DETAILED ACTION
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 .
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 10-13 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 10 recites the limitation “the illumination elements are only visible when the one or more illumination elements are illuminated”. The disclosure as filed supports illumination elements that are not visible from the front at any point because the elements themselves are embedded in the front portion of the dispenser. See for example, Fig. 7 in the instant disclosure. The front wall 232 is supported as being either “opaque, transparent or translucent” (see par. 5 of the instant disclosure), which would allow for the illumination elements to either be visible all the time or not visible all the time, with the light that they emit being emitted through the wall that is then itself visible some part of the time. Therefore, the instant specification supports, at best, illumination elements that emit visible light through a transparent or translucent front wall while themselves being embedded in said wall or located behind it. The disclosure does not support illumination elements that are visible in one moment and invisible in another, rather lights that turn on and off while embedded or behind a structure.
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 10-13 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 10 refers to “three or more illumination elements”, “the illumination elements”, and “the one or more illumination elements” in lines 2-5 of the claim. It cannot be determined from the claim how many illumination elements are included in the device and therefore the scope of the claim cannot be determined and the claim is indefinite. For the purpose of examination, it is interpreted there are one or more illumination elements.
The remaining claims are rejected for depending from claim 10, and should be similarly treated to correspond to a specific amount of illumination elements.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-5, 7-9 and 21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
The claim recites “the controller calculates an amount of the volatile material in the refill based on the amount of time that the refill has been heated by the heater”, where the limitation “calculates” is a mental process that could reasonably be performed in the human mind. A human, either in their mind or only with crude tools like a pencil and paper, could perform a calculation as claimed.
This judicial exception is not integrated into a practical application because the only recited use of the calculation is a communication to the electronic device, and the simple transmission of data is nothing more than an insignificant post-solution activity. See MPEP 2106.05(g), specifically: “Mere Data Gathering: (v). Consulting and updating an activity log” is an example of mere data gathering and not a particular practical application, and “[t]he notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula”.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the only additional elements of the claim are nothing more than well-understood, routine, and conventional elements in the field of volatile material diffusion, particularly in view of Lima and Westring, which teach a dispenser, heater, circuit board, and illumination elements as set forth below.
Claims 2-5 and 7-9 are rejected for depending on claim 1 and for further failing to amount to significantly more than the abstract idea.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 10-13 are rejected under 35 U.S.C. 103 as being unpatentable over Lima (US 2017/0119918) in view of Dancs (US 2005/0195598) in view of Eade (US 2024/0157015).
Regarding claim 10, Lima (US 2017/0119918) discloses –
A dispenser (title, abstract, figs. 1-2 dispenser 132), comprising:
a portion with illumination elements (Fig. 2A-D output devices 210 that are LEDs; par. 115);
a rear portion from which a plug deck extends (Fig. 2C-D where inner surface 216 has therein a cavity defining slots 222) that is configured to receive a refill (Fig. 2C shows the housing 200 receiving vials 250, this portion being part of the portion of the housing including the plug),
a heater assembly that is disposed within the rear portion and is configured to heat a volatile material disposed in the refill (Fig. 2F shows heating elements 196 proximate the rear portion); and
a printed circuit board having a controller and being electrically coupled with the heater assembly (Fig. 2D main board 235 with controller 188; par. 123),
the controller configured to regulate a temperature of the heater assembly (par. 123 discloses the controller performs the function of temperature feedback control when controlling the heating elements 196), wherein
the three or more illumination elements, in combination, are configured to communicate a status of the dispenser to a user at least by varying an illumination status of the illumination elements (par. 92 discloses the light emitted corresponding to a particular operation determined by a user input).
Lima appears to be silent with regards to the limitation that the illumination elements are 3 or more radially offset from and centered about a point on a front portion of the dispenser, and wherein the front portion has a front wall where the illumination elements are only visible when the one or more illumination elements are illuminated.
Dancs (US 2005/0195598) teaches a dispenser (abstract, par. 20) having front portion having a front wall with illumination elements being disposed in the front portion where the elements are only visible when the one or more illumination elements are illuminated (Fig. 9 front lens 27 which is substantially opaque enough to diffuse light in a glowing manner, rendering the elements only visible when illuminated; pars. 75-76). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Lima such that the front portion has a front wall such that the elements are only visible when the one or more illumination elements are illuminated as taught by Dancs. One would have been motivated to do so to allow for a pleasant glowing effect to arrive at a more aesthetically pleasing diffusion device.
Further regarding the limitation that the lights are radially offset and centered around a point: Eade (US 2024/0157015), with an effective filling date of at least 5/5/23, teaches a front portion that is configured to illuminate three or more illumination elements that are radially offset from and centered about a point (Figs. 3-4 light ring 316 on lid 220 which is opposite a cup portion 200; pars. 72-74 disclose the light ring 314 are illuminated to indicated an operation status of the device by varying the illumination). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Lima such that the device includes a front portion that is configured to illuminate three or more illumination elements that are radially offset from and centered about a point as taught by Eade to arrive at the claimed invention. One would have been motivated to do so to best display the status indicators to a user in a known and aesthetically pleasing manner to arrive at an improved device.
