Whirlpool Corporation

Patent Trials and Appeals Board

Aug 11, 2020

15432373 - (D) (P.T.A.B. Aug. 11, 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.
15/432,373 02/14/2017 Kyle B. Van Meter PAT-IP-2189-2003-
US-CNT5
6098
135389 7590 08/11/2020
Whirlpool Corporation/Nyemaster
Nyemaster Goode, P.C.
2000 North M-63
MD3601
Benton Harbor, MI 49022
EXAMINER
TRPISOVSKY, JOSEPH F
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
08/11/2020 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):
PatentDocketing@whirlpool.com
deborah_tomaszewski@whirlpool.com
ptomail@nyemaster.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KYLE B. VAN METER,
DEAN A. MARTIN,
and XIA YONG FU
____________

Appeal 2020-000945
Application 15/432,373
Technology Center 3700
____________

Before ANTON W. FETTING, AMEE A. SHAH, and
RACHEL H. TOWNSEND, Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2020-000945
Application 15/432,373

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STATEMENT OF THE CASE1
Kyle B. Van Meter, Dean A. Martin, and Xia Yong Fu (Appellant2)
seeks review under 35 U.S.C. § 134 of a final rejection of claims 1 and 3–20,
the only claims pending in the application on appeal. We have jurisdiction
over the appeal pursuant to 35 U.S.C. § 6(b).
The Appellant invented a bottom mount refrigerator having an
icemaker within an insulated ice making compartment in the refrigerator
compartment. Specification para. 10.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A bottom mount refrigerator comprising:
[1] a fresh food compartment and a freezer compartment, and a
wall between the fresh food compartment and the freezer
compartment;
[2] an ice compartment located in the fresh food compartment
and remote from the freezer compartment;
[3] an automatic icemaker located in the ice compartment;
[4] an ice storage area comprising an ice outlet for receiving ice
from the automatic icemaker and dispensing ice through the ice
outlet;
and

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed July 10, 2019) and Reply Brief (“Reply Br.,” filed November 19,
2019), and the Examiner’s Answer (“Ans.,” mailed September 19, 2019),
and Final Action (“Final Act.,” mailed February 11, 2019).
2 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 Whirlpool
Corporation (Appeal Br. 3).

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[5] an air pathway comprising:
[5.1] a duct disposed in a rear wall of the bottom mount
refrigerator and comprising a duct inlet and a duct outlet;
[5.2] a return duct with an inlet in the ice compartment
and an outlet in the freezer compartment;
[5.2.1] wherein the duct inlet is disposed in the
freezer compartment and in communication with a
source of below freezing air in the freezer
compartment, and the duct outlet is disposed in the
ice compartment;
and
[5.3] a fan disposed within the freezer compartment for
moving air through the duct from the duct inlet to the
duct outlet.
The Examiner relies upon the following prior art:
Name Reference Date
Grimes US 3,146,606 Sept. 1, 1964
Prada US 4,462,437 July 31, 1984
Oltman US 6,351,955 B1 May 5, 2002
Davis US 6,386,828 B1 May 14, 2002
Najewicz US 6, 735,959 B1 May 18, 2004
Lee US 7,240,510 B2 July 16, 2007
Claims 8 and 10 stand rejected under 35 U.S.C. § 112(b) as failing to
particularly point out and distinctly claim the invention.3
Claims 1, 5, 6, 11–15, and 18 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Najewicz and Lee.

3 A rejection under 35 U.S.C. § 112(a) (Final Action 2) was withdrawn
(Answer 14).
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Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Najewicz, Lee, and Davis.
Claims 4, 16, and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Najewicz, Lee, and Oltman.
Claims 7–9, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Najewicz, Lee, and Grimes.
Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Najewicz, Lee, Grimes, and Prada.
ISSUES
The issues of obviousness turn primarily on whether one of ordinary
skill would have combined Lee’s return air duct with Najewicz.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Claim Construction
01. A bottom mount refrigerator is one in which the freezer
compartment is mounted below the refrigerator compartment.
Spec. para. 2.
Facts Related to Appellant’s Disclosure
02. The Specification describes the return air duct as directing air
flow from the ice making compartment to the freezer. Spec.
para. 24. The Specification does not describe a reason or
advantage for so directing such air flow.
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Facts Related to the Prior Art
Najewicz
03. Najewicz is directed to icemakers for bottom mount freezer
type refrigerators. Najewicz 1:6–8.
04. Najewicz describes as background to the invention, the
temperature in the generic refrigerator fresh food compartment as
intended to be maintained at a higher temperature than the
temperature in the freezer compartment, and generally, above the
freezing temperature of water. Specifically, the temperature in the
fresh food compartment generally is not sufficiently cold to freeze
items or to form ice. Najewicz 1:24–29.
05. Najewicz describes an icemaker for making ice in a fresh food
compartment of a bottom mount refrigerator. The fresh food door
has an ice dispenser. The ice maker has an ice mold and a
thermoelectric device4 for moving heat from the ice mold.
Najewicz 1:42–52. Najewicz describes an alternative arrangement
having an ice mold with an enhanced heat transfer surface for
moving heat from the ice mold in place of a thermoelectric device.
Najewicz 1:66–2:12.
06. Najewicz describes a freezer air duct extending from the
freezer compartment to the ice mold. An air flow control device
controls the flow of freezer air through the freezer air duct. In
addition, a controller is coupled to the flow control device and to a

