Ex Parte Bergmann et al

Patent Trial and Appeal Board

Oct 12, 2012

11033528 (P.T.A.B. Oct. 12, 2012)

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.
11/033,528 01/12/2005 Tim A. Bergmann BER001-1769 2305
7590 10/12/2012
Whirlpool Patents Company -MD 0750
500 Renaissance Drive
Suite 102
St. Joseph, MI 49085
EXAMINER
HANSEN, JAMES ORVILLE
ART UNIT PAPER NUMBER
3637
MAIL DATE DELIVERY MODE
10/12/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TIM A. BERGMANN,
BRADLEY THOMAS HEBELER,
and DOUGLAS A. POHL
____________

Appeal 2010-006882
Application 11/033,528
Technology Center 3600
____________

Before STEFAN STAICOVICI, WILLIAM V. SAINDON, and
JAMES P. CALVE, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the rejection of claims
1, 2, 8-12, 15, 16, and 18. App. Br. 5. Claims 3-7, 13, 14, 17, 19, and 20
have been withdrawn. Id. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal 2010-006882
Application 11/033,528

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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the claimed subject matter on appeal:
1. A refrigerator comprising:
a cabinet shell having defined therein a refrigerator
compartment; and
a crisper drawer system mounted within the refrigerator
compartment, said crisper drawer system including:
a support frame including front, back and opposing
side portions, said opposing side portions including:
a first pair of glide elements;
a first pair of mounting elements for receiving a
second pair of glide elements; and
a second pair of mounting elements for receiving a
third pair of glide elements; and
a crisper pan including:
a first pair of glide members;
a first pair of mounting members for receiving a
second pair of glide members; and
a second pair of mounting members for receiving a
third pair of glide members, wherein the first pair of glide
elements are adapted to cooperate with the first pair of glide
members to form a first glide system, the second pair of glide
elements arc adapted to cooperate with the second pair of glide
members to form a second glide system and the third pair of
glide elements are adapted to cooperate with the third pair of
glide members to form a third glide system, said crisper pan
being selectively, slidably supported by the support frame
through a select one of the alternatively employed, first, second
and third glide systems.

REJECTIONS
Claim 1 is rejected under 35 U.S.C. § 112, first paragraph, as failing
to comply with the enablement requirement.
Claims 1, 2, and 8-12 are rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.
Appeal 2010-006882
Application 11/033,528

3
Claims 1, 2, 8, 9, 12, 15, 16, and 18 are rejected under 35 U.S.C.
§ 102(b) as being anticipated by Lee (US 5,918,959; iss. Jul. 6, 1999).
Claim 10 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lee and Schenker (US 6,193,340 B1; iss. Feb. 27, 2001).
Claim 11 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lee and Henson (US 4,494,802; iss. Jan. 22, 1985).
ANALYSIS
Claim 1 as lacking enablement
The Examiner found that Appellants’ Specification discloses a crisper
system configured to work with three different glide systems – friction glide,
roller glide, extendable rail – by alternatively employing one glide system at
a time. Ans. 3-4, 8-9. The Examiner interpreted claim 1 to call for a crisper
system that simultaneously employs all three glide systems for mounting a
crisper pan to a support frame and thus the claimed device is inoperable and
not enabled. Ans. 3-4, 8-9.
Appellants argue that claim 1 calls for a crisper system with a support
frame having a first pair of glide elements and a first and a second pair of
mounting elements that receive second and third pairs of glide elements, and
a crisper pan having a first pair of glide members and first and second pairs
of mounting members that receive second and third pairs of guide members.
App. Br. 10. Appellants also argue that the first pair of glide elements of the
support frame cooperate with the first pair of glide members of the crisper
pan to form a first glide system, and the second and third pairs of glide
elements on the support frame cooperate with second and third pairs of glide
members on the crisper pan to form second and third glide systems, where
the glide systems are alternatively, selectively employed. Id.; Reply Br. 2-3.
Appeal 2010-006882
Application 11/033,528

