Ex Parte Sewell et al

Patent Trial and Appeal BoardApr 22, 2016

12872189 (P.T.A.B. Apr. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/872, 189 08/31/2010 46726 7590 04/26/2016 BSH Home Appliances Corporation 100 Bosch Boulevard NEW BERN, NC 28562 FIRST NAMED INVENTOR Norman Sewell 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. 2010P01946US 3126 EXAMINER TOMPKINS, ALISSA JILL ART UNIT PAPER NUMBER 3749 NOTIFICATION DATE DELIVERY MODE 04/26/2016 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): 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 NORMAN SEWELL, TROY WILSON, and ANTHONY ZYMROZ, JR. Appeal2014-002837 Application 12/872, 189 Technology Center 3700 Before LYNNE H. BROWNE, ANNETTE R. REIMERS, and JILL D. HILL, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Norman Sewell et al. (Appellants) appeal under 35 U.S.C. Â§ 134 from the Examiner's decision rejecting claims 1-24. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM-IN-PART. Appeal2014-002837 Application 12/872, 189 CLAIMED SUBJECT MATTER Independent claims 1, 11, 22, and 23 are pending. Claim 1 illustrates the claimed subject matter and is reproduced below with disputed limitations italicized. 1. An adjustable foot assembly for a pan support of a home appliance, the foot assembly comprising: a first bushing having an inside threaded surface on an inner surface, and outside threaded surface on an outer surface; a set screw having an outside threaded surface on an outer surface, the outside threaded surface of the set screw engaging the inside threaded surface of the first bushing such that the set screw is movable relative to the first bushing along a first direction; and a contact foot attached to the first bushing such that the contact foot and the first bushing are fixed relative to each other along the first direction, and the contact foot and the first bushing move together along the first direction, wherein the first bushing and the set screw are adapted to allow the set screw to be moved relative to the first bushing as the set screw is moved into contact with the pan support, the relative movement being allowed by the outside threaded surface of the set screw moving relative to the inside threaded surface of the first bushing. Appeal Br. 14, Claims App. REJECTIONS I. Claims 1-10 and 22 stand rejected under 35 U.S.C. Â§ 102(b) as anticipated by Rozier (US 5,881,979, iss. Mar. 16, 1999). Ans. 3. II. Claims 11-21, 23, and 24 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Shaffer (US 2009/0044795 Al, pub. Feb. 19, 2009) and Rozier. Ans. 6. 2 Appeal2014-002837 Application 12/872, 189 Rejection I: Claims 1-10 OPfNION The decisive issue regarding claims 1-10 is whether Rozier's adjustable foot assembly, found to have a first bushing (20), a contact foot (25), and a set screw (22), teaches the contact foot being "attached to the first bushing such that the contact foot and the first bushing are fixed relative to each other," while "the first bushing and the set screw are adapted to allow the set screw to be moved relative to the first bushing." Appeal Br. 8-9; Ans. 9-10; Reply Br. 3--4. Appellants argue that Rozier' s foot member 25 is not fixed relative to its second intermediate member 20a (see Rozier, Fig. 4) as required by the claims. Appeal Br. 9-10. According to Appellants, the claimed relative fixation causes their "contact foot to move with the first bushing so that adjustments to the position of the first bushing cause the desired elevation change in the contact foot," after which the claimed set screw is "tightened against the grate to keep the first bushing (and therefore the contact foot) fixed in the desired position relative to the grate." Id. Appellants explain that, in contrast, Rozier' s threaded shaft 22 and its attached foot member 25 (see Rozier, Figs. 3, 4) move in unison relative to the second intermediate member 20a as the threaded shaft 22 is adjusted, such that the foot member 25 cannot remain fixed relative to the second intermediate member 20a as the set screw is adjusted. Id. at 10. This relative movement among Rozier's members occurs because Rozier's threaded shaft 22 lies between the foot member 25 and the intermediate member 20a. Reply Br. 4. The Examiner responds that Rozier's contact foot "is as much fixed to its bushing as Appellants' contact foot is to its respective bushing" because, 3 Appeal2014-002837 Application 12/872, 189 in both instances, the contact foot is attached via a