Ex Parte Rieger et al

Patent Trial and Appeal Board

Oct 11, 2017

13322927 (P.T.A.B. Oct. 11, 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. 13/322,927 11/29/2011 Roland Rieger 2008P03991WOUS 1085 46726 7590 10/13/2017 RS»H Home. Annlianrp.s Pomoratinn EXAMINER 100 Bosch Boulevard NEW BERN, NC 28562 SHAHINIAN, LEVON J ART UNIT PAPER NUMBER 1711 NOTIFICATION DATE DELIVERY MODE 10/13/2017 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): 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 ROLAND RIEGER and MICHAEL GEORG ROSENBAUER Appeal 2016-008310 Application 13/322,9271 Technology Center 1700 Before TERRY J. OWENS, JEFFREY R. SNAY, and SHELDON M. McGEE, Administrative Patent Judges. McGEE, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner’s rejections under 35 U.S.C. § 103(a) of claims 20-28, 31-45, and 49-51. We have jurisdiction under 35 U.S.C. § 6. We AFFIRM. 1 Appellants identify the real party in interest as BSH Hausgerate GmbH. App. Br. 3. Appeal 2016-008310 Application 13/322,927 BACKGROUND The subject matter on appeal is directed to a programmable dishwasher having a drying cycle with increased efficiency. Spec. 1, 10, 11. During the drying cycle, a reservoir, which is in contact with the wash cavity, is filled with cold water, thereby cooling at least part of the wash cavity interior, thereby enhancing drying via condensation of the hot rinse water on the cooled wash cavity interior. Id. at || 21, 23. Sole independent claim 20 is illustrative and appears below with the key limitation italicized: 20. A dishwasher, comprising: a wash cavity for accommodating wash items; a water inlet device having a hot water inlet configured for intake of hot water from an external hot water supply, and a cold water inlet configured for intake of cold water from an external cold water supply; at least one reservoir which is in communication with the water inlet device for allowing water to be filled by the water inlet device and which is in heat-conducting contact with the wash cavity; and a program control device in which at least one wash program for controlling at least one wash cycle for cleaning wash items is stored, said wash program providing at least one program step configured to wash items using hot water from the hot water supply and at least one drying step for drying wash items, wherein the program control device is configured to control filling the reservoir during the drying step of the at least one wash program with only cold water from the cold water supply. App. Br. 11. REFERENCES The Examiner relies on the following references as evidence of unpatentability: 2 Appeal 2016-008310 Application 13/322,927 Hardy Wiemer Heiligenmann Verma Classen2 US 4,070,204 US 2002/0040941 A1 US 2007/0251549 A1 US 2010/0012159 A1 DE 102005061805 A1 Jan. 24, 1978 Apr. 11,2002 Nov. 1,2007 Jan. 21,2010 June 28, 2007 REJECTIONS ON APPEAL I. Claims 20-28, 31, 32, 35, 39-45, and 49-51 are rejected under 35 U.S.C. § 103(a) as unpatentable over Heiligenmann in view of Wiemer and Hardy (Final Act. 5-14); II. Claims 33 and 34 are rejected under 35 U.S.C. § 103(a) as unpatentable over Heiligenmann in view of Wiemer, Hardy, and Verma (Final Act. 14-15); and III. Claims 36-38 are rejected under 35 U.S.C. § 103(a) as unpatentable over Heiligenmann in view of Wiemer, Hardy, and Classen (Final Act. 15-16). STATEMENT OF THE CASE The Examiner finds that Heiligenmann teaches all of the elements recited in claim 20, except for 1) the water inlet device having a hot water inlet and a cold water inlet, and 2) that only cold water is used to fill the reservoir during the drying step. Final Act. 9. To remedy deficiency 1), the Examiner finds that Wiemer teaches the recited water inlet device used on a dishwasher. Id. at 10. To address deficiency 2), the Examiner finds that 2 The Examiner relies on an English language Abstract of Classen. Final Act. 16. 3 Appeal 2016-008310 Application 13/322,927 Hardy teaches using only cold water during a portion of a dishwasher’s cycle. Id. at 13. Based on these findings, the Examiner concludes that it would have been obvious to the skilled artisan to modify the dishwasher of Heiligenmann to have a hot and a cold water inlet as taught by Wiemer, and to use only cold water during a portion of the cycle in order to predictably achieve excellent dishwashing results with a minimum use of energy. Id. OPINION Appellants present separate arguments only for claims 20 and 25. App. Br. 5-9; Reply Br. 1-5. Therefore, we need only address these claims. All other claims will stand or fall accordingly. 37 C.F.R. § 41.37(c)(l)(iv). Claim 20 Appellants argue that Hardy does not teach a reservoir, but rather teaches a wash cavity. App. Br. 5-6; Reply Br. 1-3. Appellants contend further that Hardy’s order of steps is critical and that the skilled artisan would not have been motivated to modify the dishwasher of Heiligenmann with the teachings of Hardy. App. Br. 6-8; Reply Br. 3^4. We are not persuaded that Appellants have identified reversible error. In re Jung, 637 F.3d 1356, 1365-66 (Fed. Cir. 2011) (explaining the Board’s long-held practice of requiring Appellants to identify the alleged error in the Examiner’s rejection). Therefore, we sustain the rejection of this claim based on the findings of fact, conclusions of law, and rebuttals to arguments expressed by the Examiner in the Final Action and in the Answer. We add the following comments for emphasis. The Examiner correctly observes (Ans. 14) that Appellants have primarily argued against the rejection by attacking the references separately. Indeed, Appellants’ main focus on the disclosure of Hardy (App. Br. 5-8; 4 Appeal 2016-008310 Application 13/322,927 Reply Br. 1^4) does not address the full scope of the rejection which was made based on a combination of three references. