Ex Parte Kaps et al

Patent Trial and Appeal Board

Aug 11, 2017

13165819 (P.T.A.B. Aug. 11, 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.
13/165,819 06/22/2011 Gunter Kaps 2010P02424US 4608
46726 7590 08/15/2017
RS»H Home. Ann1ianrp.s Pomoratinn
EXAMINER
100 Bosch Boulevard
NEW BERN, NC 28562
KRYCINSKI, STANTON L
ART UNIT PAPER NUMBER
3631
NOTIFICATION DATE DELIVERY MODE
08/15/2017 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):
MBX-NBN-IntelProp@bshg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GUNTER KAPS, REINHOLD LADER,
MICHAEL GEORG ROSENBAUER, and BERND SCHESSL
Appeal 2015-008212
Application 13/165,8191
Technology Center 3600
Before ANTON W. FETTING, 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 non-final rejection of claims 1—7, 13, and 14.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, “[t]he real party in interest is BSH Bosch und
Siemens Hausgerate GmbH.” (Appeal Br. 3.)
2 Claims 17 and 20-27 are withdrawn. (See Non-final Action 3.)
Appeal 2015-008212
Application 13/165,819
CLAIMED SUBJECT MATTER
Appellants’ claimed “invention relates to a crockery basket of a
dishwasher to accommodate items to be washed, with a base area.” (Spec.
11.)
Claim 1 is the sole independent claim on appeal. It recites:
1. A kit for manufacturing a plurality of sizes of a dishwasher
crockery basket to accommodate items to be washed, the kit
comprising:
a basket base piece having at least one open lateral edge
area and configured to define at least part of a base area of the
dishwasher crockery basket; and
a multiplicity of differently sized end pieces that are
configured for any single one of the multiplicity of differently
sized end pieces to be fixedly connected to the basket base piece
to close the open lateral edge area and thereby form the
dishwasher crockery basket, wherein
the basket base piece is configured to be fixedly connected
with any one of the multiplicity of differently sized end pieces,
the multiplicity of differently sized end pieces are different
sizes so as to define differently sized portions of the base area or
form no portion of the base area, and
the base area is determined by connecting one separate end
piece and the basket base piece.
REJECTIONS
Claims 1, 2, 4, 6, 7, 13, and 14 are rejected under 35 U.S.C. § 103(a)
as unpatentable in view of Michel, Jr. (US 6,341,704 Bl, iss. Jan. 29, 2002)
(hereinafter “Michel”).
Claims 3 and 5 are rejected under 35 U.S.C. § 103 as unpatentable in
view of Michel and Cheng (US 7,428,976 B2, iss. Sept. 30, 2008).
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Application 13/165,819
ANALYSIS
Michel discloses “[a] stiff wire rack ... for household use which is
located in and hangs onto the sides of a tub such as a laundry tub or a sink
and is adjustable in width to accommodate different size sinks or tubs.”
(Michel, col 1,11. 6—10.)
The Examiner finds that Michel teaches “a multiplicity of differently
sized end pieces (e.g.; one of 13, and one of 13 in combination with 12B)
that are configured for any single one of the multiplicity of differently sized
end pieces to be fixedly connected to the basket base piece.” (Non-final
Action 3.) The Examiner also finds that “the basket base piece is
configured to be fixedly connected with any one of the multiplicity of
differently sized end pieces.” {Id.)
Appellants argue that “Michel discloses connections (1) between
sections 12A and 12B, (2) between section 12A and hanger member 13, and
(3) between section 12B and hanger 13, but all of these connections are
movable and thus not fixed.” (Appeal Br. 5.) Appellants further argue that
Michel discloses that “‘hanger members 13 are curled at 19 for pivotal
attachment at their lower ends to respective ends of the bottom support
members 12’ (col. 2, Ins. 15-17). Such pivoting connections are mobile and
thus not fixed.” {Id. at 6, emphasis omitted.) Appellants also argue that the
claim term “‘fixedly connected’ must have a different scope that [sic]
‘connected.’” {Id.)