4 Thermoelectric devices used in ice makers are devices using the Peltier
effect to generate heat and cold from electric potential differences. See, e.g.,
Thermoelectric ice cube maker, Fletcher et al., U.S. Pat. 4,487,024, Issued
December 11, 1984.
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temperature measurement device positioned to be in an air stream
leaving the thermoelectric device. The controller monitors a
temperature of air flow from the thermoelectric device. When the
temperature of air flow from the thermoelectric device is above a
predetermined temperature, air flow through the freezer air duct is
increased. When the temperature of air flow from the
thermoelectric device is below a predetermined temperature, then
air flow through the freezer air duct is decreased. Najewicz 1:53–
65.
07. Najewicz describes a fan located near the ice mold that
augments the movement of the freezer air. Najewicz 2:11–12.
08. Najewicz describes an exemplary embodiment in which the
freezer air performs multiple functions including cooling an ice
storage container, cooling the thermoelectric device and also for
controlling the temperature of the fresh food compartment.
Najewicz 2:55–59.
09. Najewicz describes ice being formed in the fresh food
compartment of a bottom mount refrigerator, despite the fact that
the air temperature is above freezing temperature, by mounting a
thermoelectric device in contact with an ice mold in the fresh food
section of a bottom mount refrigerator. Najewicz 4:3–7.
10. Najewicz describes an ice mold with an enhanced heat transfer
surface as an alternative to a thermoelectric device. Najewicz
4:32–35.
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Lee
11. Lee is directed to a top mount refrigerator in which an ice
machine is installed inside a chilling chamber door, and a cold air
circulation passage is defined to supply cold air for the ice
machine to freeze water in the ice machine quickly. Lee 1:6–10.
12. Lee describes a cold air return duct to allow cold air in the ice-
making chamber to go back to an evaporator located in the
compartment having the freezing zone. Lee 6:35–37.
13. Lee describes cold air entering the ice-making chamber that
freezes water in an ice maker, and the cold air of which
temperature is increased while freezing the water is discharged to
the cold air return duct through the cold air discharge hole. The
cold air in the cold air return duct returns to the evaporator, where
the returned cold air is cooled again while exchanging heat with a
refrigerant in the evaporator, and then is circulated again in the
refrigerator by the driving force of the blower fan. Lee 7:10–24.
14. Lee describes also applying its invention to bottom mount
refrigerators. Lee 8:59–64.
ANALYSIS
Appellant claims a refrigerator – freezer combination, the freezer
being below the refrigerator (bottom mount), and having an ice maker in the
refrigerator rather than in the freezer part. Two ducts transport air between
the freezer and ice maker. One duct runs through the rear wall to transport
freezing temperature air from the freezer part to the icemaker to achieve ice
making. A second duct returns air from the ice maker to the freezer.
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Claims 8 and 10 rejected under 35 U.S.C. § 112(b) as failing to particularly
point out and distinctly claim the invention
Appellant does not contest this rejection in the Appeal Brief. Thus,
we summarily affirm the rejection. Although Appellant contests the
rejection in the Reply Brief, this is untimely presented as Appellant has not
demonstrated any specific Examiner findings presented for the first time in
the Answer necessitating this new rebuttal in the Reply Brief. This
argument is therefore waived.
Claims 1, 5, 6, 11–15, and 18 rejected under 35 U.S.C. § 103(a) as
unpatentable over Najewicz and Lee
The sole issue of obviousness is whether one of ordinary skill would
add a second duct returning air from the ice maker to the freezer as
described by Lee in a refrigerator with its freezing air duct in its rear wall as
with Najewicz. That Najewicz describes the remaining limitations of the
independent claims is uncontested. Both Najewicz and Lee describe a
refrigerator having both a freezer and fresh air compartment and an ice
maker in the fresh air compartment. Both describe transporting freezing air
from the freezer compartment to the ice maker. Both describe a bottom
mount refrigerator, although Najewicz describes it in its primary
embodiment and Lee describes it in an alternate embodiment. Only
Najewicz describes the freezing air duct as positioned in the rear wall. Only
Lee describes a return air duct to its freezing compartment.
Appellant first argues the Examiner failed to provide a rational basis
