Ex Parte IM et al

Patent Trials and Appeals Board

Jun 19, 2019

12938034 - (D) (P.T.A.B. Jun. 19, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/938,034 11/02/2010 Myong Hun IM
34610 7590 06/21/2019
KED & AS SOCIA TES, LLP
P.O. Box 8638
Reston, VA 20195
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.
K-ll58.04 2660
EXAMINER
LORENZI, MARC
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
06/21/2019 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):
ked-docket@ked-iplaw.com
mydocket@icloud.com
keddocket@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MYONG HUN IM, SOO YOUNG OH, KYUNG CHUL WOO,
WOO YOUNG KIM, BYUNG KEOL CHOI, and MOON HEE HONG
Appeal2018-008925
Application 12/938,034
Technology Center 1700
Before JEFFREY T. SMITH, KAREN M. HASTINGS,
and MICHAEL G. McMANUS, Administrative Patent Judges.
McMANUS, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner rejected claims 1, 5, 7, and 8 of Application 12/938,034
under 35 U.S.C. § 103(a). Non-Final Act. (Oct. 31, 2017) 2-9. Appellants 1
seek reversal of these rejections pursuant to 35 U.S.C. § 134(a). We have
jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we REVERSE.
1 The real party in interest is identified as LG Electronics, Inc. Appeal Br. 1.
Appeal2018-008925
Application 12/938,034
BACKGROUND
The present application generally relates to "a laundry machine and a
control method thereof." Spec. ,r 2. The Specification teaches that various
motions of the drum of the laundry machine "may provide significant
improvements in washing ability, noise/vibration, energy consumption, and
customer satisfaction." Id. ,r 23. The Specification teaches that such
motions may include the rotations shown below in Figures 3(il) through
3(i3), reproduced below.
130
(H)
Figure 3(il) shows a first step of the motor rotating the drum at a first
number of revolutions per minute (RPM) in opposite directions oscillating at
an angle of less than 90° from the lowest point (0°). Id. ,r,r 70, 74. Figure
3(i2) shows a second step of a motor rotating the drum at a second RPM that
is faster than the first RPM and is oscillating at an angle of more than 90°.
Id. ,r 70. Fig. 3(i3) shows "a step of the motor rotating the drum at the
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Application 12/938,034
second RPM in a single direction." Id. The movement of the drum may be
stopped when the laundry is at the highest point so that it drops from the top
portion of the drum. Id. ,r,r 80, 81.
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below with certain language bolded for emphasis:
1. A method of operating a laundry machine including a
rotatable drum, the method comprising:
performing a first rotating consisting of rotating the
drum at a first RPM, alternating in a clockwise direction and a
counter-clockwise direction at least two times, wherein the
rotating the drum at the first RPM, alternating in the clockwise
direction and the counterclockwise direction, causes laundry
received in the drum to move only within a lower half of the
drum;
after completion of the first rotating, performing a
second rotating consisting of rotating the drum at a second
RPM, alternating in the clockwise direction and the
counterclockwise direction, the second RPM being faster than
the first RPM, wherein the rotating the drum at the second
RPM, alternating in the clockwise direction and the
counterclockwise direction, causes the laundry received in the
drum to be dropped only from an upper portion of the drum,
wherein rotating the drum at the second RPM, alternating in the
clockwise direction and the counter-clockwise direction
includes:
rotating the drum in the one of the clockwise or
counterclockwise directions at the second RPM to generate a
centrifugal force greater than or equal to 1 G; and
applying a brake to the drum at a first
predetermined angle of rotation; and
rotating the drum in the other of the clockwise or
counterclockwise directions at the second RPM; and
after completion of the second rotating, performing a
third rotating consisting of rotating the drum at a third RPM in
only one of the clockwise direction or the counterclockwise
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Application 12/938,034
direction, the third RPM being the same as the second RPM,
wherein a rotational direction of the drum does not change
during the rotating the drum at the third RPM in only
the one of the clockwise direction or the counter-clockwise
direction, and wherein the rotating the drum at the third RPM in
only the one of the clockwise direction or the counterclockwise
direction includes:
rotating the drum at the third RPM to generate a
centrifugal force greater than or equal to 1 G;
applying a brake to the drum during one revolution
of the drum to make the laundry inside the drum drop; and
resuming consecutively rotating the drum at the
third RPM to generate a centrifugal force greater than or equal
to 1 G and applying the brake to the drum so that the laundry in
the drum is lifted to and dropped from a position between 90
and 180 degrees with respect to the rotational direction of the
drum in every revolution of the drum, wherein a rotational
direction of the drum does not change during the rotating the
drum at the third RPM in only the one of the clockwise
direction or the counter-clockwise direction, and wherein the
rotating the drum at the second RPM, alternating in the
clockwise direction and the counter-clockwise direction, is
performed by accelerating the drum from the first RPM to the
second RPM.
