Ex Parte Ozbek et al

Patent Trial and Appeal Board

Sep 29, 2017

11568764 (P.T.A.B. Sep. 29, 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.
11/568,764 11/06/2006 Mehmet Ozbek 101670-0417274 9752
20350 7590 10/03/2017
KTT PATRTrK TOWNSFND fr STOrKTON T T P
EXAMINER
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10/03/2017 ELECTRONIC
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MEHMET OZBEK and SERAP DIKMENLI
Appeal 2015-003559
Application 11/568,764
Technology Center 3700
Before BRANDON J. WARNER, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge WARNER.
Opinion Dissenting-in-Part filed by Administrative Patent Judge STEPINA.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Mehmet Ozbek and Serap Dikmenli (“Appellants”)1 appeal under
35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—15,
which are all the pending claims. Appeal Br. 1, 6. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Arcelik Anonim
Sirketi, a Turkish Joint Stock Company. Appeal Br. 4.
Appeal 2015-003559
Application 11/568,764
CLAIMED SUBJECT MATTER
Appellants’ disclosed invention “relates to a washer/dryer comprising
a tub which, in mediums where microwave energy is utilized, prevents the
leakage of the microwave [energy] that is routed to the interior of it, without
blocking the passage of the fluids used during the washing process.” Spec.
11. Claims 1, 4, 8, and 12 are independent. Claim 1, reproduced below
with emphasis added, is illustrative of the subject matter on appeal.
1. A washer/dryer (1) for washing and drying laundry
comprising a tub (2) wherein laundry washing/drying process is
performed, one or more than one aperture (4) positioned on the
tub (2), whereby the cleaning materials and water are taken into
and discharged out of the tub (2), one or more than one
conduit (5) connected to the aperture (4) and characterized by a
grid (3) with geometric dimensions and forms so that
microwave proofing is achieved, positioned onto the
aperture (4) or between the aperture (4) and the conduit (5),
manufactured from a microwave proof material and, comprises
more than one hole (9) with such depth (C) and width (D)
dimensions that ensure the depth-width ratio necessary to
achieve the microwave proofing, at the wave length of the
applied microwave energy.
The Examiner relied on the following evidence in rejecting the claims
EVIDENCE
on appeal:
Gauer
Sevems
US 5,463,821
US 6,691,536 B2
US 7,017,282 B2
DE 36 21 295 A1
Nov. 7, 1995
Feb. 17, 2004
Mar. 28, 2006
Jan. 7, 1988
Pyo
Mantele
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Application 11/568,764
REJECTIONS
The following rejections are before us for review:2
I. Claims 1—15 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the enablement
requirement. Final Act. 3.
II. Claims 1—15 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description
requirement. Id. at 4.
III. Claims 1, 2, 4, 5, 8, 9, 12, and 13 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Sevems and
Gauer. Id. at 5—6.
IV. Claims 3, 6, 7, 10, 11, and 15 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Sevems, Gauer, and
Mantele. Id. at 6—7.
V. Claims 1, 2, 4, 5, 8, 9, and 12—14 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Pyo and Gauer.
Id. at 7—8.
2 We note that the Examiner provides a heading for a statutory double
patenting rejection, but states that claims 4—11 “will be objected to” under
37 C.F.R. § 1.75 as being substantial duplicates of claims 1—3, should those
claims ultimately be found allowable. Final Act. 2. Appellants do not
explain any patentable distinction between the four groups of claims
(independent claims 1, 4, 8, and 12, and their respective dependent claims),
instead focusing arguments on claims 1—3 and stating that cancellation of
claims 4—11 may be considered later. Appeal Br. 14. Following Appellants’
lead, we consider herein the arguments presented for claims 1—3, and note
that an objection to claims 4—11 as being substantial duplicates is not an
appealable issue before us for review.
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Application 11/568,764
VI. Claims 3, 6, 7, 10, 11, and 15 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Pyo, Gauer, and Mantele.
Id. at 8—9.
ANALYSIS
Rejection I Claims 115 as failing to comply with
the enablement requirement
We agree with the Examiner’s observations regarding a lack of
enabling disclosure for the identified recitations of the claims, specifically
that it is “unclear what kind of geometric dimensions the grid has so that
microwave proofing is achieved,” and “also unclear what kind of depth (C)
and width (D) dimensions . . . would ensure the depth-width ratio necessary
to achieve the microwave proofing at the wave length of the applied
microwave energy.” Final Act. 3. The Examiner accurately notes that “[t]he
originally filed [Specification does not describe any geometric depth (C)
and width (D) dimensions and depth-width ratio that would achieve the
microwave proofing at the wave length of the applied microwave energy.”
Id.
