Ex Parte Larsen

Board of Patent Appeals and Interferences

Jul 12, 2010

11091392 (B.P.A.I. Jul. 12, 2010)

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.
11/091,392 03/29/2005 Christopher A. Larsen LAR002-00269 3014
173 7590 07/12/2010
WHIRLPOOL PATENTS COMPANY - MD 0750
500 RENAISSANCE DRIVE - SUITE 102
ST. JOSEPH, MI 49085
EXAMINER
BASICHAS, ALFRED
ART UNIT PAPER NUMBER
3743
MAIL DATE DELIVERY MODE
07/12/2010 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CHRISTOPHER A. LARSEN
____________

Appeal 2009-008757
Application 11/091,392
Technology Center 3700
____________

Before LINDA E. HORNER, JOHN C. KERINS, and
STEVEN D.A. MCCARTHY, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-008757
Application 11/091,392

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STATEMENT OF THE CASE
Christopher A. Larsen (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 1-8 and 11-13. Claims 9
and 10 have been allowed. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
THE INVENTION
Appellant’s claimed invention is to an oven door assembly having
inner and outer insulating dead air spaces and a convection air passage.
Spec. 1:5-7. Claim 1, reproduced below, is representative of the subject
matter on appeal.
1. A cooking appliance comprising:
an oven cavity having an frontal opening;
a control panel for selecting a desired cooking operation;
at least one heating element for heating the oven cavity
based on the desired cooking operation; and
a door assembly for selectively closing the frontal
opening for the desired cooking operation, said door assembly
including a door panel having an outermost surface provided
with a central opening, an outer transparent pane arranged in
the central opening, an inner transparent pane spaced from the
outer transparent pane, said inner and outer transparent panes
defining an outer dead air space therebetween, an upper dead
air space arranged above the outer transparent pane, a lower
dead air space arranged below the outer transparent pane and an
inner window pack having first and second, substantially
parallel window panes spaced one from the other to establish an
inner dead air space, said inner window pack being spaced from
the outer transparent pane so as to establish a passage for
receiving a flow of ambient air that passes from outside the
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cooking appliance through the door assembly, wherein the
upper, lower and inner dead air spaces, in combination with the
passage, establish a thermal barrier so as to minimize heat
transfer from the oven cavity to the outermost surface of the
door panel.
THE REJECTION
Appellant seeks review of the Examiner’s rejection of claims 1-8 and
11-13 under 35 U.S.C. § 103(a) as being unpatentable over U.S. Patent
3,889,100 to Dills, issued June 10, 1975.
ISSUES
The issues presented by this appeal are:
In the rejection of claim 1, did the Examiner articulate a sufficient
reason as to why one having ordinary skill in the art would have added the
additional dead air space to the oven of Dills in the location to the left of the
air passage of Dills on the outer side of the door?
Would the modified oven of Dills, as proposed by the Examiner,
include:
• An upper dead air space arranged above the outer transparent pane
of the outer dead air space and a lower dead air space arranged
below the outer transparent pane of the outer dead air space, as
called for in claim 1?
• An inner transparent pane arranged substantially parallel to the
outer transparent pane, as called for in claim 2?
• An outer transparent pane and an inner transparent pane
constituting an outer window pack, as called for in claim 3?
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• An outer window pack substantially parallel to an inner window
pack, as called for in claim 4?
• The passage including an inlet portion arranged below the lower
dead air space, as called for in claim 5?
In the rejection of claim 12, did the Examiner articulate a sufficient
reason as to why one having ordinary skill in the art would have modified
the oven of Dills to have at least one outlet opening arranged below the door
for exhausting the flow of air from the cooling duct?
ANALYSIS
Claims 1 and 11
Appellant argues claims 1 and 11 as a group. App. Br. 8-11. We
select claim 1 as the representative claim, and claim 11 stands or falls with
claim 1. See 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner found that Dills discloses all the elements of claim 1
except that Dills discloses a single outer transparent pane instead of spaced
panes defining an outer dead air space. Ans. 3-4. The Examiner concluded
that it would have been obvious to have incorporated the inner window pack
arrangement of Dills into the outer window section of Dills, since it has been
held that to provide duplicate parts for multiplied effect is not the type of
innovation for which a patent is granted. Ans. 5 (citing St. Regis Paper Co.
v. Bemis Co., 549 F.2d 833 (7th Cir. 1977)). The Examiner further explained
that it would have been evident to one of ordinary skill in the art that a
double pane with an air space provides enhanced insulation over a single
pane and that it would have been obvious “to replace the outer window pane
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96 of Dills with a double window pane so as to enhance insulation and
comfort of the user.” Ans. 7.
Appellant contends that the Examiner’s rejection of claim 1 is in error
because (1) the Examiner failed to articulate a sufficient reason as to why
one having ordinary skill in the art would have added the additional dead air
space to Dills in the location to the left of the air passage of Dills on the
outer side of the door, and (2) even if the window pack of Dills were
duplicated on the outside of air channel 120, Dills would still lack the upper
and lower dead air spaces required by claim 1. App. Br. 10; Reply Br. 3.
As to the Examiner’s articulated reasoning, we find that it is based on
a rational underpinning. In particular, we agree with the Examiner that it
