Ex Parte Ireland et al

Patent Trial and Appeal Board

Apr 4, 2017

12774749 (P.T.A.B. Apr. 4, 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.
12/774,749 05/06/2010 VINCENT A. IRELAND SUB-US20080857-US-NP 8671
173 7590 04/06/2017
WHIRLPOOL CORPORATION - MD 3601
2000 NORTH M63
BENTON HARBOR, MI 49022
EXAMINER
LEE, DOUGLAS
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
04/06/2017 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):
whirlpool_patents_co@whirlpool.com
mike_lafrenz @ whirlpool .com
deborah_tomaszewski@whirlpool.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VINCENT A. IRELAND, TRACI L. KACHOREK, and
BROOKE L. LAU1
Appeal 2016-001532
Application 12/774,749
Technology Center 1700
Before KAREN M. HASTINGS, RAE LYNN P. GUEST, and
DEBRA L. DENNETT, Administrative Patent Judges.
GUEST, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1—4, 6, 7, 9—15, 17, and 19-21 under 35 U.S.C. §
103(a) as unpatentable over GE Service Guide2 in view of Berends,3
1 Appellants identify the real party in interest as Whirlpool Corporation.
Appellants’ Appeal Brief 4, filed March 27, 2015 (hereinafter “App. Br.”).
2 GE Appliances, Technical Service Guide for GE Profile Dishwasher Series
PDW8900, PDW9700 and PDW9900, Document 31-9137 (February 2006)
(hereinafter “GE Service Guide”).
3 US 2008/0264448 Al, published October 30, 2008, identifying Erik
Berends et al. as inventors (hereinafter “Berends”).
Appeal 2016-001532
Application 12/774,749
Boehme,4 Cracraft,5 and, for claim 19 only, Corbett.6 App. Br. 6. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention is a dishwasher with a hidden operating mode
that allows the user to select a plurality of pre-programmed dishwashing
cycles that are optimized for particular environmental conditions related to
the home of the user, particularly water hardness and types of rinse aid or
detergent used, that may be different from the most common conditions, for
which the dishwasher would be factory-default set. Specification (“Spec.”)
Ill, 3—4, and 20-21. Claims 1 and 7 are exemplary claims on appeal and
are reproduced below:
1. A method of operating a dishwasher having a
default operating mode in which the dishwasher can be
selectively operated in one of a plurality of pre-programmed
default dishwashing cycles through actuation of at least one
control switch, comprising:
receiving a user-input signal indicative of a desire to
access a hidden operating mode distinct from the default
operating mode,
entering the hidden operating mode of the dishwasher
based on the user-input signal,
actuating the at least one control switch to select one of a
plurality of pre-programmed hidden dishwashing cycles
associated with the hidden operating mode, and
operating the dishwasher in the hidden operating mode in
accordance with the one of the plurality of pre-programmed
hidden dish washing cycles, wherein the plurality of
4 US 2006/0089295 Al, published April 27, 2006, identifying Corinna
Boehme et al. as inventors (hereinafter “Boehme”).
5 US Patent 5,698,826, issued December 16, 1997 to Mark A. Cracraft et al.
(hereinafter “Cracraft”).
6 US Patent 6,327,730 Bl, issued December 11, 2001 to Mitchell N. Corbett
(hereinafter “Corbett”).
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Application 12/774,749
preprogrammed hidden dishwashing cycles associated with the
hidden operating mode are optimized to specific environmental
conditions by changing at least one of a temperature and a cycle
operating time, and wherein at least one of the specific
environmental conditions is the use of at least one of detergent
tablets, detergent gels and various types of rinse aid.
7. A method of operating a dishwasher, comprising:
operating the dishwasher in a default operating mode in
accordance with one of a plurality of pre-programmed default
dishwashing cycles based on actuation of at least one control
switch of the dishwasher,
initiating a mode selection sub-routine based on a first
user-input signal,
receiving a second user-input signal indicative of a
hidden operating mode,
entering the hidden operating mode based on the second
user-input signal, and
operating the dishwasher in the hidden operating mode in
accordance with one of a plurality of pre-programmed hidden
dishwashing cycles associated with the hidden operating mode
by actuating the at least one control switch of the dishwasher,
the one of the plurality of pre-programmed hidden dishwashing
cycles being optimized for hard water by changing at least one
of a cycle temperature and a cycle operating time.
