Ex Parte Kuttalek

Patent Trial and Appeal Board

Sep 20, 2012

10879794 (P.T.A.B. Sep. 20, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte EDMUND KUTTALEK
____________

Appeal 2010-002629
Application 10/879,794
Technology Center 3700
____________

Before STEVEN D.A. McCARTHY, PHILLIP J. KAUFFMAN, and
GAY ANN SPAHN, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-002629
Application 10/879,794

2
STATEMENT OF THE CASE
Edmund Kuttalek (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s rejections of claims 1-14, 16, and 18-22. Appellant
cancelled claims 15 and 17. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

The Claimed Subject Matter
The claimed subject matter “relates to a raised-level built-in cooking
appliance, such as a wall-mounted oven, with a muffle [or heating chamber],
which has a floor-side muffle opening that can be closed with a lowerable
bottom door, and with a drive mechanism for lifting the bottom door,” the
drive mechanism including at least one tensile element connected to the
bottom door, and the cooking appliance being “configured such that the
tensile element provided to hoist the bottom door is held reliably in its
tensile element guides.” Spec. 1, ll. 16-21 and Spec. 2, ll. 20-22. Claims 1,
16, and 19 are independent and claim 1, reproduced below, with emphasis
added, is illustrative of the subject matter on appeal.
1. A wall-mounted cooking appliance,
comprising:
a housing with a muffle and a bottom muffle
opening;
a lowerable bottom door for selectively
closing said bottom muffle opening;
a drive mechanism having a tensile element
connected to said bottom door; and tensile stress
means assigned to said tensile element that
maintains a minimum amount of a tensile force in
said tensile element when the weight of the
lowerable bottom door does not contribute to the
tensile force in the tensile element.
Appeal 2010-002629
Application 10/879,794

3
The Rejections
The following Examiner’s rejections are before us for review.1
(1). Claims 1, 2, and 4-6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Littell (US 2,944,540, issued Jul. 12, 1960) and Klippert
(US 5,857,635, issued Jan. 12, 1999).
(2). Claims 7, 11-14, 16, and 18-22 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Littell and Priest (US 7,025,298 B2, issued
Apr. 11, 2006).
(3). Claims 1-6 and 8-10 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Littell and Regnier (US 2004/0065018 A1, published Apr.
8, 2004).
(4) Claim 1 is rejected on the ground of nonstatutory obviousness-
type double patenting as being unpatentable over claims 1-4 of Kuttalek (US
7,069,924 B2, issued Jul. 4, 2006).2

OPINION
Rejection (1) – Obviousness based on Littell and Klippert
The Examiner finds that Littell substantially discloses the subject
matter of independent claim 1 “with the exception of tensile stress means.”

1 On page 4 of the Answer, the Examiner initially stated the first ground of
rejection as claims 1, 2, 4-6, 7, 11-14, 16, and 18-22 under 35 U.S.C. §
103(a) as unpatentable over Littell and either Klippert or Priest; however, it
appears that instead of Klippert and Priest in the alternative, the Examiner
meant to set forth two separate rejections, namely, claims 1, 2, and 4-6 as
unpatentable over Littell and Klippert, and claims 7, 11-14, 16, and 18-22 as
unpatentable over Littell and Priest (see Ans. 8) as we have set forth infra.
2 Although Appellant did not address this rejection in the Brief, it is clear
that the Examiner has not withdrawn the rejection. See Ans. 2-3, 10-11.
Appeal 2010-002629
Application 10/879,794

4
Ans. 4. To cure the deficiency of Littell, the Examiner turns to Klippert for
its disclosure of “a cable drum and tensile element (cable 3) having tensile
stress means (springs 4, 40, etc.) for the purpose of taking up cable
slackness.” Ans. 5 (citing to Klippert, col. 2). The Examiner concludes that
it would have been obvious to one of ordinary skill in the art “to provide the
oven door cable lift mechanism of Littell . . . with a spring taught by
Klippert . . . , for the purpose of taking of cable slackness.” Ans. 8.
Emphasis omitted.
Appellant argues that Littell uses limit switches 70 and 72 and relies
upon precise knowledge of bottom door vertical movement reversal
locations for the “oven [to] operate[] in a manner such that a tensile force is
exerted without interruption on the cable 60,” because the weight of the
bottom door 22 “always contributes to a tensile force of the pull rope [or
tensile element]” and thus, Littell “does not suffer from the problem of cable
slackness.” Br. 8-9. As such, Appellant also argues that it would not have
been obvious to one of ordinary skill in the art to modify Littell by the
teachings of Klippert “for the purpose of taking of cable slackness” and
“[t]he Examiner does not provide any articulated reasoning with a rational[]
underpinning to support [the] legal conclusion of obviousness,” because “the
basis for [the Examiner’s] combination could only have come from using
Appellant’s own invention and disclosure as a template and through
hindsight reconstruction based upon Appellant’s disclosure.” Br. 9-10.
It is undisputed that Littell fails to describe “tensile stress means
assigned to said tensile element that maintains a minimum amount of a
tensile force in said tensile element when the weight of the lowerable bottom
door does not contribute to the tensile force in the tensile element” as recited
Appeal 2010-002629
Application 10/879,794

