Ex Parte Chase et al

Patent Trial and Appeal Board

Nov 20, 2014

12258479 (P.T.A.B. Nov. 20, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KEVIN M. CHASE, GIL A. GASKA,
LEIF A. NORLAND, CHRISTOPHER J. REINKE,
AMERESH B. VISWANATHAN, and RONALD L. VOGLEWEDE
____________

Appeal 2012-007395
Application 12/258,479
Technology Center 3700
____________

Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
TIMOTHY J. GOODSON, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1
Kevin M. Chase et al. (Appellants) appeal under 35 U.S.C. § 134 from
the Examiner’s final decision rejecting claims 1–29. Appeal Br. 5. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).

1 According to Appellants, the real party in interest is Whirlpool
Corporation. Appeal Br. 5.

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Application 12/258,479
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SUMMARY OF DECISION
We REVERSE.

INVENTION
Appellants’ invention relates “to a water dispensing backsplash for a
cooktop.” Spec. 1, ¶ 1.
Claims 1 and 19 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. A backsplash for point-of-use water dispensing
comprising:
a main body portion including a housing having a
washable, substantially planar front wall;
a faucet extending from the front wall of the housing for
dispensing water;
a water supply line in fluid communication with the
faucet;
a controller;
an actuating means for controlling the dispensing of
water from the faucet; and
a selection means enabling the selection of a desired
amount of water to be dispensed from the faucet, wherein the
backsplash is separate from any appliance and adapted to mount
to and extend along a wall adjacent an appliance.

REJECTIONS
The following rejections are before us for review2:
I. The Examiner rejected claims 19, 24, and 26 under 35 U.S.C.
§ 103(a) as unpatentable over Zimmermann (US 2,620,785,
issued Dec. 9, 1952) and Wattrick (US 5,915,851, issued June
29, 1999).

2 The Examiner denominated Rejections VI–XV as new grounds of
rejection. See Ans. 9–16.
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II. The Examiner rejected claim 25 under 35 U.S.C. § 103(a) as
unpatentable over Zimmermann, Wattrick, and Logan (US
2006/0186215 A1, published Aug. 24, 2006).
III. The Examiner rejected claim 28 under 35 U.S.C. § 103(a) as
unpatentable over Zimmermann, Wattrick, and Mac (US
2005/0235981 A1, published Oct. 27, 2005).
IV. The Examiner rejected claims 23 and 27 under 35 U.S.C.
§ 103(a) as unpatentable over Zimmermann, Wattrick, and
Rodenbeck (US 2007/0246550 A1, published Oct. 25, 2007).
V. The Examiner rejected claims 20–22 under 35 U.S.C. § 103(a)
as unpatentable over Zimmermann, Wattrick, and Barritt (US
4,703,306, issued Oct. 27, 1987).
VI. The Examiner rejected claim 29 under 35 U.S.C. § 103(a) as
unpatentable over Zimmermann, Wattrick, and Barnett (US
4,241,718, issued Dec. 30, 1980).
VII. The Examiner rejected claims 1, 3, 5, 8, and 15 under 35 U.S.C.
§ 103(a) as unpatentable over Zimmermann, Wattrick, and
Cohn (US 4,898,149, issued Feb. 6, 1990).
VIII. The Examiner rejected claim 4 under 35 U.S.C. § 103(a) as
unpatentable over Zimmermann, Wattrick, Cohn, and Logan.
IX. The Examiner rejected claim 7 under 35 U.S.C. § 103(a) as
unpatentable over Zimmermann, Wattrick, Cohn, and Mac.
X. The Examiner rejected claim 13 under 35 U.S.C. § 103(a) as
unpatentable over Zimmermann, Wattrick, Cohn, and Barnett.
XI. The Examiner rejected claim 14 under 35 U.S.C. § 103(a) as
unpatentable over Zimmermann, Wattrick, Cohn, and Jensen
(US 4,043,319, issued Aug. 23, 1977).
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XII. The Examiner rejected claims 2, 6, and 16 under 35 U.S.C.
§ 103(a) as unpatentable over Zimmermann, Wattrick, Cohn,
and Rodenbeck.
XIII. The Examiner rejected claims 9–12 under 35 U.S.C. § 103(a) as
unpatentable over Zimmermann, Wattrick, Cohn, and Barritt.
XIV. The Examiner rejected claim 17 under 35 U.S.C. § 103(a) as
unpatentable over Zimmermann, Wattrick, Cohn, and Teich
(US 4,441,002, issued Apr. 3, 1984)3.
XV. The Examiner rejected claim 18 under 35 U.S.C. § 103(a) as
unpatentable over Zimmermann, Wattrick, Cohn, and Reddy
(US 2006/0005312 A1, published Jan. 12, 2006).

