Ex Parte Grunert

Patent Trial and Appeal Board

Jun 28, 2017

12532203 (P.T.A.B. Jun. 28, 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.
12/532,203 09/21/2009 Klaus Grunert PTB-6032-91 6078
23117 7590 06/30/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
CORMIER, DAVID G
ART UNIT PAPER NUMBER
1711
NOTIFICATION DATE DELIVERY MODE
06/30/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KLAUS GRUNERT1
Appeal 2016-007730
Application 12/532,203
Technology Center 1700
Before: MICHAEL P. COLAIANNI, AVELYN M. ROSS, and
DEBRA L. DENNETT, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL2
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
30-35, 40, 46, and 47. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies the real party in interest as BSH Hausgerate GMBH.
Appeal Br. 3.
2 In our Decision we refer to the Specification (“Spec.”) initially filed
September 21, 2009 and as later amended, the Non-Final Office Action
(“Non-Final”) dated December 16, 2015, the Appeal Brief (Appeal Br.) filed
February 26, 2016, the Examiner’s Answer (“Ans.”) dated July 26, 2016,
and the Reply Brief (“Reply Br.”) filed August 8, 2016.
Appeal 2016-007730
Application 12/532,203
STATEMENT OF THE CASE
The subject matter on appeal relates to a device for cleaning a
component, particularly an evaporator of a condenser device, and a washer
or washer/dryer comprising such a device, where the “condensation water
acquired in the process air circuit from the drying of wet laundry . . . and
collected in the condensation water tank ... is dispensed from its outlet side
onto the evaporator concerned.” Spec 1. Claim 30, reproduced below, is
illustrative of the claimed subject matter:
30. A washer/dryer or tumble dryer device comprising:
an assembly for drying wet laundry, the assembly forming
a portion of a process air circuit;
a component arranged within the process air circuit;
a water tank configured to collect water; and
a cleaning device for cleaning the component, the cleaning
device including:
a rinsing container configured to receive the water from
the water tank and a bottom of said rinsing container comprising
an outlet;
a closure plate covering the outlet in a closed position,; and
a vertical downpipe located above the component and
below the rinsing container,
wherein the outlet is fluidly joined with the vertical
downpipe by opening the closure plate,
wherein the rinsing container is configured to dispense the
water onto the component through the vertical downpipe by
opening the closure plate, wherein the cleaning device is
configured to dispense the water contained in the rinsing
container from the vertical downpipe and onto the component at
a flow rate sufficient to clean accumulated contaminants off of
the component, and
wherein the flow rate is between 75 liters per minute and
150 liters per minute.
Appeal Br. 19-20 (Claims App’x).
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Application 12/532,203
REJECTIONS
The Examiner made the following rejections:
A. Claims 30-32, 34, 40, 46, and 47 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over
Sdrojewski3 in view of Reeves.4 Non-Final 3.
B. Claims 33 and 35 stand rejected under 35 U.S.C § 103(a)
as being unpatentable over Sdrojewski, in view of Reeves,
and further in view of Civanelli.5 Id. at 7.
Appellant requests reversal of Rejections A—B. Appellant presents
argument for claims 30, 31, 32, 40, and 46 (Rejection A), and does not
separately argue the remaining claims or Rejection B. Therefore, we address
the claims identified by Appellant to resolve the issues on appeal.
OPINION
Claim 30:
The Examiner rejects claim 30, inter alia, as obvious over Sdrojewski
in view of Reeves. Non-Final 3. The Examiner finds that Sdrojewski
teaches each structural limitation of claim 30 with the exception of “a
closure plate covering the outlet in a closed position.” Non-Final 4. But, the
Examiner finds that Reeves discloses an outlet valve for a tank car or similar
container and reasons that it would have been obvious at the time “to replace
the in-line valve of Sdrojewski with a valve as taught by Reeves, yielding
3 Rolf Sdrojewski, DE 102005014842 Al, published May 4, 2006
(“Sdrojewski”).
4 George G. Reeves, US 1,626,969, issued May 3, 1927 (“Reeves”).
5 Claudio Civanelli, EP 0468573 Al, published January 29, 1992
(“Civanelli”).
