FINAL REJECTION
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 § 102
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 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.
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) 1 and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN 111887245 A.
As an aside, an English Language machine translation of CN 111887245 A can be found in two ways: 1) The EPO translation already sent to Applicant in related Application S.N. 18/270,003 as an attachment to the Office Action mailed 09/02/2026, and/or 2) by typing said document CN Number into Google Patents or by clicking on the following link: CN111887245A - Mosquito-repellent incense with good combustion performance and preparation method thereof - Google Patents.
CN 111887245 A discloses mosquito-repellent incense with good combustion performance, which comprises the following components: 110kg of wood powder, 20-40kg of adhesive powder (i.e. viscous powder or sticky powder), 10-20kg of insect repellent, 2-5kg of graphene and 5-10kg of aluminum oxide, see independent claim 1. The adhesive powder (i.e. viscous powder or sticky powder) is most preferably selected from tapioca starch and/or mung bean starch, see dependent claim 3. The fineness/granulometry of each component in the mosquito-repellent incense composition falls within the range of 300-400 meshes (i.e. about 50 to 37 microns), see dependent claim 5. The continuous burning time of the mosquito-repellent incense is long, and the mosquito-repellent incense cannot cause damage to human bodies.
Please note that CN 111887245 A’s wood powder reads directly on Applicant’s “-a natural material that is wood,” component, as set forth in Applicant’s independent claim 1, and also reads directly on where the natural material is “wood sawdust”, as set forth in Applicant’s dependent claim 12. Also note that CN 111887245 A’s adhesive powder (i.e. viscous powder or sticky powder), most preferably a starch, reads directly on Applicant’s “-a dispersible binder that is flour,”, as set forth in Applicant’s independent claim 1.
Applicant’s claims are deemed to be directly anticipated over CN 111887245 A’s Examples 1-3. As way of illustration only Example 2 reads as followed: “The mosquito-repellent incense with good combustion performance comprises the following components: 130kg of wood powder, 20kg of sticky powder, 20kg of insect repellent substance, 2kg of graphene and 10kg of aluminum oxide, wherein the fineness of each component is 400 meshes.” (i.e. about 37 microns) [Emphasis added].
Claim(s) 4-5, 13 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over CN 111887245 A in view of D’Orazio U.S. Patent Number 4,144,318.
CN 111887245 A has been disclosed above and differs from applicant’s claimed invention in that there is not a direct disclosure where a preservative (e.g. sodium benzoate) is further incorporated into the mosquito coil composition.
D’Orazio discloses an improved mosquito coil composition comprising from 72-83% by weight based on dry ingredients of a carrier selected from sawdust having a particle size between 70 and 200 mesh (i.e. 210 um to 74 um), coconut shell flour, pyrethrum marc, and mixtures thereof, from 16-26% by weight based on dry ingredients potato starch and 0.5-3% by weight based on dry ingredients of an insecticide. The process comprises dispersing the starch in water heated to a temperature of from 40o to 65o C., adding water having a temperature of between 80o to 95o C. to the dispersed water-starch mixture, mixing the starch-water gel with the filler and insecticide, extruding the mixture into a ribbon, forming the mosquito coil from this ribbon, and drying the formed mosquito coil, see abstract.
D’Orazio also discloses the preferable incorporation of optional components into the mosquito coil composition. One preferred optional component is a sodium benzoate preservative which can be incorporated into the mosquito coil composition in an amount of 0.3-0.75% by weight. Please note that D’Orazio’s said concentration range of 0.3-0.75% by weight, massively overlaps Applicant’s claim 5 concentration range limitation of between 0.5 and 1.5% for the preservative component.
It would have been obvious to one having ordinary skill in the art to use D’Orazio’s disclosure of column 3, lines 9-28 wherein sodium benzoate is directly disclosed as an optional component which can be incorporated in an amount of 0.3- 0.75% by weight, as strong motivation to actually incorporate sodium benzoate (e.g. between 0.5-0.75 wt.%), into CN 111887245 A’s mosquito coil composition for its various known benefits (e.g. as an anti-fungal/anti-spoiling agent and as a burning agent/burning regulator) in order to impart said beneficial properties to CN 111887245 A’s mosquito coil composition. It is well known in the art that it is not inventive to merely follow the direct suggestion of a prior-art reference.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 4-5, 12-13 and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-5 and 10-14 of copending Application No. 18/270,003 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the copending application’s required “a biodegradable material” component massively overlaps in scope the pending claims required “a natural material” component. As way of illustration only, the most preferred “a biodegradable material” component according to copending application is “wood sawdust” (see dependent claim 12), and the most preferred “a natural material” component according to the pending application is also “wood sawdust” (see dependent claim 12).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 07/07/26 with the amendment have been fully considered but are not persuasive to put the claims in condition for allowance for the reasons set forth above. Additional Examiner comments are set forth next.
In light of Applicant’s said amendment, Applicant’s claims 1 and 12 have now been rejected under the newly applied prior-art
reference of CN 111887245 A. Also in light of Applicant’s said amendment, dependent claims 4-5, 13 and 20, are now newly rejected over CN 111887245 A in view of D’Orazio U.S. Patent Number 4,144,318.
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 JOSEPH DAVID ANTHONY whose telephone number is (571)272-1117. The examiner can normally be reached M-F: 10:00AM-6:30PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arrie (Lanee) Reuther can be reached at 571-270-7026. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSEPH D ANTHONY/Primary Examiner, Art Unit 1764
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