Robert C. Tomlinson

Patent Trials and Appeals Board

Nov 7, 2019

13974097 - (D) (P.T.A.B. Nov. 7, 2019)

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.
13/974,097 08/23/2013 Robert C. Tomlinson 6697A 5237
25280 7590 11/07/2019
Legal Department (M-495)
P.O. Box 1926
Spartanburg, SC 29304
EXAMINER
LEE, DOUGLAS
ART UNIT PAPER NUMBER
1714
MAIL DATE DELIVERY MODE
11/07/2019 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROBERT C. TOMLINSON
____________

Appeal 2019-002089
Application 13/974,097
Technology Center 1700
____________

Before LINDA M. GAUDETTE, CHRISTOPHER L. OGDEN, and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s decision to finally reject claims 1 and 3–22.2 We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Milliken & Company as the real party
in interest. Appeal Brief filed August 7, 2018 (“Appeal Br.”) at 2.
2 Claim 23 has been withdrawn from consideration. Final Office Action
entered March 7, 2018 (“Final Act.”) at 1.
Appeal 2019-002089
Application 13/974,097

2
CLAIMED SUBJECT MATTER
Appellant claims a carpet or rug cleaning system. Appeal Br. 2.
Claim 1, the sole pending independent claim, illustrates the subject matter on
appeal, and is reproduced below with contested language italicized:
1. A carpet or rug cleaning system comprising:
(a) a self-propelled and guided robotic cleaner that
includes:
(i) a pretreatment dispensing chamber for
dispensing an aqueous cleaning solution,
(ii) a powder dispensing chamber for dispensing
a powder cleaning composition,
(iii) a brushing mechanism,
(iv) optionally, a retrieval chamber, and
(v) a power source, and,
(b) a guidance system.
Appeal Br. 11 (Claims Appendix) (emphasis added).
REJECTIONS
The Examiner maintains the following rejections in the Examiner’s
Answer entered October 25, 2018 (“Ans.”):3
I. Claim 1 under 35 U.S.C. § 102(b) as antitipated by Ziegler;4
and
II. Claims 3–22 under 35 U.S.C. § 103(a) as unpatentable over
Ziegler in view of Moore.

3 The Examiner withdrew the rejection of claim 1 under 35 U.S.C. § 103(a)
as unpatentable over Schnittman et al. (US 2008/0047092 Al, published
February 28, 2008), and rejection of claims 3–22 under 35 U.S.C. § 103(a)
as unpatentable over Schnittman in view of Moore et al. (US 2010/0249011
Al, published September 30, 2010), in the Answer. Ans. 7–8.
4 Ziegler et al. (US 2007/0016328 Al, published January 18, 2007).
Appeal 2019-002089
Application 13/974,097

3
FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions, we affirm the Examiner’s rejection of
claim 1 under 35 U.S.C. § 102(b), and rejection of claims 3–22 under
35 U.S.C. § 103(a), for the reasons set forth in the Final Action, the Answer,
and below.
We review appealed rejections for reversible error based on the
arguments and evidence the appellant provides for each issue the appellant
identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011) (Explaining that even if the Examiner had
failed to make a prima facie case, “it has long been the Board’s practice to
require an applicant to identify the alleged error in the examiner’s
rejections.”)).
Rejection I: claim 1 under 35 U.S.C. § 102(b) as anticipated by Ziegler
Claim 1 recites that the claimed carpet or rug cleaning system
comprises, in part, a pretreatment dispensing chamber for dispensing an
aqueous cleaning solution, and a powder dispensing chamber for dispensing
a powder cleaning composition.
Appellant argues that Ziegler does not disclose “two separate and
distinct chambers—one that dispenses an aqueous material and one that
dispenses a cleaning material in powder form as recited by the present
claims.” Appeal Br. 8.
As the Examiner finds, however, Ziegler discloses an autonomous
floor cleaning robot that includes a tank comprised of multiple separate
compartments (chambers), and Ziegler discloses that cleaning solution can
Appeal 2019-002089
Application 13/974,097

