DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status
This Office Action is in response to the remarks and amendments filed on 2/2/2026. The objections to the drawings have been withdrawn. Claims 1-4, 6-18 remain pending for consideration on the merits.
This Office Action contains a New Grounds of Rejection. Since this new grounds of rejection did not result from an amendment to the claims, this Office Action is being made non-final to afford the applicant the opportunity to respond to the new grounds of rejection.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, “a defrost heater proximate the evaporator while the damper assembly is in the third position” must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1, 5-11, 13-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4-13, 15-17 of copending Application No. 18529671. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are identical.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-2, 6-9, 11, 15-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Itsuki et al (US 20060266075) in view of Besore et al (US 20180224183).
Regarding claim 1, Itsuki teaches a refrigerator appliance (30) comprising: a cabinet (40); a fresh food chamber (41) defined in the cabinet; a freezer chamber (42) defined in the cabinet, the freezer chamber spaced apart from the fresh food chamber (fig. 1a) and separated from the fresh food chamber by an insulated mullion (50); a bridge chamber (43) defined in the cabinet, the bridge chamber positioned between the fresh food chamber and the freezer chamber (fig. 1a), the bridge chamber comprising a first inlet (A) in fluid communication with the fresh food chamber (arrow into 41), a first outlet (arrow into 41) in fluid communication with the fresh food chamber, a second inlet (A) in fluid communication with the freezer chamber, and a second outlet (B) in fluid communication with the freezer chamber; an evaporator (14) positioned in the bridge chamber; a fan (48) positioned in the bridge chamber; and a movable damper assembly (45, 49) configured to move between a first position (dotted line, paragraph 0041) and a second position (solid line, paragraph 0041), wherein the second inlet and the second outlet are obstructed by the damper assembly in the first position (dotted line, fig. 1a) and wherein the first inlet and the first outlet are obstructed by the damper assembly in the second position (solid line, fig. 1a) but fails to explicitly teach the evaporator in the bridge chamber is the only evaporator of the refrigerator appliance.
However, Bsore teaches teach the evaporator in the bridge chamber is the only evaporator of the refrigerator appliance (158, paragraph 0028) to efficiently cool the chambers of the refrigerator.
Therefore, it would have been obvious to a person skilled in the art at the time of the invention to modify the refrigerator of Itsuki to include the evaporator in the bridge chamber is the only evaporator of the refrigerator appliance in view of the teachings of Besore to efficiently cool the chambers of the refrigerator.
Regarding claim 2, the combined teachings teach teach the movable damper assembly is further configured to move to a third position (fig. 3 of Besore), wherein the first inlet, the first outlet, the second inlet, and the second outlet are obstructed (222, 224, 220 are all blocked of Besore) by the damper assembly in the third position.
Regarding claim 6, Itsuki, as modified, teaches the bridge chamber is defined by the insulated mullion and at least one insulated partition (50 and 43).
Regarding claim 7, Itsuki, as modified, teaches a plenum (interior of 43) defined within the bridge chamber between the evaporator and the fan.
Regarding claim 9, Itsuki, as modified, teaches the first outlet is upstream of an air tower in the fresh food chamber (fig. 1a), and wherein the second outlet opens directly into the freezer chamber (fig. 1a).
Regarding claim 11, 15-16, it is noted that although the preamble of claims is directed towards a method, the structure of the combined teachings disclose all the structure being provided in the method steps, thus the method is also anticipated by the combined teachings. If a prior art device, in its normal and usual operation, would necessarily perform the method claimed, then the method claimed will be considered to be anticipated or rendered obvious by the prior art device. When the prior art device is the same as a device described in the specification for carrying out the claimed method, it can be assumed the device will inherently or obviously perform the claimed process. Thus, the method, as claimed, would necessarily result from the normal operation of the apparatus. See MPEP 2112.02.
Claim(s) 3, 4, 8, 17-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Itsuki in view of Besore as applied to claim 1 and in further view of Fei et al (CN 109737668).
Regarding claim 3, the combined teachings teach the invention as described above but fails to explicitly teach wherein the movable damper assembly comprises a plurality of movable dampers, each damper movable independently of every other damper of the plurality of damper.
However, Fei teaches the movable damper assembly comprises a plurality of movable dampers (220), each damper movable independently of every other damper of the plurality of damper (independent, paragraph 1, pg. 6) to apply different cold energy based on the user requirement.
Therefore, it would have been obvious to a person skilled in the art at the time of the invention to modify the refrigerator of the combined teachigns to include the movable damper assembly comprises a plurality of movable dampers, each damper movable independently of every other damper of the plurality of damper in view of the teachings of Fei to apply different cold energy based on the user requirement.
Regarding claim 4, the combined teachings teach the movable damper assembly comprises a first damper (220 of Fei) positioned at the first inlet, a second damper (220 of Fei) positioned at the first outlet, a third damper (220 of Fei) positioned at the second inlet, and a fourth damper (220 of Fei)positioned at the second outlet, wherein the third damper obstructs the second inlet in the first position and the fourth damper obstructs the second outlet in the first position, and wherein the first damper obstructs the first inlet in the second position and the second damper obstructs the first outlet in the second position (one of ordinary skill in the art would recognize the individual damper so Fei are capable of being placed at the inlet and outlets of Itsuki to efficiently regulate the temperature of the compartments independently).
