ZODIAC POOL CARE EUROPE

Patent Trials and Appeals BoardMar 30, 2021

2020004804 (P.T.A.B. Mar. 30, 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. 15/764,471 03/29/2018 Philippe Pichon 0S0457-1081361 1013 23370 7590 03/30/2021 Kilpatrick Townsend & Stockton LLP - East Coast MAILSTOP: IP DOCKETING - 22 1100 PEACHTREE STREET SUITE 2800 ATLANTA, GA 30309 EXAMINER REFAI, RAMSEY ART UNIT PAPER NUMBER 3661 NOTIFICATION DATE DELIVERY MODE 03/30/2021 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): KTSDocketing2@kilpatrick.foundationip.com ipefiling@kilpatricktownsend.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte PHILIPPE PICHON ____________ Appeal 2020-004804 Application 15/764,471 Technology Center 3600 ____________ Before STEFAN STAICOVICI, EDWARD A. BROWN, and WILLIAM A. CAPP, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final rejection of claims 1–15 as unpatentable under 35 U.S.C. § 103 over Strohmayer (US 2016/0148711 A1, pub. May 26, 2016), and Renaud (US 2014/0263087 A1, pub. Sept. 18, 2014). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Zodiac Pool Care Europe as the applicant and real party in interest. Appeal Br. 4. Appeal 2020-004804 Application 15/764,471 2 THE INVENTION Appellant’s invention relates to swimming pool vacuum cleaning systems. Spec. 1. Claim 1, reproduced below with paragraph indentation added, is illustrative of the subject matter on appeal. 1. Swimming pool cleaning system including a cleaning device intended to be submerged in the swimming pool and comprising driving and guiding members for moving the cleaning device autonomously on a submerged surface in the swimming pool, wherein the system includes as well an image acquisition means secured to a float via a flexible tie attached to the cleaning device at least when the cleaning device is moving autonomously on the submerged surface. OPINION Claims 1–10 Appellant argues independent claim 1, but does not separately argue any of claims 2–10 that depend therefrom. Appeal Br. 18. We will consider the arguments for claim 1 and claims 2–10 will stand or fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). The Examiner finds that Strohmayer and Renaud, in combination, teach or suggest all of the elements of claim 1. Final Act. 2–3. The Examiner further finds that Strohmayer and Renaud both teach vision systems and that Renaud’s vision system identifies debris located in the pool and directs the swimming pool cleaner to the debris. Ans. 4 (citing Renaud, ¶¶ 9, 29). The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time the invention was made to combine the teachings of Strohmayer and Renaud to achieve the claimed Appeal 2020-004804 Application 15/764,471 3 invention. Id. at 3. According to the Examiner, a person of ordinary skill in the art would have done this to allow a cleaner to move along the bottom of the surface independently when cleaning the bottom of the pool. Id. Appellant does not dispute that the references, taken together, disclose all of the elements of the invention. Appeal Br. 18. Nevertheless, Appellant argues that the Examiner fails to provide a sufficient rationale for advancing the proposed combination. Id. (cross-referencing arguments advanced in Section VI.2 of the Appeal Brief set forth on pages 14–16 thereof). Appellant argues that the Examiner fails to offer any reasoning with rational underpinning. Id. at 15. Appellant criticizes the Examiner’s stated rationale as a “conclusory statement” that “wholly lacks rational underpinning.” Id. Appellant further argues against the proposed combination because it purportedly would not have been undertaken with a reasonable expectation of success. Id. Appellant characterizes the pool water in Strohmayer as being so “dirty” that its cameras are useless to view the bottom of a pool and, therefore, any autonomous movement of a cleaner on the bottom would be “blind.” Id. According to Appellant, “the floating cameras could not assist in directing the cleaner toward an uncleaned area or away from an obstacle.” Id. at 15–16. Indeed, even assuming a skilled person would know to modify the cameras of Strohmayer to include the “vision system” of Renaud, the modified devices would continue to be directed along the waterline--to guide the operator 88 in remotely driving floating platform 62--rather than peering uselessly into the murky water of the nuclear pool. Or, stated differently, the combined teachings of Strohmayer and Renaud would not lead the skilled person to modify Strohmayer to enable its floating cameras somehow optically to detect, through the murky water, uncleaned areas of the bottom of the nuclear pool. Appeal 2020-004804 Application 15/764,471 4 Id. at 12–13. In response, the Examiner points out that both Strohmayer and Renaud are from the same field of endeavor, namely, pool cleaning. Ans. 6. The Examiner observes that the Supreme Court’s decision in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) forecloses the argument that a specific teaching, suggestion, or motivation is required to support a conclusion of obviousness. Id. According to the Examiner: Under KSR, a claim would