Ex Parte Watts

Patent Trial and Appeal Board

Oct 18, 2017

13827342 (P.T.A.B. Oct. 18, 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.
13/827,342 03/14/2013 Russell Watts WGP-42621 1725
122869 7590
Pearne and Gordon, LLP
1801 East 9th Street, Suite 1200
Cleveland, OH 44114
EXAMINER
AYRES, TIMOTHY MICHAEL
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
10/20/2017 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):
patdocket@peame.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUSSELL WATTS
Appeal 2017-004562
Application 13/827,342
Technology Center 3600
Before ERIC S. FRAHM, LARRY J. HUME, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
SZPONDOWSKI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—3, 5—16, 19, 22—24, and 26. Claims 4, 17, 18,
20, 21, and 25 have been cancelled. App. Br. 16—19 (Claims App’x). We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2017-004562
Application 13/827,342
STATEMENT OF THE CASE
Appellant’s disclosed invention is directed to refrigerators with a lift
mechanism for lifting a storage bin. Spec. 11. Claim 1, reproduced below,
is representative of the claimed subject matter:
1. A refrigerator, comprising:
a refrigerator compartment including a bin door;
a storage bin positioned within the refrigerator compartment;
and
a lift mechanism positioned within the refrigerator
compartment, the lift mechanism including:
a lifting device configured to support the storage bin, the
lifting device comprising a connecting portion;
guide tracks including a first guide track and a second
guide track, wherein the guide tracks are configured to be
operatively coupled to the lifting device;
gears including a first gear and a second gear engaging
the guide tracks, wherein rotation of the gears is configured to
move the guide tracks with the storage bin;
at least one intermediate gear disposed between the first
guide track and the second guide track; and
a guiding structure that is rotatably attached to the bin
door and in engagement with the connecting portion of the
lifting device, wherein the guiding structure biases the
connecting portion toward the bin door.
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REJECTIONS
Claims 1—3, 5—16, 19, and 22—24 stand rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over the combination of Koog et al.
(KR 2008-0101335; issued Nov. 21, 2008) (“Koog”), Lee et al. (US
2,861,857; issued Nov. 25, 1958) (“Lee”), and Kang et al. (US 8,226,184
B2; issued July 24, 2012) (“Kang”).
Claims 1—3, 5—16, 19, 22—24, and 26 stand rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over the combination of Denpo et al.
(JP 05-296647; published Nov. 9, 1993) (“Denpo”), Lee, and Kang.
Claims 1—3, 5—16, 19, 22—24, and 26 are rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over the combination of Kim et al.
(US 2006/0196198 Al; published Sept. 7, 2006) (“Kim”), Lee, and Kang.
ANALYSIS
§103 Rejections over Koog, Lee, and Kang
Appellant argues Koog “fails to disclose or suggest [the] combination
of’
a) a first gear and a second gear engaging guide tracks and
configured to move the guide tracks with the storage bin; b) at
least one intermediate gear disposed between the first guide
track and the second guide track; and c) guiding structure that is
rotatably attached to the bin door that biases the connecting
portion of the lifting device toward the bin door.
App. Br. 9. According to Appellant, “although Koog teaches an elevating
apparatus for a container 14 of a refrigerator drawer that includes gears 52
and guide tracks 53 (see FIG. 5), the elevating apparatus does not include an
intermediate gear or rotatable guiding structure.” App. Br. 9.
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Application 13/827,342
Appellant’s arguments are not persuasive because they do not address
the Examiner’s rejection. The Examiner relies on Lee, not Koog, to teach or
suggest “at least one intermediate gear” and on Kang, not Koog, to teach or
suggest “guiding structure that is rotatably attached to the bin door.” See
Final Act. 2—3. As Appellant acknowledges, Koog teaches first and second
gears 52. See Final Act. 2.
Appellant further argues “Kang teaches away from modifying Koog
to include the intermediate gear.” App. Br. 9 (emphasis omitted).
According to Appellant, “Kang explains that for storage structure lift
mechanisms that include gears, much time and force is needed to rotate the
gears and move the storage structure up or down” and “the motion of gear
components creates considerable noise.” App. Br. 9.
We find Appellant’s teaching away arguments unpersuasive. A
teaching away requires a reference to actually criticize, discredit, or
otherwise discourage the claimed solution. See In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004) (“The prior art’s mere disclosure of more than one
alternative does not constitute a teaching away from any of these alternatives
because such disclosure does not criticize, discredit, or otherwise discourage
the solution claimed”).
