Ex Parte BALDWIN et al

Patent Trial and Appeal Board

Jul 16, 2018

14031078 (P.T.A.B. Jul. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/031,078 09/19/2013
130348 7590 07/18/2018
Whirlpool Corporation/ McGarry Bair PC
2000 North M63
Benton Harbor, MI 49022
FIRST NAMED INVENTOR
MARK W. BALDWIN
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
SUB-03083-US-NP 1007
EXAMINER
AYALEW, TINSAEB
ART UNIT PAPER NUMBER
1711
NOTIFICATION DATE DELIVERY MODE
07/18/2018 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):
patents@mcgarrybair.com
mike_lafrenz@whirlpool.com
deborah_tomaszewski@whirlpool.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK W. BALDWIN, BRIAN L. GREENHAW,
PRA VEEN POOJARY, BARRY E. TULLER, CHAD T. VANDERROEST,
AMERESH B. VISWANATHAN, and RODNEY M. WELCH
Appeal 2017-009110
Application 14/031,078
Technology Center 1700
Before CATHERINE Q. TIMM, MARK NAGUMO, and
SHELDON M. McGEE, Administrative Patent Judges.
Opinion for the Board by TIMM, Administrative Patent Judge.
Opinion dissenting by NAGUMO, Administrative Patent Judge.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL 1
1 In explaining our Decision, we cite to the Specification dated September
19, 2013 (Spec.), Non-Final Office Action dated June 14, 2016 (Non-Final),
Appeal Brief dated November 22, 2016 (Br.), and Examiner's Answer dated
March 16, 2017 (Ans.).
Appeal 2017-009110
Application 14/031,078
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § I34(a), Appellant2 appeals from the
Examiner's decision to reject claims 1-5, 9-16, and 18-21 under 35 U.S.C.
§ I03(a) as obvious over Warhus3 in view of Tuller, 4 claims 6-8 under 35
U.S.C. § I03(a) over Warhus, Tuller, and further in view of Gurubatham, 5
and claims 17 and 22 under 35 U.S.C. § I03(a) as obvious over Warhus,
Tuller, and further in view of Haas. 6 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
The claims are directed to a dishwasher. Claim 1, with the limitations
most at issue highlighted, is illustrative:
1. A dishwasher for treating dishes according to at least
one automatic cycle of operation, comprising:
a tub at least partially defining a treating chamber in
which dishes may be received for treatment;
at least one sprayer provided within the treating
chamber, and having a body with an upper surface and a spaced
lower surface and defining an interior fluidly coupled to at least
one opening through which liquid is emitted into the treating
chamber and at least one through passage extending from the
upper swface of the body through the interior to the lower
surface of the body and fluidly separate from the interior; and
2 Appellant is the Applicant, Whirlpool Corporation, which, according to the
Brief, is the real party in interest. Br. 2.
3 Warhus, US 3,064,664, issued November 20, 1962.
4 Tuller et al., US 5,662,744, issued September 2, 1997.
5 Gurubatham, US 4,266,565, issued May 12, 1981.
6 Haas et al., US 2007/0056613 Al, published March 15, 2007.
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Application 14/031,078
a recirculation circuit, with a recirculation inlet, fluidly
coupling the treating chamber to the interior of the at least one
sprayer, such that liquid emitted into the treating chamber from
the at least one sprayer may be returned to the recirculation
circuit through the recirculation inlet and directed back to the
sprayer for recirculation; and
wherein the through passage facilitates a return of liquid
to the recirculation inlet for recirculation thereof.
Br. 24 (claims appendix) (emphasis added).
OPINION
Turning first to the rejection of claims 1-5, 9-16, and 18-21 as
obvious over Warhus in view of Tuller, we note that Appellant does not
argue any claim separately from the others. Br. 8. We select claim 1 as
representative to decide the issues on appeal.
The Examiner finds Warhus teaches an automatic dishwasher with a
tub, sprayer, and recirculation circuit. Non-Final 3. The sprayer of Warhus
(upper water distributor 23) has a body with the required upper surface,
spaced lower surface, and interior fluidly coupled to at least one opening
(slots 24--28) through which wash liquid is sprayed. Non-Final 3; Warhus
col. 6, 11. 25-55, Figs. 8-9. The Examiner acknowledges that Warhus does
not teach through passages extending from the upper surface through the
interior to the lower surface of the body. Non-Final 3. However, the
Examiner concludes that it would have been obvious to include such
passages in Warhus' sprayer based on the teachings of Tuller. Non-Final 4.
Appellant contends that the Examiner has misconstrued the teachings
of Tuller, has failed to provide a logical rationale for combining the
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Application 14/031,078
teachings of the references, and, at best, the combination would have taught
a structure different from that claimed. Br. 12-18.
