Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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 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.
DETAILED ACTION
A second 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 November 25, 2024 has been entered.
Claims 40-45 are pending.
Claims 1-39 are cancelled.
Claims 40-45 are new.
Claims 40-45 as filed on November 25, 2024 are under consideration.
Withdrawn Objections / Rejections
In view of the cancellation of all previously pending claims, all previous claim rejections are withdrawn.
Applicant’s arguments have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated, restored or newly applied. They constitute the complete set presently being applied to the instant application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on March 27, 2025 was considered.
Specification
The amendment filed August 14, 2025 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows: new paragraphs [0005]-[0008].
Applicant is required to cancel the new matter in the reply to this Office Action.
Application Data Sheet
The Application Data Sheet (ADS) filed March 2, 2023 is objected to because it identifies the instant application as a CON of Application No. 13/543,194. Because the instant specification includes new / replacement paragraphs (e.g., [0004]-[0008]), a new abstract, and new original claims, the instant application is properly identified as a continuation in part (CIP). See MPEP 201.07 and 201.08. Appropriate correction is required.
Response to Arguments: Application Data Sheet
Applicant’s maintained disagreement and citation to MPEP 201.07 remains unpersuasive for all of the reasons of record illustrating the multitude of differences between the instant Application and the immediate parent Application. The instant Application is not a CON of the ‘194 Application because it is not the same as the ‘194 Application. Therefore, the objection is properly maintained.
Claim Objections
Claims 40 and 41 are objected to because of the following informalities:
Claims 40, 41: the “and” after “an actuator;” is superfluous.
Claims 40, 41 recite a percentage VOC content without providing a basis for the determination thereof, e.g., by weight, consistent with paragraph [0041] of the specification as filed.
Claims 40, 41 recite the composition has a flow rate and an average particle size, however, it is clear from the specification that this is not a property of the composition per se but rather a result of dispensing the composition from the assembly.
Claim 41: the period at the end of the flow rate and particle size clause ends the claim. Each claim begins with a capital letter and ends with a period. Periods may not be used elsewhere in the claims except for abbreviations. See Fressola v. Manbeck, 36 USPQ2d 1211 (D.D.C. 1995). See MPEP 608.01(m).
Appropriate correction is required.
Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 40, 42 and 45 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
New claim 40 recites a VOC content of 0 to 4%. Applicant’s Remarks cite to paragraphs [0013] and [0041] in support of the amendment. While these passages disparage VOCs, these passages do not disclose a VOC content of 0 to 4%. Applicant’s Remarks also cite to claim 1 of Application No. 13/543,194. While claim 1 of Application No. 13/543,194 indeed recites a composition comprising inter alia a VOC content of 0 to 4%, the instant Application which is not a CON of Application No. 13/543,194 does not. This is a new matter rejection. New claim 45 is included in this rejection because it depends from claim 40 and also because the only disclosure of an alcohol is as a VOC (e.g., paragraphs [0003], [0012], [0040]) or as a specific type of surfactants (e.g., alcohol ethoxylates in paragraph [0030]). The omission of the relationship between the newly claimed generic alcohol to the disclosure of alcohol as the VOC is also new matter.
New claim 42 recites an initial fragrance intensity rating at 5 minutes and a final fragrance intensity rating of about 62 to 64% of the initial rating over 175 minutes. Applicant’s Remarks cite to paragraphs [0049]-[0064] in support of the amendment. While this passage describes test examples (e.g., paragraph [0052]), the only disclosed ratings are those in Tables 3 and 4. Based on the newly claimed relative final rating of about 62 to 64%, it is presumed Applicant has extrapolated this desired result from examples A and B of Table 4 (page 20):
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There is insufficient written description support to extrapolate the results of examples A and B, which are drawn to a composition not disclosed and which require the parameters disclosed at page 20, to the genus of products newly claimed. The specification does not describe what structural feature(s) of compositions and dispenser assemblies comprising the components in claim 41 result in the properties of claim 42. An invention described solely in terms of its function or result may lack written descriptive support where there is no described or art-recognized correlation between the disclosed function and the structure(s) responsible for the function. See MPEP 2163. Thus, the specification provides no basis for concluding that the compositions and dispensing assemblies encompassed by claim 41 would also have the recited property and the specification does not adequately describe the claimed genus.
Priority
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of 35 U.S.C. 112 (pre-AIA ). See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 13/543,194, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph for one or more claims of this application. The prior-filed application does not disclose the results of claim 42 for the genus of products claimed.
