Sven Dobler

Patent Trials and Appeals Board

Jan 27, 2021

2019006518 (P.T.A.B. Jan. 27, 2021)

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.
14/999,531 05/19/2016 Sven Dobler 8289 8143
77083 7590 01/27/2021
Paul M. Denk
763 South New Ballas
Ste. 305
St. Louis, MO 63141
EXAMINER
REUTHER, ARRIE L
ART UNIT PAPER NUMBER
1763
MAIL DATE DELIVERY MODE
01/27/2021 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
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Appeal 2019-006518
Application 14/999,531
Technology Center 1700
____________

Before MICHELLE N. ANKENBRAND, CHRISTOPHER C. KENNEDY,
and MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 4, 5, 7, and 23–26. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

The invention relates to a system for forming a fragrant bead that may
be used to deliver a fragrance into the air or atmosphere. Spec. 2. Sole
independent claim 23 illustrates the invention:

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the Inventor/Applicant, Sven
Dobler, and the Orlandi, Inc., of Farmingdale, New York as the real parties
in interest. Appeal Br. 1.
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23. A system for forming a fragrant bead for use in an air
freshener, comprising:
a first container for mixing a fragrance with a polymer
into a mixture, the first mixing container having a dispensing
system for dispensing the mixture, the dispensing system
having a nozzle for forming the mixture into drops;
a second container for containing a surplus amount of
cross-linker and for receiving the drops of mixture dispensed
from the dispensing system of the first container, the surplus
amount of cross-linker for reacting with the drops of mixture to
form fragrant beads;
said polymer has a density and a specific gravity, the
cross-linker has a density and a specific gravity, and the density
of the specific gravity of the polymer is greater than the density
and specific gravity of the cross-linker;
wherein said polymer is derived from butadiene, isoprene
or chlorophrene, and said polymer included in the mixture at
between 1% - 90% by weight of the mixture;
wherein the cross-linker comes from the amine family of
polymers, including polypropoxy diamines, propoxy triamines,
and polyethoxydiamines, and said cross-linker included in the
mixture between about 1% - 90% by weight of said mixture;
a fragrance provided within the mixture, and added to
both the polymer and the cross-linker between approximately
0% - 95% by weight of said mixture; and
further additives added to both the polymer and cross-
linker mixtures including at least water, alcohols, surfactants,
pigments, colorants, and even additional fragrances, primarily
for modifying the specific gravity of the polymer mixture to a
greater specific gravity than the cross-linker mixture during
formation of the system for forming a fragrant bead.
Appellant requests review of the Examiner’s rejection of claims 4, 5,
7, and 23–26 under 35 U.S.C. § 103 as unpatentable over Dobler (US
2009/0149566 A1, published June 11, 2009) and Temple (US 4,089,800,
issued May 16, 1978). Appeal Br. 9; Final Act. 3.
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Application 14/999,531

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Appellant presents substantive arguments for independent claim 23.
Appeal Br. 10–11. Appellant presents additional arguments for dependent
claims 4, 5, 7, and 24–26. Id. at 11–12. However, these arguments do not
explain adequately why the cited art fails to meet the disputed claim
limitations and are no more than “statement[s] which merely points out what
a claim recites” and, thus, the statements are “not . . . considered []
argument[s] for separate patentability of the claim.” 37 C.F.R.
§ 41.37(c)(iv) (2018). Accordingly, we limit our discussion to claim 23, and
claims 4, 5, 7, and 24–26 stand or fall with this claim.

OPINION
After review of the positions the Appellant provides in the Appeal
Brief2 and the Examiner provides in the Final Action and the Answer, we
AFFIRM the Examiner’s prior art rejection of claims 4, 5, 7, and 23–26
under 35 U.S.C. § 103 for the reasons the Examiner presents. We add the
following for emphasis.

Claim 23
System claim 23 recites an apparatus for forming a fragrant bead for
use in an air freshener comprising a first container for mixing a polymer and
a fragrance, the first container having a dispensing system including a
nozzle, and a second container comprising a cross-linking agent, where the
second container receives the polymer/fragrance mixture so it contacts the
cross-linking agent to form fragrant beads.

