DETAILED ACTION
This is the first action on the merits in response to US Patent Application No. 18/763,825, filed 03 July, 2024, with priority to provisional application 63/525,085, filed 05 July, 2023.
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 .
Election/Restrictions
Applicant’s election without traverse of claim 1-9 (Invention I) in the reply filed on 30 July, 2026 is acknowledged. Claims 10-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Invention, there being no allowable generic or linking claim. The withdrawn claims will be considered for rejoinder should the withdrawn claims be found to encompass allowable subject matter identified within the elected claims.
Claim Interpretation
The examiner’s understanding of certain claim language is noted below.
Claim 1 refers to a dual-section heating element including a “first section” and a “second section” which are spaced from each other. The broadest reasonable interpretation of such a heating element [as recited in claim 1] can reasonably include any heating arrangement comprising two distinct heating elements (e.g., resistors) which are not directly touching.
Claim 1 indicates that a wick is in “thermal communication” with a heater; in the context of the instant invention, “thermal communication” is understood to require that the wick be arranged to receive heat from the heater.
Claim 3 refers to a first section of the heater being a “warm section” and a second section of the heater being a “cool section”. The term “cool” is understood to refer to the second section being configured to heat to a temperature which is cooler than a temperature which the “warm” first section is configured to heat to; this is supported by the specification at least at [0067]. The second, cool section is not necessarily a cooling device configured to reduce temperatures below ambient conditions [which would contradict the second section being part of a heating element as claimed].
Claim 5 indicates that the dispenser outputs a “first fragrance characteristic” when the dispenser is in a first configuration with the wick disposed near a warm section of the heater, and a “second fragrance characteristic” when the dispenser is in a second configuration with the wick disposed near a cool section of the heater. These limitations are understood to require that the dispenser be configured such that the wick is heated to a different temperature between the first and configuration. This is supported by the instant specification at [0005] clearly indicating that a “first fragrance characteristic” results from a “first temperature”, and a “second fragrance characteristic” results from a “second temperature”. In an exemplary embodiment, the instant specification discloses heating a volatile material at a high setting which causes a cinnamon flavor to be perceived by a user, and heating the same volatile material at a low setting to cause an apple flavor to be perceived by a user. Generally, this effect is understood to be the result of differences in volatility between components of the volatile material, which results in differences in the composition profile of the vapor emitted by the volatile material at different temperatures; such differences in vapor composition can be perceived by a user as different scents. Two of the applicant’s copending applications—published as US 2024/0042085 A1 and US 2026/0216396—provide further discussion of such effect. Therefore, any heater within a configuration which allows for control of a temperature of a wick is presumed to be capable of achieving different fragrance characteristics [when the wick absorbs a fragrance composition with multiple fragrance/scented compositions having different volatility]. However, claim 5 requires a particular configuration wherein the control of wick temperature is accomplished by changing a proximity of the wick with respect to a warm section and a cool section of a heater, said cool section being larger than the warm section.
Claim 5 further indicates that “the dispenser outputs a similar intensity of the first fragrance characteristic when the dispenser is in the first configuration as it does the second fragrance characteristic when the dispenser is in the second configuration”. An output “intensity” of the dispenser is understood to refer to a release rate of volatized material from the dispenser (the instant specification at [0052], [0071] implies an “intensity” and a “discharge rate” or “fragrance release rate” are equivalent or closely associated with each other). Accordingly, it is understood that the dispenser of claim 5 must at least be capable of maintaining a similar flow rate of volatized material out of the dispenser (i.e., intensity) at different wick temperatures (i.e., temperatures which yield different fragrance characteristics). Typically, a higher wick temperature is expected to yield a higher evaporation/volatilization rate, so it is understood that the device of claim 5 must have some means or mechanism for counteracting this effect. In the instant disclosure, such counteraction may be achieved by adjusting wick exposure (consider Fig. 11, [0065], and [0069]), adjusting airflow over the wick (consider Fig. 7, [0048]-[0049]), and/or by way of the relative size of the heaters and the portions of the wick which are directly exposed to the heating sections between the first and second configurations ([0067]).
Further regarding claim 5, the term “similarly” is understood to refer to intensities which are nearly identical, within a reasonable margin of error, such as ±5% (the instant application defines the related terms “about” and “approximately” as referring to a range of 5% at [0040]).
Claim Rejections - 35 USC § 102
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.
Claims 1 and 3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Davis et al. (US 2018/0103507 A1, cited in the IDS filed 26 June, 2026).
It is noted that the instant application and the cited reference have a common applicant/assignee (S.C. Johnson & Son, Inc.), and thus it appears that a 35 U.S.C. 102(b)(2) exception may apply which would render the cited reference ineligible as prior art under 35 U.S.C. 102(a)(2). However, the cited reference it is still eligible as prior art under 35 U.S.C. 102(a)(1), which eligibility cannot be excepted under 35 U.S.C. 102(b)(2). Also, since the reference was published over a year prior to the earliest priority date of the instant application, the exceptions under 35 U.S.C. 102(b)(1) cannot be applied.