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We interpret claim 1 to recite a support frame and a crisper pan that
each include elements of a first glide system and a first and a second pair of
mounting elements for receiving second and third glide elements/members
that form second and third glide systems where the first, second, and third
glide systems are alternatively employed to slidably support the crisper pan
on the support frame. There is no dispute that the Specification discloses
this subject matter. See Ans. 3; App. Br. 10. The Examiner has not shown
that undue experimentation would be required to practice this subject matter.
We cannot sustain the rejection of claim 1 for lack of enablement.
Claims 1, 2, and 8-12 as being indefinite
The Examiner rejected claims 1, 2, and 8-12 as being indefinite as to
how many glide systems are used within the refrigerator. Ans. 4, 10. We
agree with Appellants that a skilled artisan would understand that claim 1
recites a support frame and crisper pan with a first glide system and structure
for receiving elements of a second and third glide system where the crisper
pan is supported on the support frame by selectively employing one of three
glide systems. Merely that a claim is broad does not mean that it is
indefinite. See In re Johnson, 558 F.2d 1008, 1016 n.17 (CCPA 1977).
We cannot sustain the rejection of claims 1, 2, and 8-12.
Claims 1, 2, 8, 9, 12, 15, 16, and 18 as anticipated by Lee
The Examiner found that Lee discloses a refrigerator and crisper
system having a support frame 300 with a first pair of glide elements (top
surface of support 310), a first pair of mounting elements (roller grooves
342, 352) for receiving a second pair of glide elements (rollers 340, 350),
and a second pair of mounting elements (vertical portion of element 334)
capable of receiving other elements. Ans. 4-5. The Examiner also found
Appeal 2010-006882
Application 11/033,528

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that Lee discloses a crisper pan 400 with a first pair of glide members (the
flanges of frame 420), a first pair of mounting members (coupling members
430, 431) for receiving a second pair of glide members (rollers 450, 451),
and a second pair of mounting members (wheel latches 460, 461) capable of
receiving other elements. Ans. 5. The Examiner also interpreted claim 1 as
reciting a first glide system and an intended use for two other glide systems
and found that Lee discloses a wheeled first glide system that is capable of
functioning with two other glide systems. Ans. 13-14.
Appellants argue that Lee’s wheeled glide system is comparable to the
second embodiment of Appellants’ glide system but Lee does not disclose
structure for three separate glide systems where an existing glide system is
removed to establish another glide system. App. Br. 15-16.
We agree with the Examiner that Lee discloses a first glide system
(upper surface of support 310, crisper frame rail 420)1 and a second wheeled
glide system (rollers 340 on partition 300, rollers 450, 451 on crisper 400).2
However, the Examiner’s finding that vertical part 334 and wheel latches
460, 461 are “capable of receiving other elements as best understood” (Ans.
5) to form a third glide system3 is not supported by a preponderance of

1 Appellants disclose a friction glide system with a first glide element 70
(and first glide surface 72) of a support frame 37 that cooperates with first
glide members 108 of a crisper pan 39. Spec. 10, ll. 1-16; Figs. 3-5.
2 Appellants’ wheeled system has mounts 80 on the support frame 37 that
receive wheels 142, 143 that ride along mounting member 125 of crisper pan
39, and crisper pan 39 has mounts 112 for wheels 152, 153 that ride on glide
surface 72 of support frame 37. Spec. 11, l. 22 to Spec. 12, l. 4; Figs. 9, 10.
3 Appellants’ glide rail system includes a second pair of mounting elements
75 that secure glide rail elements 190 to the support frame 37 and mounting
members 125 on the crisper pan that receive attachment elements 205, 206
of the glide rail elements 190. Spec. 12, ll. 5-26; Figs. 4, 5, 9, 10, 17, 18.
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Application 11/033,528

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evidence. Lee discloses that vertical part 334 secures the partition 300 to a
shelf projection 610, and latches 460, 461 retain rollers 450, 451 on shafts
440, 441 of a roller glide system. Col. 3, ll. 40-45; col. 4, ll. 28-36; figs. 2,
3. The Examiner has not adequately explained how vertical part 334 and
latches 460, 461 can receive glide elements/members that cooperate to form
a third glide system for supporting the crisper pan 400 on the frame 300,
particularly where Lee discloses the latches 460, 461 as being inset from and
beneath vertical part 334 (shown as element 330 in Figure 3). We cannot
sustain the rejection of claims 1, 2, 8, 9, 12, 15, 16, and 18.
Claims 10 and 11 as unpatenable over Lee and Schenker/Henson
The Examiner relied on Schenker and Henson to disclose features of
claims 10 and 11, which depend indirectly from claim 1, and not to cure any
deficiencies of Lee as to claim 1. Ans. 6, 7. We cannot sustain the rejection
of claims 10 and 11.
DECISION
We REVERSE the rejections of claims 1, 2, 8-12, 15, 16, and 18.

REVERSED

mls