Ex Parte Leroy

Patent Trial and Appeal Board

Jul 16, 2013

11731412 (P.T.A.B. Jul. 16, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte PIERRE CAROL LEROY
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Appeal 2011-005079
Application 11/731,412
Technology Center 3700
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Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
GAY ANN SPAHN, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pierre Carol Leroy (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s rejection of claims 1-17 and 19.1 We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 The Examiner withdrew the rejection of claims 18 and 20. Ans. 8.
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Claimed Subject Matter
The claimed subject matter relates to a “clothes dryer employing an
electrically operable oil-filled radiator for providing required heat” and a
“child safety barrier for use with a clothes dryer . . . having an opening large
enough for [a] child to pass through.” Spec. 1, ll. 11-16. Claims 1, 14, and
19 are the independent claims on appeal. Claim 14, reproduced below, is
illustrative of the appealed subject matter.
14. A child safety system for an appliance having a
door aperture formed in one wall thereof which is sized
sufficiently to enable passage of a child therethrough and into a
cavity of the appliance, the door aperture being defined by a
peripheral surface disposed within the one wall of the
appliance, the appliance further having a door movable between
an open position for uncovering the door aperture and a closed
position for covering the door aperture, the door is disposed
generally planar with the one wall of the appliance in the close
position, said child safety system comprising:
(a) a child safety device positioned within the door
aperture and within the peripheral surface thereof, said child
safety device sized to cover a predetermined portion of the door
aperture sufficient to prevent passage of the child therethrough
when the door is disposed in the open position; and
(b) a securing means for releaseably securing said safety
device in a position for selectively covering and uncovering the
predetermined portion of the door aperture, said securing means
including at least a pair of receptacles protruding into the door
aperture from the peripheral surface thereof and at least a pair
of members, each of said at least a pair of members extending
outwardly from a peripheral edge of said child safety device
and operatively engaging a respective receptacle.
App. Br., Clms. App’x.

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Application 11/731,412

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Rejections
The following Examiner’s rejections are before us for review:
I. claims 14-17 are rejected under 35 U.S.C. § 102(e) as
anticipated by Daily (US 4,091,548, issued May 30, 1978);
II. claim 19 is rejected under 35 U.S.C. § 102(e) as anticipated by
Svetlik (US 6,502,859 B1, issued Jan. 7, 2003);
III. claims 1-3 and 8-13 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Ford (US 2006/0107548 A1, published May 25, 2006),
Daily, and Baumanns (US 3,199,568, issued Aug. 10, 1965); and
IV. claims 4-7 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Ford, Daily, Baumanns, and Kushner (US 3,558,110,
issued Jan. 26, 1971).

OPINION
Rejection I – Anticipation based on Daily
Appellant argues that Daily fails to anticipate claim 14’s language of a
child safety device “that is positioned within the door aperture 14 and
within the peripheral surface 15 thereof.” App. Br. 10. In particular,
Appellant argues that “[t]he basket 54 of Daily, that may be construed for
the sake of argument as a child safety device, is attached to the door 32 by
way of bracket 52 and fasteners 62 and is disposed external to the housing
12 when the door 32 is in open position.” App. Br. 11.
The Examiner responds that paragraph (a) of claim 14 as quoted supra
is a “statement of intended use” and Daily’s child safety device, i.e., “basket
54[,] is sized sufficiently to prevent passage of a child.” Ans. 12.
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Appellant replies that “the Examiner failed to provide any factual
evidence supporting” that Daily’s child safety device (basket 54) is sized
sufficiently to prevent passage of a child. Reply Br. 2.2 Appellant refutes
the Examiner’s response concerning Daily’s child safety device (basket 54)
being sized sufficiently to prevent passage of a child by pointing to Daily’s
Figures 3 and 4, which evidence “that sufficient space is present between the
top of the basket 54 and the peripheral edge of the semicircular opening 26,”
in order “for a child to enter the cavity of the appliance over the top or even
the side of the basket 54.” Reply Br. 3.
We are persuaded by Appellant’s arguments. With respect to
Appellant’s argument that the child safety device (Daily’s basket 54) is not
“positioned within the door aperture and within the peripheral surface
thereof,” we note that when Daily’s door 32 is completely open as shown in
Figures 3 and 4, the child safety device (basket 54) is not positioned within
the door aperture 26 and within the peripheral surface thereof. Additionally,
when Daily’s door 32 is completely closed as shown in Figures 1 and 2, only
a small portion of the upturned arms 58 of the mounting bracket 52 is
positioned within the door aperture 26 and the peripheral surface thereof;
however, Daily’s child safety device (basket 54) is not positioned within the
peripheral surface of the door aperture 26. Thus, Appellant is correct that
Daily’s child safety device (basket 54) is not positioned as required by claim
14.

2 Although Appellant’s Reply Brief does not have page numbers thereon,
page 1 is the page beginning with the line “IN THE UNITED STATES
PATENT AND TRADEMARK OFFICE” and ending with the line
“updating the summary of claimed subject matter with respect to the,” and
the remainder of the pages are numbered pages 2-7 consecutively therefrom.
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Moreover, the Examiner has failed to provide factual evidence to
support the finding that Daily’s child safety device (basket 54) is sized
sufficiently to prevent passage of a child therethrough when the door 32 is
disposed in the open position. Daily’s Figures 3 and 4 show the door 32 of
the clothes dryer 10 in the open position and the basket 54 mounted on the
pins 64 extending from the upturned arms 58 of a bracket 52. Since the
basket 54 is capable of pivoting on the pins 64 extending from the upturned
arms 58, the basket may be pivoted away from the opening 26 of the clothes
dryer 10 so that a child could pass through the opening 26. Thus, Daily’s
basket 54 is not sized to prevent passage of a child through the opening 26
when the door 32 is disposed in the open position.
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 14, and claims 15-17 dependent thereon, under 35 U.S.C.
§ 102(e) as anticipated by Daily.

