Ex Parte Tucker et al

Patent Trial and Appeal Board

Jun 2, 2016

12903419 (P.T.A.B. Jun. 2, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/903,419 10/13/2010
21839 7590 06/06/2016
BUCHANAN, INGERSOLL & ROONEY PC
POST OFFICE BOX 1404
ALEXANDRIA, VA 22313-1404
FIRST NAMED INVENTOR
Christopher S. Tucker
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.
1021238-001231 3929
EXAMINER
CALVETTI, FREDERICK F
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
06/06/2016 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):
ADIPDOC 1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER S. TUCKER and WALTER A. NICHOLS
Appeal2014-006199
Application 12/903 ,419
Technology Center 3700
Before MICHAEL L. HOELTER, LISA M. GUIJT, and
ERIC C. JESCHKE, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Christopher S. Tucker and Walter A. Nichols (Appellants) 1 appeal
under 35 U.S.C. § 134(a) from the Examiner's decision to reject claims 1-
24. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify the real party in interest as Philip Morris USA Inc.
Appeal Br. 2.
Appeal2014-006199
Application 12/903 ,419
THE CLAIMED SUBJECT MATTER
Claims 1, 8, 1 7, and 182 are the independent claims on appeal. Claim
1, reproduced below, is illustrative of the subject matter on appeal.
1. An air freshener device comprising:
a liquid supply operable to supply liquid material;
a conductive mesh material operable to retain the
liquid material in interstices thereof, wherein the
conductive mesh material forms a wick in contact with
liquid in the liquid supply and a mesh heater not in contact
with the liquid supply; and
a power supply operable to apply voltage across a
heated portion of the mesh heater so as to heat the liquid
material contained in interstices of the mesh material to a
temperature sufficient to vaporize the liquid,
wherein the air freshening device is operable to
substantially prevent deposition of the vaporized liquid
material.
THE REJECTIONS
Claims 1-24 stand rejected on the ground of nonstatutory
obviousness-type double patenting as unpatentable over claims 1-29 of US
Patent 8,442,390 B2, issued May 14, 2014.
Claims 1-8, 11, 14--21, 23, and 24 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Harwig (US 2004/0035409 Al; pub. Feb. 26,
2004) and Ross (US 2008/0251598 Al; pub. Oct. 16, 2008).
Claims 9, 10, and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Harwig, Ross, and Nichols (WO 2009/027834 A2; pub.
Mar. 5, 2009).
2 Claim 18 is written as an independent claim incorporating the subject
matter of claim 1 7.
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Application 12/903 ,419
Claims 13 and 22 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Harwig, Ross, and Kamen (US 2007 /0228071 A 1; pub.
Oct. 4, 2007).
OPINION
Claims 1-24-Nonstatutory obviousness-type double patenting
We summarily affirm the Examiner's rejection of claims 1-24 on the
ground of nonstatutory obviousness-type double patenting over claim 1-29
of US Patent 8,442,390, because Appellants chose not to present arguments
addressing the Examiner's rejection. Appeal Br. 4--17; Reply Br. 2-3; Final
Act. 3.
Claims 1--8, 11, 14-21, 23, and 24- Obviousness over Harwig and Ross
Independent claim 1 and claims 2-5, 11, 14-16, 23, and 24
Regarding independent claim 1, the Examiner finds, inter alia, that
Harwig discloses "[a] wick is in contact with liquid in the supply" and "[a]
conductive mesh material operable to retain liquid material in interstices."
Final Act. 4 (citing Harwig i-f 78, Fig. 5d). The Examiner also finds that
"Har[]wig [] disclose[s] wherein the conductive mesh material forms a wick
in contact with liquid in the liquid supply." Ans. 10. Appellants argue that
"Harwig does not disclose a conductive mesh material which 'forms a wick
in contact with liquid in the liquid supply ... , "' but rather, "a thin film
heater, which contacts a wick." Reply Br. 2; see also Appeal Br. 9.
Claim 1 requires "the conductive mesh material [to] form[] a wick."
Appeal Br., Claims App. Harwig discloses that "a grid-shaped thin film
heating element 126d [is] deposited on the flat tip end of wick 127d."
Harwig i-f 78, Fig. 5d. For example, the film may be deposited by "[a] vapor
deposition method," such that the film extends "into the pores of the wick,
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Application 12/903 ,419
capillaries, or other structures." Id. Harwig discloses that the function of
the thin film heating element is to contact the liquid within the wick to
volatilize the liquid, and the Examiner has not identified any teaching in
Harwig that the thin film heating element functions as a wick (i.e., to draw
up liquid by capillary action). Id. Moreover, Harwig teaches that wicks are
