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
Applicant’s election without traverse of species 1 (Figs. 1-11) in the reply filed on 11/26/2025 is 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 Applicant indicated claims 5-8, 10 are withdrawn, and claims 1-4, 9, 11-30 encompasses the elected species 1.
However, since claim 10 is withdrawn for featuring the non-elected species, claims 11-17, 21-22 depending upon claim 10 are also withdrawn.
Pending claims 1-4, 9, 18-20, 23-30 are addressed below.
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.
Claim(s) 3, 4, 26 is/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 recites “a plug configured to be at least partially inserted into an opening of a container containing a volatile substance” where the “container containing a volatile substance” is part of a functional claim limitation and not positively recited. However, claims 3-4 recites “wherein the volatile substance includes an oil-based fragrance…wherein the oil-based fragrance comprises 100% oil” and claim 26 reciting “in combination with the container, the container having a bottle shape and a removable screw cap over the opening, the volatile substance including a fragrance oil”, which further specify details of the container and volatile substance. It is unclear if claims 3-4 and 26 are intended to positively recite the container and volatile substance as part of the apparatus, or further narrowing the functional limitation of claim 1.
Further regarding claim 26, it is unclear if limitation “the combination of the apparatus and the container having a weight not exceeding two ounces” intends to also include the volatile substance as part of the two ounces weight limitation.
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.
Claims 1-3, 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).
Regarding claim 1, 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 containing a volatile substance (par. 27: “liquid air fresheners”) to aid in at least partially inhibiting (via enlarged portion 106) the volatile substance from flowing out of the container via the opening (108); and
a wick portion (see annotation)
an emanating portion (see annotation)
the emanating portion having an exposed surface (outer surface of the annotated “emanating portion”) configured to aid in diffusing the volatile substance 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)
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 3, He, as modified above, discloses the apparatus of claim 1, wherein the volatile substance includes an oil-based fragrance (McKay, par. 69: “natural oils”, par. 87: “essential oil”).
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).
Claim(s) 4 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).
Regarding claim 4, He, as modified above, discloses the apparatus of claim 3, but is silent regarding the oil-based fragrance comprises 100% oil.
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.
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), 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), 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 Warzacha 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 Warzacha 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) 26, 27 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 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 3 (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), 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 a volatile substance drawn through the capillary member from the reservoir (par. 61).
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