The disclosure of the prior-filed application, Application No. 61/457,925, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph for one or more claims of this application. The prior-filed application does not disclose pest control, an actuator, a nozzle, a carrier other than an aqueous carrier, at least one insecticide active, a VOC content of 0 to 4%, a flow rate of about 1.5 to 3.0 g/s, an initial pressure of about 100 to 180 psig, a terminal pressure of about 30 to 90 psig, or an initial headspace of about 35% as required by claim 40; does not disclose pest control, an actuator, a nozzle, at least one insecticide active, a flow rate of about 1.5 to 3.0 g/s, an initial pressure of about 100 to 180 psig, a terminal pressure of about 30 to 90 psig, or the intensity rating of claim 41; does not disclose the intensity ratings of claim 42; and does not disclose the alcohol of claims 44 and 45.
The earliest date available to claim 42 is January 17, 2023.
The earliest date available to claims 40, 41 and 43-45 is July 6, 2012.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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 under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 40 and 45 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Clark et al. (US 2009/0311195, published December 19, 2009, IDS reference filed May 22, 2023) in view of Smith (US 2010/0219211, published September 2, 2010, IDS reference filed May 22, 2023) and Gilroy (US 4,940,171, published July 10, 1990, IDS reference filed May 22, 2023).
Clark teaches compositions containing a solvated active agent (solution, single phase) suitable for dispensing as a compressed gas aerosol (title; abstract; claims). The compositions include at least one surfactant, about 0.1 to 2 wt% of at least one active agent (such as a fragrance or/and an insecticide), and a compressed gas propellant (abstract; claims 1-3, 7, 10; paragraph [0038]), as required by instant claim 43. The propellant is pressurized from about 100 to 165 psig and is more preferably about 135 psig (initial, room temperature or about 70 ºF is implicit) (paragraph [0052]). The compositions comprise an aqueous-based carrier (claim 1). The compositions may further comprise at least one solvent; the solvent may be any suitable solvent inclusive of ethanol (alcohol) (claim 10; paragraph [0055]), as required by instant claims 44, 45. Alternative solvents inclusive of alkylene glycols may be present from about 0.05 to 2 wt% (claim 11; paragraphs [0055], [0058]; Table 2). Clark further teaches solvents such as ethanol are often VOCs; the content of VOCs is regulated (paragraphs [0003], [0005]). The compositions of Clark are low (4% or less) VOC or VOC-free (paragraph [0040]). Clark further teaches the compositions may be dispensed using a conventionally known compressed gas aerosol device (aerosol dispenser assembly, a container with an actuator and nozzle is implicit) (paragraphs [0038], [0041]). Clark further teaches known aerosol containers and dispenser assemblies (e.g., paragraph [0006]). Clark further teaches particle size is controlled through selection of valve (nozzle) and actuator dimensions (paragraph [0020]).
Clark does not teach a flow rate of about 1.5 to 3.0 g/s, an average particle size of about 60 to 100 microns, a terminal pressure of about 30 to 90 psig following dispensing when less than 10 vol% of the composition remains in the container, and the initial headspace is about 35 vol% as required by claim 40.
These deficiencies are made up for in the teachings of Smith and Gilroy.
Smith teaches a pressurized spray system which allows for a relatively constant mean particle size distribution throughout the life of the spray system as the pressure decays (final pressure is less than initial pressure); the system comprises a compressed gas propellant and perfumes or/and insecticides (title; abstract; claims; Figures 1 & 2; paragraphs [0004], [0005]). The system comprises a container, a nozzle for dispensing contents from the container, and an actuator (claim 1; paragraph [0032]; Figures 1 & 2). The product may be discharged at a spray rate of at least 1 g/s and less than 25 g/s (paragraph [0026]). The product may yield a mean diameter of at least 40 microns and less than 100 microns (paragraph [0027]). Smith further teaches the propellant may provide a gage pressure of at least 1 kg/cm2 (~14 psig, room temperature or about 70 ºF is implicit) and less than 12 kg/cm2 (~170 psig) (paragraph [0024]).
Gilroy teaches an aerosol package having a compressed gas propellant and exemplifies an embodiment having a 35% head space (title; abstract; claims; column 4, lines 6-12).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to package the aqueous compositions (solutions, single phase) of Clark comprising at least one surfactant, about 0.1 to 2 wt% of at least one active inclusive of an insecticide, a compressed gas propellant and no more than 4% of VOCs inclusive of ethanol within the spray system of Smith which may be discharged at a spray rate of at least 1 g/s and less than 25 g/s with a mean diameter of at least 40 microns and less than 100 microns in order to provide a relatively constant mean particle size distribution throughout the life of the spray system as the pressure decays. There would be a reasonable expectation of success because Clark expressly teaches the compositions may be dispensed from conventionally known devices and the device of Smith is a species falling within this genus.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the packaged spray system of Clark in view of Smith comprising a compressed gas propellant to have an internal headspace of 35% as taught by Gilroy because this headspace is suitable for aerosol packages comprising compressed gas propellants. There would be a reasonable expectation of success because neither Clark nor Smith delimit the headspace or volume of the compressed gas within the container.
