Ex Parte Pappas

Board of Patent Appeals and Interferences

Jan 3, 2007

09966413 (B.P.A.I. Jan. 3, 2007)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GEORGE G. PAPPAS
____________

Appeal No. 2006-1798
Application No. 09/966,413
Technology Center 3700
____________

ON BRIEF
____________

Before FRANKFORT, CRAWFORD, and LEVY, Administrative Patent Judges.
LEVY, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal from the Examiner’s final rejection of claims 1 and 3-
22. Claims 2, 23 and 24 have been cancelled. Claim 25 has been withdrawn from
consideration (Brief, page 2).

We AFFIRM

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Application No. 09/966,413

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BACKGROUND
Appellant’s invention generally relates to candles, and in particular to a
structure that reduces some fire hazards associated with burning of freestanding
candles (specification, page 3). More specifically, Appellant’s invention describes
a flame-resistant sheet that "is contacted to a fuel-impervious wick support, and
joined to a freestanding candle in proximity to a lower end of a wick"
(specification, page 7).
Claim 1 is representative of the invention and is reproduced as follows:
A freestanding candle, in an operable position having a wick supported by a
fuel body along a longitudinal wick axis and extending upwardly from a top
surface of the fuel body, the candle comprising:

(a) a flame-resistant, substantially flat sheet joined to the bottom
surface of the fuel body in proximity to a lower end of the wick
and extending outwardly at least substantially one inch from the
longitudinal axis of the wick; and

(b) an upright wick support attached to the sheet and holding the lower
end of the wick, the attached support forming a liquid fuel flow
barrier separating the lower end of the wick from the fuel body

wherein the candle is not contained within a container whereby the sheet
prevents the leakage of melted candle wax through the bottom of the candle
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onto a candle support surface.
The prior art reference relied upon by the Examiner in rejecting the appeal claims
is:
Hamblet 2,310,019 Feb. 2, 1943

Gentry 3,317,290 May 2, 1967
Pappas 5,842,850 Dec. 1, 1998

Chambers et al. 5,961,318 Oct. 5, 1999
(Chambers)

Pietruch et al. 6,155,451 Dec. 5, 2000
(Pietruch)

Claims 1, 3-13, 16, 17, and 24 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pappas.
Claims 14, 15, and 18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pappas in view of Gentry.
Claim 19 stands rejected under 35 U.S.C. § 103(a) as being unpatentable
over Pappas in view of Pietruch.
Claims 20 and 21 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pappas in view of Hamblet.
Claim 22 stands rejected under 35 U.S.C. § 103(a) as being unpatentable
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over Pappas in view of Chambers.
Rather than reiterate the conflicting viewpoints advanced by the Examiner and
the Appellant regarding the above-noted rejections, we make reference to the
answer (mailed July 12, 2005) and final rejection (mailed January 24, 2005) for the
Examiner's complete reasoning in support of the rejections, and to the brief (filed
May 4, 2005) and reply brief (filed September 12, 2005) for the Appellant’s
arguments thereagainst.
Only those arguments actually made by Appellant have been considered in this
decision. Arguments which Appellant could have made but chose not to make in
the brief have not been considered. See 37 C.F.R. § 41.37(c) (1)(vii).

