Ex Parte Mommerency et al

Board of Patent Appeals and Interferences

Aug 31, 2012

11327936 (B.P.A.I. Aug. 31, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte JEREMY RICHARD MOMMERENCY and
JAMES ALLEN BUSLEPP
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Appeal 2010-004975
Application 11/327,936
Technology Center 2600
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Before BRADLEY W. BAUMEISTER, BRUCE R. WINSOR, and
BARBARA A. BENOIT, Administrative Patent Judges.

BENOIT, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/327,936

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SUMMARY
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-4, 7-10, and 20:
Claims 1-4 and 7-10 stand rejected under 35 U.S.C. § 103(a) as
obvious over Hutchings (US 6,868,563 B1; issued Mar. 22, 2005) in view of
Mitchell (US 5,012,457; issued Apr. 30, 1991).
Claim 20 stands rejected under 35 U.S.C. § 103(a) as obvious over
Hutchings in view of Mitchell and Clark (US 2002/0035403 A1; published
Mar. 21, 2002).
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF CASE
Appellants describe the present invention as a spa that is provided
with a controller that includes a digital music player. See Abstract. The
“spa is provided with improved digital abilities such as the ability to
communicate over the internet, or to play digital media files.”
Spec. ¶ [0001].
Independent claim 1, which is illustrative of the claimed subject
matter on appeal, is reproduced with the disputed limitations emphasized:
1. A bathing item comprising:
a tub for receiving and distributing heated water; and
a controller including a digital media player associated
with said bathing item, said digital media player being operable
to receive digital files for playing, said controller being
operable to control and monitor operation of the bathing item,
and said controller being operable to communicate over the
internet with a remote location to provide an indication to the
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remote location of the need for maintenance at the bathing
item, said controller receiving inputs, and controlling operation
of the bathing item.

CONTENTIONS1
The Examiner finds that Hutchings discloses all of the limitations
(including the controller and the digital media player) of illustrative claim 1
except for the controller including the digital media player. Ans. 3-5. In
responding to Appellants’ arguments, the Examiner reiterated:
Hutchings teaches both the claimed “controller” and the
claimed “digital media player”, however the controller does not
include the digital media player, i.e., the two are separated and
communicate via infrared.
Ans. 10. For the limitation that the controller includes the digital media
player, the Examiner relies on Mitchell’s disclosure of an “aquatic
transducer system for reproducing high fidelity audio signals and monitoring
the pool.” Ans. 5, 10. The Examiner finds that Mitchell discloses a control
unit that includes an audio source and a power amplifier. Ans. 5 (citing
Mitchell Fig. 1 and col. 8, ll. 30-36), 10 (citing Mitchell Fig. 1 and col. 8,
ll. 30-36). The Examiner concludes:
it would have been obvious to one of ordinary skill in the art to
modify the invention of Hutchings to have the controller
include the digital media player as taught by Mitchell, thereby
simplifying the design to a single unit and eliminating the need

1 Rather than repeat the Examiner’s positions and Appellants’ arguments in
their entirety, we refer to the following documents for their respective
details: the Appeal Brief (App. Br.) filed March 13, 2009; the Supplemental
Appeal Brief (Supp. App. Br.) providing a supplemental Arguments section
filed July 9, 2009; Examiner’s Answer (Ans.) mailed October 19, 2009.
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for the IR emitter and sensor of Hutchings resulting in a
reduction of components.
Ans. 5; see also Ans. 10.
Appellants argue that Hutchings does not disclose communicating
over the internet and does not disclose “a controller which performs the
claimed functions.” Supp. App. Br. 1-2. Appellants further contend that
neither Hutchings nor Mitchell discloses the communication of the need for
maintenance to a remote location. Supp. App. Br. 2. Appellants also assert
that the Examiner has improperly combined Hutchings and Mitchell because
“there is no reason to combine the references” and the references “are not
related at all.” Supp. App. Br. 1-2.