Regarding the terminal pressure of about 30 to 90 psig following dispensing when less than 10 vol% of the composition remains in the container, claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure. See MPEP 2111.04. In the instant case, the claims are drawn to a product, not to a method of use / dispensing thereof. Because the combined teachings of the prior art render obvious the product as instantly claimed having an initial pressure as instantly claimed, it necessarily follows that the product rendered obvious by the prior art will also possess a terminal pressure of about 30 to 90 psig following dispensing when less than 10 vol% of the composition remains. In further support of this presumption, Smith teaches the pressure decays throughout the life of the spray system.
Claims 41-44 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Clark et al. (US 2009/0311195, published December 19, 2009, IDS reference filed May 22, 2023) in view of Smith (US 2010/0219211, published September 2, 2010, IDS reference filed May 22, 2023).
The teachings of Clark have been described supra.
Clark does not teach a flow rate of about 1.5 to 3.0 g/s, an average particle size of about 60 to 100 microns, a terminal pressure of about 30 to 90 psig following dispensing when less than 10 vol% of the composition remains in the container, and a fragrance intensity as determined by the disclosed protocol as required by claim 41.
Clark does not teach the intensity ratings of the undisclosed exemplary composition of Table 4 as required by claim 42.
These deficiencies are made up for in the teachings of Smith.
The teachings of Smith have been described supra.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to package the aqueous compositions (solutions, single phase) of Clark comprising at least one surfactant, about 0.1 to 2 wt% of at least one active inclusive of an insecticide and a fragrance, a compressed gas propellant and no more than 4% of VOCs inclusive of ethanol within the spray system of Smith which may be discharged at a spray rate of at least 1 g/s and less than 25 g/s with a mean diameter of at least 40 microns and less than 100 microns in order to provide a relatively constant mean particle size distribution throughout the life of the spray system as the pressure decays. There would be a reasonable expectation of success because Clark expressly teaches the compositions may be dispensed from conventionally known devices and the device of Smith is a species falling within this genus.
Regarding the terminal pressure of about 30 to 90 psig following dispensing when less than 10 vol% of the composition remains in the container, claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure. See MPEP 2111.04. In the instant case, the claims are drawn to a product, not to a method of use / dispensing thereof. Because the combined teachings of the prior art render obvious the product as instantly claimed having an initial pressure as instantly claimed, it necessarily follows that the product rendered obvious by the prior art will also possess a terminal pressure of about 30 to 90 psig following dispensing when less than 10 vol% of the composition remains. In further support of this presumption, Smith teaches the pressure decays throughout the life of the spray system.
Regarding the fragrance intensity as defined by the protocol disclosed in the instant specification and the results of the exemplary embodiment, because the combined teachings of the prior art render obvious the product as instantly claimed having an initial pressure as instantly claimed and as set forth at page 20 of the instant specification, having a spray rate as instantly claimed and as set forth at page 20 of the instant specification and having an average particle size as instantly claimed and as set forth at page 20 of the instant specification, it necessarily follows that the product rendered obvious by the combined teachings of the prior art comprising an aqueous composition comprising an insecticide and a fragrance as the at least one active will also be characterized by a fragrance intensity as instantly claimed upon dispensing according to the protocol disclosed.
Response to Arguments: Claim Rejections - 35 USC § 103
Applicant's arguments have been considered but are moot in light of the restored grounds of rejection over Clark from Application No. 13/543,194 / new grounds of rejection necessitated by Applicant’s amendments.
Many of the difficulties encountered in the prosecution of patent applications after final rejection may be alleviated if each applicant includes, at the time of filing or no later than the first reply, claims varying from the broadest to which they believe they are entitled to the most detailed that they are willing to accept.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 40-45 are rejected on the ground of nonstatutory double patenting as being unpatentable over (1) claims 1-23 of U.S. Patent No. 8,287,841, (2) claims 1-20 of U.S. Patent No. 8,568,703 and (3) claims 1-17 of U.S. Patent No. 9,987,387 in view of Clark et al. (US 2009/0311195, published December 19, 2009, IDS reference filed May 22, 2023), Smith (US 2010/0219211, published September 2, 2010, IDS reference filed May 22, 2023) and Gilroy (US 4,940,171, published July 10, 1990, IDS reference filed May 22, 2023).
