Ex Parte CUR et alDownload PDFPatent Trial and Appeal BoardDec 7, 201713108226 (P.T.A.B. Dec. 7, 2017) Copy Citation 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. 13/108,226 05/16/2011 NIHAT CUR SUB-US20080774-US-NP 9136 130333 7590 12/11/2017 WHTRT POOT TORPOR ATTON - MF> 1 PRIOR HF.NF.VFJ F) EXAMINER LLP TADESSE, MARTHA 2000 NORTH M63 BENTON HARBOR, MI 49022 ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 12/11/2017 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): mike_lafrenz @ whirlpool .com deborah_tomaszewski@whirlpool.com ptomail @priceheneveld.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NIHAT CUR, ALBERTO R. GOMES, LUIZ ANTONIO D. LOPES, GUOLIAN WU, and LUCIANA WASNIEVSKI DA SILVA1 Appeal 2016-008232 Application 13/108,226 Technology Center 3700 Before JAMES P. CALVE, WILLIAM A. CAPP, and ANTHONY KNIGHT, Administrative Patent Judges. CALVE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Final Office Action rejecting claims 1—32. See Appeal Br. 16. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Whirlpool Corporation is identified as the real party in interest. Appeal Br. 1. Appeal 2016-008232 Application 13/108,226 CLAIMED SUBJECT MATTER The Specification discloses refrigerator 100 with cooling module set 106 that can be configured in vertical and/or horizontal orientations within mullions 122 to allow freezer and refrigerator compartments 102, 104 to be configured in different arrangements. Spec. ^ 1,3, 35—38. Claims 1, 13, 24, and 31 are independent. Representative claim 1 is reproduced below. 1. An appliance comprising: at least one freezer compartment; at least one refrigerator compartment, wherein the freezer compartment and the refrigerator compartment are defined by a plurality of interior surfaces; at least one mullion; and a mullion envelope that defines an exterior surface of the mullion wherein the mullion envelope at least partially encloses a cooling module set and is removably engaged to at least one of the plurality of interior surfaces, the cooling module set comprising: an orientation-flexible compressor, wherein the cooling module set is configured to operate in any orientation including at least a vertical orientation within a plurality of mullion orientations without modification to the orientation-flexible compressor and without modification as to the orientation of the orientation-flexible compressor, and the at least partially enclosed cooling module set is further configured to be repositionable with respect to the plurality of interior surfaces including between at least one vertical surface and at least one horizontal surface to alter the appliance configuration defined by the specific orientation of the refrigerator compartment and the freezer compartment, and the at least partially enclosed cooling module set is configured to alter a shape of at least one of the refrigerator compartment and the freezer compartment; wherein the cooling module set supplies cooling to the at least one freezer compartment temperature at a freezer compartment temperature and to the at least one refrigerator compartment at a refrigerator compartment temperature that is higher than the freezer compartment temperature. 2 Appeal 2016-008232 Application 13/108,226 REJECTIONS Claims 1—3, 6, 8, 9, 11—13, 15, 19, 20, 22—27, 29, 31, and 32 are rejected under 35 U.S.C. § 103(a) as unpatentable over Amaral (WO 2010/043009 A2, pub. Apr. 22, 2010) and Quesada Saborio (US 2010/ 0058791 Al, pub. Mar. 11,2010). Claims 4, 5, 16, and 17 are rejected under 35 U.S.C. § 103(a) as unpatentable over Amaral, Quesada Saborio, and Maudlin (US 4,041,727, iss. Aug. 16, 1977). Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over Amaral, Quesada Saborio, and Luisi (US 2007/0228907 Al, pub. Oct. 4, 2007).2 Claims 18 and 28 are rejected under 35 U.S.C. § 103(a) as unpatentable over Amaral, Quesada Saborio, and Luisi. Claims 10, 21, and 30 are rejected under 35 U.S.C. § 103(a) as unpatentable over Amaral, Quesada Saborio, and Cur (US 7,908,873 Bl, iss. Mar. 22, 2011). ANALYSIS Claims 1—3, 6, 8, 9, 11—13, 15, 19, 20, 22—27, 29, 31, and 32 Rejected Over Amaral and Quesada Saborio Appellants argue claims 1, 2, 6, 8, 9, 11—13, 15, 19, 20, 22—27, and 29 as a group. See Appeal Br. 5—14. We select claim 1 as representative, with claims 2, 6, 8, 9, 11—13, 15, 19, 20, 22—27, and 29 standing or falling with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). 2 The reference to Hashimoto (EP 2233874) in the caption of this rejection (Final Act. 23) appears to be a typographical error because Hashimoto is not relied upon in the body of the rejection (id.). See Appeal Br. 15. 