Ex Parte Grunert

Patent Trial and Appeal Board

Aug 28, 2017

12639062 (P.T.A.B. Aug. 28, 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.
12/639,062 12/16/2009 Klaus Grunert PTB-6032-2 6188
23117 7590 08/30/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
YUEN, JESSICA JIPING
ART UNIT PAPER NUMBER
3743
NOTIFICATION DATE DELIVERY MODE
08/30/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KLAUS GRUNERT
Appeal 2016-000808
Application 12/639,062
Technology Center 3700
Before: JENNIFER D. BAHR, WILLIAM A. CAPP, and
FREDERICK C. LANEY, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the final
rejection of claims 2—15 and 17—33. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.
Appeal 2016-000808
Application 12/639,062
THE INVENTION
Appellant’s invention relates to a laundry dryer. Spec. 1. Claim 22,
reproduced below, is illustrative of the subject matter on appeal.
22. A laundry dryer, comprising:
a vertically oriented process air channel adapted to flow a
process air stream during a laundry drying operation;
a fluff filter disposed in the vertically oriented process air
channel and adapted to filter out fluff from the process air
stream flowing though the vertically oriented process air
channel of the laundry dryer, the fluff filter having an upstream
filter surface positioned upstream in the vertically oriented
process air channel relative to the process air stream, the
upstream filter surface being inclined at an angle relative to
vertical and adapted to collect fluff; and
a cleaning device adjacent a top portion of the upstream
filter surface and positioned relative to the fluff filter to direct
cleaning liquid into the vertically oriented process air channel
and over the upstream surface of the fluff filter such that the
fluff filter guides the cleaning liquid and fluff to travel from an
upper region of the upstream filter surface to a lower region of
the upstream filter surface along said oblique angle, with the aid
of gravity, to remove fluff from the filter.
The Examiner relies upon the following as evidence in support of the
The following rejections are before us for review:
1. Claims 26, and 30-33 are rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
THE REJECTIONS
rejections:
Robinson
Schuurink
Simmerlein-Erlbacher
US 3,563,474 Feb. 16, 1971
US 3,978,592 Sept. 7, 1976
US 4,938,787 July 3, 1990
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Application 12/639,062
2. Claims 2—6, 8—15, 17—20, 22—24, and 26—33 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Schuurink and Simmerlein-
Erlbacher.
3. Claims 7, 21, and 25 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Schuurink, Simmerlein-Erlbacher, and Robinson.
OPINION
Written Description 35 U.S.C. § 112, first paragraph
Claim 26
Claim 26 depends from claim 22 and adds the limitation: “<2 control
device to automatically direct said cleaning liquid on the upstream filter
surface.” Claims App. Independent claim 22, in turn, contains a limitation
directed to “a cleaning device . . . positioned... to direct cleaning liquid. . .
over the upstream surface of the flufffiller C Id.
The Examiner takes the position that Appellant’s disclosure fails to
disclose a structure that causes the claimed control device “automatically to
direct cleaning fluid” on the upstream cleaning fluid. Final Action 2.
Appellants argue that paragraph 7 of the Specification teaches that a
filter can be cleaned of fluff in a simple manner without manual
intervention. Appeal Br. 9. Appellants further point out that paragraph 7 of
the Specification discloses an “automatically operated cleaning device,
which rinses cleaning liquid over the fluff filter.” Id. Appellant argues that
these two phrases provide adequate written description support for claim 26.
In response, the Examiner states that the original specification only
discusses the control device automatically triggering the cleaning method
and the filter is cleaned by an automatically operated cleaning device.
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Application 12/639,062
Ans. 3. However, the Examiner maintains that the original specification is
unclear how the cleaning fluid is “automatically” directed. Id.
The specification of a patent as filed must contain “a written
description of the invention.” 35 U.S.C. § 112. A specification has an
adequate written description when it “reasonably conveys to those skilled in
the art that the inventor had possession of the claimed subject matter as of
the filing date” of the patent. Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d
1336, 1351 (Fed. Cir. 2010) (en banc). “[T]he test requires an objective
inquiry into the four comers of the specification from the perspective of a
person of ordinary skill in the art.... [to] show that the inventor actually
invented the invention claimed.” Id. However, the claimed invention does
not have to be described in ipsis verbis in the specification to satisfy the
written description requirement. See Union Oil Co. of Cal. v. Atl. Richfield
Co., 208 F.3d 989, 1000 (Fed. Cir. 2000). Rather, the written description
requirement is met when the disclosure “allow[s] one skilled in the art to
visualize or recognize the identity of the subject matter purportedly
described.” Enzo Biochem, Inc. v. Gen Probe Inc., 323 F.3d 956, 968 (Fed.
Cir. 2002).
