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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-10, in the reply filed on 20 May 2025 is acknowledged.
Claim Rejections - 35 USC § 102
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 (i.e., changing from AIA to pre-AIA ) 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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 4-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Pohl et al. (US 2010/0247372; hereinafter “Pohl”).
In regard to claim 1, Pohl discloses a system (chemical delivery assembly 10) comprising: a housing (container 16); an exothermic heater pack (heating element 14 which provides an exothermic chemical reaction; [0036]); and a gel carrier infused with an insect repellent (chemical storage device 12 which is a gel that contains insect repellant; [0035]); wherein the housing retains the exothermic heater pack in sufficient proximity to the gel carrier infused with repellent that the repellent volatilizes from the gel carrier. See Figures 1-4 and [0034]-[0037].
In regard to claims 4-6, Pohl discloses wherein the exothermic heater pack contains a composition that produces heat upon exposure to air (“air-activated oxidation reaction”), upon exposure to water (“chemical constituent […] in the form of water”) or when two substances that produce heat are combined (“heating element 14 having chemical constituents that can be caused to react together”). See [0036].
In regard to claims 7-8, Pohl discloses wherein the exothermic heater pack (heating element 14) is integral with the gel carrier (chemical storage device 12) as the components are provided in the same assembly as the broadest reasonable interpretation of the word “integral” includes of the definition of “necessary to make a whole complete; essential or fundamental.” Pohl further discloses wherein the housing (container 16) comprises an upper housing portion (top section 62) and a lower housing portion (bottom section 60) that receives the exothermic heater pack integrated with the gel carrier. See [0037] and Figure 3.
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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Pohl.
In regard to claims 7-8, in case it is viewed that Pohl does not anticipate wherein the exothermic heater pack is integral with the gel carrier, the Courts have held that the use of a one-piece, integrated construction instead of the structure disclosed or taught in the prior art would have been within the ambit of a person of ordinary skill in the art. See In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965) (see MPEP § 2144.04). Therefore, it would have been within the ambit of one of ordinary skill in the art before the effective filing date of the claimed invention to have formed the exothermic heater pack and gel carrier as an integral structure for the purpose of simplifying the assembly of the system and without creating any new or unexpected results.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Pohl in view of Rubel (US 2020/0085033).
In regard to claim 2, Pohl is silent in regard to wherein the insect repellant comprises metofluthrin.
Rubel discloses a lighting element for dispensing insect repellent wherein the insect repelling material is in the form of a gel and contains metofluthrin. See [0042].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used the metofluthrin composition of Rubel as the insect repellent in the system of Pohl as one of ordinary skill would have looked to the prior art to determine an appropriate insect repellant composition.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Pohl in view of Gaugler et al. (US 2016/0242403; hereinafter “Gaugler”).
In regard to claim 3, Pohl is silent in regard to wherein the gel carrier comprises isopropyl myristate.
Gaugler discloses a gel formulation comprising an insecticide which uses isopropyl myristate as a carrier for the active component in a gel formulation. See [0075].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used the gelled isopropyl myristate carrier composition of Gaugler with gelled insect repellent in the system of Pohl for the purpose of providing a carrier for the insect repellant in the gel carrier without creating any new or unexpected results. The combination of familiar elements is likely to be obvious when it does no more than yield predictable results. See KSR International Co. v. Teleflex Inc., 550 U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, A.).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Pohl in view of Crawford, Sr. et al. (US 2020/0048524; hereinafter “Crawford”).
In regard to claim 9, Pohl discloses wherein the upper housing portion (top section 62) opens from the lower housing portion (bottom section 60) to receive the exothermic heater pack (heating element 14) integrated with the gel carrier (chemical storage device 12), and contains a protrusion (raised projections 42) that raise the exothermic heater pack from the bottom wall 38 when the housing (container 16) is closed. See Figures 3-4 and [0038].
Pohl is silent to wherein the protrusion punctures the exothermic heater pack as the raised projections 42 are disclosed to create an airflow path.
Crawford discloses dispensing apparatus which uses exothermic heating elements 9,16. Crawford teaches wherein the heating elements can be activated by having a user squeeze the heating element which in turn ruptures a barrier causing the active components to mix and produce heat. See [0073].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the rupturable exothermic heating elements of Crawford with the exothermic heater pack of Pohl for the purpose of enabling the exothermic heater pack to be activated by squeezing the housing which would necessarily cause the raised elements to puncture the barrier element in the exothermic heating pack to initial the chemical reaction. Applying a known technique to a known device (method or product) ready for improvement to yield predictable results is likely to be obvious. See KSR International Co. v. Teleflex Inc., 550 U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, D.).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Pohl in view of Kvietok et al. (US 2004/0028551; hereinafter “Kvietok”).
In regard to claim 10, Pohl is silent in regard to a color changing heat indicator.
Kvietok discloses device 20 for heating and emitting volatile compositions wherein all or a portion of the housing of the device is made from a plastic that changes color when heated such that the user is made aware that the volatile material is being emitted. See [0050].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the use of color changing plastic of Kvietok with the housing of the system of Pohl for the purpose of providing an indicator that the insect repellant is being dispensed. The combination of familiar elements is likely to be obvious when it does no more than yield predictable results. See KSR International Co. v. Teleflex Inc., 550 U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, A.).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIMOTHY C CLEVELAND whose telephone number is (571)270-5041. The examiner can normally be reached M-F 9:00-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Claire Wang can be reached at (571) 270-1051. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TIMOTHY C CLEVELAND/Primary Examiner, Art Unit 1774