Ex Parte Querfurth et alDownload PDFPatent Trial and Appeal BoardJul 28, 201612434121 (P.T.A.B. Jul. 28, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/434, 121 0510112009 173 7590 08/01/2016 WHIRLPOOL CORPORATION - MD 3601 2000 NORTH M63 BENTON HARBOR, MI 49022 FIRST NAMED INVENTOR KAREN J. QUERFURTH 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 ATTORNEY DOCKET NO. CONFIRMATION NO. US20080087 1500 EXAMINER VAZQUEZ, ANA M ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 08/01/2016 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): whirlpool_patents_co@whirlpool.com mike_lafrenz@whirlpool.com deborah_tomaszewski@whirlpool.com PTOL-90A (Rev. 04/07) BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KAREN J. QUERFUR TH, AMERESH B. VISWANATHAN, RONALD L. VOGLEWEDE, and MICHELE E. WILCOX Appeal2014-004427 Application 12/434,121 Technology Center 3700 Before ANNETTE R. REIMERS, ERIC C. JESCHKE, and PAUL J. KORNICZKY, Administrative Patent Judges. KORNICZKY, Administrative Patent Judge. DECISION ON 1A..PPEii,L STATEMENT OF CASE Appellants, Karen J. Querfurth et al., 1 appeal under 35 U.S.C. § 134 from the Examiner's decision rejecting claims 1-5, 7-11, 13-15, and 21- 25.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appellants identify the real party in interest as Whirlpool Corp. Appeal Br. 2. 2 Claims 16-20 are cancelled (Amendment, dated September 22, 2011 ), and claims 6 and 12 are withdrawn from consideration (Final Act. 1 ). Appeal2014-004427 Application 12/434,121 THE CLAIMED SUBJECT MATTER The claims are directed to a personalized dry or bulk dispensing system. Spec. i-f 1 (Title). Claims 1 and 10 are independent. Appeal Br. 25- 30, Claims App. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An appliance comprising: a rear wall section, a first side wall section, a second side wall section, a top, and a bottom and at least one appliance door with an exterior surface and an interior surface having a door liner; and defining an interior comprising: a refrigerator section within the appliance interior where the interior of the refrigerator section is the same size or smaller than the interior of the appliance; a module comprising a module housing comprising a bottom portion, a top portion and a rear wall portion extending between the bottom portion and the top portion and wherein the top portion, the bottom portion and the rear wall of the module define an interior volume and wherein the rear wall of the module is configured to be removably engaged with the exterior surface or the interior surface of the appliance door without the use of tools, wherein the module further comprises a resealable comestible dry goods container having a defined interior volume, an exterior, and a bottom portion wherein the container is removably engaged with the module and the releasable comestible dry goods container is positioned within the interior volume of the housing when the releasable comestible dry goods container is engaged with the module; and wherein the module is capable of maintaining a storage effecting condition within the interior of the container, wherein the storage effecting condition is chosen from the group consisting of humidity, temperature, pressure, gas composition, and combinations thereof; and wherein the module further comprises a releasable electrical connector including a protrusion and a recess that releasably engages the protrusion to provide electrical power to 2 Appeal2014-004427 Application 12/434,121 the module and wherein at least one of the recess and the protrusion is on the rear wall of the module. REFERENCES In rejecting the claims on appeal, the Examiner relied upon the following prior art: Giacalone Kim '587 Cox Winders Crisp Park Kim '298 Hamel us 3,178,061 us 5,570,587 us 5,588,558 US 6,694,770 B2 US 6,857,541 Bl US 2007 /0093102 A 1 US 7 ,404,298 B2 US 7,762,102 B2 REJECTIONS The Examiner made the following rejections: 3 Apr. 13, 1965 Nov. 5, 1996 Dec. 31, 1996 Feb.24,2004 Feb.22,2005 Apr. 26, 2007 July 29, 2008 July 27, 2010 1. Claims 1--4, 10, 15, 21, and 24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Giacalone, Hamel, Winders, Kim '298, and Kim '587.4 2. Claims 5, 7, and 11 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Giacalone, Hamel, Winders, Kim '298, and Kim '587. 3 In an Advisory Action mailed July 10, 2013, the rejection of claims 1- 5, 7-11, 13-15, and 21-25 under 35 U.S.C. § 112 (pre-AIA), second paragraph, has been withdrawn in light of the amendments filed and entered on June 24, 2013. Ans. 15. 4 The Examiner's rejection also relies upon Kim '587. See, e.g., Final Act. 4--5. In their Appeal Brief and Reply Brief, Appellants also rely on Kim '587. See, e.g., Appeal Br. 7-10; Reply Br. 6-7. 