Ex Parte Platt

Patent Trial and Appeal Board

Sep 28, 2018

13930412 (P.T.A.B. Sep. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/930,412 06/28/2013
28249 7590 09/28/2018
DILWORTH & BARRESE, LLP
Dilworth & Barrese, LLP
1000 WOODBURY ROAD
SUITE405
WOODBURY, NY 11797
FIRST NAMED INVENTOR
Thorsten Platt
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.
298-613 2326
EXAMINER
DIAZ, MARCOS 0
ART UNIT PAPER NUMBER
3741
MAIL DATE DELIVERY MODE
09/28/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THORSTEN PLATT
Appeal2017-001343
Application 13/930,412
Technology Center 3700
Before KEN B. BARRETT, WILLIAM A. CAPP, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Liebherr-Hausgerate Ochsenhausen GmbH ("Appellant") 1 appeals
under 35 U.S.C. § 134(a) from the Examiner's decision rejecting
claims 1-20, which are all the pending claims. See Appeal Br. 7-14.
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Liebherr-Hausgerate Ochsenhausen GmbH is the applicant, as
provided in 37 C.F.R. § 1.46, and is identified as the real party in interest.
Appeal Br. 3.
Appeal2017-001343
Application 13/930,412
CLAIMED SUBJECT MATTER
Appellant's disclosed invention "relates to a cooling and/or freezing
apparatus with at least one cooled internal space and with at least one door
provided with at least one handle," the apparatus including "at least one
dispenser with at least one delivery opening for the delivery of at least one
medium, in particular water and/ or ice." Spec. 1. 2 Claim 1, reproduced
below with emphasis and line breaks added for clarity, is the sole
independent claim and is representative of the subject matter on appeal.
1. A cooling and/or freezing apparatus with at least one
cooled internal space and with at least one door provided with
at least one handle, the at least one door configured to close the
at least one cooled internal space, wherein the apparatus
compnses
at least one dispenser with at least one delivery opening
for the delivery of at least one medium,
wherein the at least one handle comprises the at least one
delivery opening of the at least one dispenser, the at least one
handle further including a movable section,
wherein the at least one delivery opening of the at least
one handle is positioned at a location of the movable section
and the at least one medium dispenses from the at least one
handle at the at least one delivery opening.
2 We note that Appellant's Specification does not provide line or
paragraph numbering; accordingly, reference herein is made only to page
numbers.
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Appeal2017-001343
Application 13/930,412
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Mullen
Piscotty
us 5,673,817
US 2009/0057339 Al
REJECTION
Oct. 7, 1997
Mar. 5, 2009
The following rejection is before us for review: 3 Claims 1-20 stand
rejected under 35 U.S.C. § 103 as being unpatentable over Mullen and
Piscotty. Final Act. 5-9.
3 We note that the Final Office Action (dated Nov. 19, 2015) includes
rejections of claim 9 under 35 U.S.C. § 112(a), as failing to comply with the
written description requirement (Final Act. 3--4) and under 35 U.S.C.
§ 112(b ), as being indefinite (id. at 4--5). Appellant subsequently filed an
Amendment (dated Feb. 16, 2016) to address these rejections. The Advisory
Action ( dated Mar. 1, 2016) states that the Amendment was entered by the
Examiner and that the "112(b) rejections" have been withdrawn, such that
the rejection of claim 9 under 35 U.S.C. § 112(b ), as being indefinite, is not
before us for review as part of the instant appeal. Advisory Act. 2; see id.
at 1.
The Advisory Action does not mention the 112(a) rejection, though
the Amendment appears to have removed the basis for this rejection as well,
and neither the Advisory Action nor the Examiner's Answer (dated Sept. 20,
2016) formally withdraws the 112(a) rejection. As the 112(a) rejection is
not contested in the appeal (it is not identified as a rejection under appeal by
Appellant and it is not included in the grounds of rejection applicable to the
appealed claims in the Examiner's Answer), we consider it effectively
withdrawn and conclude that the rejection of claim 9 under 35 U.S.C.
§ 112(a), as failing to comply with the written description requirement, is
not before us for review as part of the instant appeal. Should there be further
prosecution of this application, the Examiner may wish to address a formal
withdrawal of this 112(a) rejection.
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Appeal2017-001343
Application 13/930,412
ANALYSIS
Appellant presents arguments against the rejection of independent
claim 1 (see Appeal Br. 7-13), and relies on the same arguments for
dependent claims 2-20 (see id. at 13-14). We select claim 1 as
representative of the issues that Appellant presents in the appeal of this
rejection, with dependent claims 2-20 standing or falling therewith. See
37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner determined that a combination of teachings from
Mullen and Piscotty renders obvious the subject matter recited in claim 1.
See Final Act. 5---6. Appellant argues that the teachings of the cited
references do not render obvious the claim, based on alleged distinctions
from each reference individually, and relying on specifics from a particular
embodiment depicted in the drawings rather than the broader recitations of
the claim. See Appeal Br. 7-13.
After careful consideration of the record before us, Appellant's
arguments do not apprise us of error in the Examiner's factual findings from
Mullen or Piscotty, which are 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
rejection based on the reasoned positions set forth therein and in light of the
Examiner's thorough responses to Appellant's arguments. See Final
Act. 5---6; Ans. 2---6.
In particular, Appellant does not differentiate the recited delivery
opening of the handle, broadly recited as being positioned at a location of
the movable section of the handle, from the identified structure in the
combined teachings of Mullen (handle structure with a delivery opening
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Appeal2017-001343
Application 13/930,412
extending therethrough (see Final Act. 5---6; Mullen, Fig. 4)) and Piscotty
(handle structure including a movable section, with a delivery opening being
positioned at a location of the movable section (see Final Act. 6; Piscotty,
Fig. 6)).
Further, we note that-although the handles depicted in the cited
references may look different than the handle depicted in Appellant's
drawings ( e.g., an elongated, vertically-extending, bar-style handle of an
upright refrigerator}-----each is nevertheless a "handle" as broadly recited in
the claim. Aesthetic considerations that do not impact the structure or
functionality of the recited elements do not bear on the patentability of the
elements recited. Here, the Examiner's interpretation of the disputed claim
term-though broader than Appellant's urged interpretation-remains
reasonable. See Ans. 2--4. Thus, Appellant's arguments do not apprise us of
error in the Examiner's rejection.
Moreover, while Appellant appears to lean heavily on details of the
specific configuration of the handle depicted in the drawings (Appeal Br. 1 O;
see id. at 7-10), we note that such details are conspicuously absent from the
claim itself. As stated by our reviewing court in In re Hiniker Co., 150 F.3d
1362, 1369 (Fed. Cir. 1998), "the name of the game is the claim." It is well
established that limitations not appearing in the claim cannot be relied upon
for patentability. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Thus,
although the claim is interpreted in light of the Specification, details or other
limitations from the Specification are not read into the claim. See In re Van
Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
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Appeal2017-001343
Application 13/930,412
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 the evidence of record, Appellant's
arguments do not apprise us of error in the Examiner's findings or reasoning
in support of the conclusion of obviousness. Accordingly, we sustain the
rejection of claim 1, and of claims 2-20 falling therewith, under 35 U.S.C.
§ 103 as being unpatentable over Mullen and Piscotty.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1-20 under
35 U.S.C. § 103 as being unpatentable over Mullen and Piscotty.
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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