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Application 12/532,203
wherein the closure is a closure plate covering the outlet in a closed position
and the outlet is fluidly joined with the vertical component by opening the
closure component.” Id. The Examiner also acknowledges that neither
Sdrojewski nor Reeves “expressly disclose wherein the flow rate is between
75 liters per minute and 150 liters per minute.” Id. The Examiner finds that
“Sdrojewski indicates that dust is washed off during the temperature and
pressure compensation step” and that “thermal equilibrium . . . can occur
faster than usual by the inventive process of flooding . . . which suggests that
a high rate of flooding would be beneficial and the step of flooding the
components should occur quickly to minimize waiting.” Id. at 4—5. The
Examiner further explains that the flow rate is an intended use because it
does not impart a structural difference between the claims and the prior art.
Id. at 5. The Examiner also finds that Sdrojewski is capable of dispensing
water from the downpipe at a flow rate sufficient to remove contaminants
from the components. Id
Appellant first argues that the claim “does not recite ‘an intended use
of the apparatus’ such that [the limitation ‘configured to dispense the water
... at a flow rate sufficient to clean accumulated contaminants’] can be
ignored.” Appeal Br. 7. Appellant also urges that even if capable of
cleaning, Sdrojewski “fails to explain how . . . ‘the cleaning device is
configured to dispense the water ... at a flow rate sufficient to clean
accumulated contaminants off of the component,’ in particular the ‘flow
rate’ feature.” Reply Br. 2. Because Sdrojewski’s device is for temperature
and pressure compensation, it is not configured to dispense water to clean
contaminants. Id. at 2—3.
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Application 12/532,203
We are not persuaded by Appellant’s argument and concur with the
Examiner that the “configured to dispense the water . . . onto the component
at a flow rate sufficient to clean accumulated contaminants off of the
component” language of claim 30 is an intended use. Non-Final 5. It has
long been held that “apparatus claims cover what a device is, not what a
device does.” Hewlett-Packard Co. v. Bausch &Lomb Inc., 909 F.2d 1464,
1468 (Fed. Cir. 1990). An inventor of a structure (machine or article of
manufacture) is entitled to benefit from all of its uses, even those not
described, Roberts v. Ryer, 91 U.S. 150, 157 (1875), and conversely,
patentability of the structure cannot turn on the use or function of the
structure, In re Michlin, 256 F.2d 317, 320 (CCPA 1958). Other than a bare
assertion that the “configured to” language is not an intended use, Appellant
offers no argument or evidence to show why that should be the case. See
Appeal Br. 7—8. Moreover, Sdrojewski notes that the drying process results
in the generation of fine textile dust particles that attach to the dryer surface.
Sdrojewski 3. Sdrojewski continues to explain that during flooding, the dust
adhering to the component surface dislodges and “the adhering dust gets
adversely in the condensation container.” Id. Thus, the teachings of
Sdrojewski fairly suggest that the contaminants are washed off during the
temperature and pressure compensation step.
Appellant next urges that Sdrojewski teaches away from dispensing
water to rinse away accumulated contaminants. Appeal Br. 8. Appellant
contends that Sdrojewski “describes that washing ‘fine textile dust’ from the
evaporator 2 and the condenser 3 into the condensate storage tank 16 is
undesirable” and therefore teaches away from the claimed invention. Id.
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Application 12/532,203
Appellant’s argument is not persuasive of reversible error. To teach
away, a reference must discourage one of ordinary skill in the art from
following the path set out in the reference, or lead that person in a direction
divergent from the path taken by the applicant. In re Gurley, 27 F.3d 551,
553 (Fed. Cir. 1994). And, a reference fails to teach away “if it merely
expresses a general preference for an alternative invention but does not
‘criticize, discredit, or otherwise discourage’ investigation into the invention
claimed.” DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d
1314, 1327 (Fed. Cir. 2009) (quoting In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004)). Here, Sdrojewski expressly teaches flooding the
component with water causes removal of the fine textile dust. Sdrojewski 3.
And, while Sdrojewski acknowledges that during flooding, the “adhering
dust gets adversely in the condensation container,” Sdrojewski also
identifies a corresponding solution, i.e., the inclusion of a filter either before
or after the condensation pump. Id. Therefore, far from discouraging the
skilled artisan following the invention as claimed, Sdrojewski identifies a
workable solution to prevent fine textile dust from entering the condensation
container.
Appellant also argues that the claimed flow rate of “between 75 liters
per minute and 150 liters per minute” is nonobvious. Appeal Br. 9.
“Appellant believes that one of ordinary skill in the art would find it
desirable to reduce the flow rate of water over the evaporator 2 and the
condenser 3 to maximize the temperature-equilibrating effect of water” in
order to “maximize heat transfer and minimize waste,” as opposed to
increasing the flow as in the present invention. Id. at 10.
