Ex Parte Freeman et alDownload PDFPatent Trial and Appeal BoardAug 31, 201813832213 (P.T.A.B. Aug. 31, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/832,213 03/15/2013 46726 7590 09/05/2018 BSH Home Appliances Corporation 100 Bosch Boulevard NEW BERN, NC 28562 FIRST NAMED INVENTOR John Freeman 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. 2012P02895US 6735 EXAMINER YABUT, DANIEL D ART UNIT PAPER NUMBER 3656 NOTIFICATION DATE DELIVERY MODE 09/05/2018 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): MBX-NBN-IntelProp@bshg.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN FREEMAN, SAMUEL HARWARD, and JEREMIAH NASH Appeal2017-008515 Application 13/832,213 Technology Center 3600 Before RICHARD H. MARSCHALL, ARTHUR M. PESLAK, and SEAN P. O'HANLON, Administrative Patent Judges. MARSCHALL, Administrative Patent Judge. DECISION ON APPEAL Appellant1 seeks our review under 35 U.S.C. § 134(a) of the Examiner's decision rejecting claims 1-35. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellant is the Applicant, BSH Home Appliances Corporation, which the Appeal Brief identifies as the real party in interest. Appeal Br. 3. Appeal2017-008515 Application 13/832,213 THE CLAIMED SUBJECT MATTER The claimed subject matter relates to "an encoder selector for a module of a household appliance, and more particularly, to a dual-encoder ON/OFF selector for a module of a household cooking appliance." Spec. ,r 1. Claims 1, 15, and 35 are independent. Claim 1 is reproduced below. 1. A dual-encoder ON/OFF selector for a cooking module of a household appliance, the cooking module for performing a cooking function, the dual-encoder ON/OFF selector compnsmg: a rotatable bezel controlling at least one of activation and deactivation of a cooking operation performed by the cooking module, wherein the rotatable bezel is configured to be rotatable between an ON position and an OFF position for turning ON and OFF the cooking operation performed by the cooking module, wherein the rotatable bezel includes an opening configured to receive a rotatable control knob extending through the opening in either direction such that the rotatable control knob is concentrically arranged with the rotatable bezel. Appeal Br. 27 (Claims App.). THE REJECTIONS Appellant seeks review of the following rejections: 1. Claims 1-26, 29, and 32-35 under 35 U.S.C. § I03(a) as unpatentable over Wylie2 and Strutin. 3 2. Claims 27-31 under 35 U.S.C. § I03(a) as unpatentable over Wylie, Strutin, and Rodriguez. 4 2 U.S. Patent Pub. 2004/0070574 Al, pub. Apr. 15, 2004 ("Wylie"). 3 U.S. Patent No. 8,136,442 B2, issued Mar. 20, 2012 ("Strutin"). 4 European Pat. App. Pub. No. EP 2,587,163 Al, pub. May 1, 2013 ("Rodriguez"). 2 Appeal2017-008515 Application 13/832,213 ANALYSIS With respect to claim 1, the Examiner found that Wylie discloses the claimed rotatable bezel and control knob, and that Wylie's rotatable bezel sets the oven-cooking mode. Final Act. 2-3. The Examiner found that Wylie does not expressly disclose the bezel configured to rotate between an ON and OFF position. Id. at 3. The Examiner further found that Strutin discloses a rotatable bezel controlling at least one of activation and deactivation of a cooking operation, and configured to rotate between an ON and OFF position. Id. As examples, the Examiner found that Strutin discloses "an activated mode e.g. baking as well as an OFF mode as indicated in Fig. 2" and that turning the bezel causes the oven to begin reheating. Id.; Adv. Act. 2 (mailed Aug. 23, 2016). The Examiner determined that it would have been obvious to modify Wylie's bezels to rotate between ON and OFF positions "for the purpose of allowing the user to select such modes." Adv. Act. 2. The Examiner also found that one could provide Wylie's bezel with an OFF setting such as Strutin's bezel, "as doing so would yield the predictable result of providing an option to tum OFF the cooking module" via Wylie's bezel. Id.; see also Ans. 4 ("It would have been obvious ... to modify the outer bezel in Wylie to include an 'OFF' position to provide a means to tum the oven module off."). Appellant argues that although Strutin teaches an outer wheel having an OFF selection, it does not have a position that activates or deactivates individual cooking modules because Strutin discloses a single, multi- modality controller. Appeal Br. 14. According to Appellant, turning off the entire appliance is not the same as turning off individual modules. Id. In addition, Appellant relies on Strutin's use of a separate START button as 3 Appeal2017-008515 Application 13/832,213 evidence that its rotatable bezel does not begin the cooking process----only after the ST ART