3 Appeal2014-004427 Application 12/434,121 3. Claims 8 and 13 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Giacalone, Hamel, Winders, Kim '298, and Park. 4. Claims 9 and 14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Giacalone, Hamel, Winders, Kim '298, Park, and Cox. 5. Claims 22, 23, and 25 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Giacalone, Hamel, Winders, Kim '298, Kim '587, and Crisp. Appellants seek our review of these rejections. Claims 1--4 OPINION REJECTION 1 Appellants argue claims 1--4 as a group. Appeal Br. 5-16. We select claim 1 as the representative claim, and claims 2--4 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds that Giacalone discloses all of the limitations of claim 1 except for (1) the claimed module, which is taught by Hamel, (2) the claimed dry goods container, which is taught by Kim '587, (3) the claimed rear wall of the module, which is capable of removable engagement with the surface of the appliance door without tools, which is taught by Winders, and (4) the claimed releasable electrical connector, which is taught by Kim '298. Final Act. 3-6. Appellants present numerous arguments in response to the Examiner's rejections. First, Appellants argue that Giacalone, Hamel, Winders, and Kim '298 "disclose mounting an item to a refrigerator door. None of the 4 Appeal2014-004427 Application 12/434,121 cited references disclose removably mounting a housing on a refrigerator door, and removably mounting a container within the housing as recited in claim 1 of the present application." Appeal Br. 6; see id. at 17 ("none of the cited references disclose a dry goods container that is removably engaged within an interior volume of a module, wherein the module is removably engaged with a refrigerator door"). Appellants' arguments, however, improperly argue the cited references individually whereas the relevant inquiry is whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of Giacalone, Hamel, Winders, Kim '587, and Kim '298. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references."). Second, with regard to Giacalone and Hamel, Appellants assert that "[t]he fact that the teachings of the prior art are contrary to one another suggests that modification would not be obvious." Id. at 6. Appellants argue that "[i]fthe liquid containers 34 of Giacalone '061 were to be mounted within the soft freeze assembly 150 of Hamel '102, the liquid containers 34 of Giacalone '061 would take up space within the soft freeze assembly 150 and interfere with a user's ability to place food within the soft freeze assembly 150 of Hamel '102." Id. at 6; see also id. at 7; Reply Br. 3 ("Absent knowledge of Applicants claimed invention, there would be no reason to position the liquid containers 34 of Giacalone '061 in the 'soft freeze assembly 150' of Hamel '102."). 5 Appeal2014-004427 Application 12/434,121 Appellants' arguments, however, are not responsive to the rejection as articulated by the Examiner. According to the Examiner, it is a known technique to provide a compartment in a refrigerator to store and condition dry goods (see US 5570587 to Kim as evidence). Therefore it would have been obvious to one skilled in the art at the time of invention to further modify the containers of Giacalone to be a comestible dry goods container since the technique was recognized as part of the ordinary capabilities of one skilled in the art as evidenced by Kim and such a modification would have yielded predictable results. Final Act. 4; see also Ans. 17. Appellants have not shown why modifying the Giacalone container to be a dry goods container was not part of the ordinary capabilities of one skilled in the art or would have yielded unpredictable results. In addition, most foods and liquids placed in refrigerators and the Hamel module are stored in a container so Appellants' argument that the Giacalone container would not fit in the Hamel module is unpersuasive. Third, Appellants argue that (1) "the liquid in containers 34 of Giacalone '061 would freeze if placed in the 'soft freeze assembly 150' of Hamel '102" (Appeal Br. 7), (2) "[ fJreezing the liquid in the containers 34 of Giacalone '061 would render the liquid containers 34 of Giacalone '061 unsuitable for their intended purpose" (id. at 9-10), and (3) the Examiner's "stated reason for modification [of Giacalone and Hamel] is speculative and contrary to the actual disclosure of the cited references" (id. at 10). See also id. at 14 ("Modifying the liquid containers 34 of Giacalone '061 to position the fluid containers in a soft freeze assembly 150 of Hamel '102 would cause the liquid to freeze. This is