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Application 12/532,203
We discern no reversible error in the Examiner’s findings and
conclusions. The Examiner aptly finds that the “flow rate limitation,” i.e.,
“between 75 liters per minute and 150 liters per minute,” is a functional
limitation and that the Sdrojewski apparatus would be capable of meeting
this limitation through a “a mere change in [the] size of the pipe.” Ans. 3;
see also Non-Final 5 (“[t]his limitation is considered to be an obvious
change in size of the vertical downpipe and outlet”). The Examiner explains
that the flow rate limitation “appears to depend on multiple factors, some
structural, such as pipe orientation, internal pipe friction, pipe diameter, and
some non-structural, such as air/water pressures at the ends of the pipes.”
Ans. 3. Appellant does not dispute these findings by the Examiner regarding
Sdrojewski’s capabilities and, we adopt these findings as fact. Cf In re
Kunzmann, 326 F.2d 424, 425 n.3 (CCPA 1964) (a finding not shown by the
Appellant to be erroneous may be accepted as fact). Instead, Appellant
argues that a person skilled in the art would not consider the change in
diameter size to be obvious because “a high flow rate would not necessarily
result in an increase in heat transfer” but rather, “would find it desirable to
reduce the flow rate of water over the evaporator 2 and the condenser 3 to
maximize the temperature-equilibrating effect of water.” Reply Br. 5
(emphasis added). Appellant contends that increasing flow beyond a certain
threshold will not necessarily result in increased heat transfer. Id. Such
argument fails to show error as the flow rate limitation is functional and
Appellant fails to address the capability of Sdrojewski to operate at the
claimed flow rate.
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Claim 31:
Claim 31, depending from independent claim 30, additionally requires
that “the vertical downpipe comprises a nozzle having a cross-sectional area
less than a cross-sectional area of the outlet of the rinsing container.”
Appeal Br. 20 (Claims App’x). The Examiner acknowledged that
Sdrojewski does not expressly teach that the downpipe has a nozzle as
claimed but finds that “in Figure 4, Sdrojewski shows that the fluid in the
vertical downpipe, at a sprayer 11, is sprayed in a shower-like manner with
the fluid stream being divided into multiple streams” thus, the person of
ordinary skill in the art would view the sprayer 11, as providing a nozzle
with an outlet having a cross-section area less than a cross-sectional area of
the outlet of the rinsing container. Non-Final 6.
Appellant contends “[ajssuming arguendo that Fig. 4 of Sdrojewski
teaches what the Examiner alleges, the ‘fluid stream being divided into
multiple streams’ has nothing to do with the cross-sectional area of the
device for dispensing water 11.” Appeal Br. 13. Appellant also argues that
the sprayer is analogous to the claimed nozzle and “it is erroneous to argue
that just one of those many holes is analogous to the claimed ‘nozzle.’”
Reply Br. 6. Rather, Appellant explains that “the sprayer 11... has multiple
holes, the combination of which would not necessarily be smaller in cross-
sectional area than the outlet of the tank 16.” Id.
We are not persuaded by Appellant’s arguments. As the Examiner
explains Sdrojewski teaches a shower-type nozzle that divides water from
the downpipe into multiple and smaller streams. Non-Final 6; Ans. 4.
Therefore, the ordinary skilled artisan “would have found it obvious to
provide plural smaller cross-sectional outlets in the shower head thus
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Application 12/532,203
meeting the claimed limitations.” Ans. 4—5. Thus, the preponderance of the
evidence supports the Examiner as the relationship between the cross-
sectional diameter of the nozzle and that of the outlet is suggested by
Sdrojewski.
Claim 32:
Claim 32, depending from independent claim 30, additionally requires
that “the vertical downpipe is in a fixed position to guide the water to an area
of the component located at an inlet area of process air into the component.”
Appeal Br. 20 (Claims App’x). The Examiner finds that Sdrojewski shows
the vertical downpipe “to be in a fixed position to guide the water to an area
of the component located at an inlet area of process air into the component
(Figure 6).” Non-Final 5—6.
Appellant argues that the Examiner’s interpretation of Figure 6 of
Sdrojewski is erroneous. Appeal Br. 13. Appellant contends instead that the
“rejection appears to presume that the device for dispensing water 11 is
‘fixed,’ possibly because there does not appear to be any disclosure that it
moves.” Id. at 13—14. According to Appellant, “there is a significant
difference between an object not being explicitly disclosed as moving and an
object that is prevented from or otherwise incapable of moving, i.e., ‘fixed.’”
