Ex Parte Batten

Patent Trial and Appeal Board

Feb 28, 2019

14505330 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/505,330
41804 7590
KLEMCHUK LLP
FILING DATE
10/02/2014
03/01/2019
8150 North Central Expressway
10th Floor
DALLAS, TX 75206
FIRST NAMED INVENTOR
Raymond C. Batten II
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.
1567.0003 9039
EXAMINER
ARK, DARREN W
ART UNIT PAPER NUMBER
3647
MAIL DATE DELIVERY MODE
03/01/2019 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 RAYMOND C. BATTEN II
Appeal2018-005352
Application 14/505,330
Technology Center 3600
Before MURRIEL E. CRAWFORD, PHILIP J. HOFFMANN, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant appeals under 35 U.S.C. § 134 from the Examiner's
rejections of claims 8-13 and 15. We have jurisdiction over this appeal
under 35 U.S.C. § 6(b ).
We AFFIRM.
Appeal2018-005352
Application 14/505,330
STATEMENT OF THE CASE
The Appellant's invention provides "light-based fly repellants" that
"refract light and disturb the optical perception of houseflies, thereby
causing the houseflies to flee the vicinity of the repellent." (Spec. ,r 11.)
Sole Independent Claim on Appeal
8. A light-based fly repellent comprising:
a frame having a body positioned within the frame, the
body selectively molded to assume the shape of the frame and
housing a clear liquid and the body having a nozzle for
receiving the clear liquid and a cap to seal the nozzle; and
at least one tab affixed to a portion of the repellent to
hang the repellent in an area where houseflies are located,
wherein the clear liquid refracts light and repels flies from the
area where the repellent is hung.
Pace
Chipman
Hubbard
Casteel
References1
US 6,543,180 B2
US 2007/0141945 Al
US 2009/0031612 Al
US 2011/0219664 Al
Rejections
Apr. 8, 2003
June 21, 2007
Feb. 5,2009
Sept. 15, 2011
I. The Examiner rejects claims 8-13 and 15 under 35 U.S.C.
§ 102 as anticipated by Hubbard. (Final Action 3.)
II. The Examiner rejects claims 8-13 under 35 U.S.C. § 102 as
anticipated by Pace. (Final Action 2.)
III. The Examiner rejects claim 15 under 35 U.S.C. § 103 as
unpatentable over Pace in view of Chipman. (Final Action 4.)
1 Our quotations from these references omit, where applicable, bolding
and/or italicization of drawing-associated numerals.
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Application 14/505,330
IV. The Examiner rejects claims 8-13 and 15 under 35 U.S.C.
§ 103 as unpatentable over Pace in view of Casteel or Hubbard. (Final
Action 5.)
V. The Examiner rejects claim 15 under 35 U.S.C. § 103 as
unpatentable over Pace in view of Casteel or Hubbard, and further in view of
Chipman. (Final Action 6.)
ANALYSIS
Independent claim 8 recites a "light based fly repellant" comprising "a
body" that has "a nozzle for receiving the clear liquid and a cap to seal the
nozzle." (Appeal Br., Claims App.) The light based fly repellant also
comprises "a frame" within which the body is positioned, and "at least one
tab affixed to a portion of the repellent to hang the repellent in an area where
houseflies are located." (Id.)
Rejection I
The Examiner determines that Hubbard discloses, in an anticipatory
manner, a light based fly repellant comprising the components recited in
independent claim 8. (See Final Action 3.) Hubbard discloses a "repellant
device 1" comprising "a cylindrical clear rigid housing 2," "endcaps 3
and 4," "waterproof seals 9," and "a threaded hole 15" in endcap 3 "for
filling and changing of [a] clear transparent liquid." (Hubbard ,r 17; see also
Figs. 1, 2.) The Examiner considers Hubbard's housing 2 to be the claimed
"body," considers Hubbard's endcaps 3 and 4 and waterproof seals 9 to be
part of the claimed "frame," and considers Hubbard's threaded hole 15 to be
the claimed "nozzle." (See Final Action 3.)
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The Appellant argues that Hubbard does not disclose a "nozzle" as
required by independent claim 8. (Appeal Br. 10.) We are persuaded by this
argument because, independent claim 8 requires "[a] body having a nozzle
for receiving the clear liquid." (Id., at Claims App., emphasis added.)
Insofar as the threaded hole 15 constitutes a "nozzle," this nozzle is part of
the frame (endcap 3), not the body (housing 2) of Hubbard's repellant
device 1.
Thus, we do not sustain the Examiner's rejection of claims 8-13
and 15 under 35 U.S.C. § 102 as anticipated by Hubbard.
Rejection II
The Examiner determines that Pace discloses, in an anticipatory
manner, a light based fly repellant comprising the components recited in
independent claim 8. (See Final Action 2.) Pace discloses a fly-repelling
device 10 comprising a "transparent envelope 20" that has "a reinforced
hanging hole 50" which allows the envelope 20 "to be hung on the edge of
[a] covered area using string or a hook." (Pace col. 2, 11. 28-33, 49-53; see
Figs. 1, 2, 7.) The Examiner considers Pace's envelope 20 to be the claimed
"housing," and considers Pace's reinforced hanging hole 50 to be the
claimed "tab." (See Final Action 2.) The Examiner explains that Pace's
hanging hole 50 "is formed by a grommet or hollow rivet" that is "indeed a
separate structure" secured to the envelope 20. (Answer 6.)
The Appellant argues that Pace does not disclose the "tab" required by
independent claim 1. ( See Appeal Br. 6-7.) We are persuaded by this
argument because we agree with the Appellant that one of ordinary skill in
the art would not consider a hole (and/or a grommet or hollow rivet used to
reinforce this hole) in an object, as a "tag" affixed to this object.
