Ex Parte Roumpos

Board of Patent Appeals and Interferences

Feb 27, 2006

09876606 (B.P.A.I. Feb. 27, 2006)

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written for publication and is not binding precedent of the Board.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 DENO N. ROUMPOS
_____________
Appeal No. 2006-0596
Application No. 09/876,606
______________
ON BRIEF
_______________
Before KIMLIN, KRATZ and JEFFREY T. SMITH, Administrative Patent
Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-3, 6,
7, 9-11, 13-15, 17-21, 24-27, 29, 30 and 37-43. Claim 16 stands
objected to by the examiner. Claim 1 is illustrative.
1. A scent dispersion system, comprising:
a heating device having a top surface;
a container of scented wax disposed upon the top
surface of the heating device, whereby, upon heating, scent
from the wax is caused to disperse into a surrounding
environment; and
Appeal No. 2006-0596
Application No. 09/876,606
The examiner has withdrawn the rejections under 35 U.S.C. §1
112, first and second paragraphs (see page 13 of answer under
Issue 1).
2
a light source, associated with the heating device and
being configured to simulate light from a burning candle.
The examiner relies upon the following references as
evidence of obviousness:
Andeweg 3,890,085 Jun. 17, 1975
Turro 3,959,642 May 25, 1976
Lee 6,102,660 Aug. 15, 2000
Nacouzi 6,354,710 Mar. 12, 2002
Barnhart 6,413,476 Jul. 2, 2002
Appellant’s claimed invention is directed to a system for
dispersing scent comprising a container of scented wax disposed
on the top surface of the heating device and a light source that
is configured to simulate light from a burning candle. Scent is
dispersed from the wax when it is heated.
The appealed claims stand rejected under 35 U.S.C. § 103(a)
as follows:1
(a) claims 1, 2, 7, 9-11, 19-21, 38, 39 and 43 over
Barnhart in view of Andeweg,
(b) claim 3 over Barnhart in view of Andeweg and
Nacouzi,
(c) claim 40 over Barnhart in view of Andeweg, Nacouzi
and Turro,
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Application No. 09/876,606
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(d) claims 13, 14, 24, 25 and 42 over Barnhart in view
of Nacouzi and Turro,
(e) claims 15, 17 and 18 over Barnhart in view of
Nacouzi, Turro and Lee,
(f) claims 26, 27, 29, 30 and 41 over Barnhart in view
of Andeweg and Nacouzi,
(g) claim 37 over Barnhart in view of Lee,
(h) claim 6 over Barnhart in view of Lee,
(i) claim 37 over Lee in view of Barnhart, and
(j) claim 6 over Lee in view of Barnhart.
We have thoroughly reviewed each of appellant’s arguments
for patentability. However, we find that the examiner has made
out a prima facie case of obviousness for the claimed subject
matter. Accordingly, we will sustain the examiner’s rejections
for essentially those reasons expressed in the answer, and we add
the following primarily for emphasis.
We consider first the rejection of claims 1, 2, 7, 9-11, 19-
21, 38, 39 and 43 over Barnhart in view of Andeweg. There is no
dispute that Barnhart, like appellant, discloses a scent
dispersion system comprising a container of scented wax disposed
on the top surface of the heating device whereby a scent or aroma
is dispersed into the surrounding area. As recognized by the
Appeal No. 2006-0596
Application No. 09/876,606
4
examiner, “Barnhart fails to disclose a light source associated
with the heating device to simulate a burning candle” (sentence
bridging pages 4 and 5 of answer). However, we agree with the
examiner that Andeweg evidences that it was known in the art to
employ a light source with a candle structure for the purpose of
enhancing the aesthetic appearance of the candle. Accordingly,
we find no error in the examiner’s legal conclusion that it would
have been obvious for one of ordinary skill in the art to modify
the device of Barnhart by including a light source which
essentially simulates the light from a burning candle.
Appellant contends that “none of these references teaches a
light source configured to simulate light from a burning candle”
(page 20 of brief, second paragraph). According to appellant,
“Andeweg teaches a flashing light, but that is not the same
thing)” Id. However, we concur with the examiner that Andeweg’s
teaching that the light source may produce flashing or otherwise
varied lighting meets the requirement of simulating light from a
burning candle, particularly with respect to the broad degree
claimed. In our view, the flashing light of Andeweg is
substantially the same as the flickering light of a burning
candle, and to the extent that it can be argued that there is
some distinction between the two, we are satisfied that Andeweg’s
Appeal No. 2006-0596
Application No. 09/876,606
5
teaching of flashing or otherwise varied lighting would have
suggested a flickering type of light associated with a candle
structure (see column 1 of Andeweg, line 20 et seq.)
Turning to the rejection of claim 13 over Barnhart in view
of Nacouzi and Turro, we agree with the examiner that Nacouzi
establishes the obviousness of varying the temperature of the
heating device, and that it would have been obvious for one of
ordinary skill to adjust the height of the base in relationship
to the height of the container of scented wax in accordance with
personal aesthetic taste. While appellant maintains that the
claimed relationship between the height of the base and height of
the container of wax “is not merely a matter of design choice, as
it goes to giving the impression of visual emphasis on the
container,” (page 21 of brief, second paragraph), such a visual
impression is the essence of design choice.
Regarding the rejection of clams 26, 27, 29, 30 and 41 over
Barnhard in view of Andeweg and Nacouzi, we agree with the
examiner that Andeweg teaches the claimed substantially
transparent container for the wax. Also, the examiner properly
points out that “Nacouzi discloses maintaining an aromatic wax
Appeal No. 2006-0596
Application No. 09/876,606
6
(figure 1, 22) including the lateral sides and the top visually
exposed to an observer of the heating source (figure 1, 24)”
(page 10 of answer, last full sentence).
Regarding claim 37 which requires an air circulating fan
that is movable with respect to the heating device for
circulating the scent, we concur with the examiner that Lee
establishes the obviousness of modifying the air circulating fan
21 of Barnhart so that it be moveable. We note that appellant’s
argument at page 24 of the brief does not address the fan of
Barnhart.
As a final point, we note that appellant bases no arguments
upon objective evidence of non-obviousness, such as unexpected
results, which would serve to rebut the inference of obviousness
established by the applied prior art.
In conclusion, based on the foregoing and the reasons well-
stated by the examiner, the examiner’s decision rejecting the
appealed claims is affirmed.
Appeal No. 2006-0596
Application No. 09/876,606
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a)(1)(iv).
AFFIRMED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
PETER F. KRATZ )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JEFFREY T. SMITH )
Administrative Patent Judge )
ECK:hh
Appeal No. 2006-0596
Application No. 09/876,606
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