Ex Parte Eckartsberg

Patent Trial and Appeal Board

Oct 7, 2014

12523746 (P.T.A.B. Oct. 7, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte PETER ECKARTSBERG
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Appeal 2012-007490
Application 12/523,7461
Technology Center 3600
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Before MURRIEL E. CRAWFORD, MICHAEL C. ASTORINO, and
SCOTT C. MOORE, Administrative Patent Judges.

MOORE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Claims 1–19 of Appellant’s Application are cancelled. Appeal Br. 3.
Claims 20–38 are pending but have been finally rejected by the Examiner.
Id. Appellant now appeals from the Examiner’s decision rejecting claims
20–38. Id. at 5. We have jurisdiction under 35 U.S.C. §§ 134 and 6.
The claimed invention pertains to “[a] cabinet-like domestic appliance
. . . having an interior in which a height-adjustable support system is
mounted.” Spec., Abstract. Claim 20, which is reproduced below, is
illustrative of the claimed subject matter.

1 Appellant states that the real parties in interest are BSH Bosch und
Siemens Hausgeräte GmbH and Miele & Cie. KG. Appeal Br. 3.
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20. A cabinet-like household appliance, the household
appliance comprising:
at least two walls, the walls delimiting an interior;
and
a height-adjustable support system mounted in the
interior, the support system including
a vertical rail including a profiled element
and a strip,
the profiled element being fixed to a
first one of the walls by at least one fastener, and
the strip being vertically displaceable
in the profiled element between a first position in which the at
least one fastener is accessible through an opening in the strip
and a second position in which the at least one fastener is
substantially concealed behind the strip;
a plurality of locating steps on the vertical
rail; and
at least one supporting arm having at least
one projection, the at least one projection being engageable in
one of the locating steps on the vertical rail,
wherein the strip is vertically displaceable in the
profiled element between the first position and the second
position when the profiled element is fixed to the first one of
the walls in a normal operating position of the household
appliance.
Appeal Br. 12.
The Examiner relies on the following prior art references in rejecting
the claims on appeal:
Berk US 3,234,897 Apr. 9, 1964
Constantini US 3,261,585 July 19, 1966
Aue US 3,647,075 Mar. 7, 1972
Hogue US 3,908,320 Sept. 30, 1975
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Wendt US 4,570,390 Feb. 18, 1986
DuPont US 5,104,272 Apr. 14, 1992
Dasher US 5,361,599 Nov. 8, 1994
Ans. 4.
Appellant asks us to review the following grounds of rejection:
A) Whether claims 36 and 38 are unpatentable under 35 U.S.C.
§ 102(b) over Dasher. Appeal Br. 5.
B) Whether claims 20–23, 27, 29–31, and 33 are unpatentable under
35 U.S.C. § 103(a) over Wendt in view of Berk and Constantini. Id.
C) Whether claims 24–26 are unpatentable under 35 U.S.C. § 103(a)
over Wendt in view of Berk, Constantini, and Hogue. Id.
D) Whether claims 28 and 32 are unpatentable under 35 U.S.C.
§ 103(a) over Wendt in view of Berk, Constantini, and Aue. Id.
E) Whether claims 34 and 35 are unpatentable under 35 U.S.C.
§ 103(a) over Wendt in view of Berk, Constantini, and Dasher. Id.
F) Whether claims 36–38 are unpatentable under 35 U.S.C. 103(a)
over Dasher in view of DuPont. Id.
We AFFIRM-IN-PART.
ANALYSIS
Rejection of Claims 36 and 38
under 35 U.S.C. § 102(b)
Independent claim 36, which is directed to a method of assembling a
