Ex Parte Bastuji et al

Patent Trial and Appeal BoardAug 14, 2017

12811362 (P.T.A.B. Aug. 14, 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. 12/811,362 10/02/2010 Cem Bastuji PHDL0860-066 6096 20350 7590 08/16/2017 KILPATRICK TOWNSEND & STOCKTON LLP Mailstop: IP Docketing - 22 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 EXAMINER GALLEGO, ANDRES F ART UNIT PAPER NUMBER 3637 NOTIFICATION DATE DELIVERY MODE 08/16/2017 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 CEM BASTUJI, ATILLA UZ, and TOLGA AKIN Appeal 2015-008171 Application 12/811,3 621 Technology Center 3600 Before ANTON W. FETTING, PHILIP J. HOFFMANN, and BRUCE T. WIEDER, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1—10. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. According to Appellants, the “invention relates to a dishwasher wherein the basket height can be adjusted.” Spec. 11. Claim 1 is the sole independent claim on appeal. Below, we reproduce the claim, with formatting added, as illustrative of the appealed claims. 1 According to Appellants, “Cem Bastuji, Atilla Uz, Tolga Akin and/or Arcelik Anonim Sirketi, a Turkish Joint Stock Company, are the real parties in interest.” Appeal Br. 2. Appeal 2015-008171 Application 12/811,362 1. A dishwasher (1) comprising a basket (2) wherein items to be washed are emplaced, having a base (3) and side walls (4) that enclose the base (3) and at least one lock wire (5) secured horizontally to the side wall (4) and a height adjustment mechanism (6) comprising a body (18) whereon the basket (2) is mounted using the side walls (4) and a lever arm (7) having a pressing element (9) that extends vertically outwards from the body (18), and a carrying element (10) seated in a housing (19), the housing opening to an upper edge of the body (18), and wherein the lever arm further comprises a support (8) between the pressing element (9) and the carrying element (10) where the support (8) is fastened to the housing (19) at the upper edge of the body (19) forming a moment axis horizontally situated to the carrying element and the pressing element vertical direction and thereby maintaining the carrying element (10) to move in the housing (19), in a direction opposite to the pressing element (9). REJECTION AND PRIOR ART The Examiner rejects claims 1—10 under 35 U.S.C. § 103(a) as unpatentable over Kim (US 2005/0039782 Al, pub. Feb. 24, 2005) and Bastuji (US 2007/0226928 Al, pub. Oct. 4, 2007). ANALYSIS As stated above, the Examiner rejects each of pending claims 1—10 as obvious based on Kim and Bastuji. Appellants’ first argument is that the rejection is in error because neither reference teaches the claimed pressing 2 Appeal 2015-008171 Application 12/811,362 element. Appeal Brief filed Feb. 2, 2015 (“Appeal Br.”) 11. In particular, Appellants argue that Kim’s elastic member 115 “does not operate in the same manner as the current invention, [because Kim’s] so-called pressing element is not the pressing element of the invention and apparently teaches away therefrom.” Id. at 12; see also id. at 11—12. However, this argument is not persuasive of error because, even assuming arguendo that Appellants are correct that Kim’s elastic member 115 operates in a different manner than Appellants’ pressing element as described in their Specification, Appellants do not establish persuasively that any claim recitation is not taught by Kim’s elastic member 115. Further, because it appears that elastic member 115 presses against part 112, the Examiner adequately supports the finding that member 115 and part 112 teach the claimed pressing element. Answer 2. Appellants next argue that the rejection is in error because neither reference teaches the claimed support. Appeal Br. 12—16. Based on our review, however, we are not persuaded of error. In particular, Appellants argue that Kim does not teach the support fastened at an upper edge of the structure the Examiner identifies as the body (i.e., supporter 101), but instead Kim teaches the support fastened to structure that the Examiner identifies as the housing (i.e., projected surface 106). Id.', see also Final Office Action mailed July 31, 2014 (“Final Action”) 2—3. We note, however, that claim 1 does not recite the argued recitation. Instead, claim 1 recites that “the support (8) is fastened to the housing (19).” Appeal Brief, Claims App. Further, to the extent that Appellants are arguing that Kim does not disclose a support fastened to a housing that is at the upper edge of the body, we determine that the Examiner’s finding that Kim’s projected surface 106 is at the upper edge of Kim’s supporter 101 is reasonable. More 3 Appeal 2015-008171 Application 12/811,362 specifically, we note that Appellants do not point to anything in the Specification or claims that precludes the Examiner from finding that Kim’s projected surface 106 is near enough to the upper edge of Kim’s supporter 101 to be considered “at” the upper edge. Answer 3. Restated, Appellants do not persuade us that to teach the claimed relationship, Kim must show that projected surface 106 forms the uppermost edge of supporter 101, for example, or that projected surface 106 must be closer to the uppermost edge of supporter 101. Finally, Appellants argue that Kim teaches away from being modified to include a vertically-oriented lever arm, as is taught by Bastuji, because Kim’s handle 120 may not be reoriented. Appeal Br. 16—18. We are not persuaded of error, however, because even if we agree with Appellants that Kim may not be modified such that handle 120 is vertical and is no longer horizontal, the Examiner does not propose such a modification. Instead, the Examiner proposes to reconfigure “the horizontally oriented lever arm of Kim [(i.e., Kim’s locker arm 110 (see Final Action 2))], which interacts with a rotating handle [(i.e., which interacts with handle 120)], to be vertically oriented.” Answer 3. Further, based on our review of Kim, we agree with the Examiner “that one having ordinary skill would know how to reconfigure the structure of the lever arm of Kim [(i.e., locker arm 110)] in a usable manner such that the moment axis is horizontally oriented.” Id. Regardless, Appellants do not submit arguments establishing persuasively that Kim’s locker arm 110 may not be reoriented, or that doing so would change Kim’s principle of operation. 4 Appeal 2015-008171 Application 12/811,362 Thus, for the above reasons, we are not persuaded of error by any of Appellants’ arguments. Therefore, we sustain the obviousness rejection of claims 1—10 based on Kim and Bastuji. DECISION We AFFIRM the Examiner’s obviousness rejection of claims 1—10. 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). AFFIRMED 5