button is pressed will cooking or preheating begin. Id. at 14--17; Reply Br. 9-11. Appellant also argues that there would be no reason to combine the references because Wylie discloses use of multiple knobs while Strutin focuses on using a single controller, and Strutin therefore teaches away from the proposed combination. Id. at 18-19. According to Appellant, the claimed invention is directed to a unique combination of features that "provides a universal way of turning various modules on and off, irrespective of the manufacturer, with the rotatable bezel of the selector while making their knobs all look uniform (i.e., look the same) and operate in the same way." Reply Br. 3; see also id. at 7, 9, 12, 16; Appeal Br. 4, 13, 20. In response to Appellant's arguments, the Examiner found that Appellant's argument that Strutin does not teach the claimed OFF mode fails to address the Examiner's proposed combination. Ans. 3--4. The Examiner also found that initiating a preheating operation discloses turning ON or activating a cooking operation as required by claim 1, and that Strutin discloses multiple ways to do so, including turning Strutin's outer bezel 14. Id. at 5. Regarding the proposed combination, the Examiner found that Strutin does not teach away, and that the combination would not render Wylie inoperable for its intended purpose. Id. at 6-7. After review of the record and Appellant's arguments, we are not persuaded that the Examiner erred in rejecting claim 1 as obvious over Wylie and Strutin. Wylie discloses knobs on a cooking appliance such as an oven/range, where the knobs include outer bezels for selecting a mode of cooking. Wylie ,r 9, Figs. 1, 2. Strutin discloses a control knob for dual 4 Appeal2017-008515 Application 13/832,213 ovens, where the controller includes a rotatable bezel. Strutin 3 :47--49, Figs. IA, IB, 2. Strutin's bezel can be rotated to select a number of options, including "OFF," "Bake," "Roast," and "Broil." Id. at 3 :55-58, Fig. 2. Appellant argues that Strutin fails to disclose the claimed "OFF" mode because it fails to tum off selected modules and instead turns off the entire appliance, but we disagree. See Appeal Br. 14. Claim 1 requires an OFF position that deactivates and turns off a cooking operation. Appeal Br. 27 (Claims App.). The claim does not require the OFF position to tum off only one cooking module, while leaving others on. See id. Turning off the entire appliance will undoubtedly tum off all cooking operations, and that act will deactivate and tum off a "cooking operation," which is all that claim 1 requires. In addition, Appellant's argument fails to address the Examiner's proposed combination, which involves modifying Wylie's multiple knobs by incorporating Strutin's OFF position. "[O]ne cannot show non-obviousness by attacking references individually where ... the rejections are based on combinations of references." In re Keller, 642 F.2d 413,426 (CCPA 1981). Appellant's argument directed to Strutin alone, relying on its use of a single knob, fails to establish error without addressing the modified version of Wylie that forms the basis for the rejection. Appellant's argument that Strutin fails to disclose the ON limitation because Strutin requires pressing a START button before cooking will occur also fails to acknowledge the breadth of claim 1. Claim 1 refers to activation of a cooking operation and an ON position that turns ON the cooking operation. Appeal Br. 27 (Claims App.). Claim 1 does not require the word "ON" to be printed on the bezel, but merely requires an ON "position." Id. Accordingly, the Examiner's reliance on the various "activated" cooking 5 Appeal2017-008515 Application 13/832,213 modes, such as baking on Strutin's bezel, as disclosing ON positions comports with the claim language. Final Act. 3. The claims do not require that moving the bezel to the ON position activates the cooking operation, in the sense that heat is generated for cooking, without any further steps or actions. Appeal Br. 27 (Claims App.). Appellant's specification supports this interpretation by disclosing a bezel with an ON position, but also disclosing an inner control knob that can be turned to initiate heating for certain cooking operations. For example, the specification describes operation of knob 118 for a gas burner that provides direct connection to stem 140 of gas valve 13 8 through opening 120 in bezel 116, such that the gas flows to initiate cooking only by turning knob 118, not by turning the bezel to the ON position alone. See Spec. ,r 40, Fig. 9. 