Ex Parte CUR et al

Patent Trial and Appeal Board

Dec 13, 2017

13108183 (P.T.A.B. Dec. 13, 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.
13/108,183 05/16/2011 NIHAT CUR PAT-00032-US-NP 9063
130333 7590 12/15/2017
PRTrF HFNFVFT F) T T P
EXAMINER
WHIRLPOOL CORPORATION TADESSE, MARTHA
PO BOX 2567
GRAND RAPIDS, MI 49501 ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
12/15/2017 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 @priceheneveld.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NIHAT CUR, ALBERTO R. GOMES,
LUIZ ANTONIO D. LOPES, GUOLIAN WU,
and LUCIAN A WASNIEVSKI DA SILVA1
Appeal 2016-008273
Application 13/108,183
Technology Center 3700
Before JAMES P. CALVE, WILLIAM A. CAPP, and ANTHONY KNIGHT,
Administrative Patent Judges.
Opinion for the Board filed by CALVE, Administrative Patent Judge
Opinion Concurring filed by CAPP, Administrative Patent Judge
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Final Action
rejecting claims 1-25. See Appeal Br. 5-18. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 Whirlpool Corporation is identified as the real party in interest. Appeal Br.
2.
Appeal 2016-008273
Application 13/108,183
CLAIMED SUBJECT MATTER
Appellants disclose a cooling module that can operate in different
orientations to alter the shape and/or size of a refrigerator or a freezer
compartment. Spec. 1,4. Claims 1,9, 16, and 21 are independent.
Representative claim 1 is reproduced below.
1. A refrigerator comprising:
at least one freezer compartment;
at least one refrigerator compartment, wherein the freezer
compartment and the refrigerator compartment are defined by a
plurality of interior surfaces;
a cooling module set containing mullion configured to be
repositionable with respect to the plurality of interior surfaces
including at least one vertical surface and removably attached
to at least one of the plurality of interior surfaces, wherein the
cooling module set containing mullion is configured to operate
in any orientation of a plurality of orientations, and the cooling
module set containing mullion is further configured to be
repositionable with respect to the plurality of interior surfaces
to alter an interior volume of at least one of the refrigerator
compartment and the freezer compartment; and
wherein the cooling module set comprises an orientation-
flexible compressor configured to operate in any orientation
including at least a vertical orientation without affecting the
operation of the orientation flexible compressor and without
modification as the orientation of the cooling module set is
changed and the cooling module set supplies cooling to the at
least one freezer compartment temperature at a freezer
compartment temperature and to the at least one refrigerator
compartment at a refrigerator compartment temperature that is
higher than the freezer compartment temperature.
Appeal Br. 19 (Claims Appendix).
2
Appeal 2016-008273
Application 13/108,183
REJECTIONS
Claims 1-3 and 6-21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Amaral (WO 2010/043009 A2, pub. Apr. 22, 2010) and
Quesada Saborio (US 2010/0058791 Al, pub. Mar. 11, 2010).
Claims 4 and 5 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Amaral, Quesada Saborio, and Maudlin (US 4,041,727, iss. Aug. 16,
1977).
Claims 22-24 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Amaral, Quesada Saborio, and Cur (US 7,908,873 Bl, iss. Mar. 22,
2011).
Claim 25 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Amaral, Quesada Saborio, Cur, and Moore (US 2,840,434, iss. June 24,
1958).
ANALYSIS
Claims 1—3 and 6—21
Rejected Over Amaral and Quesada Saborio
The Examiner finds that Amaral discloses a refrigerator substantially
as recited in independent claims 1,9, 16, and 21 but lacks an orientation-
flexible compressor configured to operate in any orientation (claim 1) or in a
vertical and horizontal orientation (claims 9, 16, and 21). Final Action 2-3,
5, 7-10. The Examiner finds that Quesada Saborio teaches an orientation-
flexible compressor disposed in a cooling module set. Id. at 3, 5-6, 8, 10.
The Examiner determines it would have been obvious to modify the cooling
module set of Amaral with that of Quesada Saborio to enable a plurality of
configurations of the refrigerator compartment and freezer compartment of
Amaral without changing the foot print of the appliance. Id.
3
Appeal 2016-008273
Application 13/108,183
Appellants argue that Quesada Saborio does not teach an orientation
flexible compressor that can operate in any orientation including a vertical
orientation but instead teaches a conventional compressor that only operates
when oriented right side up. Appeal Br. 10. Appellants also argue that their
Specification discloses an orientation-flexible compressor that uses the
refrigerant gas itself as the lubricant for the gas bearings instead of using oil
as a lubricant as in conventional compressors. Id. at 9. Appellants further
argue that, because no oil is used, an orientation-flexible compressor can be
turned on its side, upside down, etc. without oil draining out of a sump as
would occur with a conventional compressor. Id. Appellants also argue that
Quesada Saborio teaches only conventional compressors such as swash plate
piston compressors and digital horizontal scroll compressors that only can be
oriented right side up. Id. at 10. We agree.
