Ex Parte Fountain et al

Patent Trial and Appeal Board

Sep 11, 2017

12910203 (P.T.A.B. Sep. 11, 2017)

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.
12/910,203 10/22/2010 JORDAN R. FOUNTAIN SUB-US20080648-US-CIP 7532
173 7590 09/25/2017
WHIRLPOOL CORPORATION - MD 3601
2000 NORTH M63
BENTON HARBOR, MI 49022
EXAMINER
RIGGLEMAN, JASON PAUL
ART UNIT PAPER NUMBER
1711
NOTIFICATION DATE DELIVERY MODE
09/25/2017 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):
whirlpool_patents_co@whirlpool.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 parte1 MARIKO KURODA, MASAYA FUKE, and
MASAKI KATOU
Appeal 2016-003555
Application 12/910,203
Technology Center 1700
Before CHUNG K. PAK, JENNIFER R. GUPTA, and
JANE E. INGLESE, Administrative Patent Judges.
PAK, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134(a) from the
Examiner’s decision2 rejecting claims 2, 7-9, 11—16, 18, 19, and 24-34.3
We have jurisdiction under 35 U.S.C. § 6(b).
1 Appellants identify the real party in interest as “Whirlpool Corporation,
having offices in Benton Harbor, Michigan[.]” Appeal Brief filed July 20,
2015 (“Appeal Br.”)2.
2 Final Action entered March 13, 2015 (“Final Act.”) 2-8; and the
Examiner’s Answer entered December 21, 2015 (“Ans.”) 2-9.
3 The Examiner withdrew the §112, second paragraph, rejection of claim 10
(Ans. 2). Thus, claim 10 is no longer subject of this appeal. Claims 3-5,
Appeal 2016-003555
Application 12/910,203
We AFFIRM-IN-PART.
STATEMENT OF THE CASE
The subject matter of the claims on appeal relates to “a dishwasher
with a tub defining a washing chamber for receiving dishes for cleaning and
a [particular] recirculation pump.” Spec.* * * 413. The particular recirculation
pump is said to include “a housing defining a chamber and having an inlet
fluidly coupled to the tub and an outlet fluidly coupled to the tube, an
impeller rotatably mounted within the chamber and expelling liquid from the
chamber through the outlet, and a filter fluidly disposed between the inlet
and the outlet and operably coupled to the impeller for co-rotation.” Id.
Figures 1 and 2, which are illustrative of the claimed dishwasher, are
reproduced below:
21-23, 35 and 36 are also not subject of this appeal even though they are
pending in the above-identified application. Final Act. 8. Claims 35 and 36
were indicated to be allowable by the Examiner. Id. Claims 3-5 and 21-23
were objected to as being dependent upon a rejected base claim, but were
indicated to be “allowable if rewritten in independent form including all of
the limitations of the base claim and any intervening claims.” Id.
4 Appellants’ Specification filed October 22, 2010 (“Spec.”).
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Application 12/910,203
Figures 1 and 2 show perspective and fragmentary perspective views of
dishwasher 10 comprising tub 12 defining washing chamber 14, dish
racks 16 located in tub 12, roller assemblies 18 comprising rollers 20 for
allowing dish racks to extend from and retract into tub 12, door 12 having
control panel 26 hinged to the lower front edge of tub 12, and
compartment 32 housing, for example, recirculation pump assembly 34 and
drain pump 36, located below tub 12. Spec. Tflf 20-23. Tub 12 has side
wall 40 defining hole 48 for fluid entry during a wash cycle, sloped bottom
wall 42 for directing fluid to sump 50 having hole 52 for delivering fluid
into recirculation pump assembly 34 which, in turn, delivers the fluid to
“rotating spray arm 54 [having nozzles 56] that sprays [the fluid composed
of] water and/or wash chemistry onto the dish racks 16 (and hence any wares
positioned thereon) [in tub 12].” Spec. ^fl[ 24-26.