have been obvious if the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded nothing more than predictable results to one of ordinary skill in the art at the time of the invention. Thus the claimed subject matter likely would have been obvious under KSR. Id. Finally, the Examiner reiterates the rationale from the final rejection for combining the prior art references, namely, “because doing so would allow for the cleaner to move along the bottom of the surface independently when cleaning the bottom surface of the pool.” Id. at 7. In reply, Appellant repeats its previous argument that the Examiner’s rationale for proposing the combination of references is conclusory and lacks rational underpinning. Reply Br. 4. Strohmayer discloses a device for cleaning a pool of water where spent fuel from a nuclear facility is stored. Strohmayer ¶ 1. Strohmayer features floating platform 62 that floats on the surface of the pool. Id. ¶ 40. Suspended below the floating platform is pump 66, vacuum hose 70 and cable 68. Id. Pump 66 is raised and lowered between floating platform 62 and the pool bottom 78 by means of a winch disposed in the floating platform. Id. Strohmayer’s platform traverses the surface of the pool by Appeal 2020-004804 Application 15/764,471 5 means of a propeller. Id. ¶ 23. Navigational guidance is provided by operator 88 via remote control device 86. Id. ¶¶ 77, 78, Fig 3. Cameras mounted on floating platform 62 furnish image data to operator 88. Id. ¶ 25. Image information is made available to the platform operator at the remote control device such that, during lowering, lifting and pumping, the surroundings of the platform can be observed. Id. Renaud is directed to a swimming pool cleaner. Renaud, Abstract. Renaud features cleaner 200, which is a wheeled device that moves across the bottom surface of a pool. Id. ¶¶ 22–25, Fig. 1. Renaud also features docking station 300, which is disposed at the edge of the pool. Id. ¶ 26. Communication means permit cleaner 200 and docking station 300 to communication with each other. Id. ¶ 27. Renaud also features a vision system. Id. ¶ 29. The vision system and its associated data processing facilities identify areas on the pool floor where debris or dirt exist. Id. The vision system communicates with cleaner 200 which then travels to the area of debris for cleaning. Id. ¶ 30. Renaud’s vision system also senses the layout of the swimming pool such that the vision system can monitor the position of cleaner 200 in the swimming pool. Id. ¶ 31. Thus, there is considerable overlap in the structural features of Strohmayer and Renaud. Both devices clean artificial pools of water by means of vacuuming and filtering debris from the bottom of a pool. Both devices have means of propulsion to move about the pool. Both devices have navigation means to direct movement of a vacuum device about the pool. Both devices have visual systems that furnish information to the navigation means. Strohmayer and Renaud differ in that: (1) Strohmayer is primarily intended to clean a nuclear waste pool whereas Renaud is primary Appeal 2020-004804 Application 15/764,471 6 intended for use in a swimming pool; (2) Strohmayer’s cameras are disposed on float 62 whereas Renaud’s vision sensor are disposed on cleaner 200 and/or docking station 300; and (3) Strohmayer’s vacuum hose is suspended from float 62, whereas Renaud’s vacuum means is disposed on cleaner 200 which transits the pool bottom on wheels. Appellant attempts to distinguish Strohmayer on the basis that its intended use is to clean a nuclear waste storage pool and not a swimming pool. Appeal Br. 9–12. This argument is not persuasive. Regardless of the type of water that it cleans, Strohmayer provides a device for cleaning a pool of water. The mere statement of a new use for an otherwise old product cannot render a claim to the product patentable. In re Zierden, 411 F.2d 1325, 1328 (CCPA 1969). Moreover, common sense dictates that familiar items may have obvious uses beyond their primary purposes. See KSR, 550 U.S. at 420. Thus, it is not necessary for the prior art to serve the same purpose as that disclosed in Appellants’ Specification in order to support the conclusion that the claimed subject matter would have been obvious. In re Lintner, 458 F.2d 1013, 1016 (CCPA 1972). In that regard, we are mindful that a “reference may be read for all that it teaches, including uses beyond its primary purpose.” In re Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012), citing KSR, at 418–21. In any event, the Renaud reference is directed to a swimming pool application. Renaud, Abstract. Thus, Appellant’s nuclear waste water argument amounts to an individual attack on one reference in the Examiner’s two reference combination. However, 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 Appeal 2020-004804 Application 15/764,471 7 Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellant’s characterization of the factual record before us does not withstand careful scrutiny. First of all, Appellant’s characterization of Strohmayer’s water as being “too murky” for use with a camera system is greatly