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 .
Response to Amendment
Amendment filed 7/27/2026 has been entered. Claim(s) 3 is/are cancelled.
Claims 10-17, 21-22 are withdrawn and claims 11-17, 21-22 should be labeled with the correct claim status identifier “Withdrawn”.
Pending claims 1-2, 4, 9, 18-20, 23-30 are addressed below.
Previous Election/Restrictions
Applicant’s election without traverse of species 1 (Figs. 1-11) in the reply filed on 11/26/2025 was acknowledged. Applicant indicated claims 5-8, 10 are withdrawn, and claims 1-4, 9, 11-30 encompasses the elected species 1.
However, since claim 10 is withdrawn for featuring the non-elected species, claims 11-17, 21-22 depending upon claim 10 are also withdrawn.
Claim Rejections - 35 USC § 112
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 1-2, 4, 9, 18-20, 23-30 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 applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 has been amended to add “wherein the wick portion includes one or more surface-relief structures projecting from or recessed into an exterior surface of the wick portion and configured to increase an exposed surface area of the wick portion available for evaporation of the fragrance oil” in addition to defining “a wick portion…extending from the plug into the container” in line 7-8. Applicant’s Remarks dated 7/27/2026 identifies paragraph 93 as written support for this added limitation. However, applicant’s disclosure appears to conflict with this claim limitation at issue. Paragraph 93 describes the “the emanating portion 430 has a generally curved cross-sectional profile and includes a plurality of grooves 434A-434C that increase the overall surface area of the evaporative surface or area 432”, not the wick portion as amended in claim 1. Since the wick portion extends into the container, it is understood that the wick portion defined by the claim does not have an exposed surface area that is meant for evaporation of the fragrance oil. Therefore, this newly added limitation lacks proper written support in the claim.
The remainder of the claims listed in the rejection title is/are rejected for being dependent from a rejected base claim.
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 1-2, 4, 9, 18-20, 23-30 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 1 has been amended to add “wherein the wick portion includes one or more surface-relief structures projecting from or recessed into an exterior surface of the wick portion and configured to increase an exposed surface area of the wick portion available for evaporation of the fragrance oil” (emphasis included) in addition to defining “a wick portion…extending from the plug into the container” in line 7-8. Applicant’s Remarks dated 7/27/2026 identifies paragraph 93 as written support for this added limitation. However, applicant’s disclosure appears to conflict with this claim limitation at issue. Paragraph 93 describes the “the emanating portion 430 has a generally curved cross-sectional profile and includes a plurality of grooves 434A-434C that increase the overall surface area of the evaporative surface or area 432”, not the wick portion as amended in claim 1. It is unclear how the wick portion defined to extend into the container would have any exposed surface for evaporation, unless applicant meant to define “the emanating portion includes one or more surface-relief structures projecting from or recessed into an exterior surface…”. The claim is addressed as best understood until further clarification.
If claim 1 intends to define ““the emanating portion includes one or more surface-relief structures projecting from or recessed into an exterior surface…” and with claim 20 further defining “a plurality of groove…”, it is unclear if the grooves are the same structure or additional to the one or more surface-relief structures of claim 1. The grooves in claim 20 appear to be double inclusion of the same surface-relief structures of claim 1.
In claims 20, 26, 30, limitation reciting “the volatile substance”, which lacks proper antecedent basis in the claim due to amendment of claim 1.
The remainder of the claims listed in the rejection title is/are rejected for being dependent from a rejected base claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 25 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 25 recites “wherein the wick portion, the plug, and the emanating portion are formed as a unitary, integral piece from a thermoform molded pulp introduced to a mold”.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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(s) 1-2, 4, 9, 23-25, 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over He (US 20020136542) in view of McKay (US20170266333), further in view of Triplett (US 20060022064).
(Note 1: cross-out limitations in this office action indicates the lack of explicit teaching in the primary reference; the limitation is addressed by the teaching reference(s) below).
