Ex Parte Stiles

Patent Trial and Appeal BoardMay 20, 2016

12869570 (P.T.A.B. May. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/869,570 08/26/2010 26710 7590 05/24/2016 QUARLES & BRADYLLP Attn: IP Docket 411 E. WISCONSIN A VENUE SUITE 2350 MILWAUKEE, WI 53202-4426 FIRST NAMED INVENTOR Robert Stiles 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. 144074.00038 8134 EXAMINER STIMPERT, PHILIP EARL ART UNIT PAPER NUMBER 3746 NOTIFICATION DATE DELIVERY MODE 05/24/2016 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): pat-dept@quarles.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT STILES Appeal2014-006054 Application 12/869,570 Technology Center 3700 Before MICHAEL W. KIM, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant 1 appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1-16. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 Appellant submits the real party in interest is Pentair Pool Products, Inc. Appeal Br. 2. Appeal2014-006054 Application 12/869,570 THE CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A pumping system for at least one aquatic application including a pool, the pumping system controlled by a user, the pumping system including a pump, the pumping system adapted to be coupled to a pool filter and a pool vacuum, the pumping system comprising: a variable speed motor coupled to the pump; a user interface that receives an input including a desired filtering level of operation from the user including a mode for operation of the pump at an increased level during use of the pool vacuum; and a controller in electrical communication with the variable speed motor and the user interface, the controller determining a current value of at least one of a volume, a flow rate, a mass, and a pressure in the pumping system associated with the desired filtering level of operation, the controller substantially continuously modifying an actual speed of the variable speed motor based on the current value in order to operate the variable speed motor at a substantially minimum speed to achieve the desired filtering level of operation with substantially minimal energy usage. REJECTIONS 1) Claims 1-3, 5-9, 13, and 16 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Sterghos (US 5,730,861, iss. Mar. 24, 1998) in view of Jones (US 2003/0196942 Al, pub. Oct. 23, 2003). 2) Claims 4 and 10-12 are rejected under U.S.C. Â§ 103(a) as unpatentable over Sterghos in view of Jones and Wolfe (US 2003/0034284 Al, pub. Feb. 20, 2003). 2 Appeal2014-006054 Application 12/869,570 3) Claim 14 is rejected under U.S.C. Â§ 103(a) as unpatentable over Sterghos in view of Jones and Adair (US 3,778,804, iss. Dec. 11, 1973). 4) Claim 15 is rejected under U.S.C. Â§ 103(a) as unpatentable over Sterghos in view of Jones, Millis (US 4,505,643, iss. Mar. 19, 1985), and Mehlhom (US 2005/0226731 Al, pub. Oct. 13, 2005). DISCUSSION Appellant contends the Examiner erred because neither Sterghos nor Jones discloses "a mode for operation of a pump at an increased level during use of a pool vacuum," as recited in independent claim 1. 2" Appeal Br. 4; Reply Br. 4. Appellant does not separately argue dependent claims 2, 3, 5- 9, 13, and 16, so they stand or fall with independent claim 1. See 37 C.F.R. Â§ 41.37(c)(l)(iv). At the crux of Appellant's contentions is how to properly construe "during use of a pool vacuum" of "a mode for operation of a pump at an increased level during use of a pool vacuum." The Examiner is asserting that an "increased level" mode alone is sufficient to meet the entire claim limitation, including "during use of a pool vacuum," in that it is immaterial what the reason for the "increased level" is, so long as pump operation is increased. By contrast, Appellant appears to be asserting that the claim language requires a specific "pool vacuum" mode separate and distinct from merely an "increased level" mode. We agree with the Examiner. 2 The Specification teaches that a cleaning implement, i.e., a pool vacuum, is an "accessory" operated by the pool pump. See Spec. i-f34. Thus, one of ordinary skill in the art would understand that the pump would operate at an increased level when the vacuum is operated in addition to the pool filter. 3 Appeal2014-006054 Application 12/869,570 Specifically, paragraph 34 of the Specification discloses "[ o ]ne specific example of a mode that can be entered via use of the user interface is operation of the pump 12 at an increased level when it is desired to utilize an accessory cleaning implement within the pool 14" (emphasis added). In other words, "when it is desired to utilize an accessory cleaning implement within the pool 14," the "increased level" mode is selected, indicating that there is no "pool vacuum" mode separate and distinct from an "increased level" mode. To that end, the Examiner asserts, and we agree, that there is nothing in claim 1 precluding "the increased level" from being "manually activated" and that entry "of a number of gallons per minute, such as that taught by Jones, satisfies the terms of the claims." Ans. 3. To the extent that the aforementioned claim limitation does require an explicit "pool vacuum" mode, as argued by Appellant, Appellant admits that Sterghos discloses a controller operating "in a manual vacuum mode" and "a waste vacuum mode." Appeal Br. 4. At least one of these modes, in conjunction with the filtering of Jones, would correspond properly to the alleged "pool vacuum" mode. To that end, we agree with the Examiner's finding that Jones teaches user "input including a desired filtering level (in GPM) of operation" which is supported by a preponderance of the evidence. Final Act. 2-3; see also Jones, i-f29. Appellant has not identified persuasively any error in the Examiner's factual findings in support of the rejection. Appellant further does not dispute the Examiner's rationale for combining the teachings of Sterghos and Jones. Consequently, we sustain the Examiner's rejection of claim 1, and its dependent claims 2, 3, 5-9, 13, and 16. 4 Appeal2014-006054 Application 12/869,570 For the rejections of dependent claims 4, 10-12, 14, and 15 including other references, Appellant did not argue separately for the patentability of these dependent claims. Appeal Br. 7. Consequently, we sustain the rejection of claims 4, 10-12, 14, and 15 for the same reasons as for claim 1. DECISION The Examiner's decision rejecting claims 1-15 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). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 5