Ex Parte Harris

Patent Trial and Appeal BoardNov 19, 2018

14121096 (P.T.A.B. Nov. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/121,096 77083 7590 PaulM. Denk 763 South New Ballas Ste. 305 St. Louis, MO 63141 07/30/2014 11/20/2018 FIRST NAMED INVENTOR Neal F. Harris 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. 7963 8309 EXAMINER JOYNER, KEVIN ART UNIT PAPER NUMBER 1799 MAIL DATE DELIVERY MODE 11/20/2018 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 PATENT TRIAL AND APPEAL BOARD Ex parte NEAL F. HARRIS Appeal 2017-011207 Application 14/121,096 Technology Center 1700 Before CATHERINE Q. TIMM, WESLEY B. DERRICK, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. Â§ 134 from a rejection2 of claims 1, 2, 4, and 5. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 "The parties in interest in this particular application include the inventor, Neal F. Harris, of Los, Angeles, California 90049." Appeal Brief of December 27, 2016 ("App. Br."), 1. 2 Final Office Action of May 23, 2016 ("Final Act."). In this opinion, we also refer to the Examiner's Answer of June 2, 2017 ("Ans."). No Reply Brief was filed. Appeal 2017-011207 Application 14/121,096 CLAIMED SUBJECT MATTER The claims are directed to an attachment to an air moving device or system for the purpose of scenting spaces. Spec. 3: 10-11. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A fragrance material disseminating attachment formed as a strip of material for use with an air moving system and attachment to a wall vent of a room, comprising a strip of fragrance material, said material having a pair of ends, comprising one of a cross, round, square, rectangular, and oval configuration, and being shaped in the format of a decorative motif, and which may be attached to the front, inside, or behind the vent of any air movement source in a building, said attachment being constructed of one of paperboard, metal, and a polymer, said polymer being one of extruded polyethylene, molded polystyrene, or any other polymer based fragrance material, said strip attachment incorporating a fragrant material, said fragrant material including at least one of evaporation modifiers, enhancers, and retardants to control the evaporation process, said evaporation enhancer including denatured alcohol, and wherein said fragrant material includes an evaporation retardant and includes one of dipropylene glycol (DPG), diethyl phthalate (DEP) and benzyl benzoate (BB), said fragrant material including a micro encapsulated fragrance oil, said strip of material having fastener means at said pair of ends, for use for attaching the strip to the room vent of the air moving system, and said fastener means being affixed using one of Velcro, tape, clip, hook, tie or other means of attachment, said attachment strip diffuses fragrance scent as air moves through the fragrant material, and air may be forced across the fragrant material through one of pushed air or pulling of the air through said fragrant material upon said attachment strip, and the air flow may be created by one of an air moving device, fan, blower, air handling system, and inflatable device, said attachment strip including a plurality of holes throughout the shape of said attachment strip, with the holes allowing air to flow freely through the attachment strip for improving the evaporation rate and controlling the .fragrance dissemination 2 Appeal 2017-011207 Application 14/121,096 into the ambient air, said attachment strip having a surface that is presented with a fragrant formulation, said fragrant material includes a plurality of scented pellets or beads that have been coated or absorbed with a fragrance, said fragrant formulation applied and absorbed into the pellets or beads with the fragrance treated pellets or beads applied onto the surface of the attachment strip at a load of about 0.09 gm/in2, said attachment strip having a film, screen or other porous material being applied over the attachment strip surface and said applied pellets or beads after the fragrance has been applied thereto, said film being made of a material through which a fragrance can pass, and said film controlling the evaporation process of the fragrance from the attachment, said attachment strip including a perimeter framework, said framework having front and back foraminous material surfaces so that the fragrant treated pellets or beads intermediate the front and back foraminous surfaces holding said fragrance treated pellets or beads in place during usage and application, wherein said perimeter framework includes outer perimeter edges of the foraminous material forming the front and back surfaces of the strip and are sealed to enclose and contain the fragrance treated pellets or beads within the attachment strip during usage when applied to a vent. App. Br. 14 (Claims Appendix). REFERENCES The prior art references relied upon by the Examiner in rejecting the claims on appeal are: Muderlak Baxter D'Amico us 4,968,456 us 5,383,765 US 2005/0169813 Al 3 Nov. 6, 1990 Jan.24, 1995 Aug. 4, 2005 Appeal 2017-011207 Application 14/121,096 REJECTIONS Claims 1, 2, 4 and 5 are rejected under pre-AIA 35 U.S.C. Â§ 103(a) as being unpatentable over Baxter in view of D' Amico and Muderlak. Final Act. 2. OPINION We review the appealed rejections for error based upon the issues identified by Appellants and in light of the arguments and evidence produced thereon. Cf Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections."). After having considered the evidence presented in this Appeal and each of Appellants' contentions, we are not persuaded that Appellants identify reversible error, and we affirm the Examiner's section 103 rejections for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. Appellant contends that the Examiner reversibly erred in rejecting claim 1, arguing that "Baxter, is a foam pad, whereas applicant's primary invention is a foraminous screen, paperboard, et al. formed as a strip type material, in the first instance."3 Id. As the Examiner points out, these features are not recited in claim 1 and such unclaimed features cannot impart patentability. Ans. 8; see also In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. 