10328497 (B.P.A.I. Jan. 30, 2009)

Ex Parte Howes et al

Board of Patent Appeals and InterferencesJan 30, 2009

10328497 (B.P.A.I. Jan. 30, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte RONALD BRUCE HOWES, JR., ROBERT EUGENE MAY, and DAVID HOWLAND ____________ Appeal 2009-0426 Application 10/328,497 Technology Center 1700 ____________ Decided: January 30, 2009 ____________ Before EDWARD C. KIMLIN, CHUNG K. PAK, and JEFFREY T. SMITH, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 17-25 and 28-36.1 Claims 1-16 and 37-47 have been withdrawn from consideration. We have jurisdiction under 35 U.S.C. Â§Â§ 6(b) and 134. Claim 17 is illustrative: 1 Claim 36 recites a method and is dependent on claim 17 which recites a system. Hence, it would appear that claim 36 contains a typographical error. Appeal 2009-0426 Application 10/328,497 17. A system for indicating on a display device a time period for titrating a chemical solution contained in a solution tank of a utility device, the system comprising: a control module determining whether sensed information associated with formation of the chemical solution in the solution tank satisfies one or more test conditions related to satisfactory times for titrating the chemical solution; and a display module displaying a titration indicator upon satisfaction of each of the one or more test conditions. Appellants' claimed invention is directed to a system for indicating a time period for titrating a chemical solution contained in a tank of a utility device, such as a washing machine. The system comprises means for sensing information associated with the solution in the tank and a control module for determining whether the information satisfies one or more conditions related to satisfactory times for titrating the solution. When one or more of the test conditions are satisfied a display module displays a titration indicator which "alerts the field person that the current time is an optimal time for titration" (Principal Br. 5, last sentence). Appealed claims 17-25 and 28-36 stand rejected under 35 U.S.C. Â§ 112, second paragraph. Claims 17-25 and 28-36 also stand rejected under 35 U.S.C. Â§ 102(b) as being anticipated by Livingston. We have thoroughly reviewed the respective positions advanced by Appellants and the Examiner. In so doing, we will sustain the Examiner's Â§ 112, second paragraph, rejection of claims 24, 25, and 28-32. We will not sustain the Examiner's Â§ 112, second paragraph, rejection of claims 17-23 and 33-36, nor the Examiner's Â§ 102 rejection of the appealed claims. Our reasoning follows. 2 Appeal 2009-0426 Application 10/328,497 We consider first the Examiner's Â§ 112, second paragraph, rejection of claims 17-23 and 33-26. It is well settled that claim language is not to be read in a vacuum but in light of the Specification as it would be interpreted by one of ordinary skill in the art. In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983; In re Kroekel, 504 F.2d 1143, 1146 (CCPA 1974); In re Moore, 439 F.2d 1232, 1235 (CCPA 1971). In the present case, while we appreciate the Examiner's concern for the claim language on appeal which is not, admittedly, a model of clarity, we must agree with Appellants that one of ordinary skill in the art would reasonably understand the metes and bounds of the subject matter defined by claims 17-23 and 33-36. In particular, while the Examiner asks "what may be 'sensed information associated with formation of the chemical solution in the solution tank' recited in claims 17" (Supple. Ans. 3, last para.), we agree with Appellants that the present specification adequately explains that the sensed information may be the concentration of the chemical product in the chemical solution (see claim 18). Also, although the Examiner finds the term "sensed information" to be technically incorrect because information is data that can be transmitted but not sensed, we agree with Appellants that one of ordinary skill in the art would readily understand that the sensed information is the data relating to solution concentration that is transmitted by a sensor to the control module. As for the Examiner's criticism or the claim language "sensed information . . . satisfies one or more tests conditions related to satisfactory times," we find that one of ordinary skill in the art would understand that the sensed information, such as concentration or conductivity of the solution, satisfies the condition for indicating a satisfactory time for titration. 