6—12; Reply Brief filed on September 26, 2016, hereinafter
“Reply Br.,” 1—3; Examiner’s Answer (notice emailed on August 11, 2016),
hereinafter “Ans.,” 2—9; Final Act. 2—5.
4 The Appellants summarize the rejections before us on appeal at page 6 of
the Appeal Brief. However, the Appellants state claim 26 is rejected under
§ 103(a) over Benne et al. (hereinafter “Benne”; US 2008/0276382 Al,
published on November 13, 2008) in view of Chace et al. (hereinafter
“Chace”; US 2,548,651, issued on April 10, 1951) and Tazawa et al.
(hereinafter “Tazawa”; US 2005/0034491 Al, published February 17, 2005).
Appeal Br. 6. This is incorrect because claim 26 stands rejected under §
103(a) over Benne in view of Chace and Sevems et al. (hereinafter
“Sevems”; US 2002/0133886 Al, published September 26, 2002). Final
Act. 3; Ans. 5. Further, the Appellants do not list a rejection for claim 34 at
page 6 of the Appeal Brief. Claim 34 stands rejected under § 103(a) over
Benne in view of Chace and Tazawa. Final Act. 3; Ans. 5—6. These appear
to be oversights because the Appellants do not dispute the Examiner’s
restatement of the rejections at pages 2—6 of the Examiner’s Answer.
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24. A washing machine, comprising:
a lye container having a base;
a drum rotatably mounted in said lye container;
a lye discharge system disposed on said base of said lye
container;
a drive motor to drive said drum;
a heating device configured to directly heat a load of
laundry containing a washing lye, said heating device being
disposed in said lye container; and
a program controller preprogrammed to control a
washing program, the program controller providing commands
for performing a washing step including providing a volume of
washing lye to the lye container in an amount that is less than a
minimum amount required for saturation of the laundry thereby
resulting in wetted laundry while submerging a portion of the
drum', subsequently, performing a heating step wherein heat is
applied directly to the wetted laundry within the drum using the
heating device to dissolve dirt in the laundry; and after the
heating step, performing a rinsing step wherein a volume of
water is added at a temperature between not more than 40° C for
flushing the washing lye and dissolved dirt from the laundry,
wherein the volume of washing lye is a maximum volume
of washing lye provided to the lye container during the washing
program and prior to the heating step.
REJECTIONS ON APPEAL
On appeal, the Examiner maintains several rejections under 35 U.S.C.
§ 103(a), which are as follows (Ans. 2—6; Final Act. 2—3):
I. claims 24, 25, and 29—33 as being unpatentable over
Benne in view of Chace;
II. claim 28 as being unpatentable over Benne in view of
Chace and further in view of Wong;5
5 US 7,627,920 B2, issued on Dec. 8, 2009.
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Application 12/665,778
III. claim 26 as being unpatentable over Benne in view of
Chace and further in view of Sevems; and
IV. claim 34 as being unpatentable over Benne in view of
Chace and further in view of Tazawa.
DISCUSSION
Rejection I
The Examiner rejects claims 24, 25, and 29—33 under § 103(a) as
unpatentable over Benne in view of Chace. Ans. 2-4. We select claim 24 as
representative of the issues discussed below.
The Examiner finds Benne discloses laundering of fabrics by
introducing wash water, agitating the clothes, directly heating the clothes in
the drum, and rinsing the clothes. Id. at 2. The Examiner finds Benne does
not teach using a volume of water less than a minimum required for
saturation, using rinse temperatures of not more than 40°C, or specific
volumes of washing lye. Id. at 3. The Examiner finds Chace discloses
rinsing cycles at 75—100°F. Id. The Examiner concludes it would have been
obvious to use the rinse temperature of Chace in the machine of Benne. Id.
With regard to a program controller that controls a washing program
so a volume of washing lye is less than a minimum amount required to
saturate laundry, thereby wetting the laundry while submerging a portion of
the drum, as recited in claim 24, the Examiner finds Benne discloses
partially submerging the clothes in the drum of a washing machine as one
suitable method to wet clothes. Id. at 2. The Examiner concludes it would
have been obvious to optimize this amount of wetting as a result effective
variable to provide optimal wetting of laundry. Id. at 4.
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Application 12/665,778
The Appellants contend Benne discloses “clothes may be wet by at
least partially submerging the clothes load in the drum 16 and, optionally,
rotating the drum 16 such that the clothes load rotates through the wash
liquid.” Appeal Br. 5—6 (citing Benne 1 55). The Appellants assert this
method of Benne is similar to the conventional methods discussed in the
Appellants’ Specification, which use more water than the saturation amount.
Id. at 7—9; Reply Br. 2—3. The Appellants argue this “is evidence” that
Benne’s partial submerging of laundry is not functionally equivalent to a
program controller providing the claimed amount of washing lye recited in
claim 24. Appeal Br. 7. The Appellants argue Chace does not overcome the
deficiencies of Benne. Appeal Br. 9.
These arguments are unpersuasive. Where the general conditions of a
claim are disclosed in the prior art, it is not inventive to discover the
optimum or workable ranges by routine experimentation. In re Aller, 220
F.2d 454, 456 (CCPA 1955).
Here, the Examiner finds Benne discloses partially submerging
laundry in the drum of a washing machine to wet the laundry. Ans. 2, 6. As
acknowledged by the Appellants,6 paragraph 55 of Benne discloses this.
