Ex Parte Athanasiou et al

Patent Trial and Appeal Board

Jun 12, 2018

13820753 (P.T.A.B. Jun. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/820,753 03/05/2013
24131 7590 06/14/2018
LERNER GREENBERG STEMER LLP
PO BOX 2480
HOLLYWOOD, FL 33022-2480
FIRST NAMED INVENTOR
Athanasios Athanasiou
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
BSH-2010P01858 5099
EXAMINER
TADESSE, MARTHA
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
06/14/2018 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):
boxoa@patentusa.com
docket@patentusa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ATHANASIOS ATHANASIOU,
and HANS-JOACHIM KOCH 1
Appeal2017-009580
Application 13/820,753
Technology Center 3700
Before JAMES P. CAL VE, WILLIAM A. CAPP, and
JEREMY M. PLENZLER, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Final Office
Action rejecting claims 14--28. Br. 1. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 BSH Hausgerate GmbH is identified as the real party in interest. Br. 2.
Appeal2017-009580
Application 13/820,753
CLAIMED SUBJECT MATTER
Claims 14 and 21 are independent. Claim 14 is reproduced below.
14. An ice maker, comprising:
a frame,
a mold shell having at least one chamber and capable of holding
water for formation of ice cubes,
a support device rotatably mounted in the frame, the support
device constructed for securing the mold shell in the frame and
rotating the mold shell about a rotation axis from a first position
for filling with water into a second position for ejecting ice
cubes,and
a securing device disposed on the support device and rotatable
with said support device, said securing device constructed to
allow manual removal of the mold shell from the frame and the
ice maker and manual insertion of the mold shell into the frame
and the ice maker, said securing device having at least one
securing rail for pulling out and pushing in the mold shell, said
securing rail extending parallel to the rotation axis.
Br. 17 (Claims App'x).
REJECTIONS
Claims 14--17, 19--25, 27, and 28 are rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Herrera (US 2012/0023996 Al,
pub. Feb. 2, 2012) and Brachert (EP 1857750, pub. Nov. 21, 2007). 2
Claims 18 and 26 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Herrera, Brachert, and Gown (CN 1690624 A, pub.
Nov. 2, 2005).
2 The Final Action refers to this publication as Reiner. The Appeal Brief
refers to this reference as Brachert. The publication lists the inventor as
Brachert, Rainer. We refer to this reference in this decision as Brachert.
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Appeal2017-009580
Application 13/820,753
ANALYSIS
Claims 14-17, 19--25, 27, and 28
Rejected Over Herrera and Brachert
Appellants argue claims 14--17, 19--25, 27, and 28 as a group. Br. 6-
15. We select claim 14 as representative, with claims 15-17, 19-25, 27,
and 28 standing or falling with claim 14. 37 C.F.R. § 4I.37(c)(l)(iv).
Regarding claim 14, the Examiner finds that Herrera discloses an ice
maker including frame 120, mold shell (ice mold body 112), support device
(holder 114) for securing mold shell 112 to frame 120, and a securing device
(fasteners 602, tabs 702, or channels) disposed on holder 114 to allow the
manual removal and manual insertion of mold shell 112 from frame 120, but
Herrera lacks a securing rail for pulling out and pushing in the mold shell.
Final Act. 2-3 ( citing Herrera ,r,r 42, 44). The Examiner finds that Brachert
discloses an ice maker with a securing device including a rail below arms 16
(Figure 4) for pulling out and pushing in mold shell 18, and the securing rail
also extends parallel to the rotation axis of the mold shell 18. Id. at 3 (citing
Brachert ,r 20). The Examiner determines that it would have been obvious to
modify Herrera's securing device of tabs and channels to include securing
rails, as taught by Brachert, to provide secure placement of the ice mold and
allow a user to pull out or push in the mold shell for easy access as necessary
for service or cleaning without using special tools. Id.; Ans. 3.
