WELCH, RODNEY M.

Patent Trials and Appeals Board

Nov 20, 2019

13928787 - (D) (P.T.A.B. Nov. 20, 2019)

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.
13/928,787 06/27/2013 RODNEY M. WELCH SUB-03945-US-NP 4175
130348 7590 11/20/2019
Whirlpool Corporation / McGarry Bair PC
2000 North M63
Benton Harbor, MI 49022
EXAMINER
LEE, DOUGLAS
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
11/20/2019 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):
PatentDocketing@whirlpool.com
deborah_tomaszewski@whirlpool.com
patents@mcgarrybair.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RODNEY M. WELCH

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Appeal 2019-000712
Application 13/928,787
Technology Center 1700
____________

Before KAREN M. HASTINGS, JAMES C. HOUSEL, and
LILAN REN, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection of claims 1–13 and 20–25 under 35 U.S.C. § 103
as being unpatentable over at least the basic combination of Michael
(US 5,464,482, issued November 7, 1995) with Favaro (EP 1 050 263 A2,
published November 8, 2000).2

1 Appellant is the Applicant, Whirlpool Corporation, which is also stated to
be the real party in interest (Appeal Br. 2).
2 The Examiner applied additional prior art of Feddema (US 2013/0074887
A1, published March 28, 2013) in a separate rejection of dependent claims
11 and 25, as well as Haegermarck (WO 2011/147716 A1, published
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Application 13/928,787

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We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We REVERSE.
Claim 1 is illustrative of the claimed subject matter (emphasis added
to highlight a key disputed limitation):
1. A dishwasher for treating dishes according to an
automatic cycle of operation, comprising:
a tub at least partially defining a treating chamber with
four corners and a sidewall;
a recirculation system fluidly coupling at least two
portions of the tub; and
a sprayer fluidly coupled to the recirculation system and
located within the treating chamber, with the sprayer
comprising at least three rotatable sections, which are
rotatable about separate axes:
a first rotatable section formed by a first conduit
segment rotationally mounted relative to the tub for rotation
about a first axis;
a second rotatable section formed by a second
conduit segment rotationally mounted to the first conduit
segment at a location radially spaced from the first axis
for rotation about a second axis; and
a third rotatable section formed by a spray head
rotationally mounted to the second conduit segment at a
location radially spaced from the second axis for rotation about
a third axis;
wherein the first conduit segment, the second conduit
segment, and the spray head are operably coupled such that the
first conduit and second conduit are axially aligned and the
sprayer has an extended length when the spray head is at one of
the four corners and the second conduit overlaps the first
conduit and the sprayer has a retracted length when the spray
head is adjacent the sidewall of the treating chamber such that

December 1, 2011) in a separate rejection of independent claim 21 with its
dependent claim 23, and Yura (US 5,477,874, issued December 26, 1995)
for its dependent claim 22 (Final Action 9−13). A discussion of these
rejections is not necessary for the disposition of this appeal.
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Application 13/928,787

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the spray head traverses a path having an outer boundary
defining a squircle with four rounded corners corresponding to
the four corners of the treating chamber.

Independent claims 20 and 21 are each directed to a similar
dishwasher as that of claim 1 (Claims Appendix 47−50).
ANALYSIS
The Examiner bears the initial burden of presenting a prima facie case
of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
“[R]ejections 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.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), quoted with
approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
After review of the respective positions provided by Appellant and the
Examiner, we conclude that the preponderance of the evidence supports
Appellant’s position that the Examiner has not established a prima facie case
of obviousness for substantially the reasons set forth by Appellant in the
Briefs. Accordingly, we reverse the Examiner’s § 103 rejections of all the
claims on appeal.
Specifically, a preponderance of the evidence supports Appellant’s
position that the proposed modification of Michael to add a spray head as
shown in Favaro onto Michael’s second spray arm would be based on
improper hindsight reconstruction for the reasons discussed by Appellant in
the Briefs (Appeal Br. 18, 23−25; Reply Br. 2–6). The fact finder must be
aware “of the distortion caused by hindsight bias and must be cautious of
arguments reliant upon ex post reasoning.” KSR, 550 U.S. at 421 (citing
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Application 13/928,787

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Graham v. John Deere Co., 383 U.S. 1, 36 (1966) (warning against a
“temptation to read into the prior art the teachings of the invention in
issue”)). At best, one of ordinary skill would have replaced the second spray
arm of Michael with an off center spray head as taught in Favaro, such that it
is only with the use of impermissible hindsight to add Favaro’s spray head
onto the second spray arm of Michael such that there are three rotatable
sections as required in each independent claims 1, 20, and 21. The
Examiner has not adequately explained why the skilled artisan’s knowledge
or inferences and creativity would have supported the obviousness
determination based on the teachings of the applied references without an
improper hindsight reconstruction.
The Examiner does not establish that any of the additional references
as applied in the § 103 rejections of claims 11, 21−23, and 25 cures these
deficiencies and/or otherwise provides another rationale that cures these
deficiencies.
Accordingly, we reverse the § 103 rejections of claims 1–13 and 20–
25 which all rely upon an impermissible hindsight reconstruction of Michael
based on Favaro.
DECISION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–10, 12, 13,
20, 24
103 Michael, Favaro 1–10, 12, 13,
20, 24
Appeal 2019-000712
Application 13/928,787

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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
11, 25 103 Michael, Favaro,
Feddema
11, 25
21, 23 103 Michael, Favaro,
Haegermarck
21, 23
22 103 Michael, Favaro,
Haegermarck, Yura
22
Overall
Outcome
1–13, 20–25

The Examiner’s § 103 rejections of all the claims on appeal are
reversed.

REVERSED