Ex Parte Jerg et al

Patent Trial and Appeal Board

Dec 15, 2016

13059074 (P.T.A.B. Dec. 15, 2016)

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.
13/059,074 02/15/2011 Helmut Jerg 2008P03222WOUS 6663
46726 7590 12/19/2016
RS»H Home. Ann1ianrp.s Pomoratinn
EXAMINER
100 Bosch Boulevard
NEW BERN, NC 28562
KO, JASON Y
ART UNIT PAPER NUMBER
1711
NOTIFICATION DATE DELIVERY MODE
12/19/2016 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):
MBX-NBN-IntelProp@bshg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HELMUT JERG and KAI PAINTER
Appeal 2015-004438
Application 13/059,074
Technology Center 1700
Before TERRY J. OWENS, N. WHITNEY WILSON, and
AVELYN M. ROSS, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 34—90. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellants claim a dishwasher. Claim 34 is illustrative:
34. A dishwasher, comprising:
a washing container;
an air-guiding channel to generate an air flow; and
a sorption drying system to dry items to be washed,
wherein the sorption drying system has a sorption container
with reversibly dehydratable sorption material, the sorption
container connected to the washing container by the
air-guiding channel;
Appeal 2015-004438
Application 13/059,074
wherein the sorption container accommodates an
amount by weight of the reversibly dehydratable sorption
material of between 0.2 kg and 5 kg to absorb a water
amount of substantially between 150 ml and 400 ml.
The References
Chu
Anderson
Jerg1
US 5,879,764 Mar. 9, 1999
US 2003/0000106 A1 Jan. 2, 2003
WO 2006/061293 A1 June 15, 2006
The Rejections
The claims stand rejected as follows: claims 34—36 under
35 U.S.C. § 103 over Jerg, claims 37—54 and 58—90 under 35 U.S.C. § 103
over Jerg in view of Chu, claims 55—57 under 35 U.S.C. § 103 over Jerg in
view of Chu and Anderson, and claims 34—90 provisionally on the ground of
nonstatutory obviousness-type double patenting over claims 35—96 of
copending application no. 13/055,945, claims 42—102 of copending
application no. 13/056,131, claims 34—90 of copending application
no. 13/058,881, claims 34—93 of copending application no. 13/059,078, over
claims 34—93 of copending application no. 13/059,237 and claims 34—93 of
copending application no. 13/059,236.2
1 Citations herein to Jerg are to US 2007/0295360 A1 (published Dec. 27,
2007) which the Examiner relies upon as an English language equivalent of
WO 2006/061293 A1 (Final Act. 6).
2 Application no. 13/055,945 issued as US 9,034,115 on May 15, 2015 and
application no. 13/056,131 issued as US 8,961,705 on Feb. 24, 2015.
Provisional obviousness-type double patenting rejections over claims 14—33
of application no. 13/054,572 and claims 14, 15, 18, 19, 23—27 and 29—35 of
copending application no. 12/229,346 are moot because those applications
stand abandoned (13/054,572 as of Aug. 11, 2014 and 12/229,346 as of
Oct. 13,2015).
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Application 13/059,074
OPINION
We affirm the rejections under 35 U.S.C. § 103 and reverse the
provisional obviousness-type double patenting rejections.
Rejections under 35 U.S.C. § 103
Jerg discloses a dishwasher (1) comprising a valve (19) for removing
condensate from dish-drying air circulated through a vertical air duct (17) by
a fan (9), a sorption column (10) containing zeolite beads which adsorb and
store moisture remaining in the circulating air, and an electric heating
element (12) which, in a subsequent washing of dishes, heats the zeolite
beads such that they release the adsorbed water into the circulating air,
thereby providing at least part of the heat needed to heat the dishes and/or
the liquor used to rinse them (H 4, 28, 29; Fig. 1). Removing condensate in
the air before the air reaches the sorption column (10) reduces the sorption
column’s size and space requirement (| 29).
Chu discloses polymer-bound water-adsorbent beads which contain at
least about 10 wt% zeolite and have a preferred maximum size of at least
about 0.1 mm, a preferred bulk density of about 0.6 g/ml, more preferably
about 0.65-0.8 g/ml, and a preferred water adsorption capacity of at least
about 3 wt% (col. 3,11. 14-16, 22-25, 31-33, 46-A7; col. 4,11. 10-13). The
beads can be used in any system wherein conventional inorganic-bound
adsorbent beads are used and, when confined, can treat fluid (gas or liquid)
which is actively circulated through them by a pump, fan or heater (col. 4,
11. 47-54).
The Appellants assert that Chu is nonanalogous art (App. Br. 6—8;
Reply Br. 2—3). The test of whether a reference is from an analogous art is
first, whether it is within the field of the inventor’s endeavor, and second, if
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Application 13/059,074
it is not, whether it is reasonably pertinent to the particular problem with
which the inventor was involved. See In re Wood, 599 F.2d 1032, 1036
(CCPA 1979). A reference is reasonably pertinent if, even though it may be
in a different field of endeavor, it is one which, because of the matter with
which it deals, logically would have commended itself to an inventor’s
attention in considering the inventor’s problem. See In re Clay, 966 F.2d
656, 659 (Fed. Cir. 1992). The Appellants assert that the problem with
which they were involved is difficulty in drying a reversibly hydratable
material used in dishwashers whereas the problem to which Chu is directed
is reducing dust released by adsorbent beads between multiple panels in an
insulating glass unit and, therefore, is not reasonably pertinent to the
