Syed AhmedDownload PDFPatent Trials and Appeals BoardMar 18, 20212020004529 (P.T.A.B. Mar. 18, 2021) Copy Citation 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. 14/424,611 02/27/2015 Syed Ahmed C64-024244 US PCT 7621 26294 7590 03/18/2021 TAROLLI, SUNDHEIM, COVELL & TUMMINO L.L.P. 1300 EAST NINTH STREET, SUITE 1700 CLEVELAND, OH 44114 EXAMINER MCCORMACK, JOHN PATRICK ART UNIT PAPER NUMBER 3762 NOTIFICATION DATE DELIVERY MODE 03/18/2021 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): docketing@tarolli.com rkline@tarolli.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte SYED AHMED ____________ Appeal 2020-004529 Application 14/424,611 Technology Center 3700 ____________ Before EDWARD A. BROWN, MICHAEL J. FITZPATRICK, and WILLIAM A. CAPP, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134(a) of the final rejection of claims 1, 4–11, 13–34, and 39. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2020-004529 Application 14/424,611 2 THE INVENTION Appellant’s invention relates to hand dryers. Spec. 1. Claim 1, reproduced below with paragraph indentation added is illustrative of the subject matter on appeal. 1. A hand drier comprising communication means for communicating data to a data collection facility remote from the hand drier; wherein the data communicated to the data collection facility includes usage data indicating the length of each drying operation that the hand drier performs. THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: NAME REFERENCE DATE Kallestad US 2003/0033057 A1 Feb. 13, 2003 Hans US 6,640,356 B1 Nov. 4, 2003 Lynn US 2008/0019490 Al Jan. 24, 2008 Ishii US 2011/0277342 A1 Nov. 17, 2011 Zhao US 2012/0324755 A1 Dec. 27, 2012 Bayley US 2015/0052678 A1 (PCT) Mar. 14, 2013 Madden WO 2005/055791 A1 June 23, 2005 The following rejections are before us for review: 1. Claims 1, 4–7, 10, 11, 18–21, 26, 28 and 39 are rejected under 35 U.S.C. § 103 as being unpatentable over Madden and Hans. 2. Claims 8 and 9 are rejected under 35 U.S.C. § 103 as being unpatentable over Madden, Hans, Zhao. 3. Claims 13, 27, 29–31, 33, and 34 are rejected under 35 U.S.C. § 103 as being unpatentable over Madden, Hans, and Kallestad. Appeal 2020-004529 Application 14/424,611 3 4. Claims 14–16 are rejected under 35 U.S.C. § 103 as being unpatentable over Madden, Hans, Kallestad, and Ishii. 5. Claim 17 is rejected under 35 U.S.C. § 103 as being unpatentable over Madden, Hans, and Ishii. 6. Claims 22–25 are rejected under 35 U.S.C. § 103 as being unpatentable over Madden, Hans, and Lynn. 7. Claim 32 is rejected under 35 U.S.C. § 103 as being unpatentable over Madden, Hans, Kallestad, and Lynn. OPINION Unpatentability of Claims 1, 4–7, 10, 11, 18–21, 26, 28, and 39 over Madden and Hans Appellant argues claims 1, 4–7, 10, 11, 18–21, 26, 28 and 39 as a group under a single sub-heading. Appeal Br. 13–25; See 37 C.F.R. § 41.37(c)(1)(iv) (requiring individual claims or sub-groups of claims to be argued under a separate sub-heading that identifies the claim(s) by number). We select claim 1 as representative. The Examiner finds that Madden discloses the invention substantially as claimed except for transmitting usage data that indicates the length of each operation, for which the Examiner relies on Hans. Final Act. 3–5. The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time of the invention to modify Madden with the teachings of Hans to achieve the claimed invention. Id. at 5. According to the Examiner, a person of ordinary skill in the art would have done this to fine tune pricing models preferred by an advertiser. Id. Appeal 2020-004529 Application 14/424,611 4 Appellant argues that the prior art fails to disclose monitoring the length of each “drying” operation. Appeal Br. 16. In that regard, Appellant argues that Hans is directed to a urinal, not a hand drier. Id. at 17. [T]he precise wording of claim is “length of each drying operation” (emphasis added). This is an important point, because to the extent that Hans considers measuring the duration of a particular activity, that activity (e.g., a user eliminating into a toilet or urinal, or washing hands in a wash basin) is wholly different from the “drying operation” of claim 1. Id. Appellant further argues that Hans measures the duration of time that a user spends in the proximity of a urinal or washbasin, which Appellant distinguishes from measuring the duration of time that a user spends activating a particular appliance. Id. at 18 (“it is unreasonable