Ex Parte Candeo

Patent Trial and Appeal BoardAug 29, 2017

12395183 (P.T.A.B. Aug. 29, 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. 12/395,183 02/27/2009 Marcelo Candeo WGP-44670 3874 122869 7590 Pearne and Gordon, LLP 1801 East 9th Street, Suite 1200 Cleveland, OH 44114 EXAMINER MARTIN, ELIZABETH J ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 08/31/2017 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): patdocket@peame.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARCELO CANDEO Appeal 2016-005746 Application 12/395,183 Technology Center 3700 Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. WARNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Marcelo Candeo (“Appellant”)1 2appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 20—24, 26, and 27.2 See Appeal Br. 1, 11. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 According to Appellant, the real party in interest is Electrolux Home Products, Inc. Appeal Br. 2. 2 Claims 1—19, 25, and 28—30 have been canceled (see Appeal Br. 12—15, Claims App.), and claims 31 and 32 have been allowed by the Examiner (see Final Act. 2). Appeal 2016-005746 Application 12/395,183 CLAIMED SUBJECT MATTER Appellant’s disclosed invention relates to “an evaporator assembly for an appliance.” Spec. 11. Claim 20, reproduced below, is the sole independent claim appealed and is representative of the subject matter on appeal. 20. A refrigeration appliance including at least a first compartment and a second compartment and comprising: at least one air duct located between the first and second compartments and configured to allow air to flow from the second compartment into and along the first compartment; an evaporator including first and second opposed ends located in the first compartment and further including a pipe having a plurality of bent end portions to allow the pipe to wind itself repeatedly to form a plurality of rows, wherein a plurality of fins including a plurality of end fins are on the pipe; a cover configured to overlie the evaporator and at least a first air passage and bound at least a first portion of the first air passage; a first bracket located adjacent the first opposed end of the evaporator and supporting the evaporator thereat, the first bracket being mounted to a liner of the first compartment and the first bracket being configured to contact the cover and bound at least a second portion of the first air passage and preclude air from flowing into the first opposed end of the evaporator from the first air passage; and a second bracket located adjacent the second opposed end of the evaporator and supporting the evaporator thereat; and wherein the plurality of end fins are placed in direct contact with the first end bracket, and wherein the first bracket and second bracket each include a plurality of apertures to receive each bent end portion of the pipe, and wherein the plurality of end fins are restricting and sealing the air stream from flowing through the plurality of apertures of the first bracket and the second bracket. 2 Appeal 2016-005746 Application 12/395,183 EVIDENCE The Examiner relied on the following evidence in rejecting the claims appeal: Nelson US 3,369,595 Feb. 20, 1968 Apple US 3,845,638 Nov. 5, 1974 Sikora US 5,237,831 Aug. 24, 1993 Lim US 2008/0202141 A1 Aug. 28, 2008 REJECTIONS The following rejections are before us for review: I. Claims 20, 21, 24, 26, and 27 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Lim, Nelson, and Sikora. Final Act. 2—7. II. Claims 22 and 23 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Lim, Nelson, Sikora, and Apple. Id. at 8—10. ANALYSIS Independent claim 20 recites, in relevant part, a refrigeration appliance including an evaporator with a “plurality of end fins [that] are placed in direct contact with the first end bracket, . . . and wherein the plurality of end fins are restricting and sealing the air stream from flowing through the plurality of apertures of the first bracket and the second bracket.” Appeal Br. 12, Claims. App. (emphasis added). Appellant argues that the claimed subject matter would not have been obvious because the combination of Lim, Nelson, and Sikora does not result in end fins being 3 Appeal 2016-005746 Application 12/395,183 placed in direct contact with a bracket such that the end fins restrict and seal the air stream from flowing through apertures in the end bracket. See id. at 9-10. We agree with Appellant that a sustainable case of obviousness has not been established. In rejecting claim 20, the Examiner found that Lim discloses a refrigeration appliance including, inter alia, an evaporator pipe, a plurality of end fins, and brackets having apertures to receive the pipe. See Final Act. 2-4 (citing Lim, Figures 2, 3). The Examiner acknowledged that Lim “fails to explicitly teach wherein the plurality of end fins are placed in direct contact with at least the first bracket and wherein the plurality of end fins are restricting and sealing the air stream