Regarding claim 1, Davis teaches a volatile material dispenser (volatile material dispenser 50—[0027]), comprising:
a housing (housing 56 of the dispenser 50—[0027]);
a heater (heating arrangement 200) disposed within the housing ([0037]; see arrangement of heating mechanism within housing 56 in Fig. 2); and
a refill (52) having a container (54) with a volatile material disposed therein (dispenser 50 accommodates a refill 52 including a container 54 with a volatile material therein, the container adapted to be retained by housing 56—[0027]) and a wick (60) in fluid communication with the volatile material (retaining mechanism 58 of container 54 holds wick 60 within the container 54—[0027]) and in thermal communication with the heater (conducting member 214 of heating arrangement 200 applied heat to an outer surface of wick 60)
wherein the heater is a dual-section heating element that includes a first section and a second section that is spaced from the first section (first heater or resistor 202 may be disposed rearward of the conducting member 214, and a second heater or resistor 202’ may be disposed forward of the conducting member…in an illustrative embodiment, a first heater having a first resistance may be actuated for a low level of heat, a second heater having a second resistance or temperature greater than the first resistance or temperature may be actuated for a medium level of heat, and both heaters may be actuated for a high level of heat—[0041]; second heater 202’—[0051]; Davis thus discloses an embodiment wherein the heating arrangement includes a first 202 and second 202’ heating elements at distinct locations and thus spaced apart from each other within the heating arrangement).
Regarding claim 3, Davis teaches the volatile material dispenser of claim 1. Davis further teaches the first section of the heater (second heater) is a warm section (medium level of heat) and the second section of the heater (first heater) is a cool section (low level of heat) (in an illustrative embodiment, a first heater having a first resistance may be actuated for a low level of heat, a second heater having a second resistance or temperature greater than the first resistance or temperature may be actuated for a medium level of heat, and both heaters may be actuated for a high level of heat—[0041]; see interpretation of claim 3 in claim interpretation section above).
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.
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.
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 2 is rejected under 35 U.S.C. 103 as being unpatentable over Davis et al. (US 2018/0103507 A1) in view of DeWitt et al. (US 2008/0226269 A1).
Regarding claim 2, Davis teaches the volatile material dispenser of claim 1. The wick of Davis is depicted as having a circular cross section (e.g., see end 78 of wick 60 in Figs. 7-8), and the heater includes at least a portion with a corresponding cross section (plurality of resistors arranged in a tubular arrangement surrounding the wick 60—[0041]; conductor member 214 of heater arrangement 200 includes a cylindrical body 216—see Fig. 10, [0037])). A literal geometric interpretation of the term elliptic cross section reasonably includes a circular cross section (i.e., a circle can be considered a type of ellipse); in such a case, Davis teaches the heater and the wick has an elliptic cross section.
A more ordinary understanding of the term “elliptical” in the art may reasonably imply a non-circular oval shape; in such a case, Davis does not teach the heater and the wick have an elliptic cross section.
However, in the analogous art of volatile material dispensers (vapor generator 10—[0023]), DeWitt teaches a housing (upper housing 108, lower housing 80), a heater (90) disposed within the housing (upper housing 108 mounts to the lower housing 80 and encloses magnets 88, heater 90, circuit board 96, and plug assembly 98—[0032]), and a refill having a container (50) with a volatile material (52) disposed therein and a wick (14) in fluid communication with the volatile material (reservoir assembly 12 includes a reservoir 50 able to contain a volatile substance 52…the wick 14 is received through the through bore 72 of the wick support 70 and the plug 62 is pressed into the opening 60 of the reservoir—[0030]; see Figs. 3 and 5) and in thermal communication with the heater (wick 14 is heated by heater 90—see [0034]).
DeWitt further teaches embodiments wherein a wick (160) has an elliptical cross-sectional shape, such that rotation of the wick will cause a portion of the wick 160 to be nearer or farther from the heater ([0038]). The elliptical shape enables for control of evaporation rate (If the center of the wick 160 is concentric with the axis of rotation 30 of the reservoir assembly, it will produce a maximum evaporative rate when one of the sides 162, 164 corresponding to the major axis is oriented toward the heater 90 and a minimum evaporative rate when one of the sides 166, 168 corresponding to the minor axis is oriented toward the heater 90—[0038]). Therefore it would be obvious to a person having ordinary skill in the art to modify the device of Davis such that the wick has an elliptical cross sectional area for the benefit of allowing adjustment of evaporation rate by rotating the wick (see DeWitt at [0038]). It would also be obvious to a person having in the art to try changing the shape of the heater to also be elliptical for the benefit of increasing the difference in distance between the heater sections and the wick when the ellipses are aligned and unaligned, thus allowing a further range of evaporation rates. Also consider MPEP 2144.04(IV.)(B.) regarding the obviousness of changes in shape.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Davis et al. (US 2018/0103507 A1).
