Ex Parte Hoppe et al

Patent Trial and Appeal Board

Sep 28, 2017

13004978 (P.T.A.B. Sep. 28, 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.
13/004,978 01/12/2011 Christopher S. Hoppe J-5314A 1596
28165 7590
S.C. JOHNSON & SON, INC.
1525 HOWE STREET
RACINE, WI53403-2236
EXAMINER
REIS, RYAN ALEXANDER
ART UNIT PAPER NUMBER
3649
NOTIFICATION DATE DELIVERY MODE
10/02/2017 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):
F074168@scj.com
selechne @ scj. com
mjzolnow @ scj .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER S. HOPPE and JASON L. HALONEN
Appeal 2016-002139
Application 13/004,978
Technology Center 3600
Before PHILIP J. HOFFMANN, CYNTHIA L. MURPHY, and
BRUCE T. WIEDER, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’
rejections of claims 1—20. We have jurisdiction over this appeal under
35 U.S.C. § 6(b).
We REVERSE.
1 “The real party in interest is S.C. Johnson & Son, Inc.” (Appeal Br. 3.)
Appeal 2016-002139
Application 13/004,978
STATEMENT OF THE CASE
The Appellants’ invention pertains “to seals, and more particularly, to
spill and/or leak resistant seals for wicking devices.” (Spec. 12.)
Illustrative Claim
1. A sealing member comprising a body including a plurality
of flaps movable between a first position and a second position,
the flaps in the second position defining an opening through the
body, each flap having a sealing surface configured to receive
and seal against an inserted wick while forming a vent through
the body.
Rejections2
The Examiner rejects claims 1, 5—8, 10, 11, 13—15, 18, and 20 under
35 U.S.C. § 102(b) as anticipated by Maltenfort.3 (Final Action 2.)
The Examiner rejects claims 2-4 and 9 under 35 U.S.C. § 103(a) as
unpatentable over Maltenfort and Rohr.4 (Final Action 5.)
The Examiner rejects claims 12, 16, 17, and 19 under 35 U.S.C.
§ 103(a) as unpatentable over Maltenfort. (Final Action 6.)
ANALYSIS
Claims 1,11, and 20 are the independent claims on appeal, with the
rest of the claims on appeal (i.e., claims 2—10 and 12—19) depending
therefrom. (See Appeal Br., Claims App.) Independent claims 1,11, and 20
recite “a plurality of flaps” that are “movable between a first position and a
second position.” (Id.) The Examiner finds that Maltenfort discloses a
2 The Examiner’s rejection under 35 U.S.C. § 112 (see Final Action 2) has
been withdrawn (see Answer 8).
3 US 3,724,756 issued April 3, 1973.
4 US 5,005,737 issued April 9, 1991.
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Appeal 2016-002139
Application 13/004,978
sealing member having a plurality of flaps as required by independent
claims 1,11, and 20. (See Final Action 3—5.)
Maltenfort discloses a “wick dispenser bottle[]” in which “a wick
dispenses [a vaporizable] liquid by slow diffusion into the surrounding air.”
(Maltenfort, col. 1,11. 6—8.) Maltenfort’s disclosed dispenser comprises an
“insert 12” that is “contained within the neck portion 20 of [a] container 10.”
(Id. at col. 2,11. 49-50, 59-61.) The insert 12 is “cup-shaped” and includes
“a generally cylindrical body portion 14” and “a bottom wall 16.” (Id. at
col. 2,11. 52—56.) As shown in Maltenfort’s Figures 1, 4 and 5, reproduced
below, “[t]he bottom wall 16 of the insert 12 is provided with a transverse
slot indicated generally at 22.” (Id. at col. 3,11. 5—9.)
HO. fi& 5.
The above drawings show that, in Maltenfort’s illustrated embodiment, “the
liquid-swelled wick 24 sealingly engages the walls defining the slot [22]
provided in the bottom wall 16 of the insert 12.” (Id. at col. 4,11. 21—24.)
The above drawings are also consistent with Maltenfort’s disclosure that
“[t]he sizing of the transverse width of the slot 22 in relation to the non-
swollen thickness of the wick 24” is such “so as to just permit threading of
the dry wick through slot 22.” (Id. at col. 3,11. 13—17.)
The Examiner maintains that “Maltenfort show[s] flaps on either side
of the slot 22,” and the Examiner maintains that “the flaps on either side
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Appeal 2016-002139
Application 13/004,978
of 22 of Maltenfort are movable between positions upon a force acting on
the ends closest to 22 which would result in the flaps being deflected inward
or outward.” (Answer 9, emphasis omitted.) Also, according to the
Examiner, “the flaps of Maltenfort would necessarily deflect to some degree
upon fitting the wick element into the slot 22.” (Id.)
The Appellants argue that one of ordinary skill in the art would not
consider Maltenfort’s insert 12 as including “flaps” movable between first
and second positions. (See Appeal Br. 12.) In this regard, the Appellants
provide us with a dictionary definition of the word “flap,” evidencing that
the ordinary and customary meaning of this word is structure that “covers an
opening” and that “is hinged or attached only on one side.” (Id.) The
Appellants’ use of this term in the Specification is consistent with this
definition. (See Spec. Tflf 26—28, Figs. 4—7.)
We are persuaded by the Appellants’ position because we agree that
one of ordinary skill would construe the claim term “flap” as requiring more
than some potentially movable structure adjacent a slot. Insofar as
Maltenfort’s insert 12 includes slot-adjacent structure that is movable, the
Examiner does not sufficiently establish that one of ordinary skill in the art
would consider this structure to be “flaps” movable between a first position
and a second position.
Accordingly, on the record before us, the Examiner does not support
adequately a finding that Maltenfort discloses the “flaps” required by
independent claims 1,11, and 20. As the Examiner’s rejections all rely upon
this inadequately-supported finding (see Final Action 3—8), we do not
sustain the Examiner’s rejections of any of the claims on appeal.
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Application 13/004,978
DECISION
We REVERSE the Examiner’s rejections of claims 1—20 under
35 U.S.C. § 102 and 35 U.S.C. § 103.
REVERSED
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