BSH Home Appliances Corporation et al.

Patent Trials and Appeals Board

Feb 24, 2020

15423617 - (D) (P.T.A.B. Feb. 24, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/423,617 02/03/2017 Casey Carr 2016P04445US 1099
46726 7590 02/24/2020
BSH Home Appliances Corporation
100 Bosch Boulevard
NEW BERN, NC 28562
EXAMINER
HANSEN, JAMES ORVILLE
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
02/24/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
MBX-NBN-IntelProp@bshg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CASEY CARR, JAMES MICHAEL EDWARDS, and
MATTHEW RICHARDS
Appeal 2019-004645
Application 15/423,617
Technology Center 3600
Before JENNIFER D. BAHR, MICHAEL L. HOELTER, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant0F1 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real parties in interest as BSH Home
Appliances Corporation and BSH Hausgeräte GmbH. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
Appellant’s invention is directed to a dishwasher having “a third or
top washware rack that is made out of wire and that has greater spacing
between an upper surface of a deepest portion of the top washware rack and
an inner surface of a top wall of the dishwashing compartment.” Spec. ¶ 1.
Claim 1, reproduced below, is illustrative of the claimed subject matter.
7. A dishwasher, comprising:
a dishwashing compartment having a loading opening;
a door configured to close the loading opening;
a bottom washware rack configured for movement out of
and into the dishwashing compartment;
a middle washware rack configured for movement out of
and into the dishwashing compartment; and
a top washware rack configured for movement out of and
into the dishwashing compartment,
wherein the middle washware rack is configured on at
least one side to hold one or more stemmed wine glasses;
wherein the top washware rack is configured as a basket
formed by a plurality of wire shaped elements, the plurality of
wire shaped elements including a front wall, a rear
wall, opposing side walls, and a bottom portion fixed together
in a non-adjustable manner as a unitary member;
wherein the plurality of wire shaped elements that form
the basket are formed with a vertically extending notch section
along at least one side edge portion in the bottom portion of the
basket, the vertically extending notch section being shaped to
accommodate base portions of the one or more stemmed wine
glasses supported on the middle washware rack; and
wherein the vertically extending notch section forms a
stepped portion in the bottom portion of the basket such that a
horizontal top surface of the stepped portion in the
bottom portion of the basket is located closer to an inner surface
of a top wall of the dishwashing compartment as compared to a
remainder of the bottom portion of the basket.
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EVIDENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Guth US 3,181,924 May 4, 1965
Smith US 5,480,035 Jan. 2, 1996
Phifer US 6,945,421 B2 Sept. 20, 2005
Welch US 2003/0226580 A1 Dec. 11, 2003
Fey US 2014/0197719 A1 July 17, 2014
Maier US 2016/0007824 A1 Jan. 14, 2016

REJECTIONS
I. Claims 7–16 stand rejected under 35 U.S.C. § 103 as unpatentable
over Welch and Guth, each in view of the other.
II. Claims 17–20 stand rejected under 35 U.S.C. § 103 as
unpatentable over Welch in view of Guth and Phifer.1F2
III. Claims 1–3 stand rejected under 35 U.S.C. § 103 as unpatentable
over Welch and Guth, each in view of the other, and further in
view of Fey.
IV. Claims 4 and 5 stand rejected under 35 U.S.C. § 103 as
unpatentable over Welch and Guth, each in view of the other, and
further in view of Maier.
V. Claims 4 and 6 stand rejected under 35 U.S.C. § 103 as
unpatentable over Welch and Guth, each in view of the other, and
further in view of Smith.

2 The Examiner withdrew the rejection based on Guth in view of Welch and
Phifer. Ans. 15; see Final Act. 8, 10–12.
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OPINION
Rejection I—Obviousness Based on Welch and Guth
Claims 7–10 and 13–16:
The Examiner found that Welch discloses a dishwasher comprising all
of the features of claim 7, although acknowledging that a stemmed wine
glass held in middle rack 16 such that its base portion is accommodated in
the notch section formed in the bottom of the left section of upper rack 18
might arguably interfere with rotation of Welch’s upper spray arm 38. Final
Act. 2–4. The Examiner found that Guth teaches an alternative water spray
mechanism comprising a telescoping spray tower (telescoping member 10
with apertured water ejecting part 11). Id. at 4–5. The Examiner determined
it would have been obvious to modify Welch’s dishwasher by replacing
horizontally rotating spray arm 38 with a vertically rising spray tower for
spraying the upper rack as taught by Guth. Id. at 5. According to the
Examiner,
this alternative arrangement would provide a different spray
feature that would free up space underneath an upper rack
(removal of a rotating spray arm) thereby creating additional
vertical space for dishware/glassware/cutting boards etc., to be
placed within a lower rack assembly without interfering with
moving spray components when the dishwasher is in an
operational cleaning mode.