household appliance, requires an inner container with “at least one opening
which is provided with at least one fastener thread,” and “at least one
fastener.” Appeal Br. 15. The claim includes the step of “positioning [the]
at least one fastener in the opening to hold the fastener thread in a final
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position,” and the step of “positioning and fastening a rail to the household
appliance by tightening the at least one fastener in the opening.” Id.
The Examiner finds that the “at least one fastener” limitation of claim
36 is met by a “two piece fastener comprised of fastener 52 and screw 82” of
the Dasher reference. Ans. 14. Appellant argues that “fastener 52” of
Dasher does not meet the “at least one fastener” limitation of claim 36
because “the office action defined rail (shelf ladder 41) of Dasher is not
fastened to the household appliance by tightening fastener 52 in opening
50.” Appeal Br. 6. Appellant also argues that screw 82 cannot be the “at
least one fastener” because “screw 82 is not positioned in opening 50 to hold
the office action defined fastener thread (opening 58) in a final position.” Id.
Importantly, however, Appellant never addresses the issue of whether
fastener 52 and screw 82 (the two-piece fastener identified by the Examiner)
would together satisfy the “at least one fastener” limitation of claim 36. See
id. In the Answer, the Examiner reiterates the finding that the “at least one
fastener” limitation is met by a two-piece fastener comprising fastener 52
and screw 82 of Dasher. Ans. 14. Appellant’s Reply Brief does not respond
to the Examiner’s position regarding the “at least one fastener” limitation of
claim 36. See Reply Br. 3–4.
Appellant has not offered any persuasive evidence or technical
reasoning that the Examiner erred. Appellant never actually disputes that
the two-part fastener identified by the Examiner would meet the “at least one
fastener” element of claim 36. Appellant also does not identify any claim
language that would preclude the Examiner from relying on a multi-
component fastener. We, therefore, are not persuaded that the Examiner
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erred in finding that Dasher teaches the “at least one fastener” limitation of
claim 36.
Appellant also argues that Dasher does not anticipate claim 36
because Dasher does not meet the “at least one opening which is provided
with at least one fastener thread” limitation. Appeal Br. 6. Appellant
contends that the opening that the Examiner cited as meeting this claim
element (opening 58 of Dasher) is not threaded. Id. at 6. In response, the
Examiner finds that opening 58 of Dasher “functions in a similar manner” to
the opening of Applicant’s invention. Ans. 15. But the Examiner never
disputes Appellant’s contention that opening 58 of Dasher is not threaded.
See id. Because opening 58 of Dasher is not threaded, the Examiner erred in
finding that Dasher anticipates claim 36. Thus, we do not sustain the
Examiner’s rejection of claim 36 based on 35 U.S.C. § 102(b).
Claim 38 depends from claim 36, and therefore includes the
requirement for a threaded opening. Thus, we also do not sustain the
Examiner’s rejection of claim 38 based on 35 U.S.C. § 102(b).
Rejection of Claims 36–38
under 35 U.S.C. § 103(a)2
The Examiner also rejects claims 36–38 as obvious and unpatentable
over Dasher in view of DuPont. Ans. 12. The Examiner finds that DuPont
“teaches at least one fastener 5, which is threaded into an opening (16)
which results in the opening being threaded (Figure 5).” Id. at 13. The

