Ex Parte Caserta et al

Patent Trial and Appeal Board

Mar 25, 2013

11072299 (P.T.A.B. Mar. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ANDREA CASERTA, RUBEN GARCIA
FABREGA, and JOSE ANTONIO MUNOZ MARTINEZ
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Appeal 2011-001087
Application 11/072,299
Technology Center 3700
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Before: PHILLIP J. KAUFFMAN, BRETT C. MARTIN, and
PATRICK R. SCANLON, Administrative Patent Judges.

MARTIN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-001087
Application 11/072,299

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STATEMENT OF CASE
Andrea Caserta et al. (Appellants) appeal under 35 U.S.C. § 134 from
the Examiner’s rejection of claims 1-5 and 7-9. Claim 6 is cancelled. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

THE INVENTION
Appellants’ invention is directed generally to “a container used to
diffuse active substances such as fragrances, insecticides and others, stored
in a liquid state and diffused in a gaseous state through a breathable
membrane.” Spec., p. 1, ll. 7-9. Claim 1, the only independent claim at
issue and reproduced below, is illustrative of the claimed subject matter:
1. A container of active substances comprising:
a vessel for housing an active liquid substance to be
diffused;
a permeable membrane that closes the vessel and allows
passage of volatile components of the active liquid substance in
a gaseous state; and
a porous part placed inside the vessel behind the
permeable membrane, wherein the porous part is rigid and is
arranged near and parallel to the permeable membrane and
spaced apart from the permeable member so that the porous part
supports the permeable membrane thereby limiting deformation
of the permeable membrane when a vacuum is generated as the
vessel is emptied.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Sullivan
Miller
US 5,234,162
US 5,749,519
Aug. 10, 1993
May 12, 1998
Appeal 2011-001087
Application 11/072,299

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de Vries
Ferguson
US 6,199,713 B1
US 6,555,069 B1
Mar. 13, 2001
Apr. 29, 2003

THE REJECTIONS ON APPEAL
The Examiner made the following rejections:
Claims 1-3 and 9 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Sullivan. Ans. 3.
Claims 4, 5, and 7 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Sullivan and Miller. Ans. 4.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Sullivan and Ferguson. Ans. 4.

ANALYSIS
Anticipation
The Examiner finds that Sullivan teaches each and every element of
claim 1, including, inter alia, “a porous part 36 placed inside the vessel
behind the permeable membrane 35.” Ans. 3. The Examiner goes on to
explain that in operation, “[t]he diffuser 35 allows passage of volatile
components of fragrances from both pads 33 and 46” and that “[t]he
membrane 36 is porous so that diffusing material from the pad 46 passes
through and is dispensed by the device.” Ans. 5. As Appellants point out,
however, “[m]embrane 36 is not a…porous part.” App. Br. 5. Appellants
explain that “Sullivan describes the lid 38 and the membrane 36 as sealing
the cavity 18 [which holds diffuser pad 33] from the cavity 20 [which holds
diffuser pad 46].” Reply Br. 3 (citing to Sullivan, col. 4, ll. 34-37).
Appellants also correctly argue that “Sullivan describes the second fragrance
24 as escaping the second cavity 20 through openings 54 arranged in the lid
Appeal 2011-001087
Application 11/072,299

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38” and that “Sullivan is silent regarding passage of volatile components of
the second fragrance 24 passing through a permeable membrane and no
mention is made of a permeable membrane arranged over the openings 54 in
the lid 38.” App. Br. 4.
We agree with Appellants that Sullivan does not support the
Examiner’s finding regarding the alleged porosity of membrane 36 or the
operations of Sullivan’s device relating thereto. Further, as Appellants
argue, “the Examiner’s Answer fails to address any of the portions of
Sullivan cited in Appellant’s Appeal Brief that directly contradict the
Examiner’s characterization of the membrane 36.” Reply Br. 3.
Accordingly, we do not sustain the Examiner’s rejection of claim 1, or
dependent claims 2, 3, and 9, as anticipated by Sullivan.
Obviousness
The Examiner’s rejections of claims 4, 5, and 7 as obvious over
Sullivan and Miller and claim 8 as obvious over Sullivan and Ferguson rely
on the same erroneous finding noted above with respect to Sullivan’s
membrane 36. Neither Miller nor Ferguson corrects this error. Accordingly,
we likewise do not sustain the Examiner’s decision to reject claims 4, 5, and
7 as obvious over Sullivan and Miller or claim 8 as obvious over Sullivan
and Ferguson for the same reasons as stated above with respect to claim 1.

DECISION
For the above reasons, we REVERSE the Examiner’s decision to
reject claims 1-5 and 7-9.

Appeal 2011-001087
Application 11/072,299

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REVERSED

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