Regarding claim 11, modified Lima further teaches varying the illumination elements includes: illuminating the illumination elements in a pattern; or altering an illumination color of the illumination elements (pars. 35-36 of Eade disclose changing light and pattern of the light ring, pars. 92 and 165 of Lima discloses changing light and pattern similarly).
Regarding claim 12, modified Lima appears to be silent with regards to an equilateral triangle configuration, however this modification would be merely a change in shape and has no patentable significance absence evidence the configuration is significant, MPEP 2144.04(IV)(B). The lights being circular or triangular would provide no functional difference from the prior art and the modification would be obvious as a result.
Regarding claim 13, modified Lima appears to be silent with regards to an emblem disposed thereon configured to communicate the operation status of the dispenser to the user. However, the inclusion of an emblem is merely an aesthetic one that provides no particular function beyond what is already provided for by the lights disclosed in the prior art. Therefore, the modification of one of the lights to be decorative such that it is an “emblem” as claimed would be nothing more than a difference in ornamentation which would provide no unique mechanical function and would be obvious as a result. MPEP 2144.04(I).
Claims 14 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Lima (US 2017/0119918) in view of Camarero Diez (US 2021/0069366) in view of Westring (US 2004/0009103).
Regarding claim 14, Lima discloses –
a dispenser (particularly Fig. 2 showing dispenser 132) comprising:
a portion that is configured to illuminate one or more illumination elements (Fig. 2A-D output devices 210 that are LEDs; par. 115)
a rear portion from which a plug deck extends (Fig. 2B and D shows the plug 206 extending from backside 212 of portion 233),
the rear portion defining a receiving port (Fig. 2C-D where inner surface 216 has therein a cavity defining slots 222) that is configured to receive a refill (Fig. 2C shows the housing 200 receiving vials 250, this portion being part of the portion of the housing including the plug),
a heater assembly that is disposed within the rear portion and configured to heat a volatile material disposed in the refill (Fig. 2F shows heating elements 196 proximate the rear portion); and
a printed circuit board having a controller and being electrically coupled with the heater assembly (Fig. 2D main board 235 with controller 188; par. 123), the controller configured to
regulate a temperature of the heater assembly (par. 123 discloses the controller performs the function of temperature feedback control when controlling the heating elements 196), and
receive instruction via wireless communication from an electronic device (Fig. 1 shows a network, Figs. 16A-E show wireless interface 1600 of an electronic device for transmitting instruction, par. 91).
Lima appears to be silent with regards to the limitation that the illumination elements are transmitting light through a front portion and with regards to the refill is not visible when viewed along a viewing axis that extends from a front wall of the front portion which bifurcates the front wall.
Camarero Diez (US 2021/0069366) teaches a dispenser where the refill is loaded into the dispensing device in such a way that in a use configuration of the dispenser, the refill is not visible when the dispenser is viewed along an axis that extends from a front wall of the front portion wherein the viewing axis extends along a center plane that bifurcates the front wall wherein the refill is visible when the dispenser is viewed perpendicular to the viewing axis (Fig. 1 shows that the refill 2 is blocked from viewing from the front by the additional element 4 and is visible from the side viewing angle which is perpendicular to the front viewing angle). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Lima such that the front portion is structured so that the refill is visible from the side but not from the front as taught by Camarero Diez. One would have been motivated to do so to both allow the display of a an additional element as desired and further to allow for convenient removal and replacement of the refill 2 without having to fully remove the lid 204 to arrive at an improved dispenser.
Westring (US 2004/0009103) discloses a dispensing device (title) wherein the front portion includes lights for indicating a stat us of operation of the device (Fig. 1 shows lights 170 on a front cover of device 20 that indicated a setting of the device, par. 74). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Lima such that the lighting elements are on the front portion and transmit therethrough as taught by Westring to arrive at the claimed invention. One would have been motivated to do so to place the lights in the most visible part of the device where a user is best able to see the lights illumination characteristics to arrive at an improved dispensing device. The combination of familiar prior art elements, including lights on known parts of known dispensing devices, according to known means to arrive at results that are nothing more than predictable is prima facie obvious. MPEP 2143(I)(A).
Regarding claim 16, modified Lima appears to be silent with regards to the front portion defining a rounded rectangle periphery, however this modification would be merely a change in shape and has no patentable significance absence evidence the configuration is significant, MPEP 2144.04(IV)(B). The front cover being a different shape would not affect the manner in which the device performs its function and the configuration is merely an aesthetic difference, which is an obvious modification to make.
