Ex Parte Abbas et al

Board of Patent Appeals and Interferences

Apr 27, 2005

09941377 (B.P.A.I. Apr. 27, 2005)

The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of the
Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte FREDERICK M. ABBAS
and
GREG ALLEN ABBAS
__________

Appeal No. 2005-0944
Application No. 09/941,377
___________

ON BRIEF
___________

Before OWENS, WALTZ, and DELMENDO, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on an appeal under 35 U.S.C. § 134
(2004) from the examiner’s final rejection of claims 1 through
14 and 16 through 20 in the above-identified application.
Claims 15 and 21 through 25, the only other pending claims,
appear to have been allowed.1

1 Claims 21-25 were first submitted for examination as part
of a 37 CFR § 1.116 (2004)(effective Feb. 5, 2001) amendment
filed on Jun. 7, 2004. It appears that the examiner has entered
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Application No. 09/941,377

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The subject matter on appeal relates to a method for
distributing a scented chemical composition for hunting animals
(claims 1 and 2) and to an apparatus for distributing a scented
chemical composition for hunting animals (claims 3-14 and 16-
20). Further details of this appealed subject matter are
recited in representative claims 1 through 3, and 9 reproduced
below:
1. A method for distributing a scented chemical
composition for hunting animals, the method
comprising:
providing a pressurized dispenser for pressure
based dispensing of a foam string from a distance away
from a target, the distance being sufficient to avoid
an ambient environment being contaminated by human
scent, the foam string including the scented chemical
composition to attract animals or mask human scent or
both; and
discharging the foam string toward the target.

2. A method for a hunter to hunt animals by
dispensing a chemical composition that emits a scent
from a dispenser, the method comprising;
configuring a can to dispense a liquid-gas foam
string of encapsulated plastic resin, the string
including the chemical composition;
providing the chemical composition so as to emit
the scent for a selected period of time after being
dispensed, wherein the scent attracts animals or masks
human scent; and
dispensing the string from the can toward a
target, the string being dispensed far enough away
from the can that the hunter does not substantially

this amendment. (Examiner’s answer mailed on Jul. 20, 2004 at
2, “Grouping of Claims.”)

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Application No. 09/941,377

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contaminate an area around the target.

3. An apparatus for distributing a scented
chemical composition for hunting animals, the
apparatus comprising:
a pressurized dispenser for pressure based
dispensing; and
a foam string dispensed by the dispenser, the
foam string including the scented chemical composition
for hunting.

9. The apparatus of claim 3, wherein the
chemical composition comprises a chemical composition
that masks human scent.

The examiner relies on the following prior art references
as evidence of unpatentability:
Cox et al. 3,705,669 Dec. 12, 1972
(Cox)

Easley 4,771,563 Sep. 20, 1988

Konietzki 4,788,787 Dec. 6, 1988

Claims 1 through 6, 11 through 14, and 16 through 20 on
appeal stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Cox in view of Konietzki. (Answer at 3-4.)
Correspondingly, dependent claims 7 through 10 on appeal stand
rejected under 35 U.S.C. § 103(a) as unpatentable over Cox in
view of Konietzki, as applied to claim 1, and further in view of
Easley. (Id. at 4.)
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Application No. 09/941,377

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We reverse as to claims 1 and 2 but affirm as to claims 3
through 14 and 16 through 20.2
Cox, the principal prior art reference, describes a
pressurized dispensing container containing a composition
comprising a resin for forming a cohesive body of plastic foam,
a surfactant for providing a surface of controlled tackiness on
the foam, and a propellant in which the resin and the surfactant
are soluble for propelling the composition from the container
and for subsequent expansion to form the foam. (Column 1, lines
19-27.) Cox further teaches that “[a]s the composition is
expelled, it remains in the form of a thin string...” (Column
2, lines 48-53.) Cox also teaches that “if desired perfumes[3]

2 With respect to the rejection based on Cox and Konietzki,
the appellants state that the claims should be considered
separately in two groups as follows: (I) claims 1, 2, and 11;
and (II) claims 3-6, 12-14, and 16-20. (Appeal brief filed on
Jun. 7, 2004 at 4.) For reasons discussed more fully below, we
will consider claims 1, 2, and 11 individually. As to Group II,
we select claim 3 as representative and confine our discussion
to this representative claim. 37 CFR § 1.192(c)(7)(2003)
(effective Apr. 21, 1995). With respect to the rejection based
on Cox, Konietzki, and Easley, the appellants state that claims
7-10 stand or fall together. (Appeal brief at 4.) We select
claim 9 as representative and confine our discussion to this
representative claim.

