Ex Parte Deflorian et al

Patent Trial and Appeal Board

May 18, 2017

12600870 (P.T.A.B. May. 18, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/600,870 02/08/2010 Stefano Deflorian HER0086US 2906
23413 7590 05/22/2017
TANTOR TOT RTTRN T T P
EXAMINER
20 Church Street MATHEW, FENN C
22nd Floor
Hartford, CT 06103 ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
05/22/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEFANO DEFLORIAN and ANDREA PEDROTTI
Appeal 2014-004963
Application 12/600,870
Technology Center 3700
Before JAMES P. CALVE, AMANDA F. WIEKER, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2014-004963
Application 12/600,870
STATEMENT OF THE CASE
Appellants Stefano Deflorian and Andrea Pedrotti1 appeal under 35
U.S.C. § 134 from the Examiner’s decision, as set forth in the Final Action
dated February 13, 2013 (“Final Act.”), rejecting claims 1—6. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE CFAIMED SUBJECT MATTER
The claims are directed to a container for volatile substances.
Claim 1, the only independent claim, is reproduced below:
1. Container of volatile substances comprising:
a transparent plastic plate in which a first and a second
chamber are formed,
wherein said first chamber contains a porous material
impregnated with a first volatile substance which contains an
insecticide and/or perfume, and
wherein the second chamber contains an indicative
volatile substance suitable for providing a visual indication of an
end of life of the first volatile substance,
wherein said second chamber is closed by a permeable
film which allows evaporation of the indicative volatile
substance in a vapor state, and
wherein a configuration of the container, an amount of
said first and indicative volatile substances and their
composition, are selected to synchronize the evaporation of said
volatile substances so that both volatile substances are
terminated substantially at the same time.
1 Appellants identify Zobele Holding SpA as the real party in interest.
Appeal Br. 1.
2
Appeal 2014-004963
Application 12/600,870
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Buck US 3,575,345 Apr. 20, 1971
Hautmann US 5,269,460 Dec. 14, 1993
Fumer US 6,569,387 B1 May 27,2003
REJECTIONS
The Examiner made the following rejections:
1. Claims 1 and 3—6 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fumer and Hautmann.
2. Claim 2 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fumer, Hautmann, and Buck.
Appellants seek our review of these rejections.
DISCUSSION
Independent Claim 1
The Examiner finds that the combination of Fumer and Hautmann
renders obvious all of the limitations of independent claim 1 including (1) a
first chamber having “a porous material impregnated with a first volatile
substance,” as taught by Fumer, and (2) first and indicative volatile
substances that “are selected to synchronize the evaporation of said volatile
substances so that both volatile substances are terminated substantially at the
same time,” as taught by Hautmann. Final Act. 3^4. The Examiner
determines that it would have been obvious “to dispose[] an indicative
volatile substance in the second chamber of the container disclosed by
Fumer [] and select the first volatile substance and the indicative volatile
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Application 12/600,870
substance such that their evaporation terminates substantially at the same
time, as disclosed by Hautmann, in order to indicate when the first volatile
must be replaced, as disclosed by Hautmann.” Final Act. 5.
Appellants argue that the Examiner’s rejection of claim 1 is erroneous
for several reasons. Appeal Br. 3—6. First, Appellants argue that Fumer
“teaches a container 30 having a volatile medium 40 in both trays 34” and
“[njothing in Fumer indicates that a tray 34 includes an indicative volatile
substance for providing a visual indication of an end of life of the first
volatile substance 40.” Appeal Br. 5, see id. at 4. The Examiner, however,
finds that Hautmann, not Fumer, discloses an indicative volatile substance
for providing a visual indication of an end of life of the first volatile
substance, as recited in claim 1. Final Act. 4—5; In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established
by attacking references individually where the rejection is based upon the
teachings of a combination of references.”). Appellants do not address the
rejection as articulated by the Examiner and, thus, do not identify error by
the Examiner.
Second, Appellants argue that Fumer does not disclose that “either of
the twin gel cartridges 34 could be substituted with a porous material. . .
particularly when the gel cartridges 34 . . . are covered by a semi-permeable
membrane” and that “the mixture of water and alcohol is not suitable for
evaporation through the semi-permeable membrane.” Appeal Br. 4—5.
Contrary to Appellants’ argument, the Examiner correctly finds that Fumer
“contemplates using different passive dispensers in the cartridges, including
impregnated porous structures.” Final Act. 9 (citing Fumer, 3:35—40 (“the
term passive dispenser, as used herein, is intended to encompass, but not be
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Application 12/600,870
limited to all forms of passive dispensers, including gel cartridges,
impregnated porous structures . . . .”) (emphasis added)), 8—9; see Ans. 9—
10. The Examiner also correctly finds that Fumer discloses that liquid-
containing cartridges may be substituted for gel cartridges 34 (Final Act. 7—8
(citing Fumer, 7:21—28)), and that “the semi-permeable membrane would
not prevent a substance from evaporating, since any substance would
evaporate as a gas, and since Fumer teaches (and as pointed out by the
applicant) that his membrane is vapor (gas) permeable” (Final Act. 9). See
Ans. 8—9. Appellants do not identify persuasively any error in the
Examiner’s reasoning.
Third, Appellants argue “that there is no indication that substituting
one of the Fumer reservoirs with an indicative volatile substance suitable,
for providing a visual indication of an end of life of the first volatile
substance, is possible, or that substitution thereof would result in a
synchronization of the evaporation of both substances so that they are both
terminated simultaneously.” Appeal Br. 4; see id. at 5. Appellants similarly
argue that “while Hautmann further recites that the composition of the
