Ex Parte Fotiadis et al

Patent Trial and Appeal Board

Feb 12, 2018

13132610 (P.T.A.B. Feb. 12, 2018)

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.
13/132,610 06/03/2011 Panagiotis Fotiadis PTB-6032-21 6597
23117 7590 02/14/2018
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
FURDGE, LARRY L
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
02/14/2018 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PANAGIOTIS FOTIADIS,
JOCHEN HARLEN, and HARALD JOKSCH
Appeal 2016-004674
Application 13/132,610
Technology Center 3700
Before STEFAN STAICOVICI, RICHARD H. MARSCHALL, and
ARTHUR M. PESLAK, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Panagiotis Fotiadis et al. (“Appellants”)1 appeal under 35 U.S.C.
§ 134(a) from the Examiner’s decision in the Final Action (dated May 21,
2015, hereinafter “Final Act.”) rejecting claims 12—21, 23—27, and 32—36.2
We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
1 BSH HAUSGERATE GMBH is identified as the real party in interest in
Appellants’ Appeal Brief (filed Feb. Oct. 9, 2015, hereinafter “Appeal Br.”).
Appeal Br. 3.
2 Claims 1—11, 22, and 28—31 are canceled. Appeal Br. 16—18
(Claims App.).
Appeal 2016-004674
Application 13/132,610
SUMMARY OF DECISION
We REVERSE.
INVENTION
Appellants’ invention relates to a refrigerator and a method for
controlling the temperature in the refrigerator. Spec. para. 1.
Claims 12 and 27 are independent. Claim 12, shown below, is
illustrative of the claimed invention and reads as follows:
12. A refrigerator, comprising:
a utility chamber for cooled goods;
a cold air channel to direct a cold air flow into the utility
chamber, the cold air channel being separated from the utility
chamber by a channel wall;
a control device configured to generate a cooling signal
which is received by a cooling device to cause introduction of
the cold air flow into the utility chamber as long as the cooling
signal is being received by the cooling device;
a defrost heating element rendered operative by the
cooling signal generated by the control device to prevent
formation of condensate and/or ice when the cold air flow is fed
into the utility chamber, the defrost heating element being
disposed on the channel wall to prevent formation of
condensate and/or ice on at least the channel wall; and
a timing element configured to receive the cooling signal
and, after a predetermined time interval, forward the cooling
signal to the defrost heating element to delay operation of the
defrost heating element in response to generation of the cooling
signal.
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Appeal 2016-004674
Application 13/132,610
REJECTIONS
I. The Examiner rejected claims 12—16, 23—27, 32, 33, and 36
under 35 U.S.C. § 103(a) as being unpatentable over Shim (US 5,542,258,
iss. Aug. 6, 1996), Dempou et al. (US 4,569,205, iss. Feb. 11, 1986,
hereinafter “Dempou”), and Oike (US 4,852,361, iss. Aug. 1, 1989).
II. The Examiner rejected claims 17, 18, 21, and 34 under 35
U.S.C. § 103(a) as being unpatentable over Shim, Dempou, Oike, and
Moorman et al. (US 3,138,006, iss. June 23, 1964, hereinafter “Moorman”).
III. The Examiner rejected claims 19, 20, and 35 under 35 U.S.C.
§ 103(a) as being unpatentable over Shim, Dempou, Oike, and Park (US
6,058,724, iss. May 9, 2000).
ANALYSIS
Rejection I
The Examiner finds that Shim fails to disclose a “timing element,” as
called for by each of independent claims 12 and 27. See Final Act. 2—3.
Nonetheless, the Examiner finds that Dempou discloses
[an] electric refrigerator with defrost ability . . . having a timer .
. . 156 . . . configured to receive a cooling signal. . . and after a
predetermined time interval, [to] forward the cooling signal. . .
to the defrost heating element... 80 ... to delay operation of
the defrost heating element in response to generation of the
cooling signal.
Id. at 4 (citing Dempou, col. 1,11. 7—12, col. 8,11. 52—68, col. 8,1. 52—col. 9,
1. 35, Fig. 4B). The Examiner concludes that it would have been obvious for
a person of ordinary skill in the art “to modify the assembly of Shim to have
a timing element,” as taught by Dempou, “in order to provide a freezing
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Appeal 2016-004674
Application 13/132,610
chamber that can be efficiently defrosted while minimizing the adverse
thermal effect of a defrosting heater on stored frozen foodstuff.” Id.', see
also Dempou, col. 1,11. 45—52.
Appellants argue that because Shim discloses the use of “prevention”
heaters that are activated when the compressor is turned ON, whereas
Dempou requires a timer to sequentially run the compressor for a “pre-frost”
cool down, and the defrost heater, sequentially, “there is simply no need in
Shim for the timer of Dempou.” Appeal Br. 10—11. According to
Appellants, the problem of “adverse thermal effects” is not present in Shim
because “the dew ‘prevention’ heaters are operated while the compressor is
‘on’ and able to keep items cool as the heaters run,” whereas in Dempou,
“the heater . . . melts ice-buildup on the evaporator itself while the
evaporator is not running.” Id. at 12. Hence, Appellants contend that “[t]he
skilled artisan would not look to Dempou to modify Shim.” Reply Brief 5
(dated Apr. 4, 2016, hereinafter “Reply Br.”).