App. Br. 17—18, Claim App’x. Independent claim 11 is directed to a
dishwasher, rather than a method of dishwashing, with a hidden operating
mode with a plurality of pre-programmed cycles optimized similar to that of
claim 11. Id. at 18—19.
Appellants present separate arguments for claims 1,7, 10, 11, 20, and
21. All other claims stand or fall with the claims from which they depend,
including separately rejected claim 19, for which no additional arguments
are presented. See App. Br. 15.
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Unless otherwise indicated, we adopt the Examiner’s findings in the
Answer as our own and add any additional findings of fact appearing below
for emphasis.
II. Discussion
Claims 1, 20, and 21
Appellants present substantially the same arguments with respect to
claims 1, 20, and 21. Compare App. Br. 7—9, 12—13, and 14—15.
Claims 1, 20, and 21 each recite, inter alia, a “hidden operating
mode” and a “plurality of pre-programmed hidden dishwashing cycles” that
are optimized for the use of “at least one of detergent tablets, detergent gels
and various types of rinse aid.”
The Examiner finds that GE Service Guide teaches a dishwasher and a
method of operating the dishwasher with a hidden operating mode that
provides a plurality of pre-programmed hidden dishwashing cycles,
specifically five different pre-programmed cycles depending on the water
hardness information entered by the user. Final 3; Ans. 2—3. Specifically,
GE Service Guide teaches a hidden operating mode for the user to input one
of five selection based on an at-home test or water hardness. GE Service
Guide 14. Based on the user input, the dishwasher will run one of five
different washing cycles. Id. The washing cycles vary by the amount of
detergent dispensed from the “SmartDispense” detergent dispenser, which
optimizes the amount of dispense detergent based on “the soil level of the
dishes and the hardness of the water.” Id.
The Examiner finds that GE Service Guide does not expressly teach
optimizing either temperature or cycle operation time for the use of
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Application 12/774,749
detergent tablets, detergent gels, or various types of rinse aid. Final 3; Ans.
3.
Accordingly, the Examiner finds that Berends teaches “to adjust cycle
times and temperatures depending on the detergent used.” Final 3—7; Ans. 3.
Indeed, Berends teaches that it was known in the art at the time of the
invention that detergents that include a rinse aid and/or water softener, also
known as a 2-in-l (2 component) or 3-in-l (3 component) detergent
composition, require “longer cycle times (especially of the drying step),”
“higher liquid temperatures during the final rinse,” and “suppression of the
second intermediate rinse step.” Berends, Tflf 3^4 (citing in 13 numerous
references which describe these known adaptations “according to which
rinse aid and salt indicators are disabled when not needed”). The Examiner
determines that
It would have been obvious to one of ordinary skill in the art at
the time of the invention to modify the GE service guide to
include optimizing the dishwashing cycles based on the
detergent used by changing a cycle temperature or duration as is
known in the art as disclosed by Berends via the hidden operating
modes (see Cracraft col. 1, lines 17-52 which discloses the desire
to improve readability of a dishwasher control panel by reducing
the number of switches/buttons on the control panel) of the GE
service guide in order to obtain satisfactory washing and drying
results (see Berends at paragraph [0004]).
Final 4.
Appellants argue that it would not have been obvious to optimize
dishwashing cycles based on detergent use via a hidden operating mode
because Berends teaches automatic cycle selection based on rinse aid/water
softener fill level detection, which would not require a hidden operating
mode. App. Br. 8. Appellants argue that, unlike water hardness, which
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Application 12/774,749
“would be entered once and then never again,” the use of different
detergents and rinse aids will vary much more frequently. Id. According to
the Appellants, there is no reason to implement a manual adjustment system
from an automated system, as it would requires “additional effort on the part
of the user” without reducing buttons. Id. at 8—9; Reply Br. 3.
