Ex Parte Kaplan et al

Patent Trial and Appeal BoardAug 21, 2017

13063196 (P.T.A.B. Aug. 21, 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. 13/063,196 05/31/2011 Ergin Kaplan 101670-0417333 1985 20350 7590 08/23/2017 KILPATRICK TOWNSEND & STOCKTON LLP Mailstop: IP Docketing - 22 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 EXAMINER ROERSMA, ANDREW MARK ART UNIT PAPER NUMBER 3637 NOTIFICATION DATE DELIVERY MODE 08/23/2017 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): ipefiling@kilpatricktownsend.com KT S Docketing2 @ kilpatrick. foundationip .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ERGIN KAPLAN and LEVENT ORUNDU Appeal 2017-004402 Application 13/063,1961 Technology Center 3600 Before LARRY J. HUME, BETH Z. SHAW, and AARON W. MOORE, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 1—16. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is Arcelik Anonim Sirketi. App. Br. 2. Appeal 2017-004402 Application 13/063,196 STATEMENT OF THE CASE2 The Invention Appellants' disclosed embodiments and claimed invention "relate[] to a household appliance comprising a door whereon a decorative panel is mounted." Spec. 11. Exemplary Claim Claim 1, reproduced below, is representative of the subject matter on appeal (emphasis added to contested limitations): 1. A household appliance (1) comprising a cabinet (15), -a door (2) mounted onto the cabinet (15) and providing access into the cabinet (15), comprising an upper edge (3), a lower edge (4), opposite side edges (5), an inner panel (6) and an outer panel (7), -a glass panel (8) having an inner surface (9) and a decorative outer surface (10), and -a mounting member (11) which extends between the inner surface (9) and the outer panel (7) and whereon the glass panel (8) is mounted, and that has a recess (12) -extending along the side edge (5) of the door (2), -disposed between the door (2) and the glass panel (8), and -having a U-shape, which is fixed to the door (2) from one edge and to the other edge of which the inner surface (9) of the glass panel (8) is adhered, and -enabling the mounting member to be used as a handle. 2 Our decision relies upon Appellants’ Appeal Brief (“App. Br.,” filed Oct. 26, 2016); Reply Brief (“Reply Br.,” filed Jan. 24, 2017); Examiner’s Answer (“Ans.,” mailed Nov. 25, 2016); Final Office Action (“Final Act.,” mailed May 20, 2016); and the original Specification (“Spec.,” filed Mar. 9, 2011). 2 Appeal 2017-004402 Application 13/063,196 Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Gidseg Ma et al. ("Ma") Kawamura et al. ("Kawamura") Moon et al. ("Moon") Park Hisashi et al. ("Hisashi") US 5,048,233 US 2002/0060511 Al US 6,655,765 B2 US 2009/0224637 Al KR 10-2004-0104188 JP 2006-046837 Sept. 17, 1991 May 23, 2002 Dec. 2, 2003 Sept. 10, 2009 Dec. 10, 2004 Feb. 16, 2006 Rejections on Appeal3 Rl. Claims 1—3, 6, and 10-13 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Moon and Ma. Final Act. 3. R2. Claims 4, 5, 7—9, and 14—16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Moon, Ma, and Kawamura. Final Act. 4. R3. Claims 1—3, 6, and 10-13 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Gidseg and Ma. Final Act. 7. R4. Claims 4, 5, 7—9, and 14—16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Gidseg, Ma, and Kawamura. Final Act. 9. 3 We note the Examiner has withdrawn six rejections under § 103 of the claims on appeal. See Ans. 2—3. This leaves ten cumulative obviousness rejections (Rl through R10) for the Board's review in this Appeal. 3 Appeal 2017-004402 Application 13/063,196 R5. Claims 1—3, 6, and 10-13 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Moon and Park. Final Act. 9. R6. Claims 4, 5, 7—9, and 14—16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Moon, Park, and Kawamura. Final Act. 11. R7. Claims 1—3, 6, and 10-13 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Gidseg and Park. Final Act. 15. R8. Claims 4, 5, 7—9, and 14—16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Gidseg, Park, and Kawamura. Final Act. 16. R9. Claims 1—3, 6, and 10-13 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Hisashi and Park. Final Act. 19. R10. Claims 4, 5, 7—9, and 14—16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Hisashi, Park, and Kawamura. Final Act. 20. CLAIM GROUPING Based on Appellants' arguments (App. Br. 4—15), we decide the appeal of obviousness Rejections Rl, R3, R5, R7, and R9 of claims 1—3, 6, and 10—13 on the basis of representative claim 1. 