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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10/14/2025 has been entered.
Response to Amendment
All outstanding rejections, except for those maintained below, are withdrawn in light of applicant’s amendment filed on 10/14/2025.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior office action.
Claim Objections
Claim 1 is objected to because in line 6, the phrase “using a recommendation engine recommend” should include the term “to” and read as --using a recommendation engine to recommend--.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
Claims 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Henrick (AU 2007242916) in view of Brunt (US 7,054,794), Hesse (US 7,258,922) and Miller (US 8,361,542).
With respect to claims 1-11, Henrick discloses a method of coloring landscaping material comprising the step of applying to landscaping material a composition comprising water and colorant (abstract). In a preferred embodiment, the composition includes 1-25 wt % colorant, 5-20 wt % copolymer, 1-25 wt % stabilizer, 30-90 wt % water (non-coloring agent) (page 4, lines 19-24), and 0.001-5 wt % biocide (i.e., disinfectant) (page 7, lines 23-24). The “coloring agent” of claim 1 includes a dye but also can include a colorant composition such as a paint or a stain. See claim 10. Therefore, the claimed “colorant” can include a mixture of Henrick’s colorant, copolymer, stabilizer which provides for an amount of claimed “colorant” of 7-70 wt %. Also, while Henrick discloses amounts in wt % and not volume % like claimed, it is the examiner’s position that wt % is a close approximation to vol % when assuming that the density of each component is about 1 g/cc. Henrick teaches obtaining a water solution and a colorant dispersion and then mixing the two (page 9, lines 1-10) which are inherently added in a first and second inlet, respectively, because they are added separately. The mixed composition can be mixed in a concrete agitator (i.e., revolving tub mixer as color mixer) and sprayed (page 3, lines 27-28). Henrick also discloses using fan forced air (i.e., blowing) is used to speed up the drying process (page 4, lines 4-5).
Henrick fails to disclose (i) with sufficient specificity so as to anticipate the color agent composition and water in amounts 30-70 vol % and 30-70 vol %, respectively, (ii) uploading a landscape image, using an image processor to scan the image, and using a recommendation engine to recommend a color combination, (iii) adding a fragrance, or (iv) connecting a storage container to the sprayer.
With respect to (i), even so, it would have been obvious to one of ordinary skill in the art to utilize any of the suitable claimed amounts taught by Hesse, including those overlapping with the claimed ranges. It is well settled that where the prior art describes the components of a claimed compound or compositions in concentrations within or overlapping the claimed concentrations a prima facie case of obviousness is established. See In re Harris, 409 F.3d 1339, 1343, 74 USPQ2d 1951, 1953 (Fed. Cir 2005); In re Peterson, 315 F.3d 1325, 1329, 65 USPQ 2d 1379, 1382 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578 16 USPQ2d 1934, 1936-37 (CCPA 1990); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974).
Therefore, it would have been obvious to one of ordinary skill in the art to utilize amounts of coloring agent and water of 42-58 vol % and 42.58 vol %, respectively.
With respect to (ii), Brunt discloses a method producing a color recommendation for a painted article comprising matching the structure image to an archetype image and then identifying a color scheme with a computer (abstract; col. 4, lines 38-55), wherein the archetype image can be any pre-selected image such as claimed landscaping materials. It is the examiner’s position that such capturing and identifying steps are well known across both indoor and outdoor spaces and specific objects therein.
Given that Henrick teaches coloring a landscaping material and further given that selecting the color to use can be automated from an image as taught by Brunt, it would have been obvious to one of ordinary skill in the art to utilize a system aid taught by Brunt in the process of coloring a landscape as taught by Henrick.
With respect to (iii), Hesse discloses compositions for enhancing landscaping (col. 4, lines 17-37) comprising a treatment agent such as a colorant (col. 6, lines 56-65) and a fragrance to impart a pleasant scent (col. 7, lines 43-54).
Given that both Henrick and Hesse are drawn to coloring landscaping material and further given that a suitable additive includes a fragrance as taught by Hesse, it would have been obvious to one of ordinary skill in the art add a fragrance to Henrick’s method of coloring landscaping material.
Regarding the amount of fragrance, Hesse teaches that an effective amount of fragrance is added to enhance the aroma (col. 9, lines 13-15). Therefore, the amount of fragrance is a result effective variable because changing it will clearly affect the type of product obtained. See MPEP § 2144.05 (B). Case law holds that “discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.” See In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
In view of this, it would have been obvious to one of ordinary skill in the art to utilize appropriate and effective amounts of fragrance including those within the scope of the present claims so as to produce desired end results.
With respect to (iv), Miller discloses applying colorant to a landscaping material (abstract) and teaches that the colorant and non-coloring agent (i.e., water) are mixed and put in a back-pack sprayer which has a storage tank (col. 8, lines 46-52).
Given that Henrick teaches adding ingredients and mixing in a concrete agitator and then spraying, it would have been obvious to one of ordinary skill in the art to transfer the mixture from the concrete agitator to the storage tank that is connected to the sprayer taught by Miller.
With respect to claims 12-14, Henrick teaches that the composition maybe be applied by any convenient process such as spraying (page 3, lines 27-28) and is therefore suitable for the claimed sprayers.
