Ex Parte Rosenbauer

Patent Trial and Appeal Board

Sep 22, 2016

13256442 (P.T.A.B. Sep. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/256,442 09/14/2011
46726 7590 09/26/2016
BSH Home Appliances Corporation
100 Bosch Boulevard
NEW BERN, NC 28562
FIRST NAMED INVENTOR
Michael Georg Rosenbauer
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.
2008P03013WOUS 5447
EXAMINER
MARKOFF, ALEXANDER
ART UNIT PAPER NUMBER
1711
NOTIFICATION DATE DELIVERY MODE
09/26/2016 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 GEORG ROSENBAUER
Appeal2015-005794
Application 13/256,442
Technology Center 1700
Before, MICHAEL P. COLAIANNI, ELIZABETH M. ROESEL, and
JENNIFER R. GUPTA, Administrative Patent Judges.
ROESEL, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 32-54. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 BSH Bosch und Siemens Hausgerate GmbH is identified as the real party
in interest. App. Br. 3.
Appeal2015-005794
Application 13/256,442
STATEivIENT OF THE CASE
Claimed Invention
The claimed subject matter relates to a water-conducting household
device, for example, a dishwashing machine. App. Br. 10 (claim 32); Spec.
i-fi-f l, 23. According to the Specification, an object of the invention is to
reduce water consumption. Spec. i17. Independent claims 32, 43, and 54
are representative of the subject matter on appeal and are reproduced below
from Appellant's Claims Appendix, with bold added to identify the
limitations that are the focus of Appellant's arguments:
32. A water-conducting household device, comprising a
hydraulic circuit with a filtration system whose level of filter
contamination is detectable, wherein wash liquid is
dischargeable only partially from the household device
when it is detected that the predetermined threshold level of
filter contamination has been undershot.
43. A water-conducting household device, comprising:
a hydraulic circuit;
a filtration system in the hydraulic circuit; and
a control device, wherein
the control device is configured to determine a level of
contamination of the filter, and
the control device is configured to control the water-
conducting household device to only partially discharge wash
liquid from the water-conducting household device when a
predetermined threshold level of filter contamination has
been undershot.
54. A water conducting household device, comprising:
a hydraulic circuit with a filtration system whose level of
filter contamination is detectable;
a drain pump;
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a circulation pump; and
a control device connected to the drain pump and the
circulation pump and comprising an evaluation unit configured
to determine the level of filter contamination, the control device
being configured to activate the drain pump to only partially
discharge a wash liquid from the water conducting
household device when the evaluation unit determines that
the level of filter contamination after completion of a pre-
wash step is below a predetermined threshold level of filter
contamination.
App. Br. 10-11, 13.
References
Klein US 2007/0163626 Al
Bragg US 2009/0205680 Al
Stamminger et al. EP 0 255 863 B 1
Rejections
July 19, 2007
Aug.20,2009
July 1, 1992
1. Claims 32--42 are rejected under 35 U.S.C. § 102(b) as anticipated
by Klein. Non-Final Action 2-3.2
2. Claims 32--40 are rejected under 35 U.S.C. § 102(a) or (e) as
anticipated by Bragg. Non-Final Action 3--4; Ans. 3. 3
3. Claims 43-51 and 54 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bragg. Non-Final Action 4--6.
2 Non-Final Action entered September 18, 2014.
3 In response to Appellant's argument regarding Bragg, App. Br. 5 n.l, the
Examiner changes the statutory basis for the anticipation rejection from
section 102(b) in the Non-final Action to section 102(a) and (e) in the
Answer. Compare Non-Final Action 3, with Ans. 3. Appellant does not
argue that Bragg does not qualify as prior art under section 102(a) or (e), nor
assert that the change in statutory basis for the rejection is improper. See
Reply Br. 4.
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4. Claims 43-51 and 54 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bragg and Stamminger. Non-Final Action 6-8.
5. Claims 41, 42, 52, and 53 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bragg, Stamminger, and Klein. Non-Final Action 8-9.
ANALYSIS
Appellant's arguments are directed to independent claims 32, 43, and
54 only. Appellant presents no separate argument regarding the dependent
claims, including separately rejected dependent claims 41, 42, 52, and 53.
See App. Br. 5-9. As a consequence, the dependent claims stand or fall with
independent claims 32, 43, and 54, and we confine our discussion to the
independent claims.
Claim 32-Anticipation by Klein
The Examiner finds that Klein discloses the structural limitations of
claim 32. Non-Final Action 2-3 (citing Klein i-fi-17-14, 22-36, and Figs. 1-
3). The Examiner concludes that "[ s ]ince the dishwasher of Klein comprises
the claimed parts[,] it is fully capable of performing the intended use of the
dishwasher recited by the claims." Id. at 3.