not flexibility."); id. at 17 ("If the liquid containers 34 of Giacalone '061 were positioned in the freezing compartment 150 of Hamel '102, the liquid in the liquid containers 34 would 6 Appeal2014-004427 Application 12/434,121 freeze, rendering the liquid containers 34 unsuitable for their intended purpose."); Reply Br. 3 ("Positioning the liquid containers 34 of Giacalone '061 in a freezer would cause the liquid in the containers 34 to freeze, thereby rendering the liquid containers 34 of Giacalone '061 unsuited for their intended use."). Appellants' arguments, however, are not responsive to the rejection as articulated by the Examiner. As discussed above, the Examiner finds the Giacalone container would be modified to store dry goods, not a liquid. Final Act. 3--4. Also, the Examiner explains: Hamel further teaches that this module arrangement allows food items contained within the module to be maintained at a desired temperature different than the temperature of the refrigerator storage compartment in order to preserve freshness of the food items (see Col. 1, lines 20-27). Therefore, it would have been obvious to a person skilled in the art at the time of invention to modify the system of Giacalone to include a module containing the releasable goods containers in order to maintain the goods at a desired temperature different than the temperature of the refrigerator storage compartment in order to preserve freshness of the food items for a more flexible appliance in view of the teaching by Hamel. Final Act. 4; see also Ans. 16-17. We agree with the Examiner that a "person skilled in the art at the time of invention would recognize that the technique of maintaining the module at a temperature different than the temperature of the refrigerator storage compartment provides at least thermal flexibility," and "Hamel teaches that the temperature of the compartment may be adjusted by a consumer" to avoid freezing, if necessary. Ans. 17. We also agree with the Examiner's finding that the modified "containers of Giacalone would contain dry comestible goods as claimed rather than liquids as argued by Appellant[ s]." Ans. 17. 7 Appeal2014-004427 Application 12/434,121 Appellants' suggestion that "[ c ]learly, the soft freeze assembly 150 of Hamel '102 is configured to freeze foods to 'prevent ice crystal growth, which may damage the freshness of food items"' is misleading and incomplete. Appeal Br. 9 (citing Hamel 1 :20-24 ). The full Hamel quote is [I]t may be desirable to rapidly cool and/or store certain food items at a temperature different than the temperature within the freezer storage compartment to prevent ice crystal growth, which may damage the freshness of the food items. Further, it may be desirable to maintain certain food items, such as meat products or dairy products, at a soft freeze state (i.e., not completely frozen) for facilitating cutting or serving the food items. Hamel 1 :20-27 (emphasis added). Appellants' arguments do not show any error by the Examiner and are not persuasive. Fourth, with regard to Giacalone, Hamel, and Kim '587, Appellants argue that (1) "the cereals storage room 200 of Kim '587 has almost nothing in common with the liquid containers 34 of Giacalone '061" (Appeal Br. 8), and (2) "substantial reconstruction of Giacalone '061 and/or Kim '587 would be required to arrive at the arrangement of claim 1" (id. at 9). See also id. at 17 ("To the extent it might be possible to modify the liquid containers 34 of Giacalone '061 to incorporate the cereals storage room 200 and related components of Kim '587, this modification would render the liquid containers 34 of Giacalone '061 unsuited for dispensing liquid as actually taught by Giacalone '061."); Reply Br. 4 ("Attempting to position the liquid containers 34 of Giacalone '061 in the 'soft freeze assembly 150' of Hamel' 102 would require removal and/or modification of the support tray 156 and rack 158, ... ");Reply Br. 6 ("If a separate cereals storage room 200 [in Kim '587] were to be added, the cereals storage room 200 could be 8 Appeal2014-004427 Application 12/434,121 used in its intended way, and the liquid containers 34 of Giacalone '061 could also be utilized in their intended way."). However, "the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference .... Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art." In re Keller, 642 F.2d 413, 425 (CCPA 1981); see also In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983) ("[I]t is not necessary that the inventions of the references be physically combinable to render obvious the invention under review"); KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) ("[I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill."). As discussed above, the Examiner's articulated reasons (e.g., it would have been obvious to modify the Giacalone container to be a dry goods container "since the technique was recognized as part of the ordinary capabilities of one skilled in the art as evidenced by Kim and such a modification would have yielded predictable results") have rational underpinnings, which Appellants have not shown contain any error. Final Act. 3--4. Fifth, Appellants argue that "even if the liquid containers 34 of Giacalone '061 were somehow modified to include the horizontal moving plate 212, rice outlet 207, and container 209 of cereals storage room 200 of Kim '587, the references themselves do not provide any motivation or reason for such modification." Appeal Br. 10. Appellants' arguments, however, are not responsive to the rejection as articulated by the Examiner. 9 Appeal2014-004427 Application 12/434,121 See Jn re Merck, 800 F .2d at 1097. The Examiner does not rely on plate 212, rice outlet 207, container 209, or room 200 in Kim '587. See, e.g., Ans. 18 ("A motivation to modify was clearly set forth in the rejection, and did not mention or suggest bodily incorporation of elements of the Kim reference into the system of Giacalone ... "). Also, an express teaching or motivation in the references is not required; instead, the Examiner need only articulate a reason to combine the references with some rational underpinning to support the legal conclusion of obviousness. KSR Int 'l, 550 U.S. at 418. Here, the Examiner's articulated reasoning contains rational underpinnings, and Appellants do not show why or how the Examiner erred. Sixth, with regard to Giacalone, Hamel and Winders, Appellants argue that"[ e ]ven if Giacalone '061, Hamel '102 and Winders '770 were to be combined, it would not result in the arrangement of claim 1" (Appeal Br. 10), which recites that "the rear wall of the module is configured to be removably engaged with the exterior surface or the interior surface of the appliance door without the use of tools" and "wherein the container is removably engaged with the module." Id. at 25, Claims App. According to Appellants, Winders discloses brackets mounted on a side wall, not a rear wall (id. at 10-11 ), and "the cited references themselves do not provide any reason to modify the soft freeze assembly 150 of Hamel '102 to be removable" (id. at 11 ). See also id. at 17 ("none of the cited references provide a reason to modify the soft freeze assembly 150 of Hamel '102 to be removable."); Reply Br. 5 ("Applicant respectfully asserts that there is no apparent reason, absent knowledge of Applicants claimed invention, to removably mount the liquid containers 34 of Giacalone '061 in the soft freeze assembly 150 of Hamel '102."). 10 Appeal2014-004427 Application 12/434,121 Appellants' arguments do not address the rejection as articulated by the Examiner. As discussed above, an express teaching or motivation in the references is not required; instead, the Examiner need only articulate a reason to combine the references with some rational underpinning to support the legal conclusion of obviousness. KSR Int 'l Co., 550 U.S. at 418. Here, the Examiner explains: Winders teaches [a] refrigerator having a module (compartment 16) mounted to an interior surface of a refrigerator door (see Fig. 1 ). Winders further teaches that the compartment includes brackets (26) that correspond with receiving brackets in the refrigerator door to quickly and easily secure the chiller compartment (see Col. 3, lines 25-31 ). Therefore, it would have been obvious to a person skilled in the art at the time of invention to further modify the system of Giacalone to include the rear wall of the module capable of being engaged with the interior surface of the appliance door without the use of tools in order to provide quick and easy mounting means in view of the teaching of Winders. Final Act. 4--5. The Examiner also finds that the teachings of Hamel were relied upon for making obvious the module which would include the 'rear wall' of the module. The teachings of Winders was relied upon for teaching that it would have been obvious to have the rear wall capable of being removably engaged with the exterior surface or the interior surface of the appliance door as claimed. Ans. 19. Giacalone also provides further support for teaching that the rear wall may be removably engaged with a refrigerator wall. See, e.g., Giacalone, Fig. 2-3, 1:39--42. Appellants' arguments do not show that the Examiner's articulated reasoning lacks rational underpinning, and are not persuasive. 