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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 9/15/2020 has been entered.
Notice to Applicant
Claims 1-20 have been examined in this application. This communication is a non-final rejection in response to the “Amendments to the claims” and “Remarks” filed 9/15/2020.
Claim Rejections - 35 USC § 103
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.
Claims 1-7, 12-15, and 17-19 are rejected under 35 USC 103 as being unpatentable over US Patent Application Number 2019/0183110 by Donoho in view of US Patent Application Number 2005/0186237 by Day and “Bird Repellent Scare Tape” by Amazon.com (hereafter referred to as Amazon).
Regarding claim 1, Donoho discloses a device for deterring birds, the device comprising a container having an openable lid (se Figure 4), the container configured to retain an odor-releasing composition, and evaporate a bird-deterring odor from the odor-releasing composition in an amount sufficient to repel ambient birds, while the odor-releasing composition remain within the container (paragraph 44 discloses “FIG. 4 depicts passive evaporator 400 comprising a cartridge 420 containing MA that evaporates into the air without using external heat, external agitation, and/or external pressure”).
Donoho does not disclose a collection of discrete light reflective flakes that remain within the container. However, this limitation is taught by Savage and Amazon. Savage discloses the use of visual cues in addition to repellents in order to repel birds (see paragraphs 8 and 11), and Amazon suggests that bright reflections alarms birds of danger and scares them away (see bullet point 3 of the description). It would be obvious to a person having ordinary skill in the art to modify Donoho using the teachings from Day and Amazon in order to provide additional ways to repel birds.
Regarding claims 2 (dependent on claim 1) and 14 (dependent on claim 13), Amazon further teaches at least some of the reflective flakes have a length to thickness aspect ratio of at least 5. The images show the diamond patterns on the tape having a length to thickness aspect ratio of at least 5.
Regarding claim 3 (dependent on claim 1), Amazon further teaches at least some of the light reflective flakes have at least one substantially flat plane. The tape forms a substantially flat plane.
Regarding claim 4 (dependent on claim 1)¸ Donoho, Day, and Amazon do not disclose at least some of the light reflective flakes reflect at least 60% of ambient ultraviolet light and at least 60% of ambient visible light based upon an area under the curve measurement. However, Amazon discloses the use of reflective flakes 16, and Day suggests “A further analysis was completed to determine the spectral reflectance profiles for each of the samples” (paragraph 155). It would have been obvious to one having ordinary skill in the art at the time the invention was made to determine the optimal reflectance profiles for the materials for deterrence of animals, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claims 5 (dependent on claim 1) and 17 (dependent on claim 13), Amazon further teaches at least some of the light reflective flakes have a reflective substance. The description discloses “The diamond pattern design produces bright reflections”.
Regarding claims 6 (dependent on claim 5) and 18 (dependent on claim 17), Donoho, Day, and Amazon do not disclose the reflective substance being selected from the group consisting of Mylar or other shiny plastic, metallic aluminum, or a dielectric mirror substance. However, the product description of Amazon discloses “The tape creates a metallic noise as it flaps in the wind”. It would have been obvious to one having ordinary skill in the art at the time the invention was made to make the tape out of a metallic substance such as aluminum in order to produce the metallic noise, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331.
Regarding claims 7 (dependent on claim 1) and 19 (dependent on claim 13), Donoho discloses the odor being selected from at least one of the group consisting of peppermint and citronella, grape, and lemon. Paragraph 4 discloses “a method of preparing MA, a common odor masking substance, as it has a pleasant grape taste that is often used in both foods and perfumes. Alternatively, Paragraph 9 of Day further teaches “d-Pulegone is a volatile compound (a type of peppermint) and acts as a primary repellent for birds via both volatile cues (odor) and by direct contact (taste)”.
Regarding claim 12 (dependent on claim 1), Amazon further teaches at least some of the light reflective flakes being disposed onto a tape. The name of the product discloses “Bird Repellent Scare Tape”.
Regarding claim 13, Donoho discloses a method of deterring birds, comprising:
Disposing an odor-releasing composition selected to release an odor that is deterrent to the animal in a retaining device having an openable lid (see Figure 4);
Wherein the container and the openable lid are configured to allow evaporation of the deterrent odor in an amount sufficient to repel ambient birds, while the light odor-releasing composition remain within the container (paragraph 44 discloses “FIG. 4 depicts passive evaporator 400 comprising a cartridge 420 containing MA that evaporates into the air without using external heat, external agitation, and/or external pressure”).
