Ex Parte Schessl et alDownload PDFPatent Trial and Appeal BoardJun 24, 201310575297 (P.T.A.B. Jun. 24, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte BERND SCHESSL and RAINER SCHUTZ ____________________ Appeal 2011-006081 Application 10/575,297 Technology Center 3700 ____________________ Before: WILLIAM V. SAINDON, SCOTT A. DANIELS, and JEREMY M. PLENZLER, Administrative Patent Judges. SAINDON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-006081 Application 10/575,297 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 13-24, 31, and 32. We have jurisdiction under 35 U.S.C. § 6(b). The Claimed Subject Matter Claim 13, reproduced below, is illustrative of the claimed subject matter. 13. A crockery basket comprising: a framework for retaining items to be washed, the framework including a common edge; at least one rack for engaging items to be washed to support the retention of such items relative to the framework; and a plurality of holding elements for holding the at least one rack at different height positions on the crockery basket, the plurality of holding elements being secured on the common edge along a single side of the framework, wherein said holding elements remain secured to the framework when the rack is disengaged from the holding elements and the rack is moved from one of the holding elements to another of the holding elements to change the height position. References The Examiner relies upon the following prior art references: Remmers Luukkonen Smith US 4,735,325 US 5,027,959 US 5,480,035 Apr. 5, 1988 Jul. 2, 1991 Jan. 2, 1996 Rejections I. Claim 32 is rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the enablement requirement. Appeal 2011-006081 Application 10/575,297 3 II. Claims 13-20 and 22-24 are rejected under 35 U.S.C. § 102(b) as anticipated by Smith. III. Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable over Smith. IV. Claims 13-22 and 31 are rejected under 35 U.S.C. § 103(a) as unpatentable over Smith, Remmers, and Luukkonen. SUMMARY OF DECISION We AFFIRM-IN-PART. OPINION Rejection I – Enablement The Examiner’s rejection is predicated on an observation that the scope of claim 32, which depends from independent claim 31, covers a crockery basket having only one holding element and that it would be impossible, with only one holding element, to move the rack between different height positions (there being no other holding element to hold the rack at a different height position). Ans. 4. Appellants counter that “Figures 1 and 7” show “holding element 5” as “includ[ing] a number of pairs of arms.” App. Br. 6. However, as the Examiner points out, there is no figure 7, and it is fixing ladders 4, not holding elements 5, that have a number of pairs of arms. See Ans. 8-9. Holding elements 5 are the pairs of arms on fixing ladders 4. Spec., para. [021] (“fixing ladders 4 with holding elements 5 at different height positions for racks 3”) (as amended). Accordingly, the Examiner’s position that one holding element 5 cannot provide different height positions while remaining secured to the framework is reasonable. In contrast, Appellants’ arguments Appeal 2011-006081 Application 10/575,297 4 fail to discuss what is claimed. Thus, we are not apprised of error in the Examiner’s rejection. Rejection II – Anticipation by Smith The dispositive issue for this rejection is the proper claim construction for the limitation in claim 13 requiring “the plurality of holding elements being secured on the common edge along a single side of the framework.” The Examiner finds that the claimed holding elements read on the hubs 50, 51 on the end caps 22 of Smith. Ans. 5. The Examiner’s position is that (1) the common edge reads on wire 15 of Smith, which forms a part of all four sidewalls of Smith’s framework (see fig. 1), and (2) the single side of the framework is the right side of the framework (e.g., as viewed in figure 1). Id. Appellants’ position is that the end caps 22 are on opposite sides (front and back) of the framework in Smith. App. Br. 7. Appellants also call the “opposite sides” opposite side walls. Reply Br. 2. Appellants argue that the Examiner’s left and right sides interpretation is arbitrarily assigning the “four sided rack [(sic: framework?)], with four edges, as having a common edge spanning all four sides.” Id. Appellants do not appear to take a position as to the meaning of “common edge.” Although not clearly articulated, Appellants’ position appears to be that “sides” and “edges” are the same thing, and that the claims require each of the holding elements in the basket holding up a particular rack to be located along one, and only one, sidewall of the basket. We hereinafter use the term “sidewall” or “sidewalls” to refer to the four vertical walls along the perimeter of the framework of the crockery basket. The terms at issue, “framework,” “common edge,” and “single side,” do not appear in the Specification. This fact is the genesis of the dispute. Appeal 2011-006081 Application 10/575,297 5 One can safely interpret the “framework” as the series of wires that form a mesh, providing the structural foundation for the crockery basket (the crockery basket thus being the framework plus any additional add-on elements).1 The word “edge” appears in the Specification at paragraph 19, describing the crockery basket as made of wires, with “a number of horizontal meshes 2 arranged one above the other at [the crockery basket’s] edge.” The horizontal meshes 2 along with “perpendicular wires 7” define the mesh of wires forming the sidewalls of the framework. See Spec., para. [021]; see also fig. 1. The word “edge” commonly means “a border or boundary” or “the rim.”2 Accordingly, the term “common edge” refers to all four sidewalls, as they form the common border of the framework. The word “side” does not appear in the Specification. Ordinary meanings for “side” include “an edge or border” and “either of the parts or areas produced when the whole is divided up the middle.”3 Accordingly, the word “side” can refer to the sidewalls as a whole, or, as the Examiner construes the term, to the left and right side of the framework, when divided up the middle. 