Ex Parte Tuman et al

Patent Trial and Appeal Board

Nov 18, 2014

11953542 (P.T.A.B. Nov. 18, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte SCOTT J. TUMAN, ROBERT J. MAKI,
LLOYD S. VASILAKES, BYRON E. TROTTER, and
SCOTT D. GULLICKS
____________________

Appeal 2012-009924
Application 11/953,542
Technology Center 3700
____________________

Before: CHARLES N. GREENHUT, JILL D. HILL, and
JAMES J. MAYBERRY, Administrative Patent Judges.

MAYBERRY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims
1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

CLAIMED SUBJECT MATTER
The claims are directed to a cleaning tool. Spec. 1, l. 6. Claims 1 and
20, reproduced below, are illustrative of the claimed subject matter on
appeal:
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1. A floor cleaning tool comprising:
a mop head including a perimeter, a working surface and
back surface, opposite the working surface;
a contact surface on a portion of the working surface for
making contact with a surface to be cleaned, wherein the
contact surface includes a first capturing edge and a second
capturing edge, and further wherein at least a portion of the first
capturing edge is laterally offset from the perimeter;
a recessed surface on a portion of the working surface,
the recessed surface includes a first side surface recessed from
the first capturing edge of the contact surface and a second side
surface recessed from the second capturing edge of the contact
surface;
wherein extension of the portion of the first capturing
edge in a plane of the contact surface is, as a whole, nonlinear.

20. A floor cleaning tool comprising:
a mop head including a working surface and back
surface, opposite the working surface, and a perimeter forming
at least a first branch, a second branch, and a third branch;
a contact surface on a portion of the working surface for
making contact with the surface to be cleaned, wherein the
contact surface includes a first capturing edge, a second
capturing edge, and a third capturing edge;
a recessed surface on a portion of the working surface,
the recessed surface includes a first side surface extending
laterally from the first capturing edge and toward the back
surface, a second side surface extending laterally from the
second capturing edge and toward the back surface, and a third
side surface extending laterally from the third capturing edge
and toward the back surface;
wherein the contact surface includes at least a first
extension in the first branch, a second extension in the second
branch, and a third extension in the third branch, wherein the
first, second and third extensions connect at a connection point
within the working surface and wherein the first extension
extends to a first point on the perimeter, the second extension
extends to a second point on the perimeter, and the third
extension extends to a third point on the perimeter, and further
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wherein the first-third extensions separate the first-third side
surfaces from one another.

REJECTIONS
Claims 1–6 and 8–20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over JP ’954 (JP6-311954, published Feb. 21, 1994) and
Dotterman (U.S. Pat. No. 7,540,056 B2, issued June 2, 2009). Ans. 48.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over JP ’954, Dotterman, and Wells (U.S. Pat. No. 3,875,609,
issued Apr. 8, 1975). Id. at 8.

ANALYSIS
Obviousness Rejection over JP ’954 and Dotterman
Claim 1
Independent claim 1 recites, in part, “wherein extension of the portion
of the first capturing edge in a plane of the contact surface is, as a whole,
nonlinear.” Appeal Br. 17, Claims App. The Examiner finds that JP ’954
discloses most of the subject matter of claim 1, “but lacks[] multiple
nonlinear extensions.” Ans. 4–5. The Examiner further finds that
“[Dotterman] show[s] that it is old and well known in the art to form a mop
head with multiple (i.e. three) nonlinear extensions.” Id. at 5 (citing
Dotterman, Figs. 5–8). The Examiner concludes that “[i]t would have been
obvious to one of ordinary skill in the art to modify the square cleaning head
[of JP ’954] with the known technique of forming a cleaning head with
multiple nonlinear extensions, as taught by [Dotterman] and the results
would have been predictable.” Id. Further, the combination results in a
cleaning tool with “a cleaning head that more effectively reaches into hard to
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reach areas (i.e. corners) thereby allowing a user to more effectively clean
various surfaces during a single cleaning operation.” Id. The Examiner
characterizes the resulting modification as a cleaning tool with a mop head
shaped as in Dotterman, with the contact surfaces and capture edges of JP
’954 in each of the three extensions associated with the three sections of
Dotterman’s triangular shape. See id.
Appellants argue that the Examiner’s proposed modification results in
a single rectangular working surface superimposed on the triangular shape of
Dotterman and, as such, would not include a capture edge that is, as a whole,
nonlinear as required by claim 1. See Appeal Br. 10–11. We find this
argument unpersuasive, as Appellants’ argument is not directed to the
Examiner’s proposed modification, which provides the working surface of
JP ’954 into each of the three sections of Dotterman’s triangular shape. See
Ans. 5; see also id. at 9 (citing JP ’954, Fig. 3a) (“[E]ach curved extension
(i.e. element 416 in Figure 7)[] of Dotterman[] would include the stepped
portion, of JP [’954].”). The resulting modification would include the first
capturing edge in a plane of the contact surface that is, as a whole, nonlinear,
as required by claim 1.

Claim 12
Claim 12 recites, in part, “wherein the contact surface extends along a
direction of the x-axis and along a direction of the y-axis, perpendicular to
the x-axis, such that along the direction of the x-axis the extension of the
contact surface along the direction of the y-axis varies and is nonuniform.”
Appeal Br. 19, Claims App. Appellants makes the identical argument for
the patentability of claim 12 as they make for claim 1—treating the
requirement of claim 12 that the “contact surface along the direction of the
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y-axis varies and is nonuniform” as comparable to the requirement of claim
1 that “the first capturing edge in a plane of the contact surface is, as a
whole, nonlinear.” See Appeal Br. 12–13; Reply Br. 2–4. As discussed
above in connection with the analysis of claim 1, we are not persuaded of
any Examiner error. The resulting modification would include working
surfaces in each of the three sections of Dotterman’s triangle, such that the
contact surface along the direction of the y-axis would vary and be
nonuniform.

