Ex Parte Dobler et al

Patent Trials and Appeals Board

Sep 10, 2014

12290815 - (D) (P.T.A.B. Sep. 10, 2014)

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.
12/290,815 11/04/2008 Sven Dobler 7784 1557
7590 09/10/2014
Paul M. Denk
Suite 170
763 South New Ballas Road
St Louis, MO 63141
EXAMINER
NGUYEN, DINH Q
ART UNIT PAPER NUMBER
3752
MAIL DATE DELIVERY MODE
09/10/2014 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 SVEN DOBLER, AARON R. BAUHS, AHMED R. ALAI-TAFTI,
and JONATHAN MILLEN
____________

Appeal 2012-007996
Application 12/290,8151
Technology Center 3700
____________

Before NINA L. MEDLOCK, BART A. GERSTENBLITH, and
JAMES A. WORTH, Administrative Patent Judges.

WORTH, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1–5, 9, and 10.2 We have jurisdiction under 35 U.S.C.
§§ 134 and 6(b). We AFFIRM-IN-PART.

1 According to Appellants, the parties in interest include the inventors
and Orlandi, Inc. (Br. 4).
2 Our decision refers to the Appellants’ Appeal Brief (“Br.,” filed
Oct. 7, 2011), the Examiner’s Answer (“Ans.,” mailed Jan. 19, 2012), and
the Final Rejection (“Final,” mailed Mar. 1, 2011).
Appeal 2012-007996
Application 12/290,815

2
Introduction
Appellants’ disclosure relates to a picture frame that contains an air
freshener (Spec. 2, ll. 7–8).
Claim 1, reproduced below, is the independent claim on appeal.
1. A decorative device for dispensing a freshening scent
into a room, comprising:
a frame having at least one aperture therethrough and a
means for supporting said frame upright;
a container, said container occupying said at least one
aperture; and,
a gel locating within said container, said gel comprising
one or more polymers and an oil, and a freshening scent therein
released over time.

Br. 16, Claims App.

Prior Art Relied Upon

Peters US 1,775,784 Sept. 16, 1930
Wheatley US 2004/0169091 A1 Sept. 2, 2004
Leonard US 2006/0000920 A1 Jan. 5, 2006

Rejections on Appeal
The Examiner maintains, and the Appellants appeal, the following
rejections:
1) Claims 1, 3, 4, 9, and 10 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Leonard and Wheatley; and
2) Claims 2 and 5 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Leonard, Wheatley, and Peters.

Appeal 2012-007996
Application 12/290,815

3
ANALYSIS
Independent claim 1
Appellants argue that the Examiner erred in finding that the “32
volatile material” of Leonard constitutes a “gel,” as recited by claim 1
(Br. 11). However, the Examiner relies on Wheatley (¶ 54) for the gel of
claim 1 (Final 2; Ans. 5). Appellants argue that Wheatley does not describe
independent ingredients such as the “one or more polymers, and oil, and a
freshening scent that is contain therein, for release over a period of time,” as
further required (Br. 13). We agree with the Examiner that Wheatley (¶ 54)
describes a “polymer” that can be combined with a “scented oil” to form a
“gel” that serves as an air freshener. Ans. 5; see also Wheatley ¶ 70
(discussing time release properties of air fresheners).
Appellants argue that Wheatley does not show any type of frame, or a
container for holding a gel (Br. 12–13). However, the Examiner relies on
Leonard for the “frame” and “container,” as recited in claim 1 (Ans. 5–6).
The Examiner correctly finds that Leonard describes container 12, which
serves as an air freshener dispenser, and frame 16 for holding container 12
(see Leonard ¶¶ 7, 39). We agree with the Examiner (Ans. 5) that it would
have been obvious to a person of ordinary skill in the art to modify the
device of Leonard by replacing the air freshener, consisting of a volatile
material, in the container with an air freshener, consisting of a gel, as in
Wheatley, inter alia, to prevent leaking.
Accordingly, we sustain the rejection of claim 1 under 35 U.S.C.
§ 103(a) as being unpatentable over Leonard and Wheatley.

Appeal 2012-007996
Application 12/290,815

4
Dependent claims 3, 9, and 10
Appellants argue that Leonard does not teach a “perforated lidding,”
as recited by claim 3 (Br. 12). Appellants also argue that the prior art relied
on by the Examiner does not teach that a vertical surface of the gel can be
exposed “directly to the atmosphere,” as required by claims 9 and 10
(Br. 12). The Examiner finds that permeable membrane 24 of Leonard is
perforated to let the material evaporate to the surrounding atmosphere
(Ans. 6). We have carefully examined the portions of the prior art relied on
by the Examiner, and we find insufficient evidence that permeable
membrane 24 of Leonard is perforated to allow direct contact between the
air freshener and the atmosphere. Rather, Leonard (¶ 43) discloses that
permeable membrane 24 is comprised of low density polyethylene which
allows the migration of fragrance through the permeable membrane by
diffusion. Accordingly, we cannot sustain the rejection of claims 3, 9, and
10 under 35 U.S.C. § 103(a) as being unpatentable over Leonard and
Wheatley.

Dependent claims 2, 4, and 5
Appellants argue that there is nothing in Peters that describes a frame
with a rear surface, a temporary backing, an extending stand, and a container
having a flange, as recited by claim 4, i.e., “said frame having a rear surface;
a backing temporarily secured to said rear surface, and said supporting
means including at least one stand extending perpendicular to said backing;
and, said container having a flange” (Br. 13). However, as with claim 1, the
Examiner (Ans. 6) relies on Leonard for the structure of frame 16 and
container 12. Indeed, Leonard discloses that frame 16 has a rear face 40,
Appeal 2012-007996
Application 12/290,815

5
with a temporary backing 22 and extending stand 58, and that container 12
has flange 20 (Figs. 1–2; ¶¶ 42, 46, 54). Accordingly, we sustain the
rejection of claim 4 under 35 U.S.C. § 103(a) as being unpatentable over
Leonard and Wheatley.
Appellants also argue that it would not have been obvious to have a
rectangular frame with an opening for a photo, which has an aperture for
holding a structured container, incorporating a flange, for holding scented
gel, made of polymer and oil, as recited by claim 5 (Br. 13–14).
Specifically, Appellants argue that it would not have been obvious to
combine Peters with Leonard and Wheatley (Br. 13). We are unpersuaded
by Appellants’ argument. The Examiner relies on Peters to show that the
picture frame of Leonard could be made into a rectangular shape, as recited
by claim 5 (Ans. 7). We agree with the Examiner that the desire to change
the shape of the frame is a sufficient reason to combine the teachings of
Peters with Leonard and Wheatley. In KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398 (2007), the Supreme Court stated that when considering
obviousness that “the 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.” Id. at 418. We, therefore, sustain the rejection of
claim 5 under 35 U.S.C. § 103(a) as being unpatentable over Leonard,
Wheatley, and Peters.
Appellants do not argue the patentability of claim 2 separately from
the patentability of claims 1 and 5. As such, we also sustain the rejection of
claim 2 under 35 U.S.C. § 103(a) as being unpatentable over Leonard,
Wheatley, and Peters.
Appeal 2012-007996
Application 12/290,815

6
DECISION
The decision of the Examiner to reject claims 1, 2, 4, and 5 is
affirmed. The decision of the Examiner to reject claims 3, 9, and 10 is
reversed.
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-IN-PART

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