Ex Parte Urbanet et al

Patent Trial and Appeal BoardSep 19, 2012

11252587 (P.T.A.B. Sep. 19, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CARLO URBANET, SILVANO CIMETTA, MIRKO GASPARINI, and MARCO GIOVAGNONI ____________ Appeal 2011-002606 Application 11/252,587 Technology Center 1700 ____________ Before CHUNG K. PAK, HUBERT C. LORIN, and MICHAEL P. COLAIANNI, Administrative Patent Judges. PAK, Administrative Patent Judge DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from the Examiner's final rejection of claims 1 through 3, all of the claims pending in the above- identified application.1 We have jurisdiction over the appealed subject matter pursuant to 35 U.S.C. § 6. STATEMENT OF THE CASE 1 See Appeal Brief (“App. Br.”) filed August 4, 2010, 2; and Examiner’s Answer (“Ans.”) filed August 25, 2010, 2. Appeal 2011-002606 Application 11/252,587 2 The subject matter on appeal is directed to “[a] method of operating a clothes washing machine having a wash tub.” (See claim 1.) Details of the appealed subject matter are recited in representative claim 1 reproduced below: 1. A method of operating a clothes washing machine having a wash tub, said method comprising: prior to starting a washing cycle, letting an amount of water into the clothes washing machine up to a first pre-set level in the wash tub, or up to a known volume in the wash tub; continuously taking from the bottom of the wash tub the water previously let into the machine and re-circulating the water such that the water is sprayed into a washload-holding drum arranged inside the clothes washing machine, such that the water is sprayed onto clothes to be washed contained within the washload-holding drum; continuously rotating the washload-holding drum at a low speed with alternate rotation cycles in two directions of rotation along a horizontal axis of rotation; detecting a height of the water from the bottom of the wash tub, and sending the detected height of the water from the bottom of the wash tub to a control circuit of the machine; and checking the height of the water from the bottom of the wash tub in a substantially continuous manner for the height of the water from the bottom of the wash tub to be lower than a second pre-set level, wherein if the height of the water from the bottom of the wash tub is lower than the second pre-set level, a sequence of water refillings and water supply interruptions in the clothes washing machine are carried out, in which each water refilling, with exception of the first water refilling, is done until the height of the water from the bottom of the wash tub reaches a level previously defined solely based on an elapsed time between water refillings. [(Emphasis added.)] As evidence of unpatentability of the subject matter claimed, the Examiner relies upon the following evidence: Appeal 2011-002606 Application 11/252,587 3 Payne US 5,161,393 Nov. 10, 1992 Severns US 2002/0133886 A1 Sep. 26, 2002 Kim US 2003/0041390 A1 Mar. 6, 2003 Choi US 2003/0097719 A1 May 29, 2003 Bellinetto EP 1 350 881 A1 Oct. 8, 2003 Appellants seek review of the following grounds of rejection maintained by the Examiner in the Answer: (1) Claim 1under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Choi and Severns; and (2) Claims 2 and 3under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Choi, Severns, Bellinetto, and Payne. (See App. Br. 3.) DISCUSSION Appellants do not dispute the Examiner’s determination that the collective teachings of the prior art references relied upon would have suggested all of the steps of the method recited in claims 1 through 3, except for the steps defined by the conditional wherein clause recited in claim 1. (Compare Ans. 4-10 with App. Br. 3-9.) On the other hand, the Examiner contends that one of ordinary skill in the art, armed with the knowledge of the collective teaching of the applied prior art references, would have been led to the subject matter recited in claims 1 through 3, including any step required by the conditional wherein clause recited in claim 1. (See Ans. 4- 10.) Thus, the dispositive question is: Has the Examiner reversibly erred in determining that the collective teachings of the prior art references relied Appeal 2011-002606 Application 11/252,587 4 upon would have led one of ordinary skill in the art to the claimed method, including any step required by the conditional wherein clause recited in claim 1, within the meaning of 35 U.S.C. § 103(a)? On this record, we answer this question in the negative. As correctly stated by Appellants, “[a]ll words in a claim must be considered in judging the patentability of that claim against the prior art.” In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970). The conditional wherein clause in question recited in claim 1 reads as follows: [W]herein if the height of the water from the bottom of the wash tub is lower than the second pre-set level, a sequence of water refillings and water supply interruptions in the clothes washing machine are carried out, in which each water refilling, with exception of the first water refilling, is done until the height of the water from the bottom of the wash tube reaches a level previously defined solely based on an elapsed time between water refillings. [(Emphasis added.)] As is apparent from the plain language of this clause, the step of conducting sequential water refillings and water supply interruptions in the clothes washing machine “solely based on an elapse time between water refillings” is only mandatory “if the height of the water from the bottom of the wash tub is lower than the second pre-set level” (emphasis added). We must give effect to all words in the wherein clause recited in claim 1, including the conditional limitation of carrying out particular refilling and interruption steps “if” the prerequisite condition, i.e., “the height of the water from the bottom of the wash tub is lower than the second pre-set level,” exists. In other words, claim 1, as written, alternatively covers at least two methods, one with the conditional steps and the prerequisite condition in the wherein Appeal 2011-002606 Application 11/252,587 5 clause recited in claim 11, or another one without the conditional steps and prerequisite condition in the wherein clause recited in claim 11. According to pages 3 through 9 of the Appeal Brief, Appellants assert that the prior art references in question do not teach or would not have suggested such prerequisite condition and conditionals steps in the wherein clause recited in claim 11, but do not dispute that the same prior art references would have suggested all of the other requisite steps of the method recited in claims 1 through 3. In other words, the prior art, by virtue of Appellants’ own admission, would have suggested at least one of the methods covered by the claims on appeal. It follows that the Examiner has not reversibly erred in determining that the collective teachings of the prior art references relied upon would have suggested to one of ordinary skill in the art at least one of the methods recited in claims 1 through 3 within the meaning of 35 U.S.C. § 103(a). ORDER Upon consideration of the record, and for the reasons given above and in the Answer, it is: ORDERED that the decision of the Examiner to reject claims 1 through 3 under 35 U.S.C. § 103(a) is AFFIRMED; and, FURTHER ORDERED that 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)(iv). AFFIRMED Appeal 2011-002606 Application 11/252,587 6 tc