Ex Parte Blanchard et al

Patent Trial and Appeal Board

Jul 28, 2017

13115339 (P.T.A.B. Jul. 28, 2017)

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.
13/115,339 05/25/2011 WALTER T. BLANCHARD SUB-00978-U S-NP 3254
173 7590 08/01/2017
WHIRLPOOL CORPORATION - MD 3601
2000 NORTH M63
BENTON HARBOR, MI 49022
EXAMINER
BELL, SPENCER E
ART UNIT PAPER NUMBER
1711
NOTIFICATION DATE DELIVERY MODE
08/01/2017 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):
whirlpool_patents_co@whirlpool.com
mike_lafrenz @ whirlpool .com
deborah_tomaszewski@whirlpool.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WALTER T. BLANCHARD,
DAVID H. CHEN, and DANIEL FRY
Appeal 2016-006982
Application 13/115,339
Technology Center 1700
Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
August 18, 2015 decision finally rejecting claims 7—10 and 13—24. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellants identify the real party in interest as Whirlpool Corporation
(Appeal Br. 1).
Appeal 2016-006982
Application 13/115,339
CLAIMED SUBJECT MATTER
Appellants’ invention is directed to a dishwasher with a rack having a
slidably adjustable tine assembly for receiving utensils of various shapes and
dimensions (Spec. 112). Independent claim 7 is representative and is
reproduced below from the Claims Appendix of the Appeal Brief (emphasis
added)'.
7. A dishwasher for cleaning utensils according to at least
one automatic cycle of operation, comprising:
a tub at least partially defining a treating chamber for
receiving utensils for cleaning;
a spray system for spraying liquid in the treating chamber;
a rack located within the treating chamber and having two
laterally-spaced upwardly-extending rows of rack tines defining
a passage in between;
a carriage located within the passage;
two laterally-spaced upwardly-extending rows of carriage
tines mounted to the carriage parallel to the rows of rack tines;
and
a coupler slidably mounting the carriage to the rack
within the passage for slidable movement of the carriage within
the passage relative to the rows of rack tines along a sliding range
of motion, and applying a sliding resistance force to the carriage
to hold the carriage in a sliding position along the sliding range
of motion.
(Appeal Br. 23 (Claims App.)).
2
Appeal 2016-006982
Application 13/115,339
REJECTIONS
I. Claims 7—9 are rejected under 35 U.S.C. § 102(b) as anticipated
by Lee.2
II. Claims 10 and 16 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lee, Yokota,3 and further in view of
Mallory.4
III. Claims 13—15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lee, Yokota, Mallory, and further in view of
Anderson.5
IV. Claims 17—23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lee and further in view of Anderson.
V. Claim 24 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Lee and further in view of Graute.6
Appellants offer separate arguments in support of dependent claims
13—15 and 21; otherwise, arguments are directed to limitations recited in
independent claim 7 (see Appeal Br. 6—25; Reply Br. 1—5). Accordingly,
our discussion will focus on Rejections I, III, and IV. Dependent claims 8—
2 Lee, KR 10-0780357, published November 30, 2007. We will refer to the
translation, as do both Appellants and the Examiner, because Lee is in
Korean.
3 Yokota et al., JP 2000-139809, published May 23, 2000. We will refer to
the machine translation, as do both Appellants and the Examiner, because
Yokota is in Japanese.
4 Mallory et al., US Patent Pub. No. 2010/0314977 Al, published December
16, 2010.
5 Anderson et al., US Patent Pub. No. 2007/0247039 Al, published October
25, 2007.
6 Graute, US Patent Pub. No. 2008/0083678 Al, published April 10, 2008.
3
Appeal 2016-006982
Application 13/115,339
10, 16—20, and 22—24 (subject to Rejections I, II, IV, and V) will stand or
fall with claim 7. 37 C.F.R. § 41.37(c)(l)(iv).
DISCUSSION
Rejection I
The Examiner finds that Lee’s disclosure teaches each of the elements
of the claimed dishwasher, including the coupler, which slidably mounts the
carriage to the rack (Final Act. 4—5).
Figure 4 of Lee, which illustrates a perspective view of a supporting
member of a dishwasher basket, is reproduced below:
Figure 4 illustrates details of a dishwasher basket in which first and
second guiding protrusions 521, 522 move along first and second guiding
rails 45, 46, respectively (Lee 9:7—8).
4
Appeal 2016-006982
Application 13/115,339
According to the Examiner, Lee discloses:
a coupler 45, 46 (fig. 3) mounting the carriage to the rack within
the passage for slidable movement of the carriage within the
passage relative to the rows of rack tines (fig. 3), the coupler
applies a sliding resistance force to the carriage (at 521, 522) to
hold the carriage in a sliding position (friction and contact
between 521/522 and 45/46 applies a sliding resistance force).
