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 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 7 is 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.
The term “a sufficient amount of heat” in claim 7 is a relative term which renders the claim indefinite. The term “a sufficient amount of heat” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
The term “a desired release rate” in claim 7 is a relative term which renders the claim indefinite. The term “a desired release rate” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
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.
Claims 16 and 19 are 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. Claims 16 and 19 all depend from claim 1 but fail to include all the limitations of claim 11 as the claims can be interpreted to omit the device which is required by claim 1. 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 § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-3, 6-8, 11-12 and 16-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Spector (US 4,781,895).
In regard to claim 1, Spector discloses a device (aroma generator) capable of dispensing at least one air treatment substance (such as aroma) comprising a top portion (removable cap 19) and a housing (combination of base 10 and cylindrical shell 13), wherein the housing comprises: a base (base 10), and at least one side portion (shell 13), wherein the at least one side portion is disposed between the base and the top portion, wherein the device has an interior space that is at least partially enclosed by the housing (see Figure 2) and a top plate (hot plate 26); wherein the housing capable of receiving a heat source (not explicitly recited but equivalent to the candle 23) on or above a top surface of the base (candle is received in cup 22) of the housing; wherein the device further comprises a holder (aroma cartridge 27) that is capable of receiving a composition comprising at least one air treatment substance (not explicitly recited but analogous to the liquid fragrance impregnated in the pad 31 of the aroma cartridge 27); and wherein the device is further capable of receiving the heat source and the composition such that the heat source can apply heat to the composition, wherein the top plate (hot plate 26) is disposed between the top portion (removable cap 19) and the housing (combination of base 10 and cylindrical shell 13) and capable of aligning the holder (aroma cartridge 27) and the heat source (not explicitly recited but equivalent to the candle 23). See Figures 1-2 and col. 2, line 41 through col. 3, line 1.
In regard to claim 2, Spector discloses a device (aroma generator) for dispensing at least one air treatment substance (such as aroma) comprising a top portion (removable cap 19) and a housing (cylindrical shell 13), wherein the housing comprises at least one side portion (shell 13),wherein the at least one side portion is disposed between an exterior surface underlying the device (base 10 can be viewed as a separate, exterior surface of the device as the shell 13 is placed on the rim 12 of the base 10) and the top portion when the device is placed on the exterior surface underlying the device, and wherein the device has an interior space that is at least partially enclosed by the housing (see Figure 2), and a top plate (hot plate 26); wherein the device further comprises a holder (well 18) that is capable of receiving a composition comprising the at least one air treatment substance (not explicitly recited but analogous to the liquid fragrance impregnated in the pad 31 of the aroma cartridge 27); and wherein the device is further configured to receive the composition such that a heat source (not explicitly recited but equivalent to the candle 23) placed on the exterior surface (cup 22 is part of the base 10 which defines the exterior surface) underlying the device and within the interior space can apply heat to the composition. See Figures 1-2 and col. 2, line 41 through col. 3, line 1.
In regard to claim 3, Spector discloses wherein the top portion (removable cap 19) is removable from the housing and is situated to be capable of blocking or inhibiting a vertical flow of the at least one air treatment substance from the composition (not explicitly recited but analogous to the liquid fragrance impregnated in the pad 31 of the aroma cartridge 27) received by the holder (aroma cartridge 27) when the composition is heated as the vent holes 20 in the cap 19 would block or inhibit a vertical flow from the cartridge 27. See Figure 2 and col. 2, lines 54-57.
In regard to claim 6, Spector discloses a second holder (cup 22) capable of receiving the heat source (not explicitly recited but equivalent to the candle 23), and is located between the first holder and the base. See Figure 2.
In regard to claim 7, Spector discloses wherein the device is capable of receiving the heat source (not explicitly recited but equivalent to the candle 23) and the composition (not explicitly recited but analogous to the liquid fragrance impregnated in the pad 31 of the aroma cartridge 27) such that the heat source is capable of applying a sufficient amount of heat to the composition to produce a desired release rate of the air treatment substance as the disclosed structure is substantially identical to that of the claims. Regarding product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed. Cir. 1997) (see MPEP § 2112.01, I.).
