Ex Parte Padtberg et al

Patent Trial and Appeal Board

Dec 12, 2017

13455456 (P.T.A.B. Dec. 12, 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.
13/455,456 04/25/2012 Klaus Padtberg 006593-02357-USCl 6646
33375 7590 12/14/2017
THOMPSON HINE LLP / ITW
Intellectual Property Group
10050 Innovation Drive
Suite 400
DAYTON, OH 45342-4934
EXAMINER
KO, JASON Y
ART UNIT PAPER NUMBER
1711
NOTIFICATION DATE DELIVERY MODE
12/14/2017 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):
ipdocket @ thompsonhine. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KLAUS PADTBERG and HARALD DISCH
Appeal 2017-002078
Application 13/455,456
Technology Center 1700
Before DONNA M. PRAISS, JULIA HEANEY, and MONTE T. SQUIRE,
Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—5, 7—9, 14, and 15. We have jurisdiction under 35
U.S.C. § 6.
The subject matter of this appeal relates to a commercial warewash
(e.g., dishes, cutlery, pots, and pans) machine with water soiling level
detection. Spec. H 2, 3. According to the Specification, the soil level of the
1 This decision makes reference to the Specification filed Apr. 25, 2012
(“Spec.”), the Final Office Action dated Feb. 19, 2016 (“Final Act.”), the
Appeal Brief filed June 18, 2016 (“App. Br.”), the Examiner’s Answer dated
Sept. 20, 2016 (“Ans.”), and the Reply Brief filed Nov. 10, 2016 (“Reply
Br.”).
Appeal 2017-002078
Application 13/455,456
internally re-circulated water increases as dirty ware enters the machine over
the course of an operational shift. Id. ^ 3. A control is operatively
connected to a sensor that monitors the condition of liquid in a collection
tank and controls the pump or valve to increase flow rate of the final rinse
liquid sprayed to reduce soil level in the collection tank. Id. Tflf 10, 11.
Claim 1 below is illustrative (disputed matter italicized):
1. A conveyor-type warewash machine, comprising:
a conveyor mechanism for moving wares through a
plurality of spray zones including at least one spray zone having
spray nozzles for spraying recirculated liquid from a collection
tank in the spray zone and a downstream final rinse zone with
spray nozzles for spraying final rinse liquid from a fresh water
source;
a sensor arrangement for monitoring condition of liquid of
the collection tank; and
a control operatively connected with the sensor
arrangement and configured to vary flow rate offinal rinse liquid
sprayed from the final rinse nozzles based upon condition of
liquid as indicated by the sensor arrangement.
App. Br. 16 (Claims Appendix). Independent claim 14 includes all of the
limitations of claim 1 and additionally recites (1) for the conveyor
mechanism “wherein at least some final rinse liquid sprayed in the final
rinse zone is captured and makes its way to the collection tank” and (2) for
the control “so as to increase flow rate of final rinse liquid sprayed form the
final rinse nozzles upon the sensor arrangement indicating a soiled condition
liquid in the collection tank.” Id. at 18.
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Application 13/455,456
The Examiner maintains, and Appellants2 appeal, the rejection of
claims 1—5, 7—9, 14, and 15 under 35 U.S.C. § 103(a) as unpatentable over
Doherty3 and Gnadinger.4 Ans. 2; App. Br. 7; Final Act. 4. Appellants
argue the subject matter of claims 1, 2, 4, and 5 as a group and claims 3, 7—
9, 14, and 15 as a group. App. Br. 7—14. In accordance with 37 C.F.R.
§ 41.37(c)(l)(iv), claims 2, 4, and 5 will stand or fall together with claim 1
and claims 3, 7—9, and 15 will stand or fall together with claim 14.
OPINION
The dispositive issue for this appeal is whether the Examiner erred in
determining that a person having ordinary skill in the art would have found it
obvious to apply the concept of controlling a water supply for washing based
on a sensed soil level taught by Doherty and Gandinger to a different
washing phase or area of a dishwasher such as a final rinse for the same
benefit of ensuring that sufficient flow of clean water is provided to perform
the rinse.
After review of the arguments and evidence presented by both
Appellants and the Examiner, we affirm the stated rejection.
Claim 1
It is the Examiner’s position that Doherty and Gnadinger suggest the
subject matter of claims 1, 2, 4, and 5 for the reasons stated on pages 3—5 of
the Final Action.
2 Appellants identify Premark FEG L.L.C. as the real party in interest. App.
Br. 3.