(Final Act. 4). The Examiner finds that because claim 7 “does not set forth
any limiting factors regarding the requirement that the coupler hold the
carriage in place,” that “[i]f the coupler of Lee can hold the carriage by a
sliding resistance force even a teeny tiny bit, it satisfies the claimed
function” (Ans. 3). The Examiner further finds that “frictional resistance,
although the degree is unknown, can hold the carriage in place, at least in
some conditions, in particular when the carriage is empty and the rack is
very slightly raised at one end” {id. at 4).
Appellants make the following principal arguments urging reversal of
Rejection I: (1) “there is no way of confirming whether . . . frictional
resistance is enough to ‘hold the carriage in a sliding position along the
sliding range of motion’ as recited by claim 7” (Appeal Br. 9—10);
(2) because Lee does not disclose what materials are used to make
supporting member 520 and guiding rails 45, 46, it is impossible to
determine whether there is any inherent frictional resistance {id. at 10); (3) a
“teeny tiny bit” of friction is an unreasonably broad interpretation of a
“sliding resistance force,” as recited in claim 7, because one of ordinary skill
in the art would not reasonably believe that such friction could hold Lee’s
carriage in a position along its sliding range of motion (Reply Br. 2, citing
Ans. 3); (4) the Examiner has failed to establish that Lee’s guiding rails 45,
46 are capable of performing the claimed function of applying a sliding
5
Appeal 2016-006982
Application 13/115,339
resistance force to the carriage (Reply Br. 2; see also Appeal Br. 11); and (5)
because Lee discloses that the stopper portion 526 is necessary to maintain
the position of the supporting member 520 in the rack 40, any friction
between the guide protrusions 521, 522 and guiding rails 45, 46 is not
sufficient the hold the frame 523 in place (Appeal Br. 10—11).
Appellants’ arguments are not persuasive.
During prosecution, words in the claims under examination are given
their broadest reasonable interpretation. In re ICON Health & Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007). Appellants argue that the
Specification discloses that the claimed “sliding resistance force” is “a
friction force that resists sliding movement” (Reply Br. 2, citing Spec. 129).
However, the Specification is silent with respect to the amount of resistance
to a sliding movement that is necessary to meet this limitation. Based on the
language of the claim and the Specification, applying the principle of
broadest reasonable interpretation, we construe claim 7 as requiring that
coupler be able to hold the carriage in position through the application of
any degree of friction force.
The Examiner’s findings comport with our construction of “sliding
resistance force.” Thus, a finding that the prior art describes an apparatus
that is capable of remaining “static due to gravitational and frictional forces”
would be sufficient to support a finding of anticipation (Ans. 3; see In re
Bager, 47 F.2d 951, 953 (CCPA 1931) (holding that “[description for the
purposes of anticipation can be by drawings alone as well as by words.”)).
We discern no reversible error in the Examiner’s findings under our
construction of claim 7. Therefore, we are not persuaded by arguments (1)—
(4).
6
Appeal 2016-006982
Application 13/115,339
With regard to argument (3), we note that claim 7’s language is
functional, indicating that the claimed coupler applies a sliding resistance
force to hold the carriage in position along the sliding range of motion.
[W]here the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the
claimed subject matter may, in fact, be an inherent characteristic
of the prior art, it possesses the authority to require the applicant
to prove that the subject matter shown to be in the prior art does
not possess the characteristic relied on.
In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) (quoting In re
Swinehart, 439 F.2d 210, 213 (CCPA 1971)). See also In re Spada, 911
F.2d 705, 708 (Fed. Cir. 1990).
Although Appellants argue that Lee comprises a stopper portion 526,
which functions to hold the carriage, we are unpersuaded that it is erroneous
for the Examiner to find that the contact between guide protrusions 521, 522
and guiding rails 45, 46 provides at least some degree of frictional resistance
sufficient to hold the carriage as well (see Ans. 3).
Therefore, we are not persuaded of reversible error in the Examiner’s
§ 102(b) rejection.
