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 .
Election/Restrictions
Applicant’s election without traverse of species A in the reply filed on 11/14/2025 is acknowledged.
Newly submitted claims 21-30 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
Elected Invention I: Claims 1-10 are directed to a toilet.
Invention II: Claims 21-25 are directed to a flush selection unit.
Invention III: Claims 26-30 are directed to a method of flushing a toilet.
Inventions I and II are related as combination and subcombination. Inventions in this relationship are distinct if it can be shown that (1) the combination as claimed does not require the particulars of the subcombination as claimed for patentability, and (2) that the subcombination has utility by itself or in other combinations (MPEP § 806.05(c)). In the instant case, the combination as claimed does not require the particulars of the subcombination as claimed because claim 1 does not require a controller, emitters, and detectors. The subcombination has separate utility such as determining flow rates in a sink drain.
Inventions I and III are related as product and process of use. The inventions can be shown to be distinct if either or both of the following can be shown: (1) the process for using the product as claimed can be practiced with another materially different product or (2) the product as claimed can be used in a materially different process of using that product. See MPEP § 806.05(h). In the instant case the product can be used in a materially different process such as providing a seat for a user.
Since applicant has elected originally presented Invention I (a toilet), claims 21-30 are withdrawn from consideration as being directed to a non-elected invention (a flush selection unit and a method of flushing a toilet). See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Rejections - 35 USC § 103
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 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent 10,253,486 (hereinafter Plas) in view of WO 2022192942 (hereinafter Cummings).
Regarding claim 1, Plas discloses a toilet (1) comprising: a bowl (2) including a sump (4); a trapway (9) in fluid communication with the sump; a first photogate (21) coupled to the sump and configured to detect a presence of waste in the sump (col. 8, ln. 22-28); and a second photogate (22) coupled to the location of an amount of waste within the toilet to trigger an appropriate flush or prevent additional flushing as evidenced by the teachings mentioned above.
Regarding claim 2, Plas shows the trapway (9) extends horizontally away from the sump trap and thus fails to show wherein the trapway includes a weir, a first portion extending upwardly from the sump to the weir, and a second portion extending downwardly from the weir, and wherein the second photogate is coupled to the second portion of the trapway. Attention is again turned to Cummings which shows when configuring a trapway to couple with an outlet flange that is floor mounted, it is advantageous to configure the trapway to include a weir, a first portion extending upwardly from the sump to the weir, and a second portion extending downwardly from the weir to ensure a proper siphon during flushing and retention of the water seal in the bowl after flushing (note annotated fig. below). It would have been obvious to one having ordinary skill in the art before the effective filing of the claimed invention to configure the trapway of Plas to include a weir, a first portion extending upwardly from the sump to the weir, and a second portion extending downwardly from the weir to ensure a proper siphon during flushing and retention of the water seal in the bowl after flushing when installing the toilet with a floor mounted flange as is known in the art and evidenced by the teachings above.
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Regarding claim 3, Plas shows the first and second photogates have emitters (21, 22) and corresponding detectors (30, 31) and a third emitter (23), but fails to show further comprising: a third photogate coupled to the trapway, the third photogate including a third emitter configured to emit a third light into the trapway and a third detector configured to detect an intensity of the third light. Attention is again turned to Cummings which teaches using a plurality of sensors located in different areas of the bowl to detect water levels to ascertain details of flushing, particularly when detecting if a blockage has occurred somewhere in the flushing pathway (par. 252-254). Cummings further teaches that including a first sensor for detecting water levels in the sump (807A), and second (807B) and third (807C) sensors for detecting water levels in the trapway are suitable and usable together (par. 253). It would have been obvious to one having ordinary skill in the art before the effective filing of the claimed invention to modify the toilet of Plas to include a third photogate coupled to the trapway, the third photogate including a third emitter configured to emit a third light into the trapway and a third detector configured to detect an intensity of the third light to determine the severity of blockages in a toilet system as evidenced by the teachings mentioned above.
Regarding claim 4, the combination of Plas and Cummings fails to show wherein the third photogate is coupled to the first portion of the trapway. However, Applicant has not placed any criticality on the location of the third photogate, and furthermore, it appears that the system of Plas in view of Cummings would perform equally well with a photogate located anywhere along the trapway as multiple and alternate locations are contemplated by both (see Plas col. 9, ln. 29-30 and Cummings par. 253, 254). Accordingly, it would have been obvious to one having ordinary skill in the art before the effective filing of the claimed invention to locate the third photogate to be coupled to the first portion of the trapway as a design consideration which fails to patentably distinguish over the prior art of Plas and Cummings. See MPEP 2144.04(IV)(A).
Regarding claim 5, Plas shows wherein the first photogate includes a first emitter (21) configured to emit a first light into the sump and a first detector (30) configured to detect an intensity of the first light, and wherein the second photogate includes a second emitter (22) and under the modification in view of Cummings would be configured to emit a second light into the trapway and a second detector (31) configured to detect an intensity of the second light.
Regarding claim 6, Plas shows wherein the first emitter (21) and the first detector (30) are disposed on opposite sides of the sump (fig. 2), and under the modification in view of Cummings would be configured such that the second emitter (22) and second detector (31) are disposed on opposite sides of the trapway.
Regarding claim 7, Plas shows further comprising: a controller (8), wherein the first detector is configured to detect an attenuation of the first light emitted by the first emitter, and wherein the controller is configured to determine a type of waste disposed in the sump based on the attenuation of the first light (col. 13, ln. 55-col. 14, ln. 2).
Regarding claim 8, under the modification in view of Cummings to have the sensor located in the trapway, the second detector of Plas is configured to detect an attenuation of the second light emitted by the second emitter, and wherein the controller is configured to determine a type of waste disposed in the trapway based on the attenuation of the second light (col. 13, ln. 55-col. 14, ln. 2).
Regarding claim 9, under the modification in view of Cummings, Cummings teaches wherein when the controller determines that waste is present between the first photogate, the controller monitors the second photogate during a flush cycle to determine whether waste is present between the second photogate during the flush cycle (par. 254).
Regarding claim 10, under the modification in view of Cummings, Cummings teaches wherein when the controller determines that waste is not present between the second photogate during the flush cycle, the controller initiates a subsequent flush cycle (par. 252, 254).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US Patent 6,535,134 is directed to the state of the art of sensors in sumps/trapways for controlling flushing of a toilet; US Patent 5,909,041 is directed to the state of the art of photogate sensors.
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