Ex Parte White

Patent Trial and Appeal Board

May 19, 2017

13388413 (P.T.A.B. May. 19, 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.
010121-12001A 1081
EXAMINER
SKUBINNA, CHRISTINE J
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
13/388,413 04/04/2012
58898 7590 05/23/2017
Lempia Summerfield Katz LLC
20 South Clark
Suite 600
CHICAGO, IL 60603
Grahame White
05/23/2017 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):
docket-us @ lsk-iplaw.com
mail@lsk-iplaw.com
pair_lsk @ firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GRAHAME WHITE
Appeal 2016-0006691
Application 13/3 88,4132
Technology Center 3700
Before NINA L. MEDLOCK, KENNETH G. SCHOPFER, and
BRADLEY B. BAYAT, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of
claims 50—63. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references the Appeal Brief (“Appeal Br.,” filed Apr. 23,
2015) and Reply Brief (“Reply Br.,” filed Sept. 25, 2015), and the
Examiner’s Answer (“Ans.,” mailed Aug. 4, 2015) and Final Office Action
(“Final Act.,” mailed Oct. 24, 2014).
2 According to Appellant, the real party in interest is “SAFLUSHMYSS
LIMITED.” Appeal Br. 2.
Appeal 2016-000669
Application 13/388,413
BACKGROUND
According to Appellant, “[t]he present invention relates to a toilet, for
example one comprising a motorised toilet assembly.” Spec. 1,11. 7—8.
CLAIMS
Claims 50-63 are on appeal. Claim 50 is illustrative of the appealed
claims and recites:
50. A flushable toilet assembly comprising;
a toilet bowl,
a lid therefor,
means to secure the lid in a closed position, and
a control unit configured to
(a) operate said means to secure the lid in a closed
position during, and for a period after the end of, a
flushing operation, the flushing operation
generating miasma, and
(b) to unsecure the lid from a closed position after
the miasma generated by the flushing operation has
settled.
Appeal Br. 10.
REJECTIONS
1. The Examiner rejects claims 50-53, 55, 57, and 60-63 under 35 U.S.C.
§ 103(a) as unpatentable over Leitao3 in view of Ramsey.4
2. The Examiner rejects claim 54 under 35 U.S.C. § 103(a) as unpatentable
over Leitao in view of Ramsey and Kang.5
3 Leitao, US 2011/0004990 Al, pub. Jan. 13, 2011.
4 Ramsey, US 6,895,604 Bl, iss. May 24, 2005.
5 Kang et al., US 2010/0313343 Al, pub. Dec. 16, 2010.
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Application 13/388,413
3. The Examiner rejects claim 56 under 35 U.S.C. § 103(a) as unpatentable
over Leitao in view of Ramsey and Ehrensperger.6
4. The Examiner rejects claim 58 under 35 U.S.C. § 103(a) as unpatentable
over Leitao in view of Ramsey and Nishimura.7
5. The Examiner rejects claim 59 under 35 U.S.C. § 103(a) as unpatentable
over Leitao in view of Ramsey and Allen.8
DISCUSSION
Claims 50—53, 55, 57, and 60
Appellant groups claims 50—53, 55, 57, and 60 together. See Appeal
Br. 5. We select claim 50 as representative of this group, and thus,
claims 51, 52, 53, 55, 57, and 60 stand or fall with claim 50.
With respect to claim 50, the Examiner finds that Leitao discloses a
flushable toilet assembly including a bowl, lid, means to secure the lid, and a
control unit configured to operate the means for securing the lid in the closed
position during, and for a period after, the flushing operation. Final Act. 2
(citing Leitao, Fig. 1, || 31, 32). The Examiner acknowledges that Leitao
fails to specifically teach releasing the lid only after the miasma generated
by the flushing operation has settled. Id. at 2. The Examiner relies on
Ramsey for teaching “the importance of dealing with the bacteria and
viruses (miasma) that becomes airborne as a result of the flushing
operation.” Id. at 2—3 (citing Ramsey col. 1,11. 13—32). The Examiner finds
6 Ehrensperger et al., US 6,098,211, iss. Aug. 8, 2000.
7 Nishimura et al., US 2010/0095443 Al, pub. Apr. 22, 2010.
8 Allen et al., US 5,781,942, iss. July 21, 1998.
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Application 13/388,413
that Ramsey teaches a fan and filter for filtering miasma while the toilet lid
is closed. Id. at 3. The Examiner concludes that
it would have been obvious to one of ordinary skill in the art at
the time the invention was made to modify Leitao to include
keeping the lid closed for a period of time after the flushing
operation to allow the airborne microbes to settle so as to not
contaminate the bathroom environment as shown by Ramsey.
Id.
We have reviewed Appellant’s arguments and find them unpersuasive
of reversible error for the reasons discussed below.
First, Appellant argues that the combination fails to teach securing the
lid for a period of time after flushing and unsecuring the lid after miasma has
settled. Appeal Br. 5. In support, Appellant first asserts that “Leitao is
completely silent as to when the lid is secured or unsecured relative to the
timing or termination of a flushing operation.” Id. at 5. We disagree.
Leitao discloses that the lid is hermetically sealed after the toilet is used and
then a command button activates the flushing operation. Leitao 131. Leitao
discloses that the toilet flushing operation evacuates the bowl, washes the
bowl, evacuates the bowl again, and then refills the bowl. Id. H 31, 32.
Leitao discloses that refilling the tank and releasing the seat latch are part of
