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 .
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f):
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f). The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f). The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f), except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f), except as otherwise indicated in an Office action.
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.
Claims 1-26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-26 of U.S. Patent No. 11,684,180 and/or claims 1-22 of U.S. Patent No. 12,290,187.
Although the claims at issue are not identical, they are not patentably distinct from each other because the overlap in scope between the patented claims and the claims in this application renders obvious the claims in this application.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claim(s) 17-19 is/are rejected under 35 U.S.C. 112(a), as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, at the time the application was filed, had possession of the claimed invention.
With respect to claim 17: See Figs. 8-9 for flange 74. Figs. 7 and 14 show that the flange 74 does not extend up to the contact plate 44. There is no disclosed embodiment in which the flange 74 extends uninterrupted between contact plate 44, rear wall (e.g., rear section 178 of Fig. 18), and opposing walls (e.g., lateral sections 176 of Fig. 18).
The claim recitation “the flange extending uninterrupted between the contact plate, the rear wall, and the pair of opposing walls” raises the issue of new matter, and necessitates rejection under 35 U.S.C. § 112(a).
With respect to claims 18-19: The claims are rejected under 35 U.S.C. § 112(a) via dependency.
Claim Rejections - 35 USC § 103
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.
Claim(s) 1-3, 5-6, and 20-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 5,992,960 A (Wolanin).
With respect to claim 1: Wolanin discloses a framing system for a refrigerated enclosure, the framing system comprising: a frame assembly (top panel 7, side panels 8 and 9, and “a rear panel (not shown)” @ col. 3, line 44) comprising a top frame segment (top panel 7); at least one mullion assembly (at least mullion bar 11, may include liner 20, 21 and further walls of the refrigerator) comprising a plurality of outer walls surrounding an interior space (at least Figs. 2-3); and at least one mullion bracket (mullion bar retainer 24) configured to: couple the at least one mullion assembly to the top frame segment (Figs. 4-5), and inhibit airflow from the refrigerated enclosure into the interior space of the at least one mullion assembly (Figs. 4-5).
Further regarding the claim limitation “and inhibit airflow from the refrigerated enclosure into the interior space of the at least one mullion assembly”, Applicant’s [0009] and [0032] disclose that the mullion bracket having a flange in contact with the end of the mullion inhibits air flow. Applicant’s [0118]-[0120] and Figs. 12-14 disclose perimeter flange 74 partially capping the end of mullion frame segment 34 inhibits air flow. Covering pockets 101 inhibits air flow.
Wolanin’s lateral bridge member 79 is analogous to the Applicant’s flange 74, and is in contact with the end of mullion bar 11. This at least partially caps the end of mullion bar 11. Bridge member 79 covers the slots 39 and 40. This meets the Applicant’s disclosure of what meets “and inhibit airflow from the refrigerated enclosure into the interior space of the at least one mullion assembly” as claimed.
Wolanin does not disclose “a bottom frame segment” as claimed. Wolanin Fig. 2 shows the outer shell 3 of the cabinet 1, and the liners 20 and 21 on either side of the mullion bar 11. This defines the compartments 13 and 15. The top panel 7 defines the top side of the outer shell 3, above the compartments 13 and 15.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Wolanin’s outer shell 3 to include a bottom panel, opposite to the top panel 7, in order to define the bottom of the compartments 13 and 15 similarly to how the top panel 7 defines the top of the compartments 13 and 15.
With respect to claim 2: Wolanin, as modified, meets wherein the at least one mullion bracket comprises a mullion-engaging portion (at least legs 110 and 111, may optionally include connection portion 97) extending into the interior space (Figs. 4-5) and having outer dimensions sized to engage with at least two walls of the plurality of outer walls (Fig. 4 shows legs 110, 111 engaging left and right walls of mullion bar 11; Fig. 5 shows leg 110 engaging the front wall of mullion bar 11 – leg 111 contacts the front wall in the same way).
With respect to claim 3: Wolanin, as modified, meets wherein the at least one mullion bracket comprises: a frame-engaging portion (the portions of body members 76 and 77 engaging top panel 7) coupled with the top frame segment or the bottom frame segment (Figs. 3-5); and a flange (lateral bridge member 79) between the mullion-engaging portion and the frame-engaging portion (Figs. 3-9), the flange projecting outward beyond the outer dimensions of the mullion-engaging portion (Fig. 7 shows lateral bridge 79 projecting outward beyond outer dimensions of legs 110 and 111).