was understood by those having ordinary skill in the art that a double pane
with an air space provides enhanced insulation over a single pane. Such a
construction was well known in the art as evidenced by Dills, which
describes that the construction of its “double window pack 102, comprising
a pair of glass panes 104 and 106 which are held apart by a peripheral spacer
frame 108, and assembled together by a channel member 110 which extends
completely around the window pack and is fastened together at its two ends
to form a complete sub-assembly,” is “standard in this art.” Dills, col. 4,
ll. 3-8. Dills further discloses that this double window pack 102, in
conjunction with a layer of insulating material 112, serves “as a suitable
thermal insulating means to retain the heat within the oven cooking cavity
12.” Dills, col. 4, ll. 11-13. We further agree with the Examiner that one
having ordinary skill in the art would have known that to provide enhanced
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insulation over the single outer pane 96 of Dills, it would have been obvious
to replace the single outer pane 96 with the same double window pack
construction. Thus, the Examiner’s reason for modifying the single outer
pane 96 of Dills “to enhance insulation and comfort of the user” is based on
a rational underpinning.
Appellant argues that the Examiner has not articulated a reason “as to
why the additional air spaces would be to the left of the air passage of Dills
on the outer side of the door as opposed to simply being on the inner side of
the door to achieve multiple effect.” App. Br. 10. We disagree. The
Examiner explained that the proposed modification is to replace the single
outer pane 96 with a window pack similar in construction to the window
pack 102 of Dills. In order to replace the pane 96 with a window pack, the
additional air space would be on the outer side of the door since the pane 96
is on the outer side of door. Dills, col. 3, ll. 65-67. Further, the Examiner
explained that this proposed modification was to provide enhanced
insulation and comfort of the user. We understand this explanation to mean
that in the event that any heat from the oven cavity were to pass across
window pack 102 and passage 120, the addition of another air space behind
the outer pane of the oven door would provided enhanced insulation and
thus added assurance that the outer surface of the door would remain a
comfortable temperature for the user. Thus, the Examiner provided a
sufficient explanation of what would have led a person having ordinary skill
in the art to add the additional air space on the outer side of the door.
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Appellant further argues that one having ordinary skill in the art
would not be led to replace outer pane 96 with a double pane, because the
double pane would interfere with the turbulent, cooling air flow through the
passage 120. Reply Br. 3. Dills discloses that the cooling air is more
turbulent in the area between the first pane 96 and the central pane 104
because of the relatively wide area between the glass panes. Dills, col. 4,
ll. 31-34. As is visible in the Figure of Dills, this relatively wide area is
formed because the plate 122 in the area along the bottom and top edges of
the window 90 is turned rearwardly. Dills, col. 4, ll. 29-32; Figure. Thus, a
person having ordinary skill in the art would understand that the relative
width of this portion of the passage behind window 90 could be adjusted,
based on the configuration of plate 122, so as to maintain turbulent flow
even with the addition of a window pack in place of pane 96.
Further, Appellant has not provided sufficient objective evidence to
substantiate the assertion that the use of a window pack in place of pane 96
in Dills, absent any further modification to the plate 122 or passage 120,
would destroy the turbulent flow through the portion of the passage between
the window packs. An attorney’s arguments in a brief cannot take the place
of evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). As such,
Appellant’s arguments have not persuaded us that the Examiner’s articulated
reason to modify the oven door of Dills in the manner claimed is based on an
insufficient rationale.
Appellant further argues even if the oven of Dills were modified, the
modified oven would not have the upper and lower dead air spaces arranged
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above and below the outer transparent pane, as called for in claim 1. App.
Br. 10, Reply Br. 3. We agree with the Examiner’s findings that Dills
discloses upper and lower dead air spaces (each formed between panel 122,
inner door liner 52, and insulation guard 114). Ans. 3, see also Dills, col. 3,
l. 11 and col. 4, ll. 14-15, 22; Figure. We further agree with the Examiner’s
finding that the upper and lower dead air spaces of Dills are arranged above
and below the outer pane 96, and thus were one to replace outer pane 96
with a window pack, as proposed by the Examiner, the upper and lower dead
air spaces would remain arranged above and below the outer pane of the
outer window pack. Ans. 3.
Appellant’s argument appears to read the word “directly” into the
language of claim 1. We see no such limitation in the language of claim 1
that would require the upper and lower dead air spaces to be arranged
“directly” above and below the outer pane. The Examiner’s findings are
based on the broadest reasonable interpretation of the claim language, which
requires only that the upper and lower dead air spaces are arranged above
and below (in a vertical sense) the outer pane.
As such, we will sustain the rejection of claim 1 under § 103. Claim
11 falls with claim 1.
Claim 2
Claim 2 depends from claim 1 and further recites that “the inner
transparent pane is arranged substantially parallel to the outer transparent
pane.” We agree with the Examiner’s finding that the window pack 102 of
Dills has panes 104 and 106 substantially parallel to each other. Ans. 7, see