4 Appeal 2017-004402 Application 13/063,196 Remaining claims 4, 5, 7—9, and 14—16 in Rejections R2, R4, R6, R8, and RIO, not argued separately or with specificity, stand or fall with independent claim 1 from which they depend.4 ISSUES AND ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellants. We do not consider arguments Appellants could have made but chose not to make in the Briefs, and we deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv). We disagree with Appellants' arguments with respect to claims 1—16 and, unless otherwise noted, we incorporate by reference herein and adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in response to Appellants' arguments. We highlight and address specific findings and arguments regarding claim 1 for emphasis as follows. 1. $103 Rejection R1 of Claims 1—3, 6, and 10-13 Issue 1 Appellants argue (App. Br. 4—5; Reply Br. 3—5) the Examiner's rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the combination of Moon and Ma is in error. These contentions present us with the following issue: 4 “[T]he failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(l)(iv). In addition, when Appellants do not separately argue the patentability of dependent claims, the claims stand or fall with the claims from which they depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986). 5 Appeal 2017-004402 Application 13/063,196 Did the Examiner err in finding the cited prior art combination teaches or suggests a "household appliance (1) comprising a cabinet" having "a door (2) mounted onto the cabinet (15)," the door including "an inner panel (6) and an outer panel (7), " the cabinet further including "a mounting member (11) which extends between the inner surface (9) [of glass panel (8)] and the outer panel (7) and whereon the glass panel (8) is mounted, and that has a recess (12)" which is "disposed between the door (2) and the glass panel (8)," and that "ha[s] a U-shape, which is fixed to the door (2) from one edge and to the other edge of which the inner surface (9) of the glass panel (8) is adhered," as recited in claim 1? Analysis Appellants contend Moon and Ma in combination fail to teach or suggest the contested limitations quoted above. App. Br. 4. "Moon and Ma not only fail to teach the specific positioning of the 'mounting member (11)' in claim 1, it also fails to teach or suggest a 'glass panel' and a 'mounting member' that are separate from a 'door' of a household appliance." Id. Appellants maintain Moon's "plates 10" which include glass panel 12, are part of door 100, and are not elements separate from door 100. Id. Similarly, Appellants contend side cap 20b' is also part of door 100, and is not equivalent to the separately recited "mounting member." Id. Appellants also argue "Ma does not cure the deficiencies of Moon" because "[l]ike Moon, Ma's glass 2 and frame 5 are part of the door of a glass-door icebox and are not separate and apart from a door." App. Br. 5. The Examiner summarizes Appellants' arguments on pages 5 and 6 of the Answer, and finds such arguments "regarding the prior art's glass panels and mounting members not being separate from the prior art's doors are not 6 Appeal 2017-004402 Application 13/063,196 commensurate in scope with the claims . . . [i.e.,] Appellant's arguments are overly narrow in comparison to the wide scope defined by a broad, reasonable interpretation of the claim limitations." Ans. 6. During examination, a claim must be given its broadest reasonable interpretation consistent with the Specification, as it would be interpreted by one of ordinary skill in the art. Because the applicant has the opportunity to amend claims during prosecution, giving a claim its broadest reasonable interpretation will reduce the possibility that the claim, once issued, will be interpreted more broadly than is justified. In re Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984); In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) ("During patent examination the pending claims must be interpreted as broadly as their terms reasonably allow."). With respect to interpreting the contested limitations of claim 1 in light of the Specification, the Examiner finds: Appellant's inner panel 6 and outer panel 7 don't have a handle without mounting member 11, similarly to how Moon's panels 16 and 18 don't have a