3 Appeal 2009-0426 Application 10/328,497 We also do not agree with the Examiner that claim 18 runs a foul of Â§ 112, second paragraph, because the solution defined by the claim comprises a chemical product and a rinse agent, whereas the present Specification discloses that the chemical product may be a rinse agent. While the Examiner maintains that a solution may not comprise a rinse agent and a rinse agent, we concur with Appellants that one of ordinary skill in the art "would understand that 'chemical product' must refer to, for example, a type of detergent, or soap, because the 'rinse agent' is already specifically referred to in the claim" (Br. 11, last para.). It must be borne in mind that the test is how one of ordinary skill in the art would reasonably interpret the claim language at issue. The remaining criticisms of the claim language lodged by the Examiner have been adequately answered by Appellants in the principal Brief. We agree with the Examiner that the "means for" language of claims 24, 25, and 28-32 is indefinite within the meaning of Â§ 112, second paragraph. For instance, whereas claim 24 recites "means for detecting whether the chemical product is being dispensed into the solution tank," and claim 28 recites "means for detecting whether the rinse agent is being applied to the one or more articles," Appellants have not refuted the Examiner's finding that the present Specification fails to set forth any particular structure for the means recited in claims 24, 25, and 28-32. Appellants simply state that they "believe that this limitation is clear on its face [and that] [s]omeone of ordinary skill in the art would clearly be able to discern this meaning from merely reading claim 24" (Principle Br. 13, second para.). However, the relevant issue is not whether one of ordinary 4 Appeal 2009-0426 Application 10/328,497 skill in the art would be able to, for example, devise a system comprising means for detecting whether a product is dispensed into a solution tank but, rather, whether the "means for" claim language is supported by a specific structure in the Specification. See In re Dossel, 115 F.3d 942, 946 (Fed. Cir. 1997); In re Donaldson Co., 16 F.3d 1189, 1193 (Fed. Cir. 1994). Here, Appellants have made no attempt to respond to the Examiner's criticisms by pointing to any particular portion of the Specification that discloses a specific structure for the means recited in claims 24, 25, and 28-32. We now turn to the Examiner's Â§ 102 rejection of the appealed claims over Livingston. The appealed claims define a module which displays a titration indicator which indicates a satisfactory time for titrating a chemical solution. As set forth by Appellants, and not disputed by the Examiner,"titration" is defined as: The process, operation, or method of determining the concentration of a substance in solution by adding to it a standard reagent of known concentration in carefully measured amounts until a reaction of definite and known proportion is completed, as shown by color. The Examiner explains that the dishwasher of Livingston can measure the resistivity or conductivity of the solution to determine the amount of detergent in the water, and this, according to the Examiner, is tantamount to titration. The Examiner erroneously finds that the light indicators of Livingston "are titration indicators, which indicate satisfactory time for the titration, i.e., for adding detergent or the rinse agent" (Supple. Ans. 8, first para.). However, simply adding detergent or rinse agent to a solution does not result in a titration of the solution. Titration involves determination of 5 Appeal 2009-0426 Application 10/328,497 the concentration of a particular substance in solution by carefully measuring the amount of a reagent added, which is quite different than adding a particular component of a solution until a desired concentration is reached. We concur with Appellants that "simply because Livingston discloses determination of the resistivity or conductivity of the water does not mean that it further applies test conditions to those monitored parameters to determine whether they satisfy one or more test conditions related to satisfactory times for titrating, as required by claim 17" (Reply Br. 7, last para.). Consequently, we find that Livingston does not describe every element of the claimed invention within the meaning of Â§ 102. In conclusion, based on the foregoing, the Examiner Â§ 102 rejection of the appealed claims is reversed, as is the Examiner's Â§ 112, second paragraph rejection of claims 17-23 and 33-36. The Examiner's Â§ 112, second paragraph, rejections of claims 24, 25, and 28-32 is sustained. Accordingly, the Examiner's decision rejecting the appealed claims is affirmed-in-part. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(1)(iv). AFFIRMED-IN-PART cam 6 Appeal 2009-0426 Application 10/328,497 SHUMAKER & SIEFFERT, P.A. 1625 RADIO DEIVE SUITE 300 WOODBURY MN 55125 7