DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
This is the response to amendment filed 09/03/2025 for application 17/400692.
Claims 1-2, 4, and 6-10 are currently pending and have been fully considered.
Claims 3, 5, and 11 have been cancelled.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-2, 4, 6-10 are rejected under 35 U.S.C. 103 as being unpatentable over FERGUSON (U.S. 6555069) in view of WOOLLARD (U.S. 3790332) and PENKE (U.S. 2974509).
It is stressed that the court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (Claim was directed to an advertising display device comprising a bottle and a hollow member in the shape of a human figure from the waist up which was adapted to fit over and cover the neck of the bottle, wherein the hollow member and the bottle together give the impression of a human body. Appellant argued that certain limitations in the upper part of the body, including the arrangement of the arms, were not taught by the prior art).
The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.). But see Ex parte Hilton, 148 USPQ 356 (Bd. App. 1965).
Regarding claims 1 and 10, FERGUSON teaches an oil lamp 5 (container) that comprises a container 10 and a diffuser 30, a wick 50 and an outer cover 40. (ln 24- 50 of column 3 and claim 1 of FERGUSON)
The container 10 that comprises a mixture of fuel oil and fragrance (an internal compartment that is configured to receive an oil). The wick extends through the wick holder 55 on the outer cover 40. (open end of the container) The container comprises a bottom and the bottom would be considered closed. (closed end of the container) (Fig 2, and ln 39-50 of column 3)
Fuel oil and fragrance are drawn up through a fiber wick 50. A top end 60 of the wick 50 extends through a wick holder 55 on the top cover. (second end remain outside of the container with an exposed end of the wick) The other end of the wick is in the mixture of fuel oil and fragrance 100. (first end configured to be inserted into the internal compartment and to be submerged in the fuel oil and fragrance) (Fig 2, and ln 39-50 of column 3)
FERGUSON teaches preferred materials for components of the oil lamp 5 include glass.
WOOLLARD is relied on to teach that a glass tube that holds the wick.
WOOLLARD teaches a liquid candle that comprises a wick holder. The wick holder comprises a float 3 and an upstanding tubular portion 4 for holding a wick 5. The wick 5 protrudes the tubular portion 4. (ln 60-67 of column 4 and ln 1-9 of column 5 of WOOLLARD)
The wick holder may be made of glass. (ln 39-56 of column 4 of WOOLLARD)
The wick holder in WOOLLARD is taught to be made of non-flammable material, designed such to prevent ignition of the combustible liquid during use. (ln 39-56 of column 4 and ln 41-47 of column 1 of WOOLLARD)
It would be obvious to one of ordinary skill in the art to add a wick holder made of glass such as the one taught in WOOLLARD and place it inside container 10 of FERGUSON.
The motivation for adding the wick holder made of glass would be for greater accessibility, for pulling more wick through the tubular portion to restore normal burning characteristics. (ln 30-50 of column 5 of WOOLLARD)
PENKE is relied on to teach a design feature that comprises a flower design that is placed above and/or around the open end of the container.
The flower design simulates a rose with a plurality of petals surrounding a cylinder mold. (ln 20-55 of column 1 of PENKE)
It would be obvious to one of ordinary skill in the art by placing this rose with a plurality of petals on and/or over the top of the outer cover 40 of FERGUSON.
Placing a rose over the top of the outer cover 40 would lead one of ordinary skill in the art to expect an opening with 2 ends such that it may go over the topof the outer cover.
FERGUSON recognizes that the oil lamp may be decorated with the container having a decorative look. (ln 24-35 of column 3 of FERGUSON)
A flower design simulating a rose such as the one taught in PENKE would be an obvious decorative look that may be added to the oil lamp in FERGUSON.
The wick holder made of glass added to the oil lamp of FERGUSON would be expected to comprise ends that extend pass the flower design given that the wick holder is meant to allow for greater accessibility, for pulling more wick through the tubular portion to restore normal burning characteristics. (ln 30-50 of column 5 of WOOLLARD)
Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time of the invention.