Considering the Examiner's findings and conclusions in light of
Appellant's arguments and the law, we determine a preponderance of the
evidence supports the Examiner's conclusion of obviousness.
Warhus' upper water distributor 23 is "a relatively flat, hollow disk-
like structure" with ports 24--28 that produce water streams extending in a
generally outward and upward direction. Warhus col. 4, 11. 60-70; Figs. 8-
9.
Warhus' Figure 9, reproduced below, depicts an embodiment of the
sprayer.
!;'i'V/,N'HJ!!..
JNHll 0. WAHHUS
Warhus' Figure 9 is an upper sectional elevation of the upper distributor 23
and conduit 50
There is no dispute that Warhus' sprayer (upper distributor 23) has a
body with an upper surface and a spaced lower surface that define an interior
that is fluidly coupled as required by claim 1. Br. 12-18.
There is further no dispute that Tuller also teaches a sprayer ( wash
arm 34) in a dishwasher. Br. 12-18. Tuller's sprayer (wash arm 34)
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Application 14/031,078
disperses water through a channel 3 6 defined by sidewalls 3 8 and top wall
40. Tuller col. 2, 11. 54--59. Wash arm 34 also has a wash arm body 42 that
provides the arm with structural rigidity. Id. Figure 3, reproduced below,
shows wash arm 34.
Tuller's Figure 3 is a perspective view of wash arm 34
Tuller's wash arm body 42 includes a bottom wall 46, which is shown
below in Figure 8.
Tuller's Figure 8 is a cross-sectional view through wash arm 34
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Application 14/031,078
As can be seen in Tuller's Figure 3 reproduced above, Tuller's bottom
wall 46 includes drainage holes 84 for draining water and food particles that
may collect on wall 46. Tuller col. 3, 11. 49-55. The drainage holes are open
holes traversing through the wall 46 and are separate from the water channel
36 that conveys the spray water. Tuller Figs. 3, 8.
To be unpatentable under§ 103, the differences between the claimed
invention and the prior art must be such that the subject matter as a whole
would have been obvious at the time the invention was made to a person
having ordinary skill in the pertinent art. 35 U.S.C. § 103(a)(2000); Graham
v. John Deere Co., 383 U.S. 1, 13-14 (1966). A question we must ask is
whether making the combination is more than the predictable use of prior art
elements according to their established functions. KSR Int'! Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007). If a person of ordinary skill can implement a
predictable variation, § 103 likely bars its patentability. Id.
We agree with the Examiner that Tuller suggests to the ordinary
artisan that drainage holes separated from the passages conveying sprayer
water have the predictable result of preventing water and food particles from
collecting on the upper surface of the sprayer. Warhus' sprayer has upper
and lower surfaces separated by a hollow interior and when incorporating
drainage holes for allowing water and food particles to drain through
Warhus' sprayer, one would have passed the holes through the sprayer so
that they would not combine the drainage fluid with the sprayer fluid as this
is what is taught by Tuller.
Appellant's argument that the Examiner fails to identify a reason why
the ordinary artisan would add the drainage holes of Tuller to the water
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Appeal 2017-009110
Application 14/031,078
sprayer of Warhus is not persuasive because it is based on a misreading of
Tuller. Appellant equates the bottom wall 46 of Tuller with the interior
surface of Warhus' bottom wall. Br. 16 ( stating "[ t ]he bottom wall in
Warhus '664 is only accessible via the interior of the sprayer."). But
Tuller' s bottom wall 46 is not analogous to any interior surface of Warhus.
Tuller' s "bottom wall 46" has both a top surface and a bottom surface and
the through hole traverses the entire wall so water and food particles can
drain from the top surface through the sprayer to the open space under the
sprayer. See Tuller Figs. 3, 4, 9, and 10. The hole must traverse the entire
sprayer to perform its function of draining water and food particles to the
open space below the sprayer. Although Tuller's bottom wall 46 is solid, it
is more analogous to Warhus' hollow sprayer than to an interior wall within
Warhus' sprayer in terms of allowing drainage. Thus, it follows that when
incorporating the drainage hole into the sprayer of Warhus, one would have
extended the drainage hole through both walls and the hollow portion of
Warhus' sprayer so the drainage hole would perform its intended function of
draining water and food particles to the space below the sprayer.
