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 .
Election/Restrictions
Claims 16-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention group II, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/3/2025.
Applicant’s election without traverse of Invention group I (claims 1-15) is acknowledged.
Claims 1-15 are addressed below.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“an air flow adjustment mechanism that is positionable in a first position and a second position” in claim 11. The generic placeholder “mechanism” is coupled with functional language “air flow adjustment” without reciting sufficient structure to perform the recited function.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 4 and 11 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 4 recites “wherein the base portion comprising a first surface and a second surface opposing the first surface”, which is a double inclusion of the “first surface” and “second surface”, rendering the claim indefinite. Appropriate correction and/or clarification is required.
Limitation ““an air flow adjustment mechanism that is positionable in a first position and a second position” in claim 11 invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. Page 8 of the Specification, second paragraph, mentions a “louver adjustment mechanism” that appears to be closest to the claimed “an air flow adjustment mechanism” but fails to further disclose what corresponding structure(s) is/are encompassed by this feature. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claim Rejections - 35 USC § 102
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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-6, 9-14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jaworski (US 20050285538).
Regarding claim 1, Jaworski discloses a volatile composition dispenser (fig. 3) comprising a housing (102 and 162; figs. 1-2), the housing comprising:
a base portion (102) and a top portion (162) that is rotatably and releasably connectable (via legs 170, 172; fig. 4) with the base portion (via slots 104 of the base portion; fig. 1) about a longitudinal axis (vertical center axis through assembly shown in fig. 2),
wherein when the base portion and top portion are connected (fig. 3), an interior and exterior of the housing are defined (interior and exterior of 162 and 102 shown in fig. 3), wherein the base portion comprises a first surface and a second surface (respective top surface surrounding 104a/b shown in fig. 1, and bottom surface of 102b at 102c) opposing the first surface, and wherein the top portion comprises a first surface and a second surface opposing the first surface (respective opposing inner surface and outer surface of 162; see fig. 3);
a recessed track (slots 104; fig. 1);
a guide protrusion (leg 170, 172; par. 139) engageable with the recessed track, wherein the recessed track comprises a track opening (104a) disposed at an open end (at 104a) of the recessed track and a track stop disposed at an opposite end of the recessed track (see annotation below), wherein the recessed track is disposed on either the base portion (fig. 1 shows recessed track 104 disposed on the base portion 102) or the top portion (the first alternative of this claim limitation is already met), and
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Annotated Figure 1 (Jaworski)
wherein when the recessed track (104) is disposed on the base portion (102) then the guide protrusion (170, 172) is disposed on the top portion (162), and
wherein when the recessed track is disposed on the top portion then the guide protrusion is disposed on the base portion (the first alternative of this claim limitation is already met).
Regarding claim 2, Jaworski discloses the volatile composition dispenser of claim 1, wherein the interior of the housing is configured to at least partially contain a volatile composition cartridge (106a) comprising a volatile composition (par. 130: “active material”).
Regarding claim 3, Jaworski discloses the volatile composition dispenser of claim 1, wherein the base portion further comprises a mounting portion (102c; fig. 1) disposed on the second surface (bottom of 102b; figs. 1-2).
Regarding claim 4, Jaworski discloses the volatile composition dispenser of claim 1, wherein the base portion comprising a first surface and a second surface opposing the first surface (respective top surface of 102b surrounding 104a/b shown in fig. 1, and bottom surface of 102b at 102c), wherein the base portion further comprises an actuator (102a, 130, 112a, 112b, 118 and 110; par. 129) extending from the first surface (see figs. 1-2).
Regarding claim 5, Jaworski discloses the volatile composition dispenser of claim 1 further comprising a cover (169 and 171, 173; or 169, 171, 173 and 164; figs. 2, 3, 4) that is removably connectable with the top portion (see figs. 5A, 5B, 5C).