11 Appeal2014-004427 Application 12/434,121 Seventh, Appellants argue that "[i]f the soft freeze assembly 150 of Hamel '102 (including heater 164 and controller 130) as actually taught by Hamel '102 were to be removably positioned in a refrigerator compartment as taught by Winders '770, this would result in heating the air in chiller compartment 16 of Winders '770." Appeal Br. 11; see also id. at 17 ("The heater 164 of Hamel '102 would not function if it were to be disconnected from a power supply."); Reply Br. 5 ("Applicant respectfully asserts that the prior art itself does not teach positioning the soft freeze assembly 150 with heater 164 in a refrigerator compartment 12 that is already above freezing."). Appellants' arguments, however, are not responsive to the rejection as articulated by the Examiner. See also In re Sneed, 710 F.2d at 1550 ("[I]t is not necessary that the inventions of the references be physically combinable to render obvious the invention under review."). The Examiner does not rely on the Hamel heater 164 and controller 130. Rather, the Examiner finds that Hamel discloses a "module to be maintained at a desired temperature different than the temperature of the refrigerator storage compartment in order to preserve freshness of the food items" and it would have been obvious to a person skilled in the art at the time of invention to modify the system of Giacalone to include a module containing the releasable goods containers in order to maintain the goods at a desired temperature different than the temperature of the refrigerator storage compartment. Final Act. 4; see also Ans. 20. The Examiner also explains: the modification would allow the module to receive power from another source separate from the refrigerator. Hamel teaches a controller (130) in communication with a thermistor 166 or any suitable temperature sensor or detector for detecting a temperature within the storage compartment (see at least Col. 4, lines 44-50). A person skilled in the art at the time of the invention would recognize that cold air that was already 12 Appeal2014-004427 Application 12/434,121 conditioned within the module would keep the containers near a desired temperature for a given period of time (i.e. convective heat transfer). In other words, the external power supply would allow the module to at least continue to monitor the temperature of the compartment so that a user could decide when the comestible goods containers need to be transferred from module to be cooled by another source. Ans. 20. Appellants' arguments do not show error or lack of rational underpinning in the Examiner's reasoning, and are unpersuasive. Seventh, Appellants argue that "it is not proper to simply pick and choose certain aspects of Giacalone '061, Winders '770, and Hamel '102 to arrive at precisely the arrangement of claim 1, as this would require extensive modification and it further requires ignoring numerous significant differences between these cited references." Appeal Br. 12. Appellants' arguments, however, are not responsive to the rejection as articulated by the Examiner, see In re Merck, 800 F.2d at 1097, and "it is not necessary that the inventions of the references be physically combinable to render obvious the invention under review." In re Sneed, 710 F.2d at 1550. As discussed above, an express teaching or motivation in the references is not required; instead, the Examiner need only articulate a reason to combine the references with some rational underpinning to support the legal conclusion of obviousness. KSR Int'!, 550 U.S. at 418. Here, Appellants' arguments do not show error in the Examiner's findings or that the Examiner's articulated reasoning lacks rational underpinnings. Eighth, Appellants argue that Giacalone, Hamel, Winders, and Kim '298 do not teach the arrangement of claim 1, which recites "a releasable electrical connector including a protrusion and a recess that releasably engages the protrusion to provide electrical power to the module and 13 Appeal2014-004427 Application 12/434,121 wherein at least one of the recess and the protrusion is on the rear wall of the module." Appeal Br. 12-13. Appellants assert that "Kim '298 actually teaches a display mount for a terminal 70 that has nothing to do with the soft freeze assembly 150 of Hamel '102" (id. at 13), that "Kim '298 discloses 'a display screen 71 which is a front face of the terminal 70"' (id. at 14), and that "[s]ubstantial modification of the case 60 of Kim '298 would be required to enable the case 60 to properly accept the soft freeze assembly 150 of Hamel '102, and the cited references themselves do not teach such modification" (id. at 15). See also id. at 17-18 ("even if an auxiliary power supply of some sort were to be connected to