Ex Parte Rosenbauer

Patent Trial and Appeal BoardMay 27, 2016

12717970 (P.T.A.B. May. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121717,970 03/05/2010 46726 7590 06/01/2016 BSH Home Appliances Corporation 100 Bosch Boulevard NEW BERN, NC 28562 FIRST NAMED INVENTOR Michael Rosenbauer 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 2009P00185US 3922 EXAMINER BUCCI, THOMAS ART UNIT PAPER NUMBER 1711 NOTIFICATION DATE DELIVERY MODE 06/01/2016 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 MICHAEL ROSENBAUER1 Appeal2014-009207 Application 12/717,970 Technology Center 1700 Before CHUNG K. PAK, JEFFREY T. SMITH, and WESLEY B. DERRICK, Administrative Patent Judges. DERRICK, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. Â§ 134(a) from the Examiner's maintained final rejection of claims 1, 2, 5-19, 21, and 22. We have jurisdiction pursuant to 35 U.S.C. Â§ 6(b). We AFFIRM. 1 According to Appellant, the Real Party in Interest is BSH Bosch und Siemens Hausgerate GmbH. App. Br. 3. Appeal2014-009207 Application 12/717,970 CLAIMED SUBJECT MATTER Appellant's claimed invention is directed to a dishwasher having a fresh water reservoir that can store a volume of water sufficient to cover the fresh water requirements of a complete wash cycle. Spec. Abstract. Claim 1 is illustrative: 1. A dishwasher, comprising: a control device to call at least one wash program for controlling a wash cycle for washing items to be washed; a fresh water inlet device to receive fresh water from an external cold water supply; a fresh water reservoir to be filled with fresh water by means of the fresh water inlet device, wherein a first predetermined volume of the fresh water is stored in the fresh water reservoir that covers a fresh water requirement of a complete wash cycle in the at least one wash program. REJECTION The Examiner maintains the follo\x1ing grounds of rejection under 35 U.S.C. Â§103(a): Claims 1, 2, 5-14, 16, 18, 19, 21, and 22 stand rejected over Stickel et al. (GB 2139083 A, published November 7, 1984). Claim 15 stands rejected over Stickel and Peterson et al. (US 6,959,598 B2, issued November 1, 2005). Claim 17 stands rejected over Stickel and Brady et al. (US 4,733,798, issued March 29, 1988). DISCUSSION Having reviewed the Examiner's obviousness rejections in light of arguments advanced by Appellant in the Appeal Brief, we are not persuaded 2 Appeal2014-009207 Application 12/717,970 that the Examiner has erred reversibly in concluding that claims 1, 2, 5-19, 21, and 22 are unpatentable for obviousness. We add the following for emphasis. 2 Rejection of claims 1, 2, 5-14, 16, 18, 19, 21, and 22 as obvious over Stickel Appellant argues claims 1, 2, 5-14, 16, 18, 19, 21, and 22 as a group on the basis of claim 1, to which we limit our discussion. Br. 5-10. To prevail in an appeal to this Board, Appellant must adequately explain or identify reversible error in the Examiner's rejection. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2012); see also In re Jung, 637 F.3d 1356, 1365- 66 (Fed. Cir. 2011) (explaining that even if the Examiner had failed to make a prima facie case, it has long been the Board's practice to require an Appellant to identify the alleged error in the examiner's rejection). The burden of showing an error is harmful also falls on Appellant. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("the burden of showing that an error is harmful normally falls upon the party attacking the agency;s determination."); In re Chapman, 595 F.3d 1330, 1338 (Fed. Cir. 2010). The Examiner finds that Stickel discloses a dishwashing machine that comprises a rinsing container 13 connected to a water reserve container 2 (reservoir) into which a fresh water feed stub pipe 5 (inlet) opens. Ans. 2; Stickel 3, 11. 5-15. The Examiner finds that although Stickel does not explicitly disclose that the dishwashing machine includes a control device 2 We refer to the Final Office Action (mailed August 16, 2013), the Appeal Brief (filed February 11, 2014), and the Examiner's Answer (mailed June 19, 2014). 3 Reference numbers used in the discussion of Stickel' s disclosures refer to Figure 1 of Stickel. 3 Appeal2014-009207 Application 12/717,970 that controls a wash cycle by executing (calling) one or more wash programs, such a control device is implicit in Stickel' s disclosure of "performance of a program" by the dishwasher. Ans. 3; Stickel 3, 11. 35-37. The Examiner finds that Stickel discloses that the dishwasher may employ a program that includes preliminary rinsing, cleaning, intermediate rinsing, clear rinsing, and drying stages. Ans. 2; Stickel Abstract. The Examiner acknowledges that Stickel does not explicitly disclose that the volume of fresh water stored in the water reserve container 2 (reservoir) is sufficient to meet the water requirements of a complete wash cycle of at least one wash program. Ans. 2. However, the Examiner determines that it would have been a matter of obvious design choice for one of ordinary skill in the art at the time of the invention to make the reserve container disclosed in Stickel large enough to hold sufficient water to meet the requirements of a complete wash cycle. Ans. 3--4. Appellant argues that the reserve container disclosed in Stickel must be refilled during a complete washing program, contrary to claim 1 's requirement for a water reservoir that stores a volume of water sufficient to cover a fresh water requirement of a complete wash cycle. Br. 10. However, we find Appellant's argument unpersuasive of reversible error for at least the following reasons. Stickel discloses that the reserve container in the dishwasher holds enough water for two operations or sub-cycles of a programmed washing cycle. Stickel 2, 11. 