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 .
Claims 1-8,11-16 and 19 are hereby under examination.
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.
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 1, 11-12, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Niedenthal S, Nilsson J, Jernsäther T, Cuartielles D, Larsson M, Olofsson JK. A Method for Computerized Olfactory Assessment and Training Outside of Laboratory or Clinical Settings. Iperception. 2021 Jun 11;12(3):20416695211023953. doi: 10.1177/20416695211023953. PMID: 34178300; PMCID: PMC8202270, hereto referred as Niedenthal, and in view of US20170281819A1 (Jones et. al), hereto referred as Jones, and in view of US20210353206A1 (Villwock et. al), previously cited and hereto referred as Villwock, and in view of Sensonics International, (2015, April 28). Snap and Sniff Olfactory Test System: Threshold Instructional Video. YouTube. www.youtube.com/watch?v=YZ8FiyWOM18, hereto referred as Sensonics.
As to claims 1, 11-12, and 19, Niedenthal teaches an olfactory testing platform, comprising: a kit containing a plurality of scented objects, each of which includes a first indicia that is computer readable (Niedenthal, pg. 5, “adhesive RFID tags”), and a second indicia that is human readable and different than the first indicia (Niedenthal, pg. 5, “preprinted identity number on the vials”), wherein each of the scented objects provides a scent that is different in at least one of an identity of the scent and a strength of the scent than at least one other scented object(Niedenthal, pg. 5, “we have used scent materials from the Le Nez Du Vin”; pg. 1, “a participant trained daily to identify 54 odors”); and a computer application configured to run on a smart device (Niedenthal, pg. 4, “The game software, running on a personal computer”) and to be stored in a non-transitory computer readable medium of the smart device, wherein the computer application is programmed to
identify each scented object in the kit using the first indicia (Niedenthal, pg. 4 -5, “The RFID tags hold a string of data that is read by the RFID reader. Each tag has an individual string that corresponds to the smell of the vial to which it is attached, for example, “apple” and “lilac.””),
wherein the computer application is programmed to prompt a user to smell the scent of the one of the plurality of scented objects, and to prompt the user to select the scent smelled by the user from a list of different scents displayed by the computer application (Niedenthal, pg. 6, Fig. 3, “Interaction flow and board. Users move scents from left to right on the board, choosing from among unsniffed scents on the left (1), sniffing (2), placing scent on the platform reader (3), making a choice on the screen (4), and placing the sniffed scents to the right (5).”),
However, Niedenthal does not necessarily teach in response to presentation of the first indicia of one of the plurality of scented objects to the camera, prompt a user to smell the scented objects that was presented to the camera. Jones teaches a relevant art of dispensing scent (Jones, title). Jones teaches in response to presentation of the first indicia of one of the plurality of scented objects to the camera, prompt a user to smell the scented objects that was presented to the camera (Jones, [0161], “the scent dispenser 132 utilizes a combination of additional software logic and the inclusion of bar and/or detectable objects (e.g., QR codes) on the vials 250”; the examiner interprets dispensing scent as prompting the user to smell the scent). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Niedenthal in view of Jones because Niedenthal already teaches a computer application programmed to prompt a user to smell and a second indicia, and Jones teaches a predictable method of to identify a scented object and prompt the user to smell the object, which increases efficiency, as recognized by Jones (Jones, [0161], “further amplify the efficiency of switching between or to include multiple scents”).
Niedenthal-Jones does not teach a user to select at least two of the plurality of scented objects from the kit. Villwock teaches a relevant art of olfactory diagnosis (Villwock, title). Villwock teaches the computer application is programmed to prompt a user to select at least two of the plurality of scented objects from the kit (Villwock, [0042], "AROMA includes 14 essential oil scents at two concentrations. To complete the AROMA, participants are presented with an inhalant stick in random order and asked to determine if a scent is present or not."), to prompt the user to smell the scent of each of the at least two scented objects, and to prompt the user to discriminate between the at least two scented objects based on strength of the scent using the second indicia (Villowck, [0040], “Subjects were asked to indicate if an odor was present and, if so, to identify it”). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Niedenthal in view of Villwock to include that the computer application is programmed to prompt the user to select at least two of the plurality of scented objects and to discriminate between the at least two of the plurality of scented objects according to a strength of the scent associated with each of the at least two of the plurality of scented objects because Niedenthal already teaches the computer application and using the plurality of scented objects, and Villwock teaches a method of further increasing the versatility of the computer application by also including scents with different strengths and thereby testing olfactory sensitivity (Villwock, [0040]).
Niedenthal-Jones-Villwock almost teaches to prompt a user to select at least two of the plurality of scented objects from the kit using the second indicia because Niedenthal-Jones-Villwock teaches prompting the user to select at least two of the plurality of scented objects and the scented objects have second indicia (Niedenthal, pg. 5, “preprinted identity number on the vials”; Villwock, [0042], “Additionally, the inhalant sticks are only labeled by numbers.”; [0010], “the answer key first prompts a user to use an inhaler… wherein if the answer is no, the user can try another inhaler with a higher dose of the essential oil fragrance”). However, Niedenthal-Jones-Villwock does not explicitly state selecting scented objects from the kit using a second indicia. Sensonics teaches a relevant art of olfactory testing (Sensonics, title). Sensonics teaches (Sensonics, 4:32, "started out at the minus six, which on this equipment is actually six"). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Niedenthal-Jones-Villwock in view of Sensonics to include selecting scented objects from the kit using a second indicia because Niedenthal-Villwock already teaches second indicia on the scented object and prompting the user to select two of scented object, and Sensonics demonstrates a predictable way to use the second indica to select the two scented objects.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Niedenthal-Jones-Villwock-Sensonics as applied to claim 1 above, and further in view of US20100038279A1 (Estep, Brain J.), previously cited and hereto referred as Estep.
