Ex Parte Klicpera

Patent Trial and Appeal Board

Jun 23, 2017

12986341 (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.
70916.01 6155
EXAMINER
CRANE, LAUREN ASHLEY
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
12/986,341 01/08/2011
22509 7590 06/23/2017
MICHAEL E. KLICPERA
PO BOX 573
LA JOLLA, CA 92038-0573
Michael Klicpera
06/23/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL KLICPERA
Appeal 2015-004004
Application 12/986,341
Technology Center 3700
Before ANNETTE R. REIMERS, THOMAS F. SMEGAL, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2015-004004
Application 12/986,341
STATEMENT OF THE CASE
Appellant Michael Klicpera appeals under 35 U.S.C. § 134(a) from
the Examiner’s decision, as set forth in the Final Office Action dated March
24, 2014 (“Final Act.”), rejecting claims 1—3, 5—15, and 17—24.1 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE CLAIMED SUBJECT MATTER
The claims are directed to a water parameter apparatus for displaying,
monitoring and/or controlling kitchen, bathroom, bath or other sink faucets.
Spec., Title.
On November 29, 2013, Appellants filed certain amended claims.
The Final Office Action, dated March 24, 2104, addressed these November
29, 2013 claims. On June 24, 2014, after the Final Action, Appellants filed
another set of amended claims, which were not entered by the Examiner.
Advisory Action 2, dated June 26, 2014 (“Adv. Act.”). This proceeding is
an appeal of the rejections in the Final Action, which only address the
November 29, 2013 claims, not the June 24, 2014 claims.2
In the November 29, 2013 claims, claims 1 and 13 are the independent
claims. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1 Claims 4 and 16 are cancelled. Appellant’s Amended Claims, dated
November 29, 2013.
2 On August 27, 2014, Appellant filed a Supplemental Appeal Brief that
contained the June 24, 2014 claims, not the November 29, 2013 claims on
appeal. Many of Appellant’s arguments also address the June 24, 2014
claims, which are not the claims on appeal.
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Application 12/986,341
1. A kitchen, bathroom, bath or other sink faucet water
parameter display apparatus, said water parameter display
apparatus, comprising:
a union mechanism for connecting a water parameter
display means to a kitchen, bathroom, bath or other sink faucet
head, said union mechanism extending from said kitchen,
bathroom bath or other sink body to said display means;
said display means having electrical circuitry with a power
source, a microprocessor, said microprocessor in electrical
communication with said electrical circuitry;
said microprocessor having programming instructions to
displaying display two or more different background lights or
parameter colors on said display means to provide visual cues
concerning water flow rate, timing parameters, and/or
temperature values;
said display means including electrical circuitry, a
microprocessor, and a power supply, said display means having
the capability to visually display time, flow rate and temperature
water parameters;
at least one sensor that is in close proximity to said water
supply, and said senor in electrical communication with said
electrical circuitry, and
wherein said timing parameter displays the cumulative
time taken from the time that water flow was initiated.
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
REFERENCES
Wilson
Moineau
Cogger
US 4,797,820
US 4,867,189
US 4,945,943
US 6,016,836
Jan. 10, 1989
Sept. 19, 1989
Aug. 7, 1990
Jan. 25, 2000
Aug. 9, 2005
Feb. 14, 2006
Feb. 1,2007
Brunkhardt
Anger US 6,925,661 B1
US 6,997,064 B2
US 2007/0022529 A1
Bird
Thome ’529
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Application 12/986,341
REJECTIONS
The Examiner made the following rejections:
1. Claim 24 stands rejected under 35U.S.C. § 112, second paragraph,
as being indefinite.
2. Claims 1, 2, and 5—10 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Cogger, Brunkhardt, Bird, and Thome ’529.
3. Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cogger, Brunkhardt, Bird, Thome ’529, and Wilson.
4. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cogger, Brunkhardt, Bird, Thome ’529, and Moineau.
5. Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cogger, Brunkhardt, Bird, Thome ’529, and Anger.