Id.
Appellant argues that it would be impossible for the sloped or stepped
bottom (i.e., the notch on the left side) of Welch’s upper rack 18 to
accommodate base portions of one or more stemmed wine glasses supported
on middle rack 16 because any glasses would have to be below rotating
upper support arm 38 or they would interfere with and be struck by upper
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spray arm 38. Appeal Br. 13. This argument does not identify error in the
rejection because it does not take into account the rejection’s proposed
modification of Welch replacing upper rotating spray arm 38 with a
telescoping spray tower arrangement as taught by Guth.
Appellant also argues that the bottom left of Welch’s upper rack 18
corresponding to the notch comprises “steps disposed at angles of
approximately 15 degrees from horizontal, so that the steps do not form a
horizontal top surface.” Appeal Br. 13–14. This argument is not persuasive.
Welch’s Figure 1 shows two sloped steps on the left side of the bottom of
upper rack 18. However, this stepped profile comprises two peaks each
truncated by a short horizontal surface. See Welch, Fig. 1.
For the above reasons, Appellant does not apprise us of error in the
rejection of claim 7 as unpatentable over Welch and Guth (based on Welch
modified in view of Guth).
The Examiner also articulated an alternative basis for the rejection of
claim 7. The Examiner found that Guth discloses most of the features
recited in claim 7, but does not disclose a middle rack. See Final Act. 3–4,
5. The Examiner determined, however, that it would have been obvious to
modify Guth’s dishwasher by incorporating an additional rack in view of
Welch’s teaching to provide three racks because, according to the Examiner,
“this arrangement would serve to enhance the versatility of Guth’s device by
providing an additional movable storage retainer (thereby opening up more
dishware/glassware loading options that could be customized depending
upon the needs or preferences of the user.” Id. at 5 (emphasis omitted).
Appellant argues that the only glasses Guth shows are supported
above the portion of the rack in which the Examiner found the notch and that
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Guth does not disclose any glasses under the notches. Appeal Br. 14.
Further, Appellant argues that
the base portion of any stemmed wine glass (normally having a
height of approximately 9 inches) would clearly not reach up to
the bottom of the upper rack 4 at part 13, especially since the
large plate (also normally having a diameter of 9 inches) that is
actually shown in Figures 1 and 3 on the left side of the lower
rack 5 does not even come close to the part 13.
Id. Thus, according to Appellant, “the two notches at the lowest part 13 (see
left side of the upper rack 4) are clearly not shaped or configured to
accommodate the base portions of one or more stemmed wine glasses
supported on the lower rack 5.” Id.
Appellant’s arguments are not persuasive because they are predicated
on unsupported and speculative attorney assertions and are not
commensurate with the scope of claim 7. Appellant does not identify, nor
do we find, any disclosure in Guth specifying the diameter of the plates or
the height of the glasses shown in Guth’s drawings. See, e.g., Guth 2:64–68
(stating that the height of part 13 above rack 5 permits “dishes of substantial
height, including dinner plates and the like” to be placed on the left side of
rack 5 without interference from upper rack 4). Thus, Appellant’s argument
that a stemmed wine glass placed on lower rack 5 would not reach up to the
bottom of part 13 of upper rack 4 is nothing more than unsupported attorney
argument entitled to little weight. See In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997). Moreover, the argument fails to take into account the
modification proposed in the rejection to provide a third rack, which would
change the vertical spacing between the racks. Additionally, claim 7 recites
that the notch section is “shaped to accommodate base portions of the one or
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more stemmed wine glasses supported on the middle washware rack.”
Appeal Br. 22 (Claims App.) (emphasis added). Claim 7 does not recite that
the notch section is shaped and/or dimensioned to be contacted by the base
portion of a stemmed wine glass (i.e., that the base portion reaches up to the
bottom of the upper rack), nor does claim 7 specify the height of a stemmed
wine glass to be accommodated.
