Hendrikus Johannes. Van Der Meijden et al.

Patent Trials and Appeals Board

Feb 10, 2020

14247572 - (D) (P.T.A.B. Feb. 10, 2020)

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.
14/247,572 04/08/2014 Hendrikus Johannes van der Meijden Z0030/905699 2480
23370 7590 02/10/2020
KILPATRICK TOWNSEND & STOCKTON LLP
MAILSTOP: IP DOCKETING - 22
1100 PEACHTREE STREET
SUITE 2800
ATLANTA, GA 30309
EXAMINER
JOS, BASIL T
ART UNIT PAPER NUMBER
3666
NOTIFICATION DATE DELIVERY MODE
02/10/2020 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):
KTSDocketing2@kilpatrick.foundationip.com
ipefiling@kilpatricktownsend.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HENDRIKUS JOHANNES VAN DER MEIJDEN,
PHILLIP JOHN NEWMAN, and MARK J. BAUCKMAN

____________

Appeal 2018-003380
Application 14/247,572
Technology Center 3600
____________

Before MICHAEL L. HOELTER, PAUL J. KORNICZKY, and
SEAN P. O’HANLON, Administrative Patent Judges.

O’HANLON, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 6, and 8–12. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Zodiac Pool Systems LLC as the real
party-in-interest. Appeal Br. 3; Notification (filed Jan. 29, 2019).
Appeal 2018-003380
Application 14/247,572

2
In explaining our Decision, we refer to the Specification filed April 8,
2014 (“Spec.”), the Non-Final Office Action mailed January 4, 2017 (“Non-
Final Act.”), the Appeal Brief filed July 25, 2017 (“Appeal Br.”), the
Examiner’s Answer mailed December 14, 2017 (“Ans.”), and the Reply
Brief filed February 7, 2018 (“Reply Br.”).
SUMMARY OF THE INVENTION
Appellant’s invention relates to “systems and methods for
communicating with mobile cleaning equipment.” Spec. 1. Claims 1 and 12
are independent. Claim 1, reproduced below from page 14 (Claims
Appendix) of the Appeal Brief, is illustrative of the claimed subject matter:
1. A method of communicating with an automatic cleaner
(i) operating within a swimming pool and (ii) being of a
hydraulic type in fluid communication, via at least a hose, with
a pump of a water-recirculation system so as to effect
movement of the automatic cleaner within the swimming pool,
the method comprising:
a. loading control software into a device configured to
transmit and receive signals wirelessly;
b. causing the device to transmit wireless signals to a
receiver on-board the operating automatic cleaner so as to
change a characteristic of movement of the automatic cleaner
within the swimming pool; and
c. allowing the device to receive wireless signals from a
transmitter on-board the operating automatic cleaner.
REFERENCES
The Examiner relies on the following prior art references in rejecting
the claims on appeal:
Landsberger US 5,203,646 Apr. 20, 1993
Kell US 5,454,129 Oct. 3, 1995
Erlich US 2012/0273004 A1 Nov. 1, 2012
Appeal 2018-003380
Application 14/247,572

3
Durvasula US 2014/0015959 A1 Jan. 16, 2014
Porat WO 2004/019295 A1 Mar. 4, 2004
REJECTIONS
I. Claims 1–3, 6, and 8–12 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Kell, Durvasula, Porat, and Erlich.
II. Claim 4 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Kell, Durvasula, Porat, Erlich, and Landsberger.
ANALYSIS
Rejection I – Kell, Durvasula, Porat, and Erlich
The Examiner rejects claims 1–3, 6, and 8–12 as being unpatentable
over Kell, Durvasula, Porat, and Erlich. Non-Final Act. 3–8. Regarding
claim 1, the Examiner finds that Kell discloses a method of communicating
with an automatic swimming pool cleaner including causing a device to
transmit wireless signals to a receiver on board the cleaner. Id. at 3 (citing
Kell 5:12, 5:40–48, 6:3–18, Figs. 1, 6, 7). The Examiner finds that
Durvasula teaches loading control software into a device configured to
transmit and receive wireless signals and Porat teaches allowing a device to
receive wireless signals from a transmitter on board an operating automatic
cleaner. Id. at 4. The Examiner finds that Erlich discloses a hydraulic-type
automatic cleaner in fluid communication via a hose to a water-recirculation
system, and reasons that it would have been obvious “to modify the
invention of Kell to include the hydraulic type in fluid communication as
taught by Erlich to provide an economical and reliable pool cleaner with a
minimum number of moving parts.” Id. at 4–5 (citing Erlich ¶¶ 24, 106).
Appeal 2018-003380
Application 14/247,572

