Ex Parte Elkasevic

Patent Trial and Appeal Board

Oct 19, 2016

13478277 (P.T.A.B. Oct. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/478,277 05/23/2012
46726 7590 10/21/2016
BSH Home Appliances Corporation
100 Bosch Boulevard
NEW BERN, NC 28562
FIRST NAMED INVENTOR
Suad Elkasevic
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.
2011P04000US 1023
EXAMINER
0 BRIEN, JEFFREY D
ART UNIT PAPER NUMBER
3677
NOTIFICATION DATE DELIVERY MODE
10/21/2016 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
Exparte SUAD ELKASEVIC
Appeal2014-008204
Application 13/478,277 1
Technology Center 3600
Before LINDA E. HORNER, THOMAS F. SMEGAL, and
ERIC C. JESCHKE, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Suad Elkasevic (ii .. ppellant) seeks our revie\v under 35 U.S.C. § 134 of
the Examiner's Final Rejection under 35 U.S.C. § 103(a) of claims 1-18 as
unpatentable over Hopkins (US 3,450,125, iss. June 17, 1969) and White
(US 2011/0017191 Al, pub. Jan. 27, 2011). We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is BSH Home Appliances
Corporation. Appeal Br. 3.
Appeal2014-008204
Application 13/478,277
CLAIMED SUBJECT MATTER
Claims 1, 7, and 13 are independent. Claim 1 is reproduced below
and illustrates the claimed subject matter.
1. A hinge assembly for pivotably attaching a door to a
domestic appliance having an appliance body, the hinge
assembly comprising:
a hinge body;
a damper having a central longitudinal axis and including
a damper cylinder attached to the hinge body, the damper
cylinder having a rod partially located inside the cylinder and
partially located outside the cylinder, and a coil spring located
inside the cylinder and around the rod such that the rod extends
through a center of a coil of the coil spring, the damper
damping the movement of the rod relative to the cylinder, and
the rod extending along the central longitudinal axis of the
damper;
a foot pivotably attached to the damper and having a
pivot end, the foot being configured to engage a foot receiving
portion of the appliance body such that the hinge body and the
door pivot relative to the appliance body; and
a shoulder bushing attached to the pivot end of the foot
and to a pivot point of the hinge body such that the foot pivots
relative to the hinge body around the pivot point, the shoulder
bushing having a large diameter portion and a small diameter
portion,
wherein the pivot end of the foot is fixed to the shoulder
bushing at a fixing area of the small diameter portion such that
a side surface of the pivot end of the foot is in contact with a
side surface of the large diameter portion.
ANALYSIS
Obviousness of Claims 1-18 as unpatentable over Hopkins and White
Appellant argues claims 1-18 together in contesting the rejection of
these claims as obvious over Hopkins and White. See Appeal Br. 9-11 and
Reply Br. 3--4. We select claim 1 as the representative claim for this group,
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Application 13/478,277
and the remaining claims stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv).
In rejecting claim 1, the Examiner finds that Hopkins "discloses all
the elements of the claimed hinge assembly, ... including a hinge body, a
damper, a foot, [and] a shoulder bushing having a large diameter portion and
a small diameter portion," where the damper is a "spring damper." Final
Act. 2-3. The Examiner further finds that White discloses the damper
assembly as recited by claim 1, and reasons that it would have been obvious
"to replace the spring damper of [Hopkins] with the cylinder/rod/spring
damper of [White] as it is a simple substitution of one known damper for
another in a manner that yields predictable results." Id. at 3.
Appellant first misstates the final rejection, contending that "it would
not have been obvious to replace the spring of Hopkins with the
cylinder/rod/spring assembly of White because if ... the damping feature of
White was desirable on the oven door of Hopkins ... then one would have
replaced the entire hinge structure of Hopkins with the entire hinge structure
of White."2 Appeal Br. 9-10. Appellant continues by contending that "such
a piecemeal substitution would have been more complicated with no obvious
benefit." Id. at 10.
However, the Examiner correctly points out that White "teaches that a
hinge assembly with a spring member is known (Prior Art Figure 9 of
[White]) and [also] teaches replacing the spring member of the hinge
assembly with a cylinder/rod/spring damper." Ans. 2 (citing White, Fig. 4).
The Examiner again reasons that "it would have been obvious to replace the
2 In an appeal under 35 U.S.C. § 134(a), it is the Examiner's final rejection
that we review. See In re Webb, 916 F.2d 1553, 1556 (Fed. Cir. 1990).
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Application 13/478,277
spring of [Hopkins] with the cylinder/rod/spring damper as taught by
[White] in order to damp the closing force of the hinge."3 Id. We agree,
also noting that "when a patent claims a structure already known in the prior
art that is altered by the mere substitution of one element for another known
in the field, the combination must do more than yield a predictable result."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (citation omitted).
Appellant does not apprise us of error in the Examiner's factual findings or