Appellant also argues that the step portions of Guth’s part 13 “do not
form a horizontal top surface, but are shown slightly angled down to the
right side of the upper rack 4.” Appeal Br. 14. Guth’s Figure 1 does not
depict any horizontal surfaces on part 13 of upper rack 4. However, the
Examiner responds that “the inherent cross-wires that conventionally run
along the bottom of the rack that serve to structurally support the rack” form
horizontal surfaces that are “higher in elevation than a remainder of the
rack.” Ans. 18 (noting that “Guth does not show a top or bottom view so the
inherent feature is not depicted”). Appellant does not contest the
Examiner’s finding or explain why such inherent cross-wires would not
satisfy the “horizontal top surface” limitation of claim 7.
For the above reasons, Appellant does not apprise us of error in the
rejection of claim 7 as unpatentable over Welch and Guth (based on Guth
modified in view of Welch).
Accordingly, we sustain the rejection of claim 7 as unpatentable over
Welch and Guth on both alternative bases articulated by the Examiner (i.e.,
Welch modified in view of Guth and Guth modified in view of Welch). We
also sustain the rejection of claims 8 and 9, which depend from claim 7 and
for which Appellant does not present any separate arguments, as
unpatentable over Welch and Guth (on both bases). See Appeal Br. 12–17.
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Likewise, we sustain the rejection of claim 10, for which Appellant
relies on the same arguments presented for claim 7 (Appeal Br. 15), as well
as claims 13–16, which depend from claim 10 and for which Appellant does
not present any separate arguments. See Appeal Br. 12–17.
Claims 11 and 12:
Claims 11 and 12 depend from claim 10 and further recite that the
angled portion of the bottom portion of the basket of the top washware rack
“is tilted at an angle in a range of 3 to 5 degrees (claim 11) and “at an angle
of approximately 4 degrees” (claim 12), respectively, with respect to
horizontal. Appeal Br. 24 (Claims App.). The Examiner found that Welch
and Guth both disclose this angle in Figure 1. Final Act. 8. Appellant
argues that Welch’s Figure 1 shows the sloped or stepped bottom portion 54
of upper rack 18 “disposed at angles of approximately 15 degrees from
horizontal,” but does not contest the Examiner’s finding that Guth’s Figure 1
shows the claimed angle. Appeal Br. 17. Consequently, Appellant does not
apprise us of error in the rejection of claims 11 and 12 based on Guth
modified in view of Welch, which we, thus, sustain.
Rejection II—Obviousness Based on Welch in view of Guth and Phifer
Claims 17–20:
In contesting the rejection of independent claim 17, Appellant
incorporates the arguments asserted against the rejection of claim 7. Appeal
Br. 16. For the reasons discussed above, these arguments fail to apprise us
of error in the rejection of claim 7 and, likewise, fail to apprise us of error in
the rejection of claim 17.
Appellant also argues that the stepped bottom portion of Welch’s
upper rack 18 comprises “steps disposed at angles of approximately 15
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degrees from horizontal, so that the steps do not form a horizontal top
surface of the top rack that is configured to accommodate a cutlery/utensil
accessory insert.” Appeal Br. 16. This argument is not persuasive. As
discussed above, although Welch’s Figure 1 shows two sloped steps on the
left side of the bottom of upper rack 18, this stepped profile comprises two
peaks each truncated by a short horizontal surface. See Welch, Fig. 1. In
this regard, the stepped profile of the bottom left portion of Welch’s upper
rack 18 is similar to the stepped profile shown in Figure 5 of Phifer for
receiving basket 22, which comprises “step tiered compartments 24A, 24B,
24C” with “offset bottoms 28A, 28B, 28C”). See Phifer 2:3–15; compare
Welch, Fig. 1, with Phifer, Fig. 5. Appellant does not explain with sufficient
clarity or specificity why Welch’s stepped profile is not configured to
accommodate a cutlery/utensil insert on the horizontal top surfaces thereof
as recited in claim 17 and, thus, does not apprise us of error in the rejection
of claim 17.
Accordingly, we sustain the rejection of claim 17, as well as claims
18–20, which depend from claim 17 and for which Appellant does not
present any separate arguments (see Appeal Br. 16–17), as unpatentable over
Welch in view of Guth and Phifer.
