Ex Parte Cantrell et al

Patent Trial and Appeal Board

Jun 23, 2017

13021682 (P.T.A.B. Jun. 23, 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.
13/021,682 02/04/2011 JOHN W. CANTRELL 157311-6.5 5071
97242 7590
Kutak Rock LLP
2300 Main Street, Suite 800
Kansas City, MO 64108
06/27/2017 EXAMINER
MARKOFF, ALEXANDER
ART UNIT PAPER NUMBER
1711
NOTIFICATION DATE DELIVERY MODE
06/27/2017 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):
patents @ kutakrock. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN W. CANTRELL and MARK CHURCHILL
Appeal 2016-002259
Application 13/021,682
Technology Center 1700
Before LINDA M. GAUDETTE, DONNA M. PRAISS, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellants1 filed a request for rehearing under 37 C.F.R. § 41.52
(hereinafter “Request”) of our Decision mailed April 25, 2017, affirming the
rejection of claims 1—15, 17, and 20-28 under pre-AIA 35 U.S.C. § 102(b)
as anticipated by Bigott2, and reversing the rejection of claims 1—15, 17, and
20-28 under 35 U.S.C. § 112, second paragraph, as indefinite.3
1 Appellants identify the real party in interest as Unified Brands, Inc. Br. 2.
2 Bigott, US 2006/0254619 Al, published Nov. 16, 2006 (hereinafter
“Bigott”).
3 In this Decision, we refer to the Final Office Action mailed August 11,
2014 (“Final Act.”), the Appeal Brief filed May 14, 2015 (“Appeal Br.), the
Examiner’s Answer mailed October 20, 2015 (“Ans.”), and the Reply Brief
filed December 21, 2015 (“Reply Br.”).
Appeal 2016-002259
Application 13/021,682
Requests for Rehearing are limited to matters overlooked or
misapprehended by the Panel in rendering the original decision. See
37 C.F.R. § 41.52.
For the reasons set forth below, we grant Appellants’ Request in that
we have reconsidered the issues addressed in the Decision. After
reconsideration, however, we continue to affirm the Examiner’s rejection of
claims 1—15, 17, and 20—28 under pre-AIA 35 U.S.C. § 102(b) as anticipated
by Bigott. Therefore, we deny Appellants’ Request to modify our prior
Decision.
ISSUES RAISED IN THE REQUEST
First, Appellants request rehearing on the basis that our Decision
contains an undesignated new ground of rejection as to claims 22 and 23
(Request 2).
We disagree. A decision includes an undesignated new ground of
rejection when it relies on new facts and rationales not previously raised to
the applicant by the examiner. In reLeithem, 661 F.3d 1316, 1319 (Fed.
Cir. 2011). The Board, however, “need not recite and agree with the
examiner’s rejection in haec verba to avoid issuing a new ground of
rejection.” Id. Moreover, a new ground of rejection generally will not be
found based on the Board “further explaining] the examiner’s rejection” or
the Board’s thoroughness in responding to an applicant’s argument. See In
re Jung, 637 F.3d 1356, 1364—65 (Fed. Cir. 2011). “[T]he ultimate criterion
of whether a rejection is considered ‘new’ in a decision by the board is
whether appellants have had fair opportunity to react to the thrust of the
rejection.” In re Kronig, 539 F.2d 1300, 1302 (CCPA 1976). The Federal
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Circuit explained that “the thrust of the Board’s rejection changes when . . .
it finds facts not found by the examiner regarding the differences between
the prior art and the claimed invention and these facts are the principal
evidence upon which the Board’s rejection was based.” Leithem, 661 F.3d
at 1320.