6. Claims 13, 14, 17—22, and 24 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Anger, Bird, Thome ’529, and
Brunkhardt.3
7. Claim 15 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Anger, Bird, Thome ’529, Brunkhardt, and Wilson.
8. Claim 23 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Anger, Bird, and Moineau.
Appellant seeks our review of these rejections.
3 The Examiner does not include claim 22 in the heading of the
rejection. However, the limitations of claim 22 are addressed in the body of
the rejection. See Final Act. 8; see also Brunkhardt 3:19-22 (“As the bather
approaches the end of this ‘unrestricted’ interval, an alarm 32 will sound
altering (‘alert 20 interval’) the bather that the ‘unrestricted’ flow of water is
about to end.”) (emphasis added).
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Application 12/986,341
DISCUSSION
The Rejection of Claim 24 as Being Indefinite
Because Appellant does not address the rejection that claim 24 is
indefinite, the rejection is summarily affirmed.
The Rejections of Claims 1—3, 5—15, and 17—24
Appellant argues claims 1—3, 5—15, and 17—24 as a group. Appeal Br.
6—14. We select claim 1 as the representative claim, and claims 2, 3, 5—15,
and 17—24 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
Appellant contends that the Examiner’s prior art rejections are
erroneous for several reasons. First, Appellant argues that Brunkhardt does
not disclose “any timing parameter (nor any operational step, set-up
procedure or interval selection), let alone a cumulative time parameter from
the time water flow initiated.” Appeal Br. 6; see also id. at 10—11. Contrary
to Appellant’s argument, the Examiner correctly finds that Brunkhardt
discloses a “timing parameter” and a “cumulative time parameter.” The
cumulative time is taken from the time a shower was initiated. Ans. 10
(citing Brunkhardt 4:35—40); Final Act. 3 (citing Brunkhardt 2:60-65, 3:10—
15, 4:35—40). According to Brunkhardt, the water control system has a
central processing unit 34 that includes timers. Brunkhardt 2:21—24. The
timers are set so that bathers enjoy full or “unrestricted” water flow for an
initial period of time, and a subsequent “restricted” water flow if the bather
does not finish within the “unrestricted” time. Brunkhardt 1:42-45.
Appellant does not identify error by the Examiner.
Second, Appellant argues that Brunkhardt does not disclose the
cumulative time of water flow on a display. Appeal Br. 10—11. Contrary to
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Application 12/986,341
Appellant’s argument, the Examiner correctly finds that Brunkhardt’s
“shower includes a display. Electrical circuit includes a timing circuit which
exhibits a timing parameter on the display (column 2 lines 60-65). The
cumulative time is taken from the time a shower was initiated (column 4
lines 35—40).” Ans. 12. According to Brunkhardt, the readout display 36 on
the front of panel is used to display three time intervals: for example,
“unrestricted” interval 12 minutes, “alert” interval 1.5 minutes (90 seconds);
and, “reset” interval 7 minutes. Brunkhardt 3:38—62. Appellant does not
identify error by the Examiner.
Third, Appellant argues that Brunkhardt and the other cited prior art
do not disclose “simultaneous exhibition of time, temperature and water
flow.” AppealBr.il. The un-entered June 24, 2014 claims recite a “time
based” limitation, but the pending November 29, 2013 claims do not.
Appellant does not identify error by the Examiner.
Fourth, Appellant argues that Bird is a “volume-based” apparatus, not
a “time-based” apparatus as recited in claim 1, and Bird’s “fluid metering
and control device which clearly teaches away from using time-based
apparatuses.” Appeal Br. 6—7; see also id. at 10-11. Appellant is
improperly attacking the teachings of Brunkhardt and Bird individually. In
re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references.”).
Contrary to Appellant’s argument, the Examiner relies on Brunkhardt, not
Bird, to show a metering device that shuts off after a specific period of time
has expired. Final Act. 3—4, Ans. 10. The Examiner relied on Bird to show
union mechanism 15, housing 12, water supply line 14, display 20,
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Application 12/986,341
temperature and flow sensor, power source, microprocessor 64 that is
programmed to show temperature 28, water flow 24, and the current time 26.
