Ex Parte Bastuji

Patent Trial and Appeal BoardAug 17, 2017

13056664 (P.T.A.B. Aug. 17, 2017)

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. 13/056,664 01/30/2011 Ismail Cem Bastuji 101670-0417332 5820 20350 7590 08/21/2017 KILPATRICK TOWNSEND & STOCKTON LLP Mailstop: IP Docketing - 22 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 EXAMINER ROERSMA, ANDREW MARK ART UNIT PAPER NUMBER 3637 NOTIFICATION DATE DELIVERY MODE 08/21/2017 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): ipefiling@kilpatricktownsend.com KT S Docketing2 @ kilpatrick. foundationip .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ISMAIL CEM BASTUJI Appeal 2015-008000 Application 13/056,664 Technology Center 3600 Before JOHN C. KERINS, JAMES P. CALVE, and SEAN P. O’HANLON, Administrative Patent Judges. O’HANLON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Ismail Cem Bastuji (Appellant)1 appeals under 35 U.S.C. § 134 from the Examiner’s May 15, 2014 final decision (“Final Act.”) rejecting claims 1—9. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). 1 According to Appellant, the real party in interest is Arcelik Anonim Sirketi. Appeal Br. 2 (filed Dec. 15, 2014). Appeal 2015-008000 Application 13/056,664 SUMMARY OF THE DECISION We AFFIRM. SUMMARY OF THE INVENTION Appellant’s disclosure is directed to a dishwasher. Spec. 11. Claim 1, reproduced below from page 21 (Claims Appendix) of the Supplemental Appeal Brief (“Supp. Appeal Br.,” filed Mar. 6, 2015), is illustrative of the claimed subject matter: 1. A dishwasher (1) comprising: a body (2), at least one rack (3) having a base (4) and side walls (5) surrounding the base (4) to equally form both sides of the at least one rack and portions that are adjacent to the side walls (5) and wherein items to be washed are disposable, two glass loading areas (6) located in the portions of the rack (3) which are close to the ceiling (T) of the body (2) and each of the two glass loading areas respectively located in the portions forming the sides of the at least one rack, to load with high items; and at least one hanger (8) fixed to the ceiling (T) of the body (2), at least one guide rail (9) mounted to the hanger (8) and at least one drawer (10) wherein items to be washed are disposable, the drawer having a width sufficient to be located above the both sides of the at least one rack yet located so that the drawer will remain entirely between the two glass loading areas (6) of the one rack, the drawer being mounted to the guide rail (9) in a movable way so the drawer will not collide with high items in the glass loading areas (6). 2 Appeal 2015-008000 Application 13/056,664 REJECTIONS Claims 1—4 and 9 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Jeong (US 2005/0241682 Al, pub. Nov. 3, 2005) and Schiitz (WO 2008/061869 Al, pub. May 29, 2008). Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Jeong, Schiitz, and Schessl ’696 (US 2007/0131696 Al, pub. June 14, 2007). Claims 7 and 8 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Jeong, Schiitz, Schessl ’696, and Dickson (US 2006/0119236 Al, pub. June 8, 2006). ANALYSIS Rejection Based on Jeong and Schiitz2 Appellant argues independent claims 1 and 9 together. Appeal Br. 10-17. We select claim 1 as representative, treating claim 9 as standing or falling with representative claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds that Jeong discloses a dishwasher substantially as recited in claim 1, including, inter alia, racks 120, 130 having glass loading areas and being mounted to side walls, and a drawer (top rack 200),3 but 2 It appears that, when citing to Schiitz, the Examiner references Schessl ’069 (US 2010/0051069 Al, pub. Mar. 4, 2010), which the Examiner cited with Schiitz during prosecution and which appears to be the US national phase application of Schiitz. Non-Final Act., Not. of Refs. Cited (mailed Oct. 30, 2013). For clarity and consistency, we likewise cite to Schiitz, but our citations reference Schessl ’069. We note that the file record does not include an English translation of Schiitz. 3 Parentheticals refer to the terminology of the cited references. 