Ex Parte Karakaya et al

Patent Trial and Appeal Board

May 24, 2017

12811365 (P.T.A.B. May. 24, 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.
12/811,365 10/30/2010 Nursel Karakaya 101670-0417305 6248
20350 7590 05/26/2017
KILPATRICK TOWNSEND & STOCKTON LLP
Mailstop: IP Docketing - 22
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
EXAMINER
HANSEN, JAMES ORVILLE
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
05/26/2017 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 NURSEL KARAKAYA and BAHAR AKAR
Appeal 2016-001084
Application 12/811,365
Technology Center 3600
Before JOHN C. KERINS, EDWARD A. BROWN, and
LYNNE H. BROWNE, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Nursel Karakaya and Bahar Akar (Appellants) appeal under 35 U.S.C.
§ 134 from the rejection of claims 1, 4—8, 10, 11, 13, and 14 under 35 U.S.C.
§ 103(a) over Gorini (US 2006/0284525 Al, pub. Dec. 21, 2006) and Haas
(US 2008/0187560 Al, pub. Aug. 7, 2008).1 We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
1 Claims 2, 3, 9, and 12 have been cancelled.
Appeal 2016-001084
Application 12/811,365
CLAIMED SUBJECT MATTER
Claims 1, 4, 10, and 13 are independent. Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A washer comprising a body, a washing chamber, a
loading port for loading the washing chamber, a door that covers
the loading port and a sealing element disposed between the
loading port and the door wherein the sealing element comprises
a thermoplastic elastomer (TPE) material* 2 and an antimicrobial
material that consists of zinc pyrithione (ZnPT).
DISCUSSION
Claims L 5—8, 10, and 11
Appellants argue claims 1, 5—8, 10, and 11 together. See Appeal Br.
11—15. We select independent claim 1 as the representative claim, and
claims 5—8, 10, and 11 stand or fall with claim 1.
The Examiner determines that Gorini discloses all of the limitations of
claim 1 except for “the sealing element compris[ing] a thermoplastic
elastomeric material wherein antimicrobial material is added that consists of
zinc pyrithione.” See Final Act. 2. The Examiner further finds that Haas
evidences “the known use of a door sealing gasket[] . . . employed as a
sealing means between a wash compartment and a door of a laundry
2 The claims were subjected to a species election. See Restriction
Requirement dated July 15, 2013. Appellants elected Species B, directed
towards a sealing element made of TPV (thermoplastic vulcanizate) derived
from EPDM (ethylene propylene diene monomer) and PP (polypropylene).
See Election dated Jan. 15, 2014. See also Ans. 7.
2
Appeal 2016-001084
Application 12/811,365
machine.” Id. (citing Haas 12). The Examiner finds that Haas teaches an
example in which “only zinc pyrithione is used as the antimicrobial material
with respect to the sealing means (washing machine bellow}.” Id. (citing
Haas 139). The Examiner also finds that Haas teaches an example where
“NBR [(acrylonitrile-butadiene rubber)], can be the thermoplastic
elastomeric material” {id. at 2—3 (citing Haas 113)), and that a sealing
element can be manufactured from EPDM (id. at 4 (citing Haas 13)).
Based on these findings, the Examiner reasons that it would have been
obvious to
modify the gasket material of Gorini so as to incorporate zinc
pyrithione into the gasket material in view of Haas’s teaching
because this arrangement would help to control microbial growth
on the surface of the gasket (disclosure of Haas) which is
exposed to repeated water contact, thereby reducing the presence
of undesirable odors and biofilm from the growth of microbes.
Id. at 3.
Appellants contend that “the Office Action is completely contrary to
the written opinion of the international search report concerning Haas which
found no ‘sealing element produced of a thermoplastic elastomeric
material.’” Appeal Br. 12; see also Reply Br. 6.
Appellants’ argument is unconvincing because “[a]n international
preliminary examination [is] conducted to formulate a non-binding opinion
as to whether the claimed invention has novelty, involves an inventive step
(is non-obvious) and is industrially applicable.” See M.P.E.P. § 1878
(emphasis added), 37 CFR 1.484(a). Moreover, as the Examiner explains,
“Haas discloses the use of a thermoplastic elastomeric material in the form
of NBR and that varying examples are illustrated concerning the molded
rubber article / antimicrobial rubber formulation” (Ans. 10; see also Haas
3
Appeal 2016-001084
Application 12/811,365
113), and that Haas also teaches that a sealing element can be manufactured
from EPDM (Final Act. 4 (citing Haas 113). Thus, Haas describes a sealing