3 Appeal 2016-008232 Application 13/108,226 Claims 1. 2, 6. 8. 9. 11-13. 15. 19. 20, 22-27. and 29 The Examiner finds that Amaral discloses appliance G with freezer compartment 1-CF, refrigerator compartment 2-CR, and mullion (partition wall PD) at least partially enclosing a cooling module set (MR) in three different horizontal positions in Figure 1, but lacks an orientation-flexible compressor and a cooling module configured to operate in any orientation to include at least a vertical orientation. Final Act. 2—3. The Examiner finds that Quesada Saborio teaches an orientation-flexible compressor and cooling module set 25 (e.g., single flexible monoblock) configured to operate in any orientation including a vertical orientation and is repositionable between at least one vertical surface and at least one horizontal surface. Id. at 3^4. The Examiner determines that it would have been obvious to modify Amaral’s cooling module set and mullion with that of Quesada Saborio to enable a plurality of orientations, including a vertical orientation that facilitates many different customized refrigerator and freezer compartment configurations and sizes without changing the appliance foot print. Id. at 4. Appellants argue that Amaral discloses a cooling module set that can be positioned in different vertical locations that are horizontally disposed but the cooling module sets are not repositionable. Appeal Br. 6. Appellants argue that the term “repositioning” is defined in the Specification as being repositionable in the factory after assembly in the factory or by a consumer, whereas Amaral teaches a cooling module and mullion that is positionable in a choice of locations but once it is installed in an interior surface, the cooling module is fixed in place and is not repositionable as recited in claim 1. Id. at 7—8. Appellants also argue that Quesado Saborio does not teach this feature either. Id. at 8. 4 Appeal 2016-008232 Application 13/108,226 These arguments are not persuasive for the following reasons. First, we agree with the Examiner that Amaral teaches a cooling module MR that is repositionable in three different horizontal positions with respect to plural interior surfaces in upper, median, and lower parts of cabinet G as shown in Figure 1. Ans. 2; Final Act. 2—3; Amaral, 6:11—20. Appellants disclose that one way in which the claimed cooling module set 106 is “repositionable” is “during manufacturing (e.g., at the factory).” Spec. 1 51; see Appeal Br. 7. We agree with the Examiner that Amaral teaches this feature and Appellants do not dispute that Amaral teaches a cooling module set that is positionable in one of several positions. Appeal Br. 7—8. We determine that a cooling module set that can be positioned in three different slots in a refrigerator cabinet G is “repositionable” as claimed. See Ans. 2. Appellants have not defined “repositionable” to mean a cooling module set that is positionable during manufacture, reconfigurable at the factory after the production of the appliance at the factory, or repositionable by consumer as Appellants argue. See Appeal Br. 7. Instead, Appellants disclose that cooling set module 106 may be reconfigurable at the factory after production of the appliance at the factory (Spec. 1 56), or it may be repositionable during manufacturing at the factory “and/or” by a consumer (id. 151). We do not consider the different ways of configuring a cooling module set at different times and locations as being a lexicographic definition that requires each cooling module set to be configurable in each of these ways, particularly when paragraphs 51 and 56 of the Specification disclose different alternate ways to reconfigure a cooling module set. See Appeal Br. 7. Moreover, even if we viewed Appellants as providing a lexicographic definition, one of the repositionable configurations can occur at the factory during production, as Amaral discloses. 5 Appeal 2016-008232 Application 13/108,226 Amaral teaches the repositioning of cooling module set MR during manufacture (see Amaral 6:11—20, Fig. 1), which the Examiner reasonably interprets as allowing repositioning between an upper, median, or lower part of cabinet G (Ans. 2). This arrangement corresponds to one embodiment that Appellants disclose as being repositionable in their Specification. Spec. 151 (during manufacturing at the factory). Claim 1, an apparatus claim, does not require the cooling module set to be repositionable in a particular way or at a particular time, and we decline to read such limitations or other embodiments from the Specification into claim 1. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) (before application is granted, there is no reason to read into the claim the limitations of the specification because “during patent prosecution when claims can be amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed”). The Examiner also relies on Quesado Saborio to teach repositionable cooling module sets. Final Act. 3^4; Ans. 2. Quesado Saborio teaches a cooling module set that is repositionable between one or more vertical and horizontal surfaces. See Quesado Saborio Tflf 175—180, Figs. 8—17, 24—27. Appellants’ argument that “Saborio is not cited for this feature and . . . fails to teach or suggest this feature” (Appeal Br. 8) does not address the Examiner’s findings that Quesado Saborio teaches a repositionable cooling module in mullions (covers 18, 19) that may be removably engaged inside interior surfaces as shown, for example, in Figures 9-22, 24. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (approving of Board’s practice in Ax parte Frye of requiring appellants to identify error in a rejection); Ex parte Frye, 94 USPQ 2d 1072, 1075—76 (BPAI 2010) (precedential) (a panel reviews rejections for error based on the issues identified by an appellant). 6 Appeal 2016-008232 Application 13/108,226 Appellants argue for the first time in their Reply Brief that Amaral discloses three different cabinets, each having a single opening in different locations rather than a single cabinet having three openings. Reply Br. 2—3. As a result, Appellants argue that once cooling module set (refrigerating module MR) is mounted in opening 1 of cabinet A, module MR cannot be moved within cabinet A because there is no other opening in cabinet A. Id. at 3. Appellants also argue that Figure 6 of Amaral shows cabinet G with a single opening 2 that receives refrigerating module MR and once the module is mounted in the opening, it cannot be repositioned. Id. This argument is untimely and will not be considered as it was made for the first time in the Reply Brief, not in response to an argument raised in the Answer, and without good cause being shown. 37 C.F.R. § 41.41(b)(2). Moreover, claim 1 requires a cooling module set to be repositionable with respect to plural interior surfaces including at least one horizontal surface and at least one vertical surface. Figure 1 of Amaral illustrates how cooling module set MR is positioned and repositioned with respect to the interior surfaces of cabinet G in upper part, median part, and lower part. Claim 1 does not require the appliance to include at least three separate openings with the cooling module set being positionable in one of the three separate openings and later being positioned in another of the separate openings as the Specification discloses can occur if multiple access ports 164 are used.3 3 Appellants disclose that “[a] plurality of configuration access ports may be configured in the appliance cabinet and sealed with a removable (typically insulated) plug or covering when one or more of the configuration access ports are not operably engaged with the cooling module set.” Spec. 1 55. “The configuration access ports 164 can be cut into the generic cabinet at various locations.” Id. 1 56. Claim 1 does not recite access ports, however. 7 Appeal 2016-008232 Application 13/108,226 An essential purpose of patent examination is to fashion claims that are precise, clear, correct, and unambiguous. Only in this way can uncertainties of claim scope be removed, as much as possible, during the administrative process. Zletz, 893 F.2d at 322. We also find the Declaration of Alberto R. Gomes, one of the named inventors, to be inapposite regarding Amaral’s disclosure of repositionable cooling module sets. Mr. Gomes testifies that Amaral does not disclose a cooling module set configured to be repositionable as claimed. See Gomes Declaration (dated July 23, 2015) 111 (Appendix II to Appeal Brief). Mr. Gomes testifies that the Examiner is taking the present application, which teaches repositioning the mullion and cooling module set and is applying the teachings of my current invention to interpret the Amaral reference in a manner that is not disclosed by Amaral. Gomes Declaration 112. This testimony is speculative. It does not address the Examiner’s findings that Amaral teaches repositionable cooling module set MR in Figure 1 being repositionable between upper, median, and lower interior horizontal and vertical surfaces of cabinet G, and Quesado Saborio also teaches this feature. Final Act. 2—A\ Ans. 2. Even if Amaral is limited to horizontal layouts as Mr. Gomes testifies (Gomes Declaration 113), the Examiner has explained how such configuration satisfies the requirements of claim 1 regarding being “repositionable.” We agree with the Examiner that positioning cooling module set MR in different parts of cabinet G also repositions module MR relative to interior vertical and horizontal surfaces of cabinet G as claimed. See Amaral, Fig. 1. Moreover, Quesado Saborio also teaches repositionable cooling module sets as discussed above. 