Appellant's argument focuses on the limitation of claim 32 that
recites: "wash liquid is dischargeable only partially from the household
device when it is detected that the predetermined threshold level of filter
contamination has been undershot." App. Br. 5---6. Appellant agrees that
this is a functional limitation, but argues that Klein is not capable of
performing the recited function without modification, e.g., by installing
software and/or hardware. Id.
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We are not persuaded that Appellant identifies reversible error in the
Examiner's anticipation rejection based on Klein. Appellant does not
dispute the Examiner's finding that Klein discloses the structural limitations
of claim 32. The Examiner's finding is supported by Klein, which discloses
a dishwasher comprising a hydraulic circuit (pump 5 and associated nozzle
arms and pipes) with a filtration system (washing water filter 4), a filter
contamination detector (monitoring circuit 26 and associated detector and
circuitry), and an automatic programming system 30 and microcontroller 31
for controlling the pump and inlet and outlet valves. Klein i-fi-1 7, 22, 24, 31,
34. Notably, Appellant does not identify any differences between Klein's
disclosed structures and the structure disclosed in Appellant's Specification
for performing the partial discharge function. See, e.g., Spec. i-fi-127, 30, 31
(disclosing control device 27 connected to circulation pump 13 and drain
pump 18 for determining the level of filter contamination and activating the
pump). For example, Appellant does not identify any disclosure of software
in Appellant's Specification.
The Examiner's finding that Klein discloses claim 32's structural
limitations is sufficient to shift the burden to Appellant to show that Klein is
not capable of performing the functionally defined limitations. In re
Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997).4 Although Appellant
4 Typhoon Touch Techs., Inc., v. Dell, Inc., 659 F.3d 1376, 1380 (Fed. Cir.
2011 ), addresses functional limitations in the context of infringement and is
not "more on point" than Schreiber, as argued by Appellant. Reply Br. 2-3.
Appellant's other cited cases are not as pertinent as Schreiber because they
address patentability based upon structural, rather than functional,
limitations of a claim. KIS HIMPP v. Hear-Wear Techs, LLC, 751 F.3d
1362, 1365-66 (Fed. Cir. 2014) (addressing "an important structural
limitation" not within the common knowledge of those skilled in the art); In
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refers generally to modifications, e.g., installation of software and/or
hardware, Appellant does not specifically identify what, if any, modification
of Klein's disclosed structure would be necessary. We are not persuaded
that any modification of Klein's disclosed structure would be necessary to
enable it to perform the partial discharge function recited in claim 32. For
example, Klein discloses a monitoring circuit capable of detecting filter
blockage caused by wash water impurities (i.e., filter contamination) and
that responsive to detecting such filter blockage, the wash cycle is
interrupted, and the washing water is pumped away. Klein i-fi-f 13, 33.
Although Klein is silent on whether the washing water is partially or fully
discharged, Appellant does not meet its burden to show that Klein's
disclosed structure, including monitoring circuit 26, automatic programming
system 30, microcontroller 31, pump 5, and outlet valve, is incapable of
partial discharge responsive to detecting filter blockage below a given
threshold. In re Schreiber, 128 F.3d at 1478.
Based on the foregoing, the weight of the evidence supports the
Examiner's finding of anticipation. Therefore, the § 102(b) rejection based
on Klein is sustained.
re Giannelli, 739 F.3d 1375, 1380 (Fed. Cir. 2014) (Board erred by
construing "adapted to" to mean "capable of," rather than a particular
structural design or construction); In re Giannelli, Appeal 2012-000392,
2014 WL 1005325, at *3 (PTAB Jan. 27, 2014) (stating that "mere
capability ... is not the inquiry the Examiner should have made," citing In
re Giannelli, 739 F.3d 1375). In contrast to the Giannelli cases, Appellant's
partial discharge limitation is undisputedly functional, and structure
disclosed in the prior art and capable of performing that function is sufficient
to anticipate.
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Application 13/256,442
Claim 32-Anticipation by Bragg
The Examiner finds that Bragg discloses each limitation of claim 32.
Non-Final Action 3--4 (citing Bragg i-fi-f 17, 24, 25, 27, 29, and Figs. 1 and 3).
Appellant argues that Bragg discloses discharging liquid based on
turbidity, not filter contamination, as recited in claim 32. App. Br. at 6.
Appellant additionally argues that Bragg does not disclose a relationship
between turbidity and filter contamination and that these two conditions bear
"no definitive relation" to one another. Id. at 6-7. According to Appellant,
none of the cited portions of Bragg discloses partial discharge when a
threshold level of filter contamination has been undershot. Reply Br. 4.