2 Appellant did not file a Reply Brief.
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The Examiner finds that Dobler teaches a system to form fragrant
products comprising a first container for mixing a fragrance with a polymer
into a mixture and a second container having a surplus amount of cross-
linker and for receiving the mixture of the first container, where the first
container has a dispensing system for dispensing the mixture to the second
container. Final Act. 3–4; Dobler Figure 1, ¶¶ 31–32. The Examiner finds
that Dobler does not teach that the dispensing system of the first container is
a nozzle, or that the disclosed system forms a fragrant bead. Final Act. 5.
The Examiner finds that Temple teaches forming fragrant beads by mixing a
polymer with an organic liquid nonsolvent (perfume) that may be further
admixed with crosslinking agents such as amines. Id.; Temple Abstract, col.
6, ll. 33–45. The Examiner further finds that Temple teaches using a nozzle
to atomize the polymer mixture into a liquid. Final Act. 5; Temple col. 9, ll.
55–65; Temple Abstr., col. 9, ll. 55–65. The Examiner determines that it
would have been obvious to one of ordinary skill in the art to use Temple’s
nozzle in place of Dobler’s dispensing system and to have reasonably
expected that the modified system would produce fragrant beads, thereby
arriving at the claimed invention. Final Act. 5.
Appellant argues that the claimed invention differs from Dobler’s
invention in that Dobler is directed to forming toys and novelties and does
not disclose forming fragrant beads. Appeal Br. 10. Appellant further
contends that the claimed invention improves upon the earlier Dobler
concept by initially mixing a fragrance with a polymer and also with a cross-
linker. Id. Appellant argues additionally that Temple is more concerned
with encapsulating certain gel ingredients in microcapsules, which Appellant
contends is not what the claimed invention achieves. Id. According to
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Appellant, the claimed invention simply deposits the initial polymer mixture
by way of a nozzle into the cross-linker to form fragrant beads, which are
distinct from forming the type of microcapsules Temple teaches. Appeal Br.
10–11.
Appellant’s arguments do not identify reversible error in the
Examiner’s determination of obviousness for the reasons the Examiner
presents. Ans. 7. Moreover, claim 23 is recites an apparatus and an
apparatus must be distinguished from the prior art apparatus on the basis of
structure. Therefore, the patentability of an apparatus claim depends only on
the claimed structure for the apparatus, not on the use or purpose of that
structure or the function or result of that structure. Catalina Mktg. Int’l, Inc.
v. Coolsavings.com Inc., 289 F.3d 801, 809 (Fed. Cir. 2002); In re Danly,
263 F.2d 844, 848 (CCPA 1959); In re Gardiner, 171 F.2d 313, 315–16
(CCPA 1948). Further, the recitation of a material intended to be worked
upon by a claimed apparatus does not differentiate the claimed apparatus
structure from the structure of a prior art apparatus. In re Rishoi, 197 F.2d
342, 345 (CCPA 1952).
Appellant’s arguments focuses on distinguishing the products of
Dobler and Temple from the product the claimed device makes (Appeal Br.
10). However, Appellant’s arguments regarding the prior art and claimed
products do not address the rejection the Examiner presents. Appellant fails
to explain why one skilled in the art would not have been capable of
adapting Dobler’s apparatus to incorporate Temple’s nozzle dispensing
system to make fragrant products. Although Appellant contends that
Temple uses a different mechanism to form fragrant beads (Appeal Br. 10–
11), Appellant fails to explain why one skilled in the art would not have
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found Temple’s nozzle dispensing system suitable for Dobler’s purposes
given that Dobler is also directed to making fragrant products. In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642
F.2d 413, 425–26 (CCPA 1981) (citations omitted) (“[T]he test [for
obviousness] is what the combined teachings of the references would have
suggested to those of ordinary skill in the art.”). Appellant has not explained
why the material intended to be worked upon, or even the product made,
differentiates the claimed apparatus from the structure of the apparatus
resulting from the combined teachings of the cited art.
Accordingly, we affirm the Examiner’s prior art rejection of claim 23,
as well as claims 4, 5, 7, and 24–26 under 35 U.S.C. § 103 for the reasons
the Examiner presents and those we provide above.

DECISION SUMMARY
In summary:

Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
4, 5, 7,
23–26
103 Dobler, Temple 4, 5, 7,
23–26

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