Ex Parte Bassler et al

Patent Trial and Appeal Board

Nov 14, 2017

14418490 (P.T.A.B. Nov. 14, 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.
14/418,490 07/17/2015 Daniel BASSLER PTB-6032-173 3469
23117 7590 11/16/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
ING, MATTHEW W
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
11/16/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL BASSLER, HERBERT CIZIK, and JURGEN FINK
(Applicant: BSH BOSCH UND SIEMENS HAUSEGERATE GmbH)
Appeal 2017-004095
Application 14/418,490
Technology Center 3600
Before JOHN A. EVANS, LARRY J. HUME, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
LENTIVECH, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1, 2, and 4—26, the only claims pending
in the application on appeal. We have jurisdiction over the pending claims
under 35 U.S.C. § 6(b).
We reverse.
Appeal 2017-004095
Application 14/418,490
STATEMENT OF THE CASE
Appellants ’ Invention
Appellants’ claimed invention generally relates to “a refrigeration
device having an interior in which a shelf is arranged.” Spec. 1. A tray is
arranged on the shelf so that when the refrigerator door is open, the tray
supported on the shelf may be at least partially displaced from the interior of
the refrigeration device in order to place refrigerated items to be cooled on
the shelf and/or to remove said items therefrom. Spec. 6. The tray includes
rollers which are arranged on opposing longitudinal sides of the tray and roll
on the shelf during displacement of the tray. Id. Claim 1, which is
illustrative, reads as follows:
1. A refrigeration device comprising an interior in which a
shelf is arranged, the refrigeration device further including a tray
supported in a displaceable manner relative to the shelf, the tray
including a base configured to support items to be cooled, the
tray having rollers connected thereto, the rollers being positioned
to roll on the shelf along with the tray during displacement of the
tray, the rollers defining a rolling plane that is positioned below
the base, wherein the refrigeration device further comprises a
pair of guide rails fixedly installed on opposing sides of the
interior, wherein:
the shelf is installed within the refrigeration device by the
pair of guide rails; and
each guide rail includes an internal guide surface
configured to prevent lateral movement of the tray by abutting
an external side wall of a respective roller.
(2nd Appeal Brief, Claims Appendix, 2.)
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Appeal 2017-004095
Application 14/418,490
References
The Examiner relies on the following prior art in rejecting the claims:
Rosenberg et al.
(“Rosenberg”)
Darbishire
Kristensson et al.
(“Kristensson”)
Stancher
US 6,129,433
US 6,328,364 B1
US 2009/0151758 Al
DE 10 2010 004 219 Al
Oct. 10, 2000
Dec. 11,2001
June 18, 2009
Sept. 23,2010
Rejections1
Claims 1, 2, 4—6, 8, 10-12, 14, 16, and 18—26 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over the combination of Stancher and
Kristensson. Final Act. 3—82.
Claims 7 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Stancher, Kristensson, and Darbishire.
Final Act. 8.
Claims 9, 15, and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Stancher, Kristensson, and Rosenberg.
Final Act. 8—9.
Dispositive Issue
Whether the Examiner erred in combining Stancher and Kristensson
under 35 U.S.C. § 103(a).
1 The rejection of claim 13 under 35 U.S.C. § 112, second paragraph, has
been withdrawn. Ans. 2.
2 Herein we refer to the Specification (“Spec.”) filed Jul. 17, 2015; Final
Office Action (“Final Act”), mailed Aug. 11, 2016; the 1st Appeal Brief
(“App. Br.”) filed Oct. 11, 2016 [except for any claims, in which case we
will refer to the 2nd Appeal Brief filed Nov. 1, 2016]; the Examiner’s
Answer (“Ans.”) mailed Nov. 17, 2016.
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Appeal 2017-004095
Application 14/418,490
ANALYSIS
Claim 1
Regarding claim 1, the Examiner finds Stancher teaches
[A] refrigeration device having an interior (10) in which a
shelf (20) is arranged, the refrigeration device further including
a tray (40) supported in a displaceable manner relative to the
shelf, the tray including a base (bottom wall of 40) configured to
support items to be cooled; and sliding means comprising rollers
(32) and roller holders (36, 38, 50) on edge rails (34) fixedly
installed on opposite sides of the interior, and guide rails (i.e.,