Figures 3 and 4, which illustrate perspective and cross-sectional views
of recirculating pump assembly 34, are reproduced below:
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Appeal 2016-003555
Application 12/910,203
Figures 3 and 4 show recirculating pump assembly 34 comprising wash
pump 60 secured to housing 62 that includes cylindrical filter casing 64
located between wash pump 60 and manifold 68. Spec. 127. Manifold 68
has inlet port 70 having filter screen 88 for receiving mixture 150 of fluid
and soil particles through hole 52 defined in sump 50 and has outlet port 72
for expelling unfiltered fluid and soil particles via drain pump 36. Spec.
1127 and 30. Cylindrical filter casing 64 defines a hollow chamber
comprising side wall 76 having inner surface 84 facing filter chamber 82
defining region 152 for receiving mixture 150 of fluid and soil particles
advanced from inlet port 70 of manifold 68 during the wash cycle. Spec.
1128-30.
Wash pump 60 includes impeller 104 rotatably coupled to motor 92
secured to cylindrical pump housing 94 via drive shaft 114. Spec. 127.
Impeller 104 has shell 106 that extend from back end 108 to front end 110,
with front end 110 defining inlet opening 120 for receiving filtered fluid 156
and back end 108 located in chamber 102 for receiving and delivering
filtered fluid 156 to outlet port 74 which “extends upwardly from the wash
pump 60 and is fluidly coupled to the rotating spray arm 54.” Spec. 27
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Application 12/910,203
and 32-37. “[T]he front end 110 of the impeller shell 106 is coupled to a
rotary filter 130” comprising “a cylindrical filter drum 132 [having filter
sheet 140] extending from an end 134 secured to the impeller shell 106 to an
end 136 rotatably coupled to a bearing 138 which is secured [to] the main
body 86 of the manifold 68.” Spec. 135. Filter sheet 140 divides filter
chamber 82 into two compartments, one being region 152 external to filter
sheet 140 for receiving mixture 150 of fluid and soil particles and the second
being hollow interior 142 for receiving filtered fluid 156 through filter sheet
140. Spec. 137. “The rotation of the impeller 104 draws wash fluid from
the filter chamber 82 through the filter sheet 140 and into the inlet opening
120 of the impel shell 106 [and then to spray arm 54 through outlet port
74].” Spec. 142.
Details of the appealed subject matter are recited in representative
claims 33 and 34,5 which are reproduced below from the Claims Appendix
of the Appeal Brief (with bracketed reference characters of Figures 1—4 and
disputed limitations italicized):
33. A dishwasher comprising:
a tub [12] defining a washing chamber [14] for receiving
dishes for cleaning; and
a recirculation pump [34] comprising:
a housing [62] defining a chamber [102] and
having an inlet [70] fluidly coupled to the tub [12] and an
outlet [74] fluidly coupled to the tub [12];
an impeller [104] rotatably mounted within the
chamber and expelling liquid from the chamber [102]
through the outlet [74];
5 Claims 33 and 34 are the broadest claims on appeal.
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Application 12/910,203
a motor [92] operably coupled with the impeller
[104] to rotate the impeller [104]; and
a rotating filter [130] fluidly disposed within the
chamber [102] between the inlet [70] and the outlet [74]
and operably coupled to the impeller [104] for co­
rotation; and
wherein the rotating filter [130] fluidly divides the
chamber into a first part [152] that contains filtered soil
particles and a second part [142] that excludes filtered soil
particles[J and liquid in the tub [12] is recirculated by
actuating the recirculation pump [34] such that the liquid is
drawn into the chamber [102] through the inlet [70], passes
through the rotating filter [130], and is expelled by the rotating
impeller [104] through the outlet [74] to the tub [12].
