Ex Parte Eckartsberg

Patent Trial and Appeal Board

Jul 28, 2016

12864242 (P.T.A.B. Jul. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/864,242 07/23/2010
23117 7590 08/01/2016
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Peter Eckartsberg
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
PTB-603 2-17 3338
EXAMINER
GALLEGO, ANDRES F
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
08/01/2016 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@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER ECKAR TSBERG
Appeal2014-008683
Application 12/864,242
Technology Center 3600
Before JOHN C. KERINS, STEFAN STAICOVICI, and LEE L. STEPINA,
Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Peter Eckartsberg (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner's non-final decision rejecting claims 20-31, 33-36, 38--43,
and 47-52. Claims 32, 37, and 44--46 are indicated by the Examiner as
containing allowable subject matter. We have jurisdiction over this appeal
under 35 U.S.C. § 6(b ).
We REVERSE.
Appeal2014-008683
Application 12/864,242
THE INVENTION
Appellant's invention relates to a refrigeration device having a seal
element. Claims 20, 39, 41, 42, and 47 are independent. Claim 20 is
illustrative of the claimed invention and reads as follows:
20. A refrigeration device, comprising:
a first component; and
a second component;
wherein the first component has an elongated seal
element in the form of a hollow profile to thermally seal the
first component against the second component;
wherein the seal element has an elongated materially-
rigid first seal base and an elongated materially-elastic first seal
head attached to the first seal base;
wherein at least one open end of the seal element is
closed off by a terminating element;
wherein the terminating element has a materially-rigid
second seal base and a materially-elastic second seal head
attached to the second seal base; and
wherein the first seal base and the second seal base are
joined to one another; and
wherein the first seal head and the second seal head
contact each other at a head joint where an inserted portion of
one of the first seal head or the second seal head inserts into the
other of the first seal head or the second seal head such that the
inserted portion contacts and follows an interior surface of the
other of the first seal head or the second seal head.
THE REJECTION
The Examiner has rejected claims 20-31, 33-36, 38--43, and 47-52
under 35 U.S.C. § 103(a) as being unpatentable over Kronenberger (US
2
Appeal2014-008683
Application 12/864,242
3,407,016; issued Oct. 22, 1968), Gail (US 2,102,578; issued Dec. 14,
1937), and Saiga (US 5,111,617; issued May 12, 1992).
The Non-Final Action additionally includes a drawing objection and
an objection to claim 47. Non-Final Act. 2-3. Review of these objections is
by petition, and not within the jurisdiction of the Board.
ANALYSIS
Claim 20 requires a seal element having a materially-rigid first seal
base and a materially-elastic first seal head, and a terminating element that
closes off an open end of the seal element and that has a materially-rigid
second seal base and a materially-elastic second seal head. Independent
claims 39, 41, 42, and 47 include similar limitations.
The Examiner finds that Kronenberger discloses a seal element 128
with an end of the seal element closed off by a terminating element 110.
Non-Final Act. 4. The Examiner relies on Gail as teaching a "seal element
ha[ ving] an elongated materially-rigid seal base (base 1 ), and an elongated
materially elastic seal head (flexible member 6)." Id. at 5. The Examiner
finds that it would have been obvious "to modify the seal element and
terminating element of Kronenberger such that they have a seal base and
seal head as taught by Gail, since such a modification would provide for a
seal that is easily removable and is adaptable to a narrow environment (e.g. a
shelf)." Id.
Appellant asserts that the purpose of Kronenberger's trim strip (seal
element) 128 is for "preventing air flow across the front edge of the divider
shelf assembly 38." Appeal Br. 11 (citing Kronenberger, col. 6, 11. 5-7).
Appellant asserts that this purpose is accomplished by configuring trim strip
3
Appeal2014-008683
Application 12/864,242
128 "to cooperate with a movable flexible sealing gasket 132 that is attached
to the upper door 30," and by making trim strip 128 of "a thickness
exceeding that of the divider plate 58 so as to be more suitable as a seal
gasket engaging surface." Id. (citing Kronenberger, col. 6, 11. 8-11 ).
Appellant argues that "the thicker, stable (not flexible) surface of the divider
trim strip 128 prevents air flow across the front edge of the divider shelf