for making the modification. App. Br. 16–17. The Examiner responds that
the reason for the modification was “to achieve expected results of allowing
the cold air that has been warmed during the ice making operation to be
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smoothly recirculated and cooled again to provide a recirculated cooled air
stream within the refrigerator.” Ans. 16; see also Final Act. 6. This is
rational on its face because there are only three possible volumes to exit the
air that has been pushed into the ice chamber, viz. to the refrigerator, to the
freezer, or to the outside. Each has well understood positive and negative
effects. One of ordinary skill would have selected any one depending on
which effects were most desired and which to be avoided. The Examiner
cited the desired effects from returning the air to the freezer as claimed.
Appellant contends that the differences in sizes among the duct cross-
sections and the ice maker volume would create inefficiencies due to
pressure changes. App Br. 16–17 Appellant does not provide evidence as to
the degree to which this might reduce efficiency. More to the point, Lee
describes just such a return air duct for an ice maker otherwise situated
similar to that in Najewicz. This is evidence that one of ordinary skill would
see an advantage to a return duct.
Put another way, placing Najewicz’s freezing air duct in Lee’s rear
wall would also read on claim 1, and Lee’s bottom mount embodiment
would call for such duct placement as described by Najewicz to transport the
freezing air vertically from bottom to top of refrigerator.
Appellant next contends the combination would change Najewicz’s
principle of operation from that of regulating the temperature within a
refrigerated section with a small stream of air to simply cooling the ice
making chamber and not effectively regulating the refrigerated section.
App. Br. 17–19. One problem for Appellant is that Najewicz describes such
regulating control as simply one exemplary embodiment. See FF 08. Thus,
it is not essential to operation. Further, as the Examiner responds, Lee
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describes an additional separate air conduit for channeling some freezing air
to the refrigerated section that could also be applied to Najewicz. Ans. 16–
17; Lee Fig. 7:161.
Appellant goes on to contend that the Examiner fails to appreciate the
function of Najewicz’s thermoelectric device. Reply Br. 3–5. Appellant
contends that Najewicz’s thermoelectric device freezes the water to form ice.
This is the first time Appellant introduces this argument, which is after the
Examiner Answer, foreclosing the benefit of Examiner response. This
argument is not directed to an Examiner’s determination or line of argument
in the Answer. Thus, this argument is untimely raised and therefore waived.
Claim 3 rejected under 35 U.S.C. § 103(a) as unpatentable over Najewicz,
Lee, and Davis
Appellant does not separately argue this rejection.
Claims 4, 16, and 17 rejected under 35 U.S.C. § 103(a) as unpatentable over
Najewicz, Lee, and Oltman
Appellant does not separately argue this rejection.
Claims 7–9, 19, and 20 rejected under 35 U.S.C. § 103(a) as unpatentable
over Najewicz, Lee, and Grimes
Appellant does not separately argue this rejection.
Claim 10 rejected under 35 U.S.C. § 103(a) as unpatentable over Najewicz,
Lee, Grimes, and Prada
Appellant does not separately argue this rejection.
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CONCLUSIONS OF LAW
The rejection of claims 8 and 10 under 35 U.S.C. § 112(b) as failing
to particularly point out and distinctly claim the invention is proper.
The rejection of claims 1, 5, 6, 11–15 and 18 under 35 U.S.C. § 103(a)
as unpatentable over Najewicz and Lee is proper.
The rejection of claim 3 under 35 U.S.C. § 103(a) as unpatentable
over Najewicz, Lee, and Davis is proper.
The rejection of claims 4, 16, and 17 under 35 U.S.C. § 103(a) as
unpatentable over Najewicz, Lee, and Oltman is proper.
The rejection of claims 7–9, 19, and 20 under 35 U.S.C. § 103(a) as
unpatentable over Najewicz, Lee, and Grimes is proper.
The rejection of claim 10 under 35 U.S.C. § 103(a) as unpatentable
over Najewicz, Lee, Grimes, and Prada is proper.
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CONCLUSION
The rejection of claims 1 and 3–20 is affirmed.
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
8, 10 112(b) Indefiniteness 8, 10
1, 5, 6, 11–15,
18
103 Najewicz,
Lee
1, 5, 6, 11–15,
18

3 103 Najewicz,
Lee, Davis
3
4, 16, 17 103 Najewicz,
Lee, Oltman
4, 16, 17
7–9, 19, 20 103 Najewicz,
Lee, Grimes
7–9, 19, 20
10 103 Najewicz,
Lee, Grimes,
Prada
10
Overall Outcome 1, 3–10

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)(1)(iv) (2011).

AFFIRMED