Ex Parte Bengtson et al

Patent Trial and Appeal BoardOct 11, 2017

12181362 (P.T.A.B. Oct. 11, 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. 12/181,362 07/29/2008 ALAN D. BENGTSON PAT-US20030053-US-NP 1786 173 7590 10/13/2017 WHIRLPOOL CORPORATION - MD 3601 2000 NORTH M63 BENTON HARBOR, MI 49022 EXAMINER DODSON, JUSTIN C ART UNIT PAPER NUMBER 3742 NOTIFICATION DATE DELIVERY MODE 10/13/2017 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): whirlpool_patents_co@whirlpool.com mike_lafrenz @ whirlpool .com deborah_tomaszewski@whirlpool.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALAN D. BENGTSON, MICHAEL K. PATTON, ROSARIO CIANCIMINO, and JOHN B. LEDINGHAM Appeal 2015-007919 Application 12/181,362 Technology Center 3700 Before GEORGE R. HOSKINS, BRANDON J. WARNER, and LEE L. STEPINA, Administrative Patent Judges. WARNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Alan D. Bengtson et al. (“Appellants”)1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—9, 12—18, 23, and 24, which are all the pending claims. Appeal Br. 1. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is Whirlpool Corporation. Appeal Br. 2. Appeal 2015-007919 Application 12/181,362 CLAIMED SUBJECT MATTER Appellants’ disclosed invention “generally relates to waffle makers, and particularity to rotatable waffle makers.” Spec. 11. Claims 1, 23, and 24 are independent. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A waffle maker comprising: a base; and a grill having opposing waffle plates movable between open and closed positions, with the waffle plates in a confronting relationship when in the closed position, the grill having a geometric center with the waffle plates in the closed position, the grill having a body centerline passing through the geometric center, and the grill rotatably mounted to the base for rotation about a rotational axis; wherein the body centerline is radially offset from and parallel to the rotational axis and the rotational axis passes through the waffle plates in the closed position and the opposing waffle plates are hingedly connected for rotation about a hinge axis to effect movement between the open and closed positions. The Examiner relied on the following evidence in rejecting the claims EVIDENCE on appeal: Lin US 6,782,804 B1 US 7,021,199 B2 Aug. 31,2004 Apr. 4, 2006Lubowicki 2 Appeal 2015-007919 Application 12/181,362 REJECTION The following rejection is before us for review: Claims 1—9, 12—18, 23, and 24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Lubowicki and Lin. Non-Final Act. 2—6. ANALYSIS The Examiner determined that a combination of teachings from Lubowicki and Lin renders obvious the subject matter claimed. See Non- Final Act. 2—6. Appellants argue that the Examiner has failed to make a prima facie case of obviousness in rejecting the claims. Appeal Br. 11, 22, 25; see id. at 11—27; Reply Br. 2—3. After careful consideration of the record before us, Appellants’ arguments do not apprise us of error in the Examiner’s factual findings from Lubowicki or Lin, which are supported by a preponderance of the evidence, or the Examiner’s reasonable conclusion of obviousness, which is rationally articulated based on prior art teachings. In short, we sustain the Examiner’s rejection based on the reasoned positions set forth therein and in light of the Examiner’s thorough responses to Appellants’ arguments. See Non-Final Act. 2—6; Ans. 7—10. Therefore, we address Appellants’ principal assertions below simply as a matter of emphasis. In particular, Appellants assert that the rejection is deficient because Lin is non-analogous art. See Appeal Br. 13—16, 17; Reply Br. 2—3. This assertion is not persuasive of error in the Examiner’s rejection. Initially, we note that the two-prong test to define the scope of analogous prior art is (1) “whether the art is from the same field of endeavor, regardless of the problem addressed,” and (2) even “if the reference is not within the field of 3 Appeal 2015-007919 Application 12/181,362 the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved.” In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011) (internal citation omitted); see also Appeal Br. 13—14 (identifying the same two-fold determination). Here, we agree with the Examiner’s determination that Lin is analogous art because Lin and the present invention both fall within the same, relatively narrow, field of kitchen appliances with opposed heating surfaces that are brought together to cook food, regardless of any specific food intended to be cooked in the appliance. Appellants’ proffered field, specifically directed to “waffle makers for making waffles from batter” (Appeal Br. 14) is unreasonably narrow and would seemingly foreclose one of ordinary skill in the art from considering any similarly structured, albeit not identical, kitchen cooking appliance. Moreover, as the Examiner explains, there is “great structural similarity] and functional overlap between the claimed invention and Lin.” Ans. 8. Contrary to Appellants’ contention, “[t]hat a reference has structural similarities to a claimed invention does not make it analogous” (Reply Br. 2), our reviewing court has explained that the “field of endeavor” test asks if the structure and function of the prior art is such that it would be considered by a person of ordinary skill in the art because of the similarity to the structure and function of the claimed invention as disclosed in the application (In re Bigio, 381 F.3d 1320, 1325—27 (Fed. Cir. 2004)). Here, the similar structure and function is the bringing together of opposed heating surfaces to cook food. In sum, Appellants’ assertions do not apprise us of error in the Examiner’s conclusion that Lin is analogous art to the present invention. 4 Appeal 2015-007919 Application 12/181,362 Appellants also assert that the rejection fails to articulate a reason for combining teachings from Lubowicki and Lin (see Appeal Br. 18—21), but this assertion is unsupported in view of the articulated reason provided in the rejection (see Non-Final Act. 4) and reiterated in the Answer (see Ans. 10). Upon review of the record before us, the Examiner’s conclusion that the claimed subject matter would have been obvious in view of the art is reasonable, and Appellants do not persuasively explain how offsetting the rotational axis from the body centerline—the only proposed modification to the structure of Lubowicki, and an arrangement that is taught in Lin—would have been unpredictable or somehow beyond the level of ordinary skill in the art. See KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). We have considered Appellants’ other arguments and find them to be without merit.2 We note that any other arguments not specifically addressed in detail herein have been thoroughly considered by the panel but are not 2 For example, we note that Appellants assert that the rejection of independent claim 23 is deficient because Lin does not teach a rotational axis and a hinge axis that are perpendicular to one another. Appeal Br. 23. This assertion does not apprise us of error, as it is not responsive to the rejection presented, which does not rely on Lin for such a teaching. See Non-Final Act. 2-4. Rather, the Examiner found that Lubowicki teaches “a rotational axis (7),” and “a hinge axis (8),” where “the rotational axis is perpendicular to the hinge axis.” Id. at 2—3 (citing Lubowicki, Fig. 1); see also Lubowicki, col. 2,1. 57 — col. 3,1. 3 (expressly disclosing that hinge axis 8 “is perpendicular to” pivot axis 7). We also note that the Examiner’s incorporation of Lin’s arrangement of an offset rotational axis, such that the body centerline and the rotational axis are “radially offset from and parallel to” one another, would result in Lubowicki’s body centerline remaining perpendicular to its hinge axis (as in claim 23), and not coaxial with its rotational axis (as in claim 24). Non-Final Act. 3^4; contra Appeal Br. 23, 25-26. 5 Appeal 2015-007919 Application 12/181,362 persuasive for the reasons discussed supra and those well expressed in the Examiner’s Answer. After careful consideration of all the evidence of record, Appellants’ arguments do not apprise us of error in the Examiner’s findings or reasoning in support of the conclusion of obviousness. Accordingly, we sustain the rejection. DECISION We AFFIRM the Examiner’s decision rejecting claims 1—9, 12—18, 23, and 24 under 35 U.S.C. § 103(a) as being unpatentable over Lubowicki and Lin. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 6