Ex Parte Cooper

Patent Trial and Appeal Board

May 31, 2017

12477402 (P.T.A.B. May. 31, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/477,402 06/03/2009 Jack B. Cooper SDF 09-4 7373
111716 7590 06/02/2017
Fisihman Rr Asisinoiates; T T .P
EXAMINER
3975 University Drive, Suite 400
Fairfax, VA 22030
FRANKLIN, JODI COHEN
ART UNIT PAPER NUMBER
1741
NOTIFICATION DATE DELIVERY MODE
06/02/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
request @ fishmanllc .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JACK B. COOPER
Appeal 2015-004104
Application 12/477,402
Technology Center 1700
Before ROMULO H. DELMENDO, GEORGE C. BEST, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1—5 and 7— 11.3 We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 In this decision, we refer to the Final Office Action mailed September 27,
2013 (“Final Act.”), the Appeal Brief filed September 26, 2014 (“Br.”), and
the Examiner’s Answer mailed December 18, 2014 (“Ans.”).
2 Appellant identifies the real party in interest as Jack Cooper. Br. 1.
3 A hearing scheduled for May 25, 2017, was waived on April 26, 2017.
Appeal 2015-004104
Application 12/477,402
Claim 1, reproduced below with key limitations emphasized, is
illustrative of the claims on appeal.
1. A method of infusing tobacco fill material contained within
the interior of a cigar with a flavorant and/or aromatic
material to alter the taste and/or aroma of said cigar, said cigar
having an elongated cigar puller contained in the tobacco fill
material during manufacturing, and which remains therein
after manufacturing, said elongated cigar puller extending
into said tobacco fill material from one end of said cigar, and
not extending the full length of said cigar, comprising;
removing said cigar puller from said cigar to form a channel
of less dense tobacco fill material in said cigar, and
subsequent to removing said puller adding a flavorant and/or
aromatic material to said channel such that said flavorant
and/or aromatic contacts the tobacco fill material.
Br. 11 (Claims Appendix).
REJECTIONS ON APPEAL
The Examiner maintains the following rejections:
Rejection 1: Claims 1—5, 7, 8, and 10 stand rejected under 35 U.S.C.
§ 103(a) as obvious over Bums (US 1,778,482, issued October 14, 1930)
(hereinafter “Bums”), Grzonka et al. (US 2004/0182405 Al, published
September 23, 2004) (hereinafter “Grzonka”) and Sinclair, JR.
(US 2002/0166561 Al, published November 14, 2002) (hereinafter
“Sinclair”) and further in view of Sielck et al. (US 4,733,674, issued
March 29, 1988) (“hereinafter “Sielck”).
Rejection 2: Claim 9 stands rejected under 35 U.S.C. § 103(a) as
obvious over Bums in view of Grzonka, Sinclair, and Sielck, and further in
view of D’Angelo (US 6,053,175, issued April 25, 2000) (hereinafter
“D’Angelo”).
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Appeal 2015-004104
Application 12/477,402
Rejection 3: Claim 11 stands rejected under 35 U.S.C. § 103(a) as
obvious over Bums in view of Grzonka, Sinclair, and Sielck, and further in
view of Shapiro (US 2,333,049, issued October 26, 1943) (hereinafter
“Shapiro”).
DISCUSSION
We focus on the claim 1, the sole independent claim before us, in
deciding this appeal.
The Examiner finds that Bums teaches a method of making cigars by
rolling the cigar around a thin piece of wood (elongated cigar puller), and
removing the wood before the cigar is consumed to provide a better draft
through the cigar. Final Act. 2—3, citing Bums 1:1—50. The Examiner
acknowledges that Bums teaches the puller extending through the entire
length of the cigar to provide ventilation. Id. at 3; see Bums Figs. 1—2. The
Examiner relies on Sielck for disclosing “that a bore partially extending
through the cigar, but not the entire way there through, still provides an
added ventilation benefit[,] as desired by Bums.” Ans. 7. The Examiner
then determines that one of ordinary skill in the art would have been
motivated, based on Sielck, “to modify the method of Bums to have the
puller extend partially through the cigar in order to achieve the same desired
result of providing ventilation.” Final Act. 3.
Appellant argues that Sielck discloses a punch device that punches the
end of the cigar, not a pulling device contained within the cigar, to provide
ventilation. Br. 6. Thus, Appellant contends that one of ordinary skill in the
art would not have had a reason based on Sielck to modify the pulling device
in Bums to not extend the full length of the cigar. See id.
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Appeal 2015-004104
Application 12/477,402
Appellant’s argument is persuasive of reversible error in the
Examiner’s rejection of claim 1. Sielck discloses a cigar ventilating device
to form a hole in the end of a cigar, without producing any unpleasant loose
tobacco, to facilitate a smooth and easy draw of smoke from the cigar.
Sielck 1:4—11. The Examiner has not identified a sufficient reason
supported by any disclosure in Sielck for why a person of ordinary skill in
the art, at the time of the invention, would have modified the length of
Bums’ puller device to extend less than the full length of the cigar. Thus,
we cannot sustain the Examiner’s obviousness rejection of claims 1—5, 7, 8,
and 10.
Because the Examiner’s rejections all rely on the basic combination of
Bums in view of Grzonka, Sinclair, and Sielck, we cannot sustain any of the
stated rejections.
DECISION
For the above reasons, the Examiner’s rejections of claims 1—5 and 7—
11 are reversed.
REVERSED
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