4
In challenging the Examiner’s rejection, Appellant presents arguments
for the claims collectively. Appeal Br. 9–11. We select claim 1 as
representative, treating claims 2, 3, 6, and 8–12 as standing or falling with
representative claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2016).
First, Appellant contests the Examiner’s reliance on Erlich by arguing
that Erlich does not disclose a hydraulic cleaner “in fluid communication,
via at least a hose, with a pump of a water-recirculation system” because
“cleaner 10 of [Erlich] has its own on-board pump 60.” Appeal Br. 9. The
Examiner answers by stating “if we look at Fig. 12, we can see an
embodiment where an external pump (not shown) is in fluid communication
with the pool cleaner by a flexible hose.” Ans. 4 (citing Erlich ¶ 97).
Appellant replies by acknowledging that “this portion of [Erlich] mentions
‘hose 152’ connecting a jet valve assembly ‘to an external pump,’” but
“submits . . . that someone skilled in the art would not substitute the external
pump and hose structure of this version of the cleaner of [Erlich] for the
internal pumps of the electrical cleaners of the other cited references.”
Reply Br. 5–6 (citing Erlich ¶ 97).
We are not persuaded by Appellant’s arguments. Erlich explains,
Another important object of the invention is to provide an
economical and reliable pool cleaner with a minimum number
of moving parts and no internal pump and electric motor that
can be powered by the discharge stream from the pool filter
system or an external booster pump and which can reverse its
direction.
Erlich ¶ 24 (emphases added); see also Non-Final Act. 5 (citing same).
Erlich further explains,
[U]se of a source of pressurized water from [an] external source
as specifically illustrated in FIGS. 12-14 (and which can be
Appeal 2018-003380
Application 14/247,572

5
applied to all of the other embodiments described) eliminates
the pump and motor assembly 60 resulting in further cost and
material savings, as well as a reduction in operating and
maintenance expenses.
Erlich ¶ 94 (emphasis added). In embodiments employing such an external
source of pressurized water, “jet valve assembly 40 . . . is connected to an
external pump (not shown) by a flexible hose 152 attached to housing
adapter 150 and therefore requires no internal pump motor.” Id. ¶ 97; see
also Ans. 4 (citing same). Thus, as correctly noted by the Examiner, Erlich
discloses embodiments in which the hydraulic cleaner is powered via the
pump of a water recirculation system connected to the cleaner via a hose, as
required by claim 1, and explains that use of an external pump provides cost
and material savings and reduces operating and maintenance expenses.
Appellant’s arguments that a skilled artisan would not use an external pump
as described by Erlich (Reply Br. 5–6) are presented in conclusory fashion
with no supporting evidence or persuasive technical reasoning and are in
direct conflict with the explicit disclosure of Erlich. Appellant’s arguments,
therefore, are unpersuasive.
Appellant also notes that the Examiner referenced Erlich
paragraph 106, notes that this paragraph references Figure 19, and argues
that it is “clear from Fig. 19 . . . that hose 342 does not extend externally of
the cleaner, but rather remains wholly therein. Consequently, any unshown
pump motor to which it is connected necessarily also is internal to (i.e. ‘on-
board’) the cleaner . . . .” Reply Br. 5. We are not persuaded by this
argument. Paragraph 106 describes one manner in which the movement
direction of pool cleaners is adjusted about a vertical axis:
Appeal 2018-003380
Application 14/247,572

6
FIG. 19 illustrates a conventional fixed spring-loaded
cylinder assembly 330 of the prior art which is activated by
hydraulic force supplied by a pump motor (not shown) via
hose 342, the timing of which is controlled electronically, e.g.,
by a pre-programmed integrated circuit device 344. When the
hydraulic force is applied, the piston 346 moves to engage the
surface causing the cleaner to pivot about the axis of
piston 346. Use of this device produces random motion by the
cleaner.
Thus, hose 342 connects the hydraulic supply provided by the external pump
to cylinder assembly 330, which is used to change the movement direction
of the cleaner. The external pump is connected to the cleaner via another
hose, such as hose 152 discussed in the description of the Figure 12
embodiment. See Erlich ¶ 97.
Next, Appellant argues that “the Examiner has independently selected
for combination four discrete features from four separate prior art
documents, each feature applying to only one element of the claim.” Appeal
Br. 10. According to Appellant, “[n]one of these isolated components is
described in the cited references as being intended for use with the other
components.” Id. at 11.
Appellant’s arguments fail to persuade us of error. To the extent
Appellant argues that relying on four references is improper, we note that
reliance on a large number of references in a rejection does not, without
more, weigh against the obviousness of the claimed invention. See In re
Gorman, 933 F.2d 982, 986–87 (Fed. Cir. 1991) (affirming a rejection of a
detailed claim to a candy sucker shaped like a thumb on a stick based on
thirteen prior art references). Nor do we agree with Appellant’s suggestion
that the cited references themselves must state that they are “intended for use
with the other components.” Appeal Br. 11. To the contrary, the reason to
Appeal 2018-003380
Application 14/247,572