ANALYSIS
Rejections I–VI
The Examiner finds that Zimmermann discloses a cook top having a
separate backsplash 12. Ans. 5. According to the Examiner, “[t]he
backsplash as taught by Zimmermann is ‘separate’ because the backsplash
serves a separate function from the cook []top and the backsplash also
extends vertically versus the cook top that extends horizontally.” Id. at 16.
In response, Appellants contend that in contrast to the claimed
backsplash, Zimmermann’s “back splash panel 12 is integral with cooking
stove 10.” Appeal Br. 12. According to Appellants, “[j]ust because cooking
is not performed on top of panel 12 and panel 12 extends both vertically and

3 Because claim 17 depends from independent claim 1, we view the
Examiner’s omission of Cohn in the heading of this rejection as a
typographical error.
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horizontally does not make panel 12 separate from the cooktop.” Reply Br.
9.
Appellants’ Specification does not assign or suggest a particular
definition to the claim term “separate” and therefore, it is appropriate to
consult a general dictionary definition of the word for guidance in
determining the ordinary and customary meaning of the claim term as
viewed by a person of ordinary skill in the art. See Comaper Corp. v. Antec,
Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010). In this case, an ordinary and
customary meaning of the term “separate” is “set or kept apart :
DETACHED.” Merriam Webster’s Collegiate Dictionary (10th Ed. 1997).
We agree with Appellants that the Examiner’s interpretation of the
term “separate” is “contradictory to the disclosure of Zimmermann.” See
Appeal Br. 12. More specifically, Zimmermann discloses, “unitary
constructions supplying water tap in connection with the stove itself” where
“a water supply tap or outlet [is] located in the stove itself.” See
Zimmermann, col. 1, ll. 22–24 and 35–37. Hence, because Zimmermann’s
backsplash 12 is located in stove 10, it is not set apart or detached, that is, it
is not separate from stove 10, as required by independent claim 19. See
Appeal Br. 12. The Examiner’s use of the disclosures of any of Wattrick,
Logan, Mac, Rodenbeck, Barritt, or Barnett, does not remedy the deficiency
of Zimmermann, as described supra. See Ans. 5–9. Accordingly, for the
foregoing reasons, we do not sustain Rejections I–VI.

Rejections VII–XV
The Examiner finds that Zimmermann fails to disclose “a backsplash
that is separate from any appliance and adapted to be mounted to and extend
along a wall.” Ans. 9–10. The Examiner further finds that “Cohn teaches a
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hood (1) that includes a backsplash (2)” and “a bracket (4) that is used to
attach the hood and backsplash to the wall.” Id. at 10 (citing Cohn, col. 1, ll.
20–25). The Examiner concludes that:
It would have been obvious to one of ordinary skill in the art at
the time the invention was made to have modified the device as
shown by Zimmermann to include a backsplash that was
separate from any appliance and mounted to wall as taught by
Cohn because it would allow the hood and backsplash to be
installed without the need for an electrician (Cohn column 2
lines 24-26).
Id.
Appellants argue that, “it is not clear why one of ordinary skill in the
art would replace the backsplash of Zimmermann with the backsplash of
Cohn for the reasons of avoiding the need for an electrician.” Reply Br. 17.
In other words, Appellants argue that the Examiner’s reasoning to modify
the backsplash of Zimmerman as modified by Wattrick, according to the
teachings of Cohn, lacks rational underpinnings. We agree.
The reason proffered by the Examiner to modify the teachings of
Zimmermann and Wattrick, i.e., “[to] allow the . . . backsplash to be
installed without the need for an electrician,” is already performed by
Zimmermann’s backsplash 12, which is integral with stove 10, and thus does
not require any installation. Moreover, a person of ordinary skill in the art
would have readily observed that appliances require electricity to function
and thus an electric plug and outlet must be present in the stove and
backsplash of Zimmerman and Wattrick such that installation can occur
without an electrician.
Although we appreciate the Examiner’s position that Cohn’s hood and
backsplash can be mounted separate from an appliance, nonetheless, we find
the Examiner’s rejection insufficient to explain what would have prompted a
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person having ordinary skill in the art to remove the integral backsplash of
Zimmermann and Wattrick and mount it separately in Cohn’s bracket. The
Examiner has not provided any findings that either Zimmermann or Wattrick
recognized a problem with a backsplash integral with an appliance.
Moreover, the Examiner fails to explain why a person of ordinary skill in the
art would relocate the faucet, water supply line, controller, actuating means,
and selection means from the integral backsplash panel of Zimmermann as
modified by Wattrick to a separate backsplash as taught by Cohn. Hence,
absent hindsight, we fail to see why one having ordinary skill in the art
would have any reason to modify the device of Zimmermann and Wattrick
in the manner claimed. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
(cited with approval in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007)).
As such, we do not sustain the rejection of claims 1, 3, 5, 8, and 15
under 35 U.S.C. § 103(a) as unpatentable over Zimmermann, Wattrick, and
Cohn.
The Examiner’s use of the disclosures of either, Logan, Mac, Barnett,
Jensen, Rodenbeck, Barritt, Teich, or Reddy, does not remedy the deficiency
of Zimmermann, Wattrick, and Cohn as described supra. See Ans. 11–16.
Accordingly, for the foregoing reasons, we likewise do not sustain
Rejections VII–XV.
SUMMARY
We reverse the Examiner’s decision to reject claims 1–29.

REVERSED

Ssc