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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 20 January 2026 has been entered.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 6-7, 9, 15 and 19-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nakamura (JP H09276386 with reliance upon the English-language machine translation).
In regard to claim 1, Nakamura discloses a device for diffusing volatile substances (liquid fragrance sustained-release apparatus 1) comprising a container (inverted container 2) containing a liquid (liquid A) with volatile substances (see pages 5-6), the container including a mouthpiece (mouth portion 2a), the mouthpiece including a cap (lower cap 7) provided with a hole (circular hole 7a) for the liquid to come out of the container; a base (pedestal 5 and cover 6), the base being a hollow body provided with at least one side hole (window holes 6a); a wick (volatilization body 3), the wick being housed within and fixed inside the hollow body of the base (as the cover 6 on the pedestal 5 makes the body 3 contained within the formed hollow body); and the base being removably connected to the container (concave portion 6b of cover 6 is sized to accommodate the mouth 2a and lower cap 7) with the base being located around the mouthpiece of the container and the cap being in contact with and joined to the wick (convex supply member 10 of the cap 7 touches the body 3) with the wick being impregnated with the liquid as the liquid comes out of the hole of the cap whereby the wick impregnated with the liquid diffuses the volatile substances through the at least one side hole of the hollow body of the base, and the base capable of being disconnected from the container without a user contacting the impregnated wick as the impregnated wick is housed within and fixed inside the hollow body of the base. See Figures 1-2 and page 3-6 of the machine translation.
In regard to claim 6, Nakamura discloses wherein the mouthpiece (mouth 2a) of the container (inverted container 2) comprises a dosing pad (convex supply member 10) to control a dosage of the liquid contained in the container to the wick (volatilization body 3). See Figure 2 and page 3 of the machine translation.
In regard to claim 7, Nakamura discloses wherein the cap (lower cap 7) is placed around the outside of the mouthpiece (mouth 2a) of the container (inverted container 2). See Figure 2.
In regard to claim 9, Nakamura discloses wherein, in a position of use of the device, the mouthpiece (mouth 2a) of the container (inverted container 2) is positioned at a lower end of the container. See Figures 1-2.
In regard to claim 15, Nakamura discloses wherein the container (inverted container 2) is placed at a lower end of the container onto the base (pedestal 5 and cover 6) with the mouthpiece (mouth 2a) of the container being positioned at the lower end of the container and being supported on the base. See Figures 1-2.
In regard to claim 19, Nakamura discloses wherein the device can be used to dispense volatile liquid fragrances. See the abstract and figures 5-6. While Nakamura does not explicitly disclose wherein the device is an air freshener with the volatile substances being for perfuming an environment, it is held that the limitation does not further limit the structure of the apparatus as the limitation merely regards the intended use of the apparatus as an air freshener. The Courts have held that a statement of intended use in an apparatus claim fails to distinguish over a prior art apparatus. See In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962). The Courts have held that apparatus claims must be structurally distinguishable from the prior art in terms of structure, not function. See In re Danley, 120 USPQ 528, 531 (CCPA 1959); and Hewlett-Packard Co. V. Bausch and Lomb, Inc., 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (see MPEP §§ 2114 and 2173.05(g)).
In regard to claim 20, Nakamura discloses wherein the device can be used to dispense volatile liquid fragrances. See the abstract and figures 5-6. While Nakamura does not explicitly disclose wherein the device is an insecticide with the volatile substances being for use against insects, it is held that the limitation does not further limit the structure of the apparatus as the limitation merely regards the intended use of the apparatus as an “insecticide.” The Courts have held that a statement of intended use in an apparatus claim fails to distinguish over a prior art apparatus. See In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962). The Courts have held that apparatus claims must be structurally distinguishable from the prior art in terms of structure, not function. See In re Danley, 120 USPQ 528, 531 (CCPA 1959); and Hewlett-Packard Co. V. Bausch and Lomb, Inc., 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (see MPEP §§ 2114 and 2173.05(g)). It is further noted that Nakamura discloses that the dispensed fragrance can be the well-known natural insecticide of citronellol. See page 5 of the machine translation.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 5, 8 and 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Nakamura as applied to claim 1 above, and further in view of Joshi et al. (US 2011/0303760; hereinafter “Joshi”).
In regard to claim 5, Nakamura is silent in regard to a membrane that allows air to escape from the container but prevents liquid from escaping. However, Nakamura does disclose a functionally similar structure in the combination of the pipe 4 and the movable plug 11 which is disclosed to keep atmospheric pressure in the container constant while also preventing liquid from escaping as that is the definition of “plug.” See Figure 2 and page 3 of the machine translation.
Joshi discloses a device for diffusing volatiles substances wherein the container comprises a membrane (108c) that allows air to escape from the container, but prevents the liquid contained in the container from escaping. See [0035] and Figure 4.
It would have been obvious to one of ordinary skill in the art before the effective filing date to have substituted the membrane of Joshi for the tube and movable plug structure of the device of Nakamura as the structures are functionally equivalent and such a modification would not result in any new or unexpected results. The simple substitution of one known element for another is likely to be obvious when predictable results are achieved. See KSR International Co. v. Teleflex Inc., 550 U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, B.).
In regard to claims 8 and 10-11, it is noted that the above combination of Nakamura and Joshi would necessarily result in wherein the membrane is located at an end of the container opposite from the mouthpiece of the container as Nakamura discloses that the tube 4 and movable plug is located at the end of the container opposite from the mouthpiece and the upper end of the container when in use and Joshi discloses that the membrane is also similarly located. See Figure 2 of Nakamura and Figure 4 of Joshi.
Response to Arguments
Applicant’s arguments with respect to the claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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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/TIMOTHY C CLEVELAND/Primary Examiner, Art Unit 1774