In regard to claim 8, Spector discloses that the device can include the heat source (candle 23), wherein the heat source comprises a candle. Spector does not disclose wherein the candle can heat the composition comprising at least one air treatment substance (not explicitly recited) to a temperature of about 140-220°C, but the disclosed structure is substantially identical to that of the claims. Regarding product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed. Cir. 1997) (see MPEP § 2112.01, I.). Thus, it is viewed that the candle of Spector is inherently capable of heating the composition comprising at least one air treatment substance to a temperature of about 140-220°C.
In regard to claim 11, it is noted that the at least one air treatment substance has not been explicitly recited. As such, the limitation of claim 11 does not further limit the patentability of the claimed device. “Expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim.” Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). Furthermore, “[i]nclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims.” See In re Young, 75 F.2d *>996<, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)) (see MPEP § 2115).
In regard to claim 12, it is noted that the composition has not been explicitly recited. As such, the limitation of claim 12 does not further limit the patentability of the claimed device. “Expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim.” Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). Furthermore, “[i]nclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims.” See In re Young, 75 F.2d *>996<, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)) (see MPEP § 2115).
In regard to claims 16-19, Spector discloses that the device (aroma generator), the heat source (candle 23), and the composition (substance within the aroma cartridge 27) can be provided in an assembled form (see Figure 2) which is analogous to the recited kit.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Spector in view of Formico et al. (US 8,845,118; hereinafter “Formico”).
In regard to claim 4, Spector is silent in regard to at least one side opening in the top portion that allows or directs a lateral or horizontal flow of the at least one air treatment substance through the at least one side opening as the cap 19 of Spector has vent holes 20 which only allow for vertical flow.
Formico discloses a device for dispensing fragrances wherein the top portion (upper housing 22) of the housing (central housing 24) includes at least one side opening (fluid outlets 68) in the top portion that allows or directs a lateral or horizontal flow of the at least one air treatment substance through the at least one side opening in order to reduce the changes of precipitation from contacting the interior components of the device. See Figures 1-2 and 11 and col. 8, line 41 through col. 9, line 32.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the configuration of the upper housing of Formico for the cap of Spector for the purpose of preventing precipitation from entering the interior space of the device. Applying a known technique to a known device (method or product) ready for improvement to yield predictable results is likely to be obvious. See KSR International Co. v. Teleflex Inc., 550 U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, D.).
Claims 5, 9-10 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Spector in view of Sharma et al. (US 10,238,097; hereinafter “Sharma”).
In regard to claim 5, Spector is silent to wherein the holder comprises an aperture or recess shaped to receive and hold a pod comprising a container and the composition disposed within the container as the aroma cartridge 27 was mapped to the “holder” and the hot plate 26 was mapped to the “top plate” in claim 1. Alternatively, the aroma cartridge 27 of Spector can be viewed as equivalent to the recited a pod comprising a container and the composition disposed in the container.
Sharma discloses a candle dispenser 10 which uses a candle 26 to heat a composition (absorbed in substrate 30) in to dispense the composition in the surrounding air. Sharma teaches that the dispenser 10 includes a top plate (upper caddy 22) which includes a holder (refill frame 78) that includes an aperture or recess (center pocket which receives the substrate 30) for receiving and holding the composition (substrate 30). Sharma discloses that the structure of the upper caddy and refill frame has the advantage of including lift handles (86 and 150) which enable the structures to be lifted away from the candle in order to be easily refilled. See col. 3, line 65 through col. 4, line 3; col. 4, line 61 through col. 6, line 58 and Figures 1-3.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the top plate and holder (upper caddy and refill frame) structures of Hsiao for the top plate and holder of Spector for use with the aroma cartridge pods of Spector to achieve the predictable results of allowing the aroma cartridge to be lifted away from the heat source to allow for replacement when used up. The simple substitution of one known element for another is likely to be obvious when predictable results are achieved. See KSR International Co. v. Teleflex Inc., 550 U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, B.).
In regard to claim 9, it is noted that the holder of the above combination of Spector and Hsiao is capable of holding the pod comprising the container and the composition disposed within the container. As the pod has not been explicitly recited, the limitations regarding the contents and construction of the pod do not further limit the patentability of the claimed device. “Expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim.” Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). Furthermore, “[i]nclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims.” See In re Young, 75 F.2d *>996<, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)) (see MPEP § 2115).
In regard to claim 10, it is noted that the pod has not been positively recited. Therefore, the limitations regarding the composition of the matrix and at least one air treatment substance do not further limit the patentability of the claimed device. “Expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim.” Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). Furthermore, “[i]nclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims.” See In re Young, 75 F.2d *>996<, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)) (see MPEP § 2115).