The instant claims are drawn to products comprising an aerosol dispenser assembly comprising a container; an actuator; a spray nozzle; and a composition comprising a carrier, a surfactant, a compressed gas propellant, and about 0.1 to 2.5 wt% of at least one insecticide, wherein the composition has a flow rate of about 1.5 to 3.0 g/s, an average particle size of about 60 to 100 microns, an initial pressure of about 100 to 180 psig at 70 ºF and a final pressure of about 30 to 90 psig at 70 ºF when less than 10 vol% of the composition remains. The compositions may have a VOC content of 0 to 4% and an initial headspace of about 35 vol% or the compositions may be fragrant and have an intensity rating of about 10 to 2 based on a disclosed protocol. The final intensity rating may be about 62 to 64% of the initial over 175 minutes. The compositions may further comprise a fragrance or an alcohol.
The conflicting ‘841 Patent claims (1) are drawn to aerosol aqueous-based compositions comprising at least one surfactant, a compressed gas propellant at maximum of about 180 psig at room temperature, and about 0.01 to 10 wt% of at least one fragrance, wherein the compositions are single phase, have a VOC content less than 5%, and do not contain low molecular weight monohydric alcohol.
The conflicting ‘703 Patent claims (2) are drawn to an aerosol article comprising (1) a dispensing container including a spray head and (2) aqueous compositions comprising about 0.01 to 10 wt% of at least one fragrance, a compressed gas propellant and at least one surfactant, wherein the compositions are single phase, have a VOC content less than 5%, do not contain low molecular weight monohydric alcohol, wherein the initial pressure is about 130 to 180 psig at room temperature, the composition is dispensed at a rate of 0.5 to 2.5 g/s as particles having diameters of about 60 to 80 microns.
The conflicting ‘387 Patent claims (3) are drawn to an aerosol article comprising (1) a dispensing container including a spray head and (2) pressurized aqueous compositions comprising about 0.01 to 10 wt% of at least one water-insoluble fragrance, a compressed gas propellant, and a solubilizing system comprising at least one surfactant for providing a single phase, wherein the compositions have a VOC content of less than 0.1%, a particle size of about 60 to 80 microns, and a spray rate of 0.5 to 2.5 g/s. The compositions may be free of low molecular weight monohydric alcohol.
The instant claims differ from the conflicting Patent claims primarily with respect to the recitation of an insecticide and amount thereof and also with respect to the presence of an alcohol. However, these differences are obvious in view of Clark as elaborated supra because it is known to solvate an insecticide together with a fragrance in a total amount of 0.1 to 2 wt% in aqueous aerosol compositions and it would have also been obvious to substitute any of the surfactants of Clark inclusive of the alcohol ethoxylates (e.g., Clark, paragraph [0047], Table 2) for the surfactants of the conflicting Patent claims.
The instant claims also differ from the conflicting Patent claims with respect to all of the dispensing parameters, however, these differences are obvious in view of Clark and Smith as elaborated supra because Clark and Smith independently disclose ranges for the initial pressure of aerosol products and Smith discloses art-recognized ranges for the spray rate and spray diameter dispensed from aerosol containers comprising a nozzle and actuator for dispensing and it would have been obvious to operate within these art-recognized ranges.
The instant claims also differ from the conflicting Patent claims with respect to the terminal pressure after dispensing, however, it necessarily follows that the product rendered obvious by the conflicting Patent claims and the prior art will also possess a terminal pressure of about 30 to 90 psig following dispensing when less than 10 vol% of the composition remains because the product to be dispensed is the same.
Instant claims 40 and 45 also differ with respect to the headspace, however, in view of the teachings of Gilroy as elaborated supra it would have been obvious to modify the aerosol products of the conflicting Patent claims in view of Clark and Smith to have a head space of about 35% because this head space is suitable for aerosol products comprising compressed gas propellants.
Instant claims 41-44 also differ with respect to the intensity rating, however, it necessarily follows that the product rendered obvious by the conflicting Patent claims and the prior art comprising fragranced aqueous compositions will also be characterized by a fragrance intensity as instantly claimed upon dispensing according to the protocol disclosed.
The instant claims are therefore an obvious variant of the claims of the conflicting Patents.