OPINION
In reaching our decision in this appeal, we have carefully considered the subject
matter on appeal, the rejections advanced by the Examiner, and the evidence of
obviousness relied upon by the Examiner as support for the rejections. We have,
likewise, reviewed and taken into consideration, in reaching our decision,
Appellant’s arguments set forth in the briefs along with the Examiner’s rationale in
support of the rejections and arguments in rebuttal set forth in the Examiner’s
answer.
We note at the outset that the only claims specifically argued by appellant are
claim 1 (the only independent claim before us on appeal) and dependent claim 4.
accordingly, we select claim 1 as representative of the group, and will separately
address claim 4.
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We begin with the rejection of claims 1, 3-13, 16, 17, and 24 under 35 U.S.C.
§ 103(a) as being unpatentable over Pappas. We turn first to claim 1. We note as
background that in rejecting claims under 35 U.S.C. § 103, it is incumbent upon
the Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed.
Cir. 1988). In so doing, the Examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ
459, 467 (1966), and to provide a reason why one having ordinary skill in the
pertinent art would have been led to modify the prior art or to combine prior art
references to arrive at the claimed invention. Such reason must stem from some
teaching, suggestion or implication in the prior art as a whole or knowledge
generally available to one having ordinary skill in the art. Uniroyal, Inc. v. Rudkin-
Wiley Corp., 837 F.2d 1044, 1051, 5 USPQ2d 1434, 1438 (Fed. Cir. 1988);
Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 293, 227
USPQ 657, 664 (Fed. Cir. 1985); ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732
F.2d 1572, 1577, 221 USPQ 929, 933 (Fed. Cir. 1984). These showings by the
Examiner are an essential part of complying with the burden of presenting a prima
facie case of obviousness. Note In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992). If that burden is met, the burden then shifts to the
applicant to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole. See id.; In
re Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir. 1986); In re
Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984); and In re
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Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976).
The Examiner’s position is that Pappas expressly discloses all of the elements of
claim 1 with the exception of the limitation that the wick support is attached to the
sheet (answer, pages 3-4). With respect to this limitation, the examiner notes that
Figure 13 of Pappas shows the wick support (116) attached to a pedestal (112),
which is not considered part of the plate/sheet (114). The examiner finds (answer,
page 4) that the pedestal functions as one mechanism for raising the wick above the
fuel to starve the candle of fuel and extinguish the flame (col. 4 lines 30-32). The
Examiner notes (answer, page 4) Pappas’ disclosure that the function of raising the
wick above the fuel may also be performed through the use of a taller wick support
(col. 4 lines 2-22 and figures 2-4, 9, and 10). The Examiner considers that a person
of ordinary skill in the art would recognize that the pedestal from Figure 13 could
be eliminated by using a taller wick support. The Examiner states (id.) that when
the pedestal from Figure 13 is replaced with a taller wick support, that the claimed
invention is arrived at because the wick support would then be directly attached to
plate/sheet (114).
Appellant asserts (brief, pages 6 and 7) that the modification presented by the
Examiner would not have been obvious to the skilled worker in light of the Pappas
reference. Rather, Appellant alleges that it is a modification guided by Appellant’s
teachings (id.).
Appellant asserts (brief, page 7) that a person of ordinary skill in the art would
not be motivated to combine the different embodiments of Pappas in the manner
suggested by the Examiner. It is argued that none of the freestanding candle
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embodiments of Pappas have a plate or sheet attached to the bottom of the candle,
except for figures 13 and 14, and that neither of these has a wick support attached
to the plate. It is argued (id.) that there is no reason apparent from Pappas to
remove the pedestal of figure 13 but keep the rest of the plate part 114 and to move
the wick support down and attach it to the plate 114. Appellant adds (brief, page
8) that in figure 13 of Pappas, the pedestal is integral with the plate. It is further
asserted (id.) that
A skilled person who wanted to use a taller wick support instead
of a pedestal would not modify the Fig. 13 structure to do so.
That person would do what the Pappas reference itself shows for
a freestanding candle. That person would do what is shown in
Figs. 9 and 10 of the Pappas reference. No plate would be used
if the tall wick support were used because a plate would not be
needed.