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references. . . . [The reference] must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Such limited discussion fails to address the full scope of the rejection, much less reveal error in the Examiner’s obviousness conclusion. Moreover, we observe that it is of no moment whether Hardy teaches a reservoir as claimed (App. Br. 5-6; Reply Br. 1) because the Examiner relies on the disclosure of Heiligenmann for such disclosure. Final Act. 6; Ans. 3. Appellants briefly address the combination of references relied on in the rejection of claim 20. App. Br. 8. Specifically, Appellants urge that “there is no disclosure [in Hardy] that would have motivated one of ordinary skill to fill the alleged reservoir from Heiligenmann (as modified) with only cold water during a drying step.” App. Br. 8. See also Reply Br. 2-3. This argument is unpersuasive of reversible error because it only addresses the teachings of one reference, Hardy, with respect to the combination of references. Furthermore, this argument fails to address with any specificity the Examiner’s proffered motivation for combining the references, i.e., energy savings. Here, the Examiner relies on the disclosure of Hardy for the use of only cold water to minimize energy use during a portion of a dishwasher cycle. Final Act. 13, citing Hardy 3:33-37. Energy savings is likewise a goal of Heiligenmann (| 32) and Wiemer flflf 6, 8). The Examiner reasons, and we agree, that it would have been obvious to the skilled artisan to modify Heiligenmann’s dishwasher program control device to use only 5 Appeal 2016-008310 Application 13/322,927 cold water to fill its heat exchanger / reservoir 9 to form the cold condensation surface which aids in the drying process, for the purpose of predictably minimizing energy use. Final Act. 13; Ans. 16. “The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious,” the answer depends on “whether the improvement is more than the predictable use of prior art elements according to their established functions.” Id. at 417. “If a person of ordinary skill can implement a predictable variation [of a known work], § 103 likely bars its patentability.” Id. It follows that we sustain the rejection of independent claim 20. The rejection of dependent claims 21-24, 27, 28, 31-45, and 49-51, not separately argued, are sustained for the same reasons. 37 C.F.R § 41.37(c)(l)(iv). Claim 25 Appellants contend that the cited references do not disclose the limitation requiring the filling of the reservoir “during the drying step of a previous wash cycle.” App. Br. 8-9; Reply Br. 4-5. Specifically, Appellants contend that Heiligenmann does not disclose filling the reservoir during the drying step, and further fails to disclose when that water is used for washing wash items. Id. We are not persuaded that Appellants have identified reversible error. In re Jung, 637 F.3d at 1365-66. We, therefore, sustain the rejection of this claim based on the findings of fact, conclusions of law, and rebuttals to 6 Appeal 2016-008310 Application 13/322,927 arguments well-expressed by the Examiner in the Final Action and in the Answer. We add the following comments for emphasis. Appellants’ arguments focus on what the references themselves fail to teach. App. Br. 8-9; Reply Br. 4-5. The obviousness analysis, however, “need not seek out precise teachings directed to the specific subject matter” of a claim, but rather “can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR, 550 U.S. at 418. “A person of ordinary skill is also a person of ordinary creativity, not an automaton.” Id. at 421. Moreover, we decline to read Heiligenmann’s disclosure as narrowly as Appellants’ urge. As correctly explained by the Examiner (Ans. 17), Heiligenmann discloses (| 36) that the reservoir “can be filled with raw water so that a cold condensation surface is formed at the wall of the washing container 1 during the partial program step ‘dry’ in order to enhance the drying performance.” Based on this teaching, the skilled artisan would have at least inferred that, because the cold condensation surface is formed by filling the reservoir with raw water, and because such surface is formed during the drying step, then the reservoir can be filled during the drying step. Additionally, Appellants’ argument regarding the requirements for forming a cold condensation surface (Reply Br. 4-5) fail to persuade us of reversible error for several reasons. First, Appellants offer no evidence of record to support their contention but rather rely on mere attorney argument. “Attorney’s argument in a brief cannot take the place of evidence.” In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Even if we were to accept Appellants’ argument at face value, it would fail to persuade us because Appellants admit (App. Br. 7) that the immediately preceding step in 7 Appeal 2016-008310 Application 13/322,927 Hardy’s wash cycle is to add water and then heat the wash chamber to 135-F. Based on this teaching, the skilled artisan, considering the references as a whole, would reasonably expect the wash cavity to be a “hot, humid” environment sufficient to generate condensation. It follows that we sustain the Examiner’s rejection of claim 25 and its dependent claim 26. SUMMARY The Examiner’s final decision to reject claims 20-28, 31-45, and 49- 51 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)(1). AFFIRMED 8