8 Appeal 2016-008232 Application 13/108,226 We also agree with the Examiner that Quesado Saborio discloses an orientation flexible compressor as illustrated, for example, in Figure 26. Claim 1 recites “an orientation-flexible compressor, wherein the cooling module set is configured to operate in any orientation including at least a vertical orientation . . . without modification to the orientation-flexible compressor and without modification to the orientation of the orientation- flexible compressor.'1'’ Appeal Br. 17 (Claims Appendix) (emphasis added). Figure 26 of Quesado Saborio discloses this exact arrangement with a cooling module set in various horizontal and vertical configurations without modification to compressor 73 and without modification to the orientation of compressor 73. See also Quesado Saborio, Figs. 9-25. Appellants also disclose an embodiment with cooling module set 106 configured to operate in any orientation without modifying the orientation of compressor 112’, which can be a standard compressor with oil in their Figures 10—12. Appellants also argue that an orientation flexible compressor does not use oil as a lubricant but instead uses refrigerant gas as the lubricant for the gas bearings so there is no oil to drain out of the sump if the compressor is turned on its side or upside down. Appeal Br. 9. This argument is not commensurate with the scope of claim 1 and thus is not persuasive. Indeed, Appellants’ Specification discloses that compressor 112 can be an oil-less compressor. Spec. 137. Claim 10, which depends from claim 1, recites this feature. Inline Plastics Corp. v. EasyPak, LLC, 799 F.3d 1364, 1371 (Fed. Cir. 2015) (“[t]he presence of a dependent claim that adds a particular limitation gives rise to a presumption that the limitation in question is not present in the independent claim.”); Seachange Int’l, Inc. v. C-CORInc., 413 F.3d 1361, 1368-69 (Fed. Cir. 2005) (same). 9 Appeal 2016-008232 Application 13/108,226 Claim 1 requires the orientation-flexible compressor to be oriented in the same orientation (i.e., “without modification as to the orientation of the orientation-flexible compressor”). Quesado Saborio teaches this feature. The Examiner’s finding that Quesado Saborio teaches an orientation- flexible compressor is supported by a preponderance of evidence. We do not interpret this limitation to require an oil-less compressor because the language of claim 1 does not specify any particular type of compressor, and dependent claim 10 recites an oil-less compressor. Appellants disclose that “the orientation of the orientation-flexible compressor within the CMS 106 does not need to be altered as the orientation of the CMS 106 is changed.” Id. 147. Quesado Saborio discloses this arrangement. Quesado Saborio’s compressor does not change its own orientation as the cooling module set is repositioned. Claim 1 does not require the orientation-flexible compressor to be reorientable with respect to any particular feature, e.g., the cooling module set or the orientation-flexible compressor itself. See Reply Br. 4—5. Appellants disclose both types of orientation-flexible compressor 112, 112’. Spec. 47-48, Figs. 7—12. Claim 1 thus encompasses the embodiment of Figures 10—12 where the orientation of the module cooling set changes but the orientation of compressor 112’ does not. Quesado Saborio discloses this type of compressor orientation in a cooling module set. Appellants’ argument that Quesado Saborio does not teach a mullion within the interior of a refrigerator (Reply Br. 4) is untimely and thus is not persuasive. Moreover, the Examiner relies on Amaral to teach this feature. Final Act. 2. We agree with the Examiner that Amaral teaches this feature, for example, in Figure 6 with cooling set module MR positioned in partition wall PD and finishing panel PA, which are inside the interior of cabinet G. 10 Appeal 2016-008232 Application 13/108,226 The Examiner also relies on Quesado Saborio to teach a mullion (e.g., covers 18, 19) containing cooling