Ex Parte Baacke et al

Patent Trial and Appeal Board

Jan 12, 2018

13814750 (P.T.A.B. Jan. 12, 2018)

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.
13/814,750 02/07/2013 Sven Baacke 2010P00155WOUS 4612
46726 7590 01/17/2018
RS»H Home. Ann1ianrp.s Pomoratinn
EXAMINER
100 Bosch Boulevard
NEW BERN, NC 28562
LAU, JASON
ART UNIT PAPER NUMBER
3743
NOTIFICATION DATE DELIVERY MODE
01/17/2018 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):
MBX-NBN-IntelProp@bshg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SVEN BAACKE, SEBASTIEN FLESCH,
and GERD WILSDORF
Appeal 2017-0050731
Application 13/814,7502
Technology Center 3700
Before BIBHU R. MOHANTY, CYNTHIA L. MURPHY, and
KENNETH G. SCHOPFER, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 15, 17-20, 24-26, 53, 54, and 58. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
1 Our decision references the Appeal Brief (“Appeal Br.,” filed Oct. 31,
2016) and Reply Brief (“Reply Br.,” filed Feb. 8, 2017), and the Examiner’
Answer (“Ans.,” mailed Dec. 15, 2016) and Final Office Action (“Final
Act.,” mailed June 24, 2016).
2 According to Appellants, the real party in interest is BSH Hausgerate
GmbH. Appeal Br. 3.
Appeal 2017-005073
Application 13/814,750
BACKGROUND
According to Appellants, “[t]he invention relates to a support
assembly for a household appliance. The invention also relates to a cooktop
and a cooking appliance door, in each instance having such a support
assembly.” Spec. 1.
REPRESENTATIVE CLAIM
Claim 15 is the only independent claim on appeal and recites:
15. A support assembly for use in a household appliance, said
support assembly comprising:
a metal viewing body formed from a planar material, the
viewing body having
a rectangular main surface;
an angled section on each of two opposite ends of
the main surface to thereby give the viewing body a three-
dimensional shape, the angled sections being curved
sections that are radiused; and
two sides that are opposite to each other; and
a visible filler body disposed between the angled sections
of the viewing body at one of the sides of the main surface,
wherein each side has a cut edge which is a continuous
edge of the rectangular main surface and the angled sections,
the viewing body has an inner contour at the one of the
sides, the inner contour having a shape,
the filler body has an outer surface having a shape,
the shape of the outer surface matches the shape of the
inner contour of the viewing body such that the outer surface of
the filler body contacts the inner contour of the viewing body
along an entire length of the outer surface of the filler body, and
a side surface of the filler body is flush with the cut edge
of the viewing body such that the cut edge of the viewing body
is visible to a user.
Appeal Br. 16-17.
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Application 13/814,750
REJECTIONS
1. The Examiner rejects claim 54 under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement.3
2. The Examiner rejects claims 15, 17, 19, 20, 24-26, 53, 54, and 58 under
35 U.S.C. § 103(a) as unpatentable over Kinny4 in view of Bach.5
3. The Examiner rejects claim 18 under 35 U.S.C. § 103(a) as unpatentable
over Kinny in view of Bach and Dodd.6
DISCUSSION
Written Description
The Examiner finds that claim 54 includes subject matter that “was
not described in the [Specification in such a way as to reasonably convey to
one skilled in the relevant art that the inventor[s]... ha[d] possession of the
claimed invention” at the time of filing of the application. Ans. 2.
Specifically, the Examiner finds that the Specification as originally filed
does not support the requirements of claim 54 that the “visible filler body is
‘permanently fixed’ and ‘positionally non-movable’ relative to the viewing
body” because the Specification “makes no mention of the filler body being
fixed or non-movable[,]... only says that the visible filler body rests against
the viewing body[, and n]o screws, glue, or other fastening means are used
to fix the two structures.” Id.
