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 .
Abstract
The abstract of the disclosure is objected to because:
Phrases that can be implied, such as “are disclosed” (see line 2) should not be present therein;
Legal phraseology such as “means” (see lines 10 and 12) should not be present therein; and
The abstract should be submitted on a separate sheet with no other verbiage thereon.
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Drawings
The drawings are objected to because:
Reference character 71 (see page 11, lines 15, 18 and 24 and page 12, line 9) is not present in any of the drawings.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities:
Reference characters 61a, 90a and 90b (see Figure 13) are not present in the specification.
Appropriate correction is required.
The specification is further objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required:
The terms/limitations “earbud” (see claim 19, line 8 and claim 26, line 10), “ornamental cover” (see claim 21, line 2 and claim 28, line 2), “means for attaching” (see claim 22, line 2 and claim 29, line 2) and “disposing” (see claim 26, line 3) do not have an antecedent basis in the specification.
Claim Objections
Claims 23, 24 and 26 are objected to because of the following informalities:
In regard to claims 23 and 24, it is unclear as to whether or not the perfume and cologne are intended to be part of the claimed combination, i.e., the language of claim 19 is such that the perfume and cologne are not intended to be claimed; however the language of claims 23 and 24 seem to indicate the perfume and cologne are intended to be claimed. Should the Applicant intend on claiming the perfume and cologne, an antecedent basis should therefor be defined. Should the Applicant not intend to claim the perfume or cologne, “adapted to be” / “for” language should be used when referring thereto.
In regard to claim 26, it is unclear as to what limitation the term “disposing” (see line 3) is intended to define.
Appropriate correction is required.
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.
Claim Rejections - 35 USC § 112
Claims 22 and 29 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.
Claim limitation “means for attaching” (see claim 22, line 2 and claim 29, line 2) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The specification is devoid of adequate structure to perform this claimed function. In particular, the specification does not disclose any structure which would perform the function of attaching the dispensing device to another element. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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.
Claims 19-34 are rejected under 35 U.S.C. 103 as being unpatentable over Kihm et al. (US 2018/0373272, as cited by the Applicant, hereinafter Kihm).
In regard to claims 19 and 20, the Kihm reference discloses a wearable fragrance dispensing device comprised of:
a fragrance housing 11 (see Figures 1 and 3) comprising a plastic material (see paragraph 0073, lines 1-5) and having at least one cavity 160 for maintaining a liquid fragrance emitting composition (see paragraph 0079, lines 1-5), the fragrance housing having at least one port 172 for the liquid fragrance emitting composition to egress from the fragrance housing and an input port 162 for filling the at least one cavity with the liquid fragrance emitting compositions (see paragraph 0082);
wherein the dispensing device is incorporated into an external device 20, such as eyeglasses or a bracelet (see paragraph 0078, lines 5-11); and
wherein the wearable fragrance dispensing device passively emits the liquid fragrance emitting composition.
Although the Kihm reference defines the housing as being made from a plastic material but does not disclose the type of plastic used to make the housing, it is the examiner’s position it would have been obvious to one of ordinary skill in the art at the time the invention was made any suitable and know plastic, including those claimed, can be used to make the housing without effecting the overall operation of the device, especially since the Applicant has not indicated the particular type of plastic is critical to the overall operation of the device and the Kihm reference does not limit the type of plastic which may be used to make the device.
Although the Kihm reference does not disclose the input port 162 is a one-way valve, as claimed, the examiner takes official notice that such input ports are commonly formed as one-way fill valves in order to prevent the fluid from drawing from the input port after the device is filled. In support of this position, attention is directed to the Lithgow and Daniels references which disclose other fluid reservoirs having input ports formed from one-way fill valves (see Lithgow, element 23, paragraph 0018, lines 9-12; and Daniels, element 26, column 1, the last line and column 2, lines 33-48). Accordingly, it would have been obvious to one of ordinary skill in the art at the time the invention was made the input port in the Kihm device can be formed as a one-way fill valve in order to prevent the fluid from draining through the input port after the device is filled.
In regard to claim 21, the wearable fragrance dispensing device includes an ornamental cover (defined either by element 12’, see Figure 8 or the interface 150, see Figure 3) attachable to the housing.
In regard to claim 22, the Kihm device includes a means for attaching 22, as a wearable item, the wearable fragrance dispensing device.
In regard to claim 23, the fragrance emitting composition is a perfume (see paragraph 0006).
In regard to claim 24, although the Kihm reference does not disclose the fragrance emitting composition is a cologne, as claimed, it is the examiner’s position it would have been obvious to one of ordinary skill in the art at the time the invention was made the fragrance emitting composition in the Kihm device can be any suitable and know fragrance emitting composition, including cologne, without effecting the overall operation of the device, especially since the Kihm reference does not indicate the specific fragrance emitting composition is critical to the overall operation of the device and the Kihm reference does not limit the type of fragrance emitting composition that may be used with the device.
In regard to claim 25, the fragrance housing has multiple ports 172 for the fragrance emitting composition to egress the housing.
In regard to claims 26-34, as discussed above, the Kihm device includes all of the structure defined therein. Further, the method as claimed includes “disposing” a wearable fragrance dispensing device, incorporating the device into eyeglasses or a necklace, filling the cavity with a liquid fragrance emitting composition and refilling the cavity with liquid fragrance emitting composition after a period of time (see paragraph 0082).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The Rodriquez-Sdassi, Nakamura et al. and Hudson et al. references are cited as being directed to the state of the art as teachings of other wearable items which emitting a fragrance.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID J WALCZAK whose telephone number is (571)272-4895. The examiner can normally be reached Monday-Friday 6:30-4:00.
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, David Angwin can be reached at 571-270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DJW
1/16/26
/DAVID J WALCZAK/Primary Examiner, Art Unit 3754