Ex Parte LeroyDownload PDFPatent Trial and Appeal BoardJul 16, 201311731412 (P.T.A.B. Jul. 16, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PIERRE CAROL LEROY ____________ Appeal 2011-005079 Application 11/731,412 Technology Center 3700 ____________ Before JENNIFER D. BAHR, STEFAN STAICOVICI, and GAY ANN SPAHN, Administrative Patent Judges. SPAHN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pierre Carol Leroy (Appellant) seeks our review under 35 U.S.C. § 134 of the Examiner’s rejection of claims 1-17 and 19.1 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 The Examiner withdrew the rejection of claims 18 and 20. Ans. 8. Appeal 2011-005079 Application 11/731,412 2 Claimed Subject Matter The claimed subject matter relates to a “clothes dryer employing an electrically operable oil-filled radiator for providing required heat” and a “child safety barrier for use with a clothes dryer . . . having an opening large enough for [a] child to pass through.” Spec. 1, ll. 11-16. Claims 1, 14, and 19 are the independent claims on appeal. Claim 14, reproduced below, is illustrative of the appealed subject matter. 14. A child safety system for an appliance having a door aperture formed in one wall thereof which is sized sufficiently to enable passage of a child therethrough and into a cavity of the appliance, the door aperture being defined by a peripheral surface disposed within the one wall of the appliance, the appliance further having a door movable between an open position for uncovering the door aperture and a closed position for covering the door aperture, the door is disposed generally planar with the one wall of the appliance in the close position, said child safety system comprising: (a) a child safety device positioned within the door aperture and within the peripheral surface thereof, said child safety device sized to cover a predetermined portion of the door aperture sufficient to prevent passage of the child therethrough when the door is disposed in the open position; and (b) a securing means for releaseably securing said safety device in a position for selectively covering and uncovering the predetermined portion of the door aperture, said securing means including at least a pair of receptacles protruding into the door aperture from the peripheral surface thereof and at least a pair of members, each of said at least a pair of members extending outwardly from a peripheral edge of said child safety device and operatively engaging a respective receptacle. App. Br., Clms. App’x. Appeal 2011-005079 Application 11/731,412 3 Rejections The following Examiner’s rejections are before us for review: I. claims 14-17 are rejected under 35 U.S.C. § 102(e) as anticipated by Daily (US 4,091,548, issued May 30, 1978); II. claim 19 is rejected under 35 U.S.C. § 102(e) as anticipated by Svetlik (US 6,502,859 B1, issued Jan. 7, 2003); III. claims 1-3 and 8-13 are rejected under 35 U.S.C. § 103(a) as unpatentable over Ford (US 2006/0107548 A1, published May 25, 2006), Daily, and Baumanns (US 3,199,568, issued Aug. 10, 1965); and IV. claims 4-7 are rejected under 35 U.S.C. § 103(a) as unpatentable over Ford, Daily, Baumanns, and Kushner (US 3,558,110, issued Jan. 26, 1971). OPINION Rejection I – Anticipation based on Daily Appellant argues that Daily fails to anticipate claim 14’s language of a child safety device “that is positioned within the door aperture 14 and within the peripheral surface 15 thereof.” App. Br. 10. In particular, Appellant argues that “[t]he basket 54 of Daily, that may be construed for the sake of argument as a child safety device, is attached to the door 32 by way of bracket 52 and fasteners 62 and is disposed external to the housing 12 when the door 32 is in open position.” App. Br. 11. The Examiner responds that paragraph (a) of claim 14 as quoted supra is a “statement of intended use” and Daily’s child safety device, i.e., “basket 54[,] is sized sufficiently to prevent passage of a child.” Ans. 12. Appeal 2011-005079 Application 11/731,412 4 Appellant replies that “the Examiner failed to provide any factual evidence supporting” that Daily’s child safety device (basket 54) is sized sufficiently to prevent passage of