Claim 14
Claim 14 recites, in part
wherein the first capturing edge is continuous along the first
and second extensions, the second capturing edge is continuous
along the second and third extensions, and the third capturing
edge is continuous along the third and first extensions such that
a periphery of the first extension is defined by a first segment of
the first capturing edge and a first segment of the third
capturing edge, a periphery of the second extension is defined
by the second segment of the first capturing edge and a first
segment of the second capturing edge, and a periphery of the
third extension is defined by a second segment of the second
capturing edge and a second segment of the third capturing
edge.
Appeal Br. 1920, Claims App. Appellants argue that the Examiner’s
proposed modification would not result in a cleaning tool having the capture
edge configuration quoted above, because the rectangular configuration of
JP ’954 would not include the required multiple extensions. Appeal Br. 13.
This argument is based, again, on Appellants’ misunderstanding the
Examiner’s proposed rejection. As discussed above in connection with our
analysis of claim 1, the Examiner’s proposed modification of JP ’954 would
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include extensions of the contact surface into each of the three regions of
Dotterman’s triangular shape. See Ans. 5; see also id. at 9. These
extensions would include the recited extensions and capturing edge
configurations. See Ans. 5.

Unsatisfactory for its Intended Purpose
In arguing claims 1, 12 and 14, Appellants further argue that JP ’954’s
cleaning tool must tilt or rock to allow the capturing edges to contact the
floor surface and that the Examiner’s modification would render JP ’954
unsatisfactory for its intended purpose. Appeal Br. 12, 13; Reply Br. 5. As
such, one of ordinary skill in the art would not make the proposed
modification. Id.
A proposed modification that renders a device inoperable for its
intended purpose teaches away from such a modification. See In re Gordon,
733 F.2d 900, 902 (Fed. Cir. 1984). We are not persuaded of Examiner error
in this proposed modification. As the Examiner finds, the device would still
tilt or rock when a user applies sufficient pressure. Ans. 10. Appellants do
not rebut this finding. See Reply Br. 3. The Examiner further finds that “the
combination provides a more advantageous device that allows a user to more
easily reach into corners or other hard to reach areas.” Ans. 10. The
proposed modification would still be operable as a cleaning tool.

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Claim 20
Claim 20 recites, in part, “wherein the first extension extends to a first
point on the perimeter, the second extension extends to a second point on the
perimeter, and the third extension extends to a third point on the perimeter.”
Appeal Br. 21, Claims App. (emphasis added). In presenting the “Grounds
of Rejection,” the Examiner fails to discuss how his proposed modification
of JP ’954 with the teaching of Dotterman results in a working surface where
the first, second, and third extensions extend to points on the perimeter, as
required by claim 20. See Ans. 4–5 (discussing rejection of claim 20).
Appellants argue that JP ’954 fails to teach that the contact surface extends
to the outer perimeter as claimed in claim 20. Appeal Br. 14. In response,
the Examiner states that “[e]ach curved extension (i.e. element 416 in Figure
7)[] of Dotterman[] would include a stepped portion that follows the curved
portion toward a center portion.” Ans. 12. Appellants reply that such a
configuration would not result in each extension of the contact surface
contacting a point on the perimeter. Reply Br. 4. Appellants illustrate the
Examiner’s proposed modification. See id. at 2. We find that this
illustration accurately captures the Examiner’s position—each extension
follows the curved portions of Dotterman’s mop head. See Ans. 12. As
depicted, the extensions would not contact the perimeter and the Examiner
fails to explain how one of ordinary skill would have modified the
references to arrive at the extensions contacting the perimeter of the working
surface. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“A rejection
based on section 103 clearly must rest on a factual basis.”). We find that the
Examiner errs in finding that the modification of JP ’954 with the teaching
of Dotterman discloses the subject matter of claim 20.

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Conclusion
For the reasons above, we sustain the Examiner’s rejection of
independent claims 1, 12, and 14 under 35 U.S.C. § 103(a) as being
unpatentable over JP ’954 and Dotterman. Appellants do not separately
argue the rejection of dependent claims 2–6 and 8–11, 13, 1519, which
depend, directly or indirectly, from claims 1, 12, or 14. Accordingly, we
sustain the rejection of these dependent claims under 35 U.S.C. § 103(a) as
being unpatentable over JP ’954 and Dotterman.
For the reasons above, we do not sustain the Examiner’s rejection of
independent claim 20 under 35 U.S.C. § 103(a) as being unpatentable over
JP ’954 and Dotterman.

Obviousness Rejection over JP ’954, Dotterman, and Wells
Claim 7
Appellants do not separately argue the patentability of dependent
claim 7, which depends from independent claim 1. See Appeal Br. 15.
Accordingly, for the same reasons we sustain the Examiner’s rejection of
claim 1, we sustain the rejection of claim 7 under 35 U.S.C. § 103(a) as
being unpatentable over JP ’954, Dotterman, and Wells.

DECISION
For the above reasons, we affirm the Examiner’s rejection of claims
1–19.
For the above reasons, we reverse the Examiner’s rejection of claim
20.
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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)(1)(iv) (2009).

AFFIRMED-IN-PART

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