We are not persuaded by Appellants’ arguments. It is not disputed
that Berends is directed to a method of automatically altering washing cycles
based on the presence or absence of an added rinse aid. However, Berends
also teaches prior art dishwashers which operate precisely as does the
present claimed invention. Berends 1 5. Specifically, Berends describes
prior dishwashers in which “adapted wash cycles are selected via additional
control elements,” such as “additional, momentary buttons [i.e., a hidden
operation mode] which can be pressed to select all cycles from the 2-in-l
group or 3-in-l group that are to be used in the future.” Id. Berends is an
alleged improvement because “when users switch from combination
products to standard detergents, they often forget to release buttons they
have pressed before.” Id.
However, automation comes at the cost of user control. The reason
the skilled artisan would opt to provide the user additional controls over an
automated system is to provide the user, who values optimal control over
simplification, the option of setting the variables rather than having the
cycles determined automatically. For example, the automated system of
Berends does not allow the user to switch cycles back to the setting for 2-in-
1 or 3-in-l detergents when the water softener/rinse aid reservoirs are full.
Berends 114. Further, we agree with the Examiner that, when such a degree
of control is desired, it would have been obvious to do so via a hidden
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operating mode to avoid the clutter of additional buttons on the dishwasher
face based on the teachings of Cracraft. Ans. 15 (citing Cracraft col. 1, lines
17-52).
Moreover, even if automation is a preferred approach for a
dishwasher, Berends does not teach the inoperability of or otherwise
discredit the prior art dishwashers that were not automatic but served the
same purpose with hidden manual operating modes. In re Gurley, 27 F.3d
551, 552—3 (Fed. Cir. 1994) (“A known or obvious composition does not
become patentable simply because it has been described as somewhat
inferior to some other product for the same use.”); see also In re Larson, 340
F.2d 965, 969 (CCPA 1965) (“[i]f this additional [superior] feature is not
desired, it would seem a matter of obvious choice to eliminate it and the
function it serves.”).
Therefore, we are not persuaded of Examiner error in the rejection of
claims 1, 20, and 21, or the claims that depend therefrom, under 35 U.S.C. §
103(a).
Claims 7 and 11
Appellants present substantially the same arguments with respect to
claims 7 and 11. Compare App. Br. 9-10 and 11—12.
The Examiner determined that
It would have been obvious to one of ordinary skill in the art at
the time of the invention to modify the GE service guide to
include optimizing the dishwashing cycles based on the
detergent used and the hardness of the water by changing a cycle
temperature or duration as is known in the art as disclosed by
Berends via the hidden operating modes (see Cracraft col. 1, lines
17-52 which discloses the desire to improve readability of a
dishwasher control panel by reducing the number of
switches/buttons on the control panel) of the GE service guide in
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Application 12/774,749
order to obtain satisfactory washing and drying results (see
Berends at paragraph [0004]).
Ans. 6—7 and 8—9.
Appellants argue that the combination fails to render obvious
modifying the dishwasher of GE Service Guide to add cycles optimized for
hard water by changing either temperature or cycle operating time, as
claimed. App. Br. 10 and 12; Reply Br. 3. Appellants contend that “[t]here
is no disclosure of changing a cycle temperature or operating time based on
water hardness.” Id. Appellants argue that Berends only teaches changing
cycle temperatures and cycle times based on the types of detergent used,
namely standard detergent or combination products. Id.
Berends teaches that combination detergents may include a rinse
agent, a water softener, or both, but standard detergents contain neither a
rinse agent nor a water softener. Berends teaches that, when the water
hardness of 210 dH or less, the water softener and rinse agent provided in a
combination detergent should be sufficient. However, for water hardness
greater than 21° dH, a wash cycle may need rinse agents and/or water
softeners in addition to those provided in a combination detergent.
The Examiner reasons that, indeed, Berends discloses that dishwasher
cycles need to be adapted based on the water hardness, including the cycle
times and/or cycle temperatures, by the “the use of certain detergent types
based on the water hardness.” Ans. 16.
We agree with the Examiner’s reasoning. Berends teaches using
different water temperatures and cycle times when the user has chosen to use
a combination detergent further comprising a water softening agent (i.e. the
user has hard water that needs to be addressed with a softening agent).
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Berends further teaches alternative conditions when additional softening
agents is needed in the event that such a combination detergent is not
sufficient, namely, for water with a hardness of greater than 210 dH.
