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 .
Information Disclosure Statement
The information disclosure statement filed 9 June 2025 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered. No original copy of the two cited documents were provided.
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.
Claims 1-13 and 16-19 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.
In regard to claim 1, the limitation of “at least one air treatment substance” is recited in line 1 and again in line 11. It is unclear if the limitations are referring to the same or different substances. For the purpose of examination, the recitation in line 11 is interpreted --the at least one air treatment substance--.
In regard to claim 2, the limitation of “at least one air treatment substance” is recited in line 1 and again in line 8. It is unclear if the limitations are referring to the same or different substances. For the purpose of examination, the recitation in line 8 is interpreted --the at least one air treatment substance--.
In regard to claim 2, the phrase of “when the device is placed on the exterior surface” is indefinite as the exterior surface is a component of the device. Therefore, it is unclear if the limitation is requiring that the “exterior surface” be the bottom of the device or wherein the “exterior surface” is a structure which is not part of the device but rather a structure upon which the device is placed.
In regard to claim 2, the phrase of “a heat source placed on the exterior surface” is indefinite. It is unclear if the phrase means that the heat source is placed outside of the device or within the interior space of the housing. Further, it is unclear if structure of the heat source is being positively recited by the claim as the device need only to be “configured to receive the composition such that” the heat source can be placed on the exterior surface to apply heat to the composition.
In regard to claim 5, it is unclear to what structure the phrase “exterior surface” in line 2 refers.
Claim 6 recites the limitation "the exterior surface" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 7 recites the limitation "the air treatment substance" in line 4. There is insufficient antecedent basis for this limitation in the claim. For the purpose of examination, the limitation is interpreted as --the at least one air treatment substance--.
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.
Claim 12 recites the limitation "the air treatment substance" in line 2. There is insufficient antecedent basis for this limitation in the claim. For the purpose of examination, the limitation is interpreted as --the at least one air treatment substance--.
Claim 12 recites the limitation "the wax" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites the limitation "the at least one side opening" in line 3. There is insufficient antecedent basis for this limitation in the claim. For the purpose of examination, the claim is interpreted to depend on --claim 4-- instead of “claim 1.”
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 17-19 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 17-19 all depend from claim 16 but fail to include all the limitations of claim 16 as each of claims 17-19 omit one of the device, the heat source, and the composition. 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
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3, 5-12 and 15-19 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, cylindrical shell 13 and cover 14), 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, and wherein the device has an interior space that is at least partially enclosed by the housing (see Figure 2); 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 (well 18) that is capable of receiving a composition comprising at least one air treatment substance (not explicitly recited but analogous to 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. 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 (combination of base 10, cylindrical shell 13 and cover 14), wherein the housing comprises at least one side portion (shell 13),wherein the at least one side portion is disposed between an exterior surface (outside surface of the base 10) and the top portion when the device is placed on the exterior surface, and wherein the device has an interior space that is at least partially enclosed by the housing (see Figure 2); wherein the device further comprises a holder (well 18) that is capable of receiving a composition comprising at least one air treatment substance (not explicitly recited but analogous to 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 connected to the base 10 which comprises the exterior surface) 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 aroma cartridge 27) received by the holder (well 18) 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 5, Spector discloses wherein the holder (well 18) is located between the top portion (removable cap 19) and the base (base 10) of the housing and comprises an aperture or recess (well 18 is itself a recess or aperture) shaped to be capable of receiving and holding a pod (not explicitly recited but analogous to the aroma cartridge 27) comprising a container (the pod would necessarily define an interior compartment of a container) and the composition (the aroma) disposed in the container. See Figure 2.
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 aroma of 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 9, Spector discloses wherein the holder (well 18) is capable of holding or containing the pod (not explicitly recited but analogous to the aroma cartridge 27). 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 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 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, cylindrical shell 13 and cover 14), 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); (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.
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 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.
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.).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Spector in view of Formico 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.
Conclusion
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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/TIMOTHY C CLEVELAND/Primary Examiner, Art Unit 1774