Ex Parte Kuecuek et al

Board of Patent Appeals and Interferences

Feb 9, 2012

11658062 (B.P.A.I. Feb. 9, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte CENGIZ KUECUEK and BERND SCHESSL
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Appeal 2010-010675
Application 11/658,062
Technology Center 1700
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Before TERRY J. OWENS, CATHERINE Q. TIMM, and KAREN M.
HASTINGS, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL

Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 15-30. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We REVERSE.

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Claims 15 and 30 are illustrative of the claimed subject matter:
15. A dishwasher comprising:

a bottom module; and

a frameless rinsing container having a bottom, side walls, and a top
wall, the bottom module forming the bottom of the rinsing container and the
top wall of the rinsing container including a separate top part.

30. A modular structure for a dishwasher, the modular structure
comprising:

a frameless rinsing container including:

a plurality of side walls;

a top wall that is separate from the side walls; and

a bottom module that is separate from the side walls.

The Examiner maintains, and the Appellants appeal, the following
rejections1:
1) claims 15 and 30 under 35 U.S.C. § 112, second paragraph, as
indefinite;
2) claims 15 and 30 under 35 U.S.C. § 102(b) as anticipated by
Reuter (US 6,550,488 B2, issued April 22, 2003);
3) claims 15, 16, 19-22, 25, 26, 29, and 30 under 35 U.S.C. § 103(a)
as being unpatentable over Jerg (US 2004/0003832 A1, pub. Jan. 08,
2004) in view of Reuter;
4) claims 18, 23, and 24 under 35 U.S.C. § 103(a) as being
unpatentable over the combined prior art of Jerg, Reuter and

1 The § 112, first paragraph rejection has been withdrawn by the Examiner
(Ans. 11).
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Wrangberth (US 5,368,379, issued Nov. 29, 1994);
5) claim 17 under 35 U.S.C. § 103(a) as being unpatentable over the
combined prior art of Jerg, Reuter; and Altenschöpfer (US 4,465,612,
issued Aug. 14, 1984);
6) claims 27 and 28 under 35 U.S.C. § 103(a) as being unpatentable
over the combined prior art of Jerg, Reuter, and Somaino (FR
2,595,937, pub. Sep. 25, 1987).

ANALYSIS
The § 112, second paragraph, Rejection

It is well established that, as stated in Miles Labs., Inc. v. Shandon,
Inc., 997 F.2d 870, 875 (Fed. Cir. 1993) (citation omitted):
The test for definiteness is whether one skilled in the art
would understand the bounds of the claim when read in light of
the specification. If the claims read in light of the specification
reasonably apprise those skilled in the art of the scope of the
invention, § 112 demands no more.

The Examiner determines that each of claims 15 and 30 is indefinite
because of the term “frameless”. However, after consideration of the record
before us, we agree with Appellants that the claims reasonably apprise those
skilled in the art of the scope of the invention. As aptly pointed out by
Appellants, the Specification discusses the problems (e.g., expense) in the
prior art wherein the rinsing container of a dishwasher requires that a
framework is used (App. Br. 13; Spec. 1:17-23), whereas Appellants’
description of their invention focuses on the simplified, less expensive
structure of the rinsing container (App. Br. 13; Reply Br. 16). Appellants
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further point out that Figure 1 of their invention (which is the only figure)
does not include a frame upon which the rinsing container is arranged (id.).
While claims 15 and 30 are broad, they are not indefinite on the basis
of breadth. See In re Gardner, 427 F.2d 786, 788 (CCPA 1970) (“[B]readth
is not indefiniteness.”). Accordingly, we cannot sustain the Examiner's
rejection of claims 15 and 30 which appears to be based mainly on the
breadth with which the Examiner has interpreted claim 1, an interpretation
with which we do not agree.
The § 102 Rejection
After consideration of the record before us, we agree with Appellants
that the Examiner has not shown where Reuter teaches a frameless rinsing
container for a dishwasher as recited in the claims 15 and 30 (App. Br. 16,
17 ).
Specifically, Appellants have argued that the modular storage cabinet
of Reuter is not “frameless” as required by each of claims 15 and 30 (id.; see
also Reply Br. 22-24). The Examiner has provided no response to
Appellants’ contention that the tubes 59 and C-shaped locking sleeves of
Reuter “form a frame of the modular office storage cabinet since the
structure requires these pieces to support and secure the wall panels
together” (App. Br. 17; generally Ans., including Response to Argument
section). Thus, the preponderance of the evidence is in favor of Appellants’
position on this issue.
In addition, the Examiner has not directed our attention to any
evidence nor provided any persuasive line of technical reasoning that the
modular storage cabinet of Reuter is a dishwasher, or is capable of being
used for a dishwasher, when the term “dishwasher” is given its broadest
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reasonable interpretation consistent with the Specification (see generally
Ans.; e.g., App. Br. 16, 17; Reply Br. 24). The Examiner’s mere conclusory
statement that the storage cabinet of Reuter could be so used (e.g. Ans. 13,
14) falls short of meeting his burden to establish a prima facie case of
unpatentability, and also requires an unreasonably broad interpretation of the
claim language.2 See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364
(Fed. Cir. 2004) (The scope of the claims in patent applications is not
determined solely on the basis of the claim language, but upon giving claims
their broadest reasonable construction in light of the specification as it would
be interpreted by one of ordinary skill in the art.); Phillips v. AWH Corp.,
415 F.3d 1303, 1315 (Fed. Cir. 2005) (“[T]he specification ‘is always highly
relevant to the claim construction analysis. Usually, it is dispositive; it is the
single best guide to the meaning of a disputed term.’” (Internal citation
omitted.))3
Under these circumstances, we reverse the § 102 rejection of claims
15 and 30.
The § 103 Rejections
All of the § 103 rejections made by the Examiner rely upon the
combined prior art of Jerg and Reuter. Appellants argue that since each of

2 It is noted, however, that GB 1,227,699 (shown on IFW as a “Foreign
Reference” of 4 pages) listed on the PTO-1449 IDS form filed by Appellants
on 01/19/2007 appears to teach a frameless sheet metal tub for a
dishwashing machine comprised of U-shaped wall member 3, cover plate 4
and bottom tray member 2.
3 It has also been held that when the preamble is essential to understand
limitations or terms in the claim body, the preamble limits claim scope.
Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1306 (Fed. Cir.
1999).

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Jerg and Reuter include a frame, they do not teach a frameless rinsing
container as required in claims 15 and 30 (App. Br. 19). The Examiner
admits that Jerg discloses a dishwasher rinsing container having a frame, but
states that “it would be obvious to provide a frameless rinsing container,
because such would only require separating the frame of JERG et al., and it
has been held that constructing a formerly integral structure in various
elements involves only routine skill in the art” (Ans. 5), and relies upon
Reuter as evidence that “such [frameless] container construction is well
known” (Ans. 5). As pointed out by Appellants, Reuter does not teach a
frameless rinsing container, and the Answer fails to provide any reasonable
explanation as to why or how such a modification would be made to the
framed rinsing container of Jerg (Reply Br. 27).
The Examiner has not relied upon any of the other applied references
to remedy the deficiencies of Jerg and Reuter in this regard (see generally
Ans.). Thus, on this record, we are constrained to reverse all of the § 103
rejections.
DECISION
We reverse the §§ 112, 102 and 103 rejections of all the
claims on appeal.

REVERSED

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