Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Response to Amendment
Claim amendments filed 31 July 2025 are acknowledged. Claims 1, 3, and 8-9, and 11-18 are pending with claims 2, 4-7, 10, and 19-20 being cancelled.
The 35 U.S.C. 112(b) rejections of claims 7 and 20 have been withdrawn due to the cancellation of said claims.
Response to Arguments
Applicant's arguments filed 08 January 2026 have been fully considered but they are not persuasive.
Applicant argues that Salowitz's teaching of a minimum composition of 67% water precludes it from being used as prior art against the current invention. However, it has already been recognized that the exact solvent proportions of the current invention are not taught by Salowitz alone and have been remedied as 103 combination of Salowitz and Das. Furthermore, while it is true that Salowitz does not show examples of compositions lower than 67% water, no wherein Salowitz is it explicitly taught against lower concentrations of water. Therefore, one of ordinary skill in the art would not immediately dismiss a modification of the composition as taught by Salowitz with lower water concentrations such as those in Das. In fact, Das teaches an increase in water content is undesirable as it increases liquid fallout during application (page 1 line 33), thus motivating one of ordinary skill in the art to lower the water content of the composition. Applicant is reminded that piecemeal interpretation of the references is not a convincing argument and that attacking references individually cannot show non-obviousness. Additionally, as stated in the Final Office Action mailed 03 June 2025 and Non-Final Office Action mailed 18 September 2025, it is well established that merely a difference in concentration is not sufficient to differentiate an invention from prior art.
Applicant argues that because Salowitz identifies acetone as a possible “first organic solvent”, the combination of Salowitz and Das is not viable. However, as identified in the Non-Final Office Action mailed 18 September 2025, the examiner has acknowledged that that Salowitz alone lacks both a first organic solvent as a monohydric alcohol and a second organic solvent as acetone. The combination with Das remedies this deficiency by teaching a compositions that contains both ethanol and acetone. Additionally, the applicant argues that the combination is not viable because Salowitz teaches some embodiments with a 0 wt% of the second organic solvent. While this is true, Salowitz also teaches multiple embodiments that contain both the first organic solvent and second organic solvent and acknowledges the advantage of such a composition as cited in the rejection. To provide further motivation of the combination, please refer to Das which teaches that an air freshener with the identified composition is advantageous as it does not produce significant residue when regularly applied (page 2 lines 25-26).Similar to Salowitz’s teachings on the water content above, while Salowitz teaches an acetone content lower than that required by the current claim set, nothing in Salowitz disparages the use of a higher acetone content. Therefore, one of ordinary skill in the art would not immediately dismiss the potential of using a higher acetone content such as the one taught by Das.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). As seen in the rejection of claim 1, the motivation to combine Salowitz and Das is reached due to teachings pulled directly from both publications.
Finally, the applicant argues that the combination of Salowitz and Das would change the principle of operation of the invention. This argument is not persuasive as both Salowitz and Das teach an air freshener composition capable of use without additional propellants. This places the combination in the same field of use and application as the current invention.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, applicant’s arguments against the deficiencies of Salowitz alone does not preclude the application of Salowitz in combination with additional prior art in a 35 U.S.C. 103 rejection.
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 (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 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.
Claims 1, 3, 8-18 are rejected under 35 U.S.C. 103 as being unpatentable over Salowitz (US 20180207309 A1) in view of Das (GB 2552001 A).
Regarding claim 1, Salowitz teaches a non-aerosol sprayable composition (water-based fragrance composition, abstract) comprising: (a) between 15 wt% and 30 wt% of at least one C1 to C4 monohydric alcohol based on the total weight of the composition (comprise between 10 and 17 wt% of the first organic solvent, paragraph [0011], and first organic solvent may be ethanol or isopropanol, paragraph [0008]); (c) between 0.001 wt.% and 5 wt.% of at least one active constituent, based on the total weight of the composition, wherein the active constituent is selected from the group consisting of fragrances, air-sanitizers, deodorizers, odor eliminators, malodor counteractants, insecticides, insect repellants, medicinal substances, disinfectants, aroma therapy compositions and combinations thereof (composition may be between 0.05 and 3 wt% fragrance, paragraph [0010]), and (d) water (composition is about 67 wt% water, abstract), wherein said composition is free of propellants (only composition components listed are the first and second organic solvents, the fragrance, and water, abstract, additionally no diffusion element such as aerosol actuator is necessary, paragraph [0003]), but does not teach (b) acetone between 25%wt and 50%wt%. However, Das teaches acetone between 25wt% and 50wt% (co-solvent that is 10-30% of the composition, page 3 line 12, and that the co-solvent can be acetone, page 3 line 23).
While Salowitz does not explicitly disclose that the solvent selected from the group described in (a) is at a concentration of between 15 wt% and 30 wt%, the range taught by Salowitz overlaps with the required concentration. There is a prima facie case of obviousness when overlapping ranges exist between an instant applicant and prior art (See MPEP 2144.05 I). Additionally, differences in concentration will not generally support the patentability of subject matter encompassed by cited prior art. Therefore it would have been obvious to one of ordinary skill in the art, through routine optimization, to set the concentration of the solvent in group (a) to between 15 wt% and 30 wt% to achieve a deodorizing composition with the desired stability properties.
