Ex Parte Karakaya et alDownload PDFPatent Trial and Appeal BoardMay 24, 201712811365 (P.T.A.B. May. 24, 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. 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 Copy with citationCopy as parenthetical citation