to construe a user, standing in front of a washbasin and washing their hands, as performing an “operation”). Appellant’s argument prompts us to construe the terms “operation” and “length of . . . operation.” During examination of a patent application, pending claims are given their broadest reasonable construction consistent with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable interpretation standard, claim terms are given their ordinary and customary meaning as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). However, our focus begins with and remains centered on the language of the claims themselves. Braintree Laboratories, Inc. v. Novel Laboratories, Inc., 749 F3d 1349, 1354 (Fed. Cir. 2014). Appeal 2020-004529 Application 14/424,611 5 Claim 1 recites a “length of each drying operation.” Claims App. Appellant’s Specification defines “drying operation” as a “period in which the drier is operable to dry a person’s hands.” Spec. 1, ll. 29–30. According to Appellant’s Specification, a drying operation may be initiated by a user button or switch, an audio sensor or voice recognition module, facial recognition means, fingerprint recognition means, acoustic detector means, optical detector means, or infrared passive detector means. Id. 2, ll. 1–23. There is no limitation in claim 1 that restricts such length of time such that it is terminated by any particular method or means. Claims App. Once initiated, dryer operation may be terminated by: (1) an action of the user, such as by pressing a button, or (2) expiration of a predetermined period of time. Spec. 8, ll. 11–29. Given the teachings of Appellant’s Specification, it is understood that a “period in which the drier is operable to dry a person’s hands” could encompass a period in which the user has walked away from the dryer, but the dryer keeps running on a timer and thus remains “operable” to dry a person’s hands even though there are no longer any hands near the dryer. With respect to Appellant’s “length of drying” operation argument, the Examiner points out that Madden is relied on as teaching a drying operation and that Hans is only relied on to teach monitoring the length of an operation. Ans. 14. The Examiner’s point is well taken. Appellant’s argument amounts to individual attacks on references that are presented in combination. It is well settled that non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references. In re Merck & Co., 800 Appeal 2020-004529 Application 14/424,611 6 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981). With respect to Appellant’s criticism of the Examiner’s construction of “operation,” the Examiner effectively explains how and why automatic flush toilets and faucets perform an “operation” in accordance with a broad, but reasonable, construction of “operation.” Ans. 14. Indeed, we are at a loss to understand how a person drying their hands does perform an “operation,” but a person washing their hands does not. As previously discussed in connection with Appellant’s mode of operation using a timer, a drying “operation” may encompass a period of time after the user walks away from the dryer. In Hans, the urinal or wash basin may be considered to be “operable” whenever a user is sufficiently proximate to the urinal or wash basin to make use thereof. Thus, Hans’ washroom facilities may properly be considered to be in “operation” during such time as they are “operable” to a user by reason of the user’s proximity thereto. The Examiner’s construction and application of the term “length of operation” is fully in accordance with the broadest reasonable construction of term. Appellant accuses the Examiner of misapprehending the purpose of the invention. Id. at 18–19. According to Appellant, the Examiner appears to apprehend that Hans is directed to measuring the length of time that a user stands near an advertisement whereas Appellant argues that its invention solves the problem of energy management in a washroom facility. Id. at 19 (“the claimed invention seeks to measure the duration of each drying operation for its own sake, in order to identify trends in energy consumption”). Appellant’s argument that its invention “seeks to measure the duration” of each drying operation is difficult to reconcile with the Appeal 2020-004529 Application 14/424,611 7 teachings of the Specification where the duration of each drying operation is controlled by a timer such that the duration is predetermined and, thus, does not require independent