Appellants argue first that Herrera does not disclose any information
regarding a user's ability to pull out or push in the mold shell. Br. 7-8, 11-
12. In addition, Appellants argue that Herrera discloses automatic filling of
the ice mold body whereas Brachert requires manual filling of the ice cube
tray and the capability to remove the cube forming tray 18 to do so. Id.
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Appeal2017-009580
Application 13/820,753
These arguments are not persuasive in view of Herrera's disclosure of
a mold shell (ice mold 112, 112') held in a support device (holder 114, 114')
via "removable fasteners 602" or various "support features 702" that may
include tabs formed on holder 114 or "channels that run along the length of
the sides of the holder 114." Herrera ,r,r 42, 44; see Final Act. 2-3 (citing
id.); Ans. 2-3. The Examiner reasons correctly that Herrera's disclosure of
securing devices to allow ice molds 112, 112' to be pushed in or pulled out
of holder 114, 114' indicates that "the securing device [is] constructed to
allow manual removal of the mold shell from the frame and the ice maker
and manual insertion of the mold shell into the frame and the ice maker."
Ans. 3. Appellants have not filed a Reply Brief or other response addressing
the Examiner's findings or determinations in this regard and therefore do not
apprise us of Examiner error. Moreover, exemplary Figures 3, 4A--4C, and
5A-5C illustrate ice tray assemblies 110, 120 with the bottoms of the mold
shells exposed for easy access and removal via removable fasteners or tabs
or channels that are disclosed in Herrera. Herrera ,r,r 42, 44. The orthogonal
orientation does not impact on the removability of the mold shells, and the
arguments of Appellants in this regard do not persuade us otherwise.
Appellants' attorney argument that Herrera's fasteners 602 are not
accessible to a user because the longitudinal axis of the ice mold body 112 is
orthogonal to the exit direction from the refrigerator appliance (Br. 8, 12) is
not evidence and is not persuasive in view of Herrera's disclosure, which is
discussed above, of securing features of removable fasteners 602, tabs, and
channels that allow a mold body to be inserted into and removed from a
support device. Furthermore, Herrera's drawings show the mold body as
being accessible in such a manner to remove an ice mold from a frame.
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Appeal2017-009580
Application 13/820,753
The Examiner had a sound basis for finding that Herrera's structure is
capable of performing this claimed function in view of its similarity to the
claimed support device and securing device. 3 See Ans. 5; In re Schreiber,
128 F.3d 1473, 1478 (Fed. Cir. 1997) (patent applicants may recite features
of an apparatus either structurally or functionally; however, if the PTO has a
reason to believe that the prior art possesses that feature as an inherent
characteristic, it has the authority to require the applicant to prove that the
subject matter does not possess the claimed functional feature). Appellants
have not persuaded us with their attorney argument that Herrera's retention
features are not capable of functioning as the claimed securing device.
Appellants also challenge the Examiner's rationale for combining the
teachings of Herrera and Brachert as impermissible hindsight. Br. 9-10. In
particular, Appellants argue that it is not reasonable to modify the support
device 114 of Herrera to include the support rail securing device of Brachert
because the securing device of Brachert does not rotate with the mold shell
18 and the sliding arms 16 of Brachert are comparable to the holder 114 of
Herrera and the halfshells of Brachert are comparable to the frame 120 of
Herrera. Id. at 10. Appellants contend that Brachert teaches to modify the
interface between Herrera's holder 114 and frame 120. Id. at 11.
3 Indeed, Herrera's disclosure of a support device (holder 114) with channels
along the sides of holder 114 so ice mold body 112' fits within the channels
(Herrera ,r 44) satisfies the requirements of claims 14 and 21 for a securing
device disposed on the support device and rotatable with the support device,
"said securing device constructed to allow manual removal of the mold shell
from the frame and the ice maker and manual insertion of the mold shell into
the frame and ice maker, said securing device having at least one securing
rail for pulling and pushing in the mold shell, said securing rail extending
parallel to the rotation axis." Br. 17, 20 ( Claims App 'x ).