longitudinal recesses extending along bottom lateral edges of 40
- see Figs. 2 & 10 [of Stancher]) on a tray (40); wherein the shelf
is fixedly installed within the refrigeration device by the pair of
edge rails (34).
Final Act. 3. The Examiner finds Kristensson teaches
[A] sliding means comprising guide rails (204) on a stationary
member (200), and a roller housing (102) and rollers (104)
connected to a tray (410); wherein the rollers are positioned to
roll on the stationary member along with the tray during
displacement of the tray (see Figs. 1-2 [of Kristensson]), the
rollers defining a rolling plane that is positioned below a base of
the tray (see Fig. 1); and each guide rail includes an internal guide
surface (i.e., inner surfaces of 204) configured to prevent lateral
movement of the tray by abutting an external side wall of a
respective roller (par. 19 [of Kristensson]).
Final Act. 3^4.
The Examiner finds it would have been obvious to combine the
teachings of Stancher and Kristensson because “the proposed modification
would feature rollers on a tray and guide means on a shelf; and such a mere
reversal of parts has been held to involve only routine skill in the art.”
Ans. 3 (citing MPEP § 2144.04).
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Appeal 2017-004095
Application 14/418,490
Appellants contend it would not be obvious to combine the teachings
of Stancher and Kristensson. App. Br. 8—9; Reply Br. 1^4. Appellants
argue:
[T]he Examiner would have to make at least two significant
modifications of Stancher to meet the claim language: (1) move
Stanchers rollers 32 from the rails 34 to the tray 40 and (2) move
the rollers 32 laterally inwards so as to roll on the shelf 20 instead
of the rails 34. Even if it would have been obvious to move the
rollers to the tray 40 (which is not admitted), it still would not be
obvious to reposition the rollers on the modified Stancher tray to
roll on the shelf.
App. Br. 8—9. Appellants further argue the Examiner’s modification
“require[s] very specific modifications to both Stancher and Kristennson et
al [sic], where there is no reason to make those changes, other than pure
conjecture based on improper hindsight reasoning on the part of the
Examiner.” Reply Br. 1. Appellants further argue the Examiner’s
conclusion “that switching the positions of the rollers and the guide of
Stancher is obvious because ‘rollers on a tray and guide means on a shelf is
a ‘mere reversal of parts’” is inconsistent with the Examiner’s proposed
modification of Stancher. Reply Br. 1—2 (citing Ans. 3).
We find Appellants’ contention persuasive. Whether it would have
been obvious for a person of ordinary skill in the art to combine two or more
references is a flexible inquiry. A factfinder “need not seek out precise
teachings directed to the specific subject matter of the challenged claim” and
“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). Nevertheless, obviousness cannot be established “by
mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
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Application 14/418,490
obviousness.” Id. (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
And “references to ‘common sense’ . . . cannot be used as a wholesale
substitute for reasoned analysis and evidentiary support.” Arendi S.A.R.L. v.
Apple, Inc., 832 F.3d 1355, 1362 (Fed. Cir. 2016). Here, we agree with
Appellants that the Examiner’s proposed modification is significantly more
than a “mere reversal of parts.” The Examiner fails to provide any reasoning
as to why one of ordinary skill would be motivated to make the
modifications proposed by the Examiner in light of the teachings of Stancher
and Kristensson. As such, the Examiner fails to provide the required
articulated reasoning with some rational underpinning to support the
conclusion that it would be obvious to modify the tray of Stancher with the
teachings of Kristensson in the proposed manner.
Accordingly, we are constrained by the record to not sustain the
Examiner’s rejection of claim 1 and claims 2, 4—9, 16, 17, and 24 which
depend from claim 1. For similar reasons we do not sustain the rejection of
independent claims 10 and 18, and claims 11—15, 19—23, 25, and 26, which
variously depend therefrom. Because we find this issue to be dispositive, we
do not reach Appellants’ remaining contentions.
DECISION
We reverse the Examiner’s rejection of claims 1—26.
REVERSED
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