In contesting this rejection, Appellants do not identify any enabling
disclosure, but instead contend only that “microwave leakage preventing
structures are known to a person skilled in the art at the time of this
invention,” without providing any evidence of this contention. Appeal
Br. 14; Reply Br. 2. Further, Appellants do not provide evidence or
explanation as to how the alleged knowledge of those skilled in the art
would relate to the unspecified “geometric dimensions and forms,” recited in
the claims. See Appeal Br. 14; Reply Br. 2. Appellants also erroneously
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Application 11/568,764
state that “dimensions are, for example, shown in figures 3 and 4” (Appeal
Br. 14; Reply Br. 2), and that these figures “show” a ratio between width (D)
and depth (C) of 1.4 (Reply Br. 2). These statements are unsupported.
Upon review of Appellants’ disclosure we find no exemplary dimensions for
width (D) and/or depth (C), nor any ratio therebetween. Moreover,
Appellants do not indicate that the drawings are to scale, so it is wholly
unclear what the asserted ratio of 1.4 is based upon. See Hockerson-
Halbertstadt, Inc. v. Avia Group Int’l, Inc., 222 F.3d 951, 956 (Fed. Cir.
2000) (“[I]t is well established that patent drawings do not define the precise
proportions of the elements and may not be relied on to show particular sizes
if the specification is completely silent on the issue.”).
Appellants’ unsupported assertions are insufficient to apprise us of
error with respect to the Examiner’s enablement rejection. As Appellants do
not direct us to any enabling disclosure of the scope of the shortcomings
identified by the Examiner, we sustain the enablement rejection of
claims 1—15.
Rejection II Claims 1—15 as failing to comply with
the written description requirement
The stated basis for the Examiner’s written description rejection is
that Appellants’ Specification “does not describe a washer/dryer for washing
and drying laundry,” such that the Examiner “interprets that washer/dryer
means washer or dryer and washing/drying means washing or drying.” Final
Act. 4. Although Appellants are incorrect about the ability to presently
appeal this rejection (see Appeal Br. 14; Reply Br. 2), we nevertheless
disagree with the Examiner’s claim interpretation noted above. From
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Appellants’ disclosure and claims, it is clear to one of ordinary skill in the
art that a “washer/dryer” is a washing and/or drying machine that is capable
of both washing and drying within the same tub, albeit performing only one
operation at a time. Additionally, we agree with Appellants that the scope of
the grid of claim 12, so as to not obstruct the discharge of “particles selected
from the group consisting of fiber and pile,” is sufficiently described at
paragraph 15 of the Specification. See Appeal Br. 14.; Reply Br. 2—3
In short, we agree with Appellants that the Specification provides
adequate support for the limitations in question sufficient to satisfy the
written description requirement. Accordingly, we do not sustain the written
description rejection of claims 1—15.
Rejections III and IV Claims 1, 2, 4, 5, 8, 9, 12, and 13 as unpatentable
over Severns and Gauer, and claims 3, 6, 7, 10, 11, and 15 as unpatentable
over Severns, Gauer, and Mantele
Appellants argue that the rejections are deficient because of an
asserted structural distinction between Gauer’s microwave blocking
screen 96 and the claimed grid. See Appeal Br. 16—21; Reply Br. 5—11.
After careful consideration of the record before us, Appellants’ arguments
do not apprise us of error in the Examiner’s reliance on Gauer’s microwave
blocking screen, which is supported by a preponderance of the evidence, or
the Examiner’s reasonable conclusion of obviousness, which is rationally
articulated based on prior art teachings. In short, we sustain the Examiner’s
rejections based on the reasoned positions set forth therein and in light of the
Examiner’s thorough responses to Appellants’ arguments. See Final
Act. 5—6; Ans. 6—9.
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In particular, we note that Appellants do not persuasively explain any
structural distinction between Gauer’s microwave blocking screen 96, which
is disclosed as “prevent[ing] microwaves from leaving the drum 24 but
which allows moist air to leave the drum,” and the recited grid. Because
Gauer’s screen 96 is disclosed as being capable of functioning in this way,
we do not see any persuasive explanation as to why it would somehow not
be structurally equivalent to the recited grid. See In re Spada, 911 F.2d 705,
708 (Fed. Cir. 1990) (“when the PTO shows sound basis for believing that
the products of the applicant and the prior art are the same, the applicant has
the burden of showing that they are not”). Here, Appellants have not
provided any factual evidence or persuasive technical reasoning to contradict
the Examiner’s position regarding the inherent features of Gauer’s
microwave blocking screen 96, and thus do not apprise us of error.