With respect to claim 5: See the annotated image below. Wolanin, as modified, meets wherein a center axis of the mullion-engaging portion (lower portion: vertical dashed line through center of leg 111) is parallel (lower portion: both dashed lines vertical and therefore parallel) and coplanar (upper portion: dashed line indicates the plane in which the axes are coplanar) with a center axis of the frame-engaging portion (lower portion: vertical dashed line through center of body member 77).
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With respect to claim 6: Wolanin, as modified, meets wherein the mullion-engaging portion is offset in a front-to-back direction from the frame-engaging portion (Fig. 7: bridge member 79, leg 110, and/or leg 11 is/are offset in a front-to-back direction from the majority of body members 76, 77 and/or fins 85, 86).
With respect to claim 21: By making the same modification as in the rejection of claim 1, modified Wolanin meets a refrigerated enclosure (refrigerator 1), comprising: a frame assembly (top panel 7, side panels 8 and 9, “a rear panel (not shown)” @ col. 3, line 44 – and the added bottom panel) comprising a top frame segment (top panel 7) and a bottom frame segment (the added bottom panel); at least one mullion assembly (at least mullion bar 11, may include liner 20, 21 and further walls of the refrigerator) comprising a plurality of outer walls surrounding an interior space (at least Figs. 2-3); and at least one mullion bracket (mullion bar retainer 24) configured to: couple the at least one mullion assembly to the top frame segment or the bottom frame segment (Figs. 4-5), and inhibit airflow from the refrigerated enclosure into the interior space of the at least one mullion assembly (Figs. 4-5, and see the detailed explanation regarding the equivalent limitation in the rejection of claim 1).
With respect to claim 22: Wolanin, as modified, meets wherein the at least one mullion bracket comprises a mullion-engaging portion (at least legs 110 and 111, may optionally include connection portion 97) configured to, when assembled, extend into the interior space (Figs. 4-5), the mullion-engaging portion having outer dimensions sized to engage with at least two of the plurality of outer walls (Fig. 4 shows legs 110, 111 engaging left and right walls of mullion bar 11; Fig. 5 shows leg 110 engaging the front wall of mullion bar 11 – leg 111 contacts the front wall in the same way).
With respect to claim 23: Wolanin, as modified, meets wherein the at least one mullion bracket comprises: a frame-engaging portion (the portions of body members 76 and 77 engaging top panel 7) configured to, when assembled, couple with the top frame segment or the bottom frame segment (Figs. 4-5); and a flange (lateral bridge member 79) between the mullion-engaging portion and the frame-engaging portion (Figs. 3-9), the flange projecting outward beyond the outer dimensions of the mullion-engaging portion (Fig. 7 shows lateral bridge 79 projecting outward beyond outer dimensions of legs 110 and 111).
With respect to claim 24: By making the same modification as in the rejection of claim 1, modified Wolanin meets a framing system for a refrigerated enclosure (refrigerator 1), the framing system comprising: a frame assembly (top panel 7, side panels 8 and 9, “a rear panel (not shown)” @ col. 3, line 44 – and the added bottom panel) comprising a top frame segment (top panel 7) and a bottom frame segment (the added bottom panel); at least one mullion assembly (at least mullion bar 11, may include liner 20, 21 and further walls of the refrigerator) comprising a plurality of outer walls surrounding an interior space (at least Figs. 2-3); and means for both coupling the at least one mullion assembly to the top frame segment or the bottom frame segment and inhibiting airflow from the refrigerated enclosure into the interior space of the at least one mullion assembly (mullion retainer bar 24).
See Figs. 4-5 for mullion retainer bar 24 coupling mullion bar 11 to top panel 7. See the rejection of claim 1 regarding how, based on the Applicant’s disclosure, retainer bar 24 and/or the lateral bridge member 79 thereof inhibit(s) airflow as claimed.
With respect to claim 25: Wolanin, as modified, meets wherein the means for both coupling the at least one mullion assembly to the top frame segment or the bottom frame segment and inhibiting airflow from the refrigerated enclosure into the interior space of the at least one mullion assembly comprises means for engaging with interior surfaces of at least two of the plurality of outer walls within the interior space (legs 110, 111).