Regarding claim 17, modified Lima further teaches the rear portion includes a flanged aperture through which volatile material is configured to release once it has been heated (Figs. 2A-C ports for releasing air 214, par. 128; the cover 204 also has a corresponding aperture that rests on the port 214 that acts as a flange resting about and extending vertically from the periphery of the port 214).
Regarding claim 18, modified Lima further teaches a plurality of dimples on the housing (see figs. 2A-C showing decorative bubble-like grooves formed in both lid 204 and housing 200). Lima appears to be silent with regards to the dimples at least partially surrounding the flanged aperture. However, the inclusion of an of the dimples as forming rings that at least partially surround the flanged aperture has no particular mechanical function beyond what is disclosed in the prior art and the difference between the claimed invention and the prior art is merely one of aesthetics. Therefore, the modification of one of the dimples to form one or more “rings of dimples” as claimed would be nothing more than a difference in ornamentation which would provide no unique mechanical function and would be obvious as a result. MPEP 2144.04(I).
Regarding claim 19, modified Lima further teaches the heater assembly is aligned with the flanged aperture (Fig. 2C shows the refills 250 and the heater 196 which is above the refills as being aligned with one another for the exhaling of the diffused air; par. 128).
Regarding claim 20, modified Lima further teaches the controller is configured to regulate the temperature of the heater assembly based on a size of a room where the dispensing device is located (par. 138 discloses the volume requirement of a room is used to determine the rate at which the sent is diffused and the temperature of the heater accordingly).
Response to Arguments
Applicant’s arguments, with respect to the 103 rejection of claim 1 and its dependents, are persuasive. See p. 11-12 of the remarks filed 6/11/26. The prior art does not teach the calculation as claimed. The 103 rejection of claim 1 has been withdrawn.
Applicant's arguments with respect to the 101 rejection of claim 1 and its dependents, filed 6/11/26, have been fully considered but they are not persuasive.
Applicant argues on pages 6-7 that claim 1 was not rejected under 101 and therefore claim 6 could not be rejected under 101, which is not persuasive. Claim 1 as previously presented did not recite an abstract idea, and therefore was not subject to a 101 analysis to seek if the claim amounted to significantly more than an abstract idea. Claim 6, now fully incorporated into claim 1, does recite an abstract idea as set forth above and therefore the analysis must be completed.
Applicant then argues on page 7 that claim 1 recites limitations that cannot be practically performed in the human mind, such as a dispenser having a front portion with illumination elements. The Examiner agrees that a dispenser having a front portion with illumination elements are not limitations that can be practically performed in the human mind and, as such, does not assert that those limitations are abstract ideas anywhere in the rejection. The limitations identified by Applicant are Additional Elements that are separate from the abstract idea as outlined in the rejection above.
Applicant similarly argues on page 8 that other elements such as determining when a heater of a dispenser is activated or deactivated by way of determining when current is delivered to the heater are not abstract ideas, which is further not alleged in the rejection. The abstract idea identified by the rejection is the function of “calculate[ing] an amount of the volatile material in the refill based on the amount of time that the refill has been heated by the heater”. A human is certainly capable of performing the step of “calculating” entirely in their mind or with only the help of a pen and pencil, and therefore the claim contains a limitation that is directed towards an abstract idea. The fact that there are other limitations in the claim that are not abstract ideas does not halt the analysis of subject matter eligibility when the claim recites an abstract idea.
Applicant then argues on page 9 that the claim recites meaningful limitations that go beyond generally linking the use of the abstract idea to a technological environment, citing a dispenser having a front portion with illumination elements and the remainder of claim 1 as these limitations, which is further not persuasive. The additional elements of claim 1 fail to incorporate the abstract idea of calculation into any particular practical application, because the only application of this calculation is that the amount calculated is communicated to an electronic device, and the mere transfer of data is an insignificant post-solution activity as set forth above. A controller communicating a calculated value to another generic electronic device is not specific nor practical, and does not on its own accomplish anything useful.
Further regarding Applicant’s arguments on pages 10-11 arguing that the additional elements amount to significantly more, because the claims are directed towards an improvement in a computer-related technology, which is not persuasive. Applicant fails to identify what improvement is claimed, and The Examiner maintains that performing a calculation and communicating the result to another generic electronic device is not a specific improvement in a computer related technology, and is rather a generic and nonspecific extra-solution activity being applied to an abstract idea. The 101 rejection of claim 1 and its dependents is maintained.
Applicant’s arguments with respect to claims 10 and 14 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The newly cited Dancs and Camarero Diez remedy any alleged deficiencies of the prior art, as necessitated by Applicant’s amendment. The claims depending from claim 10 or 14 remain rejected similarly.
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 BRENDAN A HENSEL whose telephone number is (571)272-6615. The examiner can normally be reached Mon-Thu 8:30 - 7pm;.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Maris Kessel can be reached at (571) 270-7698. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRENDAN A HENSEL/Examiner, Art Unit 1758
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