3 Doherty et al., US 2008/0245394 Al, pub. Oct. 9, 2008 (“Doherty”).
4 Gnadinger et al., US 2010/0139698 Al, pub. June 10, 2010
(“Gnadinger”).
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Appeal 2017-002078
Application 13/455,456
In the Appeal Brief, Appellants argue that because Doherty discloses
feeding hot solution from the post-wash reservoir directly into the pre-wash
reservoir by means of a pump if great contamination of the pre-wash
reservoir is detected, it has “nothing to do with, and would not impact flow
to the final-rinse nozzles.” App. Br. 11. Appellants also argue that the
Examiner “over generalizes the teachings of Gnadinger” because
“Gnadinger’s disclosure is limited to liquids that are recirculated from a
sump [], and does not pertain to fresh incoming rinse water that is not
recirculated.” Id. at 12. According to Appellants, “all of the elements of
claim 1 are [not] disclosed by the combination of Doherty and Gnadinger”
because neither reference discloses or suggests “a machine control being
configured to vary the flow rate of final rinse liquid from a fresh water
source that is sprayed from the final rinse nozzles based upon condition of
liquid as indicated by a sensor arrangement.” Id. at 12—13. Appellants also
contend that one of ordinary skill in the art would not modify the Doherty
warewash machine to vary flow rate of the final rinse spray based on the
teachings of Gnadinger because Gnadinger’s teachings do not relate to
modifying a final rinse spray flow rate. Id. at 13. The only reasonable
conclusion based on the combination, Appellants assert, would have been to
modify Doherty “to selectively turn flow ON/OFF to various nozzles in one
of the pre-wash zone 4, wash zone 6 or post-wash zone 8 based upon the
condition of liquid in the corresponding tank 20, 28 or 34 from which liquid
is recirculated in the respective zone.” Id.
The Examiner provides the same response to Appellants’ arguments
pertaining to claims 1 and 14. Ans. 3. The Examiner finds that both
references teach the concept of controlling a water supply for washing based
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Application 13/455,456
on contamination and a sensed soil level. Id. at 2. The Examiner also finds
that in both Doherty and Gnadinger, “the amount of fluid provided to
perform cleaning is increased in response to soiling detected in the tanks
(pre-wash reservoir or sump).” Id. at 2—3. The Examiner determines that it
would have been obvious to apply the teachings of Doherty and Gnadinger
to a different washing phase or area of a dishwasher, such as the final rinse,
because the same benefit of ensuring sufficient flow of clean water to
perform the rinse is ensured. Id. at 3.
In the Reply Brief, Appellants maintain that the combination of the
two references is limited to detecting soil in Doherty’s main wash,
delivering clean water directly to the main wash, and increasing the spray of
the water from Doherty’s main wash reservoir through spray nozzles 30, 32
by turning on additional nozzles. Reply Br. 2—3. Appellants further assert
that “one of ordinary skill in the art would not be motivated to modify the
Doherty machine to change the flow rate of the final rinse liquid sprayed
downstream in the Doherty machine for rinsing.” Id. at 3.
We are not persuaded that the Examiner reversibly erred in finding
that it would have been obvious to apply the teachings of Doherty and
Gnadinger to a final rinse area of a warewash machine. Ans. 3; Final Act. 4.
Appellants’ arguments are not persuasive because Appellants do not dispute
the Examiner’s finding that both Doherty and Gnadinger teach varying the
amount of water or spray to account for heavy soiling detected in a reservoir.
Final Act. 4; Ans. 2. Appellants challenge the Examiner’s findings as to
what a person having ordinary skill in the art would have found obvious
based on these teachings, namely modifying Doherty such that both sensing
the soil condition and increasing spray would be applied to the final rinse
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Application 13/455,456
area. App. Br. 12—13; Reply Br. 2—3. The difficulty with Appellants’
argument is that “the analysis need not seek out precise teachings directed to
the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ.” KSRInt'l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007).
Appellants’ argument that the combined teachings of Doherty and
Gnadinger are limited to modifications to the main wash rather than the final
rinse area of a warewash machine (Reply Br. 2) is unpersuasive because
“[t]he test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference. . . . Rather, the test is what the combined teachings of those
references would have suggested to those of ordinary skill in the art.” In re
Keller, 642 F.2d 413, 425 (CCPA 1981); see also In re Sneed, 710 F.2d
1544, 1550 (Fed. Cir. 1983) (“[I]t is not necessary that the inventions of the
references be physically combinable to render obvious the invention under
review.”); In reNievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the
teachings of references does not involve an ability to combine their specific
structures.”). Rather, “if a technique has been used to improve one device,
and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.” KSR, 550 U.S. at
417.
