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 .
DETAILED ACTION
Summary
This is the initial Office action based on the 18184995 application filed 04/12/22
Claim(s) 12,13,14,15,16,17,18 are pending and claim(s) 12,13,14,15,16,17,18 have been fully considered
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) 12,13,14,15,16,17,18 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(s) 12 has the phrase, “wherein the housing is fixed on a holder by means of an optional flexible foot which is adapted to allow orientation of the conduit in a plurality of directions,” which (in the context of the claim) is unclear what is included and excluded by the scope of claim language;
Particularly, unclear if "a holder" is optional, considering that it is "by means of an optional flexible foot"
Also, claim limitation “wherein the housing is fixed on a holder by means of an optional flexible foot which is adapted to allow orientation of the conduit in a plurality of directions,” has been evaluated under the three-prong test set forth in MPEP § 2181, subsection I, but the result is inconclusive. Thus, it is unclear whether this limitation should be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because uses the word “means” but it is modified by the structure “flexible foot”, which is unclear whether the structure is sufficient for performing the claimed function. The boundaries of this claim limitation are ambiguous; 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.
In response to this rejection, applicant must clarify whether this limitation should be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. Mere assertion regarding applicant’s intent to invoke or not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph is insufficient. Applicant may:
(a) Amend the claim to clearly invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, by reciting “means” or a generic placeholder for means, or by reciting “step.” The “means,” generic placeholder, or “step” must be modified by functional language, and must not be modified by sufficient structure, material, or acts for performing the claimed function;
(b) Present a sufficient showing that 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, should apply because the claim limitation recites a function to be performed and does not recite sufficient structure, material, or acts to perform that function;
(c) Amend the claim to clearly avoid invoking 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, by deleting the function or by reciting sufficient structure, material or acts to perform the recited function; or
(d) Present a sufficient showing that 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, does not apply because the limitation does not recite a function or does recite a function along with sufficient structure, material or acts to perform that function.
Claim(s) 12 has the phrase, “(ABCD) and (EFGH),” which (in the context of the claim) is unclear what is included and excluded by the scope of claim language;
Particularly, reference characters from a figure (and/or specification) are not permitted to be limiting claim language, this is improper importation of subject matter from the disclosure, which is not permitted, thereby involving an indefinite claim limitation;
“The use of reference characters is to be considered as having no effect on the scope of the claims.” MPEP 608.01(m)
Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). (MPEP 2145 PART VI)
Claim(s) 12 has the phrase, “a channel ABEF),” which (in the context of the claim) is unclear what is included and excluded by the scope of claim language;
Particularly, reference characters from a figure (and/or specification) are not permitted to be limiting claim language, this is improper importation of subject matter from the disclosure, which is not permitted, thereby involving an indefinite claim limitation;
“The use of reference characters is to be considered as having no effect on the scope of the claims.” MPEP 608.01(m)
Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). (MPEP 2145 PART VI)
Claim(s) 13 has the phrase, “the inner diameter,” which (in the context of the claim) is unclear what is included and excluded by the scope of claim language;
Particularly, it is unclear if the phrase refers to something previously mentioned (albeit without proper antecedent basis), OR if this phrase is setting forth a new element
Claim(s) 15 has the phrase, “(ABCD) and (EFGH),” which (in the context of the claim) is unclear what is included and excluded by the scope of claim language;
Particularly, reference characters from a figure (and/or specification) are not permitted to be limiting claim language, this is improper importation of subject matter from the disclosure, which is not permitted, thereby involving an indefinite claim limitation;
“The use of reference characters is to be considered as having no effect on the scope of the claims.” MPEP 608.01(m)
Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). (MPEP 2145 PART VI)
Claim(s) 16 has the phrase, “CD and GH,” which (in the context of the claim) is unclear what is included and excluded by the scope of claim language;
Particularly, reference characters from a figure (and/or specification) are not permitted to be limiting claim language, this is improper importation of subject matter from the disclosure, which is not permitted, thereby involving an indefinite claim limitation;
“The use of reference characters is to be considered as having no effect on the scope of the claims.” MPEP 608.01(m)
Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). (MPEP 2145 PART VI)
Claim(s) 16,17,18 has the phrase, “the length of segments,” which (in the context of the claim) is unclear what is included and excluded by the scope of claim language;
Particularly, it is unclear if the phrase refers to something previously mentioned (albeit without proper antecedent basis), OR if this phrase is setting forth a new element
Claim(s) 17 has the phrase, “CD and GH,” which (in the context of the claim) is unclear what is included and excluded by the scope of claim language;
Particularly, reference characters from a figure (and/or specification) are not permitted to be limiting claim language, this is improper importation of subject matter from the disclosure, which is not permitted, thereby involving an indefinite claim limitation;
“The use of reference characters is to be considered as having no effect on the scope of the claims.” MPEP 608.01(m)
Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). (MPEP 2145 PART VI)
Claim(s) 18 has the phrase, “CD and GH,” which (in the context of the claim) is unclear what is included and excluded by the scope of claim language;
Particularly, reference characters from a figure (and/or specification) are not permitted to be limiting claim language, this is improper importation of subject matter from the disclosure, which is not permitted, thereby involving an indefinite claim limitation;
“The use of reference characters is to be considered as having no effect on the scope of the claims.” MPEP 608.01(m)
Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). (MPEP 2145 PART VI)
Though one or more of the claim(s) are indefinite, for the sake of compact prosecution, the examiner has done his best to ascertain their meaning for the following 35 USC § 102 and/or 35 USC § 103 rejection(s)
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 12, 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over 20120247182 (herein known as NELSON)
With regard to claim 12, NELSON sufficiently teaches a device capable of generating and emiting a directional air flow, the device including:, especially at abstract, fig 2; Apparatus claims must be structurally distinguishable from the prior art in terms of structure, not function. The manner of operating an apparatus does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim (see MPEP § 2114 & § 2173.05(g))
a hollow body 40 which includes a broader part housing a fan 45 capable of generating an air flow, especially at para 12, fig 3
which air flow can be flushed out of the housing via an elongate conduit 9 within a narrower part of the hollow body, especially at para 12, fig 3
wherein the hollow body also includes a slot or aperture (covered by 5) capable of receive a sample of a fragrance composition on a suitable support, especially at para 12, fig 2
optional language, which does not need to be found, is "wherein the housing is fixed on a holder by means of an optional flexible foot which is adapted to allow orientation of the conduit in a plurality of directions",
into panels, especially at wherein capable of, during operation of the device, the fan generates a directional air flow, which passes over a sample thereby to entrain the fragrance composition and create a scented plume that passes through the conduit and is emitted into a channel defined by panel 12, especially at abstract, para 12, fig 2; Apparatus claims must be structurally distinguishable from the prior art in terms of structure, not function. The manner of operating an apparatus does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim (see MPEP § 2114 & § 2173.05(g))
NELSON does not specifically teach panels
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention (or at the time the invention was made; if pre-AIA ) to divide a panel of NELSON into panels of NELSON since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art (MPEP 2144.04 PART V-C)
NELSON sufficiently teaches which panel capable of suppress undesirable lateral room convection (as in a similar lateral position, as claimed invention), especially at abstract, para 12, fig 2
wherein a top of a channel (above 12) is open, capable of enable an evaluator to assess the scented plume at different distances along the channel, especially at abstract, para 12, fig 2
With regard to claim 15, NELSON sufficiently teaches
wherein the panels are parallel, especially at as an addendium, to claim 12 discussion, sufficiently within the scope of constructing a formerly integral structure in various elements
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 20120247182 (herein known as NELSON) in view of US 20200306402 (herein known as Qasem)
With regard to claim 14, NELSON does not specifically teach wherein the housing further comprises a thermo-regulated element for heating the sample.
But, Qasem sufficiently teaches a thermo-regulated element 56 capable of heating the sample, especially at fig 5, para 23,24
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention (or at the time the invention was made; if pre-AIA ) to provide NELSON with a thermo-regulated element 56 capable of heating the sample of Qasem for the benefit of volatilizing a sample, as determined as needed
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANTHONY R SHUMATE whose telephone number is (571)270-5546. The examiner can normally be reached on M,T,Th,F.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Lebron can be reached on (571)272-0475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ANTHONY SHUMATE/
Primary Examiner, Art Unit 1776