Ex Parte Schramm

Patent Trial and Appeal Board

Dec 10, 2018

14604928 (P.T.A.B. Dec. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/604,928 01/26/2015
52966 7590
Schramm-Personal-ACT
Michael R. Schramm
350 West
2000 South
Perry, UT 84302
12/12/2018
FIRST NAMED INVENTOR
Michael R. Schramm
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.
MRS-037U 7004
EXAMINER
STAPLETON, ERIC S
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
12/12/2018 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):
mikeschramm@besstek.net
mschramm@juneaubiosciences.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL R. SCHRAMM
Appeal2018-001778
Application 14/604,928
Technology Center 3700
Before BRADLEY R. GARRIS, ROMULO H. DELMENDO, and
WESLEY B. DERRICK, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Applicant ("Appellant") 1 appeals under 35 U.S.C. § 134(a) from
the Primary Examiner's final decision to reject claims 1-20. 2 We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 The Appellant is listed as the real party in interest (Appeal Brief filed May
4, 2017 ("Appeal Br.") 2).
2 Appeal Br. 3-27; Reply Brief filed December 10, 2017 ("Reply Br.") 3-8;
Final Office Action entered December 9, 2016 ("Final Act.") 3-17;
Examiner's Answer entered October 11, 2017 ("Ans.") 2-10.
Appeal2018-001778
Application 14/604,928
I. BACKGROUND
The subject matter on appeal relates to a candle apparatus for use in a
candle warming image display lamp (CWIDL), wherein the apparatus is
designed to be used without spilling molten candle wax (Specification filed
January 26, 2015 ("Spec.") ,r,r 4, 7, and 12; Drawings filed January 26, 2015,
Fig. 2).
Representative claim 1 is reproduced as follows:
1. A candle apparatus comprising at least one of a
first container having an inner cavity and an open funnel
extending into said inner cavity, and a quantity of meltable wax
contained within said first container, wherein said quantity of
meltable wax is such that when said quantity of meltable wax is
melted and said first container is oriented in any orientation,
said melted quantity of meltable wax will not run out of said
first container, and a second container having an inner cavity
and an open funnel extending into said inner cavity, and a
quantity of meltable wax contained within said second
container, wherein said apparatus is expressly adapted to mount
to a heating apparatus.
(Appeal. Br. 28 (Claims Appendix).)
II. REJECTION ON APPEAL
The Examiner maintains a rejection under 35 U.S.C. § 103 of claims
1-20 as unpatentable over Cook3 in view of Wesley4 (Ans. 2-10; Final Act.
3-17).
3 US 2010/0270943 Al, published October 28, 2010.
4 US 2003/0086815 Al, published May 8, 2003.
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Application 14/604,928
III. DISCUSSION
The Examiner finds that Cook describes a candle apparatus including
every limitation recited in claim 1 except for a funnel as specified in the
claim (Final Act. 3, 8). The Examiner finds further that Wesley describes a
candle apparatus including every limitation recited in claim 1 (id. at 8-9).
The Examiner concludes from these findings that "[i]t would have been
obvious to one of ordinary skill in the art ... to modify Cook as suggested
and taught by Wesley in order to provide a funnel to fit around a wick" (id.
at 14).
The Appellant contends, inter alia, that neither Cook nor Wesley
discloses "an open funnel extending into [an] inner cavity" of a first
container, as recited in claim 1 (Appeal Br. 6-8). In addition, the Appellant
argues that neither reference teaches a candle apparatus with a quantity of
meltable wax contained in the first container "such that when said quantity
of meltable wax is melted and said first container is oriented in any
orientation, said melted quantity of meltable wax will not run out of said
first container," as recited in claim 1 (id. at 5-8). Specifically, the Appellant
points out that Cook discloses a quantity of meltable wax positioned in an
open glass bowl, which when rotated into a sideways or inverted position,
would cause the melted wax to run out of the glass bowl (id. at 6). The
Appellant also points out that Wesley's polymeric fragrance element is not
an "open funnel" as recited in claim 1 and that "if Wesley's container 12 of
liquid wax is rotated or inverted, the liquid wax will in fact run out of
Wesley's container 12 due to vents 43" (id. at 7-8). With respect to the
Examiner's articulated reason for combining Cook and Wesley, the
Appellant argues that "at least in a preferred [ embodiment,] there is no wick
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Application 14/604,928
in the instant invention" and, therefore, the Examiner's reasoning "is
completely meaningless and is completely invalidated" (id. at 15).
We agree with the Appellant that the Examiner's rejection is not well-
founded. Cook, which does not disclose any wick for further modification,
discloses a college and pro sports fragrance oil warmer device including,
inter alia, a glass bowl 128 with a fragrance-producing medium such as wax
120 heated by a heating mechanism 122 including a halogen bulb 132 (Cook
Figs. 2 and 3; ,r,r 59---64). Contrary to the Examiner's findings, nothing in
the reference would have indicated to a person having ordinary skill in the
art that Cook discloses, or would have suggested to a person having ordinary
skill in the art, the limitation "when said quantity of meltable wax is melted
and said first container is oriented in any orientation, said melted quantity of
meltable wax will not run out of said first container" as recited in claim 1.
Wesley describes a liquid-based candle 10 including, inter alia: a
container 12 filled with a fuel 14, which may be a liquid wax; a wick 16; and
a receptacle 26 coupled to the container 12 and provided with a channel 41
in which a polymeric fragrance element 44 having a top 52 is disposed
(Wesley Fig. 1; ,r,r 21-26 and 39). Although Wesley teaches that "top 52
would generally form an inverted cone, or funnel shape, around the wick"
(id. at 39; emphasis), Wesley does not describe or suggest any "open funnel"
that extends into an inner cavity of the container as required by claim 1. Nor
does Wesley disclose a quantity of meltable wax such that when the wax is
melted, no wax would run out from the container regardless of the
container's orientation, as required by claim 1. Indeed, as the Appellant
points out, it would appear that nothing would stop liquid fuel 14 from
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Application 14/604,928
exiting through vents 43 if the container 12 were oriented in, e.g., an
inverted position (id. Fig. 1; ,r 25).
Because the Examiner's rejection is based on flawed findings and the
Examiner's obviousness conclusion lacks any rational underpinning, we
cannot uphold the rejection as maintained against claim 1. The two other
independent claims-namely claims 10 and 19----contain the same or similar
limitations at issue for claim 1. Therefore, we also cannot sustain the
rejection as maintained against claims 2-20.
IV. SUMMARY
The Examiner's rejection under 35 U.S.C. § 103 of claims 1-20 as
unpatentable over Cook in view of Wesley is not sustained. Therefore, the
Examiner's final decision to reject claims 1-20 is reversed.
REVERSED
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