The Examiner finds this “indicates a range of submersion from just the
smallest fraction of the clothing being underwater to the entire fabric being
submerged.” Id. at 6. We agree with that finding. The Examiner concludes
it would have been obvious to optimize the amount laundry is wetted as a
matter of routine experimentation within the level of ordinary skill in the art.
Id. at 7. Such a conclusion, in our view, is adequately supported by the
6 Appeal Br. 7.
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Examiner’s findings. In any event, under Aller, discovering the workable
wetting amounts for laundry via routine experimentation would also have
been obvious.
We note that Benne discloses a control system to control the operation
of its washing machine, including the operation of a valve for its water
supply. Benne 22, 31. Therefore, one of ordinary skill in the art would
have modified the programming of the control system to correspond to the
results obtained via routine experimentation to optimize the wetting of
laundry or to determine its workable conditions.7
The Appellants have not argued that the amount laundry is wetted is
not a result-effective variable, the experimentation to optimize or determine
the workable conditions for wetting laundry would not have been routine, or
that it would not have been otherwise obvious to optimize the wetting
amount or determine its workable conditions. As discussed above, the
arguments set forth by Appellants focus on whether the applied references
disclose using the amount of washing lye recited in claim 24, not whether it
7 The Appellants address comments in the Final Office Action the
Appellants interpreted as the Examiner not giving proper weight to claim
limitations or treating the machines of the applied references as having a
controller that could be programmed in any way or otherwise capable of
performing the claimed functions. Appeal Br. 9—12. These arguments do
not address the Examiner’s rejection, which finds Benne discloses partially
submerging laundry and concludes it would have been obvious to optimize
the amount of laundry wetting provided by this method. In other words, the
Examiner addresses the claim limitations argued by the Appellants and does
not rely on the controller of Benne or Chace as being capable of performing
the functions of the program controller recited in claim 24 or that it would
have been obvious to modify the programming of the controller in any
manner without a suggestion in the prior art to do so.
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Application 12/665,778
would have been obvious to optimize the range of wetting suggested by
Benne. Indeed, the Appellants acknowledge the range of wetting suggested
by Benne by arguing partially submerging laundry could result in laundry
that is only partially submerged but completely saturated. Reply Br. 1.
However, the range of wetting suggested by Benne could also result in an
article of laundry in which half of the article is saturated and the other half is
dry due to its partial submergence, which overall would result in an article of
laundry that is wetted but having an amount of washing lye that is less than
an amount required for saturation, as recited in claim 24. Therefore, the
Appellants’ arguments do not identify a reversible error in the Examiner’s
rejection.
In a situation such as this where the Examiner establishes the
obviousness of a range, the burden shifts to the Appellants to show that the
claimed range is critical for providing an unexpected result. Aller, at 456
(“Under some circumstances, however, changes such as [changes in
temperature or concentration] may impart patentability to a process if the
particular ranges claimed produce a new and unexpected result which is
different in kind and not merely in degree from the results of the prior art.”
(Citation omitted)).
Here, the Appellants argue the Specification demonstrates criticality
for the claimed washing machine by explaining problems with the prior art.
Appeal Br. 8. The portion of the Specification cited by the Appellants only
discusses problems with prior art methods and states that an object of the
Appellants’ invention is to address these problems. This is insufficient to
establish that results provided by the washing machine of claim 24 would
have been unexpected to one of ordinary skill in the art. Further, the
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Specification does not compare results for the claimed invention to the
closed prior art. “[W]hen unexpected results are used as evidence of
nonobviousness, the results must be shown to be unexpected compared with
the closest prior art.” In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed.
Cir. 1991) (citation omitted). Therefore, the results alleged by the
Appellants are entitled to little weight and a preponderance of the evidence
supports the Examiner’s rejection. In re Lindner, 457 F.2d 506, 508 (CCPA
1972) (“[M]ere conclusory statements in the specification and affidavits are
entitled to little weight when the Patent Office questions the efficacy of
those statements.”).
Moreover, one of ordinary skill would have appreciated that the
demand for producing efficient washing machines that use less water has
been present in the marketplace. When presented with the problem of
reducing water usage, one must analyze the interrelated teachings of the
prior art, the effects of demands known to the design community or present
in the marketplace, and the background knowledge possessed by a person
having ordinary skill in the art. KSR Inf l Co. v. Teleflex Inc., 550 U.S. 398,
417-418 (2007). In view of the teachings of the applied references
(including Benue’s suggestion of a range of wetting via partial submergence
of laundry), the demand to produce an efficient washing machine that uses
less water, and the knowledge of one of ordinary skill in the art, it would
have been obvious to one of ordinary skill in the art to modify the machine
of Benne to use less water for the partial submergence and wetting of
laundry, which results in an amount of water that does not saturate the
laundry.
The Appellants do not argue claims 25 and 29—33 separately from
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claim 24. Appeal Br. 12.
For these reasons and those discussed in the Examiner’s Answer, we
uphold the Examiner’s § 103(a) rejection of claims 24, 25, and 29—33.
Rejections II IV
The Appellants do not present separate arguments for the rejections of
claims 26, 28, and 34. Id. Therefore, for the reasons set forth above and
those discussed in the Examiner’s Answer, we uphold the Examiner’s § 103
rejection of claims 26, 28, and 34.
SUMMARY
Rejections I—IV are affirmed. Therefore, the Examiner’s final
decision to reject claims 24—26 and 28—34 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)(l)(iv).
AFFIRMED
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