Regarding claim 6, Jaworski discloses the volatile composition dispenser of claim 1, wherein the recessed track further comprises a restriction (104b; par. 128: “a narrower portion 104 b”) disposed adjacent to the track stop, wherein the track opening is configured to receive the guide protrusion (legs 170, 172; par. 139).
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Regarding claim 9, Jaworski discloses the volatile composition dispenser of claim 1, wherein the top portion comprises an opening (fig. 3: venting apertures 182) for exposing at least a portion of a volatile composition cartridge (106a; exposed to surrounding air; par. 145: “rotating the holder 160 within the slots 104, controls airflow through the collar apertures 180 and the venting apertures 182 by exposing more or less of the collar apertures 180 vis a vis the overlaying venting apertures 182”).
Regarding claim 10, Jaworski discloses the volatile composition dispenser of claim 1, wherein the housing comprises a plurality of air flow apertures (182; fig. 3).
Regarding claim 11, Jaworski discloses the volatile composition dispenser of claim 10 further comprising an air flow adjustment mechanism (180) that is positionable in a first position and a second position, wherein in a first position the air flow adjustment mechanism covers at least a portion of the plurality of air flow apertures (182), and wherein in a second position the air flow adjustment mechanism exposes at least a portion of the plurality of air flow apertures (182) to the exterior (par. 145: “rotating the holder 160 within the slots 104, controls airflow through the collar apertures 180 and the venting apertures 182 by exposing more or less of the collar apertures 180 vis a vis the overlaying venting apertures 182”).
Regarding claim 12, Jaworski discloses the volatile composition dispenser of claim 1 further comprising a volatile composition cartridge (106a).
Regarding claim 13, Jaworski discloses the volatile composition dispenser of claim 1, wherein the interior is configured to receive (capable of) a volatile composition cartridge comprising a membrane and a rupturable substrate (since the interior can receive a cartridge, the same interior can receive a membrane and rupturable substrate; it is noted that the current claim language does not positively recite the cartridge or the membrane and substrate, only the housing interior having a capacity to receive one).
Regarding claim 14, Jaworski discloses the volatile composition dispenser of claim 1, wherein the interior is configured to receive a volatile composition cartridge (106a) comprising a solid gel article (par. 247, par. 130).
Claim(s) 1, 6-8, 13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by La Caire (US 4372490).
Regarding claim 1, La Caire discloses a volatile composition dispenser comprising a housing (11, 111; figs. 1-3), the housing comprising:
a base portion (111) and a top portion (11) that is rotatably and releasably connectable with the base portion about a longitudinal axis (vertical axis through center of housing shown in figs. 1-3; col. 7, ln 2-4: “If one desires to open the deodorant container 10, one merely slightly rotates the top member 11 relative to the base member 111 to unlock the container”),
wherein when the base portion and top portion are connected, an interior and exterior of the housing are defined (see figs. 1-3), wherein the base portion comprises a first surface and a second surface opposing the first surface (respective inner/top and outer/bottom surfaces of 111), and wherein the top portion comprises a first surface and a second surface opposing the first surface (respective inner/bottom and outer/top surfaces of 11);
a recessed track (118; figs. 4 and 10);
a guide protrusion (in fig. 3: “a cam block 17D and a detent 17E”; in fig. 7: “The outwardly projecting engaging leg 17B includes a cam block 17BD and detent 17BE”) engageable with the recessed track (engaged as shown in fig. 7), wherein the recessed track comprises a track opening (opening of track 118 at 118D; see annotation) disposed at an open end of the recessed track and a track stop (118G or alternatively “track stop B”; see annotation below) disposed at an opposite end of the recessed track, wherein the recessed track (118) is disposed on either the base portion (111) or the top portion, and
wherein when the recessed track is disposed on the base portion then the guide protrusion (in fig. 3: “a cam block 17D and a detent 17E”; in fig. 7: “The outwardly projecting engaging leg 17B includes a cam block 17BD and detent 17BE”) is disposed on the top portion (11; fig. 3), and
wherein when the recessed track is disposed on the top portion then the guide protrusion is disposed on the base portion (the first alternative of this claim limitation is already met).