assembly 38," and as such, the Examiner "has not set forth a sufficient
rationale with the requisite factual underpinnings to make the divider trim
strip 128 (and the sealing surfaces 120) hollow flexible gaskets," because the
resultant structure of "two abutting flexible seal heads would surely degrade
the ability to maintain sealing contact between the flexible seal heads." Id.
at 11-12.
In the Answer, the Examiner responds that Kronenberger "is silent as
to the intent of specifically pairing the stable, non-moving dividing trim strip
128 and sealing surface 120 with the flexible, movable sealing gasket 132."
Ans. 2. The Examiner maintains that a person of ordinary skill "would have
understood the gasket structures to be intended predictably as a seal between
the door and shelf," and that "while it may not be preferable to have two
flexible seals abutting each other, the structure is still considered workable
and well-known in the art." Id. at 2-3.
In reply, Appellant asserts that that "Kronenberger explicitly states the
benefits of the structural arrangement," and in view of this, "the skilled
artisan would not likely have replaced the trim strip 128 and divider bracket
110 (having sealing surfaces 120) with another hollow flexible sealing
member as there is absolutely no teaching, suggestion or other rationale to
have two hollow flexible seals abutting one another." Reply Br. 2-3.
4
Appeal2014-008683
Application 12/864,242
Appellant has the better argument here. Although we appreciate that
two abutting flexible seals would perform some sealing function, the
Examiner does not adequately explain why this seal configuration would be
an obvious replacement for the existing seal gasket engaging surfaces of
Kronenberger, such that one of ordinary skill would have been prompted to
modify Kronenberger in the manner suggested. The Examiner has provided
no evidence that such a configuration has successfully been used in the
refrigerator art.
As pointed out by Appellant, Kronenberger discloses that, "divider
trim strip 128 has a thickness exceeding that of the divider plate 58 [which
is] more suitable as a seal gasket engaging surface for preventing air flow
across the front edge of the divider shelf assembly 38." Kronenberger, col.
6, 11. 3-7. By contrast, the proposed modified trim strip 128 would have a
semi-cylindrical flexible member, as taught by Gail, (see Gail 1, col. 1, 11.
27-28) in contact with hemispherical portion of seal gasket 132 (see
Kronenberger, col. 6, 11. 26-28; Fig. 10), which would appear to result in
considerably less contact area, and possibly as little as a line of contact,
between such rounded surfaces. This comports with Appellant's argument
to the effect that using two abutting flexible seal heads would "degrade the
ability to maintain sealing contact between the flexible seal heads" by
reducing the available seal contact surface and making the engaging surface
potentially as small as a line of contact. Appeal Br. 12.
The Examiner's stated reasons as to why it would have been obvious
to modify the seal of Kronenberger are also not well founded. The
Examiner indicates that the modification "would provide for a seal that is
easily removable" (Final Act. 5), yet the unmodified Kronenberger
5
Appeal2014-008683
Application 12/864,242
construction already includes screws to mount bracket 110 and trim 128 to
the refrigerator cabinet, which would be readily unscrewed for removal.
Kronenberger, col. 5, 11. 55-60; Fig. 7. The Examiner further takes the
position that the proposed modification would make the construction
"adaptable to a narrow environment (e.g. a shelf)." Non-Final Act. 5.
Although this language has its origins in Gail, the Examiner does not make
clear how the person of ordinary skill in the art would view this as being
particularly applicable to the Kronenberger construction.
The teachings of Saiga do not remedy the shortcomings of the
combined teachings of Kronenberger and Gail, because the entire end cap 54
of Saiga is rigid (see Saiga, col. 1, 11. 50-54; col. 3, 11. 53---61; Figure 5) and
thus, as Appellant points out, "the references fail to teach or suggest joined
seal elements (seal element and terminating element) both including rigid
base portions and elastic seal head portions," as required by the claims.
Reply Br. 4.
The rejection of claim 20 as being unpatentable over Kronenberger,
Gail, and Saiga is not sustained. The rejection is further not sustained as to
claims 21-31, 33-36, and 38 which depend from claim 1, nor as to
independent claims 39, 41, 42, and 47 and their respective dependent claims,
for the same reasons.
DECISION
The decision of the Examiner to reject claims 20-31, 33-36, 38--43,
and 47-52 under 35 U.S.C. § 103(a) is reversed.
REVERSED
6