We are not persuaded that Appellant identifies reversible error in the
Examiner's anticipation rejection based on Bragg. Bragg discloses a
turbidity sensor as an "example" of a monitoring device and turbidity as an
"example" of a condition of the wash/rinse water that may be monitored to
determine whether it needs to be drained and refilled. Bragg i-fi-f 17, 18, 20,
25, 26. As another example, Bragg discloses that "the circulation pump of
the dishwasher appliance may also be monitored ... to determine whether a
drain/refill procedure for the wash/rinse water may be needed." Id. i127.
According to Bragg, monitoring the circulation pump for a "starvation"
condition, as evidenced by a rise or fluctuation of the RPM level, detects
whether the filtration system is clogged or otherwise impeded, i.e., filter
contamination. Id. Notably, Bragg's method of detecting filter
contamination by monitoring RPM level of the circulation pump is the same
as Appellant's. Compare Bragg i127, with Spec. i-fi-f 12-15 (level of filter
contamination may be determined by detecting rotational speed of the
circulation pump, including fluctuation of same). Accordingly, we are not
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persuaded by Appellant's argument that Bragg discloses discharging wash
liquid based only on turbidity and not filter contamination.
Bragg also discloses a relationship between turbidity and filter
contamination. More particularly, Bragg discloses that if "soil levels
(turbidity)" is "too high, the circulation pump may experience a 'starvation'
condition" because "the flow of wash/rinse water to the circulation pump
inlet is restricted by a clogged or otherwise impeded filtration system."
Bragg, i-f 27. Thus, Bragg expressly correlates high turbidity to filter
clogging (contamination). In addition, Bragg discloses discharging wash
water based on a rise or fluctuation of the RPM level of the circulation
pump, indicative of filter contamination. Id.
Bragg expressly discloses that if the wash water contamination
(turbidity) is below a particular threshold, then the wash water may be only
partially (rather than fully) drained and refilled. Bragg i-fi-124--26. Bragg
also expressly discloses that the RPM level of the circulation pump may be
monitored to detect filter contamination and "to determine whether a
drain/refill procedure for the wash/rinse water may be needed." Id. at i-f 27.
Bragg does not expressly state that a "drain/refill procedure" in response to
monitoring RPM level (as an indicator of level filter contamination) may
include partial discharge of water. As discussed above, however, Bragg
expressly correlates high turbidity with filter contamination. Id. In addition,
Bragg indicates that there are ways, other than a turbidity threshold, to
determine whether the wash water is sufficiently clean as to permit partial,
rather than complete, draining and refilling of the wash water. Id. at i-fi-1 1 7,
18, 20, 24. Accordingly, we find that a person of ordinary skill in the art
reading Bragg's disclosure would "at once envisage" that, if the level of
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filter contamination (as indicated by RPivI level) is not so high as to require
that the wash water be completely drained and refilled, then a partial
drain/refill procedure would be carried out. Kennametal, Inc. v. Ingersoll
Cutting Tool Co., 780 F.3d 1376, 1381 (Fed. Cir. 2015) (quoting In re
Petering, 301F.2d676, 681 (1962)); see also In re Preda, 401F.2d825,
826 (CCP A 1968) ("[I]n considering the disclosure of a reference, it is
proper to take into account not only specific teachings of the reference but
also the inferences which one skilled in the art would reasonably be
expected to draw therefrom.").
Based on the foregoing, the weight of the evidence supports the
Examiner's finding of anticipation. Therefore, the§ 102(a) or (e) rejection
based on Bragg is sustained.
Claims 43 and 54--0bviousness over Bragg
The Examiner finds that Bragg does not specifically teach that the
controller is configured to cause the dishwasher to only partially discharge
wash water when the level of filter contamination is below a threshold (is
undershot). Non-Final Action 5. More specifically, the Examiner finds that
it is not clear from Bragg whether a partial discharge of water is triggered
only by sensing turbidity or whether sensing fluctuations of the pump motor
RPM (to detect filter contamination) is also used for this purpose. Ans. 5.
The Examiner finds that Bragg teaches partial discharge when the
level of turbidity (water contamination) is low and that the filtration system
is clogged when the contamination level is too high. Non-Final Action 5-6
(citing Bragg i-fi-124, 25, 27). The Examiner finds that Bragg teaches that
filter contamination is related to turbidity and can be detected by fluctuation
of the pump motor RPM. Ans. 5. The Examiner concludes that it would
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have been obvious to only partially discharge wash water when the level of
filter contamination is below a threshold of the pump starvation "in order to
ensure that the level of water contamination is acceptably low to allow the
use of water remaining after a partial pumping-out." Non-Final Action 6;
Ans. 6.
Appellant argues that "Bragg provides no correlation between filter
contamination and discharging water" and "detect[ s] rotation speed of a
circulation pump for signaling exception conditions, not whether liquid
should be partially pumped out." App. Br. 7. According to Appellant, "an
exception condition is the opposite of determining when a resource is still at
least partially usable." Reply Br. 5. Appellant additionally argues that
claims 43 and 54 are patentable because they solve a problem recognized by
the inventors, but not by Bragg, namely that known sensors are costly. App.
