Ex Parte Bengston et al

Board of Patent Appeals and Interferences

Jul 31, 2012

11113968 (B.P.A.I. Jul. 31, 2012)

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.
11/113,968 04/26/2005 Debra L. Bengston BEN007-266 1328
7590 07/31/2012
Whirlpool Patents Company - MD 0750
500 Renaissance Drive
Suite 102
St. Joseph, MI 49085
EXAMINER
HECKERT, JASON MARK
ART UNIT PAPER NUMBER
1711
MAIL DATE DELIVERY MODE
07/31/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte DEBRA L. BENGSTON, MARK BRITTON,
HEATHER HAGANS, SCOTT D. RACHES, WAYNE M.
VANLANDINGHAM, CHRISTOPHER W. VAUGHN, and
KARL R.C. WENDT
________________

Appeal 2011-003117
Application 11/113,968
Technology Center 1700
________________

Before TERRY J. OWENS, BEVERLY A. FRANKLIN, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-003117
Application 11/113,968

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STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 4-13, 15-18, 20, 23-26 and 28-30, which are all of the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellants claim a dishwasher. Claim 23 is illustrative:
23. A dishwasher comprising:
a tub having top, bottom, rear and opposing side walls that
collectively define a wash chamber having a frontal opening;
a door extending across the frontal opening, said door including an
outer shell and an inner liner, said inner liner being provided with a plurality
of mounting elements that define left, right and center mounting zones;
a rack shiftably mounted in the wash chamber; and
a utensil holder including:
a removable basket including front, rear, bottom and opposing side
walls and an upper opening, said basket being adapted to be removably
mounted on a select one of the inner liner of the door and the rack and
wherein the rear wall of the basket includes at least one mounting member,
said mounting member being adapted to interengage with at least a select
one of the plurality of mounting elements in order to locate the utensil holder
on the inner liner of the door;
a handle member extending from the basket, wherein the handle
member enables the utensil holder to be readily picked off both the inner
liner of the door and the rack; and
wherein the basket is selectively mountable in one of the left, right
and center mounting zones through the at least one mounting member and
the plurality of mounting elements.

The References
Winkler US 4,174,486 Nov. 13, 1979
Dingler US 5,069,360 Dec. 3, 1991
Kim US D487,825 S Mar. 23, 2004
Smith US D488,891 S Apr. 20, 2004
Raches US 2004/0094555 A1 May 20, 2004
Appeal 2011-003117
Application 11/113,968

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The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows:
claims 11, 15-18, 20, 23-26, 28 and 30 over Dingler in view of Winkler and
Raches, claims 4, 12, 13 and 29 over Dingler in view of Winkler, Raches
and Kim, and claims 5-10 over Dingler in view of Winkler, Raches, Kim
and Smith.
OPINION
We reverse the rejections.
The Appellants’ sole independent claim (23) requires a dishwasher
door having an “inner liner being provided with a plurality of mounting
elements that define left, right and center mounting zones” and a basket
having a “mounting member being adapted to interengage with at least a
select one of the plurality of mounting elements”, wherein the basket “is
selectively mountable in one of the left, right and center mounting zones”.
Dingler discloses a dishwasher silverware basket (20) having relieved
keyways (66) for mounting the basket (20) to a dishwasher door (14)’s inner
wall (col. 4, ll. 40-43; Figs. 1, 2). Dingler uses a wash liquid spray arm (26)
that provides an oblique spray pattern into the basket (20) (col. 3, ll. 22-24).
Winkler discloses an adjustable shelving system for home appliances
(col. 1, ll. 6-9). Winkler exemplifies an upright freezer (10), but
contemplates that the shelving system is equally applicable to other home
appliances including dishwashers (col. 2, ll. 50-54). Winkler’s shelving
system includes outwardly projecting elongated shelf support members (38),
each of which is received within a channel (40) defined by a standard (26) in
a slot (20) in the liner (16, 18) of the freezer’s cabinet (12) or door (14)
(col. 2, ll. 58-62; col. 3, ll. 9-13). Winkler exemplifies six shelf support
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Application 11/113,968

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members (38) attached to the door liner (18), three of which support a
basket (40) and three of which support a shelf (42), each of the basket (40)
and the shelf (42) extending the width of the door liner (18), and eight shelf
support members (38) attached to the cabinet liner (16), two of which
support each of four shelves (42), two of the shelves (42) being on the left
side of the cabinet (12) and two of them being on the right side of the
cabinet (12) (Fig. 1). The basket (40) and the shelves (42) are vertically
adjustable by tilting them upwardly, sliding them vertically, and then
relocking them by pivoting them downwardly to return them to their
horizontal orientation (col. 3, ll. 25-32).
The Examiner argues that in Winkler’s “figure 1, at least left, center,
and right mounting elements are shown” (Ans. 4) and that “[w]hile the
figure shows using three brackets for one basket located on the door, it is
clear that smaller baskets can be used that utilize less brackets, allowing for
placement of a basket to the left or right (items 38)”. Id. The Examiner
argues that “one of ordinary skill would recognize that the fastening system
of Dingler could be utilized in plurality, with the same benefits disclosed by
Winkler’s system of plural elements” (Ans. 7).
The Examiner has not established that in view of Dingler’s use of a
wash liquid spray arm (26) that provides an oblique spray pattern into the
silverware basket (20) (col. 3, ll. 22-24), the applied prior art would have led
one of ordinary skill in the art to make Dingler’s silverware basket (20)
movable. Also, the Examiner has not established that Winkler’s disclosure
of a basket (40) and a shelf (42) which extends the full width of a freezer
door liner (18) would have led one of ordinary skill in the art to make a
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Application 11/113,968

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silverware basket movably attachable in left, center and right mounting
zones of the inner liner of a dishwasher door.
Thus, the record indicates that the motivation relied upon by the
Examiner for modifying the prior art comes only from the Appellants’
disclosure and that, therefore, the Examiner used impermissible hindsight in
rejecting the Appellants’ claims. See In re Warner, 379 F.2d 1011, 1017
(CCPA 1967) (“A rejection based on section 103 clearly must rest on a
factual basis, and these facts must be interpreted without hindsight
reconstruction of the invention from the prior art”). Accordingly, we reverse
the Examiner’s rejections.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 11, 15-18, 20, 23-26,
28 and 30 over Dingler in view of Winkler and Raches, claims 4, 12, 13 and
29 over Dingler in view of Winkler, Raches and Kim, and claims 5-10 over
Dingler in view of Winkler, Raches, Kim and Smith are reversed.
It is ordered that the Examiner’s decision is reversed.
REVERSED

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