DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claim 2 is objected to because of the following informalities: the phrase “designed in the manner of” should be rewritten to conform with US claim drafting standards. Examiner recommends simply stating “wherein the proximity sensor is an infrared sensor.” Appropriate correction is required.
Claim 7 is objected to because of the following informalities: the phrase “comprising at least the steps outlined below” should be rewritten to conform with US claim drafting standards. Examiner recommends simply stating “a method for controlling a sanitary faucet comprising the steps of:” Appropriate correction is required.
Claim 11 is objected to under 37 CFR 1.75(c) as being in improper form because a multiple dependent claim must be in the alternative. Claim 11 depends from both 7 and 10. See MPEP § 608.01(n). Accordingly, the claim has not been further treated on the merits.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Specifically, claim 10 is being interpreted as invoking 112(f) for the phrase “means suitable for performing the steps of the method according to claim 7.” The suitable structure is a control unit or functional equivalent thereof.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 10 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 10, it is unclear when infringement occurs since the preamble is directed to an apparatus, but the claim also requires a method as it depends on claim 7. Does infringement occur only when the method steps are performed, or does infringement occur so long as the apparatus is configured to perform the method steps? See MPEP 2173.05(p) which states: “A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. See In re Katz Interactive Call Processing Patent Litigation, 639 F.3d 1303, 1318, 97 USPQ2d 1737, 1748-49 (Fed. Cir. 2011). In Katz, a claim directed to "[a] system with an interface means for providing automated voice messages…to certain of said individual callers, wherein said certain of said individual callers digitally enter data" was determined to be indefinite because the italicized claim limitation is not directed to the system, but rather to actions of the individual callers, which creates confusion as to when direct infringement occurs. Katz, 639 F.3d at 1318, 97 USPQ2d at 1749 (citing IPXL Holdings v. Amazon.com, Inc., 430 F.3d 1377, 1384, 77 USPQ2d 1140, 1145 (Fed. Cir. 2005), in which a system claim that recited "an input means" and required a user to use the input means was found to be indefinite because it was unclear "whether infringement … occurs when one creates a system that allows the user [to use the input means], or whether infringement occurs when the user actually uses the input means."); Ex parte Lyell, 17 USPQ2d 1548 (Bd. Pat. App. & Inter. 1990) (claim directed to an automatic transmission workstand and the method of using it held ambiguous and properly rejected under 35 U.S.C. 112, second paragraph).”
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent 8,572,772 (hereinafter Wolf).
Regarding claim 1, Wolf discloses a sanitary faucet (1), at least comprising:- a faucet body (20) having at least one outlet opening (94); - a proximity sensor (72, 74, 76) for determining a distance from an object (col. 9, ln. 1-12); and - a control unit (50) by means of which at least one program of the sanitary faucet can be selected or controlled depending on the distance of the object (col. 9, ln. 45-64).
Regarding claim 2, wherein the proximity sensor (72, 74, 76) is designed in the manner of an infrared sensor (col. 9, ln. 26-29).
Regarding claim 3, wherein the runtime of a sensor signal of the proximity sensor (4) can be determined (col. 6, ln. 4-8; col. 9, ln. 4-5).
Regarding claim 4, wherein the proximity sensor (72, 74, 76) can be used to monitor a plurality of distance zones (col. 9, ln. 45-64).
Regarding claim 5, wherein a first distance zone (22A) has a first distance from the proximity sensor (distance to left counter), a second distance zone (22B) has a second distance from the proximity sensor (distance to sink dam) and a third distance zone (22C) has a third distance from the proximity sensor (distance to right counter) (col. 5, ln. 53-65;col. 10, ln. 16-24).
Regarding claim 6, comprising a display (82).
Regarding claim 7, Wolf discloses a method for controlling a sanitary faucet; comprising at least the steps outlined below: a) Using a proximity sensor (72, 74, 76) to determine a distance of an object (col. 9, ln. 1-12); and b) Selecting or controlling at least one program of the sanitary faucet depending on the distance from the object (col. 9, ln. 45-64).
Regarding claim 8, wherein in step b) at least one of the following programs can be selected or controlled:- Washing hands; - Filling at least one container with a predetermined quantity of liquid; or - Activating and deactivating the dispensing of a liquid via an outlet opening of the sanitary faucet (col. 10, ln. 1-15).
Regarding claim 9, wherein a status of the sanitary faucet (water temperature is a status) or instructions for a user of the sanitary faucet are shown on a display (82) of the sanitary faucet (col. 9, ln. 30-44).
Regarding claim 10, a sanitary faucet (20) comprising a proximity sensor (72, 74, 76) and means (50) suitable for performing the steps of the method according to claim 7 (col. 9, ln. 1-12; 45-64).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US Patent 9,598,846 is directed to the state of sanitary faucets with proximity sensors that detect different zones.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANIE M LOEPPKE whose telephone number is (571)270-5208. The examiner can normally be reached M-F 9AM-5PM ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Angwin can be reached at (571) 270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JANIE M LOEPPKE/Primary Examiner, Art Unit 3754