formed from wicking materials (i.e., "natural materials, fibers, nonwovens,
sintered polymers, ceramics, metal foams, open capillary tubes of ceramic,
glass, or other material"). Id. i-f 73; see Appeal Br. 7. Thus, we agree with
Appellants that although Harwig's grid-shaped thin film heating element is
deposited onto the tip end of a wick, the grid-shaped thin film heating
element does not form the wick; rather, the wick is formed from wicking
material.
Accordingly, we do not sustain the Examiner's rejection of
independent claim 1, and claims 2-5, 11, 14--16, 23, and 24 depending
therefrom.
Independent claim 8 and dependent claims 6 and 7
Independent claim 8 requires "apply[ing] a voltage across a capillary
heater comprising [a] capillary tube ... and across a mesh heater." Appeal
Br., Claims App. The Examiner finds that "Harwig teaches the mesh
material" and "Ross teaches capillary tubes." Ans. 12. The Examiner
reasons that
because Harwig teaches multi-part delivery systems ... for
versatility and efficiency and volatilization enhancement[,]
[t]hese references show that wick design is an obvious matter of
choice at the time of the invention, not critical, producing no new
or unexpected results and at best optimization .... The references
disclose a variety of multi component heaters comprising wicks
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Application 12/903 ,419
which components are heated and can comprise mesh in or not
in contact with liquid supply.
Id. at 12-13 (citing Harwig i-fi-173, 82+, 90, Fig. 21a). Appellants argue that
neither Harwig nor Ross discloses a capillary heater, and that the Examiner
"failed to provide any reasoning as to how or why Harwig and Ross are
combined to produce the air freshening device of [c]laim 8." Appeal Br. 11-
12.
We are persuaded by Appellants' argument. The Examiner's reasons
for combining the teachings of Harwig and Ross to result in the subject
matter of claim 8, and in particular, a capillary heater and a mesh heater, are
conclusory and do not have rational underpinning. Accordingly, we do not
sustain the Examiner's rejection of independent claim 8 and claims 6 and 7
depending therefrom.
Independent claim 17 and claims 18-21
Independent claim 1 7 recites that "the wick and the mesh heater are
formed from a conductive mesh material." Appeal Br., Claims App. The
Examiner finds that "[t]he particular construction arrangement of [the]
heater and wick is an obvious design choice." Final Act. 5 (citing Harwig
i182+; Ross, Fig. 1). More particularly, the Examiner finds that because
Harwig's grid-shaped thin film heating element (or mesh) heats the wick and
may be formed on the circumference of the wick (see Harwig i178), there is
a rationale for the combination. Ans. 13. Appellants argue that neither
Harwig nor Ross teaches the claimed wick and mesh heater formed from
conductive mesh material, and that the Examiner has failed to articulate any
reasoning for the combination. Appeal Br. 14--16.
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Application 12/903 ,419
We are persuaded by Appellants' argument. The Examiner's reasons
for combining the teachings of Harwig and Ross to result in the subject
matter of claim 17 are conclusory and do not have rational underpinning.
Accordingly, we do not sustain the Examiner's rejection of independent
claim 17. Claim 18, written in independent form, incorporates the
limitations recited in claim 1 7. Thus, for the same reasons that we do not
sustain the Examiner's rejection of claim 17, we also do not sustain the
Examiner's rejection of claim 18 and claims 19-21 depending therefrom.
Claims 9, 10, 12, 13, and 22- Obviousness over Harwig, Ross, and Nichols
or Karmen
The Examiner's findings with respect to Nichols or Karmen do not
cure the deficiencies in the Examiner's findings and reasoning with respect
to the combination of Harwig and Ross as applied to independent claims 1,
8, and 17, from which claims 9, 10, 12, 13, and 22 depend. Accordingly, we
also do not sustain the Examiner's rejection of claims 9, 10, 12, 13, and 22.
DECISION
The Examiner's rejection of claims 1-24 on the ground of
nonstatutory obviousness-type double patenting is affirmed.
The Examiner's rejections of claims 1-24 under 35 U.S.C. § 103(a)
are reversed. 3
3 See 37 C.F.R. § 41.50(a)(l) ("The affirmance of the rejection of a
claim on any of the grounds specified constitutes a general affirmance of the
decision of the examiner on that claim, except as to any ground specifically
reversed.").
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Application 12/903 ,419
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)(l )(iv).
AFFIRMED
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