2 We address this rejection—which Appellant and the Examiner discuss at
the end of their papers—out of order because it relates to the same subject
matter and some of the same claims as the rejection discussed in the
previous section.
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Examiner then concludes that it would have been obvious to “modify
locking element 62 of fastener 52 [of Dasher] with a threaded fastener taught
by Du[P]ont et al. since both manners of securing a fastener in an opening
are [well] known and both provide structural support to foamed walls.” Id.
In response, Appellant reiterates its argument that Dasher “does not
teach or suggest a fastener that (1) is positioned in the opening to hold the
fastener thread in a final position; and (2) is tightened to position and fasten
a rail to the household appliance.” Appeal Br. 11 (emphasis in original).
For the reasons discussed above, we are not persuaded by Appellant’s
argument that Dasher does not teach a fastener of the type required by claim
36. Appellant does not present any other patentability arguments regarding
claim 36. Thus, we sustain the Examiner’s rejection of claim 36 under 35
U.S.C. § 103(a).
Claims 37 and 38 depend from claim 36, and thus incorporate all
limitations of claim 36. Appellant does not present any separate
patentability arguments regarding claims 37 and 38. Thus, we also sustain
the Examiner’s rejection of claims 37 and 38 under 35 U.S.C. § 103(a).
Rejection of Claims 20–23, 27, 29–31,
and 33 under 35 U.S.C. § 103(a)
Independent claim 20 requires a “vertical rail including a profiled
element” and a “strip,” “the strip being vertically displaceable in the profiled
element between a first position in which the at least one fastener is
accessible through an opening in the strip and a second position in which the
at least one fastener is substantially concealed behind the strip.” Appeal
Br. 12. The strip must also be “vertically displaceable . . . when the profiled
element is fixed to the first one of the walls in a normal operating position of
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the household appliance.” Id. The Examiner finds that the Wendt reference
discloses a vertical strip that is displaceable, but notes that this strip does not
have the opening required by claim 20. Ans. 6. The Examiner finds that the
Berk reference teaches a “strip [that] has [a] plurality of openings . . . and is
vertically displaceable between a first position . . . and a second position
. . . .” Id. at 7. The Examiner further finds that Constantini teaches a height-
adjustable vertical support system in a household appliance that includes a
strip with openings. Id. The Examiner then concludes that claim 20 would
have been obvious and unpatentable over Wendt in view of Berk and
Constantini. Id. at 7–8.
Appellant argues that Wendt does not show “an opening in the strip in
which the strip is displaceable to another position to access the fastener
. . . .” Appeal Br. 7. Appellant also argues that the Examiner erred in
finding that Berk and Constantini teach vertically displaceable strips. Id. In
response, the Examiner takes the position that the strip of Berk is
displaceable because “there is no structure that is preventing the [strip] from
being displaceable.” Ans. 15–16. The Examiner also takes the position that
the strip of Constantini “is capable of being vertically displaceable . . . when
the screw 47 is not completely tightened to the wall (see Fig. 5).” Id. at 16.
In reply, Appellant reiterates that Berk does not teach a strip that is
vertically displaceable. Reply Br. 4. Appellant also notes that even if the
strip of Constantini were vertically displaceable “when screw 47 is not
completely tightened to the wall,” Constantini would still not satisfy the
claim limitation requiring that the strip be vertically displaceable “when the
profiled element is fixed to the first one of the walls in a normal operating
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position of the household appliance.” Id. at 4–5 (emphasis omitted).
Appellant’s arguments are persuasive.
The Examiner’s obviousness rejection rests on the finding that Berk
“shows a vertically displaceable strip . . . in which the at least one fastener
. . . is concealed behind the strip,” and the finding that “Constantini shows a
vertically displaceable strip . . . in which the at least one fastener . . . is
accessible through an opening . . . of the strip . . . .” Ans. 17. However, the
Examiner has not cited any teachings in Berk or Constantini of strips that are
“vertically displaceable . . . when the profiled element is fixed to the first
one of the walls in a normal operating position of the household appliance”
as required by claim 20. See Appeal Br. 12. We agree with Appellant that
the dashed lines in Fig. 2 of Berk depict a cut-away view of forward element
20, and do not indicate that this element is vertically displaceable. See Berk
Fig. 2; Appeal Br. 8. And while the Examiner is correct in noting that
bracket 28 of Berk “frictionally sandwich[es]” forward element 20 into
position, see Ans. 16, the Examiner does not cite any teaching that forward
element 20 is vertically displaceable when bracket 28 is not installed. In
addition, even if the strip of Constantini is vertically displaceable when
screw 47 is loose, that strip would not be displaceable “when the profiled
element is fixed to the first one of the walls in a normal operating position of
the household appliance” as required by claim 20. See Appeal Br. 12. For
the foregoing reasons, the Examiner’s findings regarding Berk and
Constantini are speculative and not supported by persuasive evidence or
technical reasoning. Thus, we do not sustain the Examiner’s rejection of
claim 20.
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Claims 21–23, 27, 29–31, and 33 depend from claim 20, and include
the “strip being vertically displaceable” claim limitation discussed above.
Thus, we also do not sustain the Examiner’s rejection of claims 21–23, 27,
29–31, and 33.
Rejection of Claims 24–26
under 35 U.S.C. § 103(a)
Claims 24–26 depend from claim 20, and include the “strip being
vertically displaceable” claim limitation. The Examiner relies on the prior
art discussed above with respect to this claim limitation, and does not find
that any other prior art references teach a vertically displaceable strip of the
type required by claim 20. We, therefore, do not sustain the Examiner’s
rejection of claims 24–26.
Rejection of Claims 28 and 32
under 35 U.S.C. § 103(a)
Claims 28 and 32 depend from claim 20, and include the “strip being
vertically displaceable” claim limitation. The Examiner relies on the prior
art discussed above with respect to this claim limitation, and does not find
that any other prior art references teach a vertically displaceable strip of the
type required by claim 20. We, therefore, do not sustain the Examiner’s
rejection of claims 28 and 32.
Rejection of Claims 34 and 35
under 35 U.S.C. § 103(a)
Claims 34 and 35 depend from claim 20, and include the “strip being
vertically displaceable” claim limitation. The Examiner relies on the prior
art discussed above with respect to this claim limitation, and does not find
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that any other prior art references teach a vertically displaceable strip of the
type required by claim 20. We, therefore, do not sustain the Examiner’s
rejection of claims 34 and 35.
DECISION
For the foregoing reasons, the Examiner’s decision to reject claims
20–35 is REVERSED, and the Examiner’s decision to reject claims 36–38 is
AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. §
1.136(a)(1)(iv).
AFFIRMED-IN-PART

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