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Annotated Figure 2 (La Caire}
Regarding claim 6, La Caire discloses the volatile composition dispenser of claim 1, wherein the recessed track further comprises a restriction (118E or narrower track portion surrounding 118E) disposed adjacent to the track stop (118G), wherein the track opening is configured to receive the guide protrusion (see figs. 3 and 7).
Regarding claim 7, La Caire discloses the volatile composition dispenser of claim 6, wherein the recessed track further comprises an axially outermost point disposed adjacent to the track stop, wherein when the guide protrusion is positioned at the axially outermost point on the recessed track, the first surface of the base portion is closer to the second surface of the top portion than any other position of the guide protrusion on the recessed track (see figs. 1 and 11; fig. 1 shows the closed position when the claimed engagement occurs; since the bottom of the track is slanted slightly downward, first surface/top surface of 111 would be closest to the second/bottom surface of the top portion 11; in other word, when in closed and locked position as shown in fig. 1, inner surfaces of the base portion 11 and top portion 111 are closest to each other).
Regarding claim 8, La Caire discloses the volatile composition dispenser of claim 7, wherein when the guide protrusion is positioned at the track stop (when leg 17 or 17B is at point B of track stop B; see annotation below) , the first surface of the base portion and the second surface of the top portion are spaced axially farther apart than when the guide protrusion is positioned at the axially outermost point (the slanted portion of the track stop would put the top portion 11 slightly further apart/slightly higher than the base portion 111; ).
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Regarding claim 13, La Caire discloses the volatile composition dispenser of claim 1, wherein the interior (figs. 11-12, where 19 is received) is configured to receive a volatile composition cartridge comprising a membrane and a rupturable substrate (since the interior can receive a cartridge, the same interior can receive a membrane and rupturable substrate; it is noted that the current claim language does not positively recite the cartridge or the membrane and substrate, only the housing interior having a capacity to receive one).
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 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.
Claim 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over La Caire (US 4372490).
Regarding claim 15, La Caire discloses the volatile composition dispenser of claim 1, but fails to explicitly teach the recessed track is disposed on the top portion and the guide protrusion is disposed on the base portion (even though La Caire mentions slots 18 in top portion 11, no specific detail was illustrated).
However, one of ordinary skill in the art would have had the technical capability to rearrange the recessed track 118 in the top portion 11 and slots 18 at the bottom portion 111. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to rearrange the recess/slots and corresponding cam block, since it has been held that rearranging parts of an invention involves only routine skill in the art. Furthermore, the courts have held that rearrangement of parts requires only ordinary skill in the art and hence is considered a routine expedient. “In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950): Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.” MPEP § 2144.04-VI-C.
Claim 13, in the alternative, is/are rejected under 35 U.S.C. 103 as being unpatentable over La Caire (US 4372490) in view of Herbert (US 4762275).
Regarding claim 13, in the alternative where applicant intends to positively recite the cartridge, membrane and rupturable substrate, La Caire discloses the volatile composition dispenser of claim 1, but La Caire does not teach a volatile composition cartridge (19) comprising a membrane and a rupturable substrate.
However, Herbert shows a diffusing article can have a membrane 14 or 32 and a rupturable substrate 20 (via pointed element 30; figs. 2, 4-6).
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 La Caire to incorporate the teachings of Herbert to provide a volatile composition cartridge (19) comprising a membrane and a rupturable substrate. Doing so would yield the predictable result of facilitating better shelf life for a sealed cartridge until intentionally open by consumer.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TUONGMINH NGUYEN PHAM whose telephone number is (571)270-0158. The examiner can normally be reached 9AM - 5PM M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arthur Hall can be reached at 571-270-1814. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TUONGMINH N PHAM/Primary Examiner, Art Unit 3752