Appeal Br. 28-29 (Claims App.) ( emphasis added).
REJECTIONS
The Examiner maintains the following rejections:
1. Claims 1, 5, and 7 are rejected under 35 U.S.C. § I03(a)
(pre-AIA) 2 as obvious over Fumagalli (EP 1612316 Al,
2 Because the present application has an effective priority date which
precedes the March 16, 2013 effective date of the America Invents Act, we
apply the pre-AIA version of 35 U.S.C. § 103.
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Appeal2018-008925
Application 12/938,034
published Jan. 4, 2006) in view of Pasin et al. (WO
98/29594, published July 9, 1998) and Wong et al. (US
2007/0283508 Al, published Dec. 13, 2007). Final Act. 3-7.
2. Claim 8 is rejected under 35 U.S.C. § 103(a) (pre-AIA) as
obvious over Fumagalli in view of Pasin, Wong, and
McAllister et al. (US 2005/0160536 Al, published July 28,
2005). Id. at 8-9.
DISCUSSION
Rejection 1. The Examiner rejected claims 1, 5, and 7 as obvious
over Fumagalli in view of Pasin and Wong. Id. at 3-7. The Examiner found
that Wong teaches the "first rotating" of claim 1. Id. at 6-7. The Examiner
further found that Fumagalli teaches most aspects of the second and third
rotating. Id. at 4--5. The Examiner determined, however, that Fumagalli did
not teach the "rotational speed being greater than 1 G, the angular rotation,
[and] the dropping position of the laundry" as required in the second and
third rotating steps. Id. at 5.
The Examiner found that Fumagalli teaches that rotation speed is a
result-effective variable. Id. at 6. The Examiner further determined that
Pasin teaches to rotate at high speed so as to "plaster the laundry against the
drum wall and then to drop the laundry from 180 degrees." Id.
The Examiner determined that one of ordinary skill in the art would
have had reason "to modify Fumagalli's angular velocity and rotation to be
greater than or equal to 1 G and for the laundry to drop from 180 degrees
because Pasin teaches using such speed and dropping angle/height improves
washing performance." Non-Final Act. 6.
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Application 12/938,034
Appellant argues that the rejection is in error on several bases.
Appeal Br. 9-24.
First, Appellant argues that Fumagalli does not teach the "at least two
times" requirement of the first rotating of claim 1. Id. at 17.
Fumagalli teaches a washing process "in which the washing operation
is performed by imparting angular movements to the drum containing the
laundry in one direction and the opposite direction alternately about its axis
of rotation, interspersed with rest periods, repeated several times until
completion of a complete washing cycle." Fumagalli ,r 1. Figure 1 of
Fumagalli is reproduced below.
+ ~--·
--·
I
,S
Figure 1 of Fumagalli "illustrates the movement of the laundry-holding
drum." Id. ,r 10. Fumagalli teaches that "[p]oint S represents the lower
stationary position of the drum periphery when the machine is stopped."
