OGG, Anthony

Patent Trials and Appeals Board

Nov 26, 2019

14523980 - (D) (P.T.A.B. Nov. 26, 2019)

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.
14/523,980 10/27/2014 Anthony OGG 20519-0171001 9767
26171 7590 11/26/2019
FISH & RICHARDSON P.C. (DC)
P.O. BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
WRIGHT, KIMBERLEY S
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
11/26/2019 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANTHONY OGG
Appeal 2019-002262
Application 14/523,980
Technology Center 3600
Before GEORGE R. HOSKINS, LEE L. STEPINA, and
FREDERICK C. LANEY, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 25–32 and 34–38. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as LG Electronics Inc.
Appeal Br. 2.
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Application 14/523,980

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CLAIMED SUBJECT MATTER
The claims are directed to a refrigerator that is capable of minimizing
cool air losses and power consumption. Spec. ¶ 5.
Claim 25, reproduced below with emphasis added, is illustrative of the
claimed subject matter.
25. A refrigerator, comprising:
a cabinet having a first storage compartment and a second
storage compartment;
a first door configured to open or close a front opening of
the first storage compartment;
a second door configured to open or close a front opening
of the second storage compartment, the second door configured
to be positioned below the first door;
a mullion disposed inside the cabinet to partition the first
storage compartment and the second storage compartment, such
that the first storage compartment is disposed above the mullion
and the second storage compartment is disposed below the
mullion, the mullion having an access hole to connect the first
storage compartment and the second compartment, the access
hole being formed at a front portion of the mullion and being
configured to provision access to one or more food items to a
user; and
an access cover provided to selectively open or close the
access hole, wherein the access hole is configured to enable
passing of at least a hand of the user or the one or more food
items between the first storage compartment and the second
storage compartment.
Appeal Br. 11 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
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Application 14/523,980

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Name Reference Date
Lee US 5,551,252 Sept. 3, 1996
Shin US 2007/0163290 A1 July 19, 2007
Eveland US 2009/0277210 A1 Nov. 12, 2009
Ootsuka US 2013/0043780 A1 Feb. 21, 2013
Seo US 2013/0127322 A1 May 23, 2013

REJECTIONS
I. Claims 25–32 and 34–38 are rejected under 35 U.S.C. § 112(a)
as failing to comply with the written description requirement.
II. Claims 25, 28, and 38 are rejected under 35 U.S.C. § 103 as
unpatentable over Lee and Shin.
III. Claims 26, 27, 29, 30, and 34–36 are rejected under 35 U.S.C.
§ 103 as unpatentable over Lee, Shin, and Seo.
IV. Claims 31 and 32 are rejected under 35 U.S.C. § 103 as
unpatentable over Lee, Shin, and Eveland.
V. Claim 37 is rejected under 35 U.S.C. § 103 as unpatentable
over Lee, Shin, and Ootsuka.

OPINION
Rejection I—Written Description
The Examiner finds that claims 25–32 and 34–38 contain subject
matter that was not described in the Specification in such a way as to
reasonably convey to a person of ordinary skill in the art that the inventor
had possession of the claimed invention at the time the application was filed.
Final Act. 2. Specifically, the Examiner finds that, in independent claim 25,
the limitation “the access hole . . . being configured to provision access to
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one or more food items to a user, . . . wherein the access hole is configured
to enable passing of at least a hand of the user or the one or more food items
between the first storage compartment and the second storage compartment”
is not supported.2 Id.
Appellant argues that paragraphs 18, 37–41, 44, and 69 of the
Specification and Figures 6–9 support the limitation at issue in claim 25.
Appeal Br. 4–5. In particular, Appellant quotes the following statements
from the Specification: “the user may hold and lift the handle 163 of the
access cover 16 to take foods in or out of the receiving box 155” (Spec.
¶ 44)3 and “since the access cover is opened without withdrawing the drawer
provided in the utility compartment to withdraw foods accommodated in the
refrigerating space of the utility compartment, the user’s convenience may
be improved” (Spec. ¶ 69). Appeal Br. 5.
In response, the Examiner maintains the rejection, stating, “the
original disclosure does not provide details to the limitation directed to a
user hand passing between the first and second compartment.” Ans. 4.
In reply, Appellant argues that the Examiner failed to properly
respond to the arguments set forth in the Appeal Brief, and, again referring