7
modify or combine references need not be found in the references
themselves. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415–21 (2007)
(setting forth that the motivation to modify or combine reference teachings
may arise in the interrelated teachings of multiple prior art references, the
effects of demands known to the design community or present in the
marketplace, the background knowledge possessed by a person having
ordinary skill in the art, the existence at the time of invention of a known
problem for which there was an obvious solution encompassed by the
claims, and common sense). Appellant does not address the Examiner’s
reasoning as to why one would have combined the references’ teachings,
and, thus, fails to persuade us of error.
Accordingly, for the foregoing reasons, we sustain the Examiner’s
rejection of independent claim 1, and of claims 2, 3, 6, and 8–12 falling with
claim 1, as being unpatentable over Kell, Durvasula, Porat, and Erlich.
Rejection II – Kell, Durvasula, Porat, Erlich, and Landsberger
Claim 4 depends from claim 1 through claims 2 and 3 and recites “the
automatic cleaner comprises an on-board electricity generation mechanism.”
Appeal Br. 15 (Claims App.). The Examiner rejects claim 4 as being
unpatentable over Kell, Durvasula, Porat, Erlich, and Landsberger. Non-
Final Act. 8–9. The Examiner finds that Landsberger discloses an electricity
generation mechanism (turbine-generator pair 34) on-board an automatic
cleaner, and reasons that it would have been obvious “to modify the
invention of Kell to include the onboard electricity generation mechanism as
taught by Landsberger to eliminate the need to run a bulky power supply
Appeal 2018-003380
Application 14/247,572

8
tether to the robot.” Id. (citing Landsberger 2:66–3:3, 4:28, Fig. 1); see also
Ans. 5–6.
Appellant presents several arguments contesting the Examiner’s
rejections. First, Appellant argues “[t]he crawling pipe-inspection robot of
the Landsberger patent clearly is not a pool cleaner, . . . nor is it a hydraulic-
type device as claimed.” Appeal Br. 11. This argument fails to persuade us
of error because the Examiner does not rely on Landsberger to disclose a
pool cleaner or a hydraulically-powered device. Rather, the Examiner relies
on Landsberger to teach the use of an electricity generation mechanism on-
board an automatic cleaner, and reasons that it would have been obvious to
include this teaching with the swimming pool cleaner disclosed by Kell.
Non-Final Act. 8–9.
Next, Appellant notes that the Examiner’s rejection relies on the
teachings of five references and argues that “[n]one of these isolated
components is described as being intended for use with the other
components.” Appeal Br. 12. This argument is unpersuasive for the reasons
set forth above with respect to Rejection I. The Examiner’s reliance on a
large number of references in a rejection does not, without more, weigh
against the obviousness of the claimed invention (see Gorman, 933 F.2d at
986–87), and the reason to modify or combine references need not be found
in the references themselves (see KSR, 550 U.S. at 415–21).
Next, Appellant argues that “turbine-generator pair 34 of
[Landsberger] operates to assist the pipe-inspection robot in blasting zebra
mussels from within pipes.” Appeal Br. 12 (citing Landsberger 4:28–42,
5:18–25). This argument fails to persuade us of error because, as stated
above, the Examiner relies on Landsberger to teach the use of an electricity
Appeal 2018-003380
Application 14/247,572

9
generation mechanism on-board an automatic cleaner. Non-Final Act. 8–9.
We note Landsberger discloses that the “turbine-generator pair 34 can be
positioned in or on the robot housing 11 to extract energy from the water
flowing through and past the robot 10, and convert it to electricity for
powering the various motors, servos and actuators through a cable 35.”
Landsberger 4:28–32. Thus, Landsberger supports the Examiner’s findings.
Finally, Appellant argues that Landsberger cannot be cited in rejecting
claim 4 because it is non-analogous art. Appeal Br. 12–13; Reply Br. 3–4.
A reference qualifies as prior art for a determination under § 103 when it is
analogous to the claimed invention. See In re Clay, 966 F.2d 656, 658 (Fed.
Cir. 1992).
Two separate tests define the scope of analogous prior art:
(1) whether the art is from the same field of endeavor,
regardless of the problem addressed, and (2) if the reference is
not within the field of the inventor’s endeavor, whether the
reference still is reasonably pertinent to the particular problem
with which the inventor is involved.
In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (citing In re Deminski,
796 F.2d 436, 442 (Fed. Cir. 1986)). The field of endeavor is determined
“by reference to explanations of the invention’s subject matter in the patent
application, including the embodiments, function, and structure of the
claimed invention.” Id.; see also Deminski, 796 F.2d at 442 (finding that if a
prior art reference discloses essentially the same structure and function as
the invention, it is likely in the same field of endeavor). “A reference is
reasonably pertinent [to a problem an appellant attempts to solve] if . . . it is
one which, because of the matter with which it deals, logically would have
commended itself to an inventor’s attention in considering his problem.”
Clay, 966 F.2d at 659. “If a reference disclosure has the same purpose as the
Appeal 2018-003380
Application 14/247,572