Fumagalli ,r 12. Fumagalli further teaches that "[p]oints 1, 2, 3 and 4
represent positions at which consecutive angular movements of the drum in
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Application 12/938,034
a single direction begin and end during a first stage of movement of the
drum, which takes place for example clockwise, and in a second stage of
movement of the drum which instead takes place in the anticlockwise
direction." Id. ,r 13. The rotation of the drum is stopped at each of positons
1, 2, 3, and 4. Id. ,r 16. The rotation continues in the same direction until
one full (360 degree) revolution is completed, then the drum pauses and is
subsequently rotated one revolution in the opposite direction, pausing at the
same positions. Id. ,r,r 17-18.
Fumagalli teaches that the foregoing process has an advantage relative
to processes where the drum, rather than completing full rotations, "is
subjected to opposing angular oscillations." Id. ,r,r 3-5. Specifically,
Fumagalli teaches that such processes have the problem that "a layer of
laundry adheres to the drum walls and despite reversal of the direction of the
drum's rotation tends to continue to comprise the same items of clothing
without bringing about that mixing of the items which would distribute the
same washing action to all the items." Id. ,r 5.
Appellant argues that Fumagalli does not teach a drum movement
"alternating in a clockwise direction and a counter-clockwise direction at
least two times," while also causing the "laundry received in the drum to
move only within a lower half of the drum." Appeal Br. 17.
In response, the Examiner "agrees with Appellant that Fumagalli does
not teach the first rotating step, but had relied on modification by Wong."
Answer 4. Review of the Final Action supports the Examiner's position.
Accordingly, Appellant has not shown error with respect to the Examiner's
finding that Wong teaches the first rotation step.
Appellant also argues that Fumagalli does not teach the second
rotating of claim 1. Appeal Br. 18. Appellant asserts that "as acknowledged
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Application 12/938,034
by the Examiner, Fumagalli does not disclose or suggest a motion that
causes laundry to be dropped only from an upper portion of the drum." Id.
As the Examiner does not rely on such teaching of Fumagalli in the
rejection, this does not amount to a showing of error. Appellant additionally
argues that "the motion of Fumagalli includes additional stops at various
positions 1, 2, 3, 4, which are precluded by the 'consisting of' language of
the second rotating limitation of claim 1. " 3 Id.
In response, the Examiner determines that "selectively interpreting the
points of Fumagalli where direction change occurs such as eitherbetween
[sic] points 4 & 5 or between points 1 & S (e.g. where either a5 or al occur
is where the direction transitions) would teach the second rotating (see
Fumagalli' s Figure 1, refer to either a5 or a 1 ). " Answer 5. In their Reply
Brief, Appellants argue that the Examiner's "selective interpretation" of the
point of rotation where direction change occurs would not teach the
"alternating" element of the second rotation limitation because the definition
of alternating" is to "do or perform something repeatedly." Reply Br. 9
( emphasis in original). Appellants argue that the change in direction of
Fumagalli is followed by pauses such that there is no repeated alternating as
required by the claim. Appellants' argument regarding the meaning of
"alternating," however, is not supported by citation to record evidence or
3 In their Reply Brief, Appellants seek to bolster their arguments regarding
the second and third rotation steps by arguing that the proposed combination
would render Fumagalli unsuitable for its intended purpose. See Reply Br.
9, 10. Such argument will be considered as set forth in the Appeal Brief but
not as a new supplemental argument regarding disclosure of the second and
third rotating steps.
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Application 12/938,034
even a dictionary. Applying the broadest reasonable interpretation standard,
we do not adopt the narrow construction urged by Appellants.
In view of the foregoing, Appellants have not shown error in the
Examiner's finding that the cited references teach the second rotating.
