Ex Parte Deflorian et alDownload PDFPatent Trial and Appeal BoardMay 18, 201712600870 (P.T.A.B. May. 18, 2017) Copy Citation United States Patent and Trademark Office 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. 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 following e-mail address(es): usptopatentmail@cantorcolbum.com 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 3 Appeal 2014-004963 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 4 Appeal 2014-004963 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. 5 Appeal 2014-004963 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. 6 Appeal 2014-004963 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. 7 Appeal 2014-004963 Application 12/600,870 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 8 Appeal 2014-004963 Application 12/600,870 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 9 Copy with citationCopy as parenthetical citation