Appellant’s Specification states, in pertinent part, as follows:
A laundry dryer in accordance with an exemplary
embodiment of the present invention has a filter for the
filtering-out of matter, in particular fluff, from a process air
stream flowing through a process air channel, as well as a
cleaning device for cleaning of the filter. Such a filter can be
cleared of deposited fluff in a simple manner without manual
intervention on the part of the user of the home appliance, by
means of an automatically operated cleaning device, which
rinses cleaning liquid over the fluff filter in such a way that the
adhering fluff is removed from a filter surface of the filter.
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Application 12/639,062
Spec. 17. Paragraph 7 explains that the cleaning process takes place
“without manual intervention” and that the cleaning device is “automatically
operated ... in such a way that the adhering fluff is removed from the
filter.” Id.
In light of the foregoing, we are satisfied that Appellant had
possession of the claimed subject matter as of the filing date and,
accordingly, we do not sustain the Section 112, first paragraph, rejection of
claim 26.
Claims 30—33
Claims 30-33 are dependent claims that depend respectively from
each of the four independent claims. Claims App. They each contain a
limitation directed to supplying cleaning fluid without the fluid being
pressurized. Claims App. The claims are sufficiently similar that we deem
it appropriate to treat them together.
The Examiner maintains that the ‘ without pressure’ limitations
constitute new matter. Final Action 3. In opposition, Appellant directs our
attention to paragraph 21 of the Specification as disclosing unpressurized
pouring. Appeal Br. 10.
In response, the Examiner states:
It must be pointed out that the term used in Paragraph 0021
“unpressurized pouring” does not necessarily mean “without
pressurization” and “without pressurizing” as stated in claims
30-33. The “unpressurized pouring” is done by gravity.
However, the newly added term in claims 30-33 “without
pressurization” and “without pressurizing” could be interpreted
differently. The terms “without pressurization” and “without
pressurizing” can be completed by wicking or capillary effects.
The newly added claims 30-33 appear to have a scope larger
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Application 12/639,062
that the scope of the original specification. This constitutes
new matter.
Ans. 4.
In reply, Appellant argues that the Examiner’s position is directed to a
question of enablement, not a question of adequate written description
support. Reply Br. 3. Appellant further reiterates that “unpressurized
pouring” described in the Specification provides adequate written
description support for claims 30-33.
Appellant’s Specification teaches:
In the method the filter of a laundry dryer is cleaned by
means of a cleaning device, wherein the filter is arranged in the
compartment inclined at an angle and a cleaning liquid is
advantageously directed from above over the obliquely built-in
filter. The directing process can in particular take the form of an
essentially unpressurized pouring.
Spec. 121. We agree with Appellant that paragraph 21 adequately
demonstrates that Appellant had possession of an invention that supplies
cleaning fluid without pressurization. Accordingly, we do not sustain the
Examiner’s Section 112, first paragraph, written description rejection of
claims 30-33.
Unpatentability of Claims 2—6, 8—15, 17—20, 22—24, and 26—33
over Schuurink and Simmerlein-Erlbacker
Claims 15, 18, 22, and 29
Claims 15, 18, 22, and 29 are independent claims. Claims App. Due
to the similarity in the scope of these claims, we deem it appropriate to treat
the rejection of these claims together.
The Examiner finds that Schuurink discloses a laundry dryer, but that
it lacks a cleaning device that directs liquid to clean fluff from a filter as
claimed. Final Action 3—4. The Examiner relies on Simmerlein-Erlbacher
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Application 12/639,062
as disclosing a cleaning device that directs cleaning fluid over the upstream
surface of a “fluff filter.” Id. at 4. The Examiner concludes that it would
have been obvious to a person of ordinary skill in the art at the time the
invention was made to modify Schuurink’s dryer to include a filter cleaning
device as taught by Simmerlein-Erlbacher to achieve the claimed invention.
Id. at 5. According to the Examiner, a person of ordinary skill in the art
would have done this to clean the filter and maintain the physical filter
action after a relative long period of operation of the dryer device. Id.
Appellant argues that Simmerlein-Erlbacher is not a “cleaning device”
within the meaning of the independent claims. Appeal Br. 11. Instead,
Appellant argues that Simmerlein-Erlbacher circulates a fluid for the
purpose of performing filtration. Id. Thus, according to Appellant,
Simmerlein-Erlbacher’s fluid is not a cleaning fluid, but rather is the
filtration media. Id.
In response, the Examiner takes the position that:
Simmerlein-Erlbacher clearly shows the structure of the
cleaning device and its operation same as claimed. The patent
to Simmerlein-Erlbacher also discloses a concept of using a
filter 20 for filtering the dust or other foreign particles out of
the exhaust gas 26 and using filter liquid 36 (i.e. water, as
means 44 is a watering means) to clean the filter 20 same as
applicant's invention.
Ans. 5.