We respectfully disagree with our colleague's dissent because
Appellant failed to identify the error the dissent relies on. Appellant did not
argue that trapping of particles would likely not occur on the sprayer of
Warhus. Instead, Appellant grounds the argument on differences in wall
structures between the references and, as we explained above, the evidence
does not support the argument Appellant made. In order to overcome the
Examiner's rejection, Appellants must identify what the Examiner did
wrong, i.e., identify a reversible error in the examiner's rejection. In re
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Application 14/031,078
Jung, 637 F.3d 1356, 1365---66 (Fed. Cir. 2011); Ex Parte Frye, 94 USPQ2d
1072 (BP AI 2010). Appellant did not do so here. Moreover, it is reasonable
to believe that water and food particle accumulation would be a problem
needing a solution in "relatively flat, hollow disk-type" sprayers such as
those suggested by Warhus. Warhus col. 4, 11. 60---63.
After considering the evidence supporting Appellant's arguments
along with the evidence supporting the Examiner's conclusion of
obviousness, we determine Appellant has not identified a reversible error in
the Examiner's rejection.
Appellant raises no separate issues directed to the rejection of claims
6-8 or the rejection of claims 17 and 22. Thus, we sustain all the rejections.
CONCLUSION
In summary:
1-5, 9-16, § 103(a) Warhus, Tuller
18-21
6-8 § 103(a) Warhus, Tuller,
Gurubatham
17,22 § 103(a) Warhus, Tuller,
Haas
Summar
DECISION
The Examiner's decision is affirmed.
1-5, 9-16,
18-21
6-8
17,22
1-22
TIME PERIOD FOR RESPONSE
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Application 14/031,078
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
9
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK W. BALDWIN, BRIAN L. GREENHAW,
PRA VEEN POOJARY, BARRY E. TULLER, CHAD T. VANDERROEST,
AMERESH B. VISWANATHAN, and RODNEY M. WELCH
Appeal 2017-009110
Application 14/031,078
Technology Center 1700
Before CATHERINE Q. TIMM, MARK NAGUMO, and
SHELDON M. McGEE, Administrative Patent Judges.
Opinion dissenting by NAGUMO, Administrative Patent Judge.
I respectfully dissent.
In my view, the problem solved by Tuller, as found by the Examiner
and approved by the Majority, namely, providing "drainage holes separated
from the passages conveying sprayer water" that "have the predictable result
of preventing water and food particles from collecting on the surface of the
sprayer having the drainage holes," (Op. 6) has not been shown to be a likely
problem for the sprayer of Warhus.
Warhus, like Appellants, provides a large disc-like sprayer that
projects jets of wash liquid upwards from the upper face of the sprayer. In
contrast, as shown in Figure 3, reproduced supra, Tuller provides a wash
Appeal 2017-009110
Application 14/031,078
arm 34 having an elongated channel 36 that projects water downwardly into
the washing chamber 16 (Tuller, col. 3, 11. 25-27) from discharge
openings 76, 77, and 80 (id. at 11. 44--47). Notably, in the words of Tuller,
"[t]he channel 36 is provided with structural rigidity by a wash arm body or
member 42 having opposite sides 44 and a bottom wall 46." (Id. at col. 2,
11. 56-59.) Drainage hole 84 is located in bottom wall 46 between
sidewall 38 of channel 36 and side wall 44 of wash arm body 42. Thus,
without drainage hole 84, particles can get trapped in that region of the wash
arm body. No such trapping seems likely to occur on the upper surface of
Warhus's disc-like sprayer, just as no particle would seem likely to be
trapped on top wall 40 of channel 3 6 of Tuller' s wash arm. Indeed, Tuller
did not see fit to provide a drainage channel through channel 3 6 similar to
drainage hole 84, which does not traverse a body having an interior that is
fluidly connected to anything.
As Appellants asked, "Why [ would one integrate the drainage holes
taught by Tuller into the dishwasher by W arhus so as to allow for the
drainage of water and food particles that collect on the bottom wall of the
body]?" Br 16. Appellants continued, "Warhus '664 does not have an open
bottom wall to collect food particles on. The bottom wall in Warhus '664 is
only accessible via the interior of the sprayer." Id. Appellants conclude that
"the Examiner's reasoning for making the combination seems to have no
rational underpinning." Id. This is not, in my view, a "misreading" of
Tuller. Rather, it is pointing out that the structure of the wash arm body
described by Tuller and the disk-like sprayer described by Warhus do not
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Application 14/031,078
have corresponding parts having similar structures that would have
suggested similar solutions to similar problems.
Put yet another way, the differences between Tuller's wash arm and
W arhus' s sprayer have not been shown to be such that the artisan would
have had a reason to modify Warhus's sprayer with a through-channel that is
fluidly separate from the interior of the sprayer.
Thus, the problem confronted by each reference appears, in this
aspect, to be different, and the requisite motivation to combine the teachings
of these references is, in my view, lacking. Appellants, in my view, raised
this argument adequately, with sufficient clarity, to establish harmful error in
the appealed rejection.
On the basis of these factual findings, I would reverse, and thus,
I dissent, with respect.
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