Regarding claim 2, PENKE teaches the petals may be made of wax. (ln 20-59 of column 1 of PENKE)
Regarding claim 4, the open end 60 of the wick in FERGUSON extends through a wick holder 55 on the top cover and the petals are on and/or around top cover. The open end 60 of the wick furthermore may be pulled upward past the petals if desired.
Regarding claims 6 and 7, FERGUSON teaches fuel oil (lamp oil) and fragrance.
Regarding claim 8, WOOLLARD teaches that the wick holder may be used as a screw cap for a container of liquid, cap 3 comprises an internal screw thread with which a plug or like seal may be inserted to seal off the tubular portion 4 to prevent spills and access of atmospheric air. (ln 3-24 of column 5 of WOOLLARD)
The plug or like seal may be construed as a cork that is configured to seal the container.
Regarding claim 9, given that the plug or like seal is meant to be inserted into tubular portion and the wick is in tubular portion 4, it appears obvious to one of ordinary skill in the art that the plug or like seal would have accommodate the presence of the wick, providing space that may be construed as a passageway for the wick.
Claim(s) 1-2, 4, 6-10 are rejected under 35 U.S.C. 103 as being unpatentable over BUREAU et al. (US 5669767) as evidenced by LEVINE (D 291255).
Regarding claim 1, BUREAU et al. teach in column 2 and Fig 1 and Fig 3 an oil lamp.
The oil lamp comprises a glass bottle 3. The glass bottle 3 is filled with oil or liquid paraffin. A glass bottle would be expected to have an open end to allow filling the glass bottle with oil or liquid paraffin and a closed end to hold the oil or liquid paraffin in the glass bottle. (a. a container having an internal compartment configured to receive an oil, wherein said container has an open end and a closed end)
A wick 25 is present with one upper end 23 and a bottom end. A wick supporting tube 21 is placed on the lip of the glass bottle so that the upper end projects out of the glass supporting tube 21 and the other end of wick 25 is at the bottom of the glass bottle, and thus submerged in the oil or liquid paraffin. (b. a wick having a first end and a second end, wherein the first end of the wick is configured to be inserted into the internal compartment and to be submerged in the oil, thereby providing a submerged end of the wick, and further wherein the second end of the wick is configured to remain outside of the container, thereby providing an exposed end of the wick, wherein a portion of the wick is surrounded by a glass tube)
It would be obvious to one of ordinary skill in the art to add any ornamental design to the oil lamp that is taught in BUREAU et al.
For example, LEVINE teaches a design for an ornamental oil lamp wick holder.
One design that LEVINE teaches is taught in Fig 1.
An oil lamp wick holder in the shape of a flower with multiple petals is placed into a bottle with the wick passing through the center of the oil lamp wick holder.
Placing an ornamental design element that is unaffected by burning the wick of the oil lamp, with open ends such that it may be placed over the wick supporting tube 21, in LEVINE would be well within one of ordinary skill in the art.
(c. a design feature positioned above the open end of the container, wherein the design feature comprises a first open end and a second open end, wherein the design feature comprises a flower design that is larger than the open end of the container, wherein the flower design comprises a plurality of petals, wherein the glass tube and the second end of the wick extend between the plurality of petals, wherein the glass tube extends through the first open end of the design feature and the second open end of the design feature, wherein the wick is operable to draw the oil from the submerged end of the wick to the exposed end of the wick, wherein at least a portion of the exposed end is configured to be ignited with a flame.)
It is stressed that the court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (Claim was directed to an advertising display device comprising a bottle and a hollow member in the shape of a human figure from the waist up which was adapted to fit over and cover the neck of the bottle, wherein the hollow member and the bottle together give the impression of a human body. Appellant argued that certain limitations in the upper part of the body, including the arrangement of the arms, were not taught by the prior art).
The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.). But see Ex parte Hilton, 148 USPQ 356 (Bd. App. 1965)
Regarding claim 10, it would be obvious to one of ordinary skill in the art to add any ornamental design to the oil lamp that is taught in BUREAU et al.
For example, LEVINE teaches a design for an ornamental oil lamp wick holder.