The Examiner’s finding that Quesada Saborio teaches an orientation-
flexible compressor disposed inside of a cooling module set is not supported
by a preponderance of evidence. Claim 1 requires as “an orientation-flexible
compressor configured to operate in any orientation including at least a
vertical orientation without affecting the operation of the . . . compressor.”
Claims 9 and 16 require “an orientation-flexible [reconfigurable] compressor
configured to operate in at least both a vertical and a horizontal orientation.”
Claim 21 requires “wherein the orientation flexible compressor functions in
at least both a vertical orientation and a horizontal orientation.”
We interpret an “orientation-flexible (reconfigurable) compressor” as
a compressor whose relative position (e.g., housing, components) can be
changed to “any orientation” (claim 1) or at least to both a “vertical” and a
“horizontal” orientation (claims 9, 16, and 21) and still operate or function.
4
Appeal 2016-008273
Application 13/108,183
Appellants disclose such an orientation-flexible compressor 112 in
Figures 7-9, which are reproduced below.
v-
S3-> ;§
fit 1
S3! S3>
fit. §
"“1
J
%| |
■33-:. 3
ST’
\
Si
"Si
m y
Figure 7 illustrates cooling module set 106 in a horizontal orientation
with orientation-flexible compressor 112. Spec. ^ 24. Figure 8 illustrates
cooling module set 106 in a horizontal orientation that is rotated 180° from
the Figure 7 position. Id. 25, 47. Figure 9 illustrates cooling module set
106 rotated approximately 90° from the Figure 7 position. Id. 26, 47.
Appellants disclose that “[t]y picafly, the orientation of the orientation-
flexible compressor within the CMS 106 does not need to be altered as the
orientation of the CMS 106 is changed.” Id. ^ 47. Thus, the orientation of
orientation-flexible compressor 112 changes as the orientation of CMS 106
changes. And, orientation-flexible compressor 112 can be non-releasably
connected to CMS 106 (e.g., to an interior side of housing 118) by fastening
devices 130. Id. In addition, connections 134 between orientation-flexible
compressor 112 and other components of CMS 106 (e.g., condenser 113,
evaporator 115) may be rigid or non-flexible. Id.
5
Appeal 2016-008273
Application 13/108,183
As shown in Figures 7-9 above, the orientation of orientation-flexible
compressor 112 changes as the orientation of CMS 106 changes because
orientation-flexible compressor 112 is connected fixedly to housing 118 of
CMS 106. As the orientation of CMS 106 changes from horizontal to
vertical, the orientation of compressor 112 (e.g., the housing of compressor
112) likewise changes by 90° from horizontal to vertical.2
In contrast to this arrangement, Appellants disclose an embodiment in
which a conventional repositionable compressor 112’ is used with CMS 106
in Figures 10-12, which are reproduced below.
..•:..........r
ns ns
m n
m
.......
>.
V ,y. .s'.
A, * v -
BG.. 10
s
,.ss
$.............i'...........
S S " N : Aov
.SSV
tf.P?
Jf
I
m-
r
S'
§!
>;'V
PIS. 12
Figure 10 illustrates CMS 106 in a horizontal orientation. Id. ^ 27.
Figure 11 illustrates CMS 106 in another horizontal orientation. Id. ^ 28.
Figure 12 illustrates CMS 106 in a vertical orientation. Id. ^ 29.
2 Although the claims recite that the orientation-flexible compressor can be
in a “vertical” or “horizontal” orientation, the Specification does not indicate
which of these positions is illustrated in Figures 7-9, except to characterize
the orientation of CMS 106 as “horizontal” in Figures 7 and 8 and “vertical”
in Figure 9. Id. 24-26.
6
Appeal 2016-008273
Application 13/108,183
As the orientation of CMS 106 changes in Figures 10-12 above, the
orientation of repositionable compressor 112’, which is a standard non-oil­
less compressor, “is stable with an approximately horizontal orientation due
to a flow of a lubricating material.” Id. ^ 48. Repositionable compressor
112’ is connected to CMS 106 by releasable fasteners 130’ and to other
elements of CMS 106 by flexible connections 134’ so CMS 106 can change
its orientation while the orientation of compressor 112’ stays the same. Id.
We agree with Appellants that Quesada Saborio discloses cooling
module sets that may be oriented in vertical and/or horizontal orientations as
illustrated in Figures 9-26; however, the orientation of the compressor does
not change when the orientation of the cooling module set changes. Appeal
Br. 10; Reply Br. 5. Quesada Saborio discloses that [t]he compressor drive
mount is tumable to provide vertical compressor operation in all positions.”
