Ex Parte Tebé Poves et al

Patent Trial and Appeal Board

Aug 23, 2017

13390369 (P.T.A.B. Aug. 23, 2017)

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.
13/390,369 04/30/2012 Daniel Tebe Poves HER0229US 1015
23413 7590 08/25/2017
TANTOR TOT RTTRN T T P
EXAMINER
20 Church Street SAMUELS, LAWRENCE H
22nd Floor
Hartford, CT 06103 ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
08/25/2017 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL TEBE POVES and
GIANLUCA PAOLAZZI
Appeal 2016-004994
Application 13/390,369
Technology Center 3700
Before: CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-004994
Application 13/390,369
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1—
10. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
THE INVENTION
The claims are directed to an electric device for the evaporation of
volatile substances, such as fragrances. Spec. 1. Sole independent claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. Electric device for evaporation of volatile
substances comprising:
a casing;
a container of volatile substances engaged
with said casing, wherein said container is
provided with a wick having an upper part
protruding from said container, and a lower part
inside said container;
the device further comprising
heating means arranged in said casing for
heating said upper part (11) of the wick; and
means for regulating a degree of evaporation of
said volatile substance,
said means for regulating the degree of
evaporation of the volatile substance comprises
a shield member which is displaceable between
a minimum evaporation position in which part
of the shield member is interposed between said
heating means and said upper part of the wick,
so that a temperature at the upper part of the
wick is minimum, and a maximum evaporation
position in which part of thee shield member is
located below said heating means, so that the
temperature at the upper part of the wick is
maximum.
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Application 13/390,369
REFERENCES
Rymer
Caserta
DeWitt
Basaganas US 6,285,830 B1 Sept. 4, 2001
US 6,580,875 B2 June 17, 2003
US 7,209,650 B2 Apr. 24, 2007
US 2008/0226269 A1 Sept. 18, 2008
REJECTIONS
Claims 1—6 and 9 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Rymer and Basaganas. Final Act. 3.
Claims 7 and 8 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Rymer, Basaganas, and DeWitt. Id. at 5.
Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Rymer, Basaganas, and Caserta. Id. at 6.
Claims 1—6 and 9—Unpatentable over Rymer and Basaganas
For independent claim 1, the Examiner relies on Rymer to teach an
electric device for the evaporation of volatile substances comprising a
casing, a container of a volatile substance engaged with the casing, a wick,
heating means for heating the upper part of the wick, and means for
regulating the degree of evaporation of the volatile substance. Final Act. 3
(citing Rymer, Fig. 1). The Examiner acknowledges that Rymer’s means for
regulating the degree of evaporation of the volatile substance does not
include the claimed displaceable shield member, but instead “teaches that
the shield is stationary and the heating element moves up and down.” Id.
The Examiner contends, however, that Basaganas “teaches a cap also
partially movable between the wick and the heating element to slow or
increase the rate.” Id. The Examiner concludes that “[i]t would have been
ANALYSIS
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Application 13/390,369
obvious to someone having ordinary skill in the art at the time of the
invention to provide to Rymer the teachings of Basaganas, and have the
shield move rather than the heating element move, in order to have a
maximum and a minimum rate of volatization without jostling the heating
element and subjecting it to precarious circumstances.” Id. at 3^4.
Appellants respond that a person of ordinary skill in the art would not
have been motivated to modify Rymer with Basaganas, and, in any event,
such modification “would still not result in the claimed electric device.”
App. Br. 5. Appellants contend that Basaganas relies on the “chimney
effect” to control vapor emissions by displacing a tubular body above the
upper part of the wick to guide at least some of the vapor to the exterior of
the device. Id. at 5—6. According to Appellants, the “chimney effect is
always produced above the source of heat adjacent the end of the wick so
that the regulation means have to be arranged above the wick.” Id. at 6.
Appellants therefore assert that “it would neither be practical nor desirable to
have the Rymer shield move below the heating resistor when combined with
Basaganas.” Id.
In response to this argument, the Examiner asserts that Basaganas “is
used as a secondary reference” to teach that “the shield can be movable
relative to the heating element and the wick.” Ans. 7—8. Conversely,
according to the Examiner, Rymer “is used as the primary reference to
establish the method of heating the wick and the nature of the relationships
between the heating element and the shield protecting the wick.” Id. at 7.
The Examiner also provides a “mock-up” of Rymer Figure 2 to illustrate the
proposed combination of teachings. Id. at 8. In the mock-up, heater 9 is
moved to near the top of the device and labeled “stationary heater,” and
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Application 13/390,369
tubular shield 8, an integral part of top cover 6, is detached from the top
cover and labeled “slidable up/down.” Id.
The Examiner has not set forth a sufficient initial showing of
unpatentability of claim 1. Assuming, arguendo, that a person of ordinary
skill in the art would have combined Rymer and Basaganas for the reason
the Examiner proposes, we are not persuaded that the resultant combination
would have also taught or suggested the subject matter of claim 1.
Specifically, despite Appellants’ assertion that “it would neither be practical
nor desirable to have the Rymer shield move below the heating resistor”
(App. Br. 6), the Examiner does not explain why a person of ordinary skill in
the art would have moved Rymer’s heater 9 to the top of Rymer’s
evaporation device and above shield 8.1 Neither Rymer nor Basaganas
teaches positioning a heater above a shield. Further, absent hindsight, there
is no apparent or stated reason why Rymer’s heater needs to be placed above
the shield to make the heater stationary or the shield movable. Given the
Examiner’s lack of explanation why a person of ordinary skill in the art
would have, nonetheless, made this modification, we do not sustain the
Examiner’s rejection of claim 1, as well as claims 2—6 and 9, which depend
from claim 1.
The Remaining Rejections
The Examiner’s remaining rejections rely on the Examiner’s
erroneous finding that the combination of Rymer and Basaganas teaches all
of the limitations of claim 1. Final Act. 5—6. The Examiner has not relied
1 This proposed modification appears necessary to provide “a maximum
evaporation position in which part of the shield member is located below
said heating means,” as claim 1 requires.
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on DeWitt or Caserta to cure the deficiency. Accordingly, for the reasons
discussed supra, we do not sustain the Examiner’s rejection of claims 7 and
8 as unpatentable over Rymer, Basaganas, and DeWitt, or the rejection of
claim 10 as unpatentable over Rymer, Basaganas, and Caserta.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—6 and 9 is
reversed.
REVERSED
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