Regarding claims 1 and 4, He discloses an apparatus (100, fig. 1C) for diffusing a volatile substance to an ambient environment, the apparatus comprising:
a plug (104 and 106; or 104, 106, 114) configured to be at least partially inserted into an opening (108; par. 30) of a container (102) containing an
a wick portion (see annotation) from the container through passive capillary action (par. 4, 6, 24, “capillary action”); and
an emanating portion (see annotation) transported from the wick portion into the emanating portion solely through the passive capillary action of the thermoform molded pulp (par. 4: “Another method has been to partially immerse a wick made of porous material in a liquid fragrance-reservoir where the liquid is transported through the wick by capillary action. The fragrance is then evaporated from the exposed wick surface into the surrounding air.”; par. 21 also describes “fastening of a fluid transport mechanism to a fluid reservoir, and optionally, to various mechanisms which increase the effectiveness of the vaporizing units”, emphasis included, which indicate that electric heater is not obligatory),
wherein the plug, the wick portion, and the emanating portion are formed as a unitary integral examiner’s annotated figure 1 shows item 100 as one piece and therefore all three annotated portions are formed as a unitary integral member),
wherein the wick portion includes one or more surface-relief structures (one surface-relief projecting structure is annotated in the figure shown below; see 112b rejection) projecting from or recessed into an exterior surface of the wick portion and configured to increase an exposed surface area of the wick portion available for evaporation of the fragrance
wherein the emanating portion is disposed outside the container (102) and has an exposed surface (outer surface of the annotated “emanating portion”) configured to release the fragrance into the ambient environment
He does not teach the wick and emanating portions comprising “thermoform molded pulp” and the emanating portion with the exposed surface is configured to diffuse the volatile substance into the ambient environment at an average rate of release that is greater than about 0.25 grams of the volatile substance per day over 30 days.
McKay discloses various fragrance compositions and methods of making articles that provide fragrance (par. 6-7) that can comprise thermoform molded pulp (par. 24: “Thermo…Pulping”; par. 170: “The pulp composition is molded”; par. 77), that may be used with a holder/container (par. 162, 164) in the same manner taught in He reference. The article is formed of the pulp matrix material where a release rate of the active composition is modulated by the pulp matrix material treated with the porosity-altering material and porosity maybe controlled or altered in various ways (see McKay’s claim 41, par. 33-38). Figure 6B shows weight loss in grams relative to the hours shown in the x-axis (par. 13) illustrating 0.8 grams released in 30 hours or more than 0.6 gram released in 24hour (a day). The amount of active material/composition released over at least 30 days is considered (par. 89).
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 He to incorporate the teachings of McKay to provide appropriate active fragrance in combination with the wick and emanating portions comprising thermoform molded pulp and the emanating portion with the exposed surface is configured to diffuse the volatile substance into the ambient environment at an average rate of release that is greater than about 0.25 grams of the volatile substance per day over 30 days. Doing so would yield the predictable result of facilitating the desired controlled release of the active substance and length of time intended for releasing active substance from the article (par. 7, par. 109).
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Examiner's Annotated Figure 1 (He – fig. 1C)
Additionally regarding claims 1 and 4, He is silent regarding the oil-based fragrance comprises at least 90% oil (claim 1) and 100% (claim 4).
Triplett discloses that it is known in various system to utilize concentrated volatizable material that is essentially 100% pure fragrance oil (par. 6).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the oil-based fragrance comprises 100% oil, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 2, He, as modified above, discloses the apparatus of claim 1, wherein the thermoformed molded pulp comprises sugarcane bagasse (McKay, par. 21, 73).
Regarding claim 9, He, as modified above, discloses the apparatus of claim 1, wherein He discloses the plug and the wick portion are unitary (fig. 1C shows the wick 100 as one piece/unitary, par. 30) and/or monolithic and the plug includes a first plug portion (104 or 114) and a second plug portion (106) that are moveable relative to one another (par. 30: “wick 100 comprises material pliable enough then when larger portion is inserted into opening 108, portion sufficiently contracts to fit through opening 108, yet after passing through opening 108, portion sufficiently expands back to a diameter larger that opening 108”; since wick 100 is pliable, portion 106 is movable relative to 104 and 114 as described in par. 30).
Regarding claim 23, He, as modified above, discloses the apparatus of claim 1, wherein the wick portion, the plug, and the emanating portion are unitary (fig. 1C shows the wick 100 as one piece/unitary, par. 30) and/or monolithic and each comprise thermoform molded pulp (McKay, par. 24: “Thermo…Pulping”; par. 170: “The pulp composition is molded”; par. 77).
