Ex Parte Berends et al

Patent Trial and Appeal Board

Mar 30, 2016

12740135 (P.T.A.B. Mar. 30, 2016)

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.
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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.
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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.").
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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
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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
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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
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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. . . .
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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)
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