Ex Parte Balerdi Azpilicueta et al

Patent Trial and Appeal BoardMay 4, 2016

12746188 (P.T.A.B. May. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121746, 188 06/04/2010 46726 7590 05/06/2016 BSH Home Appliances Corporation 100 Bosch Boulevard NEW BERN, NC 28562 FIRST NAMED INVENTOR Pilar Balerdi Azpilicueta 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. 2007P02952WOUS 7272 EXAMINER MCCORMACK, JOHN PATRICK ART UNIT PAPER NUMBER 3743 NOTIFICATION DATE DELIVERY MODE 05/06/2016 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): MBX-NBN-IntelProp@bshg.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PILAR BALERDI AZPILICUET A, INIGO BERAZALUCE MINONDO, ESTHER PADILLA LOPEZ, ROBERTO SAN MARTIN SANCHO, GUNTER STEFFENS, and ANDREAS STOLZE Appeal2014-004511 Application 12/746,188 Technology Center 3700 Before MICHAEL W. KIM, AMANDA F. WIEKER, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants 1 appeal from the Examiner's decision rejecting claims 21- 31 and 40,2 however, Appellants present arguments only regarding the rejection of dependent claims 29 and 30. Appeal Br. 7-9. We have jurisdiction under 35 U.S.C. Â§ 6(b). 1 Appellants submit that BSH Bosch and Siemens Hausgerate GmbH are the real parties in interest. Appeal Br. 3. 2 Claims 32-39 are allowed. Final Act. 8. Appeal2014-004511 Application 12/746,188 We AFFIRM. THE CLAIMED SUBJECT MATTER Claims 27 and 29, reproduced below, are illustrative of the claimed subject matter. 27. A household appliance, comprising: a housing; a drying chamber to dry wet articles in the drying chamber; a first air conduit to guide process air drawn into the housing to dry the wet articles; a heat pump, including: a heat sink to transfer heat into the heat pump; a heat source coupled to the first air conduit to transfer the heat from the heat pump into the process air; and a heat transfer device to transfer the heat from the heat sink to the heat source; and a second air conduit coupled to the heat sink to guide secondary air drawn into the housing, the heat sink to transfer the heat from the secondary air into the heat pump, wherein the second air conduit is coupled to the heat transfer device for transferring the heat dissipated from the heat transfer device to the secondary air. 29. The household appliance of claim 27, wherein the first air conduit and the second air conduit are combined into a single exhaust conduit for exhausting the process air and the secondary air out of the housing. Claim 30 depends from claim 29. 2 Appeal2014-004511 Application 12/746,188 REJECTIONS 1) Claims 21, 22, 25-27 and 31 are rejected under 35 U.S.C. Â§ 102(e) as anticipated by Moon (US 2008/0289212 Al, pub. Nov. 27, 2008). 2) Claim 23 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Moon in view of Shevlin (US 3,736,981, iss. June 5, 1973). 3) Claim 24 is rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Moon in view of Adachi (US 6,026,649, iss. Feb. 22, 2000). 4) Claim 28 is rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Moon in view of Tatsumi (US 7 ,866,061 B2, iss. Jan. 11, 2011). 5) Claims 29 and 30 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Moon in view of Grunske (EP 0467188 Al, pub. Jan. 22, 1992). 6) Claim 40 is rejected under 35 U.S.C. Â§ 103(a) are being unpatentable over Moon in view of Han (US 2008/0289209 Al, pub. Nov. 27, 2008). DISCUSSION Claims 21-28, 31, and 40 Appellants did not submit any arguments contesting the rejections of these claims as anticipated by Moon (claims 21, 22, 25-27, and 31 ), as unpatentable over Moon and Shevlin (claim 23), as unpatentable over Moon and Adachi (claim 24), as unpatentable over Moon and Tatsumi (claim 28), or as unpatentable over Moon and Han (claim 40). Appeal Br. 7-9. Appellants, thus, waived any argument of error, and we summarily sustain 3 Appeal2014-004511 Application 12/746,188 the rejection of claims 21-28, 31, and 403. Hyatt v. Dudas, 551F.3d1307, 1314 (Fed. Cir. 2008) (explaining that summary affirmance without consideration of the substantive merits is appropriate where an appellant fails to contest a ground of rejection); see also 37 C.F.R. Â§ 41.3 l(c) ("An appeal, when taken, is presumed to be taken from the rejection of all claims under rejection unless cancelled by an amendment filed by the applicant and entered by the Office."); 37 C.F.R. Â§ 41.39(a)(l) ("An examiner's answer is deemed to incorporate all of the grounds of rejection set forth in the Office action from which the appeal is taken ... unless the examiner's answer expressly indicates that a ground or rejection has been withdrawn."). Claims 29 and 30 The Examiner rejected claims 29 and 30, each of which depend ultimately from independent claim 27, as unpatentable over Moon and Grunske. Final Act. 7. The Examiner found that Moon anticipates claim 27. Id. at 4. The Examiner found that Grunske discloses the additional limitations set forth in claims 29 and 30, i.e., "the first air conduit (3, 4, fig. 1) and the second air conduit (14, fig. 1) are combined into a single exhaust conduit (12, fig. 1) for exhausting the process air and secondary air out of the housing wherein the single exhaust conduit comprises a single blower." Id. at 7; see also Appeal Br. 13 (Claims App.). The Examiner concluded it would have been obvious to modify Moon with the combined exhaust conduit of Grunske to "maintain the process air temperature at an 3 We have previously held that when an appellant clearly states that finally or twice rejected claims are not being pursued in the appeal, the appellant should cancel those claims not pursued. Ex Parte Ghuman, 88 USPQ2d 1478, 1480 (BPAI 2008) (precedential). Thus, upon acquiring jurisdiction of this application, the Examiner is advised to cancel the non-appealed claims, i.e., claims 21-28, 31, and 40. 