Wolanin Fig. 4 shows legs 110, 111 engaging left and right walls of mullion bar 11. Wolanin Fig. 5 shows leg 110 engaging the front wall of mullion bar 11 – leg 111 contacts the front wall in the same way.
With respect to claim 26: The Applicant’s disclosed flange 74 does not completely cover the top of the mullion assembly. In light of the Applicant’s disclosure, the claimed “blocks air infiltration” does not require the flange to completely cover the top of the mullion assembly.
Wolanin, as modified, meets wherein the flange blocks air infiltration into the interior space (in the same way as the Applicant’s invention – by being a physical structure on top of the mullion assembly).
Further, from MPEP 2114:
While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997)
"[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original)
A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)
The prior art structure meets every claimed structure. The prior art discloses keeping insulation inside the mullion via retainer 24. There is nothing in the claimed function of “blocks air infiltration” that distinguishes the prior art apparatus from the claimed apparatus.
Claim(s) 4 and 9-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 5,992,960 A (Wolanin) as applied to claim 3 above, and further in view of US 3,274,741 A (Neagle) and WO 2008/066542 A1 (Avila).
With respect to claim 4: Wolanin does not disclose “a plurality of fasteners, at least one fastener of the plurality of fasteners extending through at least one opposing lateral wall of the plurality of outer walls into the mullion-engaging portion and at least one fastener of the plurality of fasteners extending through the top frame segment into the frame-engaging portion” as claimed.
Neagle Fig. 19 shows a fastener (18) passing through a mullion (14) and into a bracket (17). Two fasteners (17’) connect the bracket (17) to the frame (3).
Avila shows it is known in the refrigerator art to use similar fasteners on a mullion bar structure, to both connect the bracket to the mullion and connect the bracket to the frame.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Wolanin’s retainer bar 24, mullion bar 11, and/or top panel 7 to have retainer bar 24 screwed into both the mullion bar 11 and the top panel 7, in order to more securely attach the components together and/or prevent any potential lateral movement of retainer bar 24 in the lateral slot of top panel 7.
Due to the small, finite number of possibilities, it is obvious to have screw(s) connecting to the retainer bar 24 through the lateral sides of mullion bar 11 and to have screw(s) connecting to top panel 7 through the front of flange 47.
With respect to claim 9: By making the same modification as in the rejection of claim 4 above, Wolanin in view of Neagle and Avila meets wherein a front surface of the frame-engaging portion is planar (at Wolanin’s front bearing surfaces 83 and 84), the frame-engaging portion comprising holes (holes for the screws added to connect flange 47 and retainer bar 24) extending from the front surface into the frame-engaging portion, the holes configured to couple to at least one fastener of a plurality of fasteners (said added screws) extending through the top frame segment (at flange 47) into the frame-engaging portion (at body members 76 and 77).
With respect to claim 10: Wolanin, as modified, meets wherein the top frame segment (top panel 7) and the bottom frame segment (the added bottom panel) are coupled to the front surface of the frame-engaging portion of the at least one mullion bracket (at front bearing surfaces 83 and 84, using the added screws).
With respect to claim 11: Applicant’s Figs. 8-9 show the boss 112 that houses the threaded hole 92 for fastener 64.
Avila Fig. 9 shows “apertured bosses 260” (Avila [0037]). In the combination, it is obvious to add Avila’s apertured bosses 260 to Wolanin’s retainer bar 24 for the purpose of screwing the mullion bar 11 to the retainer bar 24.
Such a modification meets wherein the mullion-engaging portion comprises at least one first boss (left and right apertured bosses 260) extending from one side surface of the mullion-engaging portion into the mullion-engaging portion (in the same way as Applicant’s boss 112), the at least one first boss extending from the one side surface of the mullion-engaging portion configured to couple to at least one fastener of the plurality of fasteners (the added screws) extending through at least one opposing lateral wall of the plurality of outer walls into the mullion-engaging portion.
With respect to claim 12: Wolanin, as modified, meets wherein at least one fastener of the plurality of fasteners extending through a lateral wall of the plurality of outer walls into the mullion-engaging portion (as discussed in the rejection of claim 4).