the heater 164 of Hamel '102, the soft freeze assembly 150 could not function to freeze food utilizing the heater 164, such that the soft freeze assembly 150 would no longer function for its intended purpose"); id. at 18 ("Modification of the case 60 of Kim '298 to accommodate the soft freeze compartment 150 of Hamel '102 would require substantial modifications that are not taught by the references themselves. To the extent that Kim '298 is being cited only for the contact terminals 58 and 72, ... "); Reply Br. 8 ("Applicant respectfully asserts that the proposed modifications are based on hindsight and constitute improper picking and choosing."). Appellants also argue that they do not know "what is meant by 'continue to condition', or 'temporarily house temperature sensitive items such as medicine" (Appeal Br. 13), or "a more flexible refrigerator system" (id. at 14). As discussed above, Appellants' arguments are not responsive to the rejection as articulated by the Examiner, and "it is not necessary that the inventions of the references be physically combinable to render obvious the 14 Appeal2014-004427 Application 12/434,121 invention under review." Jn re Sneed, 710 F.2d at 1550. We agree with the Examiner's findings: In regard to a releasable electrical connector, Kim teaches a refrigerator having a removable module mounted in the door (see Figs. 1 and 2) having a power engagement system that provides external power to the module and include a protrusion (second contact terminal 58; see Fig. 3 and Col. 6, lines 6-13) and a recess (first contact terminal 72) that releasably and matingly engages the protrusion (see at least Fig. 3) capable of providing electrical power to the module. A person skilled in the art would recognize that the power arrangement taught by Kim provides for a more flexible system by providing power to the power consuming module separate from the refrigerator. For example if the refrigerator malfunctions or requires maintenance, the cooling module would be able to continue to condition due to the external power source. In tum, a user would have space to temporarily house temperature sensitive items such as medicine in the event of an unexpected shut down of the refrigerator. Final Act. 5---6. As discussed above, an express teaching or motivation in the references is not required; instead, the Examiner need only articulate a reason to combine the references with some rational underpinning to support the legal conclusion of obviousness. KSR Int 'l, 550 U.S. at 418. Here, Appellants' arguments do not show error in the Examiner's findings or that the Examiner's articulated reasoning lacks rational underpinning. We further are not persuaded that the Examiner applied impermissible hindsight in combining the references. As discussed above, the Examiner cites explicit teachings in the references, not Appellants' disclosure, in articulating reasons for combining the references as proposed in the rejection. See Final Act. 3---6. For the reasons above, we sustain the Examiner's rejection of claim 1 under 35 U.S.C. § 103(a). Because Appellants do not allege any other 15 Appeal2014-004427 Application 12/434,121 patentable distinctions for claims 2--4, we likewise sustain the Examiner's rejections of these claims under 35 U.S.C. § 103(a). Claims 10, 15, 21, and 24 Appellants argue claims 10, 15, 21, and 24 as a group. Appeal Br. 17-18. We select claim 10 as the representative claim, and claims 15, 21, and 24 stand or fall with claim 10. 37 C.F.R. § 41.37(c)(l)(iv). In response to the rejection of claim 10, Appellants advance the same arguments for Giacalone, Hamel, Winders, Kim '298, and Kim '587 as those advanced above for claim 1. Appeal Br. 17-18. For the same reasons discussed above, Appellants' arguments are not persuasive. We sustain the Examiner's rejection of claim 10 under 35 U.S.C. § 103(a). Because Appellants do not allege any other patentable distinctions for claims 15, 21, and 24, we likewise sustain the Examiner's rejections of these claims under 35 U.S.C. § 103(a). REJECTION2 Claims 5 and 7 Appellants argue claims 5 and 7 as a group. Appeal Br. 18-19. We select claim 5 as the representative claim, and claim 7 stands or falls with claim 5. 37 C.F.R. § 41.37( c )(1 )(iv). In response to the rejection of claim 5, Appellants advance the same arguments for Giacalone, Hamel, Winders, Kim '298, and Kim '587 as those advanced above for claim 1. Appeal Br. 18-19. For the same reasons discussed above with respect to claim 1, Appellants' arguments regarding claim 5 are not persuasive. 