3 Appellant does not present argument separate for claims 2, 4, and 5. App. Br. 8-12. These claims stand or fall with claim 1. Id. at 4; see also 37 C.F.R. Â§ 4I.37(c)(l)(iv) (2013). 4 Appeal 2017-011207 Application 14/121,096 Cir. 1998) (unclaimed features cannot impart patentability to claims.). Moreover, Appellant does not explain why the Examiner reversibly erred in finding that pad (26) shown in Figure 1 of Baxter teaches or suggests "a strip of fragrance material" as recited in claim 1. As for the limitation a "strip including a perimeter framework, said framework having front and back foraminous material surfaces," Appellant's argument with regard to Baxter is irrelevant because the Examiner cites Muderlak instead of Baxter for the teaching or suggestion. Final Act. 5 ( citing to various portions of Muderlak and analyzing the prior art disclosure with regard to claim 1. ). While Appellant does mention Muderlak in the Appeal Brief, the unelaborated argument is limited to a statement that Muderlak' s "structure is entirely different from the claimed subject matter of the current invention, its application and usage is entirely different" without specifying which structural component is missing from the prior art. App. Br. 11. Moreover, the patentability of claim 1 does not depend on whether Muderlak differs from the recited apparatus in application or use as "the patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure." Catalina Mktg. Int'!, Inc. v. Coo/savings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002). No reversible error has been identified in this aspect of the obviousness analysis. No reversible error has been identified based on Appellant's argument that Baxter does not teach or suggest "fastener means" because Appellant does not address the Examiner's finding that "fastening hook 36" in Baxter teaches or suggests this limitation. Compare App. Br. 9 (arguing, without sufficient explanation or analyzing the structure in Baxter, that the recited "structure is entirely different from Baxter."), with Final Act. 8 ( explaining 5 Appeal 2017-011207 Application 14/121,096 that component 36 in Baxter teaches or suggests the "fastener means" limitation.). Appellant's argument that "Application's invention is formulated entirely differently, applied in a different manner, to a room vent, and not onto some ceiling fan, as shown and described in Baxter" (App. Br. 9) does not identify reversible error as "the patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure." Catalina, 289 F.3d at 809. Appellant next argues that "D 'Amico shows a variety of filter elements" which "is far more than what applicant requires for his attachment strip, which is not applied for filtration purposes." App. Br. 10. Appellant also argues that "D 'Amico describes its diethyl phthalate as a plasticizer to add flexibility to the material forming its carbon filter 104" without structurally distinguishing the recited apparatus. Id. at 11 (arguing that using diethyl phthalate as a plasticizer "is not the purpose of applicant's invention."). All claim 1 requires is that the "fragrant material includes an evaporation retardant and includes one of dipropylene glycol (DPG), diethyl phthalate (DEP) and benzyl benzoate (BB)." As an open-ended claim, claim 1 does not preclude the flexibility (if any) offered by diethyl phthalate. AFG Industries, Inc. v. Cardinal JG Co., Inc., 239 F.3d 1239, 1245 (Fed. Cir. 2001) ("When a claim uses an 'open' transition phrase, its scope may cover devices that employ additional, unrecited elements."); see also Ans. 11-12 ( explaining, with citation to the evidentiary record, the teachings of Baxter and D' Amico as applied to the obviousness rejection.). We further note that Appellant's argument "Applicant's invention does not function, nor is it designed to be applied as an air filter" (App. Br. 11) does not structurally 6 Appeal 2017-011207 Application 14/121,096 distinguish the recited apparatus. "[T]he patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure." Catalina, 289 F.3d at 809. Lastly, with regard to Appellant's unsupported argument that "it would appear to be a significant stretch to one skilled in the art to try to figure out how to take the structures of Munderlach [sic.], and D' Amico, modify them, and somehow put them into a foam pad 30 of said Baxter," (App. Br. 12), Appellant does not explain why it would have been beyond an ordinary artisan's skill to combine these known prior art structures to arrive at the apparatus recited in claim 1. "[I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). No reversible error has therefore been identified in the Examiner's rationale in support of the rejection. DECISION The Examiner's decision is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 7