With respect to claim 13: Similarly to claim 9, it is obvious to use one or more of Avila’s apertured bosses 260 to make the connection between the rear wall and the retainer bar. Wolanin, as modified, meets wherein the mullion-engaging portion comprises at least one second boss (apertured boss 260) extending from a rear surface of the mullion-engaging portion toward the front surface of the mullion-engaging portion (the rear side of boss 260 is at the rear surface of the mullion-engaging portion and extends forward, to thereby define the aperture therein).
With respect to claim 14: Similarly to claim 9, it is obvious to use one or more of Avila’s apertured bosses 260 to make the connection between the top panel 7 and the retainer bar. Wolanin, as modified, meets wherein the frame-engaging portion comprises at least one boss (apertured boss 260) extending from a front surface of the frame-engaging portion toward a rear surface of the frame-engaging portion (the front of boss 260 is at the front of the frame-engaging portion and extends rearward, to thereby define the aperture therein) to receive the at least one fastener extending through the top frame segment (at Wolanin’s flange 47) into the frame-engaging portion.
With respect to claim 15: Wolanin, as modified, meets wherein the at least one boss comprises a threaded hole configured to couple to the associated fastener (the aperture in apertured boss 260).
Claim(s) 7-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 5,992,960 A (Wolanin) as applied to claim 3 above, and further in view of US 7,407,240 B2 (Collins).
With respect to claims 7-8: Wolanin does not disclose “wherein the frame-engaging portion is positioned closer to a front surface of the at least one mullion assembly than the mullion-engaging portion” as recited in claim 7 and/or “wherein the mullion-engaging portion is positioned closer to a rear surface of the at least one mullion assembly than the frame-engaging portion” as recited in claim 8.
Collins Figs. 3-4 show it is known in the art to have a similar mullion bracket (mullion retainer 24) with the frame-engaging portion (finger member 94) positioned closer to a front surface of the mullion assembly (mullion 11 and the components connected thereto) than the mullion-engaging portion (clips 82, 83). The mullion-engaging portion (clips 82, 83) is positioned closer to a rear surface of the at least one mullion assembly than the frame-engaging portion (finger member 94).
Comparing Collins Fig. 6 and Wolanin Fig. 5, the respective structures are adapted for connecting analogous, but somewhat differently shaped/configured mullions and bent front flanges.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Wolanin’s retainer bar 24 such that the upper portions of body members 76, 77 are closer to the front of the mullion assembly than the legs 110, 111 and such that the legs 110, 111 are closer to the rear of the mullion assembly than the upper portions of the body members 76, 77 in order to adapt Wolanin’s invention for use with a mullion and frame of Collins’ configuration.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 5,992,960 A (Wolanin) in view of US 3,274,741 A (Neagle) and WO 2008/066542 A1 (Avila) as applied to claim 14 above, and further in view of FR 1314273 A (Bosch).
With respect to claim 16: Wolanin in view of Neagle and Avila does not meet “wherein the at least one mullion bracket comprises at least one threaded insert positioned in the at least one boss, the at least one threaded insert configured to couple to the associated fastener” as claimed.
Bosch discloses an inner container 2 of a refrigerator, with container 2 made of synthetic material. Threaded bosses 8, 20, 30 are formed integrally with the container 2, and receive threaded screws 9 for connecting outer casing 1 with container 2.
Wolanin’s retainer bar 24 is a plastic element (Abstract, claim 15). This is a synthetic material, as in Bosch’s disclosure.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the bosses with Bosch’s bosses 8, 20, 30 in order to receive metal fasteners in the plastic retainer bar 24 similarly to Bosch’s invention.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 5,992,960 A (Wolanin) as applied to claim 3 above, and further in view of WO 2008/066542 A1 (Avila).
With respect to claim 17: Wolanin does not disclose “wherein the at least one mullion assembly comprises a contact plate extending between a pair of opposing walls of the plurality of outer walls and positioned opposite a rear wall of the plurality of outer walls, the flange extending uninterrupted between the contact plate, the rear wall, and the pair of opposing walls forming a barrier to air flow between the interior space and the other side of the flange” as claimed.
