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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“power supply element” in line 2 of claim 5. The “element” is the placeholder and the “power supply” is the functional language; and
“heating unit” in line 2 of claim 8. The “unit” is the placeholder and the “heating” is the functional language.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Objections
Claim 1 is objected to because of the following informalities: “the repellent drug comprises Picaridin” in line 8, should read --the repellent drug comprises picaridin.-- Appropriate correction is required.
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 2 and 3 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 “high-molecular” in claim 2 is a relative term which renders the claim indefinite. The term “high-molecular” 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 magnitude, size, length, mass or density of molecule needed to meet the claim limitation is not known. Clarification is respectfully requested.
In claim 2, line 2, the recitation “an upper opening of the bottle body” appears to be a double inclusion of the “upper portion of the bottle body is opened” recited in lines 6-7 of claim 1.
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.
Claim(s) 1-9 are is/are rejected under 35 U.S.C. 103 as being unpatentable over Modlin et al. (US20100224697. Modlin hereinafter) in view of Fallon et al. (US 20140113826. Fallon hereinafter).
With respect to claim 1, Modlin discloses a mosquito repelling apparatus (Figs. 1-18, especially the embodiment shown in Figs. 10A-13A), comprising a bottom seat (250, 280) and a bottle body (210, 220, 230), wherein the bottle body is detachably mounted on the bottom seat, and a repellent drug (liquid repellent. [0064]) is loaded in the bottle body; a bottom portion of the bottle body is provided with an atomizer (elements on 230), the atomizer atomizes the repellent drug by ultrasonic waves (portable ultrasonic repellent humidifier. [0057]), when the bottle body is mounted on the bottom seat, the bottom seat supplies power (via battery 280) to the atomizer at the bottom portion of the bottle body, and an upper portion (232) of the bottle body is opened (232, 235).
Modlin fails to disclose the repellent drug comprises Picaridin.
However, Fallon teaches using an ultrasonic spraying/misting devices ([0051]) to atomize repellent drug (insect repellents and insecticides) wherein the repellent drug comprises Picaridin ([0107]).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the teaching of the repellent drug comprises Picaridin, as taught by Fallon, to Modlin’s mosquito repelling apparatus, in order to repel and kill the insects ([0105]- [0107]).
With respect to claim 2, Modlin’s apparatus modified by adding Fallon’s picaridin, Modlin further discloses wherein a high-molecular film (232) is arranged at an upper opening (232, 235) of the bottle body.
With respect to claim 3, Modlin’s apparatus modified by adding Fallon’s picaridin, Modlin further discloses wherein the mosquito repelling apparatus further comprises an upper housing (240), the upper housing is mounted on the bottom seat, and an outer side (with 237) of the bottle body is wrapped (surrounded) by the upper housing; and an upper portion of the upper housing is provided with a ventilation area (opening), and there is a plurality of ventilation holes (232, 235) in the ventilation area.
With respect to claim 4, Modlin’s apparatus modified by adding Fallon’s picaridin, Modlin further discloses wherein an outer side (of 231) of the bottom portion of the bottle body is provided with a contact point (inner circle of 231 below 238. Fig. 11) electrically connected with the atomizer; and an upper portion of the bottom seat (Fig. 13A) is provided with a conductive connecting piece (243) , and when the bottle body is mounted on the bottom seat, the connecting piece contacts with the contact point.
With respect to claim 5, Modlin’s apparatus modified by adding Fallon’s picaridin, Modlin further discloses wherein the bottom seat is internally provided with a power supply element (battery 280), the power supply element supplies power to the atomizer, a surrounding side of the bottom seat is provided with a switch (251) and a power supply interface (electrical elements connecting 251 to the battery 280), and the switch and the power supply interface are both connected with the power supply element.
With respect to claim 6, Modlin’s apparatus modified by adding Fallon’s picaridin, Modlin further discloses wherein the power supply element is a battery (280) or a switching power supply.
With respect to claim 7, Modlin’s apparatus modified by adding Fallon’s picaridin, Fallon further teaches wherein the repellent drug further comprises one or more of dimethyl carbate, methyl nonyl ketone, and N,N-diethyl-3-methylbenzamide (DEET) ([0107]).
With respect to claim 8, Modlin’s apparatus modified by adding Fallon’s picaridin, Modlin further discloses wherein the atomizer is internally provided with a heating unit (transducer assembly) which is used to (capable of) raise a temperature of the repellent drug (the transducer assembly is consider a heating unit because it generates heat. [0046]).
With respect to claim 9, Modlin’s apparatus modified by adding Fallon’s picaridin, Modlin further discloses wherein a heating working temperature of the atomizer is greater than 40℃ and less than 120℃ (…Many insects are more active at certain temperatures and inactive outside that temperature span. Thus, vaporization is ineffective. For example, many types of pests are inactive in temperatures below 55° F. (12.8° C.), and therefore, if weather sensor 374 passes information to programmable controller 336 indicating the outside temperature is not within the tolerance of the adult population, misting operations should be suspended during those periods… [0078]).
Modlin fails to discloses the heating working temperature of the atomizer is less than 120℃.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the heating working temperature of the atomizer is less than 120℃, since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The following patents are cited to show the art with respect to an insect repelling device: Cho, Paganessi et al., Howse et al., Wilbanks, Nolen et al., Mah and Coventry.
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/CHEE-CHONG LEE/Primary Examiner, Art Unit 3752 November 10, 2025