Donoho does not disclose light reflectors having a length to thickness aspect ratio of at least 5 that remain within the container. However, this limitation is taught by Savage and Amazon. Savage discloses the use of visual cues in addition to repellents in order to repel birds (see paragraphs 8 and 11), and Amazon suggests that bright reflections alarms birds of danger and scares them away (see bullet point 3 of the description) and that have a length to thickness ratio of at least 5 (see the images). It would be obvious to a person having ordinary skill in the art to modify Donoho using the teachings from Day and Amazon in order to provide additional ways to repel birds.
Donoho, Day, and Amazon do not disclose the light reflectors configured to reflect at least 60% of ambient ultraviolet light. However, Amazon suggests the use of reflective flakes 16, and Day suggests “A further analysis was completed to determine the spectral reflectance profiles for each of the samples” (paragraph 155). It would have been obvious to one having ordinary skill in the art at the time the invention was made to determine the optimal reflectance profiles for the materials for deterrence of animals, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 15 (dependent on claim 13), Donoho discloses the retaining device comprising a gel. Paragraph 46 discloses “cartridge 420 can be an MA impregnated gel”.
Claims 8-11 and 16 are rejected under 35 USC 103 as being unpatentable over US Patent Application Number 2019/0183110 by Donoho in view of US Patent Application Number 2005/0186237 by Day and “Bird Repellent Scare Tape” by Amazon.com (hereafter referred to as Amazon), in further view of US Patent Application Number 2017/0209613 by Westphal.
Regarding claim 8 (dependent on claim 1), Donoho, Day, and Amazon do not disclose the collection of the light reflective flakes being housed within a dish. However, this limitation is taught by Westphal. Westphal discloses a dish 126 for holding a volatile substance. It would be obvious to a person having ordinary skill in the art to modify Donoho, Day, and Amazon using the teachings from Westphal to store and disperse the volatile substances taught by Day and Amazon.
Regarding claim 9 (dependent on claim 1), Donoho as modified by Day, Amazon, and Westphal teaches a gel inside of the dish, wherein each of the odor-releasing composition and the collection of light reflective flakes is disposed within the gel. Paragraph 46 of Donoho discloses “cartridge 420 can be an MA impregnated gel”, Amazon provides a teaching to add a plurality of reflective flakes 16 as a further repellent, and Westphal provides a teaching for a dish to contain the gel.
Regarding claim 10 (dependent on claim 9), Westphal further teaches the dish having a cover that transmits at least 60% of ambient ultraviolet and at least 60% of ambient visible light, and is permeable to the odor. Paragraph 46 discloses “the membrane 124 is configured to allow diffusion of the volatile material 134 into the ambient air” and “the membrane 124 may be clear to allow for visibility of the volatile material 134 contained within the blister 118”.
Regarding claim 11 (dependent on claim 10), Westphal further teaches the cover having at least one hole configured to release the odor. Paragraph 60 discloses “the dispenser housing 304 includes primary vent openings 306 and a backup vent opening 308”.
Regarding claim 16 (dependent on claim 13), Westphal further teaches a dish (cup-shaped structure 126) having a cover (membrane 124).
Claim 20 is rejected under 35 USC 103 as being unpatentable over US Patent Application Number 2019/0183110 by Donoho in view of US Patent Application Number 2005/0186237 by Day and “Bird Repellent Scare Tape” by Amazon.com (hereafter referred to as Amazon), in further view of US Patent Application Number 2015/0158634 by Arce.
Regarding claim 20 (dependent on claim 13), Donoho does not disclose coupling an adhesive to an underside of the retaining device. However, this limitation is taught by Arce. Arce discloses a container 100 having an adhesive layer 103 joined to the bottom surface 101. It would be obvious to a person having ordinary skill in the art to modify Day using the teachings from Arce in order to mount the repellent wherever was desired.
Response to Arguments
Applicant's arguments filed 9/15/2020 have been fully considered but they are moot in view of the prior art by Donoho.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL H WANG whose telephone number is (571)272-6554. The examiner can normally be reached on 10-6:30.
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MICHAEL H. WANG
Primary Examiner
Art Unit 3642
/MICHAEL H WANG/Primary Examiner, Art Unit 3642