from flowing through the plurality of apertures of the first bracket and the second bracket.” Id. at 4. However, the Examiner found that “Nelson teaches the plurality of end fins . . . placed in direct contact with at least the first bracket (metallic fin place [d] in direct contact with bracket, Col. 1, lines 46-49).” Id. The Examiner concluded that, given the teachings of the prior art, “it would have been obvious to a person skilled in the art at the time of the invention to modify the fin and bracket of Lim to include [a] plurality of end fins . . . placed in direct contact with at least the first bracket in view of the teachings of Nelson to provide support [for] the unit.” Id. The Examiner also acknowledged that the combination of Lim and Nelson still “fail[s] to explicitly teach wherein the plurality of end fins are restricting and sealing the air stream from flowing through the plurality of apertures of the first bracket and the second bracket.” Id. However, the Examiner found that Sikora discloses “the plurality of end fins are restricting and sealing (resilient seals 35 are mounted to engage inwardly the front and 4 Appeal 2016-005746 Application 12/395,183 rear sides 34 of fins 23, Figures 3 and 4) the air stream from flowing through the plurality of apertures (holes for tubes 24, Figure 5) of the first bracket and the second bracket.” Id. The Examiner concluded that it would have been obvious to modify the combination of Lim and Nelson “to include the plurality of end fins . . . restricting and sealing the air stream from flowing through the plurality of apertures of the first bracket and the second bracket[,] in view of the teachings of Sikora[,] to ensure isolation of air streams being delivered through the ducts.” Id. at 5. Here, the Examiner erred by not articulating sufficient reasoning supported by a rational underpinning why a person having ordinary skill in the art would have been prompted to modify the evaporator of Lim to include a plurality of end fins disposed in direct contact with the end bracket such that the end fins restrict and seal the air stream from flowing through the apertures in the bracket, as required by the claims. See KSR Int 7 Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (stating that “[Rejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness” (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006))). To the extent that Sikora teaches sealing to isolate air streams, Sikora teaches a separate, resilient seal between the fins and the surrounding opening. See Sikora, col. 4,11. 24—27; Fig. 3. As such, we do not see why a person having ordinary skill in the art would have been led by the combined teachings of the cited references to modify Lim to have the end fins disposed in direct contact with the brackets to seal and restrict air streams through the apertures. Further, although Sikora’s broad teaching of providing seals to 5 Appeal 2016-005746 Application 12/395,183 ensure efficient isolation of air streams might have prompted a person of ordinary skill in the art to seal the apertures in Lim’s bracket, the Examiner has not adequately explained why it would have been obvious to have the end fins, as opposed to a separate seal, perform this function. Rejections based on obviousness must rest on a factual basis; in making such a rejection, the Examiner has the initial burden of supplying the requisite factual basis and may not, because of doubts that the invention is patentable, resort to speculation, unfounded assumptions, or hindsight reconstruction to supply deficiencies in the factual basis. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). Absent improper hindsight reconstruction, we do not see a sufficient reasoned explanation based on a rational underpinning how or why one of ordinary skill in the art would have placed the end fins of Lim in direct contact with the bracket so as to restrict and seal the air stream from flowing through the apertures, and a reason for such modification is not otherwise evident for the record. In Rejection II of dependent claims 22 and 23, the Examiner relied on Apple for teaching additional features recited in these claims, but did not articulate any additional findings or reasoning that would cure the above deficiency with respect to the proposed combination of Lim, Nelson, and Sikora as applied in the rejection of independent claim 20. See Final Act. 8—10. Accordingly, based on the record before us, the Examiner has not met the burden of establishing a proper case of obviousness. On this basis, we do not sustain the rejections of claims 20-24, 26, and 27, under 35 U.S.C. § 103(a). 6 Appeal 2016-005746 Application 12/395,183 DECISION We REVERSE the Examiner’s decision rejecting claims 20, 21, 24, 26, and 27 under 35 U.S.C. § 103(a) as being unpatentable over Lim, Nelson, and Sikora. We REVERSE the Examiner’s decision rejecting claims 22 and 23 under 35 U.S.C. § 103(a) as being unpatentable over Lim, Nelson, Sikora, and Apple. REVERSED 7