We agree that Michel does not disclose that the end pieces are fixedly
connected to the basket base piece. However, claim 1, which is directed to a
kit, does not recite that the end pieces are fixedly connected to the base
piece. Rather, claim 1 recites that the “end pieces . . . are configured. . . to
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be fixedly connected to the basket base piece” and that “the basket base piece
is configured to be fixedly connected with . . . the . . . end pieces.” (Claim 1,
emphasis added.) Appellants do not persuasively argue why the Examiner’s
finding that Michel teaches “end pieces . . . configured . . . to be fixedly
connected to the basket base piece” and “the basket base piece . . .
configured to be fixedly connected with . . . the . . . end pieces” is erroneous.
(See Non-final Action 3, emphasis added.) Thus, Appellants’ argument is
not commensurate with the scope of the claim.
Appellants also argue that “[mjaking the connections in Michel’s
device fixed would render that device unsatisfactory for it intended purpose
and therefore would not have been obvious.” (Appeal Br. 7.) In particular,
Appellants argue that
[t]he purpose of Michel’s device is to provide a rack with an
adjustable “width to accommodate different size sinks or tubs.”
Michel col. 1, Ins. 8-9. Michel specifically disparages racks that
are not adjustable because a user may have to buy several
differently sized racks and vendors will have to carry differently
sized wracks [sic]. Id. Ins. 23-32.
{Id.) Thus, Appellants argue, “such a modification would not have been
obvious.” {Id.)
The Examiner, however, finds that “Michel does not criticize,
discredit, or otherwise discourage the use of fixed sizes of wire racks, but is
merely pointing out the state of the prior art.” (Answer 4.)
We agree with the Examiner. Under the heading “Background of the
Invention,” Michel discloses that with racks of a single size
the homeowner may need a number of different wire racks for
use in a sink or a laundry tub when the tubs are of different
dimensions. Also, this means that the vendors of the stiff wire
racks have to carry a number of different size units to
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Application 13/165,819
accommodate purchasers for the different size tubs and sinks that
are in the purchasers’ homes.
(Michel, col. 1,11. 27—32.) In short, Michel discloses disadvantages
associated with the prior art devices but does not disparage use of fixed size
racks in a sink. Thus, we do not agree that “[mjaking the connections in
Michel’s device fixed would render that device unsatisfactory for it intended
purpose.” (See Appeal Br. 7.)
Appellants next argue that “[mjaking the connections in Michel’s
device fixed would change the principle of operation of Michel’s device and
therefore would not have been obvious.” (Id.) Appellants base this
argument on the assertion that “Michel specifically disparages racks that are
not adjustable because a user may have to buy several differently sized racks
and vendors will have to carry differently sized wracks [sic].” (Id. at 8.)
However, for the reasons discussed above, we do not find this argument
persuasive of error.
Moreover, although fixing the connections in Michel’s device would
limit the device to fitting a corresponding-sized sink, it would not render the
device unfit for its intended purpose as a rack in a sink. Additionally, we
note that if the user, rather than the manufacturer, fixes the connections (see
Answer 5), then the device continues to have the advantage that vendors
need not “carry a number of different size units to accommodate purchasers
for [their] different size tubs and sinks.” (See Michel, col. 1,11. 29—32.) The
device also continues to perform satisfactorily for its intended purpose for
the corresponding-sized sink. (See Non-final Action 4 (“[0]ne of ordinary
skill in the art would have recognized that the end piece (13) could be used
with or without piece 12B to form no portion of the base area by removing
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the hooks (19) from piece 12B and attaching the hooks to the base piece
(12A) with predictable results.”).)
Appellants also argue that Michel is not analogous art. (Appeal
Br. 9.) In particular, Appellants argue that “Michel does not disclose
dishwashers, crockery baskets, kits or components that are configured to be
fixed together. Instead, Michel is directed to a stiff wire rack that is
adjustable. See, e.g., col. 1, Ins. 6-10.” (Id. at 10.)
