Ex Parte Chilcoat et al

Patent Trial and Appeal BoardAug 31, 2016

12800595 (P.T.A.B. Aug. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/800,595 05/18/2010 Edward A. Chilcoat 26009 7590 09/01/2016 ROGERM. RATHBUN 13 MARGARITA COURT HILTON HEAD ISLAND, SC 29926 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 4463 EXAMINER BARRY, DAPHNE MARIE ART UNIT PAPER NUMBER 3753 MAILDATE DELIVERY MODE 09/01/2016 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 Exparte EDWARD A. CHILCOAT andDANIEL J. HAYES Appeal2014-007965 Application 12/800,595 1 Technology Center 3700 Before BIBHU R. MOHANTY, KENNETH G. SCHOPPER, and AMEE A. SHAH, Administrative Patent Judges. SCHOPPER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. Â§ 134 from the rejection of claims 1 and 4--23. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM-IN-PART. BACKGROUND According to Appellants, The present invention relates to the field of appliance elevating and storage pedestals and the containment and proper discharge of liquids due to plumbing failure, seal failure, or mechanical failure within a liquid filled appliance such as but not limited to 1 According to Appellants, the real parties in interest are Edward A. Chilcoat and Daniel J. Hayes. Appeal Br. 2. Appeal2014-007965 Application 12/800,595 clothes washing machines, condensing clothes dryers, water heaters, dishwashers, refrigerators, icemakers, and similar devices. Spec. 1. CLAIMS Claims 1 and 4--23 are on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. An elevating appliance pedestal for rece1vmg liquid leaking from an appliance, the appliance pedestal comprising: a housing forming a liquid-tight sump, said housing having an uppermost planar surface adapted to support an appliance containing a liquid, the uppermost planar surface substantially surrounding an appliance resting atop of the uppermost planar surface, wherein the uppermost planar surface includes an outer edge and an inner edge, the outer edge comprising a lip extending vertically upwardly along the outer edge of the uppermost planar surface substantially surrounding the uppermost planar surface and substantially surrounding an appliance supported on the uppermost planar surface thereon to retain an appliance on the uppermost planar surface, wherein the uppermost planar surface and the lip diverts liquid leaking from the appliance to the liquid-tight sump, the liquid-tight sump located underneath the uppermost planar surface to receive liquid leaking from an appliance, a discharge system for removing liquid from the liquid- tight sump. Appeal Br. 21. REJECTIONS 1. The Examiner rejects claims 1, 8, 11, 12, 19, and 21-23 under 35 U.S.C. Â§ 102(b) as anticipated by Akkala. 2 2 Akkala et al., US 7,421,784 B2, iss. Sept. 9, 2008. 2 Appeal2014-007965 Application 12/800,595 2. The Examiner rejects claims 4, 6, 9, 10, 18, and 20 under 35 U.S.C. Â§ 103(a) as unpatentable over Akkala in view of Sublett. 3 3. The Examiner rejects claim 5 under 35 U.S.C. Â§ 103(a) as unpatentable over Akkala in view of Sublett and Dickison. 4 4. The Examiner rejects claim 7 under 35 U.S.C. Â§ 103(a) as unpatentable over Akkala in view of Zeek. 5 5. The Examiner rejects claim 13 under 35 U.S.C. Â§ 103(a) as unpatentable over Akkala in view of Sublett and Hoppe. 6 6. The Examiner rejects claim 14 under 35 U.S.C. Â§ 103(a) as unpatentable over Akkala in view of Roidt. 7 7. The Examiner rejects claims 15-17 under 35 U.S.C. Â§ 103(a) as unpatentable over Akkala in view of Clevett. 8 DISCUSSION Rejection 1 With respect to claim 1, the Examiner finds that Akkala discloses all limitations as claimed. See Final Act. 11-12 (citing Akkala Fig. 3; col. 3, 11. 29-43). Appellants first argue that Akkala does not disclose an appliance pedestal because the pedestal 50 identified by the Examiner is part of the appliance itself, i.e. the pedestal forms part of the water heater 10 and thus cannot be considered a separate appliance pedestal. Appeal Br. 7-8. 3 Sublett, US 4,903,723, iss. Feb. 27, 1990. 4 Dickison et al., US 6, 116,266, iss. Sept. 12, 2000. 5 Zeek, US 6,276,309 Bl, iss. Aug. 21, 2001. 6 Hoppe, US 2009/0095331 Al, pub. Apr. 16, 2009. 7 Roidt, US 3,096,781, iss. July 9, 1963. 8 Clevett, US 3,353,621, iss. Nov. 21, 1967. 3 Appeal2014-007965 Application 12/800,595 However, we are not persuaded by this argument because the pedestal, as identified by the Examiner, has all of the structural features required by the claim such that it may be considered a pedestal as claimed regardless of whether it is a part of a larger appliance. Appellants also argue that "[i]t is also clear that Akkala is not even an effective reservoir for water that may drain since its volumetric capacity is so limited." Appeal Br. 8. However, this argument is not commensurate with the scope of the claim, which does not require a specific volumetric capacity for the reservoir. Based on the foregoing, we are not persuaded of error, and thus, we sustain the rejection of claim 1. Appellants do not provide any further arguments regarding any of the remaining claims subject to this rejection. Accordingly, we also sustain the rejection of claims 8, 11, 12, 19, and 21-23 for the reasons discussed above. Rejection 2 Here, Appellants present separate arguments with respect to claims 6, 9, 10 and 18. Appeal Br. 11-13. Thus, we sustain the rejection of claims 4, and 20 for the reasons discussed above, and we separately address claims 6, 9, 10, and 18 below. Claim 6 Claim 4, which depends from claim 1, requires that the discharge system include a pump, and Claim 6, which depends from claim 4, requires that the pump is a submersible pump. The Examiner relies on Sublett as teaching a submersible pump, and concludes that it would have been obvious to include such a pump in Akkala to provide an effective 4 Appeal2014-007965 Application 12/800,595 mechanism for removing water from the sump. Final Act. 16 (citing Sublett col. 3, 1. 