the same operational step after the bowl has been evacuated the second time.
Id. Thus, Leitao is not “completely silent” as to when the lid is secured and
unsecured.
Next, Appellant asserts that “Ramsey fails to cure this deficiency
because Ramsey does not teach securing the lid at any time.” Appeal Br. 5—
6. However, the rejection does not rely on a finding that Ramsey secures the
lid of a toilet bowl; the rejection only relies on Ramsey for teaching
regarding the importance of reducing contamination from miasma and for
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Application 13/388,413
generally teaching a device and method for dealing with miasma while the
toilet lid is closed. Thus, Appellant’s assertion regarding Ramsey
individually is not persuasive of error.
Second, Appellant argues that there is no reason to combine Leitao
and Ramsey. Appellant first asserts that “[o]ne having ordinary skill in the
art would not have looked to Ramsey for any reason to modify or improve
upon the Leitao flushing system.” Appeal Br. 6. However, the Examiner
has provided such a reason, which Appellant does not address, i.e., that one
of ordinary skill in the art would have looked to modify Leitao in view of
Ramsey’s teaching of “the importance of dealing with the bacteria and
viruses (miasma) that become airborne as a result of the flushing operation.”
Final Act. 2—3.
Appellant also asserts that Ramsey teaches away from modifying
Leitao because employing Ramsey’s fan in Leitao’s system “would reduce
the air pressure in the bowl and prevent flushing altogether[, which] would
destroy the purpose and teachings of Leitao.” Appeal Br. 6. We disagree.
A reference may be said to teach away when a person of ordinary skill, upon
reading the reference, would be discouraged from following the path set out
in the reference, or would be led in a direction divergent from the path that
was taken by the applicant. In re Gurley, 27 F.3d 551, 53 (Fed. Cir. 1994).
Appellant has not identified any reason why one of ordinary skill in the art
would have been discouraged from combining Ramsey and Leitao as
proposed by the rejection in order to arrive at the claimed device. Further,
the rejection does not rely on incorporating Ramsey’s fan into Leitao’s
system and only relies on Ramsey’s teachings regarding miasma and the
necessity of keeping the lid closed while miasma is filtered. See Final
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Act. 2—3. Further, to the extent Appellant also argues that the time period
during which Ramsey’s lid is closed is not related to miasma settling, we are
not persuaded at least because a specific time period is not required by claim
1.
Next, Appellant argues that the combination fails to teach all
limitations of the claims because the references do not teach or suggest
allowing miasma to settle; securing the lid while the miasma is settling; and
releasing the lid after the miasma has settled. We are not persuaded of error
by this argument. First, as a matter of claim construction, claim 50 only
requires that the control system is configured to keep the lid closed for as
long as it takes for miasma to settle. As discussed above, Leitao discloses
securing the lid in the closed position while the flushing operation is
occurring. As part of this operation, Leitao discloses that water and air are
evacuated twice as noted above, and Leitao also discloses that a purpose of
the device is to provide a “‘self-cleaning’ function, which saves work-force
and chemical cleaning products and keeps the whole always clean and
without bad smells.” Leitao 129. By evacuating both the water and air,
twice, while the flushing operation occurs, Leitao indicates or at least
suggests that any miasma has been evacuated, and thus it may be said to
have settled, during the flushing process. Further, we agree with the
Examiner that Ramsey discusses the importance of dealing with miasma and
also discloses a system in which the toilet seat is closed while miasma is
being filtered. See generally Ramsey col. 1. Based on these disclosures, we
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agree with the Examiner that it would have been obvious to a person of
ordinary skill in the art to employ a system as claimed.
Finally, Appellant asserts at multiple points that the rejection is based
on hindsight reasoning. However, Appellant has not persuaded us that the
rejection relies on knowledge or information gleaned only from Appellant’s
disclosure. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
Based on the foregoing, we are not persuaded of error in the rejection
of claim 50, and thus, we sustain the rejection of claim 50 and claims 51, 52,
53, 55, 57, and 60, which fall with claim 50.
Claims 54, 56, 58, 59, and 61—63
Appellant relies on the same arguments discussed above with respect
to the remaining claims on appeal. See Appeal Br. 8—9. For the reasons
provided above, we are not persuaded of error, and we sustain the rejections
of claims 54, 56, 58, 59, and 61—63.
DECISION
We affirm the rejections of claims 50—63 for the reasons set forth
above.
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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