element made of thermoplastic elastomeric material.
In addition, Appellants argue that “Haas appears to be related to a
glass door on a front loading washing machine,” that “[tjhere are differences
between a washing machine and dishwasher, such as the high
temperatures (e.g. 70 °C) in a dishwasher,” and that “it would not be obvious
to one of skill in the art that such sealing element could be used with a
dishwasher without experimentation.” Appeal Br. 12—13; see also Reply Br.
6.
However, Gorini discloses a dishwasher gasket. See, e.g., Gorini || 6,
11. The proposed rejection does not replace Gorini’s gasket material.
Rather, the rejection modifies Gorini’s gasket material to include Haas’
antimicrobial formulation. See Final Act. 3. Appellants do not provide
evidence showing that the addition of zinc pyrithione to Gorini’s gasket
material would compromise the ability of that material to withstand high
temperatures. Nor, do they persuasively argue that this would be the case.
Moreover, Appellants’ argument attacks the references separately, instead of
addressing their combined teachings. Nonobviousness cannot be established
by attacking the references individually when the rejection is predicated
upon a combination of prior art disclosures. See In re Merck & Co. 800 F.2d
1091, 1097, (Fed. Cir. 1986).
Appellants further contend that because Haas discloses that
“traditional sulfur and sulfur-based catalysts will not work with the inventive
antimicrobial formulations due to chemical reactions between the sulfur
atoms and the antimicrobial silver ion” (quotation from Haas 124), “it
4
Appeal 2016-001084
Application 12/811,365
would not be obvious to one of skill in the art to use Haas with vulcanization
(sulfur curing) as Haas apparently teaches away [from] vulcanization (sulfur
curing)” and that “the removal of silver from Haas would destroy the
intended invention of Haas.” Appeal Br. 13; see also Reply Br. 7.
Appellants’ argument does not address the rejection as articulated by
the Examiner, which relies on Haas’ Example 6. See Final Act 2. (citing
Haas 139). The Examiner explains that “Haas adequately addressed this
issue since comparative example 6 clearly stipulates that the washing
machine bellow can be made of a rubber formulation that only contains zinc
pvrithione as the antimicrobial agent.” Ans. 8—9; see also Haas 139.
Further, “a reference will teach away when it suggests that the
developments flowing from its disclosures are unlikely to produce the
objective of the applicant’s invention. A statement that a particular
combination is not a preferred embodiment does not teach away absent clear
discouragement of that combination.” Syntex (U.S.A.) LLC v. Apotex, Inc.,
407 F.3d 1371, 1380 (Fed. Cir. 2005) (internal citations omitted). See also
In re Gurley, 27 F.3d 551, 552 (Fed. Cir. 1994) (“A known or obvious
composition does not become patentable simply because it has been
described as somewhat inferior to some other product for the same use.”).
Here, nothing in Haas suggests that the formulation used in Example 6
would not prevent bacterial plaque or mold, and even if the formulation is
somewhat less effective compared to other disclosed materials, Haas’
teachings do not constitute a “teaching away” from the proposed
modification. We will not read into a reference a teaching away from a
proposed combination when no such language exists. See Dystar
5
Appeal 2016-001084
Application 12/811,365
Textifarben GmbH & Co. Deutschland KG. v. C.H. Patrick Co., 464 F.3d
1356, 1364 (Fed. Cir. 2006). Thus, Appellants do not apprise us of error.
For these reasons, we sustain the Examiner’s decision rejecting claim
1, and claims 5—8, 10, and 11, which fall therewith.
Claim 4
Appellants contend that “Haas teaches away from Applicant’s
invention” because “Haas teaches that ‘the addition of only organic
antimicrobial agents to the rubber will not result in a molded article that
provides long-term antimicrobial efficacy.’” Appeal Br. 14 (emphasis
omitted; citing Haas H 1, 6, 24); see also Reply Br. 8. Appellants’
argument is unconvincing for the reasons discussed supra with respect to the
rejection of claim 1. Accordingly, we sustain the Examiner’s decision
rejecting claim 4.
Claims 13 and 14
Appellants do not contest the rejection of claims 13 and 14. See
generally, Appeal Br. Accordingly, we summarily sustain the Examiner’s
decision rejecting claims 13 and 14.
DECISION
The Examiner’s rejection of claims 1, 4—8, 10, 11, 13, and 14 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). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
6