Ex Parte Rosenbauer

Board of Patent Appeals and Interferences

Nov 14, 2011

11043237 (B.P.A.I. Nov. 14, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte MICHAEL ROSENBAUER
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Appeal 2011-001614
Application 11/043,237
Technology Center 1700
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Before EDWARD C. KIMLIN, MICHAEL P. COLAIANNI, and
RAE LYNN P. GUEST, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 13-14, 16-19, 22-
32, and 34. Claims 15, 21, and 33 stand objected to by the Examiner. We
have jurisdiction under 35 U.S.C. § 6(b).
Claims 13 and 25 are illustrative:
13. A method for operating a rinsing program in a dishwasher machine,
comprising:

adjusting a rinsing program including adjusting a predetermined set of
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executable steps of a rinsing program to an adjusted set of executable steps
of the rinsing program in response to a selected one of a detection that no
rinse aid has been added and the dishwasher machine is operating and a
detection that there is an absence of salt above a predetermined minimum
quantity, the softening device is switched off, and the dishwasher machine is
operating.

25. A method for operating a dishwasher, comprising:

determining whether an amount of salt exceeds a predetermined
quantity, a softening device is switched off, and the dishwasher is operating;
and

adjusting an operation of the dishwasher in response to a detection
that there is an absence of salt above a predetermined minimum quantity, the
softening device is switched off, and the dishwasher machine is operating.

The Examiner relies upon the following references in the rejection of
the appealed claims (Ans. 3):
Cooper 5,806,541 Sep. 15, 1998
Spanyer 2003/0079760 A1 May 01, 2003
Price 2003/0213503 A1 Nov. 20, 2003
Bashark 6,887,318 B2 May 03, 2005

Appellants’ claimed invention is directed to a method for operating a
rinsing program in a dishwasher machine. The method entails adjusting the
rinsing program in response to a detection of a variety of conditions,
including, as set forth in some of the appealed claims, determining whether a
softening device is switched off.
Appealed claims 13, 14, 16, 17, 22, 23, 25-27, 29 and 32 stand
rejected under 35 U.S.C. § 102(e) as being anticipated by Spanyer. Claims
30 and 34 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over Spanyer in view of Bashark. Also, claims 18, 19, 24, 28 and 31 stand
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rejected under 35 U.S.C. § 103(a) as being unpatentable over Spanyer in
view of Bashark, Cooper and Price. In addition, the appealed claims stand
rejected under the judicially created doctrine of obviousness-type double
patenting.
We consider first the Examiner’s § 102 rejection over Spanyer. We
will sustain the rejection of claims 13, 14, 16, 17, 22 and 23 because
Appellant has not refuted the Examiner’s position that these claims do not
require adjusting a rinsing program in response to determining whether a
softening device is switched off. Claims 13 and 14, for instance, only
require adjusting a rinsing program in response to detection of one of the
selected conditions recited, including that no rinse aid has been added and
the machine is operating. Appellant has not contested the Examiner’s
finding that Spanyer discloses determining an amount of rinse aid in the
dispenser and optimizing the fan unit cycle in response thereto. Nor does
Appellant contest the Examiner’s finding that Spanyer’s disclosure of
determining the amount of rinse aid meets the claim limitation of detecting
that there is no absence of salt above a predetermined minimum quantity.
For the same reasons, we will sustain the Examiner’s § 103 rejection
of claims 18, 19 and 24 over Spanyer in view of Bashark, Cooper and Price.
We will not sustain the Examiner’s § 102 rejection of claims 25-29
and 32. These claims require determining whether a softening device is
switched off before adjusting an operation of the dishwasher, contrary to the
Examiner’s finding that determining whether a softening device is switched
off is only an optional determination, i.e., that the “claims are not limited to
only this limitation” (Ans. 12, second para.). The § 103 rejections of
dependent claims 28, 30, 31 and 34 must fall for the same reason.
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Appellant has not contested the Examiner’s rejection of all of the
appealed claims under the judicially created doctrine of obviousness-type
double patenting. Accordingly, we will summarily affirm this rejection.
In conclusion, based on the foregoing, the Examiner’s decision
rejecting 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)(1)(v).
AFFIRMED

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