Ex Parte ClassenDownload PDFPatent Trial and Appeal BoardJun 20, 201311793108 (P.T.A.B. Jun. 20, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte EGBERT CLASSEN ____________________ Appeal 2011-006215 Application 11/793,108 Technology Center 3600 ____________________ Before: WILLIAM V. SAINDON, SCOTT A. DANIELS, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-006215 Application 11/793,108 2 STATEMENT OF CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 16 and 31 under 35 U.S.C. § 103(a) as being unpatentable over Smith (US 6,546,942 B2; iss. Apr. 15, 2003) and Spanyer (US 6,666,220 B2; iss. Dec. 23, 2003).1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Claim 16 is the sole independent claim and is reproduced below: 16. A crockery basket for a dishwasher, the crockery basket comprising: a base frame having a base surface; a plurality of upwardly standing pointed elements each extending upwardly from the base surface; a plurality of upwardly standing sides each extending upwardly from a perimeter edge of the base surface and along a length of the perimeter edge; a cutlery basket configured to receive a predetermined type of cutlery items having a predetermined size and arranged such that the cutlery items point upwards from the cutlery basket and extend above the cutlery basket by a predetermined maximum height; and an upwardly standing edge extending upwardly from at least one side of the plurality of upwardly standing sides of the base surface and along a length of the at least one side, the upwardly standing edge having a height that exceeds a height of the upwardly standing pointed elements of the crockery basket and a height corresponding to the predetermined maximum height above the cutlery basket of the cutlery items for which the cutlery basket is configured to receive. 1 The additional rejections referenced by Appellant in the Appeal Brief (see App. Br. 8) have been withdrawn. Ans. 3. Appeal 2011-006215 Application 11/793,108 3 OPINION The Examiner finds that Smith discloses each of the features of claim 16 except the cutlery basket and the height of the upwardly extending edge of the crockery basket relative to the cutlery basket. Ans. 4. The Examiner finds that Spanyer discloses these additional features. Ans. 5. Appellant argues that Spanyer fails to disclose the cutlery basket and the height of the upwardly extending edge of the crockery basket relative to the cutlery basket because Spanyer is silent with respect to the upwardly extending edge (sides 164, 166) being located above cutlery items in the cutlery basket 152. App. Br. 10; Reply Br. 8. However, the “arranged such that” language in claim 16 is a limitation that simply requires the cutlery basket to be capable of containing upwardly pointing cutlery items that extend some height above the cutlery basket. Further, the claim does not provide any specific limitations on the extent of the “maximum height,” or the types or sizes of “cutlery items.” As the Examiner explains, with the proposed modifications, Smith is capable of containing upwardly pointing cutlery items that extend above the cutlery basket. Ans. 5-6. The upwardly extending edge (sides 164, 166) in Spanyer is located a height above the cutlery basket 152. Spanyer, fig. 2. The Examiner explains that some cutlery items (e.g., a paring knife) contained in the cutlery basket would not extend beyond the height of the upwardly extending edge in the Examiner’s proposed modified Smith. Ans. 6. Appellant has not persuasively explained why the Examiner’s findings or reasoning are incorrect. Appellant further argues that Spanyer does not disclose the features noted above because cutlery can be inserted into the cutlery basket 152 that Appeal 2011-006215 Application 11/793,108 4 is taller than the upwardly extending edge (sides 164, 66). App. Br. 10; Reply Br. 8. However, this argument is not commensurate with the scope of claim 16, as the claim does not preclude the cutlery basket from containing additional cutlery items extending beyond the maximum height. Appellant’s additional arguments directed to design choice (see App. Br. 11 and Reply Br. 9) are also not persuasive, as the Examiner does not rely on such rationale in the Examiner’s Answer (see Ans. 5). For the reasons set forth above, we are not apprised of Examiner error and we sustain the rejection of claim 16. Claim 31 depends from claim 16 and is not argued separately. See App. Br. 8-13. Claim 31 falls with claim 16. DECISION We AFFIRM the Examiner’s decision to reject claims 16 and 31. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED mls Copy with citationCopy as parenthetical citation