3 Appeal 2015-008000 Application 13/056,664 does not disclose “that the drawer has the claimed width and configuration above rack 120 and between the glass loading areas.” Final Act. 3 (including an annotated copy of Jeong Fig. 2 identifying the glass loading areas). The Examiner finds that Schutz discloses a dishwasher with a cutlery basket 7 mounted over crockery basket 4 and below spray arm 16 at roof 15, and reasons that it would have been obvious to one of ordinary skill “to relocate Jeong’s rack 200 to the center of tub 110 beneath nozzle 155, similarly to [Schutz’s] configuration,” so as to “mount[]a wider rack 200 in the dishwasher” because “[a] wider rack provides a higher capacity for holding items to be washed.” Id. at 3^4. The Examiner notes that, “[a]s modified, rack 200 is equally above the left and right sides of rack 120.” Id. at 4. Continuing, the Examiner reasons that “[i]t is obvious to keep the outer edges of rack 200 entirely between the glass loading areas so as to prevent damaging items when racks 200 and 120 are moved.” Id. Appellant traverses, first quoting language from the October 30, 2013, non-final Office Action and interpreting Jeong’s rack 120 to include two glass loading areas. Appeal Br. 10—11 (including an annotated copy of Jeong Fig. 2 identifying the glass loading areas). Appellant then states that “[Appellant] kindly disagrees with the assertion of the Office Action, especially the so-called ‘glass holding area’ on the right.” Id. at 11. This argument is unclear, and thus fails to apprise us of error. Rather than disagreeing with the Examiner’s finding that Jeong discloses two glass loading areas, it appears that Appellant agrees that Jeong discloses such glass loading areas. See id. at 10 (“it appears that the rack 120 comprises two glass loading areas as shown in the figure below:”). 4 Appeal 2015-008000 Application 13/056,664 Appellant next argues that “the rack of Jeong would not have a drawer between the entirety of the glass loading areas.” Id. at 11 (emphasis omitted); see also id. at 12. This argument is unpersuasive because the Examiner relies on Schiitz to disclose the width and positioning recitations, and, thus, Appellant does not address the rejection as set forth by the Examiner. Appellant then argues that Jeong “teaches away by showing a drawer that does overlap at least a portion of the glass loading area.” Id. at 12. Appellant similarly makes two additional “teaching away” arguments: asserting that, because the Examiner’s rejection noted that “Jeong fails to teach that the drawer has the claimed width and configuration above rack 120 and between the glass loading areas,” “the Final Office action by its own admission teaches away from ‘at least one drawer’ . . . ‘located above the both sides of the at least one rack yet located so that the drawer will remain entirely between the two glass loading areas’” {id. at 14 (emphases omitted); see also Reply Br. 3—5); and asserting that, because “the so-called ‘cutlery basket 7’ [is] clearly above the glass (element 17) in [FJigure 1,” Schiitz “also teaches away from ... ‘at least one drawer’ . . . ‘located above the both sides of the at least one rack yet located so that the drawer will remain entirely between the two glass loading areas’” (Appeal Br. 16 (emphases omitted); see also Reply Br. 6, 8). We are not persuaded by these arguments. A reference teaches away from a claimed invention or a proposed modification if “a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or 5 Appeal 2015-008000 Application 13/056,664 would be led in a direction divergent from the path that was taken by the applicant.” In re Kubin, 561 F.3d 1351, 1357 (Fed. Cir. 2009) (citing In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)). Prior art does not teach away from claimed subject matter merely by disclosing a different solution to a similar problem unless the prior art also criticizes, discredits, or otherwise discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellant has not cited, nor does our review reveal, any discouragement in the cited references from using, or criticism of, a dishwasher with a drawer having a width such that the drawer will remain between the two glass loading areas. To the contrary, Schiitz, for example, recognizes the need to avoid drawer interference by disclosing narrowing its cutlery basket 7 approaching side edges 8, 9 to ensure tall glasses can be accommodated in crockery basket 4. Schiitz 118; see also id. 117,10. Thus, Appellant has failed to persuade us that either Jeong or Schiitz teaches away from the dishwasher as set forth in claim 1. Additionally, we note that Appellant’s arguments fail to address the rejection as set forth by the Examiner, which modifies Jeong’s top rack 200 to extend “equally above the left and right sides of rack 120” with “the outer edges of rack 200 entirely