threading means such that the fixed relative position of the foot is attained "as much by the user's adjustments as it is by a physical limitation." Ans. 10. The Examiner also notes that when Rozier's first bushing (20a) moves up or down (without any relative movement of screw 22), its contact foot (25) will move therewith, creating the claimed relative fixation. Id. The Examiner's claim construction is unreasonably broad. Independent claims 1 and 23 recite the "contact foot [being] attached to the first bushing such that the contact foot and the first bushing are fixed relative to each other," and "the first bushing and the set screw [being] adapted to allow the set screw to be moved relative to the first bushing." Appeal Br., Claims App. Relative fixation of Rozier's foot 25 relative to its first bushing 20a, however, cannot coincide with relative movement of its set screw 22 relative to its first bushing. We determine claim scope not solely on the basis of the claim language, but upon giving claims their broadest reasonable construction "in light of the specification as it would be interpreted by one of ordinary skill in the art." Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (citing In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)). Construing the claims in light of the Specification, we decline to read them broadly enough that relative fixation of the foot and the first bushing includes the possibility that the foot may at some point be fixed relative to the first bushing during adjustment, for example when the set screw1 is not 1 Consistent with the term's ordinary meaning, Appellants "set screw" 220 is employed only after a desired assembly length is achieved (Spec. 4 Appeal2014-002837 Application 12/872, 189 moving the foot relative to the first bushing. This is because the claims also recite that the set screw must move relative to the first bushing to contact the pan support (i.e, to "set" the adjusted height of the foot). Although Appellants' Specification states that its foot 240 may be threaded to its bushing 230, such threading is intended to achieve relative fixation during height adjustment and as the set screw 220 is adjusted relative to the bushing 230 to "set" the adjusted height of the foot. Spec. i-f 15. We disagree with the Examiners finding that Rozier teaches the invention recited in independent claim 1. Claims 2-10 depend directly or indirectly from claim 1. We therefore do not sustain the rejection of claims 1-10 as anticipated by Rozier. Rejection 1: Claim 22 Independent claim 22 recites fixation of the foot relative to the first bushing as in claim 1, but does not recite a set screw. Although we disagree with the Examiner's finding that Rozier discloses a foot fixed relative to a first bushing while a set screw moves relative to the first bushing, we agree with the Examiner that Rozier discloses, more broadly, a foot fixed relative to the first bushing. We therefore sustain the rejection of claim 22 as anticipated by Rozier. Re} ection II The Examiner finds that Shaffer discloses a home appliance comprising a plate and a pan support, and relies on Rozier for teaching the i-f 17) to fix the relative position of the components of the assembly. We are not convinced that Rozier's element 22 is indeed a "set screw." 5 Appeal2014-002837 Application 12/872, 189 adjustable foot assembly having the claimed foot fixed relative to the first bushing and set screw movable relative to the first bushing. Ans. 6. Similar to claim 1, independent claims 11 and 23 recite the contact foot being "attached to the first bushing such that the contact foot and the first bushing are fixed relative to each other," and "the first bushing and the set screw [being] adapted to allow the set screw to be moved relative to the first bushing." Appeal Br., Claims App. As discussed supra regarding Rejection I, we disagree with the Examiner's finding that Rozier discloses both a foot fixed relative to the first bushing and a set screw movable relative to the first bushing. We do not sustain Rejection II for the reasons set forth above regarding claim 1. DECISION We REVERSE the rejection of claims 1-10 under 35 U.S.C. Â§ 102(b) as anticipated by Rozier. We AFFIRM the rejection of claim 22 under 35 U.S.C. Â§ 102(b) as anticipated by Rozier. We REVERSE the rejection of claims 11-21, 23, and 24 under 35 U.S.C. Â§ 103(a) as unpatentable over Shaffer and Rozier. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED-IN-PART 6