1 See Spec., para. [019] (“crockery basket … consists of a wickerwork of plastic-coated wires”); Clms App’x. (claim 13, “a framework for retaining items to be washed”; claim 18, “wherein the framework … includes a plurality of substantially horizontal members”); accord “framework,” Chambers 21st Century Dictionary (2001) (“a structure composed of horizontal and vertical bars or shafts”) (http://www.credoreference.com/entry/chambdict/framework) (last visited June 17, 2013). 2 Chambers 21st Century Dictionary, “edge.” 3 Id., “side.” Appeal 2011-006081 Application 10/575,297 6 There is nothing in the Specification indicating any intent to limit the invention to having holding elements on only one sidewall. The Specification merely touts the benefits of having a height-adjustable rack, but does not mention one wholly mountable using only one sidewall. See, e.g., Spec., para. [001]. In figure 1, an embodiment is shown in which the rack is held up solely on one wall of the framework. This is accomplished by the rack having a supporting clip 6 that stops pivoting by abutting the sidewall. Spec., para. [021]; fig. 1. Claim 13 does not recite such a supporting clip, such that claim 13 is broader than the embodiment of figure 1. Cf. claim 23 (depending from claim 13 and explicitly requiring a “mechanical stop”). As our analysis above indicates, the term “side” can plausibly refer to both the sidewalls of the framework as well as any particular half that can be made by dividing the framework down the middle. Accordingly, the claim itself does not preclude the Examiner’s reading of it on Smith.4,5 Further, Appellants have not attempted to show why the claimed invention should be limited to the embodiment shown in figure 1. We decline to do so sua sponte because, as we noted above, nothing in the Specification requires us to limit the claims to the embodiment of figure 1 or otherwise suggests that an aspect of the invention is to limit the holding elements to one and only one sidewall. 4 Indeed, it is our opinion that the Examiner’s interpretation is superior, as Appellants’ interpretation requires two different words to refer to the same structure. 5 We also note that, while the Examiner’s interpretation of “side” means that a few such “sides” can be found (e.g., front/back, left/right), the term is still given patentable weight because it would preclude holding elements being on both sides. Appeal 2011-006081 Application 10/575,297 7 Not being persuaded of error in the Examiner’s construction of the phrase “the plurality of holding elements being secured on the common edge along a single side of the framework,” we are not apprised of error in the Examiner’s rejection of claim 13 as anticipated by Smith. Appellants separately argue claims 23 and 24, which we address next. The remaining claims of this rejection fall with claim 13. Regarding claims 23 and 24, Appellants argue that the Examiner has not made any findings. App. Br. 8. However, the Examiner has addressed these limitations on pages 5-6 of the Answer. See also Ans. 11. Appellants do not allege any specific error, and do not respond to the Examiner’s position in their Reply Brief. In view of the Examiner’s specific findings and Appellants’ general allegations, we are not apprised of error in the Examiner’s rejection of claims 23 and 24. Rejection III – Obviousness in view of Smith Appellants’ sole argument regarding this rejection relies on the unpersuasive arguments for Rejection II. App. Br. 9. Accordingly, we sustain Rejection III. Rejection IV – Obviousness in view of Smith, Remmers, and Luukkonen Appellants argue that the Examiner’s proposed combination is inappropriate because there would be no support for the distal end of the Smith rack. App. Br. 9. In reviewing the Examiner’s rejection in light of this argument, we cannot determine what the Examiner’s proposed combination is, and thus cannot sustain it. The Examiner’s modification of Smith is to “replace” the plates 22 with “either the clip 40 of Remmers” or the “fastening element 7 of Appeal 2011-006081 Application 10/575,297 8 Luukkonen,” or “a combination of the teachings of both.” Ans. 7. The clip 40 of Remmers is vertically secured by way of a screw through opening 60 of the support clip 40. Remmers, col. 4, ll. 21-22. The fastening element 7 of Luukkonen is vertically secured by way of bottom groove 11 secured to horizontal support bar 3. Luukkonen, col. 2, ll. 61-63. We do not see how the clip of Remmers could be secured via screw (or like fastener) to the mesh framework of Smith, nor do we see a structure analogous to horizontal support bar 3 to hold up the fastening element 7 of Luukkonen. The Examiner offers no explanation as to what the proposed combination actually is, in view of the seeming impossibility of the proposed combination to operate if the plates 22 are replaced. In other words, the Examiner does not make factual findings or set forth technical reasoning tending to explain how one of ordinary skill in the art would utilize the teachings of Remmers and Luukkonen in Smith. Accordingly, we do not sustain Rejection IV. Our decision is limited to the articulated rejection in front of us. DECISION We AFFIRM the Examiner’s decision regarding the lack of enablement of claim 32. We AFFIRM the Examiner’s decision regarding the anticipation of claims 13-20 and 22-24. We AFFIRM the Examiner’s decision regarding the obviousness of claim 21 in view of Smith. We REVERSE the Examiner’s decision regarding the obviousness of claims 13-22 and 31 in view of Smith, Remmers, and Luukkonen. Appeal 2011-006081 Application 10/575,297 9 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART hh Copy with citationCopy as parenthetical citation