Rejection II – Anticipation based on Svetlik
Independent claim 19 is directed to a child safety device which
includes, inter alia, a peripheral frame positioned within the peripheral
surface of the door aperture. App. Br., Clms. App’x.
Appellant argues that “Svetlik clearly fails to anticipate [the] claimed
peripheral frame 110, as Svetlik only provides a pair of vertically disposed
side members 59 which do not constitute [a] ‘peripheral frame’.” App. Br.
14.
The Examiner responds that “the structure of [sic, Svetlik’s child
safety device] must include the framing of the vehicle device in order to
meet the claimed peripheral frame.” Ans. 13.
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The Examiner’s finding that the “framing of the vehicle device”
constitutes the claimed peripheral frame is unreasonable. A person of
ordinary skill in the art would not agree that Svetlik’s child safety devices
(any of the front safety net assembly 26 and left and right side safety net
assemblies 29 each including the respective roof support members 161, 164
and the side safety net assemblies 29 including the respective roof support
members 206, 209 of the automobile as the peripheral frame) are “positioned
within the peripheral surface of the door aperture” in order to satisfy the
remainder of the claim recitation with respect to the peripheral frame. See
Svetlik, Abstr., and col. 5, ll. 2-8, 48-51, and 56-65, and col. 6, ll. 10-13, 29-
32, and 39-52.
Accordingly, we do not sustain the Examiner’s rejection of claim 19
under 35 U.S.C. § 102(e) as anticipated by Svetlik.

Rejection III – Obviousness based on Ford, Daily, and Baumanns
Independent claim 1 is directed to a clothes dryer including, inter alia,
a housing having a door aperture, a door, a hinge means for hingeably
connecting said door to said housing for selectively opening and closing said
door aperture, and an electrically operable oil-filled radiator positioned
within said housing below a rotating drum. App. Br., Clms. App’x.
The Examiner finds that Ford substantially discloses the subject
matter of claim 1, but fails to disclose the hinge means, which is taught by
Ford, and the electrically operable oil-filled radiator, which is taught by
Baumanns. Ans. 9-11. The Examiner concludes that “[i]t would have been
obvious to one skilled in the art to combine the teachings of Ford in view of
Daily with the features of Baumanns for optimizing the clothes drying
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functions with precise structural and energy efficient components.” Ans. 11.
Emphasis added.
Appellant argues that “the Examiner failed to provide ‘explicit
analysis of why the disclosures of the references should be combined’”
(App. Br. 22), and “the prior art ‘did not include any hint or suggestion or
even the common sense to mount an electrically operable oil-filled radiator
below the drum and dry clothes by way of heat rising through the drum at
the time of the invention’” (App. Br. 22). Further, Appellant directs the
Board’s attention “to paragraph [0003] of Ford, wherein it is clearly
disclosed that ‘the ambient air clothes dryer is a clothes dryer devoid of any
dedicated heating elements or systems for heating air,’” and paragraph
[0006] of Ford which “speaks negatively . . . about the disadvantages of
using conventional cloth[es] dr[y]ers that generate heat for drying purposes.”
App. Br. 20.
The Examiner responds “to [A]ppellant’s argument that there is no
teaching, suggestion, or motivation to combine the references,” by
“recogniz[ing] that obviousness may be established by combining or
modifying the teachings of the prior art to produce the claimed invention
where there is some teaching, suggestion, or motivation to do so found either
in the references themselves or in the knowledge generally available to one
of ordinary skill in the art.” Ans. 14 (citing In re Fine, 837 F.2d 1071 (Fed.
Cir. 1988); In re Jones, 958 F.2d 347 (Fed. Cir. 1992); and KSR Int'l Co. v.
Teleflex, Inc., 550 U.S. 398 (2007)).
We, like the Examiner, understand Appellant’s arguments to be
attacking the Examiner’s conclusion, and we are persuaded that the
Examiner’s articulated reasoning for combining Ford, Daily, and Baumanns,
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i.e., “for optimizing the clothes drying functions with precise structural and
energy efficient components,” lacks rational underpinning. See KSR, 550
U.S. at 418 (holding that “rejections on obviousness grounds cannot be
sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.”). As pointed out by Appellant, Ford
specifically states that his “ambient air clothes dryer is a clothes dryer
devoid of any dedicated heating elements or systems for heating the air.”
Ford 1, para. [0003]. Thus, the Examiner’s proposed addition of the oil
heating appliance of Baumanns would not serve the purpose of optimizing
energy efficiency. Ans. 11. Rather, the addition of Baumanns’s oil heating
appliance would use more energy than the ambient air clothes dryer of Ford.
Thus, the Examiner’s articulated reasoning for combining Ford, Daily, and
Baumanns lacks rational underpinning.
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 1, and claims 2, 3, and 8-13 dependent thereon, under 35
U.S.C. § 103(a) as unpatentable over Ford, Daily, and Baumanns.

Rejection IV – Obviousness based on Ford, Daily, Baumanns, and Kushner
The Examiner’s rejection of claims 4-7 relies on the same articulated
reasoning which was found to lack rational underpinning for the reason
discussed supra with respect to the rejection of claim 1. Accordingly, for
the same reason as discussed supra with respect to the rejection of claim 1,
we do not sustain the Examiner’s rejection of claims 4-7 under 35 U.S.C.
§ 103(a) as unpatentable over Ford, Daily, Baumanns, and Kushner.

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DECISION
We reverse the Examiner’s decision to reject claims 1-17.

REVERSED

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