66-78. Stickel further discloses that the dishwasher may perform a program that includes preliminary rinsing, cleaning, intermediate rinsing, and clear rinsing operations, and discloses that during such a wash program the reserve container is filled with water after the preliminary 4 Appeal2014-009207 Application 12/717,970 rinsing and cleaning operations to provide sufficient water for the intermediate rinsing and clear rinsing operations. Stickel Abstract; 1, 11. 85- 111. One of ordinary skill in the art at the time of the invention reasonably would have understood from these disclosures that a certain pre-determined amount of water is needed for each operation of a wash program. In addition, one of ordinary skill in the art would have had sufficient skill to design an appropriately-sized water reservoir that could provide adequate water for each operation of a complete wash program. Accordingly, we agree with the Examiner that one of ordinary skill in the art reasonably would have been led to simplify the dishwasher disclosed in Stickel to dispense with refilling the reserve container during performance of a complete program, and could have done so using no more than ordinary skill and creativity by designing a reserve container large enough to hold sufficient water for a complete wash4 program, as recited in claim 1. In any event, the Specification does not define a "complete wash cycle" with particularity, indicating only that an entire wash cycle, not a complete wash cycle, is "all the wash sub-cycles of a dishwashing program." Spec. i-f 64. Accordingly, under the broadest reasonable interpretation, the term "complete wash cycle" as recited in claim 1 encompasses a wash cycle including only a single wash operation, such as a sub-cycle of the wash program described in Stickel. In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (During prosecution of patent applications, "the 4 For the purpose of this analysis, we interpret the term "complete wash cycle" in claim 1 as "an entire wash cycle" that includes all the wash sub- cycles of a dishwashing machine. 5 Appeal2014-009207 Application 12/717,970 PTO must give claims their broadest reasonable construction consistent with the specification .... Therefore, we look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation."). Therefore, Appellant's argument is unpersuasive of reversible error. Appellant also argues that Stickel does not teach, disclose, or suggest that a complete wash program may reasonably include only preliminary rinse and cleaning program sub-cycles, and Stickel does not provide any motivation to restrict a complete wash program to these sub-cycles. Appellant further argues that doing so would frustrate the purpose of Stickel by restricting the overall cleaning effect of the dishwasher. Br. 5-10. However, as discussed above, one of ordinary skill in the art reasonably would have been led at the time of the invention to simplify the dishwasher disclosed in Stickel to have a reserve container large enough to hold sufficient water for a complete wash program, as recited in claim 1, to avoid refilling the reserve container during a wash program. In addition, as also discussed above, under a broadest reasonable interpretation, the "complete wash cycle" recited in claim 1 does not exclude a wash program having only a single wash operation such as one of Stickel' s sub-cycles. Appellant's argument as to the modification frustrating the purpose of Stickel is unpersuasive of reversible error because there is no evidence that a single wash operation would not be sufficient for some circumstances. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) ("Attorney's argument ... cannot take the place of evidence."). Having failed to establish a single wash operation would not be sufficient, it follows that Appellant thus fails to establish how such a change renders the prior art unsatisfactory for its 6 Appeal2014-009207 Application 12/717,970 intended purpose. Appellant's arguments are therefore unpersuasive of error in the Examiner's determination that one of ordinary skill in the art reasonably would have been led to the dishwasher recited in claim 1. Under these circumstances, it cannot be said that Appellant has identified reversible error in the Examiner's determination that the preponderance of the evidence weighs in favor of obviousness of the subject matter of claims 1, 2, 5-14, 16, 18, 19, 21, and 22 within the meaning of35 U.S.C. Â§ 103(a). In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Therefore, we sustain the rejection of these claims underÂ§ 103(a). Rejection of claim 15 as obvious over Stickel and Peterson Appellant relies on contentions that the Examiner has erred in rejecting the base claim, independent claim 1, from which claim 15 depends, and contends that Peterson fails to remedy the deficiencies of Stickel. Br. 11. Because we are unpersuaded of reversible error in the Examiner's rejection of claim 1, Appellant's position as to this ground of rejection is without merit. Accordingly, we sustain the rejection of claims 15 under 35 U.S.C. Â§ 103(a). Rejection of claim 17 as obvious over Stickel and Brady Appellant relies on contentions that the Examiner has erred in rejecting the base claim, independent claim 1, from which claim 1 7 depends, and contends that Brady fails to remedy the deficiencies of Stickel. Br. 11. Because we are unpersuaded of reversible error in the Examiner's rejection of claim 1, Appellant's position as to this ground of rejection is without merit. Accordingly, we sustain the rejection of claims 17 under 35 U.S.C. Â§ 103(a). 7 Appeal2014-009207 Application 12/717,970 DECISION The Examiner's rejection of claims 1, 2, 5-19, 21, and 22 under 3 5 U.S.C. Â§ 103(a) is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l). AFFIRMED 8