Ex Parte Neumann et al

Patent Trial and Appeal Board

Jun 23, 2016

12319606 (P.T.A.B. Jun. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/319,606 0110912009 Hermann Neumann
28165 7590 06/27/2016
S,C JOHNSON & SON, INC
1525 HOWE STREET
RACINE, WI 53403-2236
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
J-4981 5113
EXAMINER
CAMPBELL, THOR S
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
06/27/2016 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):
F074168@scj.com
selechne@scj.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HERMANN NEUMANN, JEFFREY JK. CHRISTIANSON, and
MARCELO LAURAS GINESTEL
Appeal2014--004493
Application 12/319,606 1
Technology Center 3700
Before CHARLES N. GREENHUT, THOMAS F. SMEGAL, and
GORDON D. KINDER, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Hermann Neumann et al. (Appellants) seek our review under 35
U.S.C. § 134 of the Examiner's Final Rejection under 35 U.S.C. § 102(b) of
claims 1, 3, and 7-9 as anticipated by Wohrle (US 2002/0048530 Al, pub.
Apr. 25, 2002) and claims 4, 6, 13, and 14 as unpatentable over Wohrle. 2
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 According to Appellants, the real party in interest is S. C. Johnson & Son,
Inc. Appeal Br. 2.
2 Claims 2, 10-12, and 15-20 were canceled. Id. Claim 5 is objected to as
being dependent upon a rejected base claim, but would be allowable if
rewritten in independent form including all of the limitations of the base
claim. See Final Act. 5.
Appeal2014--004493
Application 12/319.606
CLAIMED SUBJECT MATTER
Claims 1 and 9 are independent. Claim 1 is reproduced below and
illustrates the claimed subject matter, with disputed limitations emphasized.
1. A fragrance dispenser, comprising:
a housing;
a plurality of heating pans disposed in the housing,
wherein each of the plurality of heating pans includes a
corresponding heating element centrally disposed therein;
a controller disposed in the housing to control the amount
and temporal distribution of power distributed to each heating
element independently;
prongs that extend from the housing to provide power to
the controller; and
a volatile material holder held within the housing and
including a plurality of reservoirs adapted to align with the
corresponding plurality of heating pans, wherein each of the
plurality of reservoirs includes a volatile material.
ANALYSIS
Anticipation of Claims 1, 3, and 7-9 by Wohrle
We are persuaded by Appellants' arguments that the Examiner failed
to establish a prima facie showing of anticipation in rejecting claims 1, 3,
and 7-9 as anticipated by Wohrle. See Appeal Br. 5-12 and Reply Br. 2-3.
The Examiner finds that W ohrle anticipates claim 1 by disclosing a
fragrance dispenser including, inter alia, "a plurality of heating pans/plates
(78) disposed in the housing, wherein each of the plurality of heating pans
includes a corresponding heating element (7 6) centrally disposed therein
(see figure 3 [where] heaters 7 6 are centrally located by 80/81 in pan/plate
78)" Final Act. 3.
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Appeal2014--004493
Application 12/319.606
Appellants take issue with the analysis and conclusions presented in
the Final Action, contending that "W ohrle does not disclose or suggest
heating elements that are centrally disposed therein (i.e., within the heating
pans) as recited in the claims at issue," but that "the heating elements (76) of
Wohrle are disposed between the conductive plates (78) and the mechanical
retainers (80)," and "[t]herefore, it is apparent that the heating elements are
not disposed within any other element of W ohrle, let alone within the
'heating pans."' Appeal Br. 10.
In response, the Examiner explains that "Figure 3 of W ohrle clearly
shows and describes the heating elements 7 6 centrally located on the
pan/plates 78 by pins 80/81.," while Appellant's argument centers on if
'centrally located on the pan/plate' is the same [as] 'centrally located in the
pan/plate"', maintain that the "scope is at least overlapping." Ans. 6.
However, we are persuaded by Appellants that "it cannot be argued
that an object disposed on or by another object is the same thing as an object
disposed within another object because to do so would ignore the claim
limitation 'therein."' Reply Br. 3. Thus, we agree that W ohrle does not
disclose heating elements centrally disclosed within heating pans and find
the determination made by the Examiner to be an arbitrary (and therefore an
unreasonable) interpretation of the disclosure in Wohrle.
2008).
[U]nless a reference discloses within the four comers of the
document not only all of the limitations claimed but also all of
the limitations arranged or combined in the same way as recited
in the claim, it cannot be said to prove prior invention of the thing
claimed and, thus, cannot anticipate under 35 U.S.C. § 102.
Net MoneyIN, Inc., v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir.
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Appeal2014--004493
Application 12/319.606
For the foregoing reasons, we do not sustain the Examiner's decision
rejecting claims 1, 3, and 7-9 as anticipated by W ohrle.
Obviousness of Claims 4, 6, 13, and 14 over Wohrle
In rejecting claims 4, 6, 13, and 14 as obvious over Wohrle, the
Examiner determines with respect to claims 4, 6, and 13, that "[i]t [is] well
known to control the heating of a device by using information from a sensor,
such as a temperature sensor," and with respect to claim 14, that "[t]he use
of photo sensors to sense the ambient light and activate a light, such as a
night light, is well known and would be an obvious improvement to the
Wohrle device." Final Act. 5.
In response, Appellants argue that "the examiner fails to explain why
someone would have a reason to modify the portable electronic scent
delivery device of W ohrle to include the sensor and other associated claim
elements recited in claims 4, 6, 13, and 14," and that "there is no discernible
reason as to why it would be advantageous, desirable, or even possible to
include a sensor on the scent delivery device of W ohrle." Appeal Br. 13.
The key to supporting any rejection under 35 U.S.C. § 103 is the clear
articulation of the reason(s) why the claimed invention would have been
obvious. The Supreme Court in KSR International Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007), noted that the analysis supporting a rejection under
35 U.S.C. § 103 should be made explicit. Furthermore, the Federal Circuit
has stated that "rejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
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Appeal2014--004493
Application 12/319.606
obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with
approval in KSR, 550 U.S. at 418).
Here, the Examiner has not made sufficient findings of how either
temperature or photo sensors as recited by claims 4, 6, 13, and 14, are well
known for use with the scent delivery system disclosed by Wohrle.
Accordingly, we agree with Appellants that, based on the evidence before
us, the Examiner has not demonstrated that the claimed subject matter would
have been obvious to one having ordinary skill in the art.
For the foregoing reasons, we do not sustain the rejection of claims 4,
6, 13, and 14 as unpatentable over Wohrle.
DECISION
The Examiner's prior-art rejections are reversed.
REVERSED
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