In regard to claim 15, Spector discloses a method for releasing at least one air treatment substance (aroma) comprising: (a) placing a heat source (candle 23) in an interior space of a device (aroma generator), the device comprising a top portion (removable cap 19) and a housing (combination of base 10 and cylindrical shell 13), wherein the housing comprises at least one side portion (shell 13), wherein the at least one side portion is disposed between the top portion and a base (base 10) or external surface (external surface of the base 10) when the device is placed upright on the exterior surface, wherein the interior space of the device is at least partially enclosed by the housing, wherein the device further comprises a holder (well 18) that is configured to receive a composition (within the aroma cartridge 27) comprising the at least one air treatment substance (the aroma), and wherein the device is further configured to receive the heat source and the composition such that the heat source can apply heat to the composition (see Figure 2), wherein the device further comprises a plate (hot plate 26) configured to align the holder and the heat source; (b) placing a pod (aroma cartridge 27) in the holder of the device, the pod comprising a pod container (the pod would necessarily define an interior compartment of a container) and a composition (fragrant substance comprising the aroma) disposed in the container, wherein the composition comprises the at least one air treatment substance; and (c) heating the composition comprising a matrix (disc-shaped pad 31 of porous material) and the at least one air treatment substance with heat from the heat source to cause a release of the at least one air treatment substance into the surrounding air. See Figures 1-4 and col. 2, line 41 through col. 3, line 49.
Spector does not disclose wherein the holder and the plate are separate and distinct structures as the hot plate 26 is the bottom surface of the well 18.
Sharma discloses a candle dispenser 10 which uses a candle 26 to heat a composition (absorbed in substrate 30) in to dispense the composition in the surrounding air. Sharma teaches that the dispenser 10 includes a top plate (upper caddy 22) which includes a holder (refill frame 78) that includes an aperture or recess (center pocket which receives the substrate 30) for receiving and holding the composition (substrate 30). Sharma discloses that the structure of the upper caddy and refill frame has the advantage of including lift handles (86 and 150) which enable the structures to be lifted away from the candle in order to be easily refilled. See col. 3, line 65 through col. 4, line 3; col. 4, line 61 through col. 6, line 58 and Figures 1-3.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the top plate and holder (upper caddy and refill frame) structures of Hsiao for the top plate and well of Spector for use with the aroma cartridge pods of Spector to achieve the predictable results of allowing the aroma cartridge to be lifted away from the heat source to allow for replacement when used up. The simple substitution of one known element for another is likely to be obvious when predictable results are achieved. See KSR International Co. v. Teleflex Inc., 550 U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, B.).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Spector in view of Formico as applied to claim 4 above and further in view of Avelar (US 2009/0200393).
In regard to claim 13, Spector and Formico are silent in regard to a fan.
Avelar discloses an apparatus for diffusing a fragrance of a candle 1 wherein a fan (air movement device 5 comprised of a fan) is used to increase the amount of air moving through the device so as to increase the rate of fragrance diffusion. See Figure 5, [0003] and [0018].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the fan of Avelar with the device of the above combination for the purpose of increasing the diffusion of the aroma.
Response to Arguments
Applicant's arguments filed 23 June 2026 have been fully considered but they are not persuasive.
Applicant argues that Spector does not disclose the recited holder and top plate. The Examiner respectfully disagrees. Using the broadest reasonable interpretation of the recited limitations, the Examiner has mapped the claimed holder to be equivalent to the aroma cartridge 27 of Spector and has mapped the claimed top plate to be equivalent to the hot plate 26 of Spector.
Applicant argues that the removable cap 19 of Spector does not “block or inhibit” vertical flow. The Examiner respectfully disagrees. As the cap 19 is located above the vent hold of the aroma cartridge 27, the removable cap necessarily “blocks or inhibits” vertical flow as the cap is located in the vertical flow path of the composition when heated. Thus, the cap 19 is necessarily an obstacle, which is the definition of “block” in Merriam-Webster Dictionary, of the vertical flow of the heated composition.
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 TIMOTHY C CLEVELAND whose telephone number is (571)270-5041. The examiner can normally be reached M-F 9:00-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Claire Wang can be reached at (571) 270-1051. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TIMOTHY C CLEVELAND/Primary Examiner, Art Unit 1774
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