Ex Parte Tebé Poves et al

Patent Trial and Appeal BoardAug 23, 2017

13390369 (P.T.A.B. Aug. 23, 2017)

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. 13/390,369 04/30/2012 Daniel Tebe Poves HER0229US 1015 23413 7590 08/25/2017 TANTOR TOT RTTRN T T P EXAMINER 20 Church Street SAMUELS, LAWRENCE H 22nd Floor Hartford, CT 06103 ART UNIT PAPER NUMBER 3742 NOTIFICATION DATE DELIVERY MODE 08/25/2017 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 DANIEL TEBE POVES and GIANLUCA PAOLAZZI Appeal 2016-004994 Application 13/390,369 Technology Center 3700 Before: CHARLES N. GREENHUT, MICHAEL L. HOELTER, and ANNETTE R. REIMERS, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-004994 Application 13/390,369 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1— 10. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. THE INVENTION The claims are directed to an electric device for the evaporation of volatile substances, such as fragrances. Spec. 1. Sole independent claim 1, reproduced below, is illustrative of the claimed subject matter: 1. Electric device for evaporation of volatile substances comprising: a casing; a container of volatile substances engaged with said casing, wherein said container is provided with a wick having an upper part protruding from said container, and a lower part inside said container; the device further comprising heating means arranged in said casing for heating said upper part (11) of the wick; and means for regulating a degree of evaporation of said volatile substance, said means for regulating the degree of evaporation of the volatile substance comprises a shield member which is displaceable between a minimum evaporation position in which part of the shield member is interposed between said heating means and said upper part of the wick, so that a temperature at the upper part of the wick is minimum, and a maximum evaporation position in which part of thee shield member is located below said heating means, so that the temperature at the upper part of the wick is maximum. 2 Appeal 2016-004994 Application 13/390,369 REFERENCES Rymer Caserta DeWitt Basaganas US 6,285,830 B1 Sept. 4, 2001 US 6,580,875 B2 June 17, 2003 US 7,209,650 B2 Apr. 24, 2007 US 2008/0226269 A1 Sept. 18, 2008 REJECTIONS Claims 1—6 and 9 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Rymer and Basaganas. Final Act. 3. Claims 7 and 8 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Rymer, Basaganas, and DeWitt. Id. at 5. Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Rymer, Basaganas, and Caserta. Id. at 6. Claims 1—6 and 9—Unpatentable over Rymer and Basaganas For independent claim 1, the Examiner relies on Rymer to teach an electric device for the evaporation of volatile substances comprising a casing, a container of a volatile substance engaged with the casing, a wick, heating means for heating the upper part of the wick, and means for regulating the degree of evaporation of the volatile substance. Final Act. 3 (citing Rymer, Fig. 1). The Examiner acknowledges that Rymer’s means for regulating the degree of evaporation of the volatile substance does not include the claimed displaceable shield member, but instead “teaches that the shield is stationary and the heating element moves up and down.” Id. The Examiner contends, however, that Basaganas “teaches a cap also partially movable between the wick and the heating element to slow or increase the rate.” Id. The Examiner concludes that “[i]t would have been ANALYSIS 3 Appeal 2016-004994 Application 13/390,369 obvious to someone having ordinary skill in the art at the time of the invention to provide to Rymer the teachings of Basaganas, and have the shield move rather than the heating element move, in order to have a maximum and a minimum rate of volatization without jostling the heating element and subjecting it to precarious circumstances.” Id. at 3^4. Appellants respond that a person of ordinary skill in the art would not have been motivated to modify Rymer with Basaganas, and, in any event, such modification “would still not result in the claimed electric device.” App. Br. 5. Appellants contend that Basaganas relies on the “chimney effect” to control vapor emissions by displacing a tubular body above the upper part of the wick to guide at least some of the vapor to the exterior of the device. Id. at 5—6. According to Appellants, the “chimney effect is always produced above the source of heat adjacent the end of the wick so that the regulation means have to be arranged above the wick.” Id. at 6. Appellants therefore assert that “it would neither be practical nor desirable to have the Rymer shield move below the heating resistor when combined with Basaganas.” Id. In response to this argument, the Examiner asserts that Basaganas “is used as a secondary reference” to teach that “the shield can be movable relative to the heating element and the wick.” Ans. 7—8. Conversely, according to the Examiner, Rymer “is used as the primary reference to establish the method of heating the wick and the nature of the relationships between the heating element and the shield protecting the wick.” Id. at 7. The Examiner also provides a “mock-up” of Rymer Figure 2 to illustrate the proposed combination of teachings. Id. at 8. In the mock-up, heater 9 is moved to near the top of the device and labeled “stationary heater,” and 4 Appeal 2016-004994 Application 13/390,369 tubular shield 8, an integral part of top cover 6, is detached from the top cover and labeled “slidable up/down.” Id. The Examiner has not set forth a sufficient initial showing of unpatentability of claim 1. Assuming, arguendo, that a person of ordinary skill in the art would have combined Rymer and Basaganas for the reason the Examiner proposes, we are not persuaded that the resultant combination would have also taught or suggested the subject matter of claim 1. Specifically, despite Appellants’ assertion that “it would neither be practical nor desirable to have the Rymer shield move below the heating resistor” (App. Br. 6), the Examiner does not explain why a person of ordinary skill in the art would have moved Rymer’s heater 9 to the top of Rymer’s evaporation device and above shield 8.1 Neither Rymer nor Basaganas teaches positioning a heater above a shield. Further, absent hindsight, there is no apparent or stated reason why Rymer’s heater needs to be placed above the shield to make the heater stationary or the shield movable. Given the Examiner’s lack of explanation why a person of ordinary skill in the art would have, nonetheless, made this modification, we do not sustain the Examiner’s rejection of claim 1, as well as claims 2—6 and 9, which depend from claim 1. The Remaining Rejections The Examiner’s remaining rejections rely on the Examiner’s erroneous finding that the combination of Rymer and Basaganas teaches all of the limitations of claim 1. Final Act. 5—6. The Examiner has not relied 1 This proposed modification appears necessary to provide “a maximum evaporation position in which part of the shield member is located below said heating means,” as claim 1 requires. 5 Appeal 2016-004994 Application 13/390,369 on DeWitt or Caserta to cure the deficiency. Accordingly, for the reasons discussed supra, we do not sustain the Examiner’s rejection of claims 7 and 8 as unpatentable over Rymer, Basaganas, and DeWitt, or the rejection of claim 10 as unpatentable over Rymer, Basaganas, and Caserta. DECISION For the above reasons, the Examiner’s rejection of claims 1—6 and 9 is reversed. REVERSED 6