Syed Ahmed

Patent Trials and Appeals Board

Mar 18, 2021

2020004529 (P.T.A.B. Mar. 18, 2021)

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.
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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.
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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.
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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).
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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
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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
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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
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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
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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
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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
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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.

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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