between the glass loading areas.” Final Act. 4. Appellant’s arguments fail to apprise us of error in the Examiner’s findings or reasoning. To the extent Appellant asserts new arguments in the Reply Brief that were not included in the Appeal Brief (see, e.g., Reply Br. 5—6 (presenting an argument regarding the mounting of Schiitz’s cutlery basket 7)) and are 6 Appeal 2015-008000 Application 13/056,664 not responsive to a new argument raised in the Answer, such arguments are untimely and will not be considered, in that Appellant fails to make a good faith showing why they could not have been timely presented in the Appeal Brief. See 37 C.F.R. § 41.41(b)(2). Accordingly, for the foregoing reasons, we sustain the rejection of claim 1, and its dependent claims 2-4, which are not argued separately, and claim 9 as being obvious over Jeong and Schiitz. Rejection Based on Jeong, Schiitz, and Schessl ’696 Appellant argues claims 5 and 6 together. Appeal Br. 17—18. We select claim 5 as representative, treating claim 6 as standing or falling with representative claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). Claim 5 depends from claim 1 and further requires at least one auxiliary rack (11) mounted to the side wall (5), extending from the side wall (5) to the glass loading area (6), so the at least one auxiliary rack (11) can rotate between perpendicular and parallel positions to the side wall (5), and the drawer (10) remains outside the area of the auxiliary rack (11) during rotational movement. Supp. Appeal Br. 22. The Examiner relies on Jeong and Schiitz as set forth above regarding the rejection of claim 1, and relies on Schessl ’696 to teach an auxiliary rack (pivotable rack 3) mounted to a side wall such that it can rotate between perpendicular and parallel positions relative to the side wall. Final Act. 4—5. The Examiner reasons that it would have been obvious to one of ordinary skill “to attach at least one of [Schessl ’696’s] racks 3 at the side walls of Jeong’s rack 120” so as to “securely hold[] items of varying height in rack 7 Appeal 2015-008000 Application 13/056,664 120, and allowing the space in rack 120 to be better used (as taught by [Schessl ’696]).” Id. at 5. The Examiner notes that “[w]hen adding [Schessl ’696’s] racks 3 onto Jeong’s rack 120, one having ordinary skill in the art would make sure that [Schessl ’696’s] racks 3 cannot contact Jeong’s drawer 200 in any position so as to prevent damage and breakage of the parts.” Id. (emphasis omitted). Appellant traverses, arguing that Schessl ’696 “teaches away from the Office Action’s interpretation of Jeong for the ‘glass holding area,’ especially on the right side.” Appeal Br. 18. Continuing, Appellant asserts: To summarize, there is no hint in Jeong in view of [Schessl ’696] to provide a dishwasher which comprises both a drawer mounted onto hangers fixed to the dishwasher ceiling and a rack mounted to dishwasher side walls wherein the drawer will remain between the two glass loading areas of the rack such that the drawer will not overlap with the glass loading areas. Id. (emphasis omitted); see also Reply Br. 8—10. Similarly to Appellant’s prior “teaching away” arguments, this argument fails to persuade us of error because Appellant has not identified, and our review does not reveal, any discouragement from using or criticism of a dishwasher with a drawer having a width such that the drawer will remain between the two glass loading areas. Additionally, we note that the Examiner’s rejection relies on the teachings of Schiitz in addition to those of Jeong and Schessl ’696. We further note that “a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art” is insufficient to constitute separate argument for 8 Appeal 2015-008000 Application 13/056,664 patentability under 37 C.F.R. § 41.37. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Accordingly, for the foregoing reasons, we sustain the rejection of claims 5 and 6 as being obvious over Jeong, Schiitz, and Schessl ’696. Rejection Based on Jeong, Schiitz, Schessl ’696, and Dickson With respect to the rejection of claims 7 and 8, Appellant relies only on arguments presented above in regard to the rejection of claim 1. Appeal Br. 19; see also Reply Br. 10. Accordingly, for the same reasons as discussed above, we also sustain the rejection of claims 7 and 8 as being unpatentable over Jeong, Schiitz, Schessl ’696, and Dickson. DECISION The Examiner’s decision to reject claims 1—9 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 9