4
be disposed in one compartment, and dry particulate (powder) can be
disposed in another compartment. Final Act. 9; Ziegler ¶¶ 16, 294, 296. As
the Examiner also finds, Ziegler discloses a cleaning operation in which the
autonomous floor cleaning robot applies an abrasive powder, and then
applies cleaning fluid, to a surface being cleaned. Final Act. 9; Ziegler
¶¶ 303, 304. Contrary to Appellant’s arguments, Ziegler thus discloses
an autonomous floor cleaning robot (a carpet or rug cleaning system)
comprising a compartment from which a cleaning fluid is dispensed (a
pretreatment dispensing chamber for dispensing an aqueous cleaning
solution), and a separate compartment from which a powder cleaning
material is dispensed (a powder dispensing chamber for dispensing a powder
cleaning composition), as recited in claim 1.
Furthermore, as the Examiner points out (Ans. 9), the recitation in
claim 1 of “for dispensing an aqueous cleaning solution,” and recitation of
“for dispensing a powder cleaning composition,” describe intended uses
of the recited pretreatment dispensing chamber and powder dispensing
chamber, respectively. It is well-settled that “apparatus claims cover what a
device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb
Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990). An inventor of an apparatus is
entitled to benefit from all of its uses, even those not described, Roberts v.
Ryer, 91 U.S. 150, 157 (1875), and conversely, patentability of an apparatus
does not turn on its use or function. In re Michlin, 256 F.2d 317, 320
(CCPA 1958) (“It is well settled that patentability of apparatus claims must
depend upon structural limitations and not upon statements of function.”).
Consequently, apparatuses must be distinguished from the prior art on the
basis of structure, and where there is reason to believe that a prior art
Appeal 2019-002089
Application 13/974,097

5
structure is inherently capable of performing a recited function, the
burden shifts to the applicant to show that the recited function patentably
distinguishes the claimed structure from the prior art structure. See In re
Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997); In re Hallman, 655 F.2d
212, 215 (CCPA 1981).
Appellant’s arguments do not identify a structural difference between
Ziegler’s autonomous floor cleaning robot and the carpet or rug cleaning
system of claim 1. Appeal Br. 7–8. Nor do Appellant’s arguments show
that Ziegler’s autonomous floor cleaning robot is incapable of dispensing an
aqueous cleaning solution from one compartment, and dispensing a powder
cleaning composition from a separate compartment. Id.
Consequently, Appellant’s arguments do not identify reversible error
in the Examiner’s rejection of claim 1 under 35 U.S.C. § 102(b) as
anticipated by Ziegler, which we accordingly sustain.
Rejection II: claims 3–22 under 35 U.S.C. § 103(a) as unpatentable over
Ziegler in view of Moore
To address this rejection, Appellant relies on the arguments discussed
above that Appellant provides for claim 1, and contends that the additional
reference applied in this rejection—Moore—fails to remedy the deficiencies
of Ziegler. Appeal Br. 9. Because we are unpersuaded of reversible error in
the Examiner’s rejection of claim 1 for the reasons discussed above,
Appellant’s argument for this rejection is also unpersuasive of reversible
error.
Appellant also makes conclusory assertions as to deficiencies in
the Examiner’s rejection, without identifying any specific error in the
Examiner’s factual findings or reasoning. Appeal Br. 9–10 (stating that to
Appeal 2019-002089
Application 13/974,097

6
establish prima facie obviousness there must be (a) a motivation or
suggestion to combine or modify the references, (b) there must be a
reasonable expectation of success if the combination or modification is
made, and (c) all the claim limitations must be considered, which “have not
been met; and therefore, the instant claims are not obvious in light of the
prior art,” and stating that “[t]o support the conclusion that the claimed
invention is directed to obvious subject matter . . . the examiner must present
a convincing line of reasoning as to why the artisan would have found the
claimed invention to have been obvious in light of the teachings of the
references . . . Appellant respectfully submits that the Examiner has thus far
failed to provide a convincing line of reasoning.”).
Appellant’s conclusory assertions, however, do not warrant our
separate consideration pursuant to 37 C.F.R. § 41.37(c)(1)(iv). We,
accordingly, sustain the Examiner’s rejection of claims 3–22 under
35 U.S.C. § 103(a) as unpatentable over Ziegler in view of Moore.

CONCLUSION

Claims

35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1 102(b) Ziegler 1
3–22 103(a) Ziegler, Moore 3–22
Overall
Outcome
1, 3–22

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)(iv).
AFFIRMED