Ex Parte HEDERSTIERNA et alDownload PDFPatent Trial and Appeal BoardMay 16, 201814653178 (P.T.A.B. May. 16, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/653,178 06/17/2015 826 7590 05/18/2018 ALSTON & BIRD LLP BANK OF AMERICA PLAZA 101 SOUTH TRYON STREET, SUITE 4000 CHARLOTTE, NC 28280-4000 FIRST NAMED INVENTOR Rickard HEDERSTIERNA 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. 015202/463666 9384 EXAMINER HERRING, BRENT W ART UNIT PAPER NUMBER 3633 NOTIFICATION DATE DELIVERY MODE 05/18/2018 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): usptomail@alston.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RICKARD HEDERSTIERNA, DANIEL MESA, and PONTUS KABERG Appeal2017-007394 Application 14/653, 178 Technology Center 3600 Before BRETT C. MAR TIN, LYNNE H. BROWNE, and NATHAN A. ENGELS, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the rejection of claims 1-18. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal2017-007394 Application 14/653, 178 CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A cutlery tray module for a dishwasher, said cutlery tray module comprising a bottom surface, adapted for substantially horizontal reception of cutlery items, said bottom surface comprising: a plurality of cutlery holding elements, adapted to hold said cutlery items, at least one elongated indentation, having a longitudinal extension in a direction (D), wherein the at least one elongated indentation comprises an essentially smooth area, and a first supporting area adjacent the elongated indentation, and a second supporting area adjacent the elongated indentation, the second supporting area opposing the first supporting area on an opposite side of the elongated indentation relative to a width of the elongated indentation, wherein the at least one indentations comprises a first side wall extending from the first supporting area to the essentially smooth area of the at least one elongated indentation, and a second side wall extending from the second supporting area to the essentially smooth area of the at least one elongated indentation, wherein at least a number of said cutlery holding elements are arranged such that said cutlery holding elements are adapted to hold said cutlery items essentially transversely, with respect to said direction (D), and 2 Appeal2017-007394 Application 14/653, 178 across said elongated indentation between the first supporting area and the second supporting area, wherein each of the first supporting area and the second supporting area includes at least one of the cutlery holding elements, and wherein the first supporting area and the second supporting area are fixedly and permanently connected to the elongated indentation in an elevated position relative to the essentially smooth area of the at least one elongated indentation to define a single, contiguous piece of the bottom surface. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Wendt Miele Graute US 2004/0079713 Al US 2007/0119801 Al US 2010/0155280 Al REJECTIONS Apr. 29, 2004 May 31, 2007 June 24, 2010 Claims 1-15, 17, and 18 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Graute and Miele. Claim 16 1 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Graute, Miele, and Wendt. 1 The Non-Final Action lists the claim rejected as unpatentable over Graute, Miele, and Wendt as claim 14. See Non-Final Act. 6. However, the explanation discusses the limitations of claim 16. Moreover, claim 14 stands rejected in the previous rejection. Accordingly, we understand the references to claim 14 to be typographical errors and claim 16 to stand rejected on this ground of rejection. 3 Appeal2017-007394 Application 14/653, 178 DISCUSSION The Examiner finds that Graute discloses all of the limitations of independent claims 1 and 1 7 except for "two supporting areas [that] are permanently connected to the elongated indentation in an elevated position relative to the indentation to define a single, contiguous piece with the bottom surface." Non-Final Act. 4. The Examiner finds that "Miele discloses a cutlery tray module suitable for a dishwasher wherein first and second supporting areas are fixedly and permanently connected to elongated non-supporting spaces there between in an elevated position relative thereto defining a single, contiguous piece with the bottom surface." Id. Based on these findings, the Examiner determines that it would have been obvious "to make the supporting areas permanently connected to the elongated indentation in order to simplify construction such that the tray can be all molded from a single piece of material providing economic savings." Id. at 5. The Examiner also cites several cases in support of this reasoning. See id. In view of the following discussion, however, we need not address these cases. Appellants contend that the proposed modification would render Graute unsuitable for its intended purpose. See Appeal Br. 11. In support of this contention, Appellants argue that "[t]he purpose and function of Graute's design is to have the central insert 30 be movable and not fixed with respect to the lateral inserts 10, 20." Id. Appellants explain that this arrangement provides a cutlery tray that accommodates larger dishware without reducing the space available for cutlery or making the tray harder to use. See id. (citing Graute i-f 7). Appellants note that "Graute' s entire rationale for including the center insert 30 and positioning it between the 4 Appeal2017-007394 Application 14/653, 178 movable lateral inserts 10, 20 is to 'allow the space within the washing tub of the dishwasher to be advantageously utilized.'" Id. (citing Graute i-f 11 ). If a proposed modification would render the prior art invention being modified unsatisfactory for its intended purpose, then there is no suggestion or motivation to make the proposed modification. In re Gordon, 733 F.2d 900 (Fed. Cir.1984). Describing its field of invention, Graute states that its invention "relates to a cutlery tray for a dishwasher, including a frame extendably supported within a washing tub." Graute i-f 2 (emphasis added). Similarly, Graute's Summary further states that "the present invention provides a cutlery tray for a dishwasher including a frame extendably disposed in a washing tub and a plurality of inserts movably disposed on the frame and adapted to hold dishware. Id. at i-f 8 (emphasis added). Moreover, in the introductory paragraph of the Detailed Description Graute states that: the present invention is related to a cutlery tray including a frame extendably supported within a washing tub and a plurality of inserts which are movably mounted on said frame and on which may be placed dishware items to be washed, especially cutlery, at least one of the inserts being mounted on the frame in such a way that it is horizontally displaceable. Id. at i-f 16. In fact we find no reference in Graute to an embodiment wherein the inserts are not extendable and movable. See generally id. Thus, the intended purpose of Graute is to provide a cutlery tray having extendable and movable inserts. See id. As Graute' s intended purpose is to provide extendable and movable inserts, the Examiner's proposed modification of permanently connecting these inserts (see Non-Final Act. 5) would render Graute's device unsuitable for its intended purpose. Accordingly, the Examiner's reasoning lacks rational underpinning. 5 Appeal2017-007394 Application 14/653, 178 For this reason, we do not sustain the Examiner's decision rejecting claims 1 and 17, and their respective dependent claims, 2-15 and 18. The Examiner's rejection of claim 16 relies upon the same unsupported reasoning as the rejection of claim 1. Accordingly, we likewise do not sustain the Examiner's decision rejecting claim 16. DECISION The Examiner's rejections of claims 1-18 are REVERSED. REVERSED 6 Copy with citationCopy as parenthetical citation