Ex parte RUMP et al.

Board of Patent Appeals and Interferences

Aug 16, 1999

08564044 (B.P.A.I. Aug. 16, 1999)

Application for patent filed November 30, 1995. According to appellants, the1
application is a National stage application under 35 U.S.C. 371 of PCT/EP95/01016 filed
March 18, 1995.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for
publication in a law journal and (2) is not binding precedent of the Board.
Paper No. 19
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte HANS RUMP,
NORBERT PIEPER,
JORG HILLER
and JAN SCHWARZE
__________
Appeal No. 98-3297
Application 08/564,0441
___________
ON BRIEF
___________
Before MEISTER, FRANKFORT and GONZALES, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 98-3297
Application 08/564,044
2
This is a decision on appeal from the examiner's final
rejection of claims 3 and 4, the only claims remaining in the
application. Claims 1 and 2 have been canceled.
Appellants’ invention relates to a method for
automatically triggering flushing of a urinal with water. As
explained on page 2 of the specification,
[w]ith the inventive method a flushing event is
triggered, independent of the respective absolute
temperature within the siphon and even for slow
temperature changes due to heating or cooling of the
ambient air, when the speed of the temperature
change, i.e., the change of the detected temperature
over time, exceeds a certain preset value, for
example, due to introduction of urine or waste water
into the urinal. Since with the inventive method it
is not the absolute temperature, but the temperature
increase over time that is detected with the aid of
the control and computing device, the invention
prevents extraneous flushing events which could be
caused by an increase or decrease of the absolute
temperature resulting from heating or cooling of the
ambient air and detected by the temperature sensor.
On the other hand, a relatively small change of the
temperature gradient, for example, a temperature
change of 0.2 C per second, is sufficient to triggerB
the desired flushing event because such a change of
the temperature gradient cannot be caused by heating
or cooling with ambient air, but exclusively by
introducing urine or waste water.
Appeal No. 98-3297
Application 08/564,044
While this reference was not separately listed by the examiner on page 3 of the2
answer as “relied upon in the rejection of claims under appeal,” it is clear from a
review of the record that it is still being relied upon in the rejection of claim 4 on
appeal. The examiner’s failure to list this reference and the rejection of claim 4
under § 103 in the examiner’s answer appears to be an oversight based somehow on
appellants’ indication in the brief (page 4) that claims 3 and 4 “are to stand or fall
together.” Thus, we have considered both the Lissau reference and the rejection of
claim 4 relying thereon in deciding this appeal.
3
Independent claim 3 is representative of the subject
matter on appeal and a copy of that claim may be found in the
Appendix to appellants’ brief.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Egli 3,751,736 Aug. 14,
1973
Lissau 4,309,781 Jan. 12,2
1982
Claim 3 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Egli. In both the final rejection (Paper
No. 9, page 2) and the examiner’s answer (Paper No. 16, page
Appeal No. 98-3297
Application 08/564,044
4
4), the examiner has urged that “[t]he normal
installation/operation of the Egli urinal would render the
method for triggering a flushing event, as claimed, obvious.”
Claim 4 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Egli in view of Lissau.
Rather than reiterate the examiner's full statement of
the above-noted rejections and the conflicting viewpoints
advanced by the examiner and appellants regarding the
rejections, we make reference to the examiner's answer (Paper
No. 16, mailed
January 26, 1998) for the reasoning in support of the
rejections, and to appellants’ brief (Paper No. 15, filed
December 16, 1997) and reply brief (Paper No. 17, filed March
30, 1998) for the arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellants’ specification and claims,
Appeal No. 98-3297
Application 08/564,044
5
to the applied prior art references, and to the respective
positions articulated by appellants and the examiner. As a
consequence of our review, we have made the determination that
the examiner’s rejections will not be sustained. Our reasons
follow.
Like appellants, we see no disclosure, teaching or
suggestion in Egli concerning a method of triggering a urinal
flushing event based on a calculated or determined temperature
gradient exceeding a preset limit. Indeed, as urged by
appellants in their reply brief, it appears that the system of
Egli is incapable of determining a temperature gradient, since
it has no structural feature which would allow (or be capable
of) calculating or determining a temperature gradient. The
examiner’s position in the answer (page 4) that the control of
Egli “may be (should such be selected) responsive to a
temperature change over time” and that “[t]he control, then,
would be operable for ‘determining’ a temperature gradient
since the sensed changing temperature can only initiate
flushing when a preset time period has been surpassed,” in our
opinion, is clearly based on impermissible hindsight gained
Appeal No. 98-3297
Application 08/564,044
6
only from first having viewed appellants’ disclosure, since
there is nothing in Egli which would have been suggestive to
one of ordinary skill in the art of selecting temperature
gradient as a parameter of interest in controlling automatic
triggering of flushing of a urinal with water. As for the
examiner’s reference in the rejection of claim 3 to Egli
column 1, lines 53-56, and column 4, lines 47-50, we share
appellants’ view as expressed on pages 4 and 5 of the reply
brief.
For the above reasons, we will not sustain the examiner’s
rejection of claim 3 on appeal under 35 U.S.C. § 103 based on
Egli.
Having further reviewed the reference to Lissau, relied
upon by the examiner in the § 103 rejection of dependent claim
4, we find nothing therein which provides that which we have
found
above to be lacking in Egli. Accordingly, the examiner’s
rejection of claim 4 on appeal under 35 U.S.C. § 103 based on
Egli in view of Lissau will likewise not be sustained.
Appeal No. 98-3297
Application 08/564,044
7
The decision of the examiner is reversed.
REVERSED
JAMES M. MEISTER )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
)
)
JOHN F. GONZALES )
Administrative Patent Judge )
CEF/kis
ROBERT W. BECKER & ASSOCIATES
11896 N. Highway 14
Suite B
Tijeras, New Mexico 87059
Appeal No. 98-3297
Application 08/564,044
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