[3] With respect to the definition of the term “perfume,”
Merriam-Webster’s Collegiate Dictionary 863 (10th ed., 1996),
copy attached, includes the following: “a substance that emits a
pleasant odor; esp: a fluid preparation of natural essences (as
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Application No. 09/941,377

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or other odors may be incorporated in the composition.” Column
7, lines 12-14.) According to Cox, the container may be used as
a toy or play article. (Column 1, lines 7-15.) Nothing in Cox
suggests the use of the disclosed container for hunting animals.
Konietzki, the other reference on which the examiner relies
to reject appealed claims 1 and 2, discloses a scent propagation
device having a leak-proof container and a line contained in a
housing that is saturated with liquid concentrate of a scent
indigenous to the environment of the game that is hunted.
(Column 1, lines 51-55.) According to Konietzki, the line may
be drawn out from within the housing as a means of dispersing
the scent. (Column 1, lines 55-57.)
The examiner states that “Cox et al. do not disclose a
scent for a hunter to lure animals” but that one of ordinary
skill in the art would have been led to combine the teachings of
Cox and Konietzki to arrive at the subject matter of appealed
claims 1 and 2. (Answer at 3-4.) We disagree.
As a preliminary matter, we note that appealed claim 1
recites “scented chemical composition to attract animals or mask
human scent.” (Emphasis added.) Thus, contrary to the

from plants or animals) or synthetics and a fixative used for
scenting.”
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examiner’s finding, Cox discloses the use of a “scented chemical
composition” in the form of perfumes. Similarly, appealed claim
2 recites “scented chemical composition for hunting.” The
subject specification informs one skilled in the relevant art
that the term “chemical composition” includes “a composition
that masks human scent.” (Specification at 3.) Accordingly,
one skilled in the relevant art would understand that the
recitation “scented chemical composition for hunting”
encompasses Cox’s perfumes, which would serve to mask human
scent.
Nevertheless, we find no motivation, suggestion, or
teaching in either Cox or Konietzki to make the examiner’s
proposed combination. While Cox suggests a method for applying
the foam on “inert surfaces such as windows, walls, and the
like” for play purposes (column 2, lines 63-68), such a purpose
has no relation to hunting. Nothing in the applied prior art
references would have led one of ordinary skill in the art to
modify Cox’s play method into a method for distributing [in a
hunting ground] a scented chemical composition. In re
Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir.
1999)(“T]he best defense against the subtle but powerful
attraction of a hindsight-based obviousness analysis is rigorous
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application of the requirement for a showing of the teaching or
motivation to combine prior art references.”)
For these reasons, we cannot uphold the examiner’s 35
U.S.C. § 103(a) rejection of appealed claims 1 and 2 as
unpatentable over Cox in view of Konietzki.
The examiner’s rejection of appealed claims 3, which is
directed to an apparatus, is another matter. As we discussed
above, Cox discloses an apparatus including a pressurized
container capable of dispensing a foam composition in the form
of a string, which may include perfumes (i.e., a scented
chemical composition). While Cox does not disclose the use of
the prior art apparatus for hunting, this does not defeat the
examiner’s rejection because the prior art apparatus and the
claimed apparatus are structurally identical. Cf. In re Bigio,
381 F.3d 1320, 1326, 72 USPQ2d 1209, 1212 (Fed. Cir. 2004); In
re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed.
Cir. 1997); In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305
(CCPA 1962); In re Wolfe, 251 F.2d 854, 855, 116 USPQ 443, 444
(CCPA 1958); In re Hack, 245 F.2d 246, 248, 114 USPQ 161, 162
(CCPA 1957).
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Application No. 09/941,377

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It is our judgment, therefore, that Cox describes, either
expressly or inherently, each and every limitation of appealed
claim 3.
With respect to appealed claim 11, Cox teaches that the
foam string may be propelled 6 inches or more from the nozzle of
the container, which can provide more than 0.5 mile of string.
(Column 2, lines 25-39.) Thus, it would reasonably appear that
Cox’s apparatus would have the same characteristic recited in
appealed claim 11.
With respect to appealed claim 9, we have already pointed
out that Cox teaches the use of perfumes. Thus, the limitation
recited in appealed claim 9 is of no help to the appellants.4
We have considered all of the arguments set forth in the
appeal brief and reply brief filed on Sep. 23, 2004 but do not
find any of them germane to the apparatus claims.
In summary, we reverse the examiner’s rejection under 35
U.S.C. § 103(a) of appealed claims 1 and 2 as unpatentable over
Cox in view of Konietzki. We affirm, however, the rejections
under 35 U.S.C. § 103(a) of: (i) appealed claims 3 through 6, 11
through 14, and 16 through 20 as unpatentable over Cox in view

4 We need not discuss the teachings of Easley because they
are unnecessary to support the rejection of appealed claim 9.
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of Konietzki; and (ii) appealed claims 7 through 10 as
unpatentable over Cox in view of Konietzki and further in view
of Easley.
Accordingly, the decision of the examiner is affirmed in
part.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED IN PART

Terry J. Owens )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
Thomas A. Waltz )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
)
Romulo H. Delmendo )
Administrative Patent Judge )

rhd/
Appeal No. 2005-0944
Application No. 09/941,377

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