Regarding claim 8, the combined teachings teach a first plenum defined within the bridge chamber (upper area of 43 of Itsuki) and a second plenum (lower area of 43 of Itsuki) defined within the bridge chamber, wherein the movable damper assembly comprises a first damper (220 of Fei), a second damper (220 of Fei), a third damper (220 of Fei), and a fourth damper (220 of Fei), the first damper and the third damper positioned in the first plenum (one of ordinary skill in the art would recognize the individual damper so Fei are capable of being placed at the inlet and outlets of Itsuki to efficiently regulate the temperature of the compartments independently), the second damper and the fourth damper positioned in the second plenum (one of ordinary skill in the art would recognize the individual damper so Fei are capable of being placed at the inlet and outlets of Itsuki to efficiently regulate the temperature of the compartments independently).
Regarding claim 17-18, it is noted that although the preamble of claims is directed towards a method, the structure of the combined teachings disclose all the structure being provided in the method steps, thus the method is also anticipated by the combined teachings. If a prior art device, in its normal and usual operation, would necessarily perform the method claimed, then the method claimed will be considered to be anticipated or rendered obvious by the prior art device. When the prior art device is the same as a device described in the specification for carrying out the claimed method, it can be assumed the device will inherently or obviously perform the claimed process. Thus, the method, as claimed, would necessarily result from the normal operation of the apparatus. See MPEP 2112.02.
Claim(s) 10, 13-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Itsuki in view of Besore as applied to claim 1 and in further view of Schenk et al (US 6725680).
Regarding claim 10, Itsuki teaches the invention as described above but fails to explicitly teach a variable speed compressor coupled to the evaporator and a controller in operative communication with the variable speed compressor, the controller configured to operate the variable speed compressor at a first speed when the damper assembly is in the first position and to operate the variable speed compressor at a second speed different from the first speed when the damper assembly is in the second position.
However, Schenk teaches a variable speed compressor (26) coupled to the evaporator (30) and a controller (59) in operative communication with the variable speed compressor (fig. 4), the controller configured to operate the variable speed compressor at a first speed when the damper assembly is in the first position (Col. 6-7, lines 43-26) and to operate the variable speed compressor at a second speed different from the first speed when the damper assembly is in the second position (Col. 6-7, lines 43-26) to maintain each compartment independently at a selected temperature.
Therefore, it would have been obvious to a person skilled in the art at the time of the invention to modify the refrigerator of Isuki to a variable speed compressor coupled to the evaporator and a controller in operative communication with the variable speed compressor, the controller configured to operate the variable speed compressor at a first speed when the damper assembly is in the first position and to operate the variable speed compressor at a second speed different from the first speed when the damper assembly is in the second position in view of the teachings of Schenk to maintain each compartment independently at a selected temperature.
Further, it is understood, claim 10 includes an intended use recitation, for example “…configured to...”. The applicant is reminded that a recitation with respect to the manner which a claimed apparatus is intended to be does not differentiate the claimed apparatus from a prior art apparatus satisfying the structural limitations of the claims, as is the case here. While features of an apparatus may be recited either structurally or functionally, the claims are directed to an apparatus must be distinguished from the prior art in terms of structure rather than function.
Regarding claim 13-14, it is noted that although the preamble of claims is directed towards a method, the structure of the combined teachings disclose all the structure being provided in the method steps, thus the method is also anticipated by the combined teachings. If a prior art device, in its normal and usual operation, would necessarily perform the method claimed, then the method claimed will be considered to be anticipated or rendered obvious by the prior art device. When the prior art device is the same as a device described in the specification for carrying out the claimed method, it can be assumed the device will inherently or obviously perform the claimed process. Thus, the method, as claimed, would necessarily result from the normal operation of the apparatus. See MPEP 2112.02.
Allowable Subject Matter
Claim 12 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Reasons for Allowance
The following is an examiner’s statement of reasons for allowance:
Regarding claim 12, the subject matter which is considered to distinguish from the closest prior art of record, Besore et al (US 20180224183).. The prior art of record teaches moving the damper assembly to a third position, whereby the first inlet, the first outlet, the second inlet, and the second outlet are obstructed by the damper assembly in the third position, in contrast to the claimed features of moving the damper assembly to a third position, whereby the first inlet, the first outlet, the second inlet, and the second outlet are obstructed by the damper assembly in the third position, and activating a defrost heater proximate the evaporator while the damper assembly is in the third position
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH J MARTIN whose telephone number is (571)270-3840. The examiner can normally be reached 8:30-3:00 CT pm M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jerry-Daryl Fletcher can be reached at (571) 270-5054. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ELIZABETH J MARTIN/Primary Examiner, Art Unit 3763