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 .
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 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.
Election/Restrictions
Applicant’s election of Group I, claims 1-7, in the response dated August 10, 2026, is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.03(a)).
Claims 8-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Status
Claims 1-13 are pending.
Claims 8-13 are withdrawn.
Claims 1-7 are examined on the merits in this prosecution.
CLAIM REJECTIONS
Indefiniteness Rejections
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.
Claims 1-7 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 pre-AIA the applicant regards as the invention.
Claim 1, lines 4-5, 7, 10-11, and 15 recites the terms “especially” (lines 4 and 11); “in particular” (lines 5, 7, and 11); and “preferably” (line 10). Claim 2 recites the term “in particular” (line 3). Claim 5 recites the term “in particular” (lines 3, 4, and 6). Claim 6 recites the term “in particular”. Claim 7 recites the term “in particular” (lines 3 and 7) “especially” (line 4); and “particularly” (line 3). As set forth in MPEP 2173.05(d), “Description of examples or preferences is properly set forth in the specification rather than the claims. If stated in the claims, examples and preferences may lead to confusion over the intended scope of a claim. In those instances where it is not clear whether the claimed narrower range is a limitation.”
As such, recitation in each of these claims of the terms “in particular,” “preferably,” “especially,” and “particularly” is considered indefinite under US patent practice. In each recitation, the claim is interpreted herein as reciting the broadest scope in each claim.
Claim 5 is rejected since the Calamus genus of plants does not have an alveolar structure, but rather a dense, solid, and fibrous internal structure. See Dewi (“Anatomical Characteristicts of Six Calamus Species of Kalimantan Barat,” IOP Conf. Series: Earth and Environmental Science 394 (2019) 012047).
Obviousness Rejection
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
1) Claims 1-7 are rejected under 35 U.S.C. 103 a s being unpatentable over Pageat (US 10,258,593), in view of Vlad (US 2020/0038537 A1), and Muller (US 2015/0258236 A1).
Pageat teaches a feline semiochemical composition comprising methyl laurate, methyl myristate, methyl palmitate, methyl linolate, methyl linoleate, methyl stearate, methyl oleate, dimethyl pimelate, and dimethyl azelate (Abstract), a solvent (col 4: 27-28), and a method of diffusing the composition that allows a slow release rate (col 4: 29-31; col 8: 61-64). This teaching also reads on claims 2-3.
For claim 4, Pageat teaches (col 27, claim 2) a semiochemical composition comprising:
a. between about 1 % to 8% (w %/w % ) methyl laurate,
b. between about 1 % to 8% (w %/w %) methyl myristate,
c. between about 10% to 18% (w %/w %) methyl palmitate,
d. between about 3% to 10% (w %/w %) methyl linoleate,
e. between about 40% to 55% (w %/w % ) methyl oleate,
f. between about 1 % to 8% (w %/w % ) methyl stearate,
g. between about 5% to 15% (w %/w %) dimethyl pimelate, and
h. between about 4% to 15% (w %/w %) dimethyl azelate.
Because the claimed range overlaps with the range disclosed by the prior art, a prima facie case of obviousness exists.
Pageat does not teach the stick recited in claims 1 and 5.
Vlad and Muller teach the missing element of Pageat.
Vlad teaches a method of air freshening comprising non-glycol ether solvents in an amount of from about 1% to about 95% of the composition comprising the method (Abstract). Vlad teaches the composition can comprise fragrances such as methyl stearate and methyl palmitate, and further teaches solvents such as 3-methoxy-3-methyl-1-butanol. Vlad further teaches 3-methoxy-3-methyl-1-butanol as a preferred solvent (pg 3, [0027]; pg 37, [0324]).
Vlad teaches a delivery system may comprise “a reed, a plurality of reeds, a stick, a plurality of sticks, a fiber, a plurality of fibers, a wick, a plurality of wicks, a mesh material, a conductive mesh material, a porous substrate, a semi-porous substrate, and a combination of any of the preceeding [sic.] delivery systems” (pg 4, [0036]). Vlad teaches the reed or stick is filled by capillary action (pg 37, [0320]).
For claim 6, Vlad teaches a method of air freshening comprising an antioxidant (pg 44, [0416] and [0420]).
For claim 7, Vlad teaches a method of air freshening comprising non-glycol ether solvents in an amount of from about 1% to about 95% of the composition comprising the method (Abstract).
Vlad does not teach the plant species of the sticks or reeds.
Muller teaches a method for active ingredient release comprising a container for accommodating the components; two solvents which are immiscible or only minorly miscible with one another; at least one active ingredient; and a mechanism which allows the release of the active ingredient, but restrains the other volatile constituents of the composition (Abstract).
Muller teaches the method comprises rattan rod air freshener systems (jpg 13, [0089] and [0092]). It is noted that rattan is a species of Calamus, as recited in claim 5. Muller teaches “On account of the capillary forces, the fragrances penetrate the wooden rods and are given off to the ambient air ([0092]).
The skilled artisan would have expected success in substituting a rattan reed, as taught by Vlad and Muller, in Pageat’s semiochemical release method because Vlad teaches a method of diffusing air freshening solutions containing elements such as methyl stearate and methyl palmitate utilizing 3-methoxy-3-methyl-1-butanol as the preferred solvent in the claimed range and Muller teaches that a useful diffuser can comprise rattan reeds as the diffusing element.
Technical Background Material
The following prior art is made of record and not relied upon is considered pertinent to applicant's disclosure. The OECD SIDS (Screening Information Data Set (SIDS) core scientific evaluation package created by the Organisation for Economic Co-operation and Development (OECD)) for 3-methoxy-3-methyl-l-butanol (CAS N°: 56539-66-3) describes the lack of toxicity of 3-methoxy-3-methyl-l-butanol when screened against mammalian species.
CONCLUSION
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL P COHEN whose telephone number is (571)270-7402. The examiner can normally be reached on M-Th 8:30-5:30; F 9-4.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana S. Kaup, can be reached on (571) 272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL P COHEN/Primary Examiner, Art Unit 1612