Claim 1 is taught as above.
As to claim 2, Niedenthal-Jones-Villwock-Sensonics teaches first indicia and the second indicia on the plurality of scented objects as described above; however, Niedenthal-Jones-Villwock-Sensonics does not teach the first indicia and the second indicia are positioned on opposing sides of each of the plurality of scented objects. Estep teaches a solution to a relevant problem of labeling an object (Estep, abstract). Estep teaches that two indices are positioned on opposing sides (Estep, Fig. 1A-1B). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Niedenthal-Jones-Villwock-Sensonics in view of Estep to include first indicia and the second indicia are positioned on opposing sides of each of the plurality of scented objects, so that the first and second indices can be viewed from different angles, as suggested by Estep.
Claims 3-6, 8, 13-14, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Niedenthal-Jones-Villwock-Sensonics-Estep as applied to claims 2 and 12 above, and further in view of The Masterkit 54 Aromas. Le nez du vin - the MASTERKIT 54 aromas - editions Jean Lenoir. (2021, June 22). web.archive.org/web/20210622232012/https://www.lenez.com/en/kits/wine/masterkit_54, previously cited and hereto referred as Le Nez du Vin.
Claims 2 and 12 is taught as above.
As to claim 3, Niedenthal-Jones-Villwock-Sensonics-Estep does not teach a rack having a plurality of receptacles for receiving the plurality of scented objects and a cover that can be positioned in covering relation to the rack to enclose the plurality of scented objects. Le Nez du Vin teaches a relevant art of scented objects for olfactory training and testing (Le Nez du Vin, “the learning tool for amateur and professional wine lovers”). Le Nez du Vin teaches a rack having a plurality of receptacles for receiving the plurality of scented objects and a cover that can be positioned in covering relation to the rack to enclose the plurality of scented objects (the examiner notes, the box containing the fragrance vials are interpreted as the rack, and the enclosure that is placed on top of it to close the box is interpreted as the cover). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Niedenthal-Jones-Villwock-Sensonics-Estep in view Le Nez du Vin to include the rack having a plurality of receptacles for receiving the plurality of scented objects and a cover that can be positioned in covering relation to the rack to enclose the plurality of scented objects so that the scented objects can be placed in orderly fashion, as recognized by Le Nez du Vin.
As to claim 4, Niedenthal-Jones-Villwock-Sensonics-Estep - Le Nez du Vin teaches at least one of the rack and the cover includes a third indicia containing information about the plurality of scented objects (Le Nez du Vin, the figure shows the cover with index cards that “explain the real link between aromas and wine”).
As to claims 5 and 13, Niedenthal-Jones-Villwock-Sensonics-Estep - Le Nez du Vin teaches the computer application is programmed to prompt the user to scan each scented object in the kit using the first indicia (Niedenthal, pg. 1, “Instructions and code for building the Exerscent are freely available online (https://osf.io/kwftm/). As a proof of concept, we present a case study in which a participant trained daily to identify 54 odors”).
As to claims 6 and 14, Niedenthal-Jones-Villwock-Sensonics-Estep-Le Nez du Vin teaches the computer application is programmed to prompt the user to select more than one of the plurality of scented objects and identify the scent of each of the more than one of the plurality of scented objects (Niedenthal, pg. 5, "The user sniffs a vial, places the vial on the platform reader, and identifies the correct label corresponding to the scent among several alternatives presented on the computer screen").
As to claims 8 and 16, Niedenthal-Jones-Villwock-Sensonics-Estep-Le Nez du Vin teaches the computer application is programmed to prompt the user to scan one of the plurality of scented objects and to display the scent associated with that scented object (Niedenthal, pg. 5, "The user sniffs a vial, places the vial on the platform reader, and identifies the correct label corresponding to the scent among several alternatives presented on the computer screen").
Response to Arguments
Applicant's arguments filed 6/25/25 have been fully considered but they are not persuasive.
Applicant amends the claims to overcome the 112b and 101 rejections. The 112b and 101 rejections have been withdrawn.
Regarding the 103 rejections, Applicant alleges on pg. 10, “A reference that specifically encourages a second indicia to be hidden cannot somehow render obvious a claimed invention that affirmatively requires the presence of and the actual use of first and second indicia”. However, 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). Niedenthal alone does not teach prompting a user to select at least two of the plurality of scented objects from the kit using the second indicia. Niedenthal-Jones-Villwock-Sensonics in combination teaches the claimed limitation, and Villwock teaches that there is no need to blindfold because the inhalant sticks are identical and only labeled by numbers (Villwock, [0042], “No blindfolding is required as all inhalant sticks are identical. Additionally, the inhalant sticks are only labeled by numbers.”). As such, nothing in the proposed modification by Villwock would result in unsatisfactory process for its intended purpose.
Additionally on pg. 11, Applicant alleges “Villwock does not disclose prompting a user to distinguish between different strength scents as required in the claims”. However, Villwock does disclose the claimed limitation because 1, Villwock does teach using high and low concentration scents (Villwock, [0042], “AROMA includes 14 essential oil scents at two concentrations”), and discriminating between the two scented objects based on strength, under the broadest reasonable interpretation, is interpreted as a user discriminating the stronger scent and identifying the identity of the stronger scent, which is taught by Villwock (Villwock, [0054]-[0055]).
As such, the 103 rejections in view of Niedenthal and Villwock is maintained, with modification by Jones and Sensonics, necessitated by the amendments.
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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/ELINA SOHYUN JANG/Examiner, Art Unit 3791
/JENNIFER ROBERTSON/Supervisory Patent Examiner, Art Unit 3791