Final Act. 4, Ans. 10. Appellant offers no technical reason or justification
that these elements cannot be used in both volume-based and time-based
devices. We also note that the June 24, 2014 claims recite a “time based”
limitation, but the pending November 29, 2013 claims do not. Appellant’s
argument does not identify Examiner error.
Fifth, Appellant argues that Bird’s “volume-based” device teaches
away from “time-based” devices. Appeal Br. 6—7, 10-11. However, “[t]he
prior art’s mere disclosure of more than one alternative does not constitute a
teaching away from any of these alternatives because such disclosure does
not criticize, discredit, or otherwise discourage the solution claimed.” In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Bird’s preference for
alternative volume-based devices does not teach away from time-based
devices. DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d
1314, 1327 (Fed. Cir. 2009). Appellant’s argument is not persuasive.
Sixth, Appellant argues that, in US application 11/877,860, an
Examiner stated that Bird fails to show a water control means that turns off
the water supply. Appeal Br. 7. The claims and rejections in application
11/877,860 are different from the claims and rejections in US application
12/986,341 at issue in this appeal, and, thus, do not pertain to this appeal.
Appellant does not identify error by the Examiner.
Seventh, Appellant argues that the rejections’ reliance on Thome ’529
(US 2007/0022529) is improper because the pending claims in the appeal are
entitled to the filing date of Appellant’s priority application, which predates
Thome ’529, and, thus, Thome ’529 is not prior art. Appellant asserts that
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Application 12/986,341
the Examiner did not consider a 37 CFR 1.131 Affidavit (“Rule 131
Affidavit”) entered in one of Appellant’s priority applications4 that contains
evidence that Appellant’s priority application predates Thome ’529. Appeal
Br. 9—10, 12—13. As a preliminary matter, the Rule 131 Affidavit was not
appended to the Appeal Brief, and it was not entered into the file. In
addition, to predate Thome ’529, Appellant must present evidence that,
among other things, each of the limitations in the claims pending in this
appeal are disclosed in and supported by Appellant’s priority application,
and, thus, entitled to the filing date of the priority application. We
understand that the Rule 131 Affidavit addresses different claims and claim
limitations in another application, and does not address the claims pending
in this appeal. See, e.g., Appeal Br. 13 (addressing limitations raised by the
Rule 131 Affidavit). We also understand that the Rule 131 Affidavit
addresses different prior art. It addresses US Publication 2008/0060707 to
Thome (published March 13, 2006), not US Application 2007/0022529 A1
(published February 1, 2007), which was cited in the rejections at issue in
this appeal. Based on the record before us, we do not address whether the
pending claims are entitled to the filing date of Appellant’s priority
application, which allegedly predates Thome ’529.
Eighth, Appellant asserts that the Examiner’s refusal to enter the
amendments to claims 1, 3, 6, 8, 11, and 15—18, filed on June 24, 2014, is
erroneous. See Appeal Br. 11—12; Ans. 12; Adv. Act. 2. Refusal of an
4 It is unclear in which application the Rule 131 Affidavit was filed.
Page 9 of the Appeal Brief references application 12/539,150, page 12
references application 11/877,860, and page 13 references both applications.
If it is tme that the Examiner first cited Thome ’529 in the Final
Action, Appellant should be permitted to file an appropriate Rule 131
Affidavit to predate Thome ’529.
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Application 12/986,341
Examiner to enter an amendment, in whole or in part, is a petitionable
matter, not an appealable matter, and is not within the jurisdiction of the
Board. See Manual of Patent Examining Procedure (MPEP)
§§ 1002.02(c)(3) and 1201.
For the reasons above, the rejection of claim 1 is sustained. Claims 2—
3, 5—15, and 17—24 fall with claim 1.
DECISION
For the above reasons, the Examiner’s rejections of claims 1—3, 5—15,
and 17—24 under 35 U.S.C. §§ 103(a) and claim 24 under 35 U.S.C. § 112,
second paragraph, are 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)(l)(iv).
AFFIRMED
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