Regarding claim 4, Davis teaches the volatile material dispenser of claim 3. Davis discusses embodiments wherein the first heater section and second heater section are of different type (In still alternative illustrative embodiments, two or more of the heater arrangements may be stacked in a vertical fashion, with the wick 60 inserted through or alongside the two or more heater arrangements. When multiple heaters 202 are used, each heater may be of the same type, e.g., all resistors or all PTC elements. Alternatively, the dispenser 50 may incorporate heaters of multiple types, e.g., one resistor and one PTC element, in any order or arrangement—[0041]), which fairly suggests embodiments wherein the size of the first heater section and second heater section are different. Davis does not particularly suggest that the warm section of the heater is smaller than the cool section of the heater.
However, in the instant case, it is not clear that a difference in size of the claimed heater sections would necessarily yield a difference in the performance of the device. MPEP 2144.04(IV.)(A.) indicates: “In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.”.
Therefore, in the absence of evidence that the claimed difference in size between the warm and cool section of the heater would necessarily yield a difference in performance, it would be obvious to a person having ordinary skill in the art to arrive at an embodiment of the device of Davis wherein a warm section of the heater is smaller than a cool section of the heater. A larger cool section may be desirable if the lower heating temperature at the cooling section is achieved by dispersing heat from a heating element over a larger area. Also, it is noted that a showing that the difference in size does yield a significant difference in performance should be commensurate with the scope of the claim (i.e., be shown to be true for substantially all embodiments encompassed by claim 4), wherein claim 4 defines the heater sections relatively broadly.
Allowable Subject Matter
Claims 5-9 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.
Regarding claim 5, Davis teaches the volatile material dispenser of claim 4. Davis does not indicate the dispenser includes a first configuration in which the wick is disposed near the warm section of the heater and the dispenser outputs a first fragrance characteristic and a second configuration in which the wick is disposed near the cool section of the heater and the dispenser outputs a second fragrance characteristic, and wherein the dispenser outputs a similar intensity of the first fragrance characteristic when the dispenser is in the first configuration as it does the second fragrance characteristic when the dispenser is in the second configuration.
As discussed in part in the claim interpretation section above, claim 5 is understood to be characterized in that:
-the wick and/or heater are movable so as to enable switching between a first configuration in which the wick is near a warm section of the heater, and a second configuration in which the wick is near a cool section of the heater;
-the warm section and cool section provide different levels of heating, such that the wick temperature will be different between the first and second configuration,
--the difference in wick temperature affects the composition of the vapor emanating from the volatile material absorbed on the wick, yielding different fragrance characteristics between the first and second configurations; and
-the dispenser has means [or is configured] to achieve a consistent flow rate (similar intensity) of volatized material out of the dispenser at different wick temperatures—such means [or configuration] working against an expected increase in intensity at higher temperatures—so that a similar intensity of each fragrance characteristic (each of which is associated with a distinct wick temperature) can be output.
Certain devices with means for adjusting a heater or wick position to alter wick temperature are known.
DeWitt (US 2008/0226269 A1) discloses a volatile material dispenser (vapor generator 10—[0023]), comprising a wick (160) with a non-circular cross sectional shape, wherein rotation of the wick alters the distance between the wick and a heater, which in turn affects how much the wick is heated and the evaporation rate of a volatile substances absorbed on the wick (see [0038]). The different wick positions of DeWitt at least define distinct configurations which would be expected to yield different wick temperatures, and thus different fragrance characteristics. However, DeWitt does not suggest the heater comprising distinct first and second sections which provide different levels of heating. Also, DeWitt indicates that the different levels of heating at the different wick configurations affects the evaporation rate of the volatile material (see [0038]), and DeWitt does not clearly include a mechanism which would be capable of controlling the evaporation rate such that similar evaporation rates (corresponding to a similar intensity) can be achieved at different temperatures (corresponding to different fragrance characteristics). That is, DeWitt does not suggest the dispenser can output a similar intensity of the first fragrance characteristic (associated with a first temperature) when the dispenser is in the first configuration as it does in the second fragrance characteristic (associated with a second temperature) when the dispenser is in the second configuration.
Augier et al. (US 20250058062 A1, with PCT filed 23 Dec, 2021) teaches a volatile material dispenser (device 1 for dispensing volatile substances—[0043]), comprising:
a housing (housing 2—[0034]); a heater disposed within the housing ([electric] heating device 8 