2 Claim 25 is not an original claim, it was added in an amendment filed on
August 1, 2016. In the last amendment filed before the present Appeal, filed
on December 15, 2017, (hereinafter the “December 15, 2017, Amendment”)
the language at issue in Rejection I was added. As a statement of where
support for the amendment to claim 25 could be found, Appellant stated,
“[s]upport for the amendments may be found at least in FIGS. 8 and 9, and
¶¶ [0041]-[0044] and [0069] of the specification.” December 15, 2017,
Amendment 5.
3 After quoting this statement, Appellant cites paragraphs 37 and 44 of the
Specification, but the quoted language is found only in paragraph 44. See
Appeal Br. 5; Reply Br. 2.
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to the language quoted above from paragraphs 44 and 69 of the
Specification, states:
From this description, coupled with the visual depiction of the
claimed refrigerator in at least FIG. 9, a POSITA would have
concluded that the described and depicted access hole is
configured to enable passing of at least a hand of the user or the
one or more food items. How else is a user that is holding and
lifting the handle of an access cover supposed to take food items
in or out of the receiving box with added convenience if the
access hole were not configured to enable passing of at least the
hand of the user and the one or more food items? A POSITA
would understand that users take food items in or out
refrigerators using their hands and that the inventor possessed
taking food items in or out of receiving box 155 through the
claimed access hole.
Reply Br. 2–3 (emphasis added). Thus, Appellant contends that the
disclosure of the ability of a user to place food items in (and remove items
from) receiving box 155 when access cover 16 is lifted supports the claim
limitation regarding passing a “hand” at issue in claim 25.
The Examiner has the better position. The disclosure in the
Specification that a user may move food items into and out of receiving box
155 does not specify how this movement is accomplished, and, therefore,
does not support the specific size limitation recited in claim 25 that “the
access hole is configured to enable passing of at least a hand of the user.” In
other words, Appellant elected to recite a size limitation in terms of the hand
of a user, which is not discussed in the portions of the Specification cited by
Appellant or anywhere else in the description of the access hole. Only one
component disclosed in the Specification is described in terms of a user’s
hand, namely, handle 151. See Spec. ¶ 35 (“Thus, when the user’s hand is
inserted into the handle 151 of the utility compartment door 15, the user’s
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hand may not interfere with the top surface of the freezing compartment
door 14 to improve convenience of use.”). Handle 151 is not related to the
size of the recited access hole. See Figs. 1, 9. Accordingly, when Appellant
described the size of handle 151, Appellant chose to do so in terms of a
user’s hand, but elected not to use this frame of reference when describing
the size of the access hole.
Additionally, we note that claim 25 recites that the access hole has a
configuration “to enable passing of at least a hand of the user or the one or
more food items.” Appeal Br. 11 (Claims App.) (emphasis added). Thus,
by reciting these actions in the alternative, the plain language of claim 25
distinguishes between being able to pass a user’s hand and being able to pass
one or more food items, implying that these are different actions.
Accordingly, description in the Specification regarding passing one or more
food items would not appear to support a claim limitation regarding a hand
of a user.
Finally, claim 25 recites “the mullion having an access hole to connect
the first storage compartment and the second compartment, the access hole
being formed at a front portion of the mullion and being configured to
provision access to one or more food items to a user.” Appeal Br. 11
(Claims App.). This explicit recitation of access to food items mirrors the
language in the Specification identified by Appellant as supporting the
“hand of the user” limitation. Again, the fact that claim 25 separately recites
limitations defining the access hole in terms of food items implies that the
ability to pass food items through the access hole is not the same as passing
the hand of a user through the access hole. Accordingly, we sustain the
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Examiner’s rejection of claim 25 and claims 26–32 and 34–38 depending
therefrom as failing to comply with the written description requirement.
Rejection II—Lee and Shin
The Examiner finds that Lee discloses many of the elements recited in
claim 25, including an access hole (14, 15) configured to enable passing of a
hand of the user or one or more food items between a first storage
compartment and a second storage compartment. Final Act. 3–4 (citing Lee,
Fig. 6). The Examiner relies on Shin to teach an access cover that covers the
access hole. Id. at 4–5.
Appellant argues that upper and lower openings 14 and 15 of Lee are
for conducting air to evaporator 7, and “[n]othing in Lee suggests or teaches
that openings 14, 15 are ‘configured to enable passing of at least a hand of
the user or the one or more food items between the first storage compartment
and the second storage compartment,’ as recited in claim 25.” Appeal Br. 8.
In response, the Examiner determines that the claim limitation at issue
is the recitation of an intended use of the refrigerator of claim 25, and
openings 14 and 15 of Lee are capable of performing as required by the
claim. Ans. 4–5. Specifically, the Examiner states, “[a]lthough Lee teaches
the access opening is for allowing air to pass, the opening is arranged so that
one could pass a small food item and/or a hand through the access opening.”
Reply Br. 5.
The Examiner’s finding that the openings 14 and 15 of Lee are large
enough to allow a hand to pass therethrough is not supported by a
preponderance of the evidence. As Appellant correctly points out, and the
Examiner admits, openings 14 and 15 are disclosed as being used for the
passage of air. An opening capable of allowing the passage of air is not
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necessarily capable of allowing the passage of one or more food items or
hand. The Examiner does not direct our attention to any portion of Lee that
would indicate that these openings are large enough to accommodate
passage of a user’s hand or a food item. Accordingly, we do not sustain the
rejection of claim 25 and claims 28 and 38, depending therefrom, as
unpatentable over Lee and Shin.
Rejections III–V—Lee, Shin, Eveland, Ootsuka, Seo
The Examiner relies on the same inadequately supported finding of
fact regarding the capability of openings 14 and 15 of Lee in each of
Rejections III–V. Accordingly, for reason discussed above regarding
Rejection II, we do not sustain Rejections III–V.

CONCLUSION
I. We affirm the Examiner’s rejection of claims 25–32 and 34–38
as failing to comply with the written description requirement.
II. We reverse the Examiner’s rejection of claims 25, 28, and 38 as
unpatentable over Lee and Shin.
III. We reverse the Examiner’s rejection of claims 26, 27, 29, 30,
and 34–36 as unpatentable over Lee, Shin, and Seo.
IV. We reverse the Examiner’s rejection of claims 31 and 32 as
unpatentable over Lee, Shin, and Eveland.
V. We reverse the Examiner’s rejection of claim 37 as
unpatentable over Lee, Shin, and Ootsuka.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
25–32, 34–
38
112(a) Written Description 25–32, 34–
38

25, 28, 38 103 Lee, Shin 25, 28, 38
26, 27, 29,
30, 34–36
103 Lee, Shin, Seo 26, 27, 29,
30, 34–36
31, 32 103 Lee, Shin, Eveland 31, 32
37 103 Lee, Shin, Ootsuka 37
Overall
Outcome
25–32, 34–
38

TIME PERIOD FOR RESPONSE
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