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Thus, we do not sustain the Examiner's rejection of claims 8-13 under
35 U.S.C. § 102 as anticipated by Pace.
Rejection III
Dependent claim 15 requires the clear liquid to be one of "tap water,
distilled water, hydrogen peroxide, acetone, ethyl acetate, isopropyl alcohol,
and methyl alcohol." (Appeal Br., Claims App.) The Examiner determines
that it would have been obvious, in view of the teachings of Chipman, "to
fill the body of Pace with distilled water." (Final Action 5.) But this
modification would not cure the above-discussed shortcoming in Pace, as
there still would not be "a tab" affixed to a portion of the repellent as
required by claim 15, per its dependence on independent claim 1.
Thus, we do not sustain the Examiner's rejection of claim 15 under
35 U.S.C. § 103 as unpatentable over Pace in view of Chipman.
Rejection IV
The Examiner determines that it would have been obvious to modify
Pace's light-based fly repellant to have a frame as taught by Hubbard, "in
order to provide a relatively rigid support means which will protect the body
from damage and provide an intermediary structure to indirectly mount it to
the support." (Final Action 5.)
The Appellant argues that Hubbard "does not disclose the claimed
frame." (Appeal Br. 13.) According to the Appellant, "there is no
disclosure" in Hubbard that the frame-forming elements identified by the
Examiner ( endcap 3, endcap 4, and waterproof seals 9) "make up a frame."
(Id. at 9.) We are not persuaded by this argument because the Examiner
explains adequately why one of ordinary skill in the art would consider these
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Application 14/505,330
identified elements (endcap 3, endcap 4, and waterproof seals 9) to
collectively from a frame. (See Answer 8.) And the absence of the word
"frame" in Hubbard's description of these elements does not diminish the
adequacy of the Examiner's explanation.
The Appellant argues that "there are other aspects of independent
claim 8" that are not disclosed by either Pace or Hubbard. (Appeal Br. 13.)
But in the Examiner's proposed combination of the prior art, Pace's
envelope/body 20 has a nozzle for receiving the clear liquid ( element 40)
and a cap to seal the nozzle ( element 42). And we are not persuaded by the
Appellant's argument that Pace's elements 40 and 42 do not qualify as the
claimed nozzle and cap (see Appeal Br. 6), as they appear to be structurally
the same as the nozzle 203 and the cap 204 described and depicted the
Specification. (See Spec. ,r 19, Fig. 2.)
Also, in the Examiner's proposed combination of the prior art,
Hubbard's frame would include a tab (hanging mechanism 7) affixed
thereto. (See Hubbard Fig. 2) This tab would be affixed "to a top portion of
the frame" as required by dependent claim 9, and would include "a mounting
hole" as required by dependent claim 10. (Appeal Br., Claims App.)
Additionally, as explained by the Examiner (see Answer 13-14),
Hubbard teaches that its frame/body elements can be "threaded together" or
joined by "ultrasonic welding or gluing." (Hubbard ,r 17.) Thus, Hubbard
teaches both a frame that "removably receives the body" as required by
dependent claim 11, and a frame that "is integrally formed with the body" as
required by dependent claim 12. (See Appeal Br., Claims App.)
We further note that it would have been obvious, in view of the
teachings of Pace, to provide Hubbard's housing 2 with a nozzle and cap so
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Application 14/505,330
that it could filled without disassembling the frame components. We are not
persuaded by the Appellant's arguments (see Appeal Br. 9-10) that
Hubbard's housing 2 does not qualify as the claimed "body" because, as
pointed out by the Examiner independent claim 8 does not preclude a "rigid"
body, and Hubbard's housing 2 "is molded or formed so as to conform to
and fit within" Hubbard's frame elements. (Answer 9.)
Thus, we sustain the Examiner's rejection of claims 8-13 and 15
under 35 U.S.C. § 103 as unpatentable over Pace in view of Casteel or
Hubbard.
Rejection V
As indicated above, dependent claim 15 requires the clear liquid to be
one of "tap water, distilled water, hydrogen peroxide, acetone, ethyl acetate,
isopropyl alcohol, and methyl alcohol." (Appeal Br., Claims App.) The
Appellant does not argue this rejection separately. Moreover, Pace discloses
that its envelope 20 (i.e., body) is "filled with a clear transparent liquid"
(Pace, col. 2, 11. 32-33), and Hubbard teaches that "[a] clear transparent
liquid is distilled water" (Hubbard ,r 20).
Thus, we sustain the Examiner's rejection of dependent claim 15
under 35 U.S.C. § 103 as unpatentable over Pace in view of Casteel or
Hubbard, and further in view of Chipman.
DECISION
We REVERSE the Examiner's rejection of claims 8-13 and 15 under
35 U.S.C. § 102 as anticipated by Hubbard.
We REVERSE the Examiner's rejection of claims 8-13 under
35 U.S.C. § 102 as anticipated by Pace.
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We REVERSE the Examiner's rejection of claim 15 under 35 U.S.C.
§ 103 as unpatentable over Pace in view of Chipman.
We AFFIRM the Examiner's rejection of claims 8-13 and 15 under
35 U.S.C. § 103 as unpatentable over Pace in view of Casteel or Hubbard.
We AFFIRM the Examiner's rejection of claim 15 under 35 U.S.C.
§ 103 as unpatentable over Pace in view of Casteel or Hubbard, and further
in view of Chipman.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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