34. A dishwasher comprising:
a tub [12] defining a washing chamber [14] for receiving
dishes for cleaning;
a sump [50] having a housing fluidly coupled to the tub
[12] and collecting liquid supplied to the tub [12];
a recirculation pump [34] comprising an impeller [104]
fluidly coupled to the sump [50] and an outlet [74] fluidly
coupled to the tub [12] and a motor [92] operably coupled with
the impeller [104] to rotate the impeller [104]; and
a rotating filter [130] fluidly separating the sump [50]
and the outlet [74] such that the fluid on a sump side of the
filter defines a first part [152] that contains filtered soil
particles and an outlet side of the filter [130] defines a second
part [142] that excludes filtered soil particles and where the
rotating filter [130] is operably coupled to the impeller [104]
for co-rotation;
wherein liquid in the tub [12] collects in the sump [50]
and is recirculated by actuating the recirculation pump [34]
such that the liquid in the sump [50] is drawn through the
rotating filter [130] and is expelled through the outlet [74] to
the tub [12].
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Appeal 2016-003555
Application 12/910,203
Appeal Br. 27-28, Claims Appendix.
The Examiner maintains the following grounds6 of rejection:
1. Claims 33 and 34 on the ground of nonstatutory [obviousness-type]
double patenting as unpatentable over claims 1,13, and 21 of US Patent
8,746,261 B2 issued to Welch on June 10, 2014;
2. Claims 33 and 34 on the ground of nonstatutory [obviousness-type]
double patenting as unpatentable over claims 1 and 27-30 of US Patent
8,667,974 B2 issued to Fountain et al. on March 11, 2014;
3. Claims 33 and 34 on the ground of nonstatutory [obviousness-type]
double patenting as unpatentable over claims 1, 12, 14, 15, 18, and 19 of US
Patent 8,627,832 B2 issued to Fountain et al. on January 14, 2014;
4. Claims 2, 9, 11, 13-15, 18, 26, 27, 29-31, 33, and 34 under
35 U.S.C. § 102(b) as anticipated by the disclosure of Rieger
(US 2008/0116135 Al published in the name of Rieger et al. on May 22,
2008); and
5. Claims 7, 8, 12, 16, 19, 24, 25, 28, and 32 under 35 U.S.C.
§ 103(a) as unpatentable over the disclosure of Rieger. Final Act. 2-8;
Ans. 2-9.
6 At page 2 of the Answer, the Examiner states that the § 112, second
paragraph, rejection of claim 10 set forth in the Final Action is withdrawn.
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Application 12/910,203
In response, Appellants “appeal the Final rejection of claims 2, 7—[9,]
[11—] 16, 18, 19, and 24-34.”7 Appeal Br. 2; Reply Brief filed February 19,
2016 (“ReplyBr.”) 1-3.
DISCUSSION
Upon consideration of the evidence relied upon by the Examiner and
Appellants in light of each of Appellants’ contentions, we summarily affirm
the Examiner’s decision rejecting claims 33 and 34 on the ground of
nonstatutory obviousness-type double patenting, but reverse the Examiner’s
decision rejecting claims 2, 7-9, 11-16, 18, 19, and 24-34 under 35 U.S.C.
§§ 102(b) and 103(a). We add the following primarily for emphasis and
completeness.
Non-statutory Double Patenting Rejections
Appellants do not identify reversible error in the Examiner’s
nonstatutory obviousness-type double patenting rejections of claims 33 and
34 as unpatentable over some of the claims of any one of the three patents in
question, namely US Patent 8,746,261 B2, US Patent 8,667,974 B2, and
US Patent 8,627,832 B2. Appeal Br. 9-23; Reply Br. 1-3.
Accordingly, we summarily affirm all three nonstatutory obviousness-
type double patenting rejections of claims 33 and 34. See Manual of Patent
Examining Procedure (MPEP) § 1205.02 (9th ed. March 2014) (“If a ground
of rejection stated by the examiner is not addressed in the appellant’s brief,
appellant has waived any challenge to that ground of rejection and the Board
7 Claim 10 is omitted because it is no longer subject of this appeal. As
indicated supra, the Examiner no longer maintains the §112, second
paragraph, rejection of claim 10. See also Ans. 2.