58---col. 4, 1. 21 ). Appellants argue only that Sublett does not disclose a submersible pump. Appeal Br. 11. Although Sublett's pump is positioned such that it would not be submersed (see Sublett Fig. 4), we are not persuaded of error in the rejection. As the Examiner notes, Sublett discloses that the pump may be mounted at other suitable locations using other mounting techniques. Sublett col. 3, 11. 66---68. Based on this disclosure, we agree with the Examiner that Sublett suggests or makes obvious the use of a submersible pump. Accordingly, we sustain the rejection of claim 6. Claims 9 and 10 Appellants state "[a]s to claims 9 and 10, Sublett refers to a pump (74) but makes no reference to a submersible pump. Item (20) is only the bottom surface of the basin according to Sublett." Id. at 12. We are not persuaded of error because claims 9 and 10 do not recite a pump and Appellants have not otherwise addressed the rejection of these claims set forth by the Examiner. Accordingly, we sustain the rejection of claims 9 and 10. Claim 18 Independent claim 18 recites a method of positioning an appliance on a raised pedestal. Appeal Br. 23. The Examiner rejects the claim based on a combination of Akkala and Sublett, primarily relying on Sublett as teaching the method steps in the body of the claim. Final Act. 17 (citing Sublett col. 3, 11. 21--43). We agree with the Examiner that the claimed method would have been obvious in light of Sublett's teachings. Specifically, Sublett discloses a collection basin for underneath a dishwasher including two flanges 58, 60 5 Appeal2014-007965 Application 12/800,595 upon which a dishwasher 1s mstalled. See Sublett Fig. 1. Sublett discloses that a dishwasher may be easily installed after installation of the basin by sliding support legs along the flanges. Id. at col. 3, 11. 21-25. Based on this disclosure, the Examiner finds: Sublett requires tilting the rearward side of an appliance to elevate the rearward side of the appliance to get it onto the raised portion of the pedestal's support flanges. Once the rearward side of the appliance is on the support flanges and while rearwardly sliding the appliance into position, the appliance is guided by the pedestal support flange lips. Prior to the appliance being in the final position, the appliance is in the tilted position, until the entire appliance is on the flange legs. This helps to keep the appliance in proper alignment during installation and makes removal easier. [Sublett, col. 3, lines 34 - 43]. Final Act. 17. Appellants first argue that Sublett does not elevate the appliance. Appeal Br. 12. We disagree as there is some amount of elevation achieved by placing the dishwasher on the support flanges, and the claim does not indicate how much elevation is required. Appellants also argue that Sublett does not require tilting and lifting for installation. Id. at 13. Again, we disagree as there is some small amount of tilting/lifting required to get both front legs of the appliance on the flanges before it can slide on the flanges, and the claim does not indicate how much elevating or tipping is required. Appellants also argue: Accordingly, to combine these references would require one to take the water tank (the appliance as contended by the Examiner) and apparently slide it onto the base pan to assemble the water heater. There is not a bit of disclosure in Akkala or Sublett of carrying out that method to construct a water heater 6 Appeal2014-007965 Application 12/800,595 nor would it even seem feasible as a method of assembling a water heater to a base pan. Appeal Br. 12. However, this argument does not address the rationale provided for making the combination in the rejection, and thus, it does not persuade us of any error in the rejection. See Final Act. 17-18. For these reasons, we sustain the rejection of claim 18. Rejection 3 Claim 5 depends from claim 1 and further requires "wherein the uppermost planar surface has a depression and the pump has a discharge hose that passes through the depression." The Examiner finds that Dickison "teaches an []upper edge has a depression and the pump has discharge hose (15) that passes through the depression," and the Examiner concludes that it would have been obvious to use a hose passing through a depression in Akkala's device for convenient storage of the hose. See Final Act. 18-19 (citing Dickison Fig. 5; col. 3, 11. 