Ex Parte Butler et alDownload PDFPatent Trial and Appeal BoardSep 28, 201612513703 (P.T.A.B. Sep. 28, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/513,703 0510612009 27389 7590 09/29/2016 PARFOMAK, ANDREW N. NORRIS MCLAUGHLIN & MARCUS PA 875 THIRD A VE, 8TH FLOOR NEW YORK, NY 10022 FIRST NAMED INVENTOR Martin Butler 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. 102792-981(ll912Pl) 4926 EXAMINER SIMS III, JAMES F ART UNIT PAPER NUMBER 3742 MAILDATE DELIVERY MODE 09/29/2016 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 MARTIN BUTLER, WU JIN, CHRIS JONES, KATE LANGLEY, SHAUN RYMER, and STEVE WALSH Appeal2015-000543 1 Application 12/513,7032 Technology Center 3700 Before JAMES A. WORTH, CYNTHIA L. MURPHY, and KENNETH G. SCHOPPER, Administrative Patent Judges. WORTH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's Final rejection of claims 30-50. We have jurisdiction under 35 U.S.C. §§ 134 and 6(b). We AFFIRM-IN-PART. 1 Our decision refers to the Appellants' Appeal Brief ("Appeal Br.," filed Apr. 14, 2014) and Reply Brief ("Reply Br.," filed Oct. 6, 2014), and the Examiner's Final Office Action ("Final Act.," mailed Aug. 27, 2013) and Answer ("Ans.," mailed Aug. 8, 2014). 2 According to Appellants, the real party in interest is Reckitt Benckiser (UK) Limited (Appeal Br. 3). Appeal2015-000543 Application 12/513,703 Introduction Appellants' disclosure relates to "a device for evaporating volatile liquids, for example air fresheners and insecticides [and in particular] a device for evaporating volatile liquids from a container into a room with the assistance of electrical power" (Spec. 1, 11. 3-5). Claims 30 and 31 are the independent claims on appeal. Claim 30, reproduced below, is illustrative of the subject matter on appeal: 30. A method of evaporating a volatile liquid from a container of volatile liquid, the method comprising the steps of: loading a container of volatile liquid into a device which comprises: a housing; securing means within said housing to releasably secure the container to the device; a first electrical heating means; motion sensor means, and and at least one of: a second electrical heating means; a fan; a range of higher temperature in the first electrical heating means; placing the device in an operational mode wherein the motion sensor means is capable of detecting motion in the vicinity of the device; and wherein, upon detection of motion by said motion sensor means, said motion causes the activation of at least one of: the second electrical heating means; the fan; the range of higher temperature in the first electrical heating means. (Appeal Br., Claims App.). 2 Appeal2015-000543 Application 12/513,703 Rejections on Appeal The Examiner maintains, and Appellants appeal, the following rejections: 1. Claims 30-32, 44, 47 and 50 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Walter (US 2005/0185392 Al, pub. Aug. 25, 2005). 2. Claims 33--43, 48, and 49 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Walter and Kvietok (US 2004/0033171 Al, pub. Feb. 19, 2004). 3. Claims 45 and 46 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Walter, Kvietok, and Danes (US 2005/0195598 Al, pub. Sept. 8, 2005). ANALYSIS Independent claims 3 0 and 31 Appellants argue the patentability of independent claims 30 and 31 together. We select independent claim 30 as representative, such that independent claim 31 stands or falls therewith. See 37 C.F.R. 41.37(c)(l)(iv). First, we are unpersuaded by Appellants' argument that Walter fails to disclose a mode of operation in which fragrance is continuously emitted before emitting in response to detected motion (Appeal Br. 8-9). Rather, we agree with the Examiner that independent claim 30 recites no such continuous mode of operation (Ans. 8). Second, we are unpersuaded by Appellants' argument that Walter discloses an automatic operation after being set by a user, and that such automatic operation would fail to address the technical problem of 3 Appeal2015-000543 Application 12/513,703 "habituation." To the extent that Appellants may have intended to claim a certain limitation directed to preventing habituation, independent claim 30, as written, does not contain any such express limitation. Independent claim 30 does recite the following mode of operation: placing the device in an operational mode wherein the motion sensor means is capable of detecting motion in the vicinity of the device; and wherein, upon detection of motion by said motion sensor means, said motion causes the activation of at least one of: the second electrical heating means; the fan; the range of higher temperature in the first