16 Appeal2014-004427 Application 12/434,121 Citing to an incomplete portion of the Examiner's findings, Appellants also argue that the Examiner does not present an objective reason to combine the teachings of the references. Id. The Examiner's complete findings state: Giacalone teaches the invention as modified above but fails to explicitly teach the metering and dispensing mechanism as claimed. However, Kim teaches a refrigerator having a metering and dispensing mechanism ... A person skilled in the art would recognize that the technique taught by Kim may provide improved control and accuracy in dispensing of dry goods compared to the technique of Giacalone. Therefore, it would have been obvious and within the skill level of one in the art at the time of invention to further modify the metering and dispensing mechanism of Giacalone as claimed since the technique for improving a particular class of devices was part of the ordinary capabilities of a person of ordinary skill in the art in view of the teaching of the technique for improvement in other situations as taught by Kim. Final Act. 8-9. Appellants do not address or show any error in the Examiner's findings, including that a "person skilled in the art would recognize that the technique taught by Kim may provide improved control and accuracy in dispensing of dry goods compared to the technique of Giacalone." Id. at 9. Appellants' arguments are not persuasive. We sustain the Examiner's rejection of claim 5 under 35 U.S.C. § 103(a). Because Appellants do not allege any other patentable distinctions for claim 7, we likewise sustain the Examiner's rejection of claim 7 under 35 U.S.C. § 103(a). 17 Appeal2014-004427 Application 12/434,121 Claim 11 In response to the rejection of claim 11, Appellants state that " [ c] laim 11 depends from independent claim 10, and is therefore believed to be allowable for those reasons set forth above in connection with independent claim 10." Appeal Br. 19. For the same reasons discussed above with respect to claim 10, Appellants' arguments regarding claim 11 are not persuasive. Appellants also argue that Giacalone '061 does not state or recognize any problems associated with controlling humidity in containers that are designed to dispense and store liquids .... Modifying Giacalone '061 to dispense rice and cereal, followed by additional modification to include a humidity controller is contrary to the actual teachings of Giacalone '061, and such modifications would render Giacalone '061 unsuited for its intended use, namely, dispensing liquids. Id. at 19-20. Appellants' arguments, however, are not responsive to the rejection as articulated by the Examiner. In re Merck & Co., 800 F.2d at 1097. The Examiner finds that Kim '587, not Giacalone, discloses the modification of the Giacalone container to be a comestible dry goods container. Final Act. 4. The Examiner also finds that Kim '587, not Giacalone, discloses the recited humidity controller. Final Act. 11 (citing Kim '587 at 4:41--46). The Examiner explains: Regarding the humidity controller, a person of ordinary skill in the art would recognize that desiccants, salts, and heaters are well known in the art for controlling moisture (see US7797963 as evidence). Additionally, it would have been an obvious matter of design choice to further modify the system of Giacalone to have the humidity controller as a desiccant, a salt, 18 Appeal2014-004427 Application 12/434,121 Id. or a heater since Applicant has not disclosed that having one of these specific elements as a humidity controller solves any stated problem or is for any particular purpose and it appears that the humidity controller would perform equally well having other arrangements. Appellants have not shown that the Examiner's articulated reasoning lacks rational underpinning. Appellants' arguments are not persuasive. We sustain the Examiner's rejection of claim 11under35 U.S.C. § 103(a). REJECTION3 Claims 8 and 13 Appellants state that "[ c ]laim 8 depends from claim 1, and is therefore believed to be allowable for those reasons set forth above in connection with independent claim 1" and " [ c] laim 13 depends from claim 10, and is therefore believed to be allowable for those reasons set forth above in connection with independent claim 10." Appeal Br. 20. For the same reasons discussed above with respect to claims 1 and 10, Appellants' arguments regarding claims 8 and 13 are not persuasive. We sustain the Examiner's rejection of claims 8 and 13 under 35 U.S.C. § 103(a). REJECTION4 Claims 9 and 14 Appellants state that "[ c ]laim 9 depends from claim 1, and is therefore believed to be allowable for those reasons set forth above in connection with independent claim 1" and "[ c ]laim 14 depends from claim 10, and is 19 Appeal2014-004427 Application 12/434,121 therefore believed