Similarly, Appellants’ argument that an ordinarily skilled artisan
would not have been motivated to apply the teachings of controlling based
on soil sensing the amount of water delivered to the final rinse (Reply Br. 3)
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Application 13/455,456
is not persuasive because “[a] person of ordinary skill is also a person of
ordinary creativity, not an automaton.” KSR, 550 U.S. at 421. Appellants
do not adequately explain why it would have been outside the level of skill
to the skilled artisan to apply the teachings of the cited prior art references to
the final rinse area of a ware wash machine. In addition, Appellants do not
adequately explain why turning on more nozzles in a particular area as
taught by Gnadinger does not disclose or suggest varying, i.e. increasing, the
flow rate liquid sprayed from the nozzles in that area.
Because the record supports the Examiner’s findings that Doherty and
Gnadinger both teach controlling a water supply for washing based on
contamination and a sensed soil level, the Examiner did not reversibly err in
finding that it would have been obvious to apply these teachings to the final
rinse area of a warewash machine to vary the amount of water delivered in
the final rinse area based on the soil condition sensed to achieve the same
benefits taught by the prior art. Appellants’ response that it would not have
been obvious to so modify the warewash machine of Doherty does not
adequately rebut the Examiner’s findings.
Claim 14
It is the Examiner’s position that Doherty and Gnadinger suggest the
subject matter of claims 3, 7—9, 14, and 15 for the reasons stated on pages 3—
6 of the Final Action.
In the Appeal Brief, Appellants contend that “all of the elements of
claim 14 are [not] disclosed by the combination of Doherty and Gnadinger”
because neither reference discloses or suggests “a machine control being
configured to increase or otherwise vary the flow rate of final rinse liquid
from a fresh water source that is sprayed from the final rinse nozzles based
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Application 13/455,456
upon a soiled condition of liquid as indicated by a sensor arrangement.”
App. Br. 8—9. Appellants make the same or essentially the same arguments
summarized above in response to the Examiner’s rejection of claim 1.
As summarized above, the Examiner responds to Appellants’
arguments by finding that both references teach the concept of controlling a
water supply for washing based on contamination and a sensed soil level.
Ans. 2. The Examiner also finds that in both Doherty and Gnadinger, “the
amount of fluid provided to perform cleaning is increased in response to
soiling detected in the tanks (pre-wash reservoir or sump).” Id. at 2—3. The
Examiner determines that it would have been obvious to apply the teachings
of Doherty and Gnadinger to a different washing phase or area of a
dishwasher, such as the final rinse, because the same benefit of ensuring
sufficient flow of clean water to perform the rinse is ensured. Id. at 3.
In the Reply Brief, as summarized above in connection with claim 1,
Appellants maintain that the combination of the two references is limited to
detecting soil in Doherty’s main wash, delivering clean water directly to the
main wash, and increasing the spray of the water from Doherty’s main wash
reservoir through spray nozzles 30, 32 by turning on additional nozzles.
Reply Br. 2—3. Appellants further assert that “one of ordinary skill in the art
would not be motivated to modify the Doherty machine to change the flow
rate of the final rinse liquid sprayed downstream in the Doherty machine for
rinsing.” Id. at 3.
We are not persuaded by Appellants’ arguments for the same reasons
discussed above in connection with claim 1. We note that claim 1 is broader
than claim 14 because claim 1 recites configuring the control to vary flow
rate of the final rinse liquid while claim 14 further recites that the flow rate
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Application 13/455,456
is varied “so as to increase flow rate of final rinse liquid sprayed from the
final rinse nozzles.” Appellants do not adequately explain why turning on
more nozzles in a particular area as taught by Gnadinger does not disclose or
suggest increasing the flow rate liquid sprayed from the nozzles in that area.
Because the record supports the Examiner’s findings that Doherty and
Gnadinger both teach controlling a water supply for washing based on
contamination and a sensed soil level, the Examiner did not reversibly err in
finding that it would have been obvious to apply these teachings to the final
rinse area of a warewash machine to vary the amount of water delivered in
the final rinse area based on the soil condition sensed to achieve the same
benefits taught by the prior art. Appellants’ response that it would not have
been obvious to so modify the warewash machine of Doherty does not
adequately rebut the Examiner’s findings.
Conclusion
For the foregoing reasons, we affirm the Examiner’s rejection of
claims 1—5, 7—9, 14, and 15 under 35 U.S.C. § 103(a).
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)(v).
ORDER
AFFIRMED
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