a child. Reply Br. 2.2 Appellant refutes the Examiner’s response concerning Daily’s child safety device (basket 54) being sized sufficiently to prevent passage of a child by pointing to Daily’s Figures 3 and 4, which evidence “that sufficient space is present between the top of the basket 54 and the peripheral edge of the semicircular opening 26,” in order “for a child to enter the cavity of the appliance over the top or even the side of the basket 54.” Reply Br. 3. We are persuaded by Appellant’s arguments. With respect to Appellant’s argument that the child safety device (Daily’s basket 54) is not “positioned within the door aperture and within the peripheral surface thereof,” we note that when Daily’s door 32 is completely open as shown in Figures 3 and 4, the child safety device (basket 54) is not positioned within the door aperture 26 and within the peripheral surface thereof. Additionally, when Daily’s door 32 is completely closed as shown in Figures 1 and 2, only a small portion of the upturned arms 58 of the mounting bracket 52 is positioned within the door aperture 26 and the peripheral surface thereof; however, Daily’s child safety device (basket 54) is not positioned within the peripheral surface of the door aperture 26. Thus, Appellant is correct that Daily’s child safety device (basket 54) is not positioned as required by claim 14. 2 Although Appellant’s Reply Brief does not have page numbers thereon, page 1 is the page beginning with the line “IN THE UNITED STATES PATENT AND TRADEMARK OFFICE” and ending with the line “updating the summary of claimed subject matter with respect to the,” and the remainder of the pages are numbered pages 2-7 consecutively therefrom. Appeal 2011-005079 Application 11/731,412 5 Moreover, the Examiner has failed to provide factual evidence to support the finding that Daily’s child safety device (basket 54) is sized sufficiently to prevent passage of a child therethrough when the door 32 is disposed in the open position. Daily’s Figures 3 and 4 show the door 32 of the clothes dryer 10 in the open position and the basket 54 mounted on the pins 64 extending from the upturned arms 58 of a bracket 52. Since the basket 54 is capable of pivoting on the pins 64 extending from the upturned arms 58, the basket may be pivoted away from the opening 26 of the clothes dryer 10 so that a child could pass through the opening 26. Thus, Daily’s basket 54 is not sized to prevent passage of a child through the opening 26 when the door 32 is disposed in the open position. Accordingly, we do not sustain the Examiner’s rejection of independent claim 14, and claims 15-17 dependent thereon, under 35 U.S.C. § 102(e) as anticipated by Daily. Rejection II – Anticipation based on Svetlik Independent claim 19 is directed to a child safety device which includes, inter alia, a peripheral frame positioned within the peripheral surface of the door aperture. App. Br., Clms. App’x. Appellant argues that “Svetlik clearly fails to anticipate [the] claimed peripheral frame 110, as Svetlik only provides a pair of vertically disposed side members 59 which do not constitute [a] ‘peripheral frame’.” App. Br. 14. The Examiner responds that “the structure of [sic, Svetlik’s child safety device] must include the framing of the vehicle device in order to meet the claimed peripheral frame.” Ans. 13. Appeal 2011-005079 Application 11/731,412 6 The Examiner’s finding that the “framing of the vehicle device” constitutes the claimed peripheral frame is unreasonable. A person of ordinary skill in the art would not agree that Svetlik’s child safety devices (any of the front safety net assembly 26 and left and right side safety net assemblies 29 each including the respective roof support members 161, 164 and the side safety net assemblies 29 including the respective roof support members 206, 209 of the automobile as the peripheral frame) are “positioned within the peripheral surface of the door aperture” in order to satisfy the remainder of the claim recitation with respect to the peripheral frame. See Svetlik, Abstr., and col. 5, ll. 2-8, 48-51, and 56-65, and col. 6, ll. 10-13, 29- 32, and 39-52. Accordingly, we do not sustain the Examiner’s rejection