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Appeal2017-009580
Application 13/820,753
These arguments are not persuasive for several reasons. First, they
amount to a piecemeal attack on the references rather than the teachings as
combined by the Examiner in the Final Action and Answer. The Examiner
relies on Herrera for all claimed features including a securing device and
support that rotates with the ice cube tray (mold shell 112). Final Act. 2-3;
Ans. 5. Second, the Examiner relies on Herrera to teach securing devices
(removable fasteners 602, channels, tabs) positioned on a rotatable support
114, 114' to removably contain an ice tray (ice mold body 112). Final Act.
3; Ans. 4--5. The Examiner reasons that Herrera teaches that ice mold 112
can be pushed into and pulled out from retention features that include
channels, and Brachert teaches an ice cube tray and support that also can be
pushed into and pulled out from a retention feature ( arms 16) by sliding.
Importantly, claim 14 does not specify how the mold shell is pulled
out and pushed into the security rail, whether by sliding longitudinally or
orthogonally to the securing rail. Nor does claim 14 require the support
device to be removable from the frame and ice maker. Only the mold shell
is removed manually. Herrera and Brachert both teach securing features that
allow the manual removal of a mold shell from a frame and ice maker, as
claimed. The Examiner reasonably determines a skilled artisan would have
been motivated to modify the channels and retention features of Herrera to
include a sliding rail or channel, as taught by Brachert, to "allow manual
removal/insertion when there is a necessity to service or cleaning without the
user having to use special tools" Ans. 6, id. at 3. Appellants have not filed a
Reply Brief or apprised us of error in the Examiner's stated rationales for
modifying Herrera based on the teachings of Brachert that sliding channels
permit easy removal of a mold shell from an ice maker.
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Application 13/820,753
The fact that Brachert uses securing rails 16 to remove an ice tray for
refilling does not teach away from use of a similar structure in Herrera,
which already uses channels on holder 114 to removably secure an ice cube
tray. The Examiner merely proposes to alter the way Herrera's ice cube tray
is removed from the support channels based on Brachert's teachings of such
a known mechanism in an ice machine for predictable results. Ans. 4. Any
difference in the configuration of Brachert's and Herrera's ice machines (see
Br. 13-14) is of no moment because both devices are ice makers, and the
Examiner relies on Brachert only to teach a slidable securing channel in an
ice maker for ease of removal of an ice cube tray. The Examiner modifies
Herrera's ice maker for similar ease of removal. Appellants have not argued
persuasively why Herrera's different configuration or orthogonal orientation
would have dissuaded a skilled artisan from modifying Herrera's retention
features/ channels in the manner taught by Brachert. 4
The Examiner's reasons for modifying Herrera are supported by
rational underpinnings, as discussed above, and also address the hindsight
arguments of Appellants. See In re Cree, 818 F.3d 694, 702 n.3 (Fed. Cir.
2016) (hindsight argument is of no moment where the Examiner provides a
sufficient, non-hindsight reason to combine the references).
Thus, we sustain the rejection of claims 14--17, 19-25, 27, and 28.
4 In this regard, Herrera teaches apertures in an ice maker assembly 100 (see
Fig. 3) so a skilled artisan being a person of ordinary creativity would have
been motivated to modify Herrera's ice maker, if necessary, with apertures
that allow the removal of ice mold 112 in an orthogonal direction if desired.
However, claim 14 does not recite how the mold shell is removed from the
frame. Claim 19, which depends from claim 14, recites that the ice maker
has "a housing wall having an opening configured to allow insertion and
removal of the mold shell into and from the ice maker." Br. 18-19.
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Appeal2017-009580
Application 13/820,753
Claims 18 and 2 6
Rejected Over Herrera, Brachert, and Gown
Appellants argue that Gown does not cure the deficiencies of Herrera
and Brachert as to independent claims 14 and 21 from which these claims
depend respectively. Br. 15. Because we sustain the rejection of claims 14
and 21, there are no deficiencies in Herrera or Brachert for Gown to cure and
we also sustain the rejection of claims 18 and 26.
DECISION
We affirm the rejections of claims 14--28.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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