JOHN CANTRELL et al.Download PDFPatent Trials and Appeals BoardMar 16, 20212020002326 (P.T.A.B. Mar. 16, 2021) Copy Citation 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. 13/021,682 02/04/2011 JOHN W. CANTRELL 157311-6.5 5071 97242 7590 03/16/2021 Kutak Rock LLP 2300 Main Street, Suite 800 Kansas City, MO 64108 EXAMINER MARKOFF, ALEXANDER ART UNIT PAPER NUMBER 1711 NOTIFICATION DATE DELIVERY MODE 03/16/2021 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@kutakrock.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN W. CANTRELL and MARK CHURCHILL Appeal 2020-002326 Application 13/021,682 Technology Center 1700 Before LINDA M. GAUDETTE, DONNA M. PRAISS, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s final decision to reject claims 1–15, 17, and 20–28.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellant refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Unified Brands, Inc. Appeal Br. 2. 2 Claims 16, 18, 19, and 29–33 are withdrawn from consideration for being drawn to a non-elected subject matter. Non-Final Office Action dated December 30, 2013, 2. Appeal 2020-002326 Application 13/021,682 2 CLAIMED SUBJECT MATTER The claims are directed to a method for washing wares (e.g., pots, pans, utensils, flatware/silverware, etc.) in a continuous motion style washing machine. Spec. ¶¶ 3, 6. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of washing wares in a continuous motion style washing machine, said method comprising: activating a wash pump by a control system to circulate a current volume of fluid within a wash tank of the continuous motion style washing machine; starting by said control system a first wash period, wherein the first wash period is a period of time during which a volume of fluid can be used for a plurality of individual wash cycles prior to the current volume of fluid being drained from the wash tank; starting by said control system a wash cycle and a wash cycle timer during said first wash period; and performing an ending step, an initiating step, and a beginning step; wherein said ending step comprises ending said first wash cycle and initiating an unload/load alert via the control system when said wash cycle timer reaches a first wash cycle timer condition value; wherein said initiating step comprises initiating a first unload/load period via the control system; and wherein said beginning step comprises beginning a second wash cycle during said first wash period and resetting and restarting said wash cycle timer after the first unload/load period is completed. Appeal Br. 10 (Claims App.). Appeal 2020-002326 Application 13/021,682 3 REJECTIONS The Examiner maintains the following rejections on appeal (Ans. 3– 12; Final Act. 2–9): Rejection 1: Claims 1–15, 17, and 20–28 are rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement; and Rejection 2: Claims 1–15, 17, and 20–28 are rejected under pre-AIA 35 U.S.C. § 102(b) as anticipated by Bigott.3 DISCUSSION After review of the cited evidence in light of the Appellant’s and the Examiner’s opposing positions, we determine that the Appellant has not identified reversible error in the Examiner’s rejections except where otherwise explained below. Thus, where we affirm the Examiner’s rejections, we do so for the reasons expressed in the Final Office Action, the Answer, and below. Rejection 1 – Written Description “[T]he test for [compliance with the written description requirement] is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). 3 US 2006/0254619 A1, published Nov. 16, 2006. Appeal 2020-002326 Application 13/021,682 4 Claim 1 The Examiner finds that there is not sufficient support in the Specification, as originally filed, for the recitation “wherein the first wash period is a period of time during which a volume of fluid can be used for a plurality of individual wash cycles prior to the current volume of fluid being drained from the washing tank,” added to claim 1. Final Act. 2–4. Appellant argues that “one ordinarily skilled in the art would plainly understand the added limitation as being inherent in the original disclosure” based on paragraphs 17 and 36 of Appellant’s Specification. Appeal Br. 8. Although the Specification does not contain the limitations of the claims in haec verba, we find that paragraphs 17, 24, and 36 of Appellants’ Specification reasonably conveys to those skilled in the art that the inventor had possession of claim 1’s recitation “wherein the first wash period is a period of time during which a volume of fluid can be used for a plurality of individual wash cycles prior to the current volume of fluid being drained from the washing tank,” as of the application filing date. Ariad Pharms., 598 F.3d at 1352 (there is no requirement “that the specification recite the claimed invention in haec verba”). Claims 22 and 23 The Examiner finds that there is not sufficient support in the Specification, as originally filed, for the recitations “ending a current wash period, wherein ending the current wash period comprises deactivating the wash pump and locking out by said control system operation of the wash pump, the current wash period being one of the first wash period or any subsequent wash period,” and “wherein selecting said option [to delay locking out operation of said wash pump for at least one finite time period] Appeal 2020-002326 Application 13/021,682 5 extends the current wash period, and wherein said option is provided during the current wash period,” added to claims 22 and 23. Final Act. 5–7. Appellant argues that support for the amendments to claims 22 and 23 is found at least in paragraphs 9 and 18 of Appellant’s Specification. Appeal Br. 9. We find that paragraphs 9 and 18 of Appellant’s Specification reasonably convey to those skilled in the art that the inventor had possession of the recitation “deactivating the wash pump and locking out by said control system operation of the wash pump;” however, we do not find that paragraphs 9 and 18 of Appellant’s Specification would reasonably convey to those skilled in the art that the inventor had possession of the recitation “wherein said option [to delay locking out operation of said wash pump for at least one finite time period] is provided during the current wash period.” In view of the foregoing, we do not sustain the Examiner’s rejection of claim 1 under 35 U.S.C. § 112, first paragraph. Nor do we sustain the Examiner’s rejection of claims 2–15, 17, 20, 21, and 24–28, which depend from claim 1. We do sustain the Examiner’s rejection of claims 22 and 23 under 35 U.S.C. § 112, first paragraph. Rejection 2 - Anticipation Because Appellant’s arguments regarding the anticipation rejection focus on claims 22 and 23 (Appeal Br. 6–7), we do the same in our discussion below. Claim 22 depends from claim 21 and further requires “providing by said control system an option to delay locking out operation of said wash pump for at least one finite time period, wherein selecting said option extends the current wash period, and wherein said option is provided during Appeal 2020-002326 Application 13/021,682 6 the current wash period.” Claim 23 depends directly from claim 1 and includes the same requirement. Appellant argues that Bigott teaches an option to select a higher preset value, and because the preset value is a value that would need to be set before the wash period begins, Bigott fails to teach an option that extends the wash period during the wash period. Reply Br. 3. Bigott teaches a washing assembly that includes a controller that tracks the number of wash cycles, amount of run time, and/or time that has elapsed since the water was last changed. Bigott ¶ 245. Bigott teaches that the counter is compared to determine whether the counter is equal to a preset value. Id. The preset value can be a value entered by the operator, and/or preprogrammed into the control system. Id. Bigott further teaches that “[t]he operator can continue performing wash cycles if the counter does not equal the preset value.” Id. ¶ 246. Based on those teachings in Bigott, we are not persuaded that the Examiner reversibly erred in finding that Bigott teaches or at least suggests “providing by said control system an option to delay locking out operation of said wash pump for at least one finite period of time, wherein selecting said option extends the current wash period, and wherein said option is provided during the current wash period,” as recited in claims 22 and 23. Accordingly, we sustain the rejection of claims 1–15, 17, and 20–28 under 102(b) based on Bigott. CONCLUSION The Examiner’s decision to reject claims 1–15, 17, and 20–28 is affirmed. Appeal 2020-002326 Application 13/021,682 7 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–15, 17, 20–28 112 Written Description 22, 23 1–15, 17, 20, 21, 24– 28 1–15, 17, 20–28 102(b) Bigott 1–15, 17, 20–28 Overall Outcome 1–15, 17, 20–28 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation