Ex parte Birgelis

Board of Patent Appeals and Interferences

Nov 5, 1997

08096458 (B.P.A.I. Nov. 5, 1997)

Application for patent filed July 26, 1993.1
Claim 16 has been amended subsequent to final rejection.2
-1-
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 11
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte VITAS G. BIRGELIS
________________
Appeal No. 96-1441
Application 08/096,4581
________________
ON BRIEF
________________
Before ABRAMS, McQUADE and CRAWFORD, Administrative Patent
Judges.
McQUADE, Administrative Patent Judge.
DECISION ON APPEAL
This appeal is from the final rejection of claims 1
through 3, 7, 16 and 18. Claims 4 through 6, 8 through 15,2
Appeal No. 96-1441
Application 08/096,458
-2-
19 and 20, the only other claims pending in the application,
stand withdrawn
from consideration pursuant to 37 CFR § 1.142(b) as being
directed to non-elected species.
The subject matter on appeal relates to “an appliance
having one or more shelves supported by an interior liner of
the appliance” (specification, page 1). Claim 1 is
illustrative and reads as follows:
1. A liner for a cabinet of a refrigeration device
comprising:
a pair of substantially planar parallel sidewalls, a rear
wall, a top wall and a bottom wall integrally forming an
interior of the refrigeration device;
said sidewalls each having at least one slot integrally
formed therein supporting at least one shelf therein such that
said shelf is supported in a horizontal plane by a bottom
surface of at least one of said slots, each of said at least
one slots extending into a plane of the sidewalls away from
the interior of the refrigeration device; and
a limit means in each of said slots preventing said shelf
supported on said bottom surface from moving in at least one
direction.
The references relied upon by the examiner as evidence of
obviousness are:
Trevitt 115,542 May 30, 1871
Appeal No. 96-1441
Application 08/096,458
-3-
Jenkins 4,904,032 Feb. 27, 1990
Claims 1 through 3, 7, 16 and 18 stand rejected under
35 U.S.C. § 103 as being unpatentable over Jenkins in view of
Trevitt.
Jenkins discloses
a refrigerator cabinet 10 having a fresh food
compartment 11 and a freezer compartment 12. The
fresh food compartment 11 is defined by a liner 14,
which is preferably a vacuum formed plastic. The
liner 14 includes a top wall 15, a rear wall 16, a
pair of substantially parallel side walls 17 and 18,
and a bottom wall 19. The walls 15-19 constitute
walls of the fresh food compartment 11, which is a
cooling compartment.
The side wall 17 has a plurality of shelf
supports 20 molded integrally therewith during
formation of the liner 14, and the side wall 18 (see
Fig. 10) has a plurality of shelf supports 21 molded
integrally therewith during formation of the liner
14. Each of the shelf supports 20 and 21 extends
longitudinally with each of the shelf supports 20 on
the side wall 17 being in the same horizontal plane
as one of the shelf supports 21 on the side wall 18.
Each of the shelf supports 20 includes an upper
surface 22 (see FIGS. 8 and 9) and a lower surface
23. Each of the shelf supports 21 (see FIG. 7) has
Appeal No. 96-1441
Application 08/096,458
-4-
an upper surface 24 and a lower surface 25 (see FIG.
10) [column 2, line 63 through column 3, line 15].
Jenkins’ shelf supports 20, 21 are specifically designed
to accommodate three different types of shelves, i.e. fixed
shelves, slidable shelves and cantilevered half-shelves (see
the
Background and Summary of the Invention sections of Jenkins’
specification in columns 1 and 2). To this end, the supports
include, inter alia, projections 45, 47 extending downwardly
therefrom for abutting against rods 43, 46 on slidable shelves
40 to limit the outward sliding movement of such shelves (see
column 3, line 54 through column 4, line 11).
Trevitt discloses a case having a plurality of
compartments or pigeon-holes for holding assorted documents
and/or books. The compartments are defined by vertical end
walls and partitions X containing grooves a and horizontal
shelves S slidably fitted into the grooves.
In explaining the rejection on appeal, the examiner
states that
Jenkins provides a cabinet with an interior surface
defined by a liner 14 with parallel sidewalls 17,
Appeal No. 96-1441
Application 08/096,458
-5-
rear wall, top wall, and bottom wall. The sidewalls
each have slots integrally formed thereon defined by
the spaces between shelf supports 20. Thus defined,
surface 22 is a bottom surface of said slot and
supports any one of a variety of shelves. Jenkins
lacks slots which extend into the plane of the
sidewalls away from the interior of the cabinet.
Trevitt has a cabinet similar to the refrigerator
cabinet of Jenkins in that it is designed to support
a plurality of shelves. Trevitt further teaches
slots extending into the planes of the sidewalls of
the cabinet for slidingly receiving and supporting
the shelves. It would have been obvious to have
provided the slots of Jenkins extending into the
plane of the sidewalls as taught by Trevitt instead
of being provided by protruding ledges extending out
of the plane of the sidewalls as provided by
Jenkins, because doing so would have provided the
advantage of additional insulating space in the
liner of Jenkins between adjacent slots. Regarding
claims 1 and 16-17, Jenkins teaches limit means 45,
47 in the slot comprising a protrusion which engages
a protrusion on the shelf as shown in figures 6-10
and which prevents a shelf from moving in at least
one direction [final rejection, Paper No. 5, pages 2
and 3].
The examiner further explains that
to provide the shelf supports as slots extending
into, or as ribs on, the plane of a sidewall is also
a matter of design choice. Furthermore, whether
ribs are considered as spaces between slots or
simply ribs on a sidewall becomes a matter of
interpretation and may depend on the width of the
ribs as compared to the width of the slots they
define. Therefore, it is considered obvious to
apply the stronger motivation of broadening the
surface on the liner between the slots of Jenkins to
provide the advantage of more volume and insulation
between the slots and between the cabinet and liner.
Appeal No. 96-1441
Application 08/096,458
-6-
Trevitt has the size and position relationship
between slots and planar surfaces of the sidewalls
which would enable this advantage when applied to
Jenkins. Trevitt is relied upon simply to show that
it is known in the art to structurally provide the
slots extending into the plane of a sidewall
[answer, Paper No. 10, pages 4 and 5].
Claims 1 and 16, the two independent claims on appeal,
define each of the slots in the sidewalls of the claimed liner
as “extending into a plane of the sidewalls away from the
interior” of the associated refrigeration device (claim 1) or
cabinet (claim 16) and as having a limit means for preventing
shelf movement in at least one direction. As implicitly
conceded by the examiner, neither Jenkins nor Trevitt meets
these claim limitations. The examiner’s attempt to overcome
the individual deficiencies of these references in this regard
in the manner explained above is not well taken.
Rejections based on 35 U.S.C. § 103 must rest on a
factual basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ
173, 177-78 (CCPA 1967). In making such a rejection, the
examiner has the initial duty of supplying the requisite
factual basis and may not, because of doubts that the
Appeal No. 96-1441
Application 08/096,458
-7-
invention is patentable, resort to speculation, unfounded
assumptions or hindsight reconstruction to supply deficiencies
in the factual basis. Id.
To the extent that the shelf supports 20, 21 on the
sidewalls 17, 18 of Jenkins’ liner 14 can be viewed as
defining slots therebetween, the examiner concedes that such
slots do not extend into a plane of the sidewalls away from
the interior of the refrigeration device or cabinet as recited
in claims 1 and 16. Nonetheless, the examiner concludes that
to modify the Jenkins liner so as to provide for this recited
feature would have been suggested by Trevitt and/or an obvious
matter of design choice. The combined teachings of Jenkins
and Trevitt, however, do not provide the factual basis
necessary to support the examiner’s conclusion. The
document/book case disclosed by Trevitt has little in common
with the refrigerator cabinet liner disclosed by Jenkins. The
only suggestion for combining the disparate teachings of these
two references in the manner proposed by the examiner stems
from impermissible hindsight knowledge derived from the
appellant’s own disclosure. The examiner’s rationale that
such modification would provide the liner with more insulating
Appeal No. 96-1441
Application 08/096,458
-8-
space is speculative and has no basis in the references. Nor
is there any basis in the references for the examiner’s
conclusion that the proposed modification of Jenkins’ liner
would have been an obvious matter of design choice. Indeed,
the proposed modification would appear to run counter to
Jenkins’ objective of providing shelf supports capable of
accommodating different types of shelves.
In this light, it is apparent that the examiner has
resorted to speculation, unfounded assumptions and/or
hindsight reconstruction to supply the above noted
deficiencies in the reference evidence of obviousness.
Accordingly, we shall not sustain the standing 35 U.S.C. § 103
rejection of claims 1 and 16, or of claims 2, 3, 7 and 18
which depend therefrom, as being
unpatentable over Jenkins in view of Trevitt.
The decision of the examiner is reversed.
REVERSED
Appeal No. 96-1441
Application 08/096,458
-9-
NEAL E. ABRAMS )
Administrative Patent Judge )
)
)
)
JOHN P. McQUADE ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
MURRIEL E. CRAWFORD )
Administrative Patent Judge )
Appeal No. 96-1441
Application 08/096,458
-10-
Hill, Steadman & Simpson
85th Floor
Sears Tower , 233 South Wacker Drive
Chicago, IL 60606