Appellant (brief, page 9) disputes the Examiner's assertion that the plate serves to
prevent fuel from flowing out from under the candle because Pappas discloses that
the plate can be made from a combustible material such as wax. Appellant adds
(id.) that "[o]bviously, if it is wax, it was not intended to prevent molten fuel flow
out from the bottom of the candle." Appellant adds that the unmelted layer
prevents flow out of the bottom. That is why no plate is needed when the high
wick holder is used. Appellant additionally argues (brief, pages 11 and 12) that
the prior art does not motivate attaching a wick support to a plate and attaching that
plate to the bottom of a freestanding candle.
The examiner responds (answer, page 6) that in Pappas, the disclosure that
the sheet or plate may be non-combustable (col. 5, lines 50-51) shows flame
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resistance. The examiner further asserts (answer, page 8) that
Figure 9 of Pappas shows a candle body (80) having a wick
support/sustainer (82) at the base of the candle that is
not shown attached to any pedestal. Pappas makes clear how
this wick support/sustainer (82) is mounted.The sustainer 82
is mounted at the candle floor, which for the candle 80 is the
surface upon which the bottom of the wax fuel of the candle
80 is resting. This surface can be an attached plate, a
container floor, a tray or any horizontal surface. (emphasis
added). (see Pappas, col. 5, lines 11-15). Thus, the attached
plate serves the desirable purpose of supporting the candle
body and serving as a mounting for the wick support. The
examiner considers that a person of ordinary skill in the art
would consider the attached plate mentioned in the above
quote to be the type of plate (114) shown in Figure 13 of
Pappas.

We agree the assertion of appellant (brief, page 8) that
A skilled person who wanted to use a taller wick support instead
of a pedestal would not modify the Fig. 13 structure to do so. That
person would do what the Pappas reference itself shows for a
freestanding candle. That person would do what is shown in Figs. 9
and 10 of the Pappas reference. No plate would be used if the tall
wick support were used because a plate would not be needed.
From appellant's assertion, we look to the disclosure of Pappas for the
description of figures 9 and 10. We find from the disclosure of Pappas that the
freestanding candle of figure 9 has a sustainer (wick holder) 82 mounted at the
candle floor, which for candle 80 is the surface upon which the bottom of the wax
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fuel of the candle is resting. This surface can be an attached plate (col. 5, lines 11-
15). From the disclosure that the wick holder is mounted at the candle floor, which
is the surface upon which the bottom of the candle is resting, we find that the wick
holder is mounted at the surface upon which the candle rests. From the disclosure
that the surface can be an attached plate, we find that the wick holder is mounted to
the attached plate at the bottom of the candle. Thus, we find that the embodiment
of figure 9 of Pappas can include a wick holder mounted at the bottom of the
candle to the plate upon which the candle rests.
In addition, from the disclosure of Pappas that the plate 114 can be non-
combustible, we find that the plate can be flame-resistant. Moreover, we observe
that claim 1 recites the wick support to be attached to the sheet. From the
disclosure of Pappas that the wick supports is mounted at the surface that can be an
attached plate; we find that the description of Pappas meets the claimed "an upright
wick support attached to the sheet (plate)."
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language "[t]he sustainer 82 is mounted at the candle floor" does not say anything
about attachment of the wick support. From the additional disclosure of Pappas
that "which for the candle 80 is the surface upon which the bottom of the wax fuel
of the candle 80 is resting. The surface can be an attached plate," we find that the
wick support is mounted at the surface, which is a plate. Since "mounted at" can
include some form of attachment, such as "to place, fix, or fasten on or in the
proper support, backing, etc. for the required purpose1" we find that the disclosure
of mounting the wick support at the surface would have been suggestive of
attaching the wick support to the surface, to an artisan. Accordingly, we do not
agree with appellant that the above discussed portions of Pappas only recite that
the candle is attached to the plate. Nor are we persuaded by appellant's assertion
(brief, page 7) that "none of the freestanding candle embodiments have a plate or
sheet attached to the bottom of the candle, except figures 13 and 14, as appellant
has stated, reply brief, page 4) that figure 9 of Pappas describes the bottom of the
wax fuel can be attached to a plate.
From all of the above, we hold that the embodiment of figure 9 of Pappas,
including the plate at the bottom of the candle, meets the limitations of claim 1, and
are not convinced of any error on the part of the examiner in rejecting claims 1, 3,
5-13, 16, 17, and 24 under 35 U.S.C. § 103(a) as being unpatentable over Pappas.
Before turning to claim 4, we note that we further sustain the rejection of claims 1,
3, 5-13, 16, 17, and 24 under an additional rationale. Claim 1 uses the transitional

