Ex Parte Ruiz Ballesteros et al

Patent Trial and Appeal Board

Dec 11, 2012

11117176 (P.T.A.B. Dec. 11, 2012)

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.
11/117,176 04/28/2005 Julio Cesar Ruiz Ballesteros P/4043-182 5957
2352 7590 12/12/2012
OSTROLENK FABER LLP
1180 AVENUE OF THE AMERICAS
NEW YORK, NY 10036-8403
EXAMINER
PAIK, SANG YEOP
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
12/12/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JULIO CESAR RUIZ BALLESTEROS, JOSE ANTONIO
MUNOZ MARTINEZ, CEDRIC MORHAIN, RUBEN GARCIA
FABREGA, JORDI FARRE ALBALADEJO, and ANDREA CASERTA
____________

Appeal 2010-009923
Application 11/117,176
Technology Center 3700
____________

Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
MICHAEL L. HOELTER, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-009923
Application 11/117,176

2
STATEMENT OF THE CASE
Julio Cesar Ruiz Ballesteros et al. (Appellants) appeal under 35
U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1, 2, 4, 5,
7, 9-12, 14, 15, and 17-19. Claims 6, 13, and 20 have been canceled.1 We
have jurisdiction over this appeal under 35 U.S.C. § 6.

THE INVENTION
Appellants’ invention relates to a “vaporizer device of multi-fragrance
volatile substances” that “emit[s] several fragrances sequentially or
simultaneously by manual actuation or according to an established
program.” Spec. 1, ll. 7-10 and fig. 1.
Claim 1 is illustrative of the claimed invention and reads as follows:
1. - Vaporizer device of multi-fragrance volatile substances, of the
type of those which are connected to the electric mains by means of a
plug (1), of those which incorporate two or more liquid fragrances in
which respective wicks (2) are immersed and have two or more
resistance elements (3) located in correspondence with the wicks (2)
which when actuated, by means of a manual pushbutton (4) or
automatically in accordance with a pre-established program, diffuse
the fragrances in a sequential or combined manner during
predetermined intervals of time through a casing (5), wherein it
incorporates a single container (6) which comprises:
- a body (7) equipped with two or more independent receptacles
(8) which hold the different fragrances,
- two or more wicks (2), each one housed in a receptacle (8),
- a lid (9) which seals the body (7) and renders the receptacles
(8) independent which comes with openings (10) in correspondence

1 Claims 3, 8, and 16 are objected to by the Examiner as being
dependent upon a rejected base claim and otherwise indicated as being
allowable if rewritten in independent form including all of the limitations of
the base claim and any intervening claim. Final Rejection at 5, mailed May
1, 2009.
Appeal 2010-009923
Application 11/117,176

3
with the positions of the wicks (2) for the egress and vaporization of
the fragrance by actuation of the respective resistance elements (3)
located in opposition to said openings (10), and
- a seal (11) which covers the openings (10) in the non-
operative situation of the vaporizer device,
wherein, inside the casing (5) a printed circuit board (20) is
mounted which incorporates the resistance elements (3) and a
programmable controller which controls the sequence of actuation of
the resistance elements (3);
and wherein container (6) has a housing (25) which holds an
encoded board (26) which contains vaporization parameters
associated with the combination of fragrances of the container, and
the printed circuit board (20) has a detector (27) in correspondence
with the encoded board (26) which reads said parameters and
transmits them to the controller to trigger the vaporization of
fragrances in accordance with said parameters.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Gould US 3,974,472 Aug. 10, 1976
Holzner US 4,634,614 Jan. 6, 1987
Kadwell US 4,782,215 Nov. 1, 1988
Rosenbrock US 5,197,375 Mar. 30, 1993
Okuno US 6,145,241 Nov. 14, 2000
Kvietok US 2004/0033171 A1 Feb. 19, 2004
Zobele US 2004/0076410 A1 Apr. 22, 2004
Pankhurst US 2005/0001337 A1 Jan. 6, 2005
Harwig US 6,909,840 B2 Jun. 21, 2005
Huffington US 7,069,090 B2 Jun. 27, 2006

The following rejections are before us for review:
The Examiner rejected claims 1, 2, 4, 5, 9, 11, 14, 15, 17, and
18 under 35 U.S.C. § 103(a) as unpatentable over Okuno or Zobele,
Pankhurst or Kvietok, and Huffington or Gould.
Appeal 2010-009923
Application 11/117,176

4
The Examiner rejected claim 7 under 35 U.S.C. § 103(a) as
unpatentable over Okuno or Zobele, Pankhurst, Kvietok, Huffington,
Gould, and Rosenbrock or Kadwell.
The Examiner rejected claims 10 and 19 under 35 U.S.C.
§ 103(a) as unpatentable over Okuno or Zobele, Pankhurst, Kvietok,
Huffington, Gould, and Holzner.
The Examiner rejected claim 12 under 35 U.S.C. § 103(a) as
unpatentable over Okuno or Zobele, Pankhurst, Kvietok, Huffington,
Gould, and Harwig.