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Application 12/910,203
may summarily sustain it, unless the examiner subsequently withdrew the
rejection in the examiner’s answer.”).
§§ 102(b) and 103(a) Rejections
The §§ 102(b) and 103(a) rejections of record are based on the
Examiner’s finding that Rieger teaches a recirculation pump comprising a
rotatable impeller capable of performing the recited function and a rotating
filter operably coupled to the impeller for co-rotation, as recited in claims 33
and 34. Final Act. 6-8; Ans. 4-7. The Examiner identifies suction
connection 8 of Rieger’s filter system 1 as corresponding to the outlet of the
recited recirculating pump, rotatable friction disc 13 of Rieger’s filter
system 1 as corresponding to the impeller of the recited recirculating pump,
and surface area 14 (formed of micro filter) of centrifuge 15 of Rieger’s
filter system 1 as corresponding to the rotating filter of the recited
recirculation pump, which is said to be operably coupled to the impeller
(rotatable friction disc 13) for co-rotation. Compare Final Act. 6 and
Ans. 4-5, with Rieger || 26-34.
However, the Examiner’s finding is flawed. On this record, the
Examiner does not demonstrate that Rieger’s rotatable friction disc 13, for
example, corresponds to an impeller capable of drawing liquid and soil
particles from a tub defining a washing chamber of a dishwasher for the
filtering purpose and expelling the filtered liquid into the tub for the reusing
or recirculating purpose as required by claims 33 and 34. Compare
claims 33 and 34, with Final Act. 6-8; Ans. 4-8. Nowhere does Rieger
disclose that rotatable friction disc 13 causes its filter system 1 to function as
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Application 12/910,203
a recirculating pump as required by claims 33 and 34. See, e.g., Rieger
26-35. Instead, Rieger discloses that
[w]hen filter system 1 is operating[,] dirty rinsing liquor is fed
either through the openings of fine filter 5 or through those of
coarse filter 4 and into the interior of pump head 1.... Dirt
particles which are not admitted by fine filter 5 are fed to coarse
filter 4. The mesh width of coarse filter 4 is in turn selected so
that particles which pass through coarse filter 4 can be
processed by friction disc 13. Thus, if particles pass through
coarse filter 4 they fall by gravity through container 16,
whose mesh width is equal to that of fine filter 5, onto
friction disc 13. Friction disc 13 and the fixed stop ring 17
together act as comminutors.
Rieger 133 (emphasis added). Rieger further requires a circulation pump
separate from its filter system 1 to provide suction connection 8 to its filter
system 1 for the fluid circulation purpose. Rieger 129.
Thus, on this record, we concur with Appellants that the Examiner
does not carry the initial burden of establishing a prima facie case of
unpatentability regarding the subject matter recited in claims 2, 7-9, 11-16,
18, 19, and 24-34 within the meaning of 35 U.S.C. §§ 102(b) and 103(a).
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (“[T]he examiner bears
the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.”)
ORDER
Upon consideration of the record, and for the reasons given, it is
ORDERED that the decision of the Examiner to reject claims 33 and
34 on the ground of nonstatutory obviousness-type double patenting as
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Application 12/910,203
unpatentable over some of the claims of US Patent 8,746,261 B2, US Patent
8,667,974 B2, or US Patent 8,627,832 B2 is AFFIRMED;
FURTHER ORDERED that the decision of the Examiner to reject
claims 2, 9, 11, 13-15, 18, 26, 27, 29-31, 33, and 34 under 35 U.S.C.
§ 102(b) as anticipated by the disclosure of Rieger is REVERSED;
FURTHER ORDERED that the decision of the Examiner to reject
claims 7, 8, 12, 16, 19, 24, 25, 28, and 32 under 35 U.S.C. § 103(a) as
unpatentable over the disclosure of Rieger is REVERSED; and
FURTHER ORDERED that 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).
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
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