Salowitz and Das are considered analogous to the current invention because all are in the field of air fragrance compositions. While Das does not explicitly disclose that the solvent selected from the group described in (b) is at a concentration of between 25 wt% and 50 wt%, the range taught by Das overlaps with the required concentration. There is a prima facie case of obviousness when overlapping ranges exist between an instant applicant and prior art (See MPEP 2144.05 I). Additionally, differences in concentration will not generally support the patentability of subject matter encompassed by cited prior art. Therefore it would have been obvious to one of ordinary skill in the art, through routine optimization, to set the concentration of the solvent in group (b) to between 25 wt% and 50 wt% to achieve a deodorizing composition with the desired stability properties. Finally, would have been obvious to one of ordinary skill in the art to try acetone as taught in Das with the composition taught by Salowitz as Salowitz teaches the requirement of a second organic solvent that would create a volatile water-based fragrance in the form of homogenous liquid (paragraph [0035], Salowitz, and MPEP 2143 II (E)). Additionally, Das teaches acetone as a co-solvent (page 3 line 12) and that a composition containing water, a monohydric alcohol, acetone, and a fragrance additive can advantageously be regularly applied with no residue build up (page 2 lines 25-26).
Regarding claim 3, the combination of Salowitz and Das teaches wherein said at least one C1 to C4 monohydric alcohol is selected from the group consisting of ethanol, isopropyl alcohol, and combinations thereof (first organic solvent may be ethanol or isopropanol or combinations thereof, paragraph [0008], Salowitz).
Regarding claim 8, the combination of Salowitz and Das teaches wherein said at least one active constituent is selected from the group consisting of fragrances, deodorizers, odor eliminators, malodor counteractants, aroma therapy compositions, and combinations thereof (composition contain fragrance formulation, abstract, Salowitz).
Regarding claim 9, the combination of Salowitz and Das teaches wherein said composition comprises between 0.1 wt% and 5 wt% of said at least one active constituent, based on total weight of the composition (composition may be between 0.05 and 3 wt% fragrance, paragraph [0010], Salowitz).
Regarding claim 11, the combination of Salowitz and Das teaches wherein said composition is an air freshener (long lasting scent by delivering droplets of the composition into the air, paragraph [0022], Salowitz).
Regarding claim 12, the combination of Salowitz and Das teaches a device comprising a container (container for volatile material, paragraph [0031], Salowitz) and a non-aerosol, spray generation dispenser (volatile material dispenser that is a sprayer, paragraph [0023], Salowitz), wherein the container contains the composition according to claim 1, and attaches to the non-aerosol, spray generation dispenser (dispenser adapted to accommodate refill container with fragrance composition, paragraph [0031], Salowitz).
Regarding claim 13, the combination of Salowitz and Das teaches all aspects of the current invention as discussed above except an auto-actuatable dispenser. However, Das further teaches an auto-actuatable dispenser (automatic dispensing devices, page 6 lines 10-11).
Salowitz and Das are considered analogous to the current invention because all are in field of fragrance dispensing devices. Therefore, it would have been obvious to one of ordinary skill in the art to further modify the non-aerosol, spray generation dispenser taught by Salowitz and Das with the auto-actuatable dispenser taught by Das because Das teaches the auto dispenser advantageously allows for continued fragrance delivery over an extended period of time (page 6 lines 14-15).
Regarding claim 14, the combination of Salowitz and Das teach all aspects of the current invention including wherein said non-aerosol, spray generation dispenser is automatically actuated every 30 minutes (release fragrance every few minutes, page 6 line 15, Das ).
While Das does not explicitly teach release of the fragrance every 30 minutes, it would have been obvious to one of ordinary skill in the art to set actuation to every 30 minutes through routine optimization to achieve the desired rate of fragrance delivery (MPEP 2144.05 II (A)).
Regarding claim 15, the combination of Salowitz and Das teaches wherein said non-aerosol, spray generating dispenser is manually-actuatable (trigger sprayer, paragraph [0023], Salowitz).
Regarding claim 16, the combination of Salowitz and Das teaches wherein said device is an air-freshening or air-fragrancing device (composition delivered into air by volatile material dispenser, paragraph [0023], Salowitz).
Regarding claim 17, the combination of Salowitz and Das teaches a method for freshening or fragrancing air, the method comprising: dispensing the composition according to claim 1 into air (method of providing scent by providing fragrance composition into the air, paragraph [0022], Salowitz).
Regarding claim 18, the combination of Salowitz and Das teaches wherein said at least one C1 to C4 monohydric alcohol is selected from the group consisting of ethanol, isopropyl alcohol, and combinations thereof (first organic solvent may be ethanol or isopropanol or combinations thereof, paragraph [0008], Salowitz).
Conclusion
THIS ACTION IS MADE FINAL. 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 KAYLA ROSE SARANTAKOS whose telephone number is (703)756-5524. The examiner can normally be reached Mon-Fri 7:00-4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Marcheschi can be reached at (571) 272-1374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/K.R.S./Examiner, Art Unit 1799
/DONALD R SPAMER/Primary Examiner, Art Unit 1799