Ex Parte Benz et al

Patent Trial and Appeal Board

Jul 31, 2013

11290746 (P.T.A.B. Jul. 31, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte THOMAS BENZ and MATTHEW RICKET
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Appeal 2011-004002
Application 11/290,746
Technology Center 3600
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Before STEVEN D.A. McCARTHY, MITCHELL G. WEATHERLY and
CARL M. DeFRANCO, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s 1
final decision rejecting claims 1-12. The Examiner rejects under 35 U.S.C. 2
§ 103(a) claims 1, 2, 4-7 and 9-12 as being unpatentable over Johnson (US 3
5,765,390, issued Jun. 16, 1998) and Timmons (US 4,102,470, issued Jul. 4
25, 1978); and claims 3 and 8 as being unpatentable over Johnson, Timmons 5
and Michaelis (US 3,857,492, issued Dec. 31, 1974). We have jurisdiction 6
under 35 U.S.C. § 6(b). 7

1 The Appellants identify the real party in interest as BSH Home
Appliances Corporation.
Appeal 2011-004002
Application 11/290,746

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We REVERSE. 1
Claims 1 and 7 are independent. Claim 1 recites, with italics added 2
for emphasis: 3
1. A moveable bin divider for use in a door 4
bin, comprising: 5
a divider plate of a size for extending a 6
length from a rear wall of a bin in which said 7
divider plate is used to divide the bin into storage 8
sections; and 9
a panel integral with the divider plate at a 10
rear end thereof and perpendicular thereto, said 11
panel having a first portion extending vertically at 12
least above the height of a rear wall of the bin, a 13
bridge portion for extending over a rear wall of the 14
bin and connecting a second portion of the panel to 15
the first portion thereof to have the second portion 16
parallel to and coextensive with at least a part of 17
the first portion on an outside surface of the bin at 18
a rear wall thereof, said second portion 19
terminating at a bottom end thereof in one of a 20
tongue and groove integral therewith to be 21
engaged in a respective one of a tongue and groove 22
in an outside rear wall of the bin in which it is 23
engaged and the first portion having a height at 24
least as great as the height of said divider plate. 25
26
Claim 7 recites a combination bin and bin divider. The bin divider 27
includes a panel having a first portion extending vertically at least above the 28
height of a rear wall of the bin and a second portion terminating at a bottom 29
end thereof in one of a tongue or groove integral therewith. 30
Johnson describes a dairy compartment for use in a fresh food door 2 31
of a refrigerator. (Johnson, col. 4, ll. 48-54). The dairy compartment is 32
integrally formed to include a base 85; upstanding side walls 87, 88; and a 33
rear wall 91. (Johnson, col. 4, ll. 57-61). As depicted in Figures 4 and 6 of 34
Appeal 2011-004002
Application 11/290,746

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Johnson, the upper portion of the rear wall 91 curves forwardly to define a 1
top section 93. (See id; see also id., col. 5, ll. 13-15). The top section 93 2
includes a terminal mounting section 105. The terminal mounting section 3
105 includes a terminal upstanding edge 107. (Johnson, col. 5, ll. 26-31). 4
Figure 6 of Johnson depicts the terminal upstanding edge 107 as presenting a 5
rearwardly-facing shoulder (no reference numeral). 6
Johnson also describes a divider element 112 formed with an integral 7
clip member 115. (Johnson, col. 5, ll. 31-34). The clip member 115 is 8
defined by a pair of spaced, laterally extending legs 118, 119. A terminal or 9
free end of the leg 118 possesses a downturned lip 123. (Johnson, col. 5, ll. 10
37-41). As depicted in Figures 4 and 6 of Johnson, the leg 118 of the clip 11
member 115 is designed to snap over the terminal mounting section 105 of 12
the dairy compartment. When this occurs, the downturned lip 123 engages 13
the rearwardly-facing shoulder of the terminal upstanding edge 107 to secure 14
the divider element 112 in the dairy compartment. (See Johnson, col. 5, ll. 15
41-48). 16
Timmons describes a drawer file folder stop 10 including a plate 12 17
which mounts a holder 14. (Timmons, col. 2, ll. 58-61 and figs. 1 and 2). 18
The upper portion of the plate 12 bends through two right angles to define a 19
lip portion 36 parallel to a body portion 26 of the plate 12. (Timmons, col. 20
3, ll. 14-24). The holder 14 consists of a U-shaped rod 16 having opposite 21
ends secured to a top 24 and bottom 22 of the body portion 26 of the plate 22
12. (Johnson, col. 2, ll. 61-66). As depicted in Figures 1-3 of Timmons, the 23
upper portion of the plate 12 has a height at least as great as the height of the 24
holder 14. 25
Appeal 2011-004002
Application 11/290,746

4
The Examiner finds that Johnson’s clip member 115 corresponds to 1
the recited panel. More specifically, the Examiner finds that Johnson’s leg 2
119 corresponds to the first portion of the panel as recited in claims 1 and 7; 3
and that Johnson’s leg 118 corresponds to the second portion of the panel as 4
recited in the claims. (Ans. 4). The Appellants and the Examiner agree that 5
Johnson’s leg 119 does not have a height at least as great as the height of the 6
divider plate 112. (See id.) The Examiner concludes that it would have 7
been obvious “to provide the divider plate of Johnson . . . with a first portion 8
having a height at least as great as the divider plate and extending vertically 9
over a rear wall of a bin as taught by Timmons so as to securely attach the 10
divider plate to the bin, while still allowing it to move within the bin.” (Id.) 11
The Examiner further reasons that Timmons shows “the orientation of the 12
rear wall determines if the height of the first portion will have a height 13
greater than the rear wall. Were the divider of Johnson used with a bin 14
having an upright vertical wall the connector of Timmons would be an 15
obvious variant to be used with additional bin structures.” (Ans. 11). The 16
Appellants disagree. (See App. Br. 12-13). 17
The Examiner’s reasoning is not persuasive. The Examiner has not 18
explained why one of ordinary skill in the art might have had reason to 19
modify Johnson’s dairy compartment to have an upright vertical wall. 20
Neither has the Examiner explained why one of ordinary skill in the art 21
wishing to design a bin divider for a bin having an upright vertical wall 22
would have selected Johnson’s divider plate 112 as a starting point. It is not 23
apparent from the Examiner’s explanation why the proposed modification of 24
Johnson’s divider plate 112 would have resulted in a more secure attachment 25
to the terminal mounting section 105 of the dairy compartment. We do not 26
Appeal 2011-004002
Application 11/290,746

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sustain the rejection of claims 1, 2, 4-7 and 9-12 under § 103(a) as being 1
unpatentable over Johnson and Timmons. 2
The Examiner cites Michaelis as teaching “the utility of a groove 3
formed by a pair of spaced apart walls 43, 44 that faces the respective 4
outside surface of the rear wall 37.” (Ans. 5 and 8; see also Ans. 13). This 5
teaching does not remedy the deficiencies in the combined teachings of 6
Johnson and Timmons as applied to base claims 1 and 7. We do not sustain 7
the rejection of claims 3 and 8 under § 103(a) as being unpatentable over 8
Johnson, Timmons and Michaelis. 9
10
DECISION 11
We REVERSE the Examiner’s decision rejecting claims 1-12. 12
13
REVERSED 14
15
16
Klh 17