Ex Parte Berends et alDownload PDFPatent Trial and Appeal BoardMar 30, 201612740135 (P.T.A.B. Mar. 30, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121740,135 08/06/2010 95683 7590 04/01/2016 Ley dig, Voit & Mayer, Ltd, (Frankfurt office) Two Prudential Plaza, Suite 4900 180 North Stetson Avenue Chicago, IL 60601-6731 FIRST NAMED INVENTOR Erik Berends 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. 810172 6370 EXAMINER AKKI, MUNEAR T ART UNIT PAPER NUMBER 2682 NOTIFICATION DATE DELIVERY MODE 04/01/2016 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): chgpatent@leydig.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ERIK BERENDS, GUENTHER ENNEN, and SEYFETTIN KARA 1 Appeal2014-005813 Application 12/740,13 5 Technology Center 2600 Before ROBERT E. NAPPI, JOHN P. PINKERTON, and JAMES W. DEJMEK, Administrative Patent Judges. DEJMEK, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 10, 12, 13, 16, and 17. Claims 14 and 15 have been objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form. Final Act. 6. Claims 1-9 and 11 have been canceled. App. Br. 1. We have jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b ). 1 Appellants identify Miele & Cie. KG as the real party in interest. App. Br. 1. Appeal2014-005813 Application 12/740,13 5 We atlirm and designate our atlirmance as containing a NEW GROUNDS OF REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b). STATEMENT OF THE CASE Introduction Appellants' invention is directed to "a dishwasher including a user control and display unit ... and further having a turbidity sensor capable of measuring the soil level of a wash liquid." Spec. i-f 1. In a disclosed embodiment, the turbidity sensor is displayed, at least temporarily, on the display. Spec. i-f 5. According to the Specification, based on the displayed turbidity a suitable wash cycle may be selected by the user, or may be automatically selected. Spec. i-fi-1 5-8. Claim 13 is representative of the subject matter on appeal and is reproduced below with the disputed limitations emphasized in italics: 13. A dishwasher comprising: an input element configured to select a first wash cycle from a plurality of wash cycles and configured to select a soil level; a turbidity sensor configured to measure a soil level of a wash liquid; a controller configured to control a cycle parameter and configured to perform a comparison as to whether an actual soil level substantially corresponds to the selected soil level; and a display device configured to at least temporarily display the soil level measured by the turbidity sensor. 2 Appeal2014-005813 Application 12/740,13 5 The Examiner's Rejection Claims 10, 12, 13, 16, and 17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Baek (US 5,297,307; Mar. 29, 1994) and Nag (WO 2006/087735 Al; Aug. 24, 2006). Final Act. 3---6. Issues on Appeal 1. Did the Examiner err in finding the combination of Baek and Nag teaches or suggests "a controller ... configured to perform a comparison as to whether an actual soil level substantially corresponds to the selected soil level," as recited in claim 13? 2. Did the Examiner err in finding the combination of Baek and Nag teaches or suggests "a display device configured to at least temporarily display the soil level measured by the turbidity sensor," as recited in claim 13? 3. Did the Examiner err in relying on the proposed combination of Baek and Nag in rejecting, inter alia, claim 13? ANALYSIS2 Appellants contend "Baek and Nag, both individually and in combination, fail to disclose or suggest a controller configured to perform a comparison as to whether an actual soil level substantially corresponds to a selected soil level." App. Br. 3; Reply Br. 2. In particular, Appellants 2 Throughout this Decision, we refer to the Appeal Brief filed October 29, 2013 ("App. Br."); Reply Brief filed April 9, 2014 ("Reply Br."); the Examiner's Answer mailed on February 14, 2014 ("Ans."); and the Final Office Action mailed on March 4, 2013, from which this Appeal is taken ("Final Act."). 3 Appeal2014-005813 Application 12/740,13 5 concede that although Baek does teach the use of a turbidity sensor, Baek does not teach the selection of a soil level and, therefore, cannot teach comparing a measured soil level to a selected soil level. App. Br. 4; Reply Br. 2. Additionally, Appellants argue that although Nag teaches a display unit displaying a list of selectable soil levels, Nag fails to teach "compar[ing] the selected soil level with an actual soil level measured by a turbidity sensor." App. Br. 4. Non-obviousness cannot be established by attacking references individually where, as here, the ground of unpatentability is based upon the teachings of a combination of references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Rather, the test for obviousness is whether the combination of references, taken as a whole, would have suggested the patentee's invention to a person having ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). We are not persuaded of Examiner error because Appellants' arguments are not responsive to the Examiner's rejection and attack the references separately, whereas the Examiner's rejection relies on the combined teachings of Baek and Nag. Final Act. 5---6. The Examiner finds, and we agree, Baek teaches a washing machine comprising a turbidity sensor to measure a soil level of the wash liquid. Final Act. 5 (citing Baek, col. 7, 11. 