Avila’s mullion 100 includes a contact plate (front face 155 and/or central member 200) extending between a pair of opposing walls (side members 184, 186) of the plurality of outer walls and positioned opposite a rear wall (back member 182) of the plurality of outer walls. Avila’s bracket 170 covers the top of the interior space defined by front face 155, central member 200, side member 184, side member 186, and back member 182.
Wolanin desires to provide a mullion connections that prevents leakage of insulation that is foamed in-situ between liners and the shell (col. 2, lines 28-33). See Wolanin Fig. 3. There is insulation injected between the liners 20 and 21 during a cabinet foaming process (col. 5, lines 47-67).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Wolanin’s mullion bar 11 to have the four-wall construction of Avila, in order to be used in a refrigerator like Avila’s (single compartment with multiple doors) instead of in a refrigerator like Wolanin’s (multiple compartments each with an individual door).
It is obvious to modify the bridge member 79 of retainer bar 24 to cover the interior space (and top) of the modified mullion bar 11, in order to prevent leakage of insulation as desired by Wolanin. Avila shows insulated core 178 in mullion 100, so it is obvious for the modified mullion bar 11 to still have Wolanin’s insulation therein.
Claim(s) 18-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 5,992,960 A (Wolanin) in view of WO 2008/066542 A1 (Avila) as applied to claim 17 above, and further in view of US 7,407,240 B2 (Collins).
With respect to claim 18: Wolanin does not disclose “wherein a front projection of the flange is cutout” as claimed.
Wolanin Figs. 3-5 show contoured rear surface 99 for routing of a yoder tube 120 behind mullion bar 11. The first return flange portion 53 is defined by a first section 54 “that is spaced rearwardly, in a generally open-loop configuration, from primary flange 47”.
Collins Figs. 3-6 show a front flange of a different construction than Wolanin’s. There is no open-loop configuration in Collins’ front flange.
See Wolanin Figs. 3-5. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the bridge member 79 to have the contoured surface 99 in the front projection thereof, in order to route a yoder tube in a refrigerator having Collins’ front flange configuration. In Wolanin Fig. 5, such a yoder tube 120 would not bend around the non-existent open-loop configuration of flange portion 53. The yoder tube 120 would be much closer to flange 47, and pass through the bridge member 79.
With respect to claim 19: Wolanin, as modified, meets wherein a portion of a top surface of the front projection is recessed (Wolanin Fig. 8: the concave upper surface 103).
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 5,992,960 A (Wolanin) as applied to claim 3 above, and further in view of US 6,460,956 B1 (Disbennett).
With respect to claim 20: Wolanin does not disclose “a gasket positioned between the at least one mullion assembly and the flange” as claimed.
Disbennett discloses an adhesive element 185 that provides a complete annular seal about an aperture 44, and seals the flange portion 152 to the liner 17. This prevents the flow of foamed insulation 32 between flange portion 152 and liner 17. See Fig. 6 and col. 6, lines 4-22.
Wolanin desires to provide a mullion connections that prevents leakage of insulation that is foamed in-situ between liners and the shell (col. 2, lines 28-33). See Wolanin Fig. 3. There is insulation injected between the liners 20 and 21 during a cabinet foaming process (col. 5, lines 47-67).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Wolanin’s mullion bar retainer 24 to include an adhesive element analogous to Disbennett’s element 185 on the bottom side of the lateral bridge member 79, in order to prevent leakage of insulation similarly to Disbennett’s invention. Such an adhesive element meets “a gasket” as claimed, in that it forms a complete seal.
Response to Arguments
The double patenting rejections made in the previous Office action are maintained, as no Terminal Disclaimer has been filed to overcome these rejections.
The claim objections made in the previous Office action are withdrawn, as being overcome by the latest claim amendments.
With the exception of claims 17-19, the rejections under 35 U.S.C. § 112(a) made in the previous Office action are withdrawn. Claim 17 still recites “the flange extending uninterrupted between the contact plate, the rear wall, and the pair of opposing walls”, which is not supported by the Applicant’s disclosure. Claims 18-19 are rejected under 112(a) via dependency.
Applicant's arguments filed regarding the rejections under 35 U.S.C. § 103 have been fully considered but they are not persuasive.
In the interview on 27 May 2026, the Applicant already raised the argument that Wolanin does not disclose a plurality of walls surrounding an interior space. The examiner already responded to this argument. The response is the same now as it was in the interview, in which the Applicant agreed that Wolanin does disclose a plurality of walls surrounding an interior space.