Regarding claim 24, He, as modified above, discloses the apparatus of claim 23, wherein the thermoform molded pulp is of Type 3 (McKay, par. 31: “The head box receives the aqueous cellulosic slurry and deposits the slurry onto the wire screen where a paper mat is formed. The paper mat is removed from the wire screen and further processed, including drying, to form article matrix material. Dry or wet lap processes may also be used to form pulp matrix materials”; see also par. 28-30; McKay’s description is in line with applicant’s disclosure of “Type 3” found in Specification paragraph 78, “The thermoformed molded pulp can be of Type 3, which is also referred to as a “cure in the mold” type, where the wet/damp pulp is poured into the mold and cured in situ as the moisture is removed using heat”).
Regarding claim 25, He, as modified above, discloses the apparatus of claim 1, wherein the wick portion, the plug, and the emanating portion are formed as a unitary, integral piece (see above: examiner’s annotated figure 1 shows item 100 as one piece) from a thermoform molded pulp introduced to a mold (see McKay; par. 24: “Thermo…Pulping”; par. 170: “The pulp composition is molded”; par. 77).
Regarding claim 30, He, as modified above, discloses the apparatus of claim 1, wherein the apparatus does not include an electronic power supply for aiding in diffusing the volatile substance (see fig. 1C of He reference; par. 4: “Another method has been to partially immerse a wick made of porous material in a liquid fragrance-reservoir where the liquid is transported through the wick by capillary action. The fragrance is then evaporated from the exposed wick surface into the surrounding air.”; par. 21 also describes “fastening of a fluid transport mechanism to a fluid reservoir, and optionally, to various mechanisms which increase the effectiveness of the vaporizing units”, emphasis included, which indicate that electric heater may be an option, but is not obligatory).
Claim(s) 18-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over He (US 20020136542) in view of McKay (US20170266333), and Triplett (US 20060022064), further in view of RODRIGUEZ – BARBERO (US 20190314541).
Regarding claim 18, He, as modified above, discloses the apparatus of claim 1, but is silent with regard to the emanating portion includes a hole configured to receive therethrough a hanging element for hanging the apparatus as an ornament.
Rodriguez – Barbero discloses a comparable air freshener (fig. 5) having an emanating portion 4 having a hole 41 configured to receive therethrough a hanging element for hanging the apparatus as an ornament (par. 28).
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 He and McKay to incorporate the teachings of Rodriguez-Barbero to provide the emanating portion includes a hole configured to receive therethrough a hanging element for hanging the apparatus as an ornament. Doing so would yield the predictable result of facilitating hanging the air freshener for decorative purpose (see paragraph 28).
Regarding claim 19, He, as modified above, discloses the apparatus of claim 1, but is silent regarding the emanating portion has a generally triangular shape.
Rodriguez – Barbero discloses a comparable air freshener (fig. 5) having an emanating portion 4 having a generally triangular shape.
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 He and McKay to incorporate the teachings of Rodriguez-Barbero to provide the emanating portion has a generally triangular shape. Doing so would yield the predictable result of facilitating an air freshener with decorative purpose (see paragraph 28).
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over He (US 20020136542) in view of McKay (US20170266333) and Triplett (US 20060022064), further in view of Warzocha (US D665487).
Regarding claim 20, He, as modified above, discloses the apparatus of claim 1, but is silent regarding the emanating portion includes a plurality of grooves extending along a length thereof configured to aid in diffusing the volatile substance into the ambient environment (He reference, however, does indicate that the wick can be molded into a variety of shapes, par. 27).
Warzocha discloses an air freshener (figs. 8-9) having a plurality of grooves extending along a length (see annotation). The emanating portion of He, as modified to include the shape with grooves as shown in Warzocha would result in a configuration to in diffusing the volatile substance into the ambient environment due to additional surface area to evaporate the volatile substance.
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 He to incorporate the teachings of Warzocha to provide the emanating portion includes a plurality of grooves extending along a length thereof configured to aid in diffusing the volatile substance into the ambient environment. Doing so would yield the predictable result of facilitating an air freshener with additional decorative feature.
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Examiner's Annotated Figure 2 (Warzocha)
Claim(s) 20 is/are, alternatively, rejected under 35 U.S.C. 103 as being unpatentable over He (US 20020136542) in view of McKay (US20170266333) and Triplett (US 20060022064), further in view of Purzycki (US 4913350).
Regarding claim 20, He, as modified above, discloses the apparatus of claim 1, but is silent regarding the emanating portion includes a plurality of grooves extending along a length thereof configured to aid in diffusing the volatile substance into the ambient environment (He reference, however, does indicate that the wick can be molded into a variety of shapes, par. 27).
