Appeal No. 2002-0663 Page 2
Application No. 09/504,963
Walters et al. (Walters) 4,851,214 Jul. 25, 1989
Eigen et al. (Eigen) 5,676,937 Oct. 14, 1997
European Patent Application
Kuhns 0 288 633 Nov. 2, 1988
Belle-Aire1, “New Fragrance Material for Personal Care Products,” DCI, pp.
48-49 (1996)
GROUNDS OF REJECTION
Claims 1-4 and 6-8 stand rejected under 35 U.S.C. § 103 as obvious over
Walters, Belle-Aire and Kuhns.
Claim 5 stands rejected under 35 U.S.C. § 103 as obvious over Walters,
Belle-Aire and Kuhns further in view of Eigen.
We reverse.
CLAIM CONSTRUCTION
The composition of claim 1 is identified as an “odor-eliminating
air-freshener.” We recognize the arguments of record relating to whether the
deodorants taught by the prior art relied upon by the examiner are “equivalent” to
an “odor-eliminating air-freshener.” For example, appellant argues (Brief, page
6), Walters “cannot render obvious the present claims because the reference is
directed to a different field of endeavor.” As we understand the claimed
invention, the preamble of claim 1 which refers to an “odor-eliminating
air-freshener” is simply the intended use of the claimed composition. As set forth
in In re Zierden, 411 F.2d 1325, 1329, 162 USPQ 102, 104 (CCPA 1969):
1 We note the examiner identifies this reference as Belle-Aire in his listing of “Prior Art of Record.”
Answer, pages 2-3. However, both the examiner and appellants also refer to this reference as
“DCI.” See, e.g., Answer, page 11 and Brief, page 7. For consistency we refer to this reference
as “Belle-Aire.”
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