Kang describes a height adjusting shelf in a refrigerator. Kang
Abstract. In the Background Art portion of Kang’s specification, Kang
describes various types of existing adjustable refrigerator shelfmg, along
with the limitations and perceived problems with those approaches. Kang,
col. 1,11. 34—col. 2,11. 12. Kang describes another existing shelf structure,
which allegedly solves these problems, where the height is adjusted with a
handle or lever via gears. Kang, col. 1,11. 62—65. However, Kang asserts
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Application 13/827,342
various problems with this approach, such as having to turn the handle for a
long time, resulting in the user’s inconvenience, having to use much time
and force to turn the handle to move the shelf up and down due to the weight
of the articles on the shelf, and noise that may result from the gears. Kang,
col. 2,11. 1—10. Kang’s shelf uses rolling units, rolled to guide the
movement of the shelf, rather than gears, in order to avoid the noise that may
result from gears. Kang, col. 3,11. 40-45.
As noted supra, the Examiner relies on Lee to teach or suggest “at
least one intermediate gear,” and finds “it would have been obvious for a
person of ordinary skill in the art to modify the refrigerator of Koog by
adding a[] connection link with an intermediate gear to the [e-drive] unit as
taught by Lee as an alternative gearing structure that allows for easier
replacement of parts.” final Act. 2—3. The Examiner further modifies
Koog’s refrigerator “by adding roller bearings to the guiding structure as
taught by Kang to provide a smoother sliding structure.” final Act. 3. In
other words, the Examiner modifies Koog, not Kang. Koog already teaches
a first and second gear; it just does not explicitly teach an intermediate gear.
E.g., Koog, Figs. 5, 6 (first and second gears 52a and 52b). The Examiner,
therefore, modifies Koog to include the intermediate gear of Lee. We are
not persuaded Kang’s use of rolling units as an alternative to gears teaches
away from adding an additional gear when the primary reference already
includes gears.
Appellant further argues the Examiner has failed to provide sufficient
reasoning as to why it would have been obvious to modify Koog to include
the intermediate gear of Lee because “the Examiner has failed to cite any
portion of the prior art that teaches or suggests that the intermediate gear 57
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of Lee would allow for easier replacement parts.” App. Br. 10. Appellant
argues “the Examiner appears to be basing his rejection upon reasoning not
gleaned from the prior art, which is improper.” Reply Br. 3.
Appellant’s argument is not persuasive because the reason to modify
Koog to include the intermediate gear of Lee need not be stated in Koog or
Lee. Although a conclusion of obviousness must be supported by findings
establishing a reason to combine the known elements in the manner required
in the claim at issue, the analysis “need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007). Appellant’s argument does not persuasively address
the Examiner’s rationale. We find that the Examiner has articulated how the
claimed features are met by the proposed combination of the reference
teachings with some rational underpinning consistent with the guidelines
stated in KSR.
Accordingly, we are not persuaded the Examiner erred in rejecting
independent claim 1 over Koog, Lee, and Kang, and therefore, sustain the
rejection along with claims 2, 3, 5—9, 11, and 12. Appellant presents similar
arguments for claims 13—16, 19, and 22—24 (App. Br. 11), which we sustain
for the same reasons.
§103 Rejections over Denpo, Lee, and Kang
Appellant argues Denpo “fails to disclose or suggest” the combination
of “a) a first gear and a second gear engaging or adapted to engage guide
tracks and configured to move the guide tracks with the storage bin,” “b)
guiding structure that is rotatably attached to the bin door that biases the
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connecting portion of the lifting device toward the bin door,” and “c) at least
one intermediate gear disposed between the first guide track and the second
guide track.” App. Br. 12. According to Appellant, “although Denpo
appears to teach a gear assembly comprising a gear 29 and a chain 25 (see
FIG. 5), Denpo fails to teach or suggest first and second gears that engage
tracks, as well as an intermediate gear.” App. Br. 12.
Appellant’s arguments are not persuasive because they do not address
the Examiner’s rejection. The Examiner relies on Lee, not Denpo, to teach
or suggest “a first gear and a second gear engaging or adapted to engage
guide tracks” and “at least one intermediate gear” and on Kang, not Denpo,
to teach or suggest “guiding structure that is rotatably attached to the bin
door.” See Final Act. 3—5.
Appellant presents the same “teaching away” argument with respect
to Kang as discussed supra. App. Br. 12. We are not persuaded by
Appellant’s teaching away argument for the same reasons. See Denpo,
Fig. 2 (gear 29).
In addition, Appellant argues “the Examiner has failed to provide
sufficient reasoning as to why it would have been obvious to modify Denpo”
because “the proposed modification of Denpo is more than the mere
duplication of working parts as the proposed modification further connects
the duplicated structure with a connection link to a single drive unit.” App.