Purzycki discloses an air freshener (figs. 1-2) with capillary members 3a and 3b, each having a plurality of grooves extending along a length of each capillary member. The emanating portion of He, as modified to include the shape with grooves as shown in Purzycki would result in a configuration to in diffusing the volatile substance into the ambient environment due to additional surface area to evaporate the volatile substance.
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 He to incorporate the teachings of Purzycki to provide the emanating portion includes a plurality of grooves extending along a length thereof configured to aid in diffusing the volatile substance into the ambient environment. Doing so would yield the predictable result of facilitating an air freshener with additional decorative feature and additional exposed surface from where the fragrance can evaporate.
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Examiner's Annotated Figure 3 (Purzycki)
Claim(s) 26, 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over He (US 20020136542) in view of McKay (US20170266333) and Triplett (US 20060022064), further in view of Levake (US 20120091221).
Regarding claim 26, He, as modified above, discloses the apparatus of claim 1, in combination with the container (He, fig. 1C; see examiner’s annotated figure 1 above), the container having a bottle shape (shape of bottle shown in annotated figure 1), the volatile substance including a fragrance oil (McKay, par. 135: “fragrance oil”).
Further regarding claim 26, He reference is silent regarding a removable screw cap over the opening,
Levake discloses a comparable fragrance device having a bottle 424 with threaded neck designed to receive a bottle screw cap 320 (par. 136-137; see figs. 54-55) for shipping (par. 137).
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 He to incorporate the teachings of Levake to provide a removable screw cap over the opening. Doing so would yield the predictable result of facilitating the assembly for shipping (See Paragraph 137).
Further regarding claim 26, He reference is silent regarding the combination of the apparatus and the container having a weight not exceeding two ounces.
However, it would have been an obvious matter of design choice to reduce sizing of the components such that the combination of the wick apparatus and container having weight not exceeding two ounces, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Further, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Regarding claim 27, He, as modified above, discloses the apparatus of claim 26, but is silent regarding the emanating portion has a width that is at least 3 times greater than a diameter of the opening of the container.
Levake discloses a different shape and size of the emanating portion 308 (fig. 58) such that the emanating portion has a width that is at least 3 times greater than a diameter of the opening of the container (see annotation below).
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Examiner's Annotated Figure 4 (Levake)
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 He to incorporate the teachings of Levake to provide the emanating portion has a width that is at least 3 times greater than a diameter of the opening of the container. Doing so would yield the predictable result of facilitating the desired exposed surface for the intended evaporation characteristic.
Claim(s) 28, 29 is/are rejected under 35 U.S.C. 103 as being unpatentable over He (US 20020136542) in view of McKay (US20170266333) and Triplett (US 20060022064), further in view of Duston (US 20040182949).
Regarding claims 28-29, He, as modified above, discloses the apparatus of claim 1, but is silent regarding the combination with a base including an aperture configured to receive a portion of the container therein (claim 28), wherein the base includes a plurality of protrusions configured to engage a surface of the container to couple the base to the container via an interference fit (claim 29).
Duston discloses a comparable fragrance device having a base 100 (fig. 1) including an aperture 104 configured to receive a portion of the container 20 therein wherein the base 100 includes a plurality of protrusions 52 and 54 configured to engage a surface of the container 20 to couple the base to the container via an interference fit (see fig. 12; paragraph 40). Variations of the protrusions are shown in figs. 7-11.
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 He to incorporate the teachings of Duston to provide a base including an aperture configured to receive a portion of the container therein (claim 28), wherein the base includes a plurality of protrusions configured to engage a surface of the container to couple the base to the container via an interference fit (claim 29). Doing so would yield the predictable result of facilitating improvement of the diffusion via a fan mounted in the base, his positioning of the capillary member within a forced airflow ensures rapid and efficient dissemination of the fragrance drawn through the capillary member from the reservoir (par. 61).
Response to Arguments
Applicant's arguments filed 7/27/2026 have been fully considered but they are not persuasive.
1) Applicant argues: He does not disclose or suggest a unitary integral thermoformed molded pulp member in which the plug, wick portion, and emanating portion are formed together and in which the thermoformed molded pulp itself passively draws at least 90% fragrance oil by weight from a container into an exterior emanating portion (Remarks page 11). And while McKay discloses molded pulp and fragrance release, the rejection does not explain why one would have modified He’s wick-retention structure to arrive at the thermoformed molded pulp that plugs the container, extends into the container and transport oil fragrance solely by passive capillary action and releases fragrance oil from an exterior emanating portion (Remarks Page 12). Such combination would require reconstruction of the references based on applicant’s disclosure, i.e. hindsight.