to be allowable for those reasons set forth above in connection with independent claim 10." Appeal Br. 21. For the same reasons discussed above with respect to claims 1 and 10, Appellants' arguments regarding claims 9 and 14 are not persuasive. We sustain the Examiner's rejection of claims 9 and 14 under 35 U.S.C. § 103(a). REJECTIONS Claims 22, 23, and 25 Appellants state that claims 22 and 23 "depend from claim 1, and are therefore believed to be allowable for those reasons set forth above in connection with independent claim 1" and claim 25 is "allowable for those reasons set forth above in connection with independent claim 10." Id. at 21. For the same reasons discussed above with respect to claims 1 and 10, Appellants' arguments are not persuasive. Appellants argue claims as 22, 23, and 25 as a group. Id. at 21-23. We select claim 22 as the representative claim, and claims 23 and 25 stand or fall with claim 22. 37 C.F.R. § 41.37(c)(l)(iv). Claim 22 recites the "handle is outside of the interior volume of the module housing." Appeal Br. 29, Claims App. Appellants also argue that "the electric push button 3 6 of Crisp '541 could not operate the mechanical rotating lever 215 and moving screw 214 of Kim '587'' (id. at 22), and the "push button 36 of Crisp '541 is clearly not a functional equivalent or mechanical equivalent of the rotating screw 215 of Kim '587'' (id. at 23). Appellants' arguments, however, are not responsive to the rejection as articulated by the Examiner. In re Merck & Co., 800 F.2d at 1097. The 20 Appeal2014-004427 Application 12/434,121 Examiner finds that Giacalone as modified by Kim '587 "fails to explicitly teach that the handle is outside of the interior volume of the module housing." Final Act. 14. The Examiner explains: However, Crisp teaches the technique of providing a dispenser in a refrigerator door having a dispensing button (36) outside of the interior volume of the housing for canisters (24) wherein goods are capable of being dispensed through a bottom portion of the housing (see Figs. 5 and 7). A person skilled in the art would recognize that the button (3 6) corresponds with the handle as claimed since they initiate or help carry out dispensing by the system. Therefore, it would have been obvious to a person skilled in the art at the time of invention to modify the system of Giacalone as claimed since the technique was part of the ordinary capabilities of one skilled in the art as evidenced by Crisp and such a modification would have yielded predictable results. Id. The Examiner further explains: As noted on page 23 of the brief Appellant[ s] assert[] "The switch 36 generates an electrical signal. .. for dispensing liquid in Crisp '541, whereas the rotating lever 215 of Kim '587 provides for manual rotation .... to dispense rice or cereal" In other words, by Appellant[s'] own admission both the push button 36 of Crisp and the lever 215 of Kim '587 initiate or help carry out dispensing. Therefore, one skilled in the art at the time of invention would recognize that the button (36) "corresponds" or is equivalent to the handle as claimed as discussed in the final rejection on page 14. Ans. 21-22. Appellants' arguments do not identify any error in the Examiner's findings that further modifying the lever of Giacalone as modified by Kim '587 so that it is outside the interior volume of the module, in light of the teachings of Crisp, was not part of the ordinary capabilities of one skilled in 21 Appeal2014-004427 Application 12/434,121 the art or demonstrate that such a modification would have yielded unpredictable results. Appellants' arguments are not persuasive. We sustain the Examiner's rejection of claims 22, 23, and 25 under 35 U.S.C. § 103(a). DECISION For the above reasons, the Examiner's rejection of claims 1--4, 10, 15, 21, and 24 under 35 U.S.C. § 103(a) as being unpatentable over Giacalone, Hamel, Winders, Kim '587, and Kim '298 is AFFIRMED. The Examiner's rejection of claims 5, 7, and 11 under 35 U.S.C. § 103(a) as being unpatentable over Giacalone, Hamel, Winders, Kim '298, and Kim '587 is AFFIRMED. The Examiner's rejection of claims 8 and 13 under 35 U.S.C. § 103(a) as being unpatentable over Giacalone, Hamel, Winders, Kim '298, and Park is AFFIRMED. The Examiner's rejection of claims 9 and 14 under 35 U.S.C. § 103(a) as being unpatentable over Giacalone, Hamel, Winders, Kim '298, Park, and Cox is AFFIRMED. The Examiner's rejection of claims 22, 23, and 25 under 35 U.S.C. § 103(a) as being unpatentable over Giacalone, Hamel, Winders, Kim '298, Kim '587, and Crisp 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)(l )(iv). AFFIRMED 22 Copy with citationCopy as parenthetical citation