Appeal 2006-3025
Application 10/714,110
ISSUES
The Examiner contends that the claimed method would have been
obvious to one of ordinary skill in the art at the time of the invention because
determining the solubility of the soil on dishes is inherent in the prior art’s
measurement of turbidity. Appellants contend that the Examiner’s rejection
is based on an incorrect finding that turbidity and solubility are equivalent.
The issue before us is “has the Examiner provided sufficient evidence to
establish that the step of determining solubility of the soil on dishes is
inherent in the applied prior art measurement of turbidity?”
For the reasons discussed below, we answer this question in the
negative.
FINDINGS OF FACT
1) Bashark is directed to a dishwasher which automatically terminates
the dish treating operation by sensing different conditions rather than
relying on a time controlled drying cycle. (Col. 2, ll. 46-50).
2) Bashark discloses that sensing of turbidity in the dish treating
liquid is an indication that the dishes are soiled. (See col. 3, ll. 3-19).
Appellants only address the remaining 35 U.S.C § 103(a) rejection in the
Brief (see Br. 4, ¶ VI). The Answer is inconsistent regarding a
reinstatement of these rejections for purposes of our review in this appeal.
(Answer 2 and 4). Therefore, it is unclear whether these rejections have, in
fact, been withdrawn. Moreover, since the docketing of this Appeal, U.S.
Patent No. 7,086,406 issued on August 8, 2006 from Application No.
10/713,304. Accordingly, we do not reach the provisional grounds of
rejection in this Decision, but remand the application to the Examiner for
clarification.
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