“The analogous-art test requires that the Board show that a reference
is either in the field of the applicant’s endeavor or is reasonably pertinent to
the problem with which the inventor was concerned in order to rely on that
reference as a basis for rejection.” In re Kahn, 441 F.3d 977, 986—87 (Fed.
Cir. 2006).
The Examiner finds that
Michel teaches using a wire rack comprised of separate pieces in
the form of a basket in a kitchen sink for drying dishes after
washing (Col 1, Lines 14-16). Michel is in the same field of
endeavor as related to the different sized crockery baskets to
accommodate items to be washed, and therefore is analogous art.
(Answer 5.)
We agree with the Examiner. Moreover, the Specification discloses
that “[ajccording to a development of the invention it is provided that the
basket base piece and/or the end piece comprise a grid material. ... It is in
particular provided that the grid material comprises wire, preferably metal
wire, and is thus embodied as a wire grid.” (Spec. 1 5.) In short, the
claimed invention, like the device disclosed in Michel, is in the field of
endeavor related to wire baskets (or a rack in the form of a basket) for use in
dishwashing. Therefore, we are not persuaded that Michel is not analogous
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art. Nor are we persuaded that the Examiner erred in rejecting claim 1 under
§103.
Appellants separately argue claim 5. Claim 5 recites: “The kit of
claim 1, wherein the basket base piece and the multiplicity of differently
sized end pieces are configured to be welded to each other.”
The Examiner finds that “Cheng teaches a basket base piece
(Cheng: 56) welded to an end piece (Col 9, Lines 19-21).” (Non-final
Action 5.) Additionally, the Examiner determines that
[i]t would have been obvious to one of ordinary skill in the art at
the time the invention was made to further modify Michel to have
the basket base piece configured to be welded to the end pieces
as taught by Cheng. The motivation would have been for the
purpose of creating a permanently fixed basket size to
accommodate one particular application.
{Id.)
Appellants rely on the earlier presented argument that “making the
connections in Michel’s device fixed would render that device unsatisfactory
for its intended purpose.” (Appeal Br. 8.) However, as already discussed,
we do not find this argument persuasive of error.
Appellants further argue that “Michel explicitly teaches away from a
fixed basket size.” {Id. at 8—9, emphasis omitted.) “A reference may be said
to teach away when a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). As discussed
above, Michel discloses disadvantages associated with the prior art devices.
(Michel, col. 1,11. 27—32.) However, we agree with the Examiner that
“Michel does not criticize, discredit, or otherwise discourage the use of fixed
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sizes of wire racks, but is merely pointing out the state of the prior art.”
(Answer 4.) Therefore, we do not find this argument persuasive of error.
Appellants further argue that “there must be some rational explanation
why it would have been obvious to modify the applied references to include
the features of claim 5.” (Appeal Br. 9.) As discussed above, the Examiner
finds that “one of ordinary skill in the art would have recognized that the end
piece (13) could be used with or without piece 12B to form no portion of the
base area by removing the hooks (19) from piece 12B and attaching the
hooks to the base piece (12A)” (Non-final Action 4), i.e., that it would have
been obvious to one of ordinary skill in the art to modify Michel to make a
fixed-size device. The Examiner also finds that it would have been obvious
to modify Michel to make a fixed-size device by “hav[ing] the basket base
piece [of Michel] configured to be welded to the end pieces as taught by
Cheng. The motivation would have been for the purpose of creating a
permanently fixed basket size to accommodate one particular application.”
(Id. at 5.) Appellants do not persuasively argue why the motivation to
combine found by the Examiner does not provide a rational explanation for
making the proposed combination. Therefore, we are not persuaded that the
Examiner erred in rejecting claim 5 under § 103.
DECISION
The Examiner’s rejections of claims 1—7, 13, and 14 under 35 U.S.C.
§ 103(a) are affirmed.
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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
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