Br. 8; Reply Br. 5---6.
We are not persuaded that Appellant identifies reversible error in the
Examiner's obviousness rejection based on Bragg. As discussed above,
Bragg discloses that the circulation pump can be monitored to determine
whether a drain/refill procedure may be needed. Bragg i-f 27. Bragg also
discloses that monitoring the circulation pump can detect a "starvation"
condition resulting from high turbidity and a clogged filtration system. Id.
According to Bragg, such a "starvation" condition may be treated as an
"above-threshold" condition that triggers a drain/refill procedure of the
wash/rinse water. Id. Thus, contrary to Appellant's argument, Bragg
provides a correlation between filter contamination and discharging water.
Although Appellant argues "there is not disclosure [in Bragg]
regarding what to do if the pump is not starved," Reply Br. 5, that argument
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fails to take into account the inferences that a person of ordinary skill in the
art would reasonably have been expected to draw from the express teachings
of Bragg. Preda, 401 F.2d at 826; see also In re Baird, 16 F.3d 380, 383
(Fed. Cir. 1994) ("reference must be considered not only for what it
expressly teaches, but also for what it fairly suggests").
As already discussed, Bragg expressly teaches that if the wash water
turbidity is below a particular threshold, then the wash water may be only
partially (rather than fully) drained and refilled. Bragg i-fi-124--26. Bragg
expressly correlates high turbidity with filter contamination. Id. i127.
Bragg's express disclosures support an inference that, if the level of filter
contamination (as measured by the RPM level of the circulation pump) is
below a threshold that requires that the wash water be fully drained and
refilled, then the wash water may be partially drained and refilled. Id.
i-fi-124--27. This inference is further supported by Bragg claim 8, which
discloses a control device configured to monitor the circulation pump for a
starvation condition and, in response to detection of the starvation condition,
at least partially draining and refilling the washing fluid. Id. at claim 8.
This inference is still further supported by Bragg's teaching that "less
draining and re-filling conserves water and energy, and may help to reduce
the overall duration of the wash cycle." Id. i15.
Appellant's recognition that turbidity sensors are costly does not
support patentability of Appellant's claims, which do not exclude a
dishwasher that includes a turbidity sensor in addition to a control device
configured to determine a level of filter contamination. Bragg's express
teachings, as discussed in the Non-Final Action, the Answer, and above, are
sufficient to show that it would have been obvious to monitor filter
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contamination, either in addition to or in lieu of turbidity, and to partially
discharge the wash water, if the level of filter contamination is below a
predetermined threshold level. Bragg i-fi-1 5, 17, 18, 20, 24--27.
Based on the foregoing, the weight of the evidence supports the
Examiner's conclusion of obviousness. Therefore, the§ 103(a) rejection
based on Bragg is sustained.
Claims 43 and 54----0bviousness over Bragg and Stamminger
The Examiner finds that Stamminger (EP 0255863) teaches sensing
the rotation speed or power consumption of the circulation pump motor as
an alternative to the use of turbidity sensors for determining the degree of
water contamination. Non-Final Action 7-8. Based on the teachings of
Bragg and Stamminger, the Examiner concludes that it would have been
obvious to configure the controller of Bragg to utilize Bragg's filter
contamination sensor, which utilizes circulation pump rotational speed and
its fluctuations to monitor the level of water and filter contamination, and to
discharge only partially the wash water when the level of water and filter
contamination is low (below a threshold). According to the Examiner, this
configuration would ensure that the level of water contamination is
acceptably low for use of the remaining water after a partial discharge. Non-
Final Action 8.
Appellant argues that, in the cited art, "there is no correlation between
filter contamination and pumping off liquid." App. Br. 9. Appellant
additionally argues that, in a combined system based on Bragg and
Stamminger, "pump off would occur based upon liquid contamination, not
filter contamination." Id.; Reply Br. 6 (same).
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We are not persuaded that Appellant identifies reversible error in the
Examiner's obviousness rejection based on Bragg and Stamminger. As
discussed above, Bragg does provide a correlation between filter
contamination and discharging water. Bragg i-f 27. For the reasons
discussed in the Non-Final Action, the Answer, and above, the cited
teachings of Bragg and Stamminger are sufficient to support the Examiner's
finding that pump off would occur based on monitoring both water
contamination and filter contamination. Non-Final Action 6-8; Ans. 6-8,
11-18; Bragg i-fi-f 24--27.
Based on the foregoing, the weight of the evidence supports the
Examiner's conclusion of obviousness. Therefore, the§ 103(a) rejection
based on Bragg and Stamminger is sustained.
CONCLUSION OF LAW AND DECISION
The decision of the Examiner 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) (1).
AFFIRMED
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