exaggerated. Appeal Br. 10. What Strohmayer actually teaches is that, due to operation of the cleaning system: [T]he pool bottom is completely cleaned and the storage containers exposed such that they can subsequently be removed from the nuclear facility pool and sent for disposal. Strohmayer ¶ 14 (emphasis added). Furthermore, Appellant’s characterization that Strohmayer’s cameras look “along the waterline” does not square with the actual teachings of Strohmayer. Appeal Br. 10; Strohmayer ¶ 25. Appellant provides no convincing explanation as to why Strohmayer’s cameras would be termed “overview” cameras if their only view was laterally along the waterline. Strohmayer actually teaches that its “overview” cameras permit observation of the surroundings of platform 62 “during lowering, lifting, and pumping,” which are operations that take place beneath the platform. Strohmayer ¶ 25. If the pool water was “too murky” to allow cameras to see the bottom of the pool, operator 88 would have no means to determine how to winch pump 66 to the proper depth for vacuuming sludge from the bottom of the pool. Id. Fig. 3. A person of ordinary skill in the art would understand that image data from the cameras is sent to operator 88 to control the winch so that pump 66 is lowered to an appropriate depth in the pool. Appellant’s argument that the Examiner fails to provide a sufficient rationale for the proposed combination is not persuasive. The Examiner Appeal 2020-004804 Application 15/764,471 8 finds that it would been obvious to a skilled artisan to modify Strohmayer with Renaud’s wheeled system “to allow for the cleaner to move along the bottom of the surface independently when cleaning the bottom surface of the pool.” Ans. 5. It is readily apparent that having the cleaner move along the bottom of the pool obviates the need to provide a winch mechanism to raise and lower the pump and vacuum hose and, moreover, obviates the need for an operator, or other means, to control the winch mechanism. Renaud’s visual system and associated data processing facilities allow the cleaner to navigate around the pool autonomously without the need for a human operator. Renaud ¶¶ 29–31. The Examiner’s rationale constitutes sufficient articulated reasoning with rational underpinning to support the rejection. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (requiring an obviousness conclusion to be based on explicit articulated reasoning with rational underpinning). Lastly, we address Appellant’s argument that the Examiner’s proposed combination is not accompanied by a reasonable expectation of success. Appellant’s lack of a reasonable expectation of success argument appears to be predicated on Appellant’s erroneous assumption that Strohmayer’s water is “too murky” to permit image controlled autonomous navigation. Appeal Br. 15 (“autonomous movement of a cleaner . . . would be ‘blind’”). We have previously addressed how and why this is an erroneous assumption. Furthermore, such argument ignores the fact that the Examiner’s proposed combination contemplates operation in a swimming pool and not a nuclear waste pool. Final Act. 3, Ans. 4. “An obviousness determination requires finding that a person of ordinary skill in the art would have been motivated to combine or modify the Appeal 2020-004804 Application 15/764,471 9 teachings in the prior art and would have had a reasonable expectation of success in doing so.” Regents of Univ. of Cal. v. Broad Inst., Inc., 903 F.3d 1286, 1291 (Fed. Cir. 2018). “The reasonable expectation of success requirement refers to the likelihood of success in combining references to meet the limitations of the claimed invention.” Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359, 1367 (Fed. Cir. 2016). In other words, “one must have a motivation to combine accompanied by a reasonable expectation of achieving what is claimed in the patent-at-issue.” Id. “For obviousness under § 103, all that is required is a reasonable expectation of success.” In re O'Farrell, 853 F.2d 894, 904 (Fed. Cir. 1988); see also Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1364 (Fed. Cir. 2007) (“the expectation of success need only be reasonable, not absolute”). In performing an obviousness analysis, we are mindful that we view the prior art from the vantage point of a person of ordinary skill in the art. Custom Accessories, Inc. v. Jeffrey-Allan Industries, Inc., 807 F.2d 955, 962 (Fed. Cir. 1986) (explaining that obviousness is determined by reference to a person of ordinary skill in the art as opposed to what may be obvious to a judge, or to a layman, or to those skilled in remote arts, or to someone of extraordinary skill in the art). “A person of ordinary skill is also a person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 421. The Examiner is deemed competent to make findings, informed by scientific knowledge, as to the meaning of prior art references to such persons of ordinary skill in the art and the motivation those references would provide them. In re Berg, 320 F.3d 1310, 1315 (Fed. Cir. 2003). Absent legal error or contrary factual evidence, those findings can establish a prima facie