This is found not persuasive. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). In this case, He reference already teaches a unitary integral member 100 (He’s fig. 1C) that plugs the container, extends into the container and transport fragrance solely by passive capillary action and releases fragrance from an exterior emanating portion. McKay was cited to show that thermoformed molded pulp material (par. 24: “Thermo…Pulping”; par. 170: “The pulp composition is molded”; par. 77) is known in the field of fragrance release where the fragrance is oil (par. 69). The benefit of the modification is explicitly disclosed or suggested in McKay, which would be facilitating the desired controlled release of the active substance and length of time intended for releasing active substance from the article (par. 7, par. 109). More importantly, He reference explicitly indicates that the wick materials may be any material that exhibit acceptable porosity (par. 27), wherein paper (often known to be made from molded pulp) and ability to be molded into a variety of shapes are parts of the considerations. Therefore, a person of ordinary skill in the art would have had the technological capabilities to assess many known materials for fragrance release wicking and utilize one of them improve He reference’s wick with the desired controlled release. No inventive effort would have been required to choose a suitable known material.
2) Applicant argues: He also does not teach the amended surface-relief limitation. The amended claim requires one or more surface-relief structures projecting from or recessed into an exterior surface of the wick portion and configured to increase exposed surface area available for evaporation of the fragrance oil. He discloses enlarged portions, rings, wedges, sleeves, and fitment structures primarily to inhibit wick removal and improve retention. These retention structures are not disclosed as intentionally formed surface-relief structures of a thermoformed molded pulp wick portion configured to increase exposed surface area available for evaporation of at least 90% fragrance oil (Remarks page 11). While Triplett discloses 100% fragrance oil composition, Triplett does not teach the unitary integral thermoformed molded pulp member defined in claim 1 (Remarks page 12).
Examiner respectfully disagrees. The claim requires “one or more surface-relief structures projecting from or recessed into an exterior surface of the wick portion and configured to increase exposed surface area available for evaporation of the fragrance oil” and He reference’s annotated figure 1C shown above shows at least one projecting structure. Since the projecting structure is part of the wicking and evaporating device, this projecting structure has the physical structure configured for increased exposed surface available for evaporation, compared to other embodiments not having the projecting structure; this meet the limitation of the claim. Since molded pulp material and 100% fragrance oil are known in the art via teachings of McKay and Triplett, a person of ordinary skill in the art would have had the technological capabilities to assess known materials and utilize one for optimization of fragrance release. No inventive effort would have been required.
3) Applicant argues: Amended claim 1 excludes powered assistance by requiring transport solely through passage capillary action and He reference does not teach the fragrance is transported solely through passage capillary action of the thermoform molded pulp (Remarks page 11).
This is found not persuasive. In He reference’s paragraph 4, He discloses that passive capillary transport solely via the wick is known: “Another method has been to partially immerse a wick made of porous material in a liquid fragrance-reservoir where the liquid is transported through the wick by capillary action. The fragrance is then evaporated from the exposed wick surface into the surrounding air.”. More specifically, paragraph 21 also describes “fastening of a fluid transport mechanism to a fluid reservoir, and optionally, to various mechanisms which increase the effectiveness of the vaporizing units”, emphasis included, which indicate that electric heater is and option and not obligatory. He reference does not teach away from using only the wick via passive capillary transport of fragrance.
4) Regarding arguments against Rodriguez-Barbero, Warzocha, Levake, and Duston (Remarks pages 12-14):
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). Argument against the structure of the unitary integral thermoformed molded pulp member, at least 90% oil-based fragrance and one or more surface-relief structure have been addressed by He in view of McKay and Triplett as presented above.
Various features taught by Rodriguez-Barbero, Warzocha, Levake and Duston provide additional features known in the art and decorative means but do not destroy the device taught by He or render the device inoperable. A person of ordinary skill in the art would have had the technological capabilities to assess the various additional features of claims 18-20, 26-29 to interchange with or add to He’s device for convenience or decorative purposes. No inventive effort would have been required.
In light of the responses above, all prior art rejections shall be maintained.
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.
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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/TUONGMINH N PHAM/Primary Examiner, Art Unit 3752
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