Ex Parte Bailey

Board of Patent Appeals and Interferences

Jan 30, 2009

11011410 (B.P.A.I. Jan. 30, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROBERT WILLIAM BAILEY
____________

Appeal 2008-6123
Application 11/011,410
Technology Center 3700
____________

Decided: January 30, 2009
____________

Before JAMESON LEE, RICHARD TORCZON, and SALLY C.
MEDLEY, Administrative Patent Judges.

Opinion for the Board filed by Administrative Patent Judge MEDLEY.

Opinion Dissenting filed by Administrative Patent Judge TORCZON.
MEDLEY, Administrative Patent Judge.

DECISION ON APPEAL
A. Statement of the Case
Delta Faucet Canada (“Delta”), the real party in interest, seeks review
under 35 U.S.C. § 134(a) of a Final Rejection of claims 1-3, 7-11, 13 and 14.
We have jurisdiction under 35 U.S.C. § 6(b). We reverse.

Appeal 2008-6123
Application 11/011,410

Delta discloses a washroom sensing system that includes an active
sensor, a passive sensor and a controller. The controller receives signals
from the active sensor and the passive sensor. The controller generates a
sensing decision that controls operation of the washroom device based on
the combined states of the active sensor signal and passive sensor signal.
(Spec. 2-5, 13).
Representative claim 1, reproduced from the Claim Appendix of the
Appeal Brief, reads as follows:
A sensing system for a washroom device, comprising:an
active sensor that detects a reflected beam in a zone; a passive
sensor that monitors a temperature of the zone; and a controller
that generates a sensing decision based on combined states of
an active object detection signal from the active sensor and a
passive object detection signal from the passive sensor, wherein
the sensing decision controls operation of the washroom device,
the sensing decision being utilized to actuate the washroom
device, and a sensing decision to actuate the washroom device
being made under certain conditions if one of the active object
detection signal and the passive object detection signal is
received, and in the absence of the other.

(App. Br. 5, Claims Appendix)

The Examiner relies on the following prior art in rejecting the claims on
appeal:
Allen 5,781,942 Jul. 21, 1998

The Examiner rejected claims 1-3, 7-11, 13 and 14 under 35 U.S.C.
§ 102(b) as anticipated by Allen.
2
Appeal 2008-6123
Application 11/011,410

B. Issue
Does Delta show that the Examiner erred in finding that Allen described
a controller that generates a sensing decision based on combined states of an
active object detection signal and a passive object detection signal?
C. Findings of Fact (“FF”)
Allen
1. Allen describes a first embodiment of a wash station W1 that include an
active infrared sensor [18] mounted to the top [16] of a sink cabinet
[10]. (Col. 3, ll. 40-41, 51; fig. 1).
2. Wash station W1 includes a passive infrared sensor [34] mounted on a
roll towel dispenser [32]. (Col. 3, ll. 44-50; Col. 5, ll. 7-14).
3. A second embodiment, wash station W2, includes an active sensor [180]
used for determining the presence of a user’s hands beneath the faucet
[20]. (Col. 6, ll. 56-59; fig. 9).
4. Wash stations W1 and W2 normally operate in a “water dispensing
mode” where the user will cause only water to be dispensed from the
faucet [20] when his or her hands are placed in the detection zone of
sensors [18], [180]. (Col. 9, ll. 50-54).
5. Wash stations W1 and W2 alternatively can operate in an automatic or
hand washing mode in response to the user’s hand being placed in front
of sensor [184] or upon pushing of button [22]. (Col., 9, ll. 5-12).
6. In the automatic or hand washing mode, water, soap and toweling are
dispensed automatically based on several timing intervals and in
response to the user’s hand being placed within the detection zone of
faucet sensor [18], [180]. (Col. 10, ll. 9-55).
3
Appeal 2008-6123
Application 11/011,410

7. In the automatic or hand washing mode, toweling is dispensed
automatically absent sensor input to the towel dispenser. (Col. 10, ll.
48-57).
8. In the “water dispensing mode,” compared to the automatic mode, if the
user desires toweling, a user must place their hand in front of the sensor
[34] and then remove it. (Col. 9, l. 66-col. 10, l. 1).
9. Allen describes a third embodiment, wash station W3, that includes a
controller with inputs from water sensor [18] and towel dispenser sensor
[34] and outputs to valves [52], [54] and towel dispenser [32]. (Col. 11,
ll. 49-58; figs. 13-14).
10. A user approaches wash station W3 and places their hands under faucet
[20] permitting sensor [18] to detect the presence of a user. (Col. 11, ll.
58-60).
11. The controller will cause the valve to the faucet [20] to be operated and
will continue to dispense water for so long as the sensor [18] detects a
user. (Col. 11, ll. 60-64).
12. Like the first and second embodiments of wash stations W1 and W2,
wash station W3 can operate in the automatic or hand washing mode,
where towels are dispensed automatically based on several timing
intervals following the dispensing of water and soap and without input
to the towel dispenser sensor [34]. (Col. 12, ll. 14-22).
13. Allen does not describe that wash stations W1, W2 or W3 generate a
decision to dispense water, soap and/or towels based on a combination
of signals from both the active sensor [18], [180] and passive sensor
[34].
4
Appeal 2008-6123
Application 11/011,410