49-55). Appellants argue: Dickinson does not disclose a depression for the routing of the hose but discloses an internal storage cavity (14) which is referenced in Fig. 3. This storage cavity is created by the internal space formed between the outer surfaces 11 and 13. Figure 5 is a cross-sectional view (col. 2 line 56) below the draining surface, in other words, fig. 5 is a view of only one of the surfaces that make up the internal cavity 14. This is a hollow internal storage cavity not a depression in an upper edge as defined by applicant in claim 5. Appeal Br. 14. We are persuaded that the Examiner erred in finding that Dickison teaches an upper edge with a depression and a discharge hose passing therethrough. The Examiner has not adequately identified what the "upper 7 Appeal2014-007965 Application 12/800,595 edge with a depression is" in Dickison and it is not clear why one of ordinary skill in the art would have been motivated to include a depression for a discharge hose in the uppermost planar surface of the Akkala's pedestal. For these reasons, we do not sustain the rejection of claim 5. Rejection 4 Appellants do not present separate arguments with respect to the rejection of claim 7. See Appeal Br. 15. Accordingly, we sustain this rejection for the reasons stated above with respect to the rejection of claim 4, from which claim 7 depends. Rejection 5 Claim 13 depends from claim 1 and further requires a drawer in the housing. See Appeal Br. 22. The Examiner relies on Hoppe as teaching a drawer provided in the housing of an appliance pedestal, and the Examiner concludes that including a drawer in the combination of Akkala and Sublett would have been obvious to allow easy access to system components to facilitate maintenance. Final Act. 20-21 (citing Hoppe i-fi-1 5, 15). Appellants argue that "Hoppe is not a leak collection system in an appliance pedestal" and Appellants distinguish Hoppe from the configuration shown in "the present application." Appeal Br. 16. Appellants conclude that Hoppe and the present invention "are two completely different and unrelated systems." Id. These statements are unpersuasive as they attack Hoppe individually and do not address the specific rejection before us, which only relies on Hoppe for the use of a drawer in a pedestal. Thus, we are not persuaded of error and we sustain the rejection of claim 13. 8 Appeal2014-007965 Application 12/800,595 Rejection 6 Claim 14 depends from claim 1 and further requires "screw bosses" with holes having water-tight sealing surfaces within the bores that can be pierced with screws to affix the housing to a supporting structure and maintain the water-tight structure of the housing. See Appeal Br. 22. The Examiner relies on Roidt for these features, finding that Roidt teaches a housing with screw bosses as claimed. Final Act. 21 (citing Roidt Fig. 2; col. 2, 11. 10-14). We are persuaded by Appellants' arguments that the Examiner has not identified any screw bosses as claimed or given any indication why screw bosses would have been obvious to use in light of the art of record. See Appeal Br. 17-18. Roidt discloses the use of lag screws and collars that can "effectively seal the screw-holes against leakage." Roidt col. 2, 11. 12-14. Although Roidt's use of lag screws and collars may have the same waterproofing effect as the claimed screw bosses, the claim provides a specific structure for the screw bosses and the Examiner has not adequately established that Roidt teaches or suggests the claimed structure. For this reason, we are constrained to not sustain the rejection of claim 14 on the record before us. Rejection 7 Claim 15 depends from claim 1, claim 16 depends from claim 15, and claim 1 7 depends from claim 16. Claim 15 requires that "the housing includes an integral air cushion transport system to facilitate movement of the housing across a support structure." Appeal Br. 22. The Examiner relies on Clevett as teaching an integral air cushion transport system to facilitate movement of an appliance, and concludes that it would have been obvious to 9 Appeal2014-007965 Application 12/800,595 use such a system in Akkala. Final Act. 22-23 (citing Clevett col. 1, 11. 27- 30; col. 3, 11. 37--47). Appellants attack Clevett individually as not providing any elevation of the device in contrast to the "express purpose of the pedestal of the present invention." Appeal Br. 19. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Appellants also argue that "both the appliance and the invention of Clevett require engineering changes to work with each other." Appeal Br. 19-20. "The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference .... Rather, the test is what the combined teachings of [those] references would have suggested to those of ordinary skill in the art." In re Keller, 642 F.2d at 425. Thus, the fact that some changes may be required to use an air cushion transport system in Akkala is not sufficient to show error in the rejection. For these reasons, we sustain the rejection of claims 15-1 7. CONCLUSION For the reasons set forth above, we AFFIRM the rejections of claims 1, 4, 6-13, and 15-23, and we REVERSE the rejections of claims 5 and 14. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED-IN-PART 10