5
in claim 1 because in Littell, “a tensile force is exerted without interruption
on the cable 60” since “the weight of the bottom door of the cooking
appliance . . . always contributes to a tensile force of the pull rope [or tensile
element].” See Ans. 4 and Br. 9. Klippert discloses “[a] cable drum
assembly compris[ing] a cable drum for a cable-driven apparatus such as a
cable window lifter, in particular of a motor vehicle, which automatically
compensates for cable slackness . . . . [by] remov[ing] . . . cable slackness
present when the window lifter is in the relaxed state.” Klippert, Abstract.
Klippert accomplishes this by the cable drum having a part that compensates
for the cable slackness such that when the cable drum is unloaded, a spring
urges the part to take up cable slackness. Id.
Although Klippert discloses that it is known to use a spring 4 or 40 to
prevent cable slackness, we find the Examiner’s rejection insufficient to
explain what in the prior art would have prompted a person of ordinary skill
in the art to use Klippert’s spring 4 or 40 for preventing cable slackness in
Littell’s winch driven cable and limit switch arrangement which does not
discuss or exhibit any cable slackness. The Examiner has not provided any
findings that either Littell or Klippert recognized a problem with Littell’s
conventional winch driven cable and limit switch arrangement having a
slack cable. Thus, the reason proffered by the Examiner to modify the
teachings of Littell to include a spring 4 or 40 as taught by Klippert, i.e., “for
the purpose of taking of cable slackness” (Ans. 8), appears to be only
suggested by Appellant’s disclosure. The Examiner has not provided any
findings that Littell recognized a problem with slackness in its cable 60.
Without a persuasive articulated reason based upon a rational underpinning
for modifying Littell to have Klippert’s spring as proposed by the Examiner,
Appeal 2010-002629
Application 10/879,794

6
the Examiner’s rejection appears to be the result of hindsight analysis. See
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR
Int’l. Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)) (“rejections on
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness”). Therefore,
absent hindsight, we fail to see why one of ordinary skill in the art would
have been led to modify Littell’s winch driven cable and limit switch
arrangement to include the spring of Klippert, as the Examiner proposes.
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 1, and claims 2 and 4-6 dependent thereon, under 35
U.S.C. § 103(a) as unpatentable over Littell and Klippert.
Rejection (2) – Obviousness based on Littell and Priest
For the rejection of independent claims 16 and 19, the Examiner
makes the same findings as discussed supra with respect to Littell. Ans. 4.
To cure Littell’s deficiency of not disclosing tensile stress means, the
Examiner turns to Priest for its disclosure of “a dual drum cable operating
and tensioning arrangement” which ensures “constant cable tension . . . by
spring biasing means (28) located between the drums [26, 30].” Ans. 7.
Emphasis omitted. The Examiner concludes that it would have been
obvious to one of ordinary skill in the art “to provide the oven door cable lift
mechanism of Littell . . . with dual drum cable operating and cable
tensioning arrangement taught by . . . Priest . . . , for the purpose of taking of
cable slackness.” Ans. 8. Emphasis omitted.
Appeal 2010-002629
Application 10/879,794

7
Appellant sets forth the same arguments against the Examiner’s
combination of Littell and Priest as those discussed supra with respect to the
Examiner’s rejection based on Littell and Klippert.
Priest discloses a cable drive assembly 10 for opening and closing a
sliding door on a vehicle. Priest, Abstract and col. 2, l. 63. Priest further
discloses that:
The drive assembly includes front and rear drums
[26, 30] with helical front and rear cable grooves
[54, 70,] respectively[,] that are supported for
rotation about a longitudinal axis. A front cable
[82] extends from the front cable groove [54] to a
vehicle sliding door in a position to be wound into
and unwound from the front cable groove [54] in
response to front drum [26] rotation in respective
opposing directions about the longitudinal axis. A
rear cable [84] extends from the rear cable groove
[70] to the sliding door in a position to be
unwound from and wound onto the rear cable
groove [70] in response to rear drum [30] rotation
in respective opposing directions about the
longitudinal axis. The cable drive unit [or
assembly 10] also includes a spring [28] that biases
the front drum [26] and the rear drum [30] in
opposite direction to maintain the front and rear
cables [82, 84] in tension.
Priest, col. 2, ll. 11-24 and col. 2, l. 63 through col. 4, l. 6.
As discussed supra with respect to the combination of Littell and
Klippert, the reason proffered by the Examiner to modify the teachings of
Littell to include the dual drum operating and cable tensioning arrangement
as taught by Priest, i.e., “for the purpose of taking of cable slackness” (Ans.
8), appears to be only suggested by Appellant’s disclosure. The Examiner
has not provided any findings that Littell recognized a problem with
Appeal 2010-002629
Application 10/879,794