Rejection III—Obviousness Based on Welch, Guth, and Fey
Claim 1:
In contesting the rejection of claim 1, Appellant incorporates the
arguments asserted against the rejection of claim 7. Appeal Br. 15. For the
reasons discussed above, these arguments fail to apprise us of error in the
rejection of claim 7 and, likewise, fail to apprise us of error in the rejection
of claim 1.
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Appellant also argues that Welch, Guth, and Fey fail to teach or
suggest the claimed spacing (i.e., in a range of 79.0 mm to 83.0 mm)
“between an inner surface of a top wall of the dishwashing compartment and
an upper surface of the bottom portion of a deepest portion of the top
washware rack.” Appeal Br. 15. The Examiner determined that this spacing
would have been an obvious matter of routine optimization, depending on
the needs and/or preferences of the user, to increase the usable space within
the compartment. See Ans. 18; Final Act. 13. Appellant responds to the
Examiner’s reasoning by stating that “Applicants respectfully disagree” that
the specific range for the claimed spacing in claim 1 “is simply discovering
an optimum or workable range and therefore would have been obvious.”
Appeal Br. 16. This vague statement does not identify with specificity any
defect in the Examiner’s reasoning and, thus, does not constitute a
substantive argument for patentability.
Appellant asserts that the claimed spacing “greatly enhances the
versatility of the third, top washware rack 200 over conventional dishwasher
configurations which are limited to holding only cutlery and other very small
items due to limited spacing.” Appeal Br. 15–16. The Examiner
determines, and we agree, that any enhanced versatility resulting from
increasing the spacing between the inner surface of a top wall of the
dishwashing compartment and an upper surface of the bottom portion of a
deepest portion of the top dishwasher rack, thereby forming a deeper rack
having greater storage capacity allowing for larger or more items to be
placed, is “a predictable result, i.e., enhanced load capacity due to the larger
volume” and, thus, “is likely not the product of innovation but of ordinary
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skill within the art and common sense.” Ans. 18–19; see KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 421 (2007).
For the above reasons, Appellant does not apprise us of error in the
rejection of claim 1 as unpatentable over Welch and Guth, each in view of
the other, and further in view of Fey, which we, thus, sustain.
Claims 2 and 3:
Claim 2 depends from claim 1 and further recites that the “spacing
between an upper edge of the top washware rack and the inner surface of the
top wall of the dishwashing compartment is in a range of 9.0 to 10.5 mm.”
Appeal Br. 20 (Claims App.). Claim 3 depends from claim 2 and recites that
this “spacing is 9.85 mm ± 0.5 mm.” Id. Appellant argues that Welch,
Guth, and Fey fail to teach or suggest the claimed spacing. Id. at 17.
In response, the Examiner notes that Appellant has not set forth
criticality for the claimed spacing. Ans. 19. Rather, according to the
Examiner, the spacing recited in claims 2 and 3 “appears to be arbitrary, a
matter of personal design and lacking a problem to be solved.” Id. The
Examiner explains that “a person of ordinary skill in the art would have
good reasons to pursue the known spacing options within his or her technical
grasp in order to maximize the storage capacity of the upper rack while
accounting for clearance tolerances” and that finding the optimal gap
between a static structure (e.g., the inner surface of the top wall of the
dishwashing compartment) and a dynamic structure (e.g., the top of the
movable top rack) “is generally recognized as being within the level of
ordinary skill in the art.” Id.
Appellant’s Specification does not attribute any criticality to the
particular range for the spacing (distance d1) between an upper edge of top
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washware rack 200 and an inner surface of top wall 102 of dishwashing
compartment 101, nor does Appellant assert any such criticality in the
Appeal Brief or Reply Brief. See Spec. ¶ 45 (stating merely that this spacing
“is in a range of 9.0 to 10.5 mm, and preferably the spacing is 9.85 mm ± 0.5
mm,” without indicating that this particular range is critical or solves any
stated problem); Appeal Br. 17; Reply Br. 2–3.
The following quotation from In re Woodruff, 919 F.2d 1575, 1578
(Fed. Cir. 1990), is applicable here:
The law is replete with cases in which the difference between
the claimed invention and the prior art is some range or other
variable within the claims. [citations omitted] These cases
have consistently held that in such a situation, the applicant
must show that the particular range is critical, generally by
showing that the claimed range achieves unexpected results
relative to the prior art range.