case Appeal 2020-004804 Application 15/764,471 10 of obviousness. Id. When a prima facie case of obviousness is made, the burden shifts to Appellant to come forward with evidence and/or argument supporting patentability. In re Giannelli, 739 F.3d 1375, 1379 (Fed. Cir. 2014). Here, Appellant’s evidence and argument fails to effectively rebut the Examiner’s prima facie case. Essentially, when the teachings of Strohmayer are combined with those of Renaud in the manner proposed by the Examiner, the resulting combination yields a swimming pool cleaner that largely resembles Renaud except that the sensors or cameras for the vision system are relocated so as to be disposed on a tethered float, as taught by Strohmayer. Renaud’s sensors would operate as before, except perhaps from an improved vantage point. Appellant presents neither evidence nor persuasive technical reasoning that accomplishing this objective requires more than ordinary skill or produces unexpected results. When a patent “simply arranges old elements with each performing the same function it had been known to perform” and yields no more than one would expect from such an arrangement, the combination is obvious. KSR, at 417, quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282 (1976). Having reviewed the prior art and Appellant’s arguments, we are of the opinion that the Examiner’s proposed combination would have been accompanied by the requisite reasonable expectation of success. 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 1–10. Appeal 2020-004804 Application 15/764,471 11 Claims 11, 12 Appellant argues independent claim 11, but does not separately argue claim 12 that depends therefrom. Appeal Br. 11–16. We will consider the arguments for claim 11 and claim 12 will stand or fall therewith. 37 C.F.R. § 41.37(c)(1)(iv). Claim 11 is a method claim that is substantially similar in scope to claim 1 except that it includes limitations directed to first detecting and then moving to an uncleaned area on the pool bottom. Claims App. Appellant argues that neither Strohmayer nor Renaud detects an uncleaned area using an image acquisition means secured to a float. Appeal Br. 11–12. The Examiner states that Strohmayer obtains image information that allows an operator to direct the cleaning system to an uncleaned area. Ans. 3–4. According to the Examiner, the operator can remotely control the pool cleaning device by using images obtained from a camera as a guide that aids the operator in controlling the device. Id. at 4. The Examiner finds that such meets the claim limitation. Id. Furthermore, the Examiner finds that Renaud’s vision system detects uncleaned areas and directs the pool cleaner to such areas. Id. As previously discussed, Renaud teaches a cleaner that moves autonomously and uses a vision system to detect and navigate to uncleaned areas on the pool bottom. Renaud ¶¶ 29–31. Moreover, as previously discussed, combining Renaud with Strohmayer locates the vision system on a float. Next, Appellant argues against the combinability of Strohmayer and Renaud and further argues that such a combination would not have been accompanied by a reasonable expectation of success. Appeal Br. 14–16. Appeal 2020-004804 Application 15/764,471 12 These arguments are identical to the arguments that we previously considered and found unpersuasive with respect to claim 1 and find equally unpersuasive here. We sustain the rejection of claims 11 and 12. Claim 13 Claim 13 is a method claim that is substantially similar to claim 11, except that, instead of locating uncleaned areas, it determines a swimming pool surface geometry in the vicinity of the cleaning device and adapts the trajectory of the cleaning device accordingly. Claims App. In traversing the rejection, Appellant relies on arguments that we previously considered and found unpersuasive with respect to claims 1 and 11 and find equally unpersuasive here. Appeal Br. 16–17. Further, Renaud contains a clear teaching that it identifies coordinates around the swimming pool and/or senses the layout of the pool such that it can monitor the position of the cleaner at all times. Ans. 5; Renaud ¶ 31. We are not apprised of error and, therefore, sustain the rejection of claim 13. Claims 14, 15 Appellant argues independent claim 14, but does not separately argue claim 15 that depends therefrom. Appeal Br. 17–18. We will consider the arguments for claim 14 and claim 15 will stand or fall therewith. 37 C.F.R. § 41.37(c)(1)(iv). Claim 14 is substantially similar in scope to claim 11 except that it recites a system claim instead of a method claim. Claims App. In traversing the rejection, Appellant relies on arguments that we previously considered Appeal 2020-004804 Application 15/764,471 13 and found unpersuasive with respect to claims 1 and 11 and find equally unpersuasive here. Appeal Br. 17–18. For reasons previously expressed with respect to the rejections of claims 1 and 11, we sustain the Examiner’s rejection of claims 14 and 15. CONCLUSION Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-15 103 Strohmayer, Renaud 1-15 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