The obviousness statute provides, in pertinent part:
A patent may not be obtained though the invention is not
identically disclosed or described as set forth in section 102, if
the differences between the subject matter sought to be patented
and the prior art are such that the subject matter as a whole
would have been obvious at the time the invention was made to
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Application 12/639,062
a person having ordinary skill in the art to which said subject
matter pertains.
35 U.S.C. § 103(a). In evaluating the “subject matter as a whole” under 35
U.S.C. § 103(a), we are mindful that Appellant’s invention is specifically
directed to a “fluff filter” in connection with a “laundry drying operation.”
See e.g., claim 15, Claims App.
Simmerlein-Erlbacher is directed to filtering air that is discharged
from ventilation systems into rooms and areas in department stores, hotels,
offices and the like. Simmerlein-Erlbacher, col. 1,11. 10—23. It is also used
in motor vehicles to keep the passenger compartment free of “noxious
particles or dust particles.” Id. Simmerlein-Erlbacher operates by
dispersing glycerine or glycol over a foam material substrate that is saturated
with liquid in such a way as to provide physical filtering action with respect
to noxious, dust, and other foreign particles. Id. col. 2,11. 3—68.
Although Simmerlein-Erlbacher does disperse fluid over a filter
substrate, the fluid is provided as an essential component of the filtration
medium. The fluid is dispensed over a foam body to trap noxious, dust, and
other foreign particles out of a gaseous flow transiting the filter. In other
words, the fluid is not provided to “clean” the filter, rather it essentially “is”
the filter.
The obviousness inquiry requires a determination that a skilled artisan
would have been motivated to combine the teachings of the prior art
references to achieve the claimed invention, and that the skilled artisan
would have had a reasonable expectation of success in doing so. Kinetic
Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1360 (Fed. Cir.
2012). “The reasonable expectation of success requirement refers to the
likelihood of success in combining references to meet the limitations of the
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Application 12/639,062
claimed invention.” Intelligent Bio-Systems, Inc. v. Illumina Cambridge
Ltd., 821 F.3d 1359, 1367 (Fed. Cir. 2016). In other words, “one must have
a motivation to combine accompanied by a reasonable expectation of
achieving what is claimed in the patent-at-issue.” Id.
Appellant has invented an improved laundry dryer with an automatic,
self-cleaning filter. The Examiner has combined art directed to a generic,
circa 1976 laundry dryer (Schuurink) and a filter for ventilation systems for
large rooms or vehicles occupied by persons and that circulates glycol over a
foam body to trap noxious, dust, and other foreign particles (Simmerlein-
Erlbacher). Simmerlein-Erlbacher uses fluid (glycol) as part of the filtration
medium and where there is otherwise no teaching that the fluid “cleans” the
filter. The Examiner provides no evidence or persuasive technical reasoning
to support a finding that the material that is filtered from the gaseous flow in
Simmerlein-Erlbacher is laundry dryer “fluff.” In that regard, the Examiner
errs in finding that Simmerlein-Erlbacher is designed to filter such “fluff.”
Final Action 4, Ans. 5. We are not persuaded that a person of ordinary skill
in the art, armed with the teachings of Schuurink and Simmerlein-Erlbacher
would have been led to develop the subject matter that is claimed in
Appellant’s invention.
The Examiner’s findings of fact are not supported by a preponderance
of the evidence, neither is the Examiner’s conclusion of obviousness
supported by sound reasoning. Accordingly, we do not sustain the
Examiner’s unpatentability rejection of claims 15, 18, 22, and 29.
Claims 2 6, 8-14, 17, 19, 20, 23, 24, 26-28, 33-33
Claims 2—6, 8—14, 17, 19, 20, 23, 24, 26—28, 33—33 depend, either
directly or indirectly, from claims 15, 18, 22, and 29 and add various
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Application 12/639,062
dependent limitations. Claims App. The Examiner’s rejection of these
claims suffers from the same infirmity that we have discussed above with
respect to claims 15, 18, 22, and 29. For the same reasons, we do not sustain
the rejection of claims 2—6, 8—14, 17, 19, 20, 23, 24, 26—28, 33—33.
Unpatentability of Claims 7, 21, and 25
over Schuurink, Simmerlein-Erlbacker, and Robinson
Claims 7, 21, and 25 are rejected over Schuurink and Simmerlein-
Erlbacher, as applied to previously discussed claims, in combination with
Robinson. Final Action 5—6. We have reviewed Robinson and the
Examiner’s findings and we determine that Robinson does not cure the
deficiency we have noted above with respect to the rejection of claims 15,
18, 21, and 29. For the same reasons, we do not sustain the unpatentability
rejection of claims 7, 21, and 25.
DECISION
The decision of the Examiner to reject claims 2—15 and 17—33 is
reversed.
REVERSED
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