Ex Parte Dirnberger et al

Patent Trial and Appeal BoardAug 28, 2017

13576162 (P.T.A.B. Aug. 28, 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. 13/576,162 09/21/2012 Albert Dirnberger BSH-2009P03529 1059 24131 7590 08/30/2017 LERNER GREENBERG STEMER LLP P O BOX 2480 HOLLYWOOD, EL 33022-2480 EXAMINER MA, KUN KAI ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 08/30/2017 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): boxoa@patentusa.com docket @ paten tusa. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALBERT DIRNBERGER, GERHARD ECKL, NORMAN KOCH, JOSE MANUEL LAMUELA ROSANO, GERALD SCHMIDT, GEORG SPIES SL, and HANS PETER WERNER Appeal 2016-003690 Application 13/576,1621 Technology Center 3700 Before BART A. GERSTENBLITH, PHILIP J. HOFFMANN, and BRUCE T. WIEDER, Administrative Patent Judges. WIEDER, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35U.S.C. § 134 from the Examiner’s final rejection of claims 20—26. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is “BSH Bosch und Siemens Hausgerate GmbH.” (Appeal Br. 2.) Appeal 2016-003690 Application 13/576,162 CLAIMED SUBJECT MATTER Appellants’ claimed “invention relates to a refrigeration appliance, in particular a household refrigeration appliance, which has a freezer compartment, in which an ice maker is disposed.” (Spec. 11.) Claim 20 is the sole independent claim on appeal. It recites (emphasis added): 20. A refrigeration appliance, comprising: a carcass having a coolable freezer compartment; a door leaf hinged to the carcass and provided for opening and closing the freezer compartment; an ice maker disposed in the freezer compartment, said ice maker including an ice production apparatus for producing ice cubes and an ice storage container for storing the ice cubes; an insulated housing, in which the ice production apparatus and the ice storage container are disposed, said insulated housing being disposed within the freezer compartment and having a cooling opening for allowing an inflow of cold air from said freezer compartment into said insulated housing. REJECTIONS Claims 20, 21, 25, and 26 are rejected under 35 U.S.C. § 102(b) as anticipated by Anselmino (US 7,266,972 B2, iss. Sept. 11, 2007). Claims 22—24 are rejected under 35 U.S.C. § 103(a) as unpatentable in view of Anselmino and Duncan (US 2,736,173, iss. Feb. 28, 1956). ANALYSIS With regard to the claim element “an ice maker disposed in the freezer compartment,” Appellants acknowledge that “the examiner correctly stated 2 Appeal 2016-003690 Application 13/576,162 that Anselmino discloses ‘an ice maker (194) disposed in the freezer compartment (56 and 190, see figure 5).’” (Appeal Br. 5.) With regard to the claim element “[an] insulated housing being disposed within the freezer compartment,” the Examiner finds that the auxiliary freezer compartment 190 in Anselmino discloses this element. (Final Action 3.) Appellants disagree and argue that “[i]t is decisive that the ‘insulated housing (190)’ is not disposed within the freezer compartment. This is because the ‘insulated housing (190)’, as alleged by the examiner, defines the freezer compartment itself.” (Appeal Br. 5.) Specifically, Appellants argue that “the walls of the compartment (190) define the outer perimeter of the examiner’s alleged freezer compartment and are not and cannot be disposed within themselves. As such, Anselmino does not disclose an insulated housing that is disposed in the freezer compartment.” {Id. at 6.) Anselmino discloses: FIG. 5 illustrates an embodiment in which the freezer compartment 56 can include an auxiliary freezer compartment or insulated sub-compartment 190 which extends partly into the refrigerator compartment 54. The auxiliary freezer compartment 190 is adapted to hold an ice making and dispensing apparatus 192. (Anselmino, col. 11,11. 21—26.) As shown in Figure 5, only some of the walls of the auxiliary freezer compartment define the outer perimeter of the freezer compartment. {Id. at Fig. 5.) It follows that some of the walls of the freezer compartment are not walls of the auxiliary freezer compartment. {See id. at Fig. 5; see also id. at col. 11,11. 21—26.) In other words, auxiliary freezer compartment 190 is not the entire freezer compartment; rather, 3 Appeal 2016-003690 Application 13/576,162 Anselmino discloses that auxiliary freezer compartment 190 is part of the freezer compartment. Therefore, we do not agree with Appellants that the auxiliary freezer compartment “defines the freezer compartment itself.” (See Appeal Br. 5.) The structural relationship between Anselmino’s auxiliary freezer compartment (190) and freezer compartment (56 and 190) can be analogized to a closet in a comer of a house where two of the walls of the closet are also outside walls of the house. Such a closet clearly is disposed within the house, just as Anselmino’s auxiliary freezer compartment is disposed within the freezer compartment. Accordingly, we do not agree with Appellants that the auxiliary freezer compartment of Anselmino, where some of the walls of the auxiliary freezer compartment are also outer perimeter walls of the freezer compartment, is not disposed within the freezer compartment. We also do not find persuasive Appellants’ argument that “Anselmino explicitly discloses that the auxiliary freezer compartment (190) is disposed within the refrigerator compartment (54).” (Reply Br. 6.) Anselmino discloses that the auxiliary freezer compartment is included in the freezer compartment. (Anselmino, col. 11,11. 21—26.) That the auxiliary freezer compartment may “extend[] partly into the refrigerator compartment 54” (id. at col. 11,11. 23—24) does not change Anselmino’s teaching that the auxiliary freezer compartment is included in the freezer compartment.2 2 As noted above, Appellants agree that Anselmino discloses a freezer compartment that includes both 56 and 190. (Appeal Br. 5.) Once 4 Appeal 2016-003690 Application 13/576,162 In view of the above, we are not persuaded that the Examiner erred in rejecting claim 20 under § 102(b). Appellants do not present separate arguments for dependent claims 21—26, therefore, for the same reasons as set forth above for claim 20, we are also not persuaded that the Examiner erred in rejecting claims 21—26. DECISION The Examiner’s rejection of claims 20, 21, 25, and 26 under 35 U.S.C. § 102(b) is affirmed. The Examiner’s rejection of claims 22—24 under 35 U.S.C. § 103(a) is affirmed. 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 Anselmino’s freezer compartment is defined as both structures (i.e., auxiliary freezer compartment 190 and freezer compartment 56), it is axiomatic that 190 is disposed within the totality of elements 56 and 190. Appellants’ argument appears to contend that 190 is not disposed within 56, but that is inapposite here because Appellants agree that the freezer compartment includes both 190 and 56. 5