5 This construction does not read out the import of the claimed ON position, because moving the bezel to an ON position remains a necessary predicate before a cooking operation (e.g., begin heating a burner or cooking element) may begin. With that construction in mind, Appellant's argument that Strutin requires another step to begin cooking, such as pressing a START button, misses the mark. Claim 1 is still satisfied as long as selecting the cooking modes on the bezel's dial are part of the process required to initiate the cooking operation. We are, therefore, not apprised of error in the Examiner's findings that 5 Other portions of the specification seem to confirm that rotating the bezel to the ON position merely supplies power to the module and allows the user to tum the knob (a second step after moving bezel to the ON position) to provide heat for the cooking operation. See Spec. ,r,r 33-34 (describing microswitch activated by bezel that supplies power to module), 3 6 ( describing knob 118 inserted through opening 120 in outer bezel 122 to engage control device to control operation of module). 6 Appeal2017-008515 Application 13/832,213 selecting the positions on Strutin's bezel disclose the ON requirement of claim 1. Moreover, even if claim 1 required the ON position to activate a cooking operation (begin heating a module) without any further actions required by the user, the Examiner properly relied on Strutin's disclosure that moving the bezel to "roast" "causes the oven to begin to preheat." Ans. 5 (citing Strutin, 4:57-58) (emphasis added); see also Adv. Act. 2. Appellant argues that Strutin requires further actions and selections to specify the time and temperature for the cooking operation, and hitting START, before the cooking operation will begin, but none of those steps undermine the Examiner's finding that preheating will "begin" as soon as the "roast" selection is made, while the further selections are made. Strutin even touts this immediate preheating operation, before the "level two" selections are made, as "advantageous to facilitate quick preparation of the oven for cooking." Strutin, 4:57---61. There would be little advantage in quick preparation of the oven for cooking if the preheating did not actually "begin" when Strutin indicates, as soon as the user moves the bezel to "roast." See id. We are also not apprised of error in the Examiner's finding that Strutin does not teach away from the proposed combination and the determination that it would have been obvious to modify Wylie with features from Strutin's bezel. A reference is said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant. In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). A reference does not teach away, however, 7 Appeal2017-008515 Application 13/832,213 if it merely expresses a general preference for an alternate invention but does not "criticize, discredit, or otherwise discourage" investigation into the claimed invention. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Here, Appellant's teaching away argument rests on the fact that Wylie discloses multiple controllers while Strutin discloses a single, multi-modal controller. Appeal Br. 18-19. As the Examiner correctly found, the proposed combination-adding the ON/OFF positions of Strutin----does not interfere with the multiple controller operation in Wylie or render those controllers inoperable. See Ans. 6. Similarly, Strutin does not teach that its ON/OFF functionality is limited to single, multi-modal controllers, or discuss the disadvantages in using such an approach on a multiple controller appliance such as Wylie. There is no teaching away here, and the Examiner supported the combination with sound reasoning based on rationale underpinnings. See Final Act. 3; Adv. Act. 2; Ans. 6-7. Based on the foregoing, we sustain the rejection of claim 1. Appellant raises the same arguments with respect to claims 2-35, and we therefore sustain the rejection of those claims for the same reason as claim 1. See Appeal Br. 20-25. 6 6 Appellant raises a number of arguments regarding the rejection of claims 15 and 27-31 based on Wylie, Strutin, and Rodriguez, but those arguments merely state that Rodriguez does not remedy the alleged deficiencies in the rejection of claim 1, and otherwise repeats arguments made with respect to claim 1. See Appeal Br. 21-25. Because these arguments do not allege that the additional limitations in claims 27-31 provide additional reasons to reverse the Examiner's rejection of these claims, they rise and fall with our analysis of claim 1. 8 Appeal2017-008515 Application 13/832,213 DECISION We affirm the decision of the Examiner to reject claims 1-35 under 35 U.S.C. § 103(a). 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)(l )(iv). AFFIRMED 9 Copy with citationCopy as parenthetical citation