SUMMARY OF DECISION
We REVERSE.
ANALYSIS
Claims 1, 2, 4, 5, 9, 11, 14, 15, 17, and 18
Independent claims 1 and 14 require, inter alia, a container including
“a body (7) equipped with two or more independent receptacles (8) which
hold the different fragrances” and a lid (9) that “seals” (as per claim 1) or
“closes” (as per claim 14) “the body (7) and renders the receptacles (8)
independent which comes with openings (10).” App. Br., Claims App’x.
The Examiner found that Okuno discloses a vaporizer including “a
container which contains a fragrant material therein . . . a lid (54), [and] a
seal (55) that covers the opening where a wick is exposed. 2” Ans. 3. The

2 In Okuno, “[t[he insecticidal solution is encapsulated in the chamber
51” and “[t]he chamber 51 is sealed together with the wick 53 by a cover
54.” Okuno, col. 1, ll. 38-41 and fig. 12. Thus, we interpret the Examiner’s
finding of a “container which contains a fragrant material therein” to be
Okuno’s chamber 51.
Appeal 2010-009923
Application 11/117,176

5
Examiner further found that Zobele discloses a vaporizer including “a
container having a body (4) with a receptacle/cavity (7) for containing a
liquid fragrance therein . . . a lid (5) for sealing the body, [and] an opening
(8) for egress and vaporization of the fragrance.” Ans. 3-4. However, the
Examiner found that neither “Okuno nor Zobele shows the container body
having a plurality of receptacles.” Ans. 4. Emphasis added. The Examiner
then found that Pankhurst discloses, “a single container with a plurality of
chambers each containing different fragrances.” Ans. 4; see also Ans. 6
(citing to paragraph [0058] of Pankhurst). The Examiner concluded that
it would have been obvious to one of ordinary skill in the art to
adapt Okuno or Zobele with the container having two or more
independent receptacles each containing different fragrances [as
taught by Pankhurst] and further adapt with a plurality of
heating elements to automatically and sequentially provide the
necessary heat to the individual receptacles [as taught by
Kvietok] to create a more diverse fragrant effects.
Ans. 4-5.3
Appellants argue that the two chambers of Pankhurst’s fragrance
dispenser 12 are formed “by connecting together a flat front sheet 40 with a

3 Although in the heading of this rejection the Examiner indicated that
the teachings of Pankhurst and Kvietok are used in the alternative (see Ans.
3), the Examiner used the teachings of Kvietok to show “that it is known in
the art to provide a vaporizer having a printed circuit board with a controller
in a housing, with a timer, wherein a plurality of independent receptacles is
sequentially and automatically heated with the programmed heaters.” See
Ans. 4. We further note that in the heading of the rejections of dependent
claims 7, 10, 12, and 19 the Examiner does not refer to the teachings of
Pankhurst and Kvietok in the alternative. Thus, as far as we can tell, the
Examiner did not use the teachings of Kvietok, but rather Pankhurst, to show
a container body having a plurality of receptacles. See Ans. 6.
Appeal 2010-009923
Application 11/117,176

6
flat back sheet 31.” App. Br. 94. Thus, according to Appellants, since sheets
31, 40 are flat, Pankhurst “does not disclose a body with receptacles which is
sealed by a lid that renders the receptacles independent.” Id.
At the outset, we note that the claimed container includes a body
having two or more independent receptacles5 and a lid with holes that
seals/covers the body. We agree with the Examiner that Okuno discloses a
container having a body with a receptacle 51 that is sealed/closed by a lid
54. See Okuno, fig. 12. We likewise agree with the Examiner that Zobele
discloses a container having a body 4 with a receptacle 7 that is
sealed/closed by a lid 5. See Zobele, fig. 4.
However, although we appreciate the Examiner’s position that
Pankhurst discloses a fragrance dispenser 12 (i.e., a container) having two
separate chambers, we do not agree that flat sheets 31, 40 of Pankhurst
constitute a container body having two or more independent receptacles and
a lid that seals or covers the container body, respectively, as called for by
independent claims 1 and 14. Since both sheets 31 and 40 are flat, neither
sheet can receive and contain something, i.e., a fragrance. We thus agree
with Appellants that, “neither the front sheet 40 nor the back sheet 31
includes receptacles therein” and as such, “Pankhurst does not include a
[container] body having a number of receptacles.” Reply Br. 2. Moreover,
we note that neither lid 54 of Okuno nor lid 5 of Zobele includes openings,

4 Appeal Brief, filed December 3, 2009.
5 An ordinary and customary meaning of the term “receptacle” that is
most consistent with the Specification and the understanding of those of
ordinary skill in the art is “one that receives and contains something :
CONTAINER.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (10th Ed.
1997).

Appeal 2010-009923
Application 11/117,176

7
as called for by each of independent claims 1 and 14. See, e.g., Figure 12 of
Okuno and Figure 1 of Zobele. Thus, for the foregoing reasons, we agree
with Appellants that the combined teachings of Okuno or Zobele and
Pankhurst fail to disclose “a single container having a body with two or
more receptacles each for a fragrance, and a lid that seals the body and
renders the receptacles independent, the lid having a plurality of openings
each for a wick that is disposed inside a receptacle.” App. Br. 10.
The addition of Kvietok and Huffington or Gould, does not remedy
the deficiencies of Okuno or Zobele and Pankhurst, as described supra.
Accordingly, we cannot sustain the rejection of independent claims 1 and 14,
and their respective dependent claims 2, 4, 5, 9, 11, 15, 17, and 18 under 35
U.S.C. § 103(a) as unpatentable over Okuno or Zobele, Pankhurst or
Kvietok, and Huffington or Gould.

Claims 7, 10, 12, and 19
With respect to the rejections of claim 7; of claims 10 and 19; and of
claim 12, the addition of Rosenbrock or Kadwell; Holzner; and Harwig,
respectively, does not remedy the deficiencies of Okuno or Zobele,
Pankhurst, and Kvietok, as described supra. Accordingly, the rejections of
claims 7, 10, 12, and 19 likewise cannot be sustained.

SUMMARY
The decision of the Examiner to reject claims 1, 2, 4, 5, 7, 9-12, 14,
15, and 17-19 is reversed.

REVERSED
Appeal 2010-009923
Application 11/117,176

8

mls