electrical heating means. (Appeal Br., Claims App'x). The Examiner relies on paragraphs 25 and 59- 60 of Walter for this operational mode (Final Act. 2-3). Paragraphs 56 and 57 of Walter disclose that presentation unit 1 includes a fragrance dispenser 31 that emits fragrance. Paragraph 59 of Walter discloses that activation of a sensor, such as a photosensor, activates preprogrammed presentation unit 1. Paragraph 25 of Walter describes that "[t]he fragrance dispenser (or dispensers) used in any one of the embodiments of our invention may dispense fragrance using a piezoelectrically actuated atomization device, a heat-assisted evaporation device, a fan-assisted evaporation device, among other know fragrance dispensing devices." As such, Walter may use any of these devices to emit fragrance, i.e., a fan, a heating means, or an atomization device. We find that these devices meet the argued limitation. For these reasons, we affirm the Examiner's rejection under§ 103 of independent claims 3 0 and 31. 4 Appeal2015-000543 Application 12/513,703 Dependent claim 42 In contrast to independent claim 30, dependent claim 42 discloses a constant mode of operation and we understand Appellants' arguments directed to independent claim 30 to be applicable to dependent claim 42. The Examiner finds that constant operation is inherent in Walter's set period of operation (Final Act. 7 (citing Walter ,-i 19) ). We disagree and find that Walter's set period refers to less than constant operation. Accordingly, we do not sustain the Examiner's rejection under§ 103 of claim 42. Dependent claims 33--41, 43, 48 and 49 With respect to claims 33 and 48, Appellants argue that the Examiner erred in finding that paragraphs 74 and 75 of Walter render obvious the separate operation of a fan or second heating element, as required by claims 33 and 48, i.e., "motion causes the activation of each of: the second electrical heating means; the fan; and the range of higher temperature in the first electrical heating means" (Appeal Br. 11-12). Appellants assert that Walter can function with either a heating element or fan and therefore there would be no motivation to use both (id). We are unpersuaded by this argument. We agree with the Examiner that a person of ordinary skill reading paragraphs 7 4 and 7 5 of Walter would understand the disclosure to convey that both a heating element and fan could be used, and that it would have been obvious to use both based on the disclosure. For these reasons, we sustain the Examiner's rejection under§ 103 of claims 33 and 48. Appellants do not argue the patentability of claims 34 and 49 separately from those of claims 33 and 48. We, therefore, sustain the Examiner's rejection under§ 103 of claims 34 and 49 for similar reasons. 5 Appeal2015-000543 Application 12/513,703 With respect to claims 35, 36, and 39--41, Appellants argue that the combination of Walter and K vietok would change the principle of operation of Walter inasmuch as K vietok teaches overlapping periods of different fragrances rather than an "on" and "off' of all fragrances (see Appeal Br. 13). However, the Examiner relies on Kvietok simply for its teaching of activation and non-activation periods, i.e., gaps between activation periods (Final Act. 6 (discussing K vietok ,-i,-i 29, 31 ). We are unpersuaded that this would change the principle of operation of Walter (see Ans. 12). In addition, the Examiner points out that K vietok (Figures 1-5) teaches several different modes of operation. Figures 1-3 ofKvietok do not contain an overlap of fragrances, as argued by Appellants. We are unpersuaded by Appellants' argument that there would have been no motivation to combine Walter and Kvietok (Appeal Br. 11). Appellants argue that Walter is not deficient because Walter discloses use of both a heater and a fan, and this disclosure erodes the Examiner's rationale for the combination (see id.). The Examiner states that "it would have been obvious to one of ordinary skill in the art to incorporate the 'activation and non-activation periods' of K vietok into the [device of] Walter to better create a desired effect when said device is operable to activate on a routine cycle" (Final Act. 6). K vietok describes, in the Background of the Invention and Summary of the Invention, that there is a well-known problem of habituation (becoming accustomed to a fragrance so as not to notice it), for which the invention of Kvietok is presented as a solution (see id. ,-i,-i 4, 8). We agree with the Examiner that a person of ordinary skill would have been motivated to utilize the teachings of K vietok to better create a desired effect. We, therefore, sustain the Examiner's rejection of claims 35, 36, and 39. 