Ex Parte Young

Board of Patent Appeals and Interferences

Oct 12, 2010

11615564 (B.P.A.I. Oct. 12, 2010)

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.
11/615,564 12/22/2006 Raymond A. Young WDM-34733US1 1094
116 7590 10/13/2010
PEARNE & GORDON LLP
1801 EAST 9TH STREET
SUITE 1200
CLEVELAND, OH 44114-3108
EXAMINER
PERRIN, JOSEPH L
ART UNIT PAPER NUMBER
1711
MAIL DATE DELIVERY MODE
10/13/2010 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RAYMOND A. YOUNG
____________

Appeal 2009-010791
Application 11/615,564
Technology Center 1700
____________

Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and
TERRY J. OWENS, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL1
This is an appeal from the final rejection of claims 1-19. We have
jurisdiction under 35 U.S.C. § 6(b).
Claim 1 is illustrative:

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-010791
Application 11/615,564

1. A dishwasher including:

an enclosure;

a pump including a motor configured to operate at a plurality of
positive speeds;

a sensor for sensing turbidity within a liquid; and

a controller operatively connected to the sensor,

wherein the controller is configured to compare a turbidity sensed by
the sensor to a threshold level to operate the pump motor at one positive
motor speed when a turbidity sensed by the sensor is above the threshold
level and another positive motor speed when a turbidity sensed by the sensor
is below the threshold level.

The Examiner relies upon the following references in the rejection of
the appealed claims (Ans. 3):
Sones 3,279,481 Oct. 18, 1966
Reinert 5,511,263 Apr. 30, 1996
Bigott 6,659,114 B2 Dec. 09, 2003

Appellant’s claimed invention is directed to a dishwasher comprising
a pump having a motor that can operate at a plurality of positive speeds and
a sensor for sensing the turbidity of a liquid within the dishwasher. A
controller compares the sensed turbidity to a threshold level and operates the
pump motor at one speed when the turbidity is above the threshold level and
at another speed when the turbidity is below the threshold level.
Appealed claims 1-3 stand rejected under 35 U.S.C. § 102(b) as
anticipated by, or in the alternative, under 35 U.S.C. § 103(a) over Sones.
Claims 4-19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over Sones in view of Bigott and Reinert.
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Appeal 2009-010791
Application 11/615,564

We have thoroughly reviewed each of Appellant’s arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s rejections for essentially those
reasons expressed in the Answer to the extent they are based upon § 103.
We consider first the § 102 / § 103 rejection of claims 1-3 over Sones.
We agree with Appellant that the Examiner has not established that Sones
describes the claimed controller that compares turbidity sensed by a sensor
to a threshold level and then operates the pump motor at one of two speeds
contingent upon whether the turbidity is above or below the threshold level.
The Examiner has not rebutted Appellant’s argument that the analog
computer control circuit of Sones automatically varies the motor control
signal without any decision-making process utilizing a threshold value.
Also, the Examiner has not refuted Appellant’s reasonable argument that the
automatically and infinitely variable photoresistor of Sones cannot have any
thresholds between measured amounts of incident light and that it is
unreasonable to maintain that an infinitely variable photoresistor has an
infinite number of thresholds (Reply Br. 7, second para.).
On the other hand, we fully concur with the Examiner that it would
have been obvious for one of ordinary skill in the art to employ
conventional, comparative logic to control the system of Sones. Sones
expressly teaches that, during the washing cycles of operation of the
dishwasher, it is desirable to modify the speed of operation of the motor to
reflect conditions such as cleanliness of the article during the washing cycle.
Since Sones evidences that it was known in the art to vary the speed of the
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Appeal 2009-010791
Application 11/615,564

pump motor based on the cleanliness or turbidity of the liquid in the
dishwasher, we are convinced that the Examiner has properly concluded that
it would have been obvious for one of ordinary skill in the art to adjust the
speed continuously by using a variable resistance sensor, or to vary the
speed of the motor only when a threshold value of turbidity is sensed. Just
as it is generally a matter of obviousness for one of ordinary skill in the art
to convert a batch process into a continuous one, it is a matter of
obviousness for one of ordinary skill in the art to either continuously adjust
the speed of the pump in response to a sensed turbidity, or to change the
speed of the pump incrementally only at selected threshold values of
turbidity. We note that Appellant makes no assertion that the comparative
logic employed in the present invention is novel.
Regarding the § 103 rejection of claims 4-19, we find no error in the
Examiner’s legal conclusion that it would have been obvious for one of
ordinary skill in the art to modify the dishwasher of Sones to include manual
controls to override the automated controller in the case of a malfunction of
the automated controller. Manifestly, it was notoriously well known in a
variety of arts to provide manual controls of a system in the eventuality that
there is failure in the automated control system. We are not persuaded by
Appellant’s argument that there is no reason to modify the teaching of
Sones, who “already automatically controls the motor speed by way of
variable resistance sensor elements incorporated into the solid state
semiconductor network” (App. Br. 17, first full para.). As reasonably set
forth by the Examiner, the reason for such a modification would be to
provide a manual backup for a failed automated system. We are also not
convinced by Appellant’s argument that Reinert “relates to a manual
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Appeal 2009-010791
Application 11/615,564

override at a decontamination facility and bears no relationship to home
appliances such as the claimed dishwasher” (App. Br. 18, first full para.).
We are satisfied that one of ordinary skill in the art would have understood
that the principles of a manual override for an automated system would
translate to a wide variety of automated processes. Appellant has presented
no reason why one of ordinary skill in the art would have been dissuaded
from utilizing a manual override in the automated system of Sones.
As a final point, we note that Appellant bases no argument upon
objective evidence of non-obviousness, such as unexpected results.

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) (2008).

AFFIRMED

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PEARNE & GORDON LLP
1801 EAST 9TH STREET
SUITE 1200
CLEVELAND, OH 44114-3108
5