the conclusion as to obviousness.
Appellant rephrases the prior contention, next asserting that were one
to "replace the spring of Hopkins with the cylinder/rod/spring assembly of
White, ... because fastener F 1 was designed specifically for the
cylinder/rod/spring structure of White, [where the] offset nature of the
attachment of hook end 23 of spring 22 to channel 19 [in Hopkins] is
different from the centrally aligned nature of the cylinder/rod/spring
assembly of [White, that] there would have been no obvious reason to use
the transition piece of Hopkins instead of the fastener F 1 of White." Appeal
Br. 10.
However, we find the Examiner's use of a portion of White's teaching
to be appropriate in that all of the features of a secondary reference need not
be bodily incorporated into the primary reference. See In re Keller, 642 F.2d
413, 425 (CCPA 1981). Furthermore, Appellant is simply attacking White
in isolation for lacking support for findings not relied upon by the Examiner,
rather than addressing the Examiner's combination of Hopkins and White.
However, nonobviousness cannot be established by attacking references
3 See also Appellant's Specification at i-fl4, disclosing existing "door hinge
assemblies with both a spring and a damper."
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Appeal2014-008204
Application 13/478,277
individually when the rejection is predicated upon a combination of prior art
disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
As the Examiner explains, "[t]he [Hopkins] reference clearly shows
the shoulder bushing as claimed." Ans. 2. The Examiner continues by
reasoning that Hopkins "is the primary reference and is being modified by
the teachings of [White] as to the cylinder/rod/spring assembly," so that "it
is therefore the fastener of [Hopkins] that must teach the shoulder bushing."
Id. at 3. Furthermore, the Examiner explains that "the test for obviousness is
not whether the features of a secondary reference may be bodily
incorporated into the structure of the primary reference; nor is it that the
claimed invention must be expressly suggested in any one or all of the
references," but that "the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art." Id.
(citation omitted). We agree.
Appellant also contends that "the combination of elements in the
Office Action is a clear case of impermissible hindsight reconstruction," and
that "[ w ]ithout the teachings of the present Application, one skilled in the
relevant art would not have realized the benefit of including the claimed
shoulder bushing in a hinge assembly that has a centrally aligned
damper/spring assembly." Appeal Br. 10. However, we do not agree that
the Examiner's rejection is an impermissible hindsight reconstruction as it
does not include knowledge gleaned only from the Appellant's disclosure,
but rather takes into account the teachings of Hopkins and White as set forth
above, i.e., knowledge that was within the level of ordinary skill at the time
the claimed invention was made. See In re McLaughlin, 443 F.2d 1392,
1395 (CCPA 1971); see also Radix Corp. v. Samuels, 13 USPQ2d 1689,
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Application 13/478,277
1693 (D.D.C. 1989) (Any obviousness inquiry necessarily involves some
hindsight.). See also Ans. 5.
We are not persuaded by Appellant's additional arguments of having
recognized "the existence of the forces acting on the foot[,]the need for a
strong and secure locating system for the pivot point of the foot," and that
"even minor movements of the pivot point of the foot can cause increased
loads on the pivot structure, [that] can cause undesirable noise, can change
the closing time of the door, and can make it more difficult to remove the
door." Id.; see also Reply Br. 3--4. These arguments fail from the outset
because they are "not based on limitations appearing in the claims." See In
re Self, 671F.2d1344, 1348 (CCPA 1982). Furthermore, Appellant offers
no evidence to support these arguments. Arguments of counsel cannot take
the place of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d
775, 782 (CCPA 1977); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA
1974). See also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984)
(holding that arguments and conclusions unsupported by factual evidence
carry no evidentiary weight).
Appellant also appears to belatedly challenge the Examiner's reliance
on official notice, in noting "that it disagrees that it is well known to use an
interference fit between a shoulder bushing and the pivot end of claimed
foot." Appeal Br. 11. While Appellant's challenge is moot, as claim 1 is not
limited to "an interference fit between a shoulder bushing and the pivot end
of claimed foot," it is also untimely as the "Examiner's assertion of official
notice from the Office Action Mailed 10/22/2013 ... is now taken as
admitted prior art due to Applicant's failure to adequately traverse said
official notice." See Final Act. 4 (citing MPEP §2144.03). We agree.
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In view of the foregoing, we sustain the Examiner's unpatentability
rejection of claims 1-18 over Hopkins and White.
DECISION
We AFFIRM the Examiner's rejections.
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)(l )(iv).
AFFIRMED
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