In regard to the claimed "third rotating," Appellants argue that "the
motion of Fumagalli includes additional stops at various positions 1, 2, 3, 4,
which are precluded by the 'consisting of language" of the limitation. As
with regard to the second rotation step, the Examiner finds that "interpreting
part of an iteration of Fumagalli's consecutive start/stops in one of the
clockwise or counterclockwise direction prior to a reversal in direction
would fairly read on the third rotating step." Answer 5. As above, we do
not adopt the Appellants' reasoning (Reply Br. 10) that the claim term
"alternating" requires repeated iterations.
Appellant additionally argues that Fumagalli does not teach the third
rotating step of the claim because it does not disclose "wherein the rotating
the drum at the second RPM, alternating in the clockwise direction and the
counter-clockwise direction, is performed by accelerating the drum from the
first RPM to the second RPM." Appeal Br. 19. This argument is not
persuasive. The Examiner relies upon Pasin as teaching to rotate the drum at
a "plastering speed" which the Examiner determines to mean a speed in
excess of lG. Final Act. 6; Answer 6. Further, we find the Examiner's
position that the drum's acceleration from a stopped position to Pasin's
plastering speed necessarily requires rotation at the first RPM to be
persuasive. Answer 6.
Appellants additionally argue that a person of ordinary skill in the art
would not have combined the cited references as proposed by the Examiner.
Appeal Br. 22-23. Appellants argue that the proposed combination is based
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Application 12/938,034
on hindsight and would destroy Fumagalli for its intended purpose. Id. In
the Reply Brief, Appellants assert as follows:
one of ordinary skill in the art would not have eliminated the
multiple consecutive stops at multiple angles at multiple time
points as taught by Fumagalli, as eliminating such multiple
consecutive stops at multiple angles at multiple time points
would completely change the motion of Fumagalli and destroy
it for its intended purpose. Moreover, as noted in the Appeal
Brief, Fumagalli teaches away from plastering laundry against
drum walls.
Reply Br. 9.
We find such reasoning persuasive. Fumagalli teaches multiple
pauses during its full rotations so that the laundry will not adhere to the
drum walls. The Examiner proposes to modify Fumagalli to have a faster
rotational speed so as to "plaster" the laundry to the drum and to pause only
at 180 degrees (highest point). Final Act. 6 ,r,r 15-16. This is contrary to the
operating principle of Fumagalli. The Examiner has not adequately
explained why one of skill in the art would have both looked to Fumagalli
yet discarded its core teachings.
Accordingly, Appellants have shown error in this regard.
Appellants rely upon the same arguments with respect to dependent
claims 5 and 7. Appeal Br. 23-24. As we have found such arguments to be
persuasive, we determine that Appellants have shown error with regard to
the rejection of claims 5 and 7.
Rejection 2. The Examiner rejected claim 8 as obvious over
Fumagalli in view of Pasin, Wong, and McAllister. Id. at 8-9. On appeal,
Appellants rely upon the same arguments set forth with regard to claim 1.
Appeal Br. 24. As we have found such arguments to be persuasive, we
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determine that Appellants have shown error with regard to the rejection of
claim 8.
Appellants additionally seek to have claims 10 and 11 rejoined and
allowed. Appeal Br. 25. Although Appellants supply little information in
their brief, they appear to seek review of the Examiner's September 19, 2014
withdrawal of these claims from consideration as being drawn to a
nonelected invention. See Non-Final Action (Sept. 19, 2014) 2 ,r 3.
Determinations regarding restriction requirements are subject to review by
petition rather than by appeal. 37 CPR§§ 1.141-1.146; MPEP § 1002.02.
Accordingly, the Board lacks jurisdiction to review such matter.
Additionally, Appellants fail to articulate a sufficient basis for reversal in
their brief. See 37 CPR 4I.37(c)(l)(iv).
CONCLUSION
The rejection of claims 1, 5, and 7 as obvious over Fumagalli in view
of Pasin and Wong is reversed. The rejection of claim 8 as obvious over
Fumagalli in view of Pasin, Wong, and McAllister is reversed.
REVERSED
11