Ex Parte Deflorian et alDownload PDFPatent Trial and Appeal BoardOct 15, 201311925096 (P.T.A.B. Oct. 15, 2013) Copy Citation 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. 11/925,096 10/26/2007 Stefano Deflorian P/4043-393 2397 2352 7590 10/15/2013 OSTROLENK FABER LLP 1180 AVENUE OF THE AMERICAS NEW YORK, NY 10036-8403 EXAMINER BOECKMANN, JASON J ART UNIT PAPER NUMBER 3752 MAIL DATE DELIVERY MODE 10/15/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte STEFANO DEFLORIAN, WALTER SORDO, and FRANCO ZOEBLE ____________________ Appeal 2011-013173 Application 11/925,096 Technology Center 3700 ____________________ Before MICHAEL C. ASTORINO, MICHELLE R. OSINSKI, and HYUN J. JUNG, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-013173 Application 11/925,096 2 STATEMENT OF THE CASE Appellants1 appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1, 3, 4, 6, and 8 under 35 U.S.C. § 102(b) as anticipated by Suhajda (US 4,675,504, iss. Jun. 23, 1987) (Ans. 3-5).2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The sole independent claim on appeal, claim 1, is reproduced below and is illustrative of the appealed subject matter: 1. Device for the evaporation of volatile substances comprising: a casing including an internal chamber and an aperture providing access to said chamber, a closure member coupled with said casing, said closure member being movable with respect to the casing for closing and opening said aperture, a container of volatile substances housed within said chamber, wherein the closure member and the container are provided with co-operating engaging means, said engaging means configured so that the closure member engages the container during a first stage of an opening movement of the closure member to allow extraction of at least part of the container out of the chamber. 1 Appellants identify the real party in interest as Zobele Holding S.p.A. App. Br. 1. 2 Claim 2 is cancelled, and claims 5 and 7 have been objected to as being dependent on a rejected base claim. App. Br. 1. Appeal 2011-013173 Application 11/925,096 3 ANALYSIS Appellants argue claims 1, 3, 4, 6, and 8 as a group. App. Br. 3-5. We select claim 1 as the representative claim, and claims 3, 4, 6, and 8 fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii)(2011). The Examiner found that Suhajda discloses a casing (base 40) including an internal chamber (near heat shield 43) and an aperture (the unnumbered opening at the top of base 40) providing access to the chamber (near heat shield 43). Ans. 4. The Examiner also found that Suhajda discloses a closure member (top 20) coupled with the casing (base 40) and being movable with respect to the casing (base 40) for closing and opening the aperture (the unnumbered opening at the top of base 40). Id. Appellants contend that Suhajda’s top 20 is not a closure member “since the top 20 and the base 40 are permanently fixed during the normal use of the device.” App. Br. 4; see also Reply Br. 1. The Examiner responded that nothing in the claim requires the closure member to open and close the aperture “at the will of the user as a normal process of using the device.” Ans. 5. We agree with the Examiner that Suhajda’s top 20 is a closure member as it is configured to mate with base 40 by a suitable fastener in order to house components of an electric fogger, and in this way, closes the unnumbered opening at the top perimeter of base 40. Suhajda, col. 4, ll. 33-42, 45-48. Appellants also contend that, even assuming Suhajda’s top 20 is a closure member, top 20 is not movable with respect to the casing because top 20 “is secured in place by screws . . . in order to prevent movement of the top 20 relative to the base 40.” App. Br. 4; see also Reply Br. 1-2. Appellants further contend that “[t]he device must be disassembled in order Appeal 2011-013173 Application 11/925,096 4 to remove the top 20 from the base 40.” App. Br. 4. The Examiner responded that nothing in the claim requires the closure member to be movable with respect to the casing “without removing any screws.” Ans. 6. In other words, the Examiner found that “[a]ll one would need to do is remove the screws [or other fasteners in other embodiments] and then move the top relative to the base.” Id. We agree with the Examiner that claim 1 does not require specific parameters under which the closure member must be movable with respect to the casing, and the Examiner has made specific findings that Suhajda’s top 20 is movable with respect to base 40 under at least some parameters (e.g., if screws are removed or if the base 40 and top 20 mate with clips, rather than screws, as illustrated in Figure 4 of Suhajda). Appellants further contend that Suhajda’s top 20 does not close and open opening 24 of Suhajda and only opening 24 provides access to the chamber. App. Br. 4; see also Reply Br. 2. Appellants’ contention that top 20 does not open and close opening 24 (see App. Br. 4-5) is not persuasive because it does not address the rejection as articulated by the Examiner which is based on top 20 opening and closing the aperture along the top perimeter of base 40, not opening 24. Appellants also contend that the Examiner’s finding that the unnumbered opening at the top of base 40 is the aperture “is . . . incorrect since the ‘aperture’ . . . provides ‘access to the chamber’” and “[i]n Suhajda, only the opening 24 provides access to chamber and to the container 111, which according to claim 1, must be in the chamber.” App. Br. 4. The Examiner responded that “[t]he internal chamber of claim 1 is being considered anything inside the outer walls of the base 40 and that the top perimeter of base 40 is being considered the aperture that provides access to Appeal 2011-013173 Application 11/925,096 5 that chamber.” Ans. 6. The Examiner further responded that top 20 “is fully capable of closing the aperture and opening the aperture.” Id. We agree with the Examiner that Suhajda’s top 20 closes and opens the aperture defined by the top perimeter of base 40 that provides access to the chamber within the outer walls of base 40. While opening 24 provides access to the chamber within the outer walls of base 40 (see App. Br. 4), this does not preclude the unnumbered opening at the top perimeter of base 40 (used in the Examiner’s rejection) from also providing access to the chamber within the outer walls of base 40. Suhajda’s container 111 is housed within the chamber within the outer walls of base 40 in that at least a portion of container 111 is inserted into and disposed within base 40 of housing 10. See, e.g., Suhajda, col. 7, ll. 13-20, col. 8, ll. 21-22. Appellants’ additional contention that Suhajda’s top 20 does not close the unnumbered opening at the top perimeter of base 40 because “the opening 24 is open” “even when the top 20 is secured to the base 40” (App. Br. 4; see also Reply Br. 2) is unpersuasive because it does not adequately address the Examiner’s specific findings of the top 20 closing the unnumbered opening at the top of base 40 if “element 111 were still attached to the top (20).” Ans. 6. For the foregoing reasons, Appellants have failed to show error by the Examiner in finding that Suhajda discloses all of the limitations of claim 1, and we sustain the rejection of claim 1, and claims 3, 4, 6, and 8 which fall therewith, under 35 U.S.C. § 102(b) as anticipated by Suhajda. DECISION The Examiner’s rejection of claims 1, 3, 4, 6, and 8 under 35 U.S.C. Appeal 2011-013173 Application 11/925,096 6 § 102(b) is AFFIRMED. 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 mls Copy with citationCopy as parenthetical citation