One design that LEVINE teaches is taught in Fig 1.
An oil lamp wick holder in the shape of a flower with multiple petals is placed into a bottle with the wick passing through the center of the oil lamp wick holder.
Regarding claim 2, placing an ornamental design element as a wax rose would be well within one of ordinary skill in the art especially when it is unaffected by the burning of the candle product.
It is stressed that the court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (Claim was directed to an advertising display device comprising a bottle and a hollow member in the shape of a human figure from the waist up which was adapted to fit over and cover the neck of the bottle, wherein the hollow member and the bottle together give the impression of a human body. Appellant argued that certain limitations in the upper part of the body, including the arrangement of the arms, were not taught by the prior art).
The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.). But see Ex parte Hilton, 148 USPQ 356 (Bd. App. 1965)
The use of wax for ornamental design is well known to one of ordinary skill in the art.
Furthermore, given that the design feature is for providing an ornamental design that is unaffected by burning the candle product, the choice of wax as material for the design feature appears to be a matter of design choice.
Regarding claim 4, at least one end of the wick would be expected to be outside an ornamental design to allow lighting of the wick.
Regarding claims 6 and 7, BUREAU et al. teach in column 1 that the oil lamp may hold oil (lamp oil) and teach in column 2 that the oil may be scented (perfume).
Regarding claims 8 and 9, BUREAU et al. teach in column 2 a device 10 (cork) is a ring shaped element that sits between the inside of the glass bottle 3 and the outside air.
The device 10 is sized and shaped to receive the wick supporting tube 21. (passageway configured to receive the wick)
Response to Arguments
Applicant's arguments filed 09/03/2025 have been fully considered but they are not persuasive.
Applicant argues that the claims have been amended to state that the design feature has 2 open ends and that the glass tube extends past both ends.
PENKE teaches a wax rose being placed around a candle for decorative purposes.
A wax rose would be expected to have 2 ends to allow for placing over a candle.
The glass tube would also be expected to comprise ends that extend pass a design element since the glass tube holds the wick which must be accessible from the outside and be in contact with the lamp oil or fragrances inside the container.
It is stressed that the court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (Claim was directed to an advertising display device comprising a bottle and a hollow member in the shape of a human figure from the waist up which was adapted to fit over and cover the neck of the bottle, wherein the hollow member and the bottle together give the impression of a human body. Appellant argued that certain limitations in the upper part of the body, including the arrangement of the arms, were not taught by the prior art).
The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.). But see Ex parte Hilton, 148 USPQ 356 (Bd. App. 1965)
A design element in the form of a rose that is placed over the top of a container and around a wick holding tube does not have a mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
HYUN (KR200238695Y1) teaches an apparatus for holding fragrance.
HYUN teaches a vase 2 that comprises the fragrance. A stem 11 transports fragrance up. HYUN further teaches a flower 13 that sits on top of the vase 2 with the stem being inserted into the vase 2 through the use of a stopper 3. An insertion hole penetrates the center such that the fragrance transmits through the stem to the outside. HYUN teaches that the flower comprises a plurality of petals.
RIVARD (USPGPUB 2006/0024629) teaches a liquid fuel candle.
The liquid fuel candle is taught to comprise a wax body, a hollowed core, a base defining a reservoir for storage of liquid fuel attached to one end of the wax body, and a wick threaded through hollowed core and communicating at one end with the liquid fuel and the other end with an insulator.
CAP et al. (U.S. 9400103) teach a refillable liquid candle that comprises a liquid fuel.
PATTERSON (USPGPUB 2012/0171631) teaches a cologne and perfume candle system that comprises a scented candle that comprises a jar, a scented oil and a wick.
HUANG (U.S. 6399028) teaches an ignitable beehive type wick end in an aromatic oil lamp.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MING CHEUNG PO whose telephone number is (571)270-5552. The examiner can normally be reached M-F 10-6.
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/MING CHEUNG PO/ Examiner, Art Unit 1771
/ELLEN M MCAVOY/ Primary Examiner, Art Unit 1771