Quesada Saborio ^ 226; Appeal Br. 10. In other words, Quesada Saborio
discloses a conventional compressor that does not (and cannot) change its
orientation from vertical to horizontal when the orientation of the cooling
module set that contains it changes from horizontal to vertical.
Quesada Saborio also discloses that “the [cooling] modules have
flexible housing enclosures and tubes that are rearrangeable and shiftable
with rotation of the compressor, accumulator, evaporator coil, and condenser
coil.” Quesada Saborio ^ 55; Final Act. 3,5, 10 (all citing id.). A skilled
artisan would understand this disclosure and paragraph 226 quoted above to
mean that the compressor retains a “vertical” or upright orientation in order
to function properly; however, the orientation of the compressor may change
relative to the other elements of the cooling module as the other elements are
moved from horizontal to vertical orientations as shown in Figures 9-26.
7
Appeal 2016-008273
Application 13/108,183
Quesada Saborio discloses a cooling module set and compressor that
corresponds to the embodiment that Appellants disclose at Figures 10-12.
Independent claims 1,9, 16, and 21 do not claim this embodiment, however.
Claim 1 recites an “orientation-flexible compressor configured to
operate in any orientation.” Claim 9 recites “an orientation-flexible
compressor configured to operate in at least both a vertical and a horizontal
orientation.” Claim 16 recites a “reconfigurable compressor” “configured to
operate in at least both a horizontal and a vertical orientation.” Claim 21
recites “an orientation-flexible compressor [that] functions in at least both a
vertical orientation and a horizontal orientation.” Appellants illustrate this
embodiment in their Figures 7-9, as discussed above. The Examiner has not
established sufficiently that Quesada Saborio teaches a cooling module set
that includes a compressor that can be oriented in any orientation, or even in
at least both a horizontal and a vertical orientation, as claimed. Thus, we do
not sustain the rejection of claims 1-3 and 6-21.
Claims 4, 5, and 22—25 Rejected Over
Amaral, Quesada Saborio, and Maudlin/Cur/Moore
The Examiner’s reliance on Maudlin, Cur, and Moore to disclose the
features of dependent claims 4, 5, and 22-25 (Final Act. 11-16) does not
cure the deficiencies of Amaral and Quesada Saborio as to claims 1 and 21
from which these claims depend. See Appeal Br. 16-17. Thus, we do not
sustain the rejections of these claims.
DECISION
We reverse the rejections of claims 1-25.
REVERSED
8
Appeal 2016-008273
Application 13/108,183
OPINION CONCURRING
CAPP, Administrative Patent Judge
I concur in the result reached by the majority. However, I write
separately to emphasize the importance of claim construction in reaching
this result. Independent claims 1, 9, and 21 each require a compressor that is
“orientation-flexible.” Claims App. Independent claim 16, on the other
hand requires a compressor that is “reconfigurable” so that it may operate in
“both a horizontal and vertical orientation.” Id.
Ordinarily, any reference to an “orientation” requires someone to
define a frame of reference for such orientation. One possible frame of
reference could be where “up” or “vertical” is defined relative to the
direction of gravitational pull or, in other words, a direction that is normal to
the surface of the earth. However, other frames of reference are possible.
For example, an elongate enclosure could use the longitudinal axis of the
lengthwise dimension of the enclosure to define a frame of reference.
In the instant case, claims 1, 9, and 21, do not expressly define the
frame of reference to which the compressor is “orientation-flexible.” We
have inferred, however, from the disclosure in paragraphs 47 and 48 of
Appellants’ Specification that the frame of reference for the orientation-
flexible compressor is relative to the direction of gravity or, on other words,
in a direction that is normal to the surface of the earth. As I interpret the
Specification, the embodiment of Figures 7-9 and paragraph 47 is
“orientation-flexible,” whereas the embodiment in Figures 10-12 and
paragraph 48 is merely “repositionable.” Thus, the “repositionable”
compressor of paragraph 48 can be a “standard” compressor that is not
9
Appeal 2016-008273
Application 13/108,183
“orientation-flexible.” See Phillips v. AWH Corp., 415 F.3d 1303, 1315
(Fed. Cir. 2005) (the specification is the single best guide to the meaning of
a disputed claim term).
Thus, as I understand the meaning of “orientation-flexible” as used in
claims 1, 9, and 21, the meaning is essentially indistinguishable from the
language of claim 16 where the compressor is reconfigurable to operate in
both a horizontal and vertical orientation. Again, this is all subject to the
understanding that “horizontal and vertical” are defined relative to a frame
of reference where “horizontal” corresponds to the “horizon” of planet earth.
Subject to the foregoing understanding and clarification, 1 concur in
the result.
10