42--45). The turbidity sensor in Baek provides an output of the sensed result to a controller, which is configured to control a cycle parameter (e.g., length of wash cycle or number of rinses) based on the sensed condition. Id. (citing Baek, col. 7, 11. 33-56). Further, the Examiner finds, and we agree, Nag teaches, inter alia, an input element to select a soil level. Final Act. 6 (citing Nag 10, Table 1). Based, at least in part, on the selected 4 Appeal2014-005813 Application 12/740,13 5 soil level, the appliance (i.e., washing machine) is able to perform compatible operating program cycles. Nag 3. The Examiner concludes, therefore, the combination of Baek and Nag teaches or reasonably suggests a control unit (as in Baek) configured to control a cycle parameter (e.g., length of the wash cycle) and configured to perform a comparison as to whether an actual soil level (i.e., as measured by the turbidity sensor in Baek) corresponds to the selected soil level (as taught in Nag). We agree with the Examiner's conclusion. The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results. KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). Appellants contend that a person of ordinary skill in the art would not have been motivated to combine Baek and Nag because "there is no suggestion in either reference that there would be any advantage in using both of these techniques [(Baek's use of a turbidity sensor and Nag's teaching of selecting a soil level)] to determine a soil level." App. Br. 4. Appellants further argue the Examiner has not provided "any reason" why it would have been obvious to include a controller configured to perform a comparison of an actual soil level and a selected soil level. App. Br. 4. We disagree that the Examiner has failed to provide "any reason" to combine Baek and Nag. See Final Act. 6 ("for the purpose of displaying soilage level and enabling user's selection [of the] correct material of the cloth"). Further, we find a person of ordinary skill in the art would have adapted the controller of Baek to include a comparison of the measured turbidity to a selected soil level (as taught in Nag) to adjust the wash cycle, as appropriate. See Ans. 5 ("if the user selected Lightly soiled and the controller sensed the turbidity of the washing water is high, the controller 5 Appeal2014-005813 Application 12/740,13 5 would perform longer washing times and rinse more"); see also Nag Abstract (providing for optimized washing program cycles); Baek, Abstract (washing according to a user's preference). Additionally, Appellants argue "Baek and Nag, both individually and in combination, also fail to disclose or suggest 'a display device configured to at least temporarily display the soil level measured by the turbidity sensor."' App. Br. 4. Further, Appellants contend the Examiner acknowledges Nag does not teach such a display device (citing Adv. Act. 2) and has not provided any reasoning, with rational underpinning, as to why a person of ordinary skill in the art would have found it obvious to modify the display device of Nag to display a measured soil level (as measured by the turbidity sensor of Baek). App. Br. 5; Reply Br. 3. The Examiner finds, and we agree, Nag teaches a display device. Final Act. 6 (citing Nag 6, 11. 22-27). Further, we note Nag teaches the display device may serve as a display panel "for displaying different parameters as well as [the] status of the program." Nag 12. Thus, we find the display panel in Nag is configured to display various parameters, including the status of the program. Cf Claim 13 ("a display device configured to at least temporarily display the soil level measured by the turbidity sensor") (emphasis added). An obviousness analysis "need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). "A person of ordinary skill is also a person of ordinary creativity, not an automaton." Id. at 421. We further find a person of ordinary skill in the art would appreciate that the 6 Appeal2014-005813 Application 12/740,13 5 actual soil level, as sensed by the turbidity sensor of Baek, which is sent to the control unit (see Baek, col. 7, 11. 42--45), is available to be displayed on the display device of Nag, as part of displaying the status of the program (including changes to the program, such as a longer wash cycle duration based on the measured soil level). For the reasons discussed supra, we sustain the rejection of claim 13. Further, we sustain the rejection of dependent claims 10, 12, 16, and 17, which were not argued separately. App. Br. 5. However, we designate our affirmance as a NEW GROUNDS OF REJECTION, to afford Appellants an opportunity to address the rejection as articulated in this Decision. DECISION We affirm the Examiner's decision to reject claims 10, 12, 13, 16, and 17 and we designate the affirmance as containing a NEW GROUNDS OF REJECTION. 37 C.F.R. § 41.50(b) provides that Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of proceedings (37 C.F.R. § 1.197 (b)) as to the rejected claims: ( 1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. . . . 7 Appeal2014-005813 Application 12/740,13 5 (2) Request rehearing. Request that the proceeding be reheard under§ 41.52 by the Board upon the same Record .... 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). See 37 C.F.R. § 41.50(f). AFFIRMED; 37 C.F.R. § 41.50(b) 8 Copy with citationCopy as parenthetical citation