Ex Parte RoumposDownload PDFBoard of Patent Appeals and InterferencesFeb 27, 200609876606 (B.P.A.I. Feb. 27, 2006) Copy Citation The opinion in support of the decision being entered today was not written for publication and is not binding precedent of the Board.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caused to disperse into a surrounding environment; and Appeal No. 2006-0596 Application No. 09/876,606 The examiner has withdrawn the rejections under 35 U.S.C. §1 112, first and second paragraphs (see page 13 of answer under Issue 1). 2 a light source, associated with the heating device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, Appeal No. 2006-0596 Application No. 09/876,606 3 (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 7 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 8 THORPE NORTH & WESTERN, LLP 8180 SOUTH 700 EAST, STE. 200 SANDY, UT 84070 Copy with citationCopy as parenthetical citation