measurement. Further in response to Appellant’s argument that its invention relates to power consumption and management, rather than advertising revenue, the Examiner points out that Appellant’s disclosure describes a billing scheme related to how long a user stands beside an operating advertisement. Ans. 15. The Examiner’s point is well taken. Appellant’s argument that Hans is only concerned with how long a user is near an advertisement whereas Appellant is only concerned with power consumption and management cannot be supported by the record before us. Appellant’s invention and each of Madden and Hans function to achieve two simultaneous objectives: (1) hand drying / washing; and (2) advertising. It is disingenuous for Appellant to argue that its invention is directed to just hand drying operations and the prior art, in contrast, is directed to just advertising. In any event, it matters not whether Madden and Hans are primarily directed to: (1) a user operation; or (2) display of advertising to the user. In performing an obviousness analysis, we look to the teachings of the prior art as a whole and the motivations that such teaching would provide to the person of ordinary skill in the art. We do not restrict our analysis to the primary purposes of the prior art. See In re Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012) (explaining that a prior art reference may be read for all that that it teaches, including uses beyond its primary purpose). Finally, Appellant argues that a skilled artisan would recognize that the duration of an advert might not be coextensive in duration with the Appeal 2020-004529 Application 14/424,611 8 length of a drying operation. Appeal Br. 22 (“this would then result in adverts being truncated from their full length if and when the drying operation ends before the advertisement finishes”). In the case of such an aborted advertising session, information such as the advertiser’s name, contact information slogan, special offer, or the “stinger” of a joke could be cut off, thus lessening the impact of an advertisement in an undesirable manner while the viewer (or another viewer) is likely still in the vicinity of the drier. Id. This argument is particularly unpersuasive as it is not relevant to any issue that is before us. There is no limitation in claim 1 directed to the running length of an advertisement, much less whether a user views the entire advertisement. Claims App. Claim 19 does contain a limitation directed to advertising, however, Appellant elected to group and argue claim 19 under a single sub-heading with claim 1. Nevertheless, even if we were to consider that claim 19 is argued separately, Appellant’s position is not persuasive. In claim 19, two things are going on at, more or less, the same time. First, a person is drying his or her hands. Second, a video advertisement is being displayed. Apart from possible situations where the dryer operation and the advertisement are both controlled by timers that are set to the same duration, Appellant provides no reason to believe that if the drying time is the same as the advertisement run time, such is anything more than a coincidence. In the Specification, Appellant basically admits that it experiences the same problem to which it now seeks to criticize the Examiner’s proposed prior art combination. The portal 1503 allows the advertising agency 1501 to determine the number of times each advert has been displayed on the drier, the time of day at which it was displayed and Appeal 2020-004529 Application 14/424,611 9 whether or not the advert was viewed in full or partially (because the user finished drying their hands before the advert ended, for example). Spec. 18, ll. 28–32. Appellant offers no more solution to the problem of truncating the advertising display than the prior art that is relied on by the Examiner in the rejection under review. See generally Spec. In almost any video advertising context, there is no guarantee that a viewer will remain attentive from the start to the finish of the advertisement. Thus, the mere prospect that some users might not watch the entire duration of a video advertisement does not strike us a disincentive to combining Madden and Hans in the manner proposed by the Examiner. In the instant case, Madden is directed to a hand dryer that incorporates an electronic screen on which advertisements may be displayed. Madden 2–3. Madden’s dryers are activated by a sensor that is triggered when a person’s hands are