15345210 - (D) (P.T.A.B. Feb. 26, 2020)

Kohler Co.

Patent Trials and Appeals BoardFeb 26, 2020

15345210 - (D) (P.T.A.B. Feb. 26, 2020)

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. 15/345,210 11/07/2016 Kenneth Scott Hanna 028294-9020-US08 7570 23409 7590 02/26/2020 MICHAEL BEST & FRIEDRICH LLP (Mke) 100 E WISCONSIN AVENUE SUITE 3300 MILWAUKEE, WI 53202 EXAMINER ZHOU, QINGZHANG ART UNIT PAPER NUMBER 3752 NOTIFICATION DATE DELIVERY MODE 02/26/2020 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): mkeipdocket@michaelbest.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KENNETH SCOTT HANNA, MICHAEL JAMES SOETAERT, KEITH SCOTT RUH, and WILLIAM CLEMENT KURU Appeal 2019-004992 Application 15/345,210 Technology Center 3700 Before HUBERT C. LORIN, PHILIP J. HOFFMANN, and BRUCE T. WIEDER, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 35–41 and 55–57. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Kohler Co. Appeal Br. 1. Appeal 2019-004992 Application 15/345,210 2 According to Appellant, the “invention . . . relates . . . to a shower and speaker assembly.” Spec. ¶ 2. Claim 35 is the sole independent claim on appeal. Below, we reproduce claim 35 as representative of the appealed claims: 35. A shower and speaker assembly, the assembly comprising: a shower device including a device housing defining an inlet, an outlet and a waterway communicating between the inlet and the outlet, the device housing further defining a receptacle; a speaker supportable in the receptacle; and a magnetic connecting structure including a first magnetic docking element and a second magnetic docking element operable to releasably connect the speaker and the shower device, the shower device having the first magnetic docking element and the speaker having the second magnetic docking element, the first magnetic docking element being at least partially covered by an elastomeric layer. REJECTIONS AND PRIOR ART The Examiner rejects the claims as follows: I. Claims 35–41 under 35 U.S.C. § 103(a) as unpatentable over Yip (US 6,823,536 B2, iss. Nov. 30, 2004), Grassberger (US 5,228,625, iss. July 20, 1993), and Lin (US 6,446,278 B1, iss. Sept. 10, 2002); and Appeal 2019-004992 Application 15/345,210 3 II. Claims 55–57 under 35 U.S.C. § 103(a) as unpatentable over Yip, Grassberger, Lin, and Petursson (US 4,478,367, iss. Oct. 23, 1984).2 ANALYSIS Rejection I—Obviousness rejection of claims 35–41 For the below reasons, we do not sustain the Examiner’s obviousness rejection of independent claim 35. We also do not sustain the obviousness rejection of dependent claims 36–41 that the Examiner rejects with claim 35. We assume, for the sake of argument, that the Examiner supports adequately that it would have been obvious to combine Yip, Lin, and Grassberger as the Examiner proposes. See, e.g., Answer 3–5. Specifically, we assume that it would have obvious to modify Yip to replace its showerhead’s inner wall 210 and projections 318, and its media device’s grooves 320, with Lin’s magnets (that Lin uses to connect its shower nozzle to its holder device). See id. at 4. We also assume that Grassberger’s nozzle plate discloses an elastomeric material, and that based on Grassberger’s disclosure it would have been obvious to make Yip’s nozzle ring 202 out of such a material. See id. Even so, the Examiner’s does not support adequately that such an arrangement results in an elastomeric layer (i.e., an elastomeric nozzle ring 202) that at least partially covers the showerhead’s magnets. See, e.g., 2 Claims 55–57 depend from independent claim 35. Appeal Br., Claims App. Thus, although the Examiner’s rejection of these dependent claims appears to rely on Yip, Lin, and Petursson (i.e., to omit Grassberger) (see, e.g., Answer 6), we understand that Examiner’s omission of Grassberger to be a typographical error. Appeal 2019-004992 Application 15/345,210 4 Appeal Br. 10. The Examiner determines that a relevant dictionary definition of “cover” is “enshroud, shroud, enclose, or envelop.” Answer 7 (citation omitted). According to the Examiner, Yip’s Figure 2 shows that “to a certain extent, the [nozzle ring] . . . at least partially enshrouds” the projections. Id. However, the Examiner’s explanation is inadequate to support that one of ordinary skill would consider that Yip’s nozzle ring 202 at least partially covers (or enshrouds) Yip’s projections 318, such that when Lin’s magnets replace Yip’s showerhead’s projections 318, nozzle ring 202 would at least partially cover the magnets. We note, for example, that when viewing Yip’s Figure 2, it appears that nozzle ring 202 is in a different plane than projections 318, and thus we would expect that nozzle ring 202 would be in a different plane than the magnets replacing projections 318. The Examiner does not otherwise explain how Yip’s nozzle ring 202 would be understood to enshroud projections 318 or the magnets replacing those projections. Rejection II—Obviousness rejection of claims 55–57 Claims 55–57 depend from claim 35. We do not sustain the Examiner’s obviousness rejection of these dependent claims because the Examiner does not rely on Petursson to disclose anything that would remedy the above deficiency in claim 35’s rejection. The Examiner relies on Petursson to disclose an “elastomeric material.” Answer 6 (citing Petursson col. 3, ll. 12–13). However, the cited portion of Petursson discloses, in full, that “[t]he housing, body portion, disc, primary plate and the orifice plate may all be formed of plastic.” Petursson col. 3, ll. 12–13. Consistent with Appellant’s argument, this Appeal 2019-004992 Application 15/345,210 5 sentence from Petursson does not support adequately the Examiner’s finding that Petursson discloses an elastomeric material, but instead only that Petursson discloses a plastic material. Appeal Br. 14. CONCLUSION We REVERSE the Examiner’s obviousness rejections of claims 35– 41 and 55–57. In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 35–41 103(a) Yip, Grassberger, Lin 35–41 55–57 103(a) Yip, Grassberger, Lin, Petursson 55–57 Overall Outcome 35–41, 55–57 REVERSED