Responding again to this argument that has already been discussed, the Applicant’s argument is not persuasive because the Applicant creates a strawman argument by referring to only mullion bar 11 as the claimed “at least one mullion assembly comprising a plurality of walls” when the rejections of record rely on “at least mullion bar 11”. The Applicant’s arguments do not address the rejections of record; they address a misrepresentation of the rejections of record.
As already explained in the interview, Wolanin’s mullion bar 11 combines with 1) walls of liners 20 and 21 (Figs. 2-3) and 2) the rear walls of the refrigerator (Fig. 2) in a manner that meets a “mullion assembly comprising a plurality of walls surrounding an interior space” as claimed.
In the interview on 27 May 2026, the Applicant already raised the argument that Wolanin does not disclose inhibiting air flow from the refrigerated enclosure into the interior space of the mullion assembly. The examiner already responded to this argument. The response is the same now as it was in the interview, in which it was explained that the Applicant’s argument is not commensurate in scope with the claim language.
As already explained in the interview, claim 1 does not positively recite the refrigerated enclosure. The claim requires the mullion bracket to be “configured to” inhibit airflow. “Configured to” does not require the prior art to explicitly disclose inhibiting air flow. As explained in the rejections of record, in the interview, and now a third time, Wolanin’s structure meets the “configured to” language for the same reasons as the Applicant’s invention – there is a flange structure that covers some amount of the top of the mullion assembly.
The Applicant alleges that due to foam insulation being in mullion bar 11, there is no space into which airflow can be inhibited. There can be airflow before, during, and after foam insulation is put into the mullion bar 11. Further, the retainer 24 is disclosed as reducing foam leakage during a foaming insulation process. In the same way that retainer 24 reduces foam leaking from inside the mullion to outside of the mullion, retainer 24 is configured to inhibit airflow in the opposite direction. If the retainer 24 did not inhibit airflow inward, the insulation would not be reduced from leaking outward. Further yet, there is no disclosure in Wolanin that the insulation completely seals the space it occupies in an airtight manner, as argued and assumed by the Applicant. This argument is not persuasive.
The Applicant repeats the argument about inhibiting airflow from a refrigerated enclosure into the mullion assembly. The response is the same. The refrigerated enclosure is not claimed. Further, see Wolanin Figs. 2-3. Air could possibly go from inside the refrigerator’s interior (space defined by liners 20, 21), and into the mullion assembly at the sides of retainer 24. When closed, doors 17, 19 keep air inside the refrigerated enclosure. The Applicant’s remarks about how there is no way that air could go from inside the refrigerated enclosure into the mullion are 1) not commensurate in scope with the claims and 2) not persuasive in light of Wolanin’s disclosure.
The Applicant’s annotated image on page 6 incorrectly labels the front area of the mullion bar 11 as the “external side”. See Fig. 2. The doors 17, 19 form the external side of the refrigerator; the front side of mullion bar 11 is covered by the closed doors 17, 19.
See the annotated image below. With doors 17, 19 closing the front side of the refrigerator’s interior, air inside the liners 20, 21 can go behind the doors and be “inhibited” by the retainer 24. Such air could move from the lateral side of the retainer 24 and/or from the front side of the retainer 24 (e.g., when a gasket of door 17, 19 creates some amount of space between the rear side of the door 17, 19 and the front side of the mullion bar 11).
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If the Applicant is going to present arguments regardless of if they have already been discussed in an interview, the interview is not a good use of the examiner’s time. The Applicant has presented arguments basically verbatim as they have already been discussed. It is not a good use of time to repeat the same arguments and get the same response.
The Applicant appears to find a patentable distinction of the claimed invention based on one identified benefit or function of the flange – inhibiting ai flow. In response to applicant's argument that the claimed flange inhibits airflow, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
It is not persuasive to argue that the prior art doesn’t disclose or contemplate inhibiting airflow when all that is required is a flange to be on top of the mullion for that to happen.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW ROERSMA whose telephone number is (571)270-3185. The examiner can normally be reached M-F 8:00-4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Daniel Troy can be reached at 571-270-3742. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW ROERSMA/Primary Examiner, Art Unit 3637
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