Appellants argue that the following statement in the Decision
constitutes a new finding that changes the thrust of the rejection regarding
claims 22 and 23: “the operator has an option, to delay locking out operation
of the wash pump for at least one finite period of time, e.g., by choosing a
higher preset value” (Decision 7). Contrary to Appellants’ argument, this
was not a new finding, as the Examiner had previously found “[sjince Bigott
teaches that the operation of the apparatus (including times, number of
operations, etc) can be programmed [] the way the operator is desired, the
method of Bigott teaches the argued option [to delay locking out operation
of the pump],”4 required by claims 22 and 23 (Ans. 9, citing Bigott || 251—
253). The Examiner found that Bigott teaches, at least at paragraphs 251—
253, “that the operation may include monitoring indicators and control
values of the process and controlling the operation based on the monitoring.”
Although the Examiner did not expressly refer to paragraph 253, the
Examiner found that “Bigott teaches deactivating the pump after a number
of wash cycles equals a preset value.” Ans. 7; see also Appeal Br. 13
4 Although not explicitly defined in Appellants’ Specification, Appellants
argue that the “locking out operation” “is accomplished after the wash pump
has been deactivated so as to prevent the wash pump from being reactivated,
thereby preventing the wash fluid from being used in a wash cycle.” Appeal
Br. 14 (citing Spec. 19). In addition, Appellants argue that “[ljocking out
the wash pump also ends the wash period because the wash pump cannot be
unlocked until the fluid is replaced.” Appeal Br. 14 (citing Spec. 1 6).
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Application 13/021,682
(where Appellants admitted that Bigott discloses “shutting down pumps
‘once [a] number of wash cycles equals [a] preset value,’” (Bigott 1247),
and discloses a preset value “is the allowable or acceptable number of wash
cycles that can be performed before the tank water is replaced.” {id. 1245)).
The Board’s statement at page 7 of the Decision, which reads in its entirety
that “[bjecause Bigott teaches that the preset value can be input by the
operator into the control system, the operator has an option, to delay locking
out operation of the wash pump for at least one finite period of time, e.g., by
choosing a higher preset value,” was describing an exemplary process of
monitoring indicators and controlling operations based on monitoring
disclosed in paragraph 253 of Bigott, and further explaining how that
disclosure teaches an option to delay locking out operation of said wash
pump. Decision 7. Thus, the Board’s statement does not include a new fact
finding not previously raised by the Examiner. Because the Decision did not
rely on any new findings or rationales, the Decision did not state a new
ground of rejection.
Alternatively, Appellants seemingly argue that the Board overlooked
and/or misapprehended their arguments that Bigott does not disclose
“providing by said control system an option to delay locking out operation
of said wash pump for at least one finite time period,” as required by
claims 22 and 23. Request 2, 3. The Board, however, did not overlook
Appellants’ arguments regarding claims 22 and 23, but instead found them
unpersuasive. As explained in the Examiner’s Answer (Ans. 9), and further
discussed and affirmed in the Board’s Decision (Decision 6—7), we are not
persuaded by Appellants’ arguments that Bigott does not teach “providing
by said control system an option to delay locking out operation of said wash
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Application 13/021,682
pump for at least one finite time period” as required by claims 22 and 23.
As discussed in the Decision (Decision 7), Bigott teaches counting the
number of washing cycles that occur following replacement of the fluid
within the tank, comparing the counted number of washing cycles to a preset
value, and inhibiting, limiting, or restricting further wash cycles (e.g.,
deactivating the pumps) if the counted number of cycles equals or exceeds
the preset value. Bigott || 253, 255; see also Appeal Br. 13 (where
Appellants’ admitted Bigott discloses at paragraphs 245 and 247 shutting
down pumps “once [a] number of wash cycles equals [a] preset value,”
where “[t]he preset value is the allowable or acceptable number of wash
cycles that can be performed before the tank water is replaced.”). Bigott
teaches that the preset value may be input by the operator (e.g., by a user
interface of a control system) and/or the preset value may be preprogrammed
into the controller. Bigott 1253. Because Bigott teaches that the preset
value may be input by the operator, the operator has the option (e.g.,
flexibility) of extending a wash period for a finite amount of time, e.g., by
choosing a higher preset value. See Appeal Br. 14 (arguing that the option
to delay locking out the operation of the wash pump for a finite period of
time “allows a user the flexibility of extending a wash period for a finite
amount of time.”).
