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 .
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 should read “said plurality of suspended scent production elements each having a fourth scent production member releasably secured thereto” for consistency in reference to the feature.
Appropriate correction is required.
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 1 and 3-6 are rejected under 35 U.S.C. 103 as being unpatentable over Carter (US 2008/0066379) in view of Burgeson (US 2021/0187145) in view of Grant (GB 201220876).
Regarding claim 1, Carter (US 2008/0066379) discloses –
A scent producing ornamental device that is operable to provide an olfactory experience being configured with a plurality of scent production members (Title, Abstract) wherein the scent producing ornamental device comprises:
a body (Figs. 1-4, apparatus 10),
said body having a frame (pot-shaped main body 12; par. 15),
said body further having a central void (cavity 23),
said central void having at least one decorative element secured therein (artificial plant 22; par. 21),
said body configured to be suspendedly mounted to a support structure (the pot 12 is suspended from hanging structures 18) and
said body of the scent producing ornamental device is annular in shape (the open end portion 24 is annular in shape, and therefore at least part of the body is annular in shape; end cap body 14 is also annular in shape at the lip and further reads on this limitation);
a first scent production member (scent-emitting article 16; par. 16),
said first scent production member being secured to said frame of said body (see fig. 2),
said first scent production member having a body (the scent article 16 has a body that is for example a sponge or the like, par. 16) and
a suspended scent production element (handle 84 being connected to can-shaped body 72 – the suspended scent production element disclosed in the specification which is understood to correspond to lower ornamental ornaments 16 is merely a decorative connecting element, the handle reading on a mere connecting member for holding another scent production member),
said scent production element each being suspendedly mounted to a lower half of said frame of said body (par. 23, the handle 84 is, in use, attached to the hook 20 in a suspended manner),
said suspended scent production element having a fourth scent production member releasably secured thereto (figs. 3-4, scented liquid refill apparatus 70; par. 22),
said fourth scent production member being configured to emit a fragrance different from said first scent production member and from said second scent production member (the liquid refill apparatus 70 is well capable of emitting a fragrance by for example removing the cap 82, see MPEP 2114, II).
Regarding the limitation that the fourth scent production member is configured to emit a fragrance different than said first and second scent production members: Apparatus claims cover what a device is, not what a device does and a claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim (see MPEP 2114, II). The liquid refill apparatus 70 is well capable of containing a fragrance that is different than a first or second fragrance of first and second fragrance emitting members, and is expected to do so. The fragrance is not positively recited by the claim, and the function does not modify the structure of the claimed element to exclude the watering can shaped body 72 of Carter, and therefore all the limitations are met.
Carter appears to be silent with regards to the first scent production member having a body with an interior volume and a cap, a second scent production member, and a plurality of suspended scent production elements.
Regarding more specifically the limitation directed towards the inclusion of a second scent production member: It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Carter such that there are multiple scent production members to arrive at the claimed invention. One would have been motivated to do so as this modification is merely a duplication of parts, and a mere duplication of parts has no patentable significance unless a new and unexpected result is produced, MPEP 2144.04(VI)(B). No new, unexpected, or unpredictable result would be achieved through the inclusion of multiple scent emitting members.
Regarding the limitation that the first and second scent members respectively have a body with an interior volume with a cap member that can emit gas: Burgeson (US 2021/0187145) discloses a suspended fragrance member including a scent production member (Fig. 1B scent device 100) with a body (container 102) an interior volume (Fig. 1B shows fill material inside a void space of the body of container 102), and a cap (106) configured to emit a gas therethrough (pars. 24 and 28; Fig. 1A vents 109a-d allow for scent to be emitted). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Carter such that the first and second scent production members respectively include a body with an interior volume with a cap member that can emit gas as disclosed by Burgeson to arrive at the claimed invention. One would have been motivated to do so to protect and provide structure for the scent emitting member and to avoid displacement and spills of the scent emitting material to arrive at an improved scent emitting device. Regarding the limitations that the first scent production member receives and retains a volatile material or oil and the second scent production member receives and retains scented beads with a fragrance different than the first: Apparatus claims cover what a device is, not what a device does and a claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim (see MPEP 2114, II). The scent production member 100 disclosed by Burgeson is well capable of receiving both a volatile liquid or oil and scented beads as claimed and is expected to do so, and the function does not modify the claimed bodies of the members to be structurally distinct from the body of the scent production member disclosed in the prior art. The liquid and beads are themselves not positively recited as being part of the claimed invention, and the members are only configured to receive them. Therefore, all the limitations of the claim are met.
Regarding the limitation directed towards the device including a plurality of suspended scent production elements: Grant (GB 201220876) discloses an ornamental scent production device (abstract) where the body includes a plurality of suspended scent production elements (Figs. 2, 4-5 plaything 18 containing fragrance; p. 8 last par. – p. 9 par. 1). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Carter such that there are a plurality of suspended scent production elements as disclosed by Grant to arrive at the claimed invention. One would have been motivated to do so for enhanced variety in the decorative effect of the decorative device, and furthermore as this modification is merely a duplication of parts, a mere duplication of parts has no patentable significance unless a new and unexpected result is produced, MPEP 2144.04(VI)(B).
Regarding claim 3, modified Carter is set forth with regards to claim 1 above and further teaches the fourth scent production member is an impregnated fabric (See Grant, Figs. 2, 4-5 plaything 18 containing fragrance; p. 8 last par. – p. 9 par. 1, and the plaything as well as the stuffing 18 is made from a fabric, p. 3 last par. – p. 4 par. 1 “polyester”).
Regarding claim 4, modified Carter is set forth with regards to claim 3 above and further teaches a scent production member that includes a body (Figs. 1A-B of Burgeson teach a container 102 and cap 106) having a releasably secured cartridge containing a scent emitting compound (pars. 31-32 discloses the fill material 118 is replaceable and therefore removable) but appears to be silent with regards to a third scent production member.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Carter such that there is a third scent production member to arrive at the claimed invention. One would have been motivated to do so as this modification is merely a duplication of parts, a mere duplication of parts has no patentable significance unless a new and unexpected result is produced, MPEP 2144.04(VI)(B). There is no new or unexpected result that would be achieved from another scent member, particularly in view of Grant who shows 4 distinct scent members (see fig. 1).
Regarding claim 5, modified Carter is set forth with regards to claim 4 above and further teaches said third scent production member further includes a cap member having a plurality of apertures wherein said cap member of said third scent production member is releasably secured to said body of said third scent production member (Fig. 1B cap 106, par. 32 of Burgeson).
Regarding claim 6, modified Carter is set forth with regards to claim 5 above and further teaches the scent producing ornamental device is a dreamcatcher (Grant discloses a mobile, and a dreamcatcher requires no structure that distinguishes it from a mobile as disclosed in grant, and the designation as a dreamcatcher is one merely of aesthetics). However, should it be found that modified Carter fails to teach this limitation with sufficient specificity: It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Carter such that it is a dreamcatcher to arrive at the claimed invention. One would have been motivated to do so as a matter of aesthetic preference, and the courts have found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art, see MPEP 2144.04(I). There is no mechanical function of a dreamcatcher and it is merely ornamental, and therefore the modification of Carter to read on this limitation is one of mere aesthetic preference which is within the skill of an ordinary artisan to pick and choose a design of choice in that regard.
Response to Arguments
Applicant’s arguments with respect to claims 1 and 3-6 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
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/BRENDAN A HENSEL/Examiner, Art Unit 1758