Accordingly, Berends teaches dishwashing cycles that are “optimized for
hard water by changing at least one of a cycle temperature and a cycle
operating time” via the user’s selection of appropriate detergent when the
user has hard water. The claims do not require cycle options for a variety of
water hardnesses, but rather only one category of “hard water.” Thus,
Berends teachings of various ways to address “hard water,” namely via a
combination detergent or via separately adding a softening agent, and the
cycle times and temperatures associated with both approaches meets the
requirements of “a plurality of pre-programmed” cycles optimized “for hard
water” by changing cycle temperature and operating times. Appellants
present no persuasive evidence to the contrary.
Therefore, we are not persuaded of Examiner error in the rejection of
claims 7 and 11, or the claims that depend therefrom, under 35 U.S.C. §
103(a).
Claim 10
Claim 10 depends from claim 7 and further comprises a step of
“deactivating the mode selection sub-routine when the second user-input
signal is not received in a predefined period of time.” The Examiner finds
that GE Service Guide teaches a deactivation feature for a different hidden
mode, namely a “service mode.” Final Act. 7 (citing GE Service Guide 32).
The Examiner determines that “[i]t would have been obvious to one of
ordinary skill in the art at the time of the invention to include a deactivation
feature for the hidden operating mode in order to avoid confusion when
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operating the dishwasher.” Id. The Examiner also states that “[djeactivation
features are well-known in the dishwashing art and do not provide patentable
significance.” Ans. 16 (further citing an indicator light auto shut off in GE
Service Guide at page 9).
Indeed, page 9 of the GE Service Guide teaches that all selected
cycles deactivate (“the indicator lights will turn off’) if the START/RESET
pad is not selected within 5 minutes, i.e., there is no second user-input
received in a predefined period. See GE Service Guide 9. We find this
teaching substantial evidence to support the Examiner’s assertion that
deactivation features when a user input is not received in a defined period of
time were known in the dishwasher art at the time of the invention.
Appellants argue that the Examiner’s reliance on the disclosure on
page 32 of GE Service Guide, which teaches deactivation after 30 minutes
regardless of whether a user input is received, is distinguishable from the
claims which require deactivation only if a “second user-input signal is not
received in a predefined period of time.” App. Br. 11. Appellants provide
no substantial argument to address the Examiner’s reliance on the disclosure
on page 9 of the GE Service Guide, except to point out that this is a new
ground of rejection by the Examiner because it was provided for the first
time in the Examiner’s Answer. Reply Br. 4.
Any request to seek review of the primary examiner’s failure to
designate a rejection as a new ground of rejection in an
examiner’s answer must be by way of a petition to the Director
under § 1.181 of this title filed within two months from the entry
of the examiner’s answer and before the filing of any reply brief.
Failure of appellant to timely file such a petition will constitute
a waiver of any arguments that a rejection must be designated as
a new ground of rejection
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37 C.F.R. § 41.40(a). See also, e.g., Manual of Patent Examining Procedure
§ 1002.02(c)6 and § 1207.03(b) (9th ed., Rev. 7, November 2015); In re
Berger, 279 F.3d 975, 984—85 (Fed. Cir. 2002) (Issues regarding whether an
examiner abused his or her discretion in matters of practice and procedure
are not subject to appeal). Accordingly, we address the rejection based on
the Examiner’s findings and reasons expressed in both the Final Office
Action and the Answer.
We agree with the Examiner that the prior art supports a finding that
hidden mode deactivation features after a set period of time were known in
the dishwasher art at the time of the invention and would have been an
obvious way to automatically revert hidden modes to default operational
modes to avoid confusion. Appellants have presented no persuasive
arguments to the contrary.
Therefore, we are not persuaded of Examiner error in the rejection of
claim 10, or the claims that depend therefrom, under 35 U.S.C. § 103(a).
IV. CONCLUSION
On the record before us and for the reasons discussed above, we
sustain the rejections maintained by the Examiner.
V. ORDER
We affirm the Examiner’s rejections of 1—4, 6, 7, 9—15, 17, and 20—21
under 35 U.S.C. § 103(a) as unpatentable over GE Service Guide in view of
Berends, Boehme, and Cracraft, and of claim 19 under 35 U.S.C. § 103(a) as
unpatentable over GE Service Guide in view of Berends, Boehme, Cracraft,
and Corbett.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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