Id. at 14.
We do not find Appellant’s argument persuasive of reversible error.
Claim 32 describes the fixed position as necessary “to guide the water to an
area of the component.” Appeal Br. 20 (Claims App’x) (emphasis added).
Appellant’s Specification further explains that “the downpipe [is] arranged
at a fixed location” and that “[t]he advantage of this is an especially effective
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Application 12/532,203
cleaning of the main area of the evaporator to be cleaned into which the
process air enters and where it particularly deposits contaminants such as
lint.” Spec. 7 (emphasis added); see also id. at 15 (“the rinsing nozzle DU is
arranged in a fixed location in relation to the evaporator’'' (emphasis
added)). It is clear from these teachings that “fixed,” whether incapable of
moving or not (compare Appeal Br. 14, with Ans. 5), is intended to position
the downpipe such that it dispenses water onto the component to be washed.
As the Examiner finds (Ans. 5), Sdrojewski does not teach a reason for the
downpipe to move. Rather, Sdrojewski, like the claims, stations the
downpipe in a fixed location in relation to the condenser 4 and evaporator 5
to allow for the water to be guided onto or flood the components. See, e.g.,
Sdrojewski Figures 4 and 6 and 1 (“The invention proposes that before the
start of the compressor are flooded with water both in the system heat
exchanger (evaporator and condenser).”).
Claims 40 and 46:
Claims 40 and 46, depending from independent claim 30, additionally
requires that the rinsing container is configured to “dispense about 2.5 liters
of the water contained in the rinsing container from the vertical downpipe
and onto the component” (claim 40) and to “dispense the water contained in
the rinsing container from the vertical downpipe and onto the component
within a duration of about 2 seconds or less” (claim 46). Appeal Br. 22 and
23 (Claims App’x). The Examiner also acknowledges that neither
Sdrojewski nor Reeves expressly discloses dispensing 2.5 liters of water or
over a duration of 2 seconds or less. Non-Final 6. But, the Examiner
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Application 12/532,203
reasons that these features would have been obvious adjustments for one
skilled in the art to make at the time of invention. Id.
Appellant contends that these additional features of claims 40 and 46
“emphasize that... a larger volume of water is dispensed over a shorter
period of time to ensure adequate ‘cleaning of] accumulated contaminants
off of the component.’” Appeal Br. 14. Because, according to Appellant,
Sdrojewski discloses a lower flow rate, Sdrojewski teaches away from the
claimed invention. Id.
Appellant’s arguments regarding claims 40 and 46, similarly do not
persuade us of reversible error for the same reasons discussed above for
claim 30 (see supra p. 6—7). The “configured to” limitations of claim 40
(configured to dispense “about 2.5 liters of the water”) and claim 46
(configured to dispense “within a duration of about 2 seconds or less”) are
functional aspects of an apparatus that do not structurally limit the claimed
device. Hewlett-Packard Co., 909 F.2d at 1468 (“apparatus claims cover
what a device is, not what a device does”). Further, and as the Examiner
explains, modification of Sdrojewski would have been obvious because
“these are . . . mere size limitations that predictably result in a different
amount of fluid that can be stored/supplied and a different flow rate for
cleaning or achieving thermal equilibrium.” Ans. 5. Appellant’s argument
that “Sdrojewski’s motive suggests reducing the flow rate, i.e., dispensing a
smaller volume over a longer duration, to maximize heat exchange and
temperature equilibration” (Reply Br. 8), is attorney argument unsupported
by record evidence. Sdrojewski is silent regarding parameters such as flow
rate and pipe diameter. See generally Sdrojewski. Therefore, the
preponderance of the evidence supports the Examiner.
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CONCLUSION
Appellant has failed to identify reversible error in the Examiner’s
rejection of claims 30-32, 34, 40, 46, and 47 under 35 U.S.C. § 103(a) as
being unpatentable over Sdrojewski in view of Reeves.
Appellant has failed to identify reversible error in the Examiner’s
rejection of claims 33 and 35 under 35 U.S.C § 103(a) as being unpatentable
over Sdrojewski, in view of Reeves, and further in view of Civanelli.
DECISION
For the above reasons, the Examiner’s rejection of claims 30-35, 40,
46, and 47 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
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