of claim 19 under 35 U.S.C. § 102(e) as anticipated by Svetlik. Rejection III – Obviousness based on Ford, Daily, and Baumanns Independent claim 1 is directed to a clothes dryer including, inter alia, a housing having a door aperture, a door, a hinge means for hingeably connecting said door to said housing for selectively opening and closing said door aperture, and an electrically operable oil-filled radiator positioned within said housing below a rotating drum. App. Br., Clms. App’x. The Examiner finds that Ford substantially discloses the subject matter of claim 1, but fails to disclose the hinge means, which is taught by Ford, and the electrically operable oil-filled radiator, which is taught by Baumanns. Ans. 9-11. The Examiner concludes that “[i]t would have been obvious to one skilled in the art to combine the teachings of Ford in view of Daily with the features of Baumanns for optimizing the clothes drying Appeal 2011-005079 Application 11/731,412 7 functions with precise structural and energy efficient components.” Ans. 11. Emphasis added. Appellant argues that “the Examiner failed to provide ‘explicit analysis of why the disclosures of the references should be combined’” (App. Br. 22), and “the prior art ‘did not include any hint or suggestion or even the common sense to mount an electrically operable oil-filled radiator below the drum and dry clothes by way of heat rising through the drum at the time of the invention’” (App. Br. 22). Further, Appellant directs the Board’s attention “to paragraph [0003] of Ford, wherein it is clearly disclosed that ‘the ambient air clothes dryer is a clothes dryer devoid of any dedicated heating elements or systems for heating air,’” and paragraph [0006] of Ford which “speaks negatively . . . about the disadvantages of using conventional cloth[es] dr[y]ers that generate heat for drying purposes.” App. Br. 20. The Examiner responds “to [A]ppellant’s argument that there is no teaching, suggestion, or motivation to combine the references,” by “recogniz[ing] that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art.” Ans. 14 (citing In re Fine, 837 F.2d 1071 (Fed. Cir. 1988); In re Jones, 958 F.2d 347 (Fed. Cir. 1992); and KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398 (2007)). We, like the Examiner, understand Appellant’s arguments to be attacking the Examiner’s conclusion, and we are persuaded that the Examiner’s articulated reasoning for combining Ford, Daily, and Baumanns, Appeal 2011-005079 Application 11/731,412 8 i.e., “for optimizing the clothes drying functions with precise structural and energy efficient components,” lacks rational underpinning. See KSR, 550 U.S. at 418 (holding that “rejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.”). As pointed out by Appellant, Ford specifically states that his “ambient air clothes dryer is a clothes dryer devoid of any dedicated heating elements or systems for heating the air.” Ford 1, para. [0003]. Thus, the Examiner’s proposed addition of the oil heating appliance of Baumanns would not serve the purpose of optimizing energy efficiency. Ans. 11. Rather, the addition of Baumanns’s oil heating appliance would use more energy than the ambient air clothes dryer of Ford. Thus, the Examiner’s articulated reasoning for combining Ford, Daily, and Baumanns lacks rational underpinning. Accordingly, we do not sustain the Examiner’s rejection of independent claim 1, and claims 2, 3, and 8-13 dependent thereon, under 35 U.S.C. § 103(a) as unpatentable over Ford, Daily, and Baumanns. Rejection IV – Obviousness based on Ford, Daily, Baumanns, and Kushner The Examiner’s rejection of claims 4-7 relies on the same articulated reasoning which was found to lack rational underpinning for the reason discussed supra with respect to the rejection of claim 1. Accordingly, for the same reason as discussed supra with respect to the rejection of claim 1, we do not sustain the Examiner’s rejection of claims 4-7 under 35 U.S.C. § 103(a) as unpatentable over Ford, Daily, Baumanns, and Kushner. Appeal 2011-005079 Application 11/731,412 9 DECISION We reverse the Examiner’s decision to reject claims 1-17. REVERSED hh Copy with citationCopy as parenthetical citation