To the extent that Appellants’ arguments suggest that the claimed grid
has some distinguishing structure, we note that the grid does not recite any
specific structure, but is only functionally recited as having some
unspecified “geometric dimensions and forms so that microwave proofing is
achieved,” namely “such depth (C) and width (D) dimensions that ensure the
depth-width ratio necessary to achieve the microwave proofing, at the wave
length of the applied microwave energy.” Because Gauer’s screen functions
in the same way (achieves microwave proofing while allowing fluid to pass
through), the Examiner’s finding that it meets the claimed grid is supported
by a preponderance of the evidence.
We note that any other arguments not specifically addressed in detail
herein have been thoroughly considered by the panel but are not persuasive
for the reasons well expressed in the Examiner’s Answer.
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Application 11/568,764
After careful consideration of all the evidence of record, Appellants’
arguments do not apprise us of error in the Examiner’s findings or reasoning
in support of the conclusion of obviousness. Accordingly, we sustain
Rejections III and IV.
Rejections V and VI Claims 1, 2, 4, 5, 8, 9, and 12—14 as unpatentable
over Pyo and Gauer, and claims 3, 6, 7, 10, 11, and 15 as unpatentable
over Pyo, Gauer, and Mantele
Appellants again argue that the rejections are deficient because of an
asserted structural distinction between Gauer’s microwave blocking
screen 96 and the claimed grid. See Appeal Br. 21—23; Reply Br. 11—13.
After careful consideration of the record before us, Appellants’ arguments
do not apprise us of error in the Examiner’s reliance on Gauer’s microwave
blocking screen, which is supported by a preponderance of the evidence, or
the Examiner’s reasonable conclusion of obviousness, which is rationally
articulated based on prior art teachings. In short, we sustain the Examiner’s
rejections based on the reasoned positions set forth therein and in light of the
Examiner’s thorough responses to Appellants’ arguments. See Final
Act. 5—6; Ans. 6—9.
In particular, we again note that Appellants do not persuasively
explain any structural distinction between Gauer’s microwave blocking
screen 96, which is disclosed as “prevent[ing] microwaves from leaving the
drum 24 but which allows moist air to leave the drum,” and the recited grid.
Because Gauer’s screen 96 is disclosed as being capable of functioning in
this way, we do not see any persuasive explanation as to why it would
somehow not be structurally equivalent to the recited grid. See In re Spada,
911 F.2d at 708. As discussed above, Appellants have not provided any
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Application 11/568,764
factual evidence or persuasive technical reasoning to contradict the
Examiner’s position regarding the inherent features of Gauer’s microwave
blocking screen 96, and thus do not apprise us of error.
To the extent that Appellants’ arguments again suggest that the
claimed grid has some distinguishing structure, we note that the grid does
not recite any specific structure, but is only functionally recited as having
some unspecified “geometric dimensions and forms so that microwave
proofing is achieved,” namely “such depth (C) and width (D) dimensions
that ensure the depth-width ratio necessary to achieve the microwave
proofing, at the wave length of the applied microwave energy.” Because
Gauer’s screen functions in the same way (achieves microwave proofing
while allowing fluid to pass through), the Examiner’s finding that it meets
the claimed grid is supported by a preponderance of the evidence.
We note that any other arguments not specifically addressed in detail
herein have been thoroughly considered by the panel but are not persuasive
for the reasons well expressed in the Examiner’s Answer.
After careful consideration of all the evidence of record, Appellants’
arguments do not apprise us of error in the Examiner’s findings or reasoning
in support of the conclusion of obviousness. Accordingly, we sustain
Rejections V and VI.
DECISION
We AFFIRM the Examiner’s decision rejecting claims 1—15 under
35 U.S.C. § 112, first paragraph, as failing to comply with the enablement
requirement.
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Application 11/568,764
We REVERSE the Examiner’s decision rejecting claims 1—15 under
35U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement.
We AFFIRM the Examiner’s decision rejecting claims 1, 2, 4, 5, 8, 9,
12, and 13 under 35 U.S.C. § 103(a) as being unpatentable over Sevems and
Gauer.
We AFFIRM the Examiner’s decision rejecting claims 3, 6, 7, 10, 11,
and 15 under 35 U.S.C. § 103(a) as being unpatentable over Sevems, Gauer,
and Mantele.
We AFFIRM the Examiner’s decision rejecting claims 1, 2, 4, 5, 8, 9,
and 12—14 under 35 U.S.C. § 103(a) as being unpatentable over Pyo and
Gauer.
We AFFIRM the Examiner’s decision rejecting claims 3, 6, 7, 10, 11,
and 15 under 35 U.S.C. § 103(a) as being unpatentable over Pyo, Gauer, and
Mantele.
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
10
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MEHMET OZBEK and SERAP DIKMENLI
Appeal 2015-003559
Application 11/568,764
Technology Center 3700
Before BRANDON J. WARNER, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
STEPINA, Administrative Patent Judge, dissenting-in-part.