10
claimed invention, the reference relates to the same problem, and that fact
supports use of that reference in an obviousness rejection.” Id. Regarding
the scope of analogous art,
The Supreme Court’s decision in KSR International Co. v.
Teleflex Inc., 550 U.S. 398 (2007), directs us to construe the
scope of analogous art broadly, stating that “familiar items may
have obvious uses beyond their primary purposes, and a person
of ordinary skill often will be able to fit the teachings of
multiple patents together like pieces of a puzzle.” Id. at 402
(emphasis added).
Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010).
Appellant argues that its field of endeavor is “communicat[ing]
electronically with hydraulic-type automatic pool cleaners,” and
Landsberger’s field of endeavor is “inspecting pipes of water treatment and
power plants and removing zebra mussels therefrom.” Appeal Br. 12 (citing
Spec. 4:8–13, 7:3–18; Landsberger Abstract lines 1–4, 1:10–23, 5:18–25).
We disagree with Appellant’s proffered fields of endeavor. Appellant
defines the field of its invention as “communicating with mobile cleaning
equipment,” and provides “automatic cleaners of swimming pools and spas”
as an example of such mobile cleaning equipment. Spec. 1. Appellant
describes embodiments of its invention as being hydraulic-type automatic
swimming pool cleaners “for purposes of illustrating, explaining, and
describing embodiments of the present invention,” but emphasizes that this
description is merely exemplary:
Modifications and adaptations to these embodiments will be
apparent to those skilled in the art and may be made without
departing from the scope or spirit of the invention. For
example, although much of the foregoing description relates to
hydraulic APCs, in some cases aspects of the invention may be
Appeal 2018-003380
Application 14/247,572

11
utilized in connection with other equipment including, but not
limited to, electric APCs.
Id. at 7–8 (emphasis added). Thus, we find Appellant’s field of endeavor to
be mobile cleaning equipment. See Spec. 1. Landsberger discloses “an
underwater robot for inspecting and cleaning the interior surfaces of water
pipes” (Landsberger 1:6–9), and, thus, is in the same field of endeavor as
Appellant.
Additionally, we note that one problem Appellant seeks to solve is a
lack of on-board electricity generating equipment on underwater cleaners.
See, e.g., Spec. 3–4 (“hydraulic APCs conventionally have no on-board
source of electrical power,” “assemblies of the invention may include
hydraulic APCs with on-board electricity-generating capabilities so as to
power processors, sensors, and transceivers”). Landsberger solves the
problem of on-board electricity generation by providing a turbine-generator.
See, e.g., Landsberger 2:62–66 (“the robot . . . preferably includes a water
flow driven turbine which extracts energy from the water that is converted to
electricity by an on-board generator”), 4:28–42 (“a turbine-generator pair 34
can be positioned in or on the robot housing 11 to extract energy from the
water flowing through and past the robot 10, and convert it to electricity for
powering the various motors, servos and actuators”); see also Reply Br. 4
(acknowledging that Landsberger uses its turbine-generator in lieu of
supplying power from an external source). Accordingly, we find that
Landsberger is reasonably pertinent to a particular problem with which
Appellant is involved.
Appeal 2018-003380
Application 14/247,572

12
Accordingly, for the foregoing reasons, we sustain the Examiner’s
rejection of claim 4 as being unpatentable over Kell, Durvasula, Porat,
Erlich, and Landsberger.
CONCLUSION
In summary,
Claim(s)
Rejected 35 U.S.C. § References Affirmed Reversed
1–3, 6, 8–
12
103 Kell, Durvasula, Porat,
Erlich
1–3, 6, 8–
12

4 103 Kell, Durvasula, Porat,
Erlich, Landsberger
4
Overall Outcome 1–4, 6, 8–
12

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