indicator fluid may be selected so that it evaporates over a time period
within which the active substance fluid also evaporates completely, there is
no indication anywhere in Hautmann that the evaporations are
synchronized. Moreover, there is no indication that the substances are
terminated substantially at the same time.” Reply Br. 2.
Contrary to Appellants’ arguments, the Examiner correctly finds that
having a container with a second chamber which contains an
indicative volatile substance and configuring the container so
that the evaporation of the first and indicative volatile substances
terminates at substantially the same time is known in the art.
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Application 12/600,870
Hautmann discloses an evaporator device having an indicator
fluid disposed in a second chamber.
Final Act. 4—5 (citing Hautmann, 2:19-25); see Ans. 9.2 Hautmann, for
example, states:
As the indicator fluid, a mixture of water and alcohol tinged by
a coloring additive, for instance, can be employed. Following
perforation of this indicator fluid container, its contents
evaporate gradually, the composition of the indicator fluid being
selected so that it evaporates over a time period within which he
active substance fluid also evaporates completely. An empty
indictor fluid container thus indicates that a new container filled
with the active substance must be inserted.
Hautmann 2:19-27; see also Hautmann 6:14—26. Hautmann, thus, discloses
that the substances are terminated substantially at the same time, as recited
in claim 1. Appellants’ arguments are not persuasive.
Fourth, Appellants argue that the Examiner’s proposed combination
of Fumer and Hautmann is based on “hindsight.” Appeal Br. 4. However,
as discussed above, the Examiner’s findings and articulated reasoning for
combining Fumer and Hautmann are supported by explicit teachings in the
cited prior art (e.g., Fumer, 5:35—40, 7:21—28, Hautmann, 2:19-27, 6:14—
26). Appellants do not identify any knowledge relied upon by the Examiner
that was gleaned only from Appellants’ disclosure and that was not
otherwise within the level of ordinary skill at the time of the invention,
thereby obviating Appellants’ assertion of hindsight. See In re McLaughlin,
2 We also note that the Specification discloses that prior art devices
have two containers in which (1) the first container has a volatile substance
and the second container has a colored liquid substance that serves to
indicate visually when the volatile substance has been consumed, and (2) the
volatile substance and the colored liquid are completely evaporated more or
less at the same time. Spec. 1.
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Application 12/600,870
443 F.2d 1392, 1395 (CCPA 1971). Thus, Appellants do not apprise us of
error.
For the reasons discussed above, the rejection of claim 1 is sustained.
Dependent Claims 2—6
Claims 2—6 depend from independent claim 1. Appellants argue that,
for the reasons set forth above for independent claim 1, claims 3—6 are
allowable over the proposed combination of Fumer and Hautmann (Appeal
Br. 6), and claim 2 is allowable over the proposed combination of Fumer,
Hautmann, and Buck (id. at 7). As none of Appellants’ arguments with
respect to claim 1 are convincing, as discussed supra, the Examiner’s
rejections of claims 2—6 are sustained.
Appellants also broadly argue that claims 2—6 “recite additional
features further distinguishing them over the proposed combination of
Fumer and Hautmann.” Appeal Br. 6 (claims 3—6), 7 (claim 2). Appellants’
arguments that these dependent claims recite additional elements that
support patentability are not persuasive. See In re Lovin, 652 F.3d 1349,
1357 (Fed. Cir. 2011) (stating that 37 C.F.R. § 41.37 requires “more
substantive arguments in an appeal brief than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art”). Appellants do not identify any patentable
distinctions for claims 2—6, and fail to apprise us of error in the Examiner’s
findings or reasoning. Appellants’ specific arguments relating to claims 2—6
are addressed below.
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Claim 2
Contrary to Appellants’ argument that the “proposed combination of
Fumer, Hautmann, and Buck does not teach or suggest a container of
volatile substances having a first chamber containing a porous material
impregnated with a first volatile substance which contains an insecticide
and/or perfume wherein the first chamber is open to the air” as recited in
claim 2 (Appeal Br. 6), the Examiner correctly finds that “exposing a porous
volatile substance to air is known in the art,” including Buck. Final Act. 6
(citing Buck, 1:46—51, 2:5—9).
Claim 3
Contrary to Appellants’ argument that the “proposed combination of
Fumer and Hautmann does not teach or suggest a container for volatile
substances having a second chamber covered by a permeable film” as recited
in claim 3 (Appeal Br. 6), the Examiner correctly finds that Fumer
“discloses both chambers being covered by a permeable film 38. Thus, the
second chamber is covered by a permeable film.” Final Act. 5; see also
Fumer, 7:63—8:7.
Claims 4—5
Contrary to Appellants’ arguments that the proposed combination of
Fumer and Hautmann does not teach or suggest “a container for volatile
substances wherein the indicative volatile substance being colored” as
recited in claim 4 (Appeal Br. 6) and “a container for volatile substances
wherein the indicative volatile substance is a liquid or a gel” as recited in
claim 5 {id.), the Examiner correctly finds that “Hautmann discloses that the
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indicative substance is ‘a mixture of water and alcohol tinged by a coloring
additive.’” Final Act. 5 (citing, Hautmann, 2:19-20).
Claim 6
Contrary to Appellants’ argument that the “proposed combination of
Fumer and Hautmann does not teach or suggest a device for the evaporation
of volatile substances . . . with a heating means arranged to heat the first and
second indicative volatile substances” as recited in claim 6 (Appeal Br. 6—7),
the Examiner correctly finds that Fumer discloses “heating the container . . .
‘cause more rapid evaporation’ . . . [and] heating means” as recited in claim
6. Final Act. 5 (citing Fumer, 7:61-65).
DECISION
For the above reasons, the Examiner’s rejections of claims 1—6 are
AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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