1 Webster's New World Dictionary, © 1972. A copy of the pertinent pages is attached to the
Decision.
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phrase "comprising" which is open-ended. In addition, we note that the claim
language "a wick support attached to the sheet” does not recite that there is a direct
attachment to the sheet by the wick support. As broadly drafted, the claim does not
preclude the wick support from being attached to the sheet through an integral
pedestal. Thus, from this claim construction, we hold that the embodiment of
figure 13 of Pappas meets the language of claim 1, and will also sustain the
rejection of claims 1, 3, 5-13, 16, 17, and 24 for this reason. While this is, in
effect, a holding that claim is anticipated by under 35 U.S.C. ' 102(b), affirmance
of the 35 U.S.C. ' 103 rejection is appropriate, since it is well settled that a
disclosure that anticipates under 35 U.S.C. ' 102 also renders the claim
unpatentable under 35 U.S.C. ' 103, for "anticipation is the epitome of
obviousness." Jones v. Hardy, 727 F.2d 1524, 1529, 220 USPQ 1021, 1025 (Fed.
Cir. 1984). See also In re Fracalossi, 681 F.2d 792, 794, 215 USPQ 569, 571
(CCPA 1982); In re Pearson, 494 F.2d 1399, 1402, 181 USPQ 641, 644 (CCPA
1974).
We turn next to claim 4. This claim is directed to the further limitation that
the flame-resistant sheet has an adhesive backing that bonds to both the wick
support and the bottom surface of the candle. The examiner's position (answer,
pages 9 and 10) is that Pappas discloses the plate 114 as being mounted to the
bottom of the candle and refers to the plate as an attached plate, but does not give
any detail as to the type of mounting or attaching means employed. The examiner
(answer, page 10) relies upon the disclosure of Pappas that the pedestal can be
attached to a container by adhesives.
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Appellant asserts (reply brief, page 6) that the backing sheet is not suggested in
the prior art because placing an adhesive backing on the sheet facilitates
manufacture as there is no separate step of applying the adhesive to the sheet or
candle bottom and holding them together.
From our review of the record, we are in agreement with the examiner that
the disclosure of using adhesives by Pappas would have suggested to an artisan
that the sheet have an adhesive backing. As correctly noted by the examiner,
Pappas is silent as to how the plate can be mounted or attached. From the nature of
the problem to be solved, e.g., attaching a sheet or plate to a surface, and the
disclosure of Pappas of using adhesive to attach the pedestal to a container, we find
that that artisan would have been motivated to use an adhesive backing on the sheet
for attachment to the candle or the candle and wick holder. From all of the above,
we are not persuaded of any error on the part of the examiner in rejecting claim 4
under 35 U.S.C. § 103(a) as being unpatentable over Pappas. The rejection of
claim 4 is sustained.
We turn next to the rejections of claims 14, 15, and 18-22. The examiner
additionally relies upon Gentry, Pietruch, Hamblet, and Chambers in the rejections
of these claims (see final rejection, pages 4-6). From our review of the record, and
the lack of any arguments presented by appellant with respect to these claims, we
sustain the rejections of claims 14, 15, and 18-22 for the reasons advanced by the
examiner in the final rejection.

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CONCLUSION
To summarize, the decision of the examiner to reject claims 1 and 3-22
under 35 U.S.C. § 103(a) is affirmed.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

)
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
MURRIEL E. CRAWFORD ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
STUART S. LEVY )
Administrative Patent Judge )
Appeal No. 2006-1798
Application No. 09/966,413

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FRANK H. FOSTER
KREMBLAS, FOSTER, PHILLIPS & POLLICK
7632 SLATE RIDGE BLVD.
REYNOLDSBURG, OH 43068

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