ANALYSIS
We disagree with Appellants’ contentions. We adopt as our own
(1) the findings and reasons with regard to independent claims 1 and 20 set
forth by the Examiner in the action from which the appeal is taken (Ans. 3-5,
7-9) and (2) the reasons set forth by the Examiner in the Examiner’s Answer
in response to Appellants’ Appeal Brief and Supplemental Appeal Brief
(Ans. 9-16). We concur with the conclusions reached by the Examiner. We
add the following comments for completeness.
As an initial matter, we agree with the Examiner that Hutchings
discloses the controller. Ans. 4 (citing for the controller Hutchings spa
control system 760 of the wireless spa system 600, Fig. 6 (depicting an
example wireless spa system 600), and Fig. 7 (showing example components
of a wireless spa audio system)). We also agree with the Examiner that
Hutchings discloses the digital media player. Ans. 4 (citing Hutchings
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col. 5, ll. 4-28 (describing a data rendering system that receives and uses
audio and video signals)).
As to Appellants’ contention that Hutchings does not disclose the
controller communicating over the internet (Supp. App. Br. 1), we agree
with the Examiner that Hutchings discloses the claimed controller
communicating over the internet. The Examiner finds:
[T]he wireless spa system 600 can be used to relay spa-system
data to other locations…which allows remote monitoring of the
spa [to] be used to facilitate spa-problem diagnosis and
servicing. For example, the remote control 640 can include a
service button that connects the system with a customer service
representative over the Internet.
Ans. 4-5 (citing Hutchings col. 5, ll. 29-40; quoting Hutchings col. 5, ll. 33-
40).
We also agree with the Examiner that Hutchings’ controller performs
the other functions recited in illustrative claim 1. The Examiner finds that
Hutchings discloses that the control is operable to control and monitor
operation of the spa. Ans. 4 (citing Hutchings col. 6, ll. 32-43 and col. 5,
ll. 29-40). The Examiner also finds that Hutchings discloses that the
controller is operable to communicate over the internet with a remote
location to provide an indication to the remote location of the need for
maintenance at the bathing item. Ans. 4-5 (citing Hutchings col. 5, ll. 29-
40). The Examiner further finds that Hutchings discloses the controller
receiving inputs and controlling operation of the bathing item. Ans. 5 (citing
Hutchings col. 6, ll. 32-43).
With regard to Appellants’ contention that neither Hutchings nor
Mitchell discloses the communication of the need for maintenance to a
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remote location, we previously have noted our agreement with the Examiner
that Hutchings discloses that limitation.
Turning now to Appellants’ assertion concerning the combination of
Hutchings and Mitchell, we also agree that the Examiner’s combination of
Hutchings spa-based speaker with Mitchell’s aquatic transducer system for
reproducing high-fidelity audio signals underwater is proper. In concluding
that “it would have been obvious to one of ordinary skill in the art to modify
the invention of Hutchings to have the controller include the digital media
player as taught by Mitchell,” the Examiner indicates the benefit of
“simplifying the design to a single unit and eliminating the need for the IR
emitter and sensor of Hutchings resulting in a reduction of components.”
Ans. 5; see also Ans. 10. We see no error in the Examiner’s combination of
the teachings of Hutchings and Mitchell as supported by the Examiner’s
articulated reasoning with some rational underpinning to justify the
Examiner’s obviousness conclusion. See KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 417 (2007).
For the foregoing reasons, Appellants have not persuaded us of error
in the Examiner’s obviousness rejection of representative claim 1.
Accordingly, we will sustain the Examiner’s rejection of that claim and
claims 2-4 and 7-10 which depend from claim 1.
With regard to the obviousness rejection of claim 20 as unpatentable
over Hutchings in view of Mitchell and Clark, we are not persuaded by
Appellants’ contention that Hutchings and Mitchell do not disclose
providing “maintenance information to any location, let alone a remote
location.” Supp. App. Br. 2. Claim 20 depends from claim 1 and includes
the limitation “wherein said controller communicates chemical additive
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information and information regarding any operational problem to the
remote location.” We agree with the Examiner that Hutchings discloses that
the controller is operable to communicate over the internet with a remote
location to provide an indication to the remote location of the need for
maintenance at the bathing item, as discussed above with respect to claim 1,
and that Clark discloses communicating chemical additive information.
Ans. 8-9 (citing Clark ¶¶ [0032-0033]). We see no error in the Examiner’s
combination of the teachings of Hutchings, Mitchell, and Clark as supported
by articulated reasoning with some rational underpinning to justify the
Examiner’s obviousness conclusion. See Ans. 8-9 (noting that “it would
have been obvious to one of ordinary skill in the art to modify the invention
of Hutchings and Mitchell to have the controller also communicate chemical
additive information and information regarding any operational problem to
the remote location as taught by Clark, thereby assisting in the wireless spa
system’s ability to facilitate spa-problem diagnosis and servicing”).
Accordingly, we will sustain the rejection of claim 20 for these
reasons and the reasons set forth above with respect to claim 1.

DECISION
The Examiner’s decision rejecting claims 1-4, 7-10, and 20 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)(iv).

AFFIRMED

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