Rejections III and IV (with respect to claim 21)
The Examiner finds that Lee, either with or without Yokota and
Mallory, is silent with respect to the claimed structure of the coupler (Final
Act. 6, 8). The Examiner finds, however, that Anderson teaches “a coupling
115 having a spring clip (. . . portions 142 and 143 form springing snap clips
. . .),” “a passage 145 . . . slidably receiving a carriage rail. . .,” “a rack rail
45 from which rows of rack tines 511 extend . . . ,” and “a hook 154 . . .
coupling to a rack rail. . .” (id. at 6—7, citing Anderson Figs. 2-4,128; see
7
Appeal 2016-006982
Application 13/115,339
also Final Act. 8). The Examiner determines, inter alia, that it would have
been obvious to the ordinary skilled artisan to modify Lee’s dishwasher,
either with or without Yokota and Mallory, “with the features of the coupler
taught by Anderson” because “Anderson teaches that its coupler allows for
sliding movement of a carriage relative to the dish rack so that a user can
alter spacing of tines to configure the rack for efficient utilization of space”
(Final Act. 7, citing Anderson || 28, 30; see also Final Act. 8—9).
Appellants, inter alia, make the following principal arguments urging
reversal of Rejections III and IV: (1) the Examiner reversibly erred because
there is no finding “as to the requirement in claim 13 that the spring clip of
the coupler be snapped onto the bight portion . . .” (Appeal Br. 16); (2) with
respect to claim 14, “[i]t is not possible for [Anderson’s] portions 142,143
to snap onto the bight portion, while also receiving the carriage rail, since
the bight portion is recited to span and connect the two carriage rails” {id. at
18—19); (3) with regard to claim 15, because “Anderson[’s] coupler 115 is
only capable of coupling to two components, . . . [i]t is not possible for [it]
to snap onto the bight portion, while also receiving the carriage rail and
coupling to the rack rail” {id. at 19); and (4) with respect to claim 21, it is
not possible for Anderson’s portions 142,143 to fulfill both claim
requirements of a spring clip snapped onto the carriage and a spring finger
abutting one of the carriage rails {id. at 20; see also Reply Br. 5).
With regard to arguments (1)—(3), the Examiner responds by noting
that claims 13—15 “do not limit the bight portion to a particular location on
the continuous wire” (Ans. 5, citing claim 10). Therefore, according to the
Examiner, “one of ordinary skill in the art would recognize as obvious to
locate the bight portion and spring clip wherever is best for the particular
8
Appeal 2016-006982
Application 13/115,339
application as an obvious design choice” (Ans. 5). Regarding argument (4),
the Examiner finds that “[b]oth components 142 and 143 each independently
can be either the spring finger or a spring clip as claimed” {id. at 6).
It is well understood 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.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). The
fact that a reference may be modified to reflect features of the claimed
invention does not make the modification, and hence the claimed invention,
obvious unless the prior art suggested the desirability of such modification.
In re Mills, 916 F.2d 680, 682 (Fed. Cir. 1990).
Appellants’ arguments are persuasive because the Examiner has not
provided adequate reasoning to explain why a person of skill in the art
would have modified the teachings of Anderson to snap a spring clip to the
bight portion at the specific location between two carriage rails and between
two upwardly-extending legs, as required by claim 10 (see Reply Br. 3).7
Fikewise, the Examiner’s rationale regarding the alleged obviousness of
claim 21 is similarly lacking. As Appellants persuasively argue, neither
Anderson’s 142 or 143 suggests the spring finger abutting one of the
carriage rails as recited in claim 208 because 142 and 143 are required to clip
slider element 115 onto the carriage (see Anderson 128, Fig. 2; see also
Reply Br. 5). Without adequate reasoning, the Examiner cannot establish a
prima facie case of obviousness.
7 Each of claims 13—15 are dependent on claim 10.
8 Claim 21 depends on claim 20.
9
Appeal 2016-006982
Application 13/115,339
Therefore, we reverse Rejection III of claims 13—15 under 35 U.S.C.
§ 103(a) over Lee, Yokota, Mallory, and further in view of Anderson.
Similarly, we reverse the obviousness rejection of claim 21.
CONCLUSION
We AFFIRM the rejection of claims 7—9 under 35 U.S.C. § 102(b) as
anticipated by Lee.
We AFFIRM the rejection of claims 10 and 16 under 35 U.S.C.
§ 103(a) over Lee, Yokota, and further in view of Mallory.
We REVERSE the rejection of claims 13—15 under 35 U.S.C.
§ 103(a) over Lee, Yokota, Mallory, and further in view of Anderson.
We REVERSE the rejection of claim 21 under 35 U.S.C. § 103(a)
over Lee and further in view of Anderson.
We AFFIRM the rejection of claims 17—20, 22, and 23 under
35 U.S.C. § 103(a) over Lee and further in view of Anderson.
We AFFIRM the rejection of claim 24 under 35 U.S.C. § 103(a) over
Lee and further in view of Graute.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
10