6 Appeal2015-000543 Application 12/513,703 With respect to claim 40, Appellants argue that neither Walter nor Kvietok discloses time settings "in any manner" (Appeal Br. 13). Claim 40 recites a first activation period tl of 0.1-120 minutes, a second activation period b of 1-120 minutes, a first non-activation period x of 0.1-120 minutes, and a second non-activation period y of 5-30 minutes where b :S tl and where y :S x. Claim 41 recites that b = ti/2 and y = x. The Examiner finds that Kvietok (,-i,-i 29-32 & Figs. 1-5) discloses timings for the periods of activation (tl, t2, ... ) and periods of non-activation (x, y). We have reviewed the portions of K vietok relied on by the Examiner and do not find sufficient support therein for the conclusion that it would have been obvious to use a second activation period shorter than the first activation period, as recited in claims 40 and 41. Kvietok discloses that the time period for emission of a different volatile composition may be the same, shorter, or greater than that for the first volatile composition, with patterns of repetition of a second or third emission (see Kvietok ,-i 29). Nor does the Examiner provide adequate reasoning as to why it would have been obvious to use a shorter second activation period, as recited. We, therefore, do not sustain the rejection under § 103 of claims 40 and 41. With respect to claims 37, 38, and 43, Appellants argue that Walter and K vietok do not have a "lower" power setting, as recited, but rather are limited to "on" or "off' (Appeal Br. 13). We are persuaded by this argument, and find that the Examiner has not provided sufficient evidence or reasoning as to why it would have been obvious to use a "lower" power setting, as recited. We, therefore, do not sustain the Examiner's rejection under§ 103 of claims 37, 38, and 43. 7 Appeal2015-000543 Application 12/513,703 Dependent claims 45 and 46 We are persuaded by Appellants' argument that neither Walter nor K vietok teaches or suggests the use of a motion sensor in controlling operation of a device wherein a first electrical means is independently operated from a second means, as recited in dependent claim 45, i.e., "wherein the motion sensor means only communicates the detection of a motion event once a predefined number of motion events have been detected." The Examiner relies on Danes for a number of predefined motion events that are required in order to cause activation c,-i,-i 53-54) where the sensor activates one or more preprogrammed presentations (Final Act. 7; Ans. 12). Paragraph 53 and 54 of Danes describe that fragrance may be emitted along with sound, music, and light, that a certain amount of sunlight may activate a sensor, that other types of sensors may be used, that a given user may program a personalized presentation, and that a sensor may activate one or more preprogrammed presentations. However, paragraphs 53 and 54 of Danes do not disclose "a predefined number of motion events" as a trigger for activation of a sensor. Therefore, we do not sustain the Examiner's rejection under§ 103 of claim 45. Claim 46 contains similar requirements and limitations as claim 45. We do not sustain the Examiner's rejection under§ 103 of claim 46, for similar reasons as for claim 45. Dependent claims 44 and 50 With respect to 44 and 50, Appellants argue that paragraph 59 of Walter does not disclose a motion detector, as recited, i.e., "wherein the motion sensor means is at least one of: an infrared (IR) sensor; a laser sensor; a sound sensor." We find that the "motion sensing means" is a claim 8 Appeal2015-000543 Application 12/513,703 under former 35 U.S.C. § 112 iJ 6, and corresponds to a sound sensor which turns on a light detector (Spec. 7, 11. 7-10). The Examiner relies on the sound sensor of paragraph 25 of Walter. We find that this does not correspond to the means structure, as construed, which would work in conjunction with a second detector. We, therefore, do not sustain the Examiner's rejection under§ 103 of claims 44 and 50. Dependent claims 32 and 47 Appellants do not argue the patentability of claims 32 and 47 separately from that of independent claims 30 and 31, from which they depend. We sustain the Examiner's rejection under§ 103 of claims 32 and 4 7, for similar reasons as for independent claims 3 0 and 31. DECISION The Examiner's decision to reject claims 30-36, 39, and 47--49 is affirmed. The Examiner's decision to reject claims 37, 38, 40--46, and 50 is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv). AFFIRMED-IN-PART 9 Copy with citationCopy as parenthetical citation