4 Appeal2014-004511 Application 12/746,188 appropriate level without reducing the performance of the heat pump." Final Act. 7-8. Appellants' sole contention is that it would not have been obvious to combine the teachings of Moon with Grunske "because there would have been no reason to do so." Appeal Br. 7. Appellants assert that dryers utilizing heat pumps generate condensation because the process air passing through the dryer extracts humidity from the articles of clothing. Id. Appellants submit the reason the claimed invention uses secondary air in the heat pump, rather than the process air, is to minimize condensation and combining the two air conduits to exhaust the air creates mixing of the process air and secondary air which further decreases condensation. Id. at 8. Appellants contend that Moon relies on radiant heating of the drum for drying clothes and the resulting "condensate will be produced in only small quantities and, therefore warrants no further concern." Id. Appellants assert it would not have been obvious to modify Moon's dryer configuration to have a combined exhaust "to address condensate issues." Id. We are unpersuaded, primarily because Appellants assertions are misplaced. Appellants do not dispute the Examiner's finding that Grunske discloses the limitation of claim 29 that "the first air conduit and the second air conduit are combined into a single exhaust." Appeal Br. 13 (Claims App.). Nor do Appellants dispute the Examiner's finding that Grunske discloses the limitation of claim 30 that "the single exhaust conduit comprises a single blower." Id. We are persuaded that the Examiner's stated rationale for modifying Moon in view of Grunske is reasonable, and Appellants do not submit any argument or persuasive technical reasoning to support a conclusion that the Examiner's stated rationale is erroneous. Rather, Appellants argue, concerning a tangent unrelated to the Examiner's 5 Appeal2014-004511 Application 12/746,188 stated rationale, that Moon would not benefit from the combination of the first and second air conduits into a single exhaust because Moon does not generate significant condensation due to its use of radiant heating of the dryer drum. Appeal Br. 7. It is not, however, necessary that the prior art suggest the combination for the same purpose or result discovered by the appellant. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) ("[I]n the obviousness analysis, the problem examined is not the specific problem solved by the invention but the general problem that confronted the inventor."), citing Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323 (Fed. Cir. 2005) ("One of ordinary skill in the art need not see the identical problem addressed in a prior art reference to be motivated to apply its teachings."). Appellants' argument that there is no reason to combine Moon and Grunske is not persuasive, in light of the Examiner's stated rationale. As Appellants have not apprised us of any error in the Examiner's rationale for the combination of Moon and Grunske, we sustain the rejection of claims 29 and 30. Appellants belatedly raise an additional argument in the Reply Brief. Reply Br. 3. Appellants contend that the purpose of Grunske is "to provide air to condenser 6 without affecting the performance of evaporator 5." Id. Appellants further contend that Moon's "evaporator 132 is located outside of the air loop that contains condenser 130 (see Fig. 3), so the introduction of air to the condenser, as taught by Grunske, would not result in ... a single exhaust conduit for exhausting the process air and the secondary air out of the housing, as required by claim 29." Id. at 3--4. Appellants' new arguments in the Reply Brief are not responsive to any arguments raised in the Examiner's Answer and Appellants have not explained what "good cause" exists for us to consider the new arguments. 6 Appeal2014-004511 Application 12/746,188 See 3 7 C.F .R. Â§ 41.41. Accordingly, we decline to consider the belated arguments and, instead, affirm the Examiner's obviousness rejection of claims 29 and 30 for the reasons articulated supra. See Ex Parte Borden, 93 USPQ2d 1473 (BPAI 2010) (informative) ("[C]onclud[ing] that the regulations set out in 37 C.F.R. Â§ 41, Practice Before the Board of Patent Appeals and Interferences, do not require the Board to consider such belated arguments."). Even if, however, these arguments had been raised in a timely manner in the Appeal Brief, we would conclude the arguments are not persuasive. Appellants' arguments concerning dependent claims 29 and 30 are based on newly asserted factual distinctions from Moon. The Examiner applied Moon to the limitations in independent claim 27, not the limitations in dependent claims 29 and 30. None of these claims recite any limitations directed to a "condenser," an "evaporator," or requiring such devices to be located on the same air loop, as argued in the Reply Brief. Reply Br. 3. Consequently, the newly asserted factual distinctions are of no import to the rejection of claims 29 and 30. DECISION The Examiner's decision rejecting claims 21-31 and 40 is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 7