Appellants argue that the Board overlooked and/or misapprehended
their arguments that Bigott does not disclose the unload/load period recited
in claim 1, which Appellants argue is “a period of time during a wash period
but between two wash cycles.” Request 3^4.
Claim 1 requires, in relevant part: (1) “starting ... a wash period
when the wash pump is activated; (2) starting ... a wash cycle .. . during
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Application 13/021,682
said wash period; (3) “ending said wash cycle . . . when said wash cycle
timer reaches a wash cycle timer condition value;” (4) “initiating an
unload/load period;” and (5) “beginning a new wash cycle during said wash
period.” Appellants’ Specification does not define what is meant by “wash
period,” but describes that the wash period “begins with the first activation
of the pump to follow the wash tank being filled with fluid,” (Spec. | 6), and
in general, ends with (i.e., cancelling) “draining and refilling the wash tank”
(Spec. |36). Appellants argue that “an unload/load period is a period of
time in which a user is given the opportunity to remove some or all wares
from a dishwasher and/or load additional wares into the dishwasher.”
Appeal Br. 12 (emphasis added).
Appellants admitted that Bigott teaches a method of washing wares
where a wash period includes multiple wash cycles. See Appeal Br. 13
(where Appellants’ admitted Bigott discloses at paragraphs 245 and 247
shutting down pumps “once [a] number of wash cycles equals [a] preset
value,” where “[t]he preset value is the allowable or acceptable number of
wash cycles that can be performed before the tank water is replaced.”). In
addition, Bigott teaches the control system can generate an alarm when the
counted number of cycles equals or exceeds the present value, thus
indicating to the operator that the tank water should be changed. Compare
Bigott || 181, 254 with Spec. 19 (describing the unload/load alert as a
visual and/or an audible alert). As the Examiner found, and Appellants
admitted, paragraphs 276 and 277 of Bigott teach loading wares to be
washed into a washing machine prior to starting a wash cycle, and after a
wash cycle is complete, removing the wares from the washing machine.
Ans. 7; Appeal Br. 12; see Bigott at 277 (disclosing that “[u]pon completion
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Application 13/021,682
of the washing cycle ... the operator may open the sliding doors . . . and the
slide rack . . . along the rails . . . out of the enclosure . . . [and] unload the
kitchenware from the rack.”). Because Bigott discloses a wash period that
includes multiple wash cycles, and teaches at the completion of a wash cycle
a user is given the opportunity to remove some or all of the kitchenware
from the dishwasher, we are not persuaded that Bigott does not disclose
unload/load period between two wash cycles.
Appellants argue that the Board overlooked and/or misapprehended
their arguments that Bigott does not disclose deactivating a wash pump
during a wash period as required by claim 21. Request 3^4. Specifically
Appellants contend that “Bigott teaches either deactivating one of several
wash pumps during a wash cycle (Bigott, para. 114) or deactivating all wash
pumps after a wash period (Bigott, para. 251), but “Bigott does not teach
deactivating a wash pump during a wash period.” Id. (emphasis omitted).
As discussed above, Appellants’ Specification does not define what is
meant by “wash period,” but describes the wash period as beginning with
“the first activation of the pump to follow the wash tank being filled with
fluid,” (Spec. 1 6), and in general, ending with (i.e., cancelling) “draining
and refilling the wash tank” (Spec. 136). Appellants admitted that Bigott
teaches an exemplary process that includes a wash period with multiple
wash cycles (see Appeal Br. 13, discussing Bigott || 245, 247). In addition,
Appellants’ admitted that Bigott teaches that the pumps are shut down prior
to draining and replacing the tank water (see id.). Thus, we are not
persuaded that Bigott does not teach deactivating a wash pump during the
wash period, as required by claim 21.
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CONCLUSION
For the above reasons, we decline to modify our Decision. The
Request for Rehearing is granted to the extent we have considered
Appellants’ arguments, but denied in that the Decision will not be modified.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
DENIED
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