Claims 40-45 are rejected on the ground of nonstatutory double patenting as being unpatentable over (A) claims 1-19 of U.S. Patent No. 8,927,474, (B) claims 1-32 of U.S. Patent No. 9,040,471, (C) claims 1-16 of U.S. Patent No. 9,108,792 and (D) claims 1-27 of U.S. Patent No. 9,669,127 in view of Clark et al. (US 2009/0311195, published December 19, 2009, IDS reference filed May 22, 2023), Smith (US 2010/0219211, published September 2, 2010, IDS reference filed May 22, 2023) and Gilroy (US 4,940,171, published July 10, 1990, IDS reference filed May 22, 2023).
The instant claims have been described supra.
The conflicting ‘474 Patent claims (A) are drawn to aerosol products comprising (a) a can with aerosol dispensing top and (b) an aqueous composition consisting of inter alia compressed gas propellant, about 0.1 to 2 wt% fragrance component, a surfactant and optionally an alcohol solvent (single phase). The composition may comprise 0.1 to 5.5% VOC or less than 0.1% VOC.
The conflicting ‘471 Patent claims (B) are drawn to an aerosol system comprising (a) a spray dispenser comprising a spray head and a container with (b) an aqueous-based product comprising or consisting of inter alia surfactant, about 0.1 to 2 wt% fragrance component, a compressed gas propellant and optionally alcohol solvents (single phase). The compositions may comprise 0.1 to 5.5% VOC or less than 0.1% VOC.
The conflicting ‘792 Patent claims (C) are drawn to an aerosol system comprising (a) a can comprising an aerosol dispensing top and body with (b) an aqueous compressed gas aerosol composition comprising a compressed gas propellant, about 0.1 to 2 wt% fragrance component, surfactant and optionally alcohol solvents (single phase). The compositions may comprise 0.1 to 6% VOC.
The conflicting ‘127 Patent claims (D) are drawn to a product and methos of use thereof comprising (1) an aqueous-based composition comprising surfactant, at least one compressed gas propellant, greater than 0 to about 6 wt% of at least one non-water solvent and about 0.1 to 2 wt% of at least one fragrance (single phase) and (2) a container comprising a spray head and a can. The solvent may be an alcohol. The composition may have a VOC content of 0 to 6, excluding the content of the fragrance.
The instant claims differ from the conflicting Patent claims primarily with respect to the recitation of an insecticide and amount thereof and also with respect to the presence of an alcohol. However, these differences are obvious in view of Clark as elaborated supra because it is known to solvate an insecticide together with a fragrance in a total amount of 0.1 to 2 wt% in aqueous aerosol compositions and it would have also been obvious to substitute any of the surfactants of Clark inclusive of the alcohol ethoxylates (e.g., Clark, paragraph [0047], Table 2) for the surfactants of the conflicting Patent claims.
The instant claims also differ from the conflicting Patent claims with respect to all of the dispensing parameters, however, these differences are obvious in view of Clark and Smith as elaborated supra because Clark and Smith independently disclose ranges for the initial pressure of aerosol products and Smith discloses art-recognized ranges for the spray rate and spray diameter dispensed from aerosol containers comprising a nozzle and actuator for dispensing and it would have been obvious to operate within these art-recognized ranges.
The instant claims also differ from the conflicting Patent claims with respect to the terminal pressure after dispensing, however, it necessarily follows that the product rendered obvious by the conflicting Patent claims and the prior art will also possess a terminal pressure of about 30 to 90 psig following dispensing when less than 10 vol% of the composition remains because the product to be dispensed is the same.
Instant claims 40 and 45 also differ with respect to the headspace, however, in view of the teachings of Gilroy as elaborated supra it would have been obvious to modify the aerosol products of the conflicting Patent claims in view of Clark and Smith to have a head space of about 35% because this head space is suitable for aerosol products comprising compressed gas propellants.
Instant claims 41-44 also differ with respect to the intensity rating, however, it necessarily follows that the product rendered obvious by the conflicting Patent claims and the prior art comprising fragranced aqueous compositions will also be characterized by a fragrance intensity as instantly claimed upon dispensing according to the protocol disclosed.
The instant claims are therefore an obvious variant of the claims of the conflicting Patents.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Nguyen et al. (EP 2,729,188 B1) is the closest prior art as identified by USPTO artificial intelligence and is the equivalent of Application No. 13/543,194.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISSA PROSSER whose telephone number is (571)272-5164. The examiner can normally be reached M - Th, 10 am - 6 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, DAVID BLANCHARD can be reached on (571)272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALISSA PROSSER/Examiner, Art Unit 1619
/MARIANNE C SEIDEL/Primary Examiner, Art Unit 1600