module sets and placed in a plurality of vertical and horizontal interior surface orientations. The Examiner relies on this teaching to modify Amaral’s mullions to allow repositioning of cooling module sets MR of Amaral in cabinet G to customize different refrigerator and freezer compartment sizes. See Final Act. 4. Appellants’ argument that the Examiner’s reasoning is unclear because the changing of a foot print and overall dimensions are not claimed (Appeal Br. 8) is not persuasive because the Examiner’s reasoning may differ from that of an inventor. Thus, we sustain the rejection of claim 1, with claims 2, 6, 8, 9, 11— 13, 15, 19, 20, 22—27, and 29 standing with claim 1. Appeal Br. 11 (arguing reversal of claims 13 and 24 for the same reasons as claim 1 and claim 23 based on an orientation-flexible compressor). Claim 3 Claim 3 depends from claim 1 and recites that “the mullion is further configured to be repositionable within the appliance, such that a ratio of the refrigerator compartment and the freezer compartment is altered when the mullion is repositioned.” The Examiner finds that Amaral teaches a ratio of the refrigerator to freezer compartments that is altered in Figure 1 when the position of cooling module MR changes. Final Act. 5—6. Appellants argue that Amaral does not disclose repositioning and therefore does not disclose this feature. Appeal Br. 10—11. This argument is not persuasive in view of our holding that Amaral does disclose a repositionable cooling module set MR that is repositioned in upper, median, and lower parts of cabinet G and the repositioning changes the ratio of refrigerator and freezer compartments as illustrated in Figure 1 of Amaral. 11 Appeal 2016-008232 Application 13/108,226 Figures 1 and 6 of Amaral also illustrates how changes in the position of module MR would change the position of the associated partition wall PD and finishing panel PA and thereby alter the ratio of freezer compartment 1 - CF and refrigerator compartment 2-CR as claimed. See Amaral, 10:4—11:20, Figs. 1, 6. Thus, we sustain the rejection of claim 3. Claim 31 Appellants argue that the prior art does not teach an orientation- flexible compressor in claim 31 for the same reasons as claim 1. Compare Appeal Br. 11—14 with id. at 8—10. This argument is not persuasive for the same reasons as claim 1, and we sustain the rejection of claim 31. Claim 32 Appellants argue that there is no door in Amaral or Quesado Saborio to alter the perimeter shape as recited in claim 32. Appeal Br. 14. We agree with the Examiner that Amaral teaches doors la, 2a (Figure 6) that change dimension and perimeter shape as cooling module set MR is repositioned in cabinet G. Final Act. 19. Figure 6 of Quesado Saborio illustrates mullion PA/PD located with cooling module set MR such that repositioning module MR in upper, median, or lower parts of cabinet G would reposition mullions PA, PD to alter dimensions of the freezer and refrigerator compartments. Quesado Saborio, 10:4—11:20. Thus, we sustain the rejection of claim 32. Claims 4, 5, 16, and 17 Rejected Over Amaral, Quesada Saborio, and Maudlin Appellants argue that claims 4, 5, 16, and 17 are allowable because they depend from independent claims 1 and 13. See Appeal Br. 14. This argument is not persuasive in view of our affirmance of the rejection of claims 1 and 13. Thus, we sustain the rejection of claims 4, 5, 16, and 17. 12 Appeal 2016-008232 Application 13/108,226 Claim 7 Rejected Over Amaral, Quesada Saborio, and Luisi Appellants argue that claim 7 is allowable because it depends from independent claim 1. See Appeal Br. 15. This argument is not persuasive in view of our affirmance of the rejection of claim 1. Thus, we sustain the rejection of claim 7. Claims 18 and 28 Rejected Over Amaral, Quesada Saborio, and Luisi Appellants argue that claims 18 and 28 are allowable because they depend from independent claims 13 and 24. See Appeal Br. 15. This argument is not persuasive in view of our affirmance of the rejection of claims 13 and 24. Thus, we sustain the rejection of claims 18 and 28. Claims 10, 21, and 30 Rejected Over Amaral, Quesada Saborio, and Cur Appellants argue that claims 10, 21, and 30 are allowable because they depend from independent claims 1,13, and 24. See Appeal Br. 14. This argument is not persuasive in view of our affirmance of the rejection of claims 1,13 and 24. Thus, we sustain the rejection of claims 10, 21, and 30. DECISION We affirm the rejections of claims 1—32. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 13 Copy with citationCopy as parenthetical citation