Ex Parte Burgeson

Board of Patent Appeals and Interferences

Mar 25, 2005

09815030 (B.P.A.I. Mar. 25, 2005)

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

Paper No. 14

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

____________

Ex parte JOHN R. BURGESON
____________

Appeal No. 2005-0538
Application No. 09/815,030

____________

ON BRIEF
____________

Before KIMLIN, KRATZ, and PAWLIKOWSKI, Administrative Patent
Judges.
PAWLIKOWSKI, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134, from
the examiner’s final rejection of claim 1. Claims 3 and 4 are
no longer rejected. Answer, page 3.
A copy of claim 1 is set forth below:
1. A scent dispenser for attracting game and for
dipping into a scent container having a rim,
comprising:
(a) an absorbent member;
(b) an aperture through the absorbent member for
suspending the absorbent member; and
(c) wherein the absorbent member further
comprises an elongate member having a first portion
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with the aperture therethrough and a pair of legs
attached to the first portion, the legs having a gap
therebetween, each leg being adapted to be
individually inserted into the scent container, with
the rim of the scent container entering the gap.

The examiner relies upon the following reference as
evidence of unpatentability:
Floyd 4,722,477 Feb. 2, 1988

Claim 1 is rejected under 35 U.S.C. § 102(b) as being
anticipated by Floyd.
OPINION
The examiner’s position for the anticipation rejection of
claim 1 is set forth on page 2 the Office action of Paper No. 6
(mailed October 16, 2002). We refer to the examiner’s position
therein.
Beginning on page 3 of the brief, appellant argues that the
absorbent member 14 shown in Figure 6 of Floyd does not have a
pair of legs. Appellant also argues that the straps 142 are not
disclosed as being absorbent in Floyd, and therefore the straps
142 cannot be part of the claimed absorbent member.
Appellant’s absorbent member is depicted as item 12 in
Figure 1, comprising an elongate member 16 having a first
portion 18 with an aperture 14, and a pair of legs 20,22
attached to the first portion 18. The legs 20,22 have a gap 24
therebetween. See also page 4 of appellant’s specification.
We note that during patent examination, the pending claims
must be interpreted as broadly as their terms reasonably allow.
In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 320, 322 (Fed. Cir.
1999). In the instant case, appellant argues that the claimed
absorbent member must be entirely made of absorbent material.
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Application No. 09/815,030

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However, the term “absorbent member” is not so limited. That
is, this term can refer to an object having multiple pieces, of
which at least one piece is made of absorbent material. For
example, it is possible that an absorbent member can be as shown
in Figure 1 of Floyd, wherein there is a lower flexible strap 12
having thereon an absorbent material 14 (hence, the absorbent
member comprises one part being absorbent that is attached to
another part, the flexible strap 12, wherein the two parts
together are the absorbent member). Appellant’s claim 1 does
not recite that the absorbent member is only one piece and that
one piece is made of absorbent material or that the absorbent
member is multiple pieces, wherein each piece is entirely made
of absorbent material.
In the reply brief, appellant argues that there is no
disclosure that the straps 142 are made of a cloth material
(appellant argues this in response to the examiner’s argument
that these straps are made of some sort of cloth material and
therefore these straps are absorbent; answer, pages 3-4). On
page 2 of the reply brief, appellant argues that it is much more
likely that the straps 142 are made of the same material as the
flexible body member 12, which is expressly disclosed in Floyd
as being “non-absorbent, non-porous”, and refers to col. 2,
lines 57-60 of Floyd.
Upon our review of this disclosure, we find that Floyd
discloses the following:
Because scent masking substances typically have a
pungent odor, flexible body member 12 is preferably
constructed of a non-absorbent, non-porous material
for preventing a scented substance applied to scent
dispersal member 14 from passing through flexible
strap 12. This prevents the scent substance from
contacting the clothing and boots worn by the hunter
upon attachment of strap 12 to the hunter.
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First, we note that the flexible body member 12 is
“preferably” constructed of a non-absorbent, non-porous
material, and thus this is a preferred embodiment. As
such, Floyd does not exclude an embodiment that uses
absorbent material for member 12.
Also, as discussed above, appellant’s claimed
“absorbent member” encompasses a member having multiple
parts, wherein at least one part is made of an absorbent
material. As such, we agree with the examiner that the
scent dispenser depicted in Figure 6 of Floyd anticipates
appellant’s claim 1.1
In regard to the claimed recitation of “each leg being
adapted to be individually inserted into the scent
container”, on page 3 of the reply brief, appellant states
he cannot understand the examiner’s reasoning as to how the
interconnecting legs or straps 142 of Floyd can be inserted
into a scent container in this manner. Appellant argues
that it is not possible to insert each leg 142 into a scent
container individually because the interconnecting strap 12
blocks the lower end of the strap 142. We disagree because
it is not impossible that each leg 142 can be individually
inserted into the scent container. That is, each strap 142
can be placed inside a scent container (e.g., bunched
inside a container), one at a time, hence, individually.
Therefore, we are not convinced by appellant’s argument on
this issue.

1 On page 2 of the Office action of Paper No. 6, the examiner finds
that Floyd discloses a scent dispenser having an elongated member 12
and an aperture, and having a pair of legs 142, as depicted in Figure
6.
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Application No. 09/815,030

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In view of the above, we affirm the anticipation
rejection of claim 1.

Conclusion
The 35 U.S.C. § 102(b) rejection of claim 1 as being
anticipated by Floyd is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a)(1)(iv)(effective September 13, 2004; 69 Fed.
Reg. 49960 (August 12, 2004); 1286 Off. Gaz. Pat. Office 21
(September 7, 2004)).

AFFIRMED

EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)BOARD OF PATENT
) APPEALS AND
PETER F. KRATZ ) INTERFERENCES
Administrative Patent Judge )
)
)
)
)
)
BEVERLY A. PAWLIKOWSKI )
Administrative Patent Judge )

BAP/sld
Appeal No. 2005-0538
Application No. 09/815,030

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