Br. 12. Appellant argues “none of the cited references provide any reason or
suggestion to connect the duplicated structure as proposed.” App. Br. 12.
We are not persuaded by Appellant’s arguments for the same reasons
as discussed supra. The reason or suggestion for combining the references
need not be precisely taught in the references themselves. Appellant’s
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argument does not persuasively address the Examiner’s rationale. We find
that the Examiner has articulated how the claimed features are met by the
proposed combination of the reference teachings with some rational
underpinning consistent with the guidelines stated in KSR.
Accordingly, we are not persuaded the Examiner erred in rejecting
independent claim 1 over Denpo, Lee, and Kang, and therefore, sustain the
rejection along with claims 2, 3, 5—9, 11, and 12. Appellant presents similar
arguments for claims 13—16, 19, 22—24, and 26 (App. Br. 13), which we
sustain for the same reasons.
§103 Rejections over Kim, Lee, and Kang
Appellant argues Kim “fails to disclose or suggest” the combination
of “a) a first gear and a second gear engaging or adapted to engage guide
tracks and configured to move the guide tracks with the storage bin,” “b)
guiding structure that is rotatably attached to the bin door that biases the
connecting portion of the lifting device toward the bin door,” and “c) at least
one intermediate gear disposed between the first guide track and the second
guide track.” App. Br. 13. According to Appellant, “although Kim teaches
a gear assembly comprising a driving gear 43 and a driven gear 44 (see
FIG. 5 and |[0055]), neither of these gears is an intermediate gear or adapted
to engage a guide track.” App. Br. 13.
Appellant’s arguments are not persuasive because they do not address
the Examiner’s rejection. The Examiner relies on Lee, not Kim, to teach or
suggest “a first gear and a second gear engaging or adapted to engage guide
tracks” and “at least one intermediate gear” and on Kang, not Kim, to teach
or suggest “guiding structure that is rotatably attached to the bin door.” See
Final Act. 3—5.
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Appellant presents the same “teaching away” argument with respect
to Kang as discussed supra. App. Br. 12. We are not persuaded by
Appellant’s teaching away argument for the same reasons. See Kim, Fig. 4
(output gear 43 and engaging gear 44).
Additionally, Appellant argues “[t]he Office action contends that it
would have been obvious to modify the refrigerator of Kim by replacing
Kim’s guide arms with the gears and tracks of Lee as an alternative lifting
structure” but “the Office action has failed to provide any reason as to why
such a modification would have been obvious.” App. Br. 14.
The Examiner finds
it would have been obvious for a person of ordinary skill in the
art to modify the refrigerator of Kim by replacing the guide
arms with the first and second gears and pair of tracks (while
keeping the motor in the same place) as taught by Lee as an
alternative lifting structure.
Final Act. 5—6; see also Ans. 3.
We agree with Appellant. To rely on equivalence as a rationale
supporting an obviousness rejection, the equivalency must be recognized in
the prior art:, and cannot be based on an Applicant’s disclosure or the mere
fact that the components at issue are functional or mechanical equivalents.
In re Ruff’ 256 F.2d 590, 596—97 (C-CPA 1958). The Examiner has failed to
established the functional equivalence of Kim’s guide arms with the first and
second gears and pair of tracks of Lee as recognized in the prior art, to
support equivalency as a rationale for obviousness according to Ruff. Thus,
we conclude the Examiner’s articulated reasoning for modifying Kim to
have the first and second gears and pair of tracks of Lee does not have a
rational underpinning. See KSR, 550 U.S. at 418 (holding that “rejections on
obviousness grounds cannot be sustained by mere conclusory statements;
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instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.”).
Accordingly, we are persuaded the Examiner erred in rejecting
independent claim 1 over Kim, Lee, and Kang, and therefore, do not sustain
the rejection along with claims 2, 3, 5—9, 11, and 12. Appellant presents
similar arguments for claims 13—16, 19, 22—24, and 26 (App. Br. 14), which
we do not sustain for the same reasons.
DECISION
We affirm the Examiner’s 35 U.S.C. § 103(a) rejection of claims 1—3,
5—16, 19, and 22—24 over Koog, Lee, and Kang.
We affirm the Examiner’s 35 U.S.C. § 103(a) rejection of claims 1—3,
5—16, 19, 22—24, and 26 over Denpo, Lee, and Kang.
We reverse the Examiner’s 35 U.S.C. § 103(a) rejection of claims
1—3, 5—16, 19, 22—24, and 26 over Kim, Lee, and Kang.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, we affirm the Examiner's decision. See 37
C.F.R. § 41.50(a)(1).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED
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