Ex parte KIEFER et al.

Board of Patent Appeals and Interferences

Jan 30, 1998

08445912 (B.P.A.I. Jan. 30, 1998)

Application for patent filed May 22, 1995. According to1
appellants, the application is a continuation of Application
08/201,523, filed February 25, 1994, abandoned; which is a
continuation of Application 07/953,422, filed September 29, 1992,
now U.S. Patent 5,302,114, issued April 12, 1994; which is a
continuation-in-part of Application 07/785,960, filed October 31,
1991, abandoned.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 18
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte NATALIE R. KIEFER,
FRANCIS T. BARBATO, LARRY HINDERER
and
NEALE A. MESSINA
_____________
Appeal No. 97-2225
Application 08/445,9121
______________
ON BRIEF
_______________
Appeal No. 97-2225
Application 08/445,912
2
Before FRANKFORT, NASE and CRAWFORD, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 23 through 39, which are all of the claims
remaining in this application. Claims 1 through 22 have been
canceled.
Appellants' invention relates to a cooking fuel wick
to be used in a cooking fuel container and burner like that
typically used for providing heat to chafing dishes or buffet
servers. Of particular significance to appellants is the fact
that this wick comprises a pile fabric having a cut or loop pile
that wicks fuel to the upper ends of each pile, and the fact that
the raised pile extends upwardly a distance of about 1mm to 10mm.
Claim 31, the sole independent claim on appeal, is representative
of the subject matter on appeal and reads as follows:
31. A cooking fuel wick for use in a cooling [sic,
cooking] fuel container and burner comprising a pile fabric
having a pile fabric burning surface portion and a fuel feed
portion to deliver fuel to the burning surface portion, said pile
Appeal No. 97-2225
Application 08/445,912
3
fabric having a cut or loop pile that wicks fuel to the upper
ends of said pile, said pile extending upwardly a distance of
about 1mm to 10mm, said fuel feed portion comprising at least one
feed segment adapted to extend into said fuel container whereby
during a burning fuel is delivered to said pile fabric to produce
heat during a period of fuel ignition.
The single prior art reference relied upon by the
examiner in rejecting the appealed claims is:
de la Rosa 4,604,053 Aug. 5, 1986
Claims 23 through 39 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over de la Rosa.
Rather than reiterate the examiner's full statement
of the above-noted rejection and the conflicting viewpoints
advanced by the examiner and appellants regarding the rejection,
we make reference to the examiner's answer (Paper No. 17, mailed
January 16, 1997) for the examiner's complete reasoning in sup-
port of the rejection, and to appellants' brief (Paper No. 16,
filed November 19, 1996) for appellants' arguments thereagainst.
OPINION
Appeal No. 97-2225
Application 08/445,912
4
In reaching our decision in this appeal, we have given
careful consideration to appellants' specification and claims, to
the applied prior art reference, and to the respective positions
articulated by appellants and the examiner. As a consequence of
our review, we have made the determination that the examiner's
rejection of the appealed claims under 35 U.S.C. § 103 is not
well founded and will therefore not be sustained. Our reasoning
in support of this determination follows.
The de la Rosa patent discloses a wick (25) that is
described at column 2, lines 14-16, as "not woven" and as being
in the form of a fiberglass felt. Nothing in de la Rosa teaches
or suggests a cooking fuel wick that comprises a pile fabric like
that defined in appellants' claims on appeal. The examiner's
attempt to selectively modify the fuel cartridge of de la Rosa by
substituting a pile fabric for the wick therein merely by relying
on the knowledge that pile type towels, such as terry cloth
towels, absorb liquid well, is unavailing. It is our view that
in searching for an incentive for modifying the fuel cartridge
of de la Rosa, the examiner has impermissibly drawn from
appellants' own teachings and fallen victim to what our reviewing
Court has called "the insidious effect of a hindsight syndrome
Appeal No. 97-2225
Application 08/445,912
5
wherein that which only the inventor taught is used against
its teacher." W. L. Gore & Associates, Inc. v. Garlock, Inc.,
721 F.2d 1540, 1553, 220 USPQ 303, 313 (Fed. Cir. 1983). Since
we have determined that the examiner's conclusion of obviousness
is based on a hindsight reconstruction using appellants' own
disclosure as a blueprint to arrive at the claimed subject
matter, it follows that we will not sustain the examiner's
rejection of appealed claims 23 through 39 under 35 U.S.C. § 103.
The decision of the examiner to reject claims 23
through 39 under 35 U.S.C. 103 is reversed.
REVERSED
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
MURRIEL E. CRAWFORD )
Appeal No. 97-2225
Application 08/445,912
6
Administrative Patent Judge )
Appeal No. 97-2225
Application 08/445,912
7
Michael J. McGreal
Colgate Palmolive Company
909 River Road
Piscataway, NJ 08855