C. Analysis
Representative claim 1 recites “a controller that generates a sensing
decision based on combined states of an active object detection signal from
the active sensor and a passive object detection signal from the passive
sensor. . . .” (App. Br. 5).
The Examiner finds that Allen describes an active sensor [18] and a
passive sensor [34] and a controller, shown in figure 14. (Final Rejection 2;
Ans. 2; FF1s 1-3, 6). The Examiner finds that a sensing decision is based on
a combination of states from the active and passive sensors because the
controller actuates the faucet when the active sensor is tripped and towel
dispenser motor is actuated when the passive sensor is tripped. (Final
Rejection 2; Ans. 2-3). The Examiner further finds when the faucet sensor is
actuated and the towel dispenser is not actuated based on its sensor, the
controller is making a decision based on the combined states of the sensors
to actuate the faucet and not actuate the towel dispenser. (Ans. 3-4).
Delta argues that Allen does not describe looking at the combined states
of the two sensing devices. (Reply Br. 2). Delta argues that Allen’s control
for the towel dispenser and the faucet operate in parallel and the signals are
never considered in “combination”. (Reply Br. 2).
Allen describes generating a decision (e.g., to turn on the faucet) based
on a signal from an active infrared sensor [18], [180] indicating that a hand
is detected. (FFs 1, 3-4, 7-8). Allen also describes generating a decision
(e.g., to operate the towel dispenser motor) based on a signal from a passive
infrared sensor [34] indicating that a hand is detected. (FF 2, 8). Allen
further describes generating a decision (e.g., to turn on the faucet, and the

1 FF denotes Finding of Fact.
5
Appeal 2008-6123
Application 11/011,410

soap and towel dispensers) based on the single signal from active infrared
sensor [18], [180]. (FFs 5-7, 12). However, Allen does not describe
generating a decision (e.g. to turn on the faucet, soap and/or towel
dispensers) based on the combined states of the signals from both the active
sensor [18], [180] and the passive sensor [34]. (FF 13).
Since the Examiner does not direct us to, and we can not find, where
Allen describes generating a decision based on the combined states of both
the signal from active sensor [18], [180] and the signal from passive sensor
[34], the Examiner erred in finding claims 1-3, 7-11, 13 and 14 anticipated
by Allen.
D. Conclusions of Law
Based on the Findings of Fact and the Analysis above, the Examiner
erred in finding that claims 1-3, 7-11, 13 and 14 anticipated by Allen.
E. Decision
The decision of the Examiner rejecting claims 1-3, 7-11, 13 and 14 under
35 U.S.C. § 102(b) as anticipated by Allen is reversed.
REVERSED

rvb

7
Masco Corporation
21001 Van Born Road
Taylor, MI 48480
6
Appeal 2008-6123
Application 11/011,410

TORCZON: Dissenting.

Representative claim 1 is so poorly drafted that it would be
incomprehensible to any reader trying to discern the metes and bounds of the
claim. In particular, the last several phrases of the claim beginning with the
second sensing decision and ending with the absence clause (a sensing
decision to actuate the washroom device . . . and in the absence of the other).
Given the ambiguous drafting of the claim, it is difficult to assess whether
and how the prior art meets the claim with any certainty. The fault here lies
with the drafter. The case should be returned to prosecution for a clearer
statement of what the applicant regards as its invention. 35 U.S.C. 112(2);
In re Steele, 305 F.2d 859, 862-63 (CCPA 1962); In re Wilson, 424 F.2d
1382, 1385 (CCPA 1970); accord United Carbon Co. v. Binney & Smith
Co., 317 U.S. 228, 237 (1942) (indefiniteness moots consideration of prior
art issues).
Alternatively, the rejection at least as to representative claim 1 should be
affirmed. We are obligated to construe claims broadly. If an applicant
wishes a narrower construction, it may amend its claim accordingly. As in
the present case, where an applicant has drafted its claim ambiguously so it
reasonably supports both a broad and a narrow construction, it is not our role
to give the applicant the benefit of the doubt. Similarly, if the claim covers
some states in the prior art, it is our duty to affirm, even if the prior art has
other states that would not be covered. In this regard, it is worth noting the
"comprising" transition in the claim.
As drafted, the claim has two sensing decisions. The first is based on the
combined states of the active and passive sensors. The second actuates the
washroom device "under certain conditions" and "in the absence of the
7
Appeal 2008-6123
Application 11/011,410

other." While "other" is not defined, the closest antecedents are the two
detection signals. Thus, the broadest reading of the claim is open to an
alternative in which "a sensing decision to actuate the washroom device"
may be made on the basis of only one of the signals. In Allen, different
components of the same overall device may be actuated. Again, the
broadest reading embraces a device that is actuated when any of its several
components capable of actuation is actuated.
Claim 1 also requires a sensing decision based on the combined states of
the active and passive signals, but does not require actuation of a single
component in response. When both of Allen's sensors are triggered, both
components would be actuated resulting in a device that as a whole is
actuated.
If this claim ever ends up in infringement litigation, the contending
parties will spend at least hundreds of thousands of dollars to resolve the
claim scope. The examiner should have done more to enforce unambiguous
claim drafting using the tools at examiners' disposal. Ultimately, however,
the obligation to say what is intended lies with the applicant.

8