I agree with the majority’s decision with respect to Rejections II—VI,
but I respectfully dissent from the affirmance of Rejection I.
Claim 1 and the other independent claims are more straightforward
than the Examiner’s analysis with respect to enablement (but not with
respect to the prior art) implies. The grid recited in claim 1, with more than
one hole that blocks microwave energy at the wavelength of the microwave
energy, is merely a screen that has holes and that blocks microwave energy.
The recited “depth (C) and width (D) dimensions that ensure the depth-width
ratio necessary to achieve the microwave proofing, at the wave length of the
applied microwave energy,” are inherently provided by a microwave
blocking screen having holes, as the Examiner explains in the prior art
rejections based on Gauer. See Final Act. 5, 7 (stating, “It is inherent that
the microwave blocking screen 96 is manufactured from a microwave proof
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Application 11/568,764
material and has holes with depth and width that would achieve the
microwave proofing otherwise the screen 96 would not block the microwave
and do not obstruct flow of cleaning materials and water taken into and
discharged out of the tub.”
Appellants assert “microwave leakage preventing structures [were]
known to a person skilled in the art at the time of this invention.” Appeal
Br. 14. The Examiner apparently agrees, as is evident in above-noted
discussion of Gauer in the Final Action. See Final Act. 5,7. Indeed, the
Examiner finds the same structure that is the focus of the enablement
rejection in a reference disclosing a dryer machine that is very similar to the
one recited in claim 1. Id.', see also Gauer, Abstract (disclosing, “A method
and apparatus for operating a microwave dryer having a rotating drum with
radially inwardly extending baffles for tumbling and turning over clothes,
the baffles housing microwave magnetron tubes for emitting microwaves
into the drum.”). Nonetheless, in the Answer, the Examiner contends that
“[Appellants’] statement does not cite any evidence to establish one skilled
in the art would know what the leakage preventing structures are and the
dimensions as shown in figures 3 and 4.” Ans. 4. However, the Examiner’s
own findings regarding Gauer are evidence that such structures were known
and that the dimensions required by claim 1 were inherent in these structures
for them to provide microwave proofing.
Additionally, the Examiner bears the initial burden in rejecting claims
for lack of enablement (see In re Wright, 999 F.2d 1557, 1561—62 (Fed. Cir.
1993)), and, in my view, the Examiner did not explain sufficiently why the
disclosure as filed would not enable a person of ordinary skill in the art to
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Application 11/568,764
make and use the invention recited in claims 1—15. Specifically, the
Examiner states:
It is unclear what kind of geometric dimensions the grid has so
that microwave proofing is achieved. It is also unclear what kind
of depth (C) and width (D) dimensions that would ensure the
depth-width ratio necessary to achieve the microwave proofing
at the wave length of the applied microwave energy. The
originally filed specification does not describe any geometric
depth (C) and width (D) dimensions and depth-width ratio that
would achieve the microwave proofing at the wave length of the
applied microwave energy.
Final Act. 3. The Examiner’s explanation concludes that certain claimed
dimensional requirements are unclear, finds that the Specification does not
disclose any depth (C) and width (D) dimensions, and then effectively jumps
to the conclusion that undue experimentation would be required to make and
use the subject matter defined by claims 1—15. In other words, of the eight
Wands factors,3 the Examiner’s explanation addresses just one, specifically,
the presence or absence of working examples (the mere conclusion that
undue experimentation would be required is not analysis of the quantity of
experimentation necessary). Given the simplicity of the claimed invention
(a washer/dryer for laundry), the disclosure of a grid with microwave
proofing in a laundry dryer in Gauer, and the relative skill of persons in the
3 To evaluate whether a disclosure would require undue
experimentation is a legal conclusion reached by weighing many factual
considerations including: (1) the quantity of experimentation necessary,
(2) the amount of direction or guidance presented, (3) the presence or
absence of working examples, (4) the nature of the invention, (5) the state of
the prior art, (6) the relative skill of those in the art, (7) the predictability or
unpredictability of the art, and (8) the breadth of the claims. See In re
Wands, 858 F.2d 731, 737 (Fed. Cir. 1988)).
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art as evidenced by Gauer and Sevems, it appears that an analysis of the
remaining Wands factors, had one been performed by the Examiner, may
have favored Appellants. Accordingly, the Examiner did not carry the initial
burden, and I would reverse the Examiner’s rejection of claims 1—11 for
failing to comply with the enablement requirement.
The Examiner provides similar analysis of independent claim 12 and
the requirement that the microwave proofing “not obstruct from the
washer/dryer and a discharge of particles selected from the group consisting
of fiber and pile.” See Final Act. 3. For similar reasons to those discussed
above, I would reverse the Examiner’s rejection of claim 12, and claims
13—15 depending therefrom, as failing to comply with the enablement
requirement.
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