Appellants argue “that when the [Specification as a whole is
considered in conjunction with the drawings, it is clear that the inventors
3 This ground of rejection is first raised in the Answer. See Ans. 2.
4 Kinny, US 5,201,306, iss. Apr. 13, 1993.
5 Bach, US 3,376,861, iss. Apr. 9, 1968.
6 Dodd, US 3,830,216, iss. Aug. 20, 1974.
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Application 13/814,750
possessed the invention claimed in claim 54.” Reply Br. 4. Appellants
assert that an embodiment is included showing a permanently fixed filler
body, which is “supported by paragraph 0011 which states that the filler
body prevents dirt getting under the planar viewing body.” Id. at 4-5.
Appellants contend that “[i]f the filler body was movable relative to the
viewing body, dirt could get under the viewing body.” Id. at 5.
We are not persuaded of error in this rejection by Appellants
argument.
“Adequate written description means that the applicant, in the
specification, must ‘convey with reasonable clarity to those skilled in the art
that, as of the filing date sought, he or she was in possession of the [claimed]
invention.’” Agilent Techs., Inc. v. Affymetrix, Inc., 567 F.3d 1366, 1379
(Fed. Cir. 2009) (citation omitted) (brackets in original). We agree with the
Examiner that the Specification does not disclose, with reasonable clarity,
that the Appellants were in possession of the invention of claim 54 at the
time the Specification was filed. The Specification and drawings do not
appear to indicate any method of attachment for the visible filler body, and
Appellants do not point to any particular disclosure of such. Rather,
Appellants point only to the fact that the Specification states that “[t]he filler
body prevents dirt getting under the planar viewing body.” Spec. ^ 11; see
also id. ^ 23. We disagree with Appellants’ assertion that this indicates a
particular method of attachment for the filler body. Without further
explanation or evidence, we find that one or ordinary skill in the art would
only understand from this passage that the filler body is disposed within
close proximity, e.g. flush, to the cooktop viewing body to prevent dirt from
getting under the body. One would also understand that this does not require
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Application 13/814,750
that the filler body is permanently fixed in place and non-movable relative to
the viewing body. Thus, we agree with the Examiner that the limitations of
claim 54 lack sufficient support to show that Appellants were in position of
the invention claimed as of the date of filing of the Specification.
Obviousness
Claim 15
With respect to claim 15, the Examiner finds that Kinny discloses a
support assembly as claimed except that Kinny discloses a filler body that
‘“covers the outside edges’” of the cut edge of the viewing body. Final Act.
2-3 (citing Kinny Figs. 1, 2; col 4,11. 7-16, 37-39). Thus, the Examiner
acknowledges that Kinny does not teach that “a side surface of the filler
body is flush with the cut edge of the viewing body such that the cut edge of
the viewing body is visible to a user” as required by claim 15. Final Act. 3.
With respect to this limitation, the Examiner relies on Bach. Specifically,
the Examiner finds that Bach teaches a filler body that matches the shape of
the inner contour of the viewing body and is designed to be flush with the
edge of the viewing body such that the viewing body is visible to a user. Id.
at 3^1 (citing Bach Figs. 1-3; col. 1,1. 60-col. 2,1. 51; col. 2,1. 66-col. 3,
1. 2.). The Examiner also finds that Bach teaches that the filler body
provides more structural stiffness to the appliance and “prevents a seam on
the top surface [between the appliance and counter] that might collect food
and crumbs.” Final Act. 4 (citing Bach col. 1,11. 8-65). The Examiner
concludes that it would have been obvious to modify Kinny to include a
filler body as taught by Bach to arrive at the claimed configuration in order
to “improve the structure toughness of the appliance and [because] the seam
between the filler body and the edge of the viewing body in this
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configuration is not on the top surface of the cooking appliance which
prevents the collection of food and liquids therein, improving the
cleanability of the appliance.” Final Act. 4.
With respect to the rejection of claim 15, Appellants argue only that
“a side surface of the office action defined filler body (rail member 34) of
Bach is not flush with the edge of the office action defined viewing body
(flange 25).” Appeal Br. 9-10. In support, Appellants assert that the term
flush should be defined as “even or level with another surface” and that
Bach Figures 1-3 show only that the rail member 34 is not flush with the
edge of the flange 25. Id. at 10 (citing Merriam-Webster Dictionary,
definition of flush found at http://www.merriam-webster.com/
dictionary/flush). Appellants also assert that although Bach discloses that
the countertop cut out for the appliance should be “substantially equal” to
the width of the appliance, Bach’s drawings show that the “definition of
‘substantially equal includes an amount of clearance between the appliance
and the cabinetry.” Appeal Br. 12. Further, Appellants assert that because
Bach’s purpose is to close the gap between the side of the appliance and the
edge of the countertop, “a gap existing between the appliance and the
countertop is an integral part of the invention.” Id. at 12-13 (citing Bach
col. 1,11. 42^16).