Appellants’ problem (App. Br. 7).
Jerg is the first named inventor in the present application. The
problem addressed by Jerg and the other inventors in the present application
is lack of optimized sorption/desorption by a confined zeolite in the type of
system used in the Jerg reference (Spec. Tflf 2—6). The Appellants solve that
problem by using in the recited zeolite grain, bed and container
characteristics, desorption heater wattages and zeolite temperatures, and air
flow rates through the zeolite bed. Chu’s disclosure is not limited to the
problem relied upon by the Appellants but, rather, also pertains to use of
confined adsorbent zeolite beads to treat a fluid (gas or liquid) actively
circulated through the confined beads (col. 4,11. 47—54). Hence, Chu
logically would have commended itself to the Appellants’ attention in
considering their problem of determining how to optimize the type of system
disclosed by Jerg wherein confined zeolite is used to adsorb water from
circulating air. Chu, therefore, is analogous art.
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Application 13/059,074
The Appellants assert that Chu does not disclose the Appellants’
recited fill height (claims 3 8—44) or average fill density (claims 46-49)3
(App. Br. 10-11; Reply Br. 4—6).
That assertion is deficient in that the Appellants are attacking Chu
individually when the rejection is based on a combination of Jerg and Chu.
See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Young, 403 F.2d
754, 757-58 (CCPA 1968).
The Appellants assert that Jerg does not disclose the dishwasher
features recited in claims 50—54, 62—69 and 81—83 (App. Br. 10-13; Reply
Br. 5-9).
Jerg discloses a dishwasher comprising a reversibly-hydratable
sorption system which is similar and compactness to that of the Appellants
and functions the same way, i.e., removing condensate from dish-drying air
circulated through a vertical air duct by a fan, storing in confined zeolite
beads (Jerg’s sorption column (10); the Appellants’ sorption container (SB))
moisture remaining in the circulating air, and releasing the adsorbed water
by heating the zeolite with an electric heater to produce heated, moist air
used to heat the rinse liquor and/or dishes in a subsequent wash (Jerg, || 4,
28, 29; Fig. 1; Spec. 5, 13, 15, 17, 40; Fig. 3). Jerg is silent as to the
Appellants’ relied-upon sorption system characteristics. Consequently, one
of ordinary skill in the art, through no more than ordinary creativity, would
have optimized those features through no more than routine
3 The Appellants’ assertion that the Examiner has the burden of establishing
the meaning of the Appellants’ claim term “fill density” is incorrect
(App. Br. 9-10; Reply Br. 4—5). The Appellants are required by
35U.S.C. § 112, second paragraph to provide claims having a clear
meaning.
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experimentation. See KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (in making an obviousness determination one “can take account of
the inferences and creative steps that a person of ordinary skill in the art
would employ”). If one of ordinary skill in the art were unable to do so,
Jerg’s disclosure would be nonenabling under 35 U.S.C. § 112, first
paragraph. Chu, as indicated above, provides zeolite characteristics for use
by one of ordinary skill in the art as a starting point for optimizing the
zeolite-related features of a sorption system such as that of Jerg in which a
circulating gas is treated by confined zeolite beads. Due to the similarities in
structure (compare Jerg’s Fig. 1 and the Appellants’ Fig. 3) and purpose (as
pointed out above), there is reason to believe that optimizing Jerg’s sorption
system would lead to results including those obtained through the
Appellants’ optimization of their sorption system.
Thus, we are not persuaded of reversible error in the rejections under
35 U.S.C. § 103.
Obviousness-type double patenting rejections
The Examiner’s sole rationale for the obviousness-type double
patenting rejections is that “[ajlthough the claims at issue are not identical,
they are not patentably distinct from each other because they are
substantially directed toward the same invention, a subgenus of the
copending application (and thus anticipated), or an obvious variant” (Final
Act. 6).
That bald assertion is insufficient for establishing that the Appellants’
recited claim features would have been prima facie obvious to one of
ordinary skill in the art over those recited in the relied-upon applications’
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claims. Accordingly, we reverse the obviousness-type double patenting
rejections.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 34—36 over Jerg,
claims 37—54 and 58—90 over Jerg in view of Chu and claims 55—57 over
Jerg in view of Chu and Anderson are affirmed. The rejections of
claims 34—90 provisionally on the ground of nonstatutory obviousness-type
double patenting over claims 35—96 of copending application
no. 13/055,945, claims 42—102 of copending application no. 13/056,131,
claims 34—90 of copending application no. 13/058,881, claims 34—93 of
copending application no. 13/059,078, over claims 34—93 of copending
application no. 13/059,237 and claims 34—93 of copending application
no. 13/059,236 are reversed.
It is ordered that the Examiner’s decision 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).
AFFIRMED
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