handle without mounting member 20b'. The Appellant's glass panel 8 is "adhered" to outer panel 7 using mounting member 11 (see Appellant's paragraph [0031 ] for "adhered"). In the combination of Moon and Ma, Moon's glass panel 12 is secured to the mounting member 20b' with a glue bond (similarly to Ma's glue bond 4 attaching glass panel 2 to frame 5). In the rejections, Moon's parts 16 and 18 are relied upon as the claimed inner and outer panels of the door. There is nothing in Moon, Ma, the Appellant's claims, or the Appellant's specification that precludes Moon's parts 16 and 18 from being relied upon as the claimed inner panel and outer panel, respectively, comprising the claimed door. In the same way that Appellant's parts 6 and 7 comprise a door with a mounting member 11 and panel 8 attached thereto, Moon's parts 16 and 18 comprise a door with a mounting member 20b' and a panel 12 attached thereto. 2'"- There is nothing in Moon, Ma, the 7 Appeal 2017-004402 Application 13/063,196 claims at appeal, or the Appellant's specification that distinguishes Moon's parts 16 and 18 from the claimed inner and outer panels comprising a door. The Appellant's mounting member 11 and glass panel 8 are separate elements than inner panel 6 and outer panel 7 (the door 2) in the same way that Moon's mounting member 20b' and glass panel 12 are separate elements than inner panel 16 and outer panel 18 fa door comprising Moon's panels 16 and 18). Ans. 6—7.5 We agree with the Examiner's finding that "Appellants'] arguments regarding the door, mounting member, and glass panel being separate components are not commensurate in scope with the disclosed invention. Thus, the Appellant's interpretations of the claim and the prior art are not commensurate in scope with the disclosed invention." Ans. 7. Accordingly, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the combined teachings and suggestions of the cited prior art combination to teach or suggest the disputed limitations of claim 1, nor do we find error in the Examiner's resulting legal conclusion of obviousness. Therefore, we sustain the Examiner's obviousness rejection of independent claim 1, and grouped claims 2, 3, 6, and 10—13 which fall therewith. See Claim Grouping, supra. 2. $103 Rejections R3, R5, R7, and R9 of Claims 1—3, 6, and 10-13 The Examiner makes various findings of fact and reaches legal conclusions regarding Rejections R3, R5, R7, and R9 of claims 1—3, 6, and 10-13. See Final Act. 7 et seq.; Ans. 8 et seq. 5 The Examiner cites to paragraph 25 of the Specification as describing “the glass panel 8 and mounting member 11 as a component of the door 2.” Ans. 7. We agree with the Examiner's finding, and resulting claim construction. 8 Appeal 2017-004402 Application 13/063,196 We incorporate by reference herein and adopt as our own the Examiner's findings and legal conclusions with respect to these rejections such that we are not persuaded of error in the Examiner's reliance on the combined teachings and suggestions of the variously cited prior art combinations to teach or suggest the disputed limitations of claim 1. Therefore, we sustain the Examiner's obviousness Rejections R3, R5, R7, and R9 of independent claim 1, and grouped claims 2, 3, 6, and 10-13 which fall therewith. See Claim Grouping, supra. 3. Rejections R2, R4, R6, and R8 of Claims 4, 5, 7—9, and 14—16 In view of the lack of any substantive or separate arguments directed to obviousness Rejections R2, R4, R6, and R8 of Claims 4, 5, 7—9, and 14- lb under § 103 (see App. Br. 5, 8, 10, 13, and 15), we sustain the Examiner's rejections of these claims. Arguments not made are waived. REPLY BRIEF To the extent Appellants may advance new arguments in the Reply Brief (Reply Br. 2—9) not in response to a shift in the Examiner's position in the Answer, we note arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the Examiner's Answer will not be considered except for good cause (see 37 C.F.R. § 41.41(b)(2)), which Appellants have not shown. CONCLUSION The Examiner did not err with respect to obviousness Rejections R1 through R10 of claims 1—16 under 35 U.S.C. § 103(a) over the cited prior art combinations of record, and we sustain the rejections. 9 Appeal 2017-004402 Application 13/063,196 DECISION We affirm the Examiner's decision rejecting claims 1—16. 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). See 37 C.F.R. § 41.50(f). AFFIRMED 10