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also Dills, Figure. We further agree with the Examiner’s finding that were
one to replace the outer pane 96 of Dills with a window pack construction
similar to window pack 102, then the resulting oven would have an inner
transparent pane arranged substantially parallel to the outer transparent pane.
Id. As such, we will sustain the rejection of claim 2 under § 103.
Claim 3
Claim 3 depends from claim 1 and further recites that “the outer
transparent pane and the inner transparent pane constitute an outer window
pack.” We agree with the Examiner’s finding that were one to replace the
outer pane 96 of Dills with a window pack construction similar to window
pack 102, then the resulting oven would have the claimed outer window
pack. Ans. 7. As such, we will sustain the rejection of claim 3 under § 103.
Claim 4
Claim 4 depends from claim 3 and further recites that “the outer
window pack is substantially parallel to the inner window pack.” We agree
with the Examiner’s finding that since the outer single pane 96 of Dills is
parallel to inner window pack 102, then were one to replace the outer pane
96 of Dills with a window pack construction similar to window pack 102 of
Dills, then the resulting oven would have an outer window pack
substantially parallel to the inner window pack, as claimed. Ans. 7, see also
Dills, Figure (showing outer pane 96 substantially parallel to double window
pack 102). As such, we will sustain the rejection of claim 4 under § 103.
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Claims 5-8
Claim 5 depends from claim 1 and further recites that “the passage
includes an inlet portion arranged below the lower dead air space.”
Claims 6-8 depend from claim 5. We disagree with the Examiner’s finding
that the lower end of the lower dead air space in Dills (indicated by numerals
58 and 62) is slightly above the inlet 124 of passage 120. Ans. 8. In
particular, as shown in the Figure of Dills, the lower end of the lower dead
air space in Dills is not located at the point marked with reference numerals
58 and 62. Rather, the lower dead air space extends to the left and below
this point, so that the lower end of the lower dead air space is beside, rather
than slightly above, the inlet 124. Since the Examiner’s rejection of
claims 5-8 is based on this erroneous finding of fact, we will not sustain the
rejection of claims 5-8 under § 103.
Claims 12 and 13
Independent claim 12 recites a cooking appliance having, inter alia,
an oven cavity, a door assembly, a cooling duct extending about a portion of
the oven cavity, at least one inlet opening arranged above the oven cavity
and leading to the cooling duct, and at least one outlet opening arranged
below the door for exhausting the flow of air from the cooling duct.
The Examiner found that Dills discloses substantially all of the
elements of claim 12 except that Dills does not disclose at least one outlet
opening arranged below the door for exhausting the flow of air from the
cooling duct. Ans. 5. The Examiner concluded that it would have been
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obvious to modify the exhaust of Dills to place the outlet below the door as a
matter of design choice to provide for spatial considerations. Id.
Appellant argues that the airflow in Dills goes across the bottom and
sides of the oven cavity and exits from the top of the oven cavity at exhaust
42, and it is not obvious to change the direction of the flow of air as
suggested by the Examiner. App. Br. 14. Appellant further asserts that the
Examiner failed to provide substantial evidence to show why a person
skilled in the art would have been led to depart from the teachings of Dills in
the manner claimed. App. Br. 15; Reply Br. 4-5.
In this instance, we find that the Examiner failed to adequately
articulate a reason with rational underpinning for why a person having
ordinary skill in the art would have modified the oven of Dills to change the
airflow so that the air from the cooling duct is exhausted through the
opening below the oven door. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007). The only reason provided by the Examiner is that one
would modify Dills “for spatial considerations.” Ans. 5. The Examiner has
not identified any problem with the configuration of the oven of Dills or
other reason that would have prompted such a modification. Without more,
we find this reasoning inadequate. Thus, we will not sustain the rejection of
claim 12, or its dependent claim 13, under § 103.
CONCLUSIONS
The Examiner articulated a sufficient reason as to why one having
ordinary skill in the art would have modified Dills in the manner recited in
claim 1.
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The oven of Dills, as modified, would include:
• An upper dead air space arranged above the outer transparent pane
of the outer dead air space and a lower dead air space arranged
below the outer transparent pane of the outer dead air space, as
called for in claim 1.
• An inner transparent pane arranged substantially parallel to the
outer transparent pane, as called for in claim 2.
• An outer transparent pane and an inner transparent pane
constituting an outer window pack, as called for in claim 3.
• An outer window pack substantially parallel to an inner window
pack, as called for in claim 4.
The oven of Dills, as modified, would not include a passage including
an inlet portion arranged below the lower dead air space, as called for in
claim 5.
The Examiner failed to articulate a sufficient reason as to why one
having ordinary skill in the art would have modified the oven of Dills in the
manner recited in claim 12.
DECISION
The decision of the Examiner to reject claims 1-4 and 11 is
AFFIRMED. The decision of the Examiner to reject claims 5-8, 12, and 13
is REVERSED.

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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) (2007).

AFFIRMED-IN-PART

nhl

WHIRLPOOL PATENTS COMPANY - MD 0750
500 RENAISSANCE DRIVE - SUITE 102
ST. JOSEPH MI 49085