Ex Parte Rosenbauer

Patent Trial and Appeal Board

Nov 22, 2016

12863997 (P.T.A.B. Nov. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/863,997 07/22/2010
46726 7590 11/25/2016
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.
2008P00138WOUS 1559
EXAMINER
COLEMAN, RY AN L
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
11/25/2016 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 ROSENBAUER
Appeal 2015-002693
Application 12/863 ,997
Technology Center 1700
Before N. WHITNEY WILSON, WESLEY B. DERRICK, and
JEFFREY R. SNAY, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellant 1 appeals under 35 U.S.C. § 134(a) from the Examiner's
June 26, 2014 decision finally rejecting claims 33-39 and 41-54 ("Final
Act"). We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We affirm.
1 In the Appeal Brief, Appellant identifies the Real Party in Interest as BSH
Bosch und Siemens Hausgerate GmbH. (Appeal Br. 3). The assignment
records at the U.S. Patent and Trademark suggest that the current owner of
the application is BSH Hausgerate GmbH (Reel/Frame 036000/0848).
Appeal2015-002693
Application 12/863,997
CLAIMED SUBJECT MATTER
According to Appellant, modem dishwashers suffer from problems in
that low temperature dishwasher detergents cannot be effectively used
because the dishwashers heat the washing liquor to temperatures higher than
necessary for use with low-temperature dishwashing detergents (Spec. 5).
Appellant aims to address this problem by providing a dishwasher which
provides at least two washing programs and which controls the washing and
rinsing temperatures in specific ways. Details of the claimed invention are
set forth in independent claims 33, 47, and 49 which are reproduced below
from the Claims Appendix of the Appeal Brief:
33. A dishwasher, comprising:
a controller adapted to execute at least two washing
programs for washing items to be washed, each of the at least
two washing programs having at least one washing step and at
least one rinse aid step; and
a heater to heat rinse aid fluid, the heater being controiied
by the controller to heat the rinse aid fluid to an essentially
identical maximum temperature in each of the rinse aid steps of
the at least two washing programs, wherein:
the dishwasher limits, in at least one washing program
during the at least one washing step, a washing liquor
temperature essentially to maximum 45°C, and wherein the
dishwasher sets, in the rinse aid step, a rinse aid fluid
temperature at least temporarily to at least 55°C.
4 7. A dishwasher, comprising:
a controller adapted to execute at least two washing
programs for washing items to be washed, each of the at least
two washing programs having at least one washing step and at
least one rinse aid step; and
a heater to heat rinse aid fluid, the heater being controlled
by the controller to heat the rinse aid fluid to an essentially
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Application 12/863,997
identical maximum temperature in each of the rinse aid steps of
the at least two washing programs, wherein
one of the washing programs is configured as a low-
temperature program,
a further washing program is configured as a normal
program,
the dishwasher heats, in the at least one washing step of
the low-temperature program, washing liquor to a maximum
washing liquor temperature that is lower than a maximum
washing liquor temperature to which the dishwasher heats the
washing liquor in the at least one washing step of the normal
program, and
a circulation period of the at least one washing step of the
low-temperature program is at least as long as a circulation
period of the at least one washing step of the normal program.
49. A dishwasher, comprising:
a controller adapted to execute at least two washing
programs for washing items to be washed, each of the at least
two washing programs having at least one washing step and at
least one rinse aid step; and
a heater to heat rinse aid fluid, the heater being controiied
by the controller to heat the rinse aid fluid to an essentially
identical maximum temperature in each of the rinse aid steps of
the at least two washing programs, wherein:
one of the washing programs is configured as an
intensive program, the dishwasher heats, in the at least one
washing step of the intensive program, a washing liquor to a
maximum washing liquor temperature that is higher than the
maximum washing liquor temperature to which the dishwasher
heats the washing liquor in the at least one washing step of the
normal program, and
a circulation period of the at least one washing step of the
low-temperature program is at least as long as a circulation
period of the at least one washing step of the intensive program.
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REJECTIONS 2
I. Claims 33-35, 37, 46, 47, and 49 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Stickel3 in view of Cho. 4
II. Claims 33-39, 41--46, 48, and 50-54 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Rieger5 in view of Stickel.
Because Rieger is in German, the Examiner makes reference to Fauth, 6
which is an English-language counterpart to Rieger. We will refer to Fauth
in this opinion.
DISCUSSION
Appellant focuses his arguments on independent claims 33, 47, and
49. Accordingly, our discussion will also focus on these claims.
Claim 33. Appellant makes three arguments seeking reversal of the
rejections of claim 33: (1) claim 33 would not have been obvious in view of
Stickei because 53°C exceeds "essentiaiiy to maximum 45°C" (Appeai Br.
7-8); (2) Fauth teaches away from "a washing liquor temperature essentially
to maximum 45°C" (Appeal Br. 8-9); and (3) Appellant has established the
2 Claims 35 and 36 were subject to a rejection under 35 U.S.C. § 112, i-f 2
(Final Act. 2-3), but this rejection was withdrawn by the Examiner (Ans. 17)
and, therefore, is not before us. We note that in claim 49, both "normal
program" and "low temperature program" appear to lack antecedent basis.
3 Stickel et al., DE 196 51 347 Al, published June 25, 1998. Stickel is in German.
Appellant and the Examiner appear to rely on an English translation from
LexisNexis TotalPatent, which is of record.
4 Hardy et al., U.S. Patent No. 4,285,846, issued August 25, 1981.
5 Rieger et al., WO 2007/074022 Al, published July 5, 2007.
6 Fauth et al., U.S. Patent Pub. 2009/0038644 Al, published February 12, 2009.
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Application 12/863,997
criticality of the "a washing liquor temperature essentially to maximum
45°C" limitation (Appeal Br. 9).