placed under outlet nozzle 7 of the dryer. Id. at 6. Such sensor also triggers an electronic processor to display an image on screen 13. Id. Madden’s dryers are configured to report to a server the number of times they have been actuated. Id. at 3, 8. The duration of time that Madden’s advertising display operates in “active” mode, which mode is activated by the sensor that detects the presence of a user’s hand, is controlled by a timer. Id. at 8–9. Although Madden discloses the means by which the dryer and display screen are activated and further discloses that the display’s screen’s “active” mode is controlled by a timer, Madden is silent as to whether the dryer itself terminates operation by means of user action, a timer controller, or by some other means. See generally Madden. Although Madden discloses that dryer usage data is transmitted to a server, Madden is silent as to whether such Appeal 2020-004529 Application 14/424,611 10 usage data includes how long the dryer is operated during each activation period. Id. Hans is directed to a method for transmitting and evaluating video advertising that is displayed on toilet facilities such as urinals or wash basins. Hans, Abstract. Hans further teaches that: Through the use of inherently familiar technology, such as proximity switches and the like, the advertising can be turned on as soon as a user approaches the urinal. Turning on the reproduction of the advertising message can be triggered by a sensor arranged above a urinal 1 or in a washstand, in the receptacle 11, on a wall or on the floor. Turning off takes place correspondingly when the user leaves the urinal or dressing table. The duration of use derived from the duration of the stay can be stored and be allocated to the commercial offered and be evaluated by publicity specialists. Id. col. 3, ll. 43–53. The Examiner’s findings of fact with respect to each of the Madden and Hans references are amply supported by the record before us. Madden discloses the invention substantially as claimed except for an explicit teaching regarding “length of each drying operation.” Hans monitors the duration of user operations that take place with respect to washroom facilities such as urinals and wash basins. Hans, col. 3, ll. 43–53. We agree with the Examiner that the teachings of Madden and Hans are readily combinable. Final Act. 5. In other words, a person of ordinary skill in the art would find Hans’ teachings about duration of operational use of a urinal or wash basin readily transferrable to the product application of a hand dryer. It is well settled that if a technique has been used to improve one device (e.g., a wash basin that monitors duration of use), and a person of ordinary skill in the art would recognize that it would improve similar Appeal 2020-004529 Application 14/424,611 11 devices (e.g., hand dryers) in the same way, using the technique is obvious unless its actual application is beyond his or her skill. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Here, Appellant presents neither evidence nor persuasive technical reasoning that modifying Madden to monitor and transmit duration of use data requires more than ordinary skill or produces unexpected results. The Examiner’s findings of fact are supported by a preponderance of the evidence and the Examiner’s legal conclusion of unpatentability is well- founded. In view thereof, we sustain the Examiner’s unpatentability rejection of claims 1, 4–7, 10, 11, 18–21, 26, 28, and 39 over Madden and Hans. Unpatentability of Claims 8, 9, 13–17, 22–25, 27, and 29–34 over Combinations Based on Madden and Hans In traversing the rejections of these claims, Appellant relies solely on arguments advanced with respect to the rejection of claim 1 which we previously found to be unpersuasive and find equally unpersuasive here. Appeal Br. 25–31. We sustain the rejections of claims 8, 9, 13–17, 22–25, 27, and 29–34. Appeal 2020-004529 Application 14/424,611 12 CONCLUSION Claims Rejected § References Affirmed Reversed 1, 4-7, 10, 11, 18-21, 26, 28, 39 103 Madden, Hans 1, 4-7, 10, 11, 18-21, 26, 28, 39 8, 9 103 Madden, Hans, Zhao 8, 9 13, 27, 29-31, 33, 34 103 Madden, Hans, Kallestad 13, 27, 29-31, 33, 34 14-16 103 Madden, Hans, Kallestad, Ishii 14-16 17 103 Madden, Hans, Ishii 17 22-25 103 Madden, Hans, Lynn 22-25 32 103 Madden, Hans, Kallestad, Lynn 32 Overall Outcome 1, 4–11, 13–34, 39 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 Copy with citationCopy as parenthetical citation