The Examiner responds that because “Shim teaches a system having a
heater Hr that is intermittently operated when the compressor is off,” a
person of ordinary skill in the art “would recognize a desire to control the
timing of the intermittent operation,” and, thus, the same skilled artisan
“would have understood to modify Shim to have the . . . timer of Dempou.”
Examiner’s Answer 12 (dated Feb. 2, 2016, hereinafter “Ans.”) (citing Shim,
col. 4,11. 25-28).
The reasoning provided by the Examiner to modify the refrigeration
system and control process of Shim with the timer of Dempou, namely, (1)
to “minimiz[e] the adverse thermal effect of a defrosting heater on stored
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Appeal 2016-004674
Application 13/132,610
frozen foodstuff’ (see Final Act. 4) and (2) “to control the timing of the
intermittent operation” (see Ans. 12), does not support the conclusion of
obviousness because the Examiner has not shown the relevance of such
rationale in the context of the refrigeration system and control method of
Shim.
With respect to the Examiner first rationale,3 we note that Shim
already discloses a control method that minimizes the adverse effects of a
defrosting heater on stored frozen food. Specifically, in Shim’s control
method, when the temperature in the freezer is at or above 0 °C, the freezer
dew prevention freezer heater HF is always turned OFF. See Shim, col. 4,11.
20-23. However, if the temperature is below 0 °C, heater Hi is turned ON
only when the compressor is turned ON. Id. at col. 4,11. 23—25, Fig. 6A.
Shim also discloses that if the compressor is turned OFF, heater HF cycles
ON and OFF intermittently at a frequency that depends on the temperature
outside of the refrigerator. Id. at col. 4,11. 25—28, Fig. 6B. As to the
Examiner’s second rationale, Shim already discloses the use of a timer to run
intermittently dew prevention freezer heater HF. Id. at col. 5,11. 47—67.
It is well settled that an artisan must be presumed to know something
about the art apart from what the references disclose. In re Jacoby, 309 F.2d
513,516 (CCPA 1962). In this case, a person of ordinary skill in the art
would readily recognize that when the indoor temperature of Shim’s freezer
is above a predetermined temperature, i.e., 0 °C, dew prevention freezer
heater HF is not activated in order to prevent the loss of refrigerating ability,
3 We refer only to Shim’s freezer dew prevention heater HF because
the Examiner’s reasoning is based on “frozen foodstuff.”
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Application 13/132,610
and, thus, prevent adverse effects on the frozen food. See also Shim, col. 2,
11. 53—58, col. 5,11. 11—15. Similarly, the skilled artisan recognizes that
although dew prevention freezer heater HF is turned ON, because the
compressor is also turned ON, the refrigerating ability is likewise not
affected and no adverse effects on the frozen food results. Finally, even if
the compressor is turned OFF and dew prevention freezer heater HF cycles
ON and OFF intermittently, the skilled artisan would further appreciate that
the refrigerating ability of Shim’s freezer is not affected such that adverse
effects on the frozen food results. That is because the cycling of dew
prevention freezer heater HF is controlled by a timer based on the outside
temperature and, furthermore, heater HF cycles only as long as the
temperature in the freezer is below 0 °C. See also Shim, Fig. 6(B).
In conclusion, we find the Examiner’s rejection insufficient to
explain what in the prior art would have prompted a person having ordinary
skill in the art to modify the refrigeration system and control process of
Shim with the timer of Dempou. The Examiner has not provided any
findings that Shim recognized a problem with either its timer for controlling
dew prevention freezer heater HF intermittently or with deterioration of
stored frozen food when using heater HF as a defroster. As such, absent
hindsight, we fail to see why a person having ordinary skill in the art would
have modified the refrigeration system and control scheme of Shim with the
timer of Dempou in the manner claimed. See In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006).
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Appeal 2016-004674
Application 13/132,610
The Examiner’s use of the Oike disclosure does not remedy the
deficiency of the Examiner’s combination of Shim and Dempou. See Final
Act. 3^4.
Accordingly, for the foregoing reasons we do not sustain the rejection
under 35 U.S.C. § 103(a) claims 12—16, 23—27, 32, 33, and 36 as
unpatentable over Shim, Dempou, and Oike.
Rejections II and III
The Examiner’s use of the Moorman and Park disclosures does not
remedy the deficiency of the Examiner’s combination of Shim, Dempou,
and Oike. See Final Act. 7—10.
Accordingly, for the same reasons as discussed above, we likewise do
not sustain the rejections under 35 U.S.C. § 103(a) of claims 17, 18, 21, and
34 as unpatentable over Shim, Dempou, Oike, and Moorman and of claims
19, 20, and 35 as unpatentable over Shim, Dempou, Oike, and Park.
SUMMARY
The Examiner decision to reject claims 12—21, 23—27, and 32—36
under 35 U.S.C. §103 is reversed.
REVERSED
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