We are not persuaded of reversible error by Appellants’ argument.
Rather, we find that one of ordinary skill in the art would understand that
Bach’s disclosure that the cutout is “substantially equal” to the width of the
appliance suggests that a flush mount under Appellants’ definition of “flush”
is contemplated in Bach’s disclosure. Thus, although Bach may not
expressly show a flush configuration in the Figures, one of ordinary skill in
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the art would understand that a flush configuration is at least suggested by
Bach’s disclosure. And we agree with the Examiner that Bach’s figures
merely show a situation where the cutout is slightly larger than the width of
the appliance and we see no indication that a horizontal gap is necessary
between the appliance and the counter top. See Final Act. 9. On this point
and regarding Appellants’ assertion that a gap must exist and is an integral
part of Bach’s invention, even if the cutout were the exact width of the
appliance, a vertical gap would still exist, and thus, the purpose of Bach’s
invention would still be realized. Thus, we are not persuaded that Bach’s
invention requires a horizontal gap such that the filler body would not be
flush with outer edges of the viewing body as required by claim 15.
Based on the foregoing, we sustain the rejection of claim 15. We also
sustain the rejections of claims 15, 17-20, 24-26, 53, and 58, for which
Appellants do not provide separate arguments. See Appeal Br. 9-14.
Claim 54
We are persuaded by Appellants’ argument that the Examiner erred in
finding that the art of record teaches a filler body that is permanently fixed
and positionally non-movable relative to the viewing body, as required by
claim 54. See Appeal Br. 13.
With respect to claim 54, the Examiner first finds that Kinny discloses
that the filler body is permanently fixed and positionally non-movable
relative to the viewing body. Final Act. 6 (citing Kinny Fig. 1). However,
Kinny discloses only that finishing strip 33 “is applied to the outer side
edges of the upper surface 13 of the cooktops.” Kinny col. 4,11. 37-39.
Kinny does not otherwise indicate how the finishing strip is attached to the
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cooktop, and thus, the Examiner’s finding that Kinny discloses a permanent
and non-movable attachment is not supported on the record before us.
The Examiner also finds that Bach discloses a filler body that is
permanently fixed and non-movably attached to the viewing body. Final
Act. 3. However, in the rejection the Examiner relies on the attachment
between the identified filler body, rail member 34, and the countertop 35,
which says little, if anything, about the attachment between the rail member
and a viewing body of the appliance and does not indicate that the rail
member is permanently fixed to the range 10 or flange 25, identified as the
viewing body the Examiner. See id. In the Answer, the Examiner finds that
fastening screw 43 attaches the range 10 and its attached flange 25 to the rail
member 34 when the screw is “tightened to bear against the rail member.”
Ans. 4 (citing Bach col. 3,11. 17-22). The Examiner finds that the flange
must be permanently positioned and non-movable relative to the rail
member because otherwise, “the range may shift during use... and the
contents on the range... would slide off the range and onto the ground
thereby creating a hazardous condition.” Ans. 4. However, Bach discloses
only that a screw bears against the rail member when tightened and not that
the flange is affixed to the rail member with the screw. Thus, Bach discloses
only a friction fit between the flange and the rail member. This friction fit
may indicate that the rail is “positionally non-movable” relative to the
viewing body of the appliance, but the Examiner has not adequately
explained how this creates a permanent fixture between Bach’s filler body
and the Bach’s viewing body.
Accordingly, we are persuaded that the Examiner erred in finding that
Bach discloses a filler body that is permanently attached to the viewing body
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as required by claim 54. Thus, we do not sustain the obviousness rejection
of claim 54.
CONCLUSION
We AFFIRM the written description rejection of claim 54. We
AFFIRM the obviousness rejection of claims 15, 17-20, 24-26, 53, and 58,
and we REVERSE the obviousness rejection of claim 54.
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).
AFFIRMED
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