Ex Parte Schweickhardt

Board of Patent Appeals and Interferences

Mar 6, 2012

11007024 (B.P.A.I. Mar. 6, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/007,024 12/08/2004 Karl B. Schweickhardt GEEC 9000 US 7734
1688 7590 03/06/2012
Polster, Lieder, Woodruff & Lucchesi, L.C.
12412 Powerscourt Dr. Suite 200
St. Louis, MO 63131-3615
EXAMINER
VASISTH, VISHAL V
ART UNIT PAPER NUMBER
1771
MAIL DATE DELIVERY MODE
03/06/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte KARL B. SCHWEICKHARDT
____________________

Appeal 2010-005319
Application 11/007,024
Technology Center 1700
____________________

Before CATHERINE Q. TIMM, LINDA M. GAUDETTE, and
GEORGE C. BEST, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL

App
App

decis
unpa
35 U
the s
repro

1 Bra
2 Tan
eal 2010-0
lication 11
Appellan
ion to reje
tentable o
.S.C. § 6(b
We REV
The clai
olid fuel s
duced bel

mhall et a
ner, US 4
05319
/007,024
t appeals
ct claims
ver Bramh
).
ERSE.
ms are dire
tarter is sh
ow:

l., US 2,62
,043,765,
STATEM
under 35 U
1-4, 6-13,
all1 in view
cted to so
own in Ap
Fig. 1 is a

2,017, pat
patented A
2
ENT OF C
.S.C. § 13
and 15-18
of Tanne
lid fuel fir
pellant’s F
perspectiv
ented Dec
ug. 23, 19
ASE
4 from th
under 35
r2. We ha
e starter. A
igures 1 a
e view
. 16, 1952
77.
e Examine
U.S.C. § 1
ve jurisdi
n embod
nd 2, whic
.
r’s
03(a) as
ction unde
iment of
h are

r
App
App

pan
has a
elem
1 (Sp
for il
eal 2010-0
lication 11

The soli
3 that hold
reservoir
ent 5 is a c
ec. ¶ [001
Claim 1,
lustration
1.
a
ignition
a
element
the top e
a
molded
wicking
paraffin
05319
/007,024
d fuel start
s a capilla
7 which is
oil of corr
9]).
with the a
purposes a
A solid fu
wicking el
by a flame
non-combu
[5], the ho
nd [17] of
solid fuel r
with the w
element [5
wax fuel F
Fig. 2 is a
er shown
ry wicking
, preferab
ugated ca
pplicable
dded, is re
el fire sta
ement [5]
source;
stible hou
using [3] d
the wickin
eservoir [
icking elem
] at least i
] so that t
3
sectional
in Figures
element 5
ly, paraffin
rdboard (p
reference n
produced
rter compr
with an ex
sing [3] su
efining an
g elemen
7] within t
ent [5] so
n part mel
he wicking
view
1 and 2 in
(Spec. ¶
wax fuel
aperboard
umerals f
below:
ising:
posed top
rrounding
open end
t [5]; and
he housing
that the b
ts the solid
element
cludes a h
[0017]). T
F (id.). T
) as shown
rom Figur
end [17] f
the wicki
for expos
[3] integr
urning of
fuel [7, e
[5] convey

ousing or
he pan 3
he wicking
in Figure
es 1 and 2
or
ng
ing
ally
the
.g.,
s the

App
App

(Cla

that
F

eal 2010-0
lication 11
solid fue
wicking
w
corruga
ims App. a
Bramhal
reference.
igure 1 of
Figure

05319
/007,024
l [7, e.g., p
element [5
herein the
ted paperb
t Br. 14 (e
l teaches a
Figures 1
Bramhall
2 is a ver
araffin w
] to be bu
wicking e
oard havin
mphasis a
fire kindl
and 2 of B
is a persp
tical cross
4
ax fuel F]
rned in a f
lement [5]
g flutes v
dded).)
ing device
ramhall a
ective view

section of
by capillar
lame; and
comprises
ertically o
as shown
re reprodu
of the fir
the devic
y action u
a strip of
rientated.
in Figures
ced below

e kindling
e of Figure
p the

1 and 2 o
:
device

1
f
Appeal 2010-005319
Application 11/007,024

5
Bramhall’s fire kindling device includes a wick 17 overlying a
material 16, such as wax or paraffin, contained between two cups 10 and 13
(Bramhall, col. 3, ll. 60-70). The wick 17 is ignited by way of the starting
wick 21 (Bramhall, col. 5, ll. 40-45). During the burning process, the
annular wick 17 floats on the wax, the wax feeding the flame until the wax is
exhausted (Bramhall, col. 6, ll. 4-8). The wick 17 may be composed of a
fluffy fibrous material such as cotton batting (Bramhall, col. 5, ll. 65-70).
In rejecting the claims, the Examiner acknowledges that Bramhall
fails to teach the claimed corrugated paperboard wicking element (Ans. 5).
The Examiner turns to Tanner as evidence supporting the conclusion that it
would have been obvious to one of ordinary skill in the art to replace the
cotton batting of Bramhall with corrugated cardboard (Ans. 5).
Tanner teaches an artificial fireplace log with an ignition strip. The
log is shown in Tanner’s Figures 1 and 2, reproduced below:
App
App

comb
mad
col.
cotto
(Tan
eal 2010-0
lication 11
Tanner’s
Tanner’s

The artif
ustible m
e of a com
5, ll. 30-33
n, corruga
ner, col. 5
05319
/007,024
Figure 1
w
Figure 2
icial log o
aterial, suc
bustible m
). Tanner
ted cardbo
, ll. 35-46)
is a perspe
rapping pa
is a transv
f Tanner in
h as comm
aterial bon
discloses
ard, or he
. The igni
6
ctive view
rtly broke
erse cross-
cludes a b
inuted wo
ded to the
that the ig
mp, which
tion strip 4
of the log
n away.
section of
ody 2 com
od, and a
body (Ta
nition strip
is saturate
is highly

with the
the log of
prising a
n ignition
nner, col. 2
4 may be
d with liq
flammabl
outer
Figure 1.
strip 4
, ll. 51-62
a strip of
uid fuel
e (Tanner,
;

Appeal 2010-005319
Application 11/007,024

7
col. 2, ll. 51-55). In fact, it is more readily flammable than the material of
the body 2 and wrapper 6 (id.). The ignition strip 4 is designed to easily
ignite and burn so that the flame rapidly spreads along the strip length with a
caloric output that leads to self-sustaining combustion of the log (Tanner,
col. 4, ll. 20-29).
The Examiner applies Tanner as evidence that the cotton wick of
Bramhall and the corrugated cardboard of Tanner’s ignition strip “are art
recognized equivalents for the purpose as [sic, of] functioning as wicking
aids to assist in rapid propagation of the flame generated by the fuel
product.” (Ans. 5.)
We agree with Appellant that the Examiner’s rationale does not
adequately support the rejection and is based upon impermissible hindsight
(Br. 4 and 11). Tanner does not, in fact, use the ignition strip cotton or
cardboard material as a wick in the same manner as Bramhall uses the cotton
overlying the wax. Therefore, the combination is more than just a simple
substitution of one known equivalent for another. The Examiner’s
“recognized equivalents” rationale is inadequate given the differences
between the products of the references.
CONCLUSION
We do not sustain the Examiner’s rejection.
DECISION
The Examiner’s decision is reversed.

Appeal 2010-005319
Application 11/007,024

8
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

REVERSED

cam