Claims 15 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Henrick (AU 2007242916) in view of Brunt (US 7,054,794) and Miller (US 8,361,542).
Henrick discloses a method of coloring landscaping material comprising the step of applying to landscaping material a composition comprising water and colorant (abstract). In a preferred embodiment, the composition includes 1-25 wt % colorant, 5-20 wt % copolymer, 1-25 wt % stabilizer, 30-90 wt % water (non-coloring agent) (page 4, lines 19-24), and 0.001-5 wt % biocide (i.e., disinfectant) (page 7, lines 23-24). The “coloring agent” of claim 1 includes a dye but also can include a colorant composition such as a paint or a stain. See claim 10. Therefore, the claimed “colorant” can include a mixture of Henrick’s colorant, copolymer, stabilizer which provides for an amount of claimed “colorant” of 7-70 wt %. Also, while Henrick discloses amounts in wt % and not volume % like claimed, it is the examiner’s position that wt % is a close approximation to vol % when assuming that the density of each component is about 1 g/cc. Henrick teaches obtaining a water solution and a colorant dispersion and then mixing the two (page 9, lines 1-10) which are inherently added in a first and second inlet, respectively, because they are added separately. The mixed composition can be mixed in a concrete agitator (i.e., revolving tub mixer as color mixer) and sprayed (page 3, lines 27-28). Henrick also discloses using fan forced air (i.e., blowing) is used to speed up the drying process (page 4, lines 4-5).
Henrick fails to disclose (i) with sufficient specificity so as to anticipate the color agent composition and water in amounts 30-70 vol % and 30-70 vol %, respectively, (ii) uploading a landscape image, using an image processor to scan the image, and using a recommendation engine to recommend a color combination, or (iii) connecting a storage container to the sprayer.
With respect to (i), Henrick fails to disclose a single embodiment a composition comprising 42-58 vol % coloring agent composition and 42-58 vol % water.
Even so, it would have been obvious to one of ordinary skill in the art to utilize any of the suitable claimed amounts taught by Hesse, including those overlapping with the claimed ranges. It is well settled that where the prior art describes the components of a claimed compound or compositions in concentrations within or overlapping the claimed concentrations a prima facie case of obviousness is established. See In re Harris, 409 F.3d 1339, 1343, 74 USPQ2d 1951, 1953 (Fed. Cir 2005); In re Peterson, 315 F.3d 1325, 1329, 65 USPQ 2d 1379, 1382 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578 16 USPQ2d 1934, 1936-37 (CCPA 1990); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974).
With respect to (ii), Brunt discloses a method producing a color recommendation for a painted article comprising matching the structure image to an archetype image and then identifying a color scheme with a computer (abstract; col. 4, lines 38-55), wherein the archetype image can be any pre-selected image such as claimed landscaping materials. It is the examiner’s position that such capturing and identifying steps are well known across both indoor and outdoor spaces and specific objects therein.
Given that Henrick teaches coloring a landscaping material and further given that selecting the color to use can be automated from an image as taught by Brunt, it would have been obvious to one of ordinary skill in the art to utilize a system aid taught by Brunt in the process of coloring a landscape as taught by Henrick.
With respect to (iii), Miller discloses applying colorant to a landscaping material (abstract) and teaches that the colorant and non-coloring agent (i.e., water) are mixed and put in a back-pack sprayer which has a storage tank (col. 8, lines 46-52).
Given that Henrick teaches adding ingredients and mixing in a concrete agitator and then spraying, it would have been obvious to one of ordinary skill in the art to transfer the mixture from the concrete agitator to a the storage tank that is connected to the sprayer taught by Miller.
Claims 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Henrick (AU 2007242916) in view of Brunt (US 7,054,794) and Miller (US 8,361,542) and further in view of Hesse (US 7,258,922).
The discussion with respect to Henrick, Brunt, and Miller in paragraph 7 above is incorporated here by reference.
Henrick fails to disclose the addition of a fragrance.
Hesse discloses compositions for enhancing landscaping (col. 4, lines 17-37) comprising a treatment agent such as a colorant (col. 6, lines 56-65) and a fragrance to impart a pleasant scent (col. 7, lines 43-54).
Given that both Henrick and Hesse are drawn to coloring landscaping material and further given that a suitable additive includes a fragrance as taught by Hesse, it would have been obvious to one of ordinary skill in the art add a fragrance to Henrick’s method of coloring landscaping material.
Regarding the amount of fragrance, Hesse teaches that an effective amount of fragrance is added to enhance the aroma (col. 9, lines 13-15). Therefore, the amount of fragrance is a result effective variable because changing it will clearly affect the type of product obtained. See MPEP § 2144.05 (B). Case law holds that “discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.” See In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
In view of this, it would have been obvious to one of ordinary skill in the art to utilize appropriate and effective amounts of fragrance including those within the scope of the present claims so as to produce desired end results.
Response to Arguments
Applicant's arguments filed 10/14/2025 have been fully considered but they are moot in view of new grounds of rejection forth above in view of Brunt (US 7,054,794) set forth above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VICKEY NERANGIS whose telephone number is (571)272-2701. The examiner can normally be reached 8:30 am - 5:00 pm EST, Monday - Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Del Sole can be reached at (571)272-1130. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/VICKEY NERANGIS/Primary Examiner, Art Unit 1763
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