The Examiner finds that Stickel teaches that in its "weaker" program
the controller is configured to have the washing fluid heated to a maximum
of 53°C in the washing step, which the Examiner states is "considered to be
in the range of applicant's essentially to maximum 45°C" (Final Act. 4,
emphasis in original). However, upon review of the claims and the
Specification, we determine that 53°C does not fall within the claimed
limitation of "essentially to a maximum 45 °C."
It is well established that "the 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." In re ICON Health & Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007). In this instance, the Specification
states that the washing iiquor temperature can exceed the maximum washing
liquor "for example by 10%" (Spec. i-f 13). Thus, we construe the term
"essentially to maximum to 45°C" to mean up to 45°C + 4.5°, or about
49.5°. We determine that 53°C does not fall within the limitation.
The Examiner does not specifically dispute that a "maximum 45°C" is
different from Stickel's 53°C maximum, but finds that, using the reasoning
of Titanium Metals Corp. v. Banner, 778 F.2d 775, 783 (Fed. Cir. 1985), the
two values are close enough that one skilled in the art would have expected
them to have the same properties. (Ans. 20-21 ). The Examiner finds that in
the dishwashing art, a difference of a few degrees in the washing
temperature only accounts for a minor efficiency difference and, therefore,
the difference between 49.5°C and 53°C would have been an obvious
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Application 12/863,997
difference. Appellant does not directly dispute this finding, suggesting only
that it is not supported by adequate evidence (Reply Br. 3). However, the
Examiner has explained that a difference of only a few degrees is an obvious
difference in the field at issue (dishwashers) because it would only account
for a minor efficiency difference in the functioning of the dishwasher.
Based on the evidence of record and using the preponderance of the
evidence standard, we determine that Appellant has not demonstrated
reversible error in the Examiner's determination that the claimed
temperature would have been obvious in view of the disclosures of Stickel.
Appellant also argues that Fauth teaches away from a maximum
washing liquor temperature of essentially 45°C because it teaches that higher
washing temperatures can achieve similar cleaning results in shorter
cleaning cycles, and the only temperature disclosed is 50°C, which is above
the claimed maximum (Appeal Br. 8-9). However, as explained by the
Examiner (Ans. 22), Fauth teaches that the temperature of the washing
liquor is a result-effective variable because it affects both cleaning
performance and the energy needed to perform the cleaning. Thus, by
raising and/or lowering the cleaning temperature, there is a tradeoff in
time/money as the temperature changes. Accordingly, as determined by the
Examiner, it would have been obvious to modify the apparatus of Fauth by
optimizing the washing liquid temperature of the non-rapid washing
program.
Finally, in an effort to overcome the prima facie case of obviousness
of claim 33, Appellant argues that the Specification demonstrates the
criticality of "a washing liquor temperature essentially to maximum 45°C"
(Appeal Br. 9). The burden of showing unexpected results, or criticality of a
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particular item, rests on the person who asserts them by establishing that the
difference between the claimed invention and the closest prior art was an
unexpected difference. See In re Klosak, 455 F.2d 1077, 1080 (CCPA
1972). Further, the showing of unexpected results must be commensurate in
scope with the claims. See In re Peterson, 315 F.3d 1325, 1330-31 (Fed.
Cir. 2003). In this instance, Appellant relies on statements in the
Specification which suggest that if a washing liquor temperature is too high,
modem dishwasher detergents will not function as intended (Appeal Br. 9).
This suggestion, according to Appellant is sufficient to show the criticality
of the claimed 45°C maximum. We do not agree. A persuasive showing of
the criticality of that temperature would require, inter alia, evidence
pertinent to temperatures just outside the claimed range. Without such
evidence, Appellant has not overcome the prima facie case of obviousness
established by the Examiner.
Claims 4 7 and 49. Appeiiant reiies on the iimitation in claim 4 7 that
"a circulation period of the at least one washing step of the low-temperature
program is at least as long as a circulation period of the at least one washing
step of the normal program." Claim 49 has a comparable limitation.
The Examiner finds that Stickel teaches a low temperature program of
12 minutes, and normal temperature program of 15 minutes (Final Act. 5---6).
The Examiner further finds that it is well known in the art that the
circulation time of a washing step is a result-effective variable because it
affects both the cleaning performance of the washing step and the amount of
time that a user has to wait for a washing step to finish (id.; Ans. 17-19).
The Examiner concludes that it would have been obvious to modify the
circulation periods of Stickel' s washing programs so that they met the
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claimed limitation (id). In response, Appellant's principal argument is that it
is improper to use an optimization argument because the claims do not
specifically cite ranges (Appeal Br. 6-7).
However, as explained in detail by the Examiner (Ans. 17-19) and not
disputed by Appellant, the circulation time of a washing step is a result-
effective variable. Although, as noted by Appellant, claims 4 7 and 49
provide a relational value between the circulation periods of a low-
temperature program and a circulation period of a normal program, the
Examiner has explained why a person of skill in the art would have
optimized those times to arrive at the claimed relationship. Appellant has
not persuasively refuted this explanation, for example, by showing the
claimed relationship provides unexpected benefits/results.
CONCLUSION
We AFFIRM the rejection of claims 33--'35, 37, 46, 47, and 49 under
35 U.S.C. § 103(a) as being unpatentable over Stickel in view of Cho.
We AFFIRM the rejection of claims 33-39, 41--46, 48, and 50-54
under 35 U.S.C. § 103(a) as being unpatentable over Rieger in view of
Stickel.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l) (iv).
AFFIRMED
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