8
slackness in its cable 60. Without a persuasive articulated reason based
upon a rational underpinning for modifying Littell to have Priest’s dual drum
operating and cable tensioning arrangement as proposed by the Examiner,
the Examiner’s rejection appears to be the result of hindsight analysis.
Therefore, absent hindsight, we fail to see why one of ordinary skill in the
art would have been led to modify Littell’s winch driven cable and limit
switch arrangement to include the dual drum operating and cable tensioning
arrangement as taught by Priest, as the Examiner proposes.
Accordingly, we do not sustain the Examiner’s rejection of claims 7,
11-14, 16, and 18-22 under 35 U.S.C. § 103(a) as unpatentable over Littell
and Priest.
Rejection (3) – Obviousness based on Littell and Regnier
The Examiner makes the same findings with respect to Littell as
discussed supra. Ans. 9. To cure Littell’s deficiency of not disclosing
tensile stress means, the Examiner turns to Regnier for its disclosure of “two
cable drums 58, 68, 70 and tensile element (cable 38) having tensile stress
means (springs 64, 66).” Id. (citing to Regnier, para. [0028]). The Examiner
concludes that it would have been obvious to one of ordinary skill in the art
“to provide the oven of Littell . . . with a spring taught by Regnier . . . for the
purpose of taking of cable slackness.” Ans. 10. Emphasis omitted.
Appellant sets forth similar arguments against the Examiner’s
combination of Littell and Regnier as those discussed supra with respect to
the Examiner’s rejection based on Littell and Klippert.
Regnier discloses:
a window regulator [10] for operating a window pane of an
automotive vehicle comprising a base plate [12] having a guide
rail [20] extending between opposite upper and lower ends [14,
Appeal 2010-002629
Application 10/879,794

9
16]. A lifter plate [26] is slidably coupled to the guide rail [20]
and adapted for supporting the window pane. A motor
assembly [32] is secured to the base plate [12] and includes a
drive housing [44] and a power motor [46]. A drive shaft [48]
is rotatably journaled to the drive housing [44]. The drive shaft
[48] has a support flange [50] supporting a center shaft [52] and
a key shaft [54] spaced from and parallel to the center shaft
[52]. A pair of cable drums [34, 36] are supported on the drive
shaft [48], each of the cable drums [34, 36] including a key slot
[60] for aligning with and receiving the key shaft [54]
therethrough. A cable [38] having a first end [40] connected to
one of the cable drums [34] is at least partially wound around
the drum [34] in a first direction while a second end [42] is
connected to the other of the cable drums [36] and at least
partially wound around the other drum [36] in a second
direction opposite the first direction. The lifter plate [26] is
secured to the cable [38] between the first and second ends [40,
42]. A compression spring [64] is operatively engaged with
each of the respective cable drums [34, 36] for engagement
between the key shaft [54] and the drums [34, 36] for biasing
the drums [34, 36] in opposite directions and maintaining
tension on the cable [38] between the first and second ends [40,
42].
Regnier, paras. [0004] and [0016]-[0022].
For similar reasons to those discussed supra with respect to the
combination of Littell and Klippert, we do not sustain the Examiner’s
rejection of independent claim 1, and claims 2-6 and 8-10 under 35 U.S.C.
§ 103(a) as unpatentable over Littell and Regnier.
Rejection (4) – Obviousness Double Patenting based on Kuttalek
The Examiner finds that “[a]lthough the conflicting claims are not
identical, they are not patentably distinct from each other because the claims
of the present application are anticipated by the claims of the patent.” Ans.
10.
Appeal 2010-002629
Application 10/879,794

10
Appellants present no arguments of error with respect to the
Examiner’s obviousness-type double patenting rejection.
As such, the Appellants have waived any argument of error, and we
summarily sustain the Examiner’s rejection of claim 1 under the judicially
created doctrine of obviousness-type double patenting. See In re Berger,
279 F.3d 975, 984, 985 (Fed. Cir. 2002) (holding that the Board did not err
in sustaining a rejection under 35 U.S.C. § 112, second paragraph, when the
applicant failed to contest the rejection on appeal).

DECISION
We reverse the Examiner’s rejections of: claims 1, 2, and 4-6 under
35 U.S.C. § 103(a) as unpatentable over Littell and Klippert; claims 7, 11-
14, 16, and 18-22 under 35 U.S.C. § 103(a) as unpatentable over Littell and
Priest; and claims 1-6 and 8-10 under 35 U.S.C. § 103(a) as unpatentable
over Littell and Regnier.
We summarily affirm the Examiner’s rejection of claim 1 on the
ground of nonstatutory obviousness-type double patenting as being
unpatentable over claims 1-4 of Kuttalek.
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)(1)(iv).

AFFIRMED-IN-PART

hh