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 .
Receipt is acknowledged of Applicant’s Restriction Requirement Response filed on 12/05/2025; and IDS filed on 11/27/2024 and 08/01/2023.
Claims 1-20 are pending in the instant application.
Claims 8-15 are withdrawn from further consideration.
Election/Restrictions
Applicant's election with traverse of Group I (claims 1-7, 16-20) in the reply filed on 12/05/2025 is acknowledged. The traversal is on the ground(s) that portable diffuser claim 8 of Group (II) and method claim 12 of Group (III) are each explicitly dependent on claim 1 and requires all the limitations of the product claim 1, and claims 9-11 and 13-15 are explicitly dependent directly or indirectly on claim 8 or claim 12, respectively. Accordingly, current claims 8-11 of Group (I) and claims 12-15 of Group (II) with explicit dependency on claim 1 of the elected Group (I) have unity of invention with the claims of the elected Group (I). Whether the product of claim 1 may be obtained by different methods or from different sources, or whether it may be used in different ways for different purposes, are irrelevant to the "unity of invention" inquiry under PCT rules. In summary, a common or corresponding special technical feature is present in that the respective subject matter of the pending claims, so the present claims comply with "unity of invention" rules.
This is not found persuasive because, as discussed in the restriction requirement, the inventions lack unity of invention because even though the inventions of these groups require the technical feature of claim 1, this technical feature is not a special technical feature as it does not make a contribution over the prior art.
The requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 112, 2nd paragraph
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 1-4, 6, 16-20 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.
The term "volatile fatty acid derivatives" in claim 1, renders the scope of said claim unclear since, on reading the document, a person skilled in the art would not know which structures are supposed to be encompassed by this term. The term "derivatives" encompasses compounds obtained by chemical reaction from another compound, including compounds of which the structure is far removed from the starting element, functional derivatives (such as compounds in which the heteroatoms are replaced by other atoms), compounds comprising numerous different types of side groups, etc. For examination purposes, any fatty acid will read on this term.
Note, every fatty acids are volatile to a certain degree.
The dependent claims fall therewith.
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.
Claim(s) 1, 3-4, 16-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by BAR-SHALOM et al (US 2008/0299199).
BAR-SHALOM teaches a composition that can swell and forms a gel (see abstract) comprised of: gellan gum (see abstract), which is a polysaccharide and would form the polysaccharide gel matrix; active agents, such as fatty acids (see [0120]) and fish oils, which has fatty acids and reads on volatile fatty acid derivatives; solubilizers (see [0075]), such as ethanol (see [0287]); and organic acids (see [0067]), such as citric acid for pH-adjusting (see [0062]).
Additional disclosures include: preservatives, coloring agents (see [0075]) and bases (see [0075]), which are bitter in taste.
Note, fatty acids are volatile to a certain degree. For examination purposes, any fatty acid will read on volatile fatty acid derivatives.
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.
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.
Claim(s) 1-2, 4-6, 16-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over BAR-SHALOM et al (US 2008/0299199).
As discussed above, BAR-SHALOM teaches a composition that can swell and forms a gel (see abstract) comprised of: gellan gum (see abstract), which is a polysaccharide and would form the polysaccharide gel matrix; active agents, such as fatty acids (see [0120]) and fish oils, which has fatty acids and reads on volatile fatty acid derivatives; solubilizers (see [0075]), such as ethanol (see [0287]); and organic acids (see [0067]), such as citric acid for pH-adjusting (see [0062]). Additional disclosures include: preservatives, coloring agents (see [0075]) and bases (see [0075]), which are bitter in taste. Note, fatty acids are volatile to a certain degree. For examination purposes, any fatty acid will read on volatile fatty acid derivatives.
The reference does not specifically teach adding the ingredients in the amounts claimed by Applicant. The amount of a specific ingredient in a composition is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and reasonably would expect success. It would have been customary for an artisan of ordinary skill to determine the optimal amount of each ingredient to add in order to best achieve the desired results, such as solubilizing active agents, adjusting to the desired pH, etc. Thus, absent some demonstration of unexpected results from the claimed parameters, this optimization of ingredient amount would have been obvious at the time of Applicant's invention.
Allowable Subject Matter
Claims 5 and 7 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Telephonic Inquiries
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAKE MINH VU whose telephone number is (571)272-8148. The examiner can normally be reached Mon-Fri 9:00am-5:30pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Hartley can be reached at (571) 272-0616. 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.
/JAKE M VU/Primary Examiner, Art Unit 1618