Moreover, the Examiner has articulated reasons, having rational
underpinnings, as to why selecting the claimed spacing would have been
within the level of ordinary skill in the art, namely, to maximize storage
capacity of the top rack while still accounting for reasonable manufacturing
tolerances to accommodate relative movement between the top rack and the
top wall of the dishwashing compartment without interference. Appellant
does not specifically contest, much less identify any flaw in, the Examiner’s
reasoning. Thus, Appellant does not apprise us of error in the rejection of
claims 2 and 3 as unpatentable over Welch and Guth, each in view of the
other, and further in view of Fey, which we, thus, sustain.
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Rejection IV—Obviousness Based on Welch, Guth, and Maier
Claims 4 and 5:
Appellant relies on the arguments presented for claim 7 in contesting
the rejection of claim 4. Appeal Br. 15–16. These arguments fail to apprise
us of error in the rejection of claim 7, for the reasons discussed above, and,
likewise, fail to apprise us of error in the rejection of claim 4. Accordingly,
we sustain the rejection of claim 4, as well as claim 5, which depends from
claim 4 and for which Appellant does not present any separate arguments
(see id. at 15–17), as unpatentable over Welch and Guth, each in view of the
other, and further in view of Maier.
Rejection V—Obviousness Based on Welch, Guth, and Smith
Claim 4:
Appellant relies on the arguments presented for claim 7 in contesting
the rejection of claim 4. Appeal Br. 15–16. These arguments fail to apprise
us of error in the rejection of claim 7, for the reasons discussed above, and,
likewise, fail to apprise us of error in the rejection of claim 4. Accordingly,
we sustain the rejection of claim 4 as unpatentable over Welch and Guth,
each in view of the other, and further in view of Smith.
Claim 6:
Claim 6 depends from claim 4 and further recites that the plurality of
wire shaped elements forming the basket of the top rack “are formed of
carbon steel having the coating of Nylon powder.” Appeal Br. 21 (Claims
App.).
The Examiner found that “neither Welch nor Guth specifically state
that the wire is formed of steel and having a coating of Nylon.” Final
Act. 14. The Examiner cited Smith as evidence of “the known utilization of
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nylon coated steel wire in forming a rack within a dishwasher.” Id. (citing
Smith, col. 2). The Examiner determined it would have been obvious, in
view of Smith’s teaching, to modify the material used to make the wire
within Welch’s or Guth’s racks “because this arrangement would provide
both Welch and Guth with an alternative rack wire that would be wear
resistant, would protect the wire from rusting, and cushion items placed in
the rack.” Id.
Appellant argues that “Smith simply refers to metal wire coated with
Nylon, and fails to teach or suggest carbon steel having a coating of Nylon
powder.” Appeal Br. 17 (emphasis added). Smith teaches a rack
“constructed from a plurality of heavy metal wires or rods” and “coated with
a wear resistant plastic material, such as nylon for example, to protect the
wires from rusting and cushion items placed in the rack.” Smith 2:38–39,
56–59 (emphasis added). We do not discern, and the Examiner does not
pinpoint, any teaching in Smith that supports the Examiner’s finding that
Smith evidences the known use “of nylon coated steel wire in forming a rack
within a dishwasher” (Final Act. 14 (emphasis added)). In responding to
Appellant’s argument, the Examiner does not address the carbon steel
limitation. See Ans. 20 (addressing the “powder” limitation); see also Final
Act. 17 (explaining that “the end product defines the subject matter” and,
thus, “the delivery method of a desired coating does not obviate an end
product where a nylon coating is present”).
For the above reasons, the Examiner does not set forth the requisite
factual findings and/or reasoning to support the conclusion that the subject
matter of claim 6 would have been obvious. Accordingly, we do not sustain
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the rejection of claim 6 as unpatentable over Welch and Guth, each in view
of the other, and further in view of Smith.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
7–16 103 Welch, Guth 7–16
17–20 103 Welch, Guth, Phifer 17–20
1–3 103 Welch, Guth, Fey 1–3
4, 5 103 Welch, Guth, Maier 4, 5
4, 6 103 Welch, Guth, Smith 4 6
Overall
Outcome
1–5, 7–20 6

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED IN PART