Whirlpool Corporation

Patent Trials and Appeals Board

Dec 20, 2021

2021000470 (P.T.A.B. Dec. 20, 2021)

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.
15/892,669 02/09/2018 Joel Fletty SUB-07020-US-DIV 1033
130348 7590 12/20/2021
Whirlpool Corporation / McGarry Bair PC
2000 North M63
Benton Harbor, MI 49022
EXAMINER
GOLIGHTLY, ERIC WAYNE
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
12/20/2021 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):
PatentDocketing@whirlpool.com
deborah_tomaszewski@whirlpool.com
patents@mcgarrybair.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOEL FLETTY and ERIC A. HILL
____________

Appeal 2021-000470
Application 15/892,669
Technology Center 1700
____________

Before CATHERINE Q. TIMM, KAREN M. HASTINGS, and
JAMES C. HOUSEL, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1–8 and 13–20. See Final Act. 1. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a).
Appellant identifies Whirlpool Corporation as the real party in interest
(Appeal Br. 2).
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Application 15/892,669

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CLAIMED SUBJECT MATTER

Claim 1 illustrates the subject matter on appeal (emphasis added to
highlight key disputed limitations):
1. A method of operating a dish treating appliance, the method
comprising:
operating an illuminable user interface, the illuminable
user interface having an array of inputs for cycles and cycle
options with the array of inputs having a light array
corresponding to at least some of the array of inputs, in a status
mode including selectively illuminating the light array to
generate an animation indicative of a status of the dish treating
appliance during a cycle of operation of the dish treating
appliance.

(Appeal Br. 26, Claims App.)
Independent claim 13 is directed to a method of operating a dish
treating appliance similar to that of claim 1, further explicitly stating that the
step of selectively illuminating to generate an animation occurs “when the
closure is closed” (Appeal Br. 27, Claims App.)
REFERENCES
The Examiner relied upon the following prior art:
Name Reference Date
Olesen et al. US 7,928,857 B2 Apr. 19, 2011
Fisher US 2014/0048139 A1 Feb. 20, 2014
REJECTIONS ON APPEAL
Claims 1–8, and 13–20 are rejected under 35 U.S.C. § 103 as
unpatentable over Olesen in view of Fisher (Final Act. 3).

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OPINION
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions as set forth in the Appeal Brief, we
determine that Appellant has not identified reversible error in the
Examiner’s rejections (See generally Ans.). In re Jung, 637 F.3d 1356,
1365–66 (Fed. Cir. 2011) (explaining the Board’s long-held practice of
requiring Appellant(s) to identify the alleged error in the Examiner’s
rejection). We sustain the rejections for the reasons expressed by the
Examiner in the Final Office Action and the Answer.
We add the following primarily for emphasis.
It has been established that “the [obviousness] analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007); see also In re Fritch, 972 F.2d 1260, 1264–
65 (Fed. Cir. 1992) (a reference stands for all of the specific teachings
thereof as well as the inferences one of ordinary skill in the art would have
reasonably been expected to draw therefrom).
Appellant’s main argument with respect to the rejection of claims 1
and 13 focuses on the belief that Olesen teaches away from the claimed
invention because its light emitting element is configured to be de-actuated
when the door is in the closed position (Appeal Br. 18), such that the
proposed modification would change its principle of operation (Appeal Br.
22). Appellant also contends that the rejection is based on impermissible
hindsight to use the animation of Fisher’s animated dishwasher alarm in the
dishwasher of Olesen (e.g., Appeal Br. 16).
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Appellant’s arguments are not persuasive of reversible error as they
fail to consider the applied prior art as a whole and the inferences that one of
ordinary skill would have made, as aptly explained by the Examiner (Ans.
3–8, 10–13).
Whether the prior art teaches away from the claimed invention is a
question of fact. In re Harris, 409 F.3d 1339, 1341 (Fed. Cir. 2005). It is
well established that a prior art reference must be considered in its entirety,
i.e., as a whole, when determining if it would have led one of ordinary skill
in the art away from the claimed invention. W.L. Gore & Assocs. v.
Garlock, Inc., 721 F.2d 1540, 1550 (Fed. Cir. 1983).
As pointed out by the Examiner, Olesen teaches that its light emitting
element “may be” de-actuated when the door is in the closed position; thus,
clearly one would have appreciated that it also may not be de-actuated when
the door is closed (Ans. 7; Olesen col. 5, ll. 31–50). One of ordinary skill in
the art would have readily appreciated that the animation (e.g., flashing
lights) and computer control/software discussed in paragraph 45 of Fisher
may be useful for the illumination status indicator system of any known
dishwasher, including that of Olesen. Cf. Syntex (U.S.A.) LLC v. Apotex,
Inc., 407 F.3d 1371, 1379–80 (Fed. Cir. 2005) (even a “statement that a
particular combination is not a preferred embodiment does not teach away
absent clear discouragement of that combination.”); In re Susi, 440 F.2d 442,
446 n.3 (CCPA 1971).
Appellant has not explained sufficiently why the claimed subject
matter is any more than the predictable use of a known dishwasher
animation pattern for status (alarm) indicator lights. Cf. Wyers v. Master
Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010) (“The Supreme Court’s
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decision in KSR . . . directs us to construe the scope of analogous art broadly,
stating that ‘familiar items may have obvious uses beyond their primary
purposes, and a person of ordinary skill often will be able to fit the teachings
of multiple patents together like pieces of a puzzle.’” (quoting KSR, 550
U.S. at 420)).
Under the flexible inquiry set forth by the Supreme Court, the USPTO
must take account of the “inferences and creative steps,” or even routine
steps, that an ordinary artisan would employ. Ball Aerosol & Specialty
Container, Inc. v. Limited. Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009).
One of ordinary skill would have readily inferred and appreciated from the
applied prior art as a whole that the use of known indicator light animation
patterns as exemplified in Fisher in Olesen’s dishwasher would have been
within the skill and creativity of one of ordinary skill in the art.
Appellant’s arguments with respect to dependent claims 3–5, 7, 15–
17, and 19 are unavailing because the limitations of claims 3–5 and 15–17
are optional (i.e., not further limiting) when the option chosen in the base
claim 2 or 14 is “a pulsing of at least some of the lights” (e.g., Ans. 8, 14).
Likewise, when the option of speed is chosen for claim 6, the color change
limitation of claim 7 and 19 is not required (Ans. 9, 15).
Accordingly, we sustain the Examiner’s rejection on appeal.

DECISION SUMMARY
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–8, 13–20 103 Olesen, Fisher 1–8, 13–20
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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)(1)(iv).
AFFIRMED