Ex Parte Strutz

Patent Trial and Appeal Board

Dec 11, 2012

11926392 (P.T.A.B. Dec. 11, 2012)

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.
11/926,392 10/29/2007 William F. Strutz 3572B-000131/US/COC 4442
27572 7590 12/11/2012
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
EXAMINER
ROSENBAUM, MARK
ART UNIT PAPER NUMBER
3725
MAIL DATE DELIVERY MODE
12/11/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte WILLIAM F. STRUTZ
____________________

Appeal 2010-011918
Application 11/926,392
Technology Center 3700
____________________

Before: PHILLIP J. KAUFFMAN, REMY J. VANOPHEM, and
SCOTT E. KAMHOLZ, Administrative Patent Judges.

KAMHOLZ, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/926,392

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STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134(a) from the decision of the
Examiner to reject claims 24-45.1 We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.

THE CLAIMED SUBJECT MATTER
The claimed subject matter is directed to a food waste disposer having
a wireless touch pad control information system. Spec. para. [0002]. Claim
25, reproduced below, is illustrative of the claimed subject matter:
25. A food waste disposer system, comprising:
a food waste disposer having a motor and a controller
coupled to the motor; and
a control panel in wireless communication with the
controller having a plurality of switches that can be depressed
by a user to choose from a plurality of functions that the food
waste disposer can perform, upon the user depressing a switch,
the control panel wirelessly communicating to the controller
which switch the user depressed, the controller controlling the
food waste disposer in response to the wireless communication
from the control panel to perform the function associated with
the switch depressed by the user.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Drew
Kesling
Tucker
Dickson
US 2,642,232
US 3,983,553
US 4,511,781
US 5,655,834
Jun. 16, 1953
Sep. 28, 1976
Apr. 16, 1985
Aug. 12, 1997

1 Pending claims 21 and 22 are presently allowed and not on appeal.
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Application 11/926,392

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Hayes US 6,938,101 B2 Aug. 30, 2005
Admitted Prior Art (“APA”)

REJECTIONS
Appellant seeks our review of the following rejections:
Claims 25-45 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of APA; either Tucker, Dickson or
Kesling; and Hayes. Ans. 2.
Claim 24 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over the combination of APA; either Tucker, Dickson or Kesling; Hayes;
and Drew. Ans. 3.

ANALYSIS
Appellant argues claims 25-45 as a group. Br. 8. We therefore select
claim 25 as representative and decide the appeal with respect to all claims in
this group on the basis of claim 25Error! Reference source not found.
alone; see 37 C.F.R. § 41.37(c)(1)(vii) (2011). Appellant also relies on the
arguments presented for patentability of representative claim 25 as the basis
for addressing the rejection of claim 24. Br. 8. As such, the outcome of our
review of the second ground of rejection turns on our analysis of the first
ground of rejection as to claim 25.
The Examiner found that Appellant’s APA, on “the first few pages of
the specification” discloses a kitchen disposer lacking a touch pad; Tucker,
Dickson, and Kesling each disclose kitchen appliances controlled with touch
pads; and Hayes discloses household appliances controlled by wireless
communications. Ans. 2-3. The Examiner concluded that it would have
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Application 11/926,392

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been obvious to add a touch pad control to the APA disposer in view of the
desirability of such control as taught by Tucker, Dickson, and Kesling; and
the Examiner further concluded that it would have been obvious to use
wireless communication to connect the touch pad to the disposer, in view of
the advantages of wireless communication taught by Hayes. Ans. 3.
Appellant argues that (1) the APA, and Tucker, Dickson, and Kesling
all teach away from use of wireless communications, and (2) Hayes is non-
analogous art. Br. 6-7. We consider each argument in turn.
1. Whether the Cited References Teach Away from Wireless
Communications
Appellant argues that (a) the prior-art food disposers teach away from
a control panel in wireless communication with a disposer controller because
“wireless communication adds both cost and complexity” (Br. 6); (b) the
non-existence of wirelessly-controlled food disposers despite the ubiquity of
wireless communications is evidence of non-obviousness (id.); and (c)
Tucker, Dickson, and Kesling teach away from using wireless
communications because “their control panels are hard wired” (id. at 7).
Appellant’s arguments do not apprise us of error in the rejection. As
to argument (a), Appellant has not identified a “teaching away” in any
portion of any reference of record that criticizes, discredits, or otherwise
discourages the solution claimed; as such, no evidence identified by
Appellant supports this assertion. As to argument (b), the lack of evidence
of anticipation does not establish that the combination would not have been
obvious, without more, such as evidence of failed attempts to combine. As
to argument (c), the mere teaching of one alternative does not amount to a
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criticism or discrediting of another, undisclosed, alternative sufficient to
constitute a “teaching away.”
2. Whether Hayes is Non-Analogous Art
The Examiner found that Hayes discloses “the advantages in using
wireless communications to control a household appliance.” Ans. 3 (citing
Hayes col. 21, ll. 29-37 and col. 23, ll. 26-36). Appellant argues that Hayes
is non-analogous art because:
First, Hayes is not in the field of food waste disposers. Second,
Hayes is a remote control device and as such, finds application
with devices where there is reason to control them remotely. It
is also a universal type of remote control device.
As such, applicants submit that Hayes is not concerned with
simplifying the installation of a food waste disposer and control
panel, particularly since Hayes is a universal type of remote
control device.
Br. 7. In response, the Examiner notes that Hayes “is used to control a
consumer appliance and clearly a disposer is considered to be a consumer
appliance.” Ans. 5.
Appellant’s argument does not apprise us of error in the rejection,
principally because it merely offers an alternative definition of the field of
interest without explaining how or why the Examiner’s definition of
“control[ling] a household appliance” is in error. The Examiner cited
evidence in support of the position taken in the rejection, which position we
find to be reasonable. Appellant has neither cited evidence tending to show
error in the Examiner’s position nor explained why the field of interest
should be circumscribed as tightly as Appellant urges. We determine,
therefore, that a preponderance of the evidence of record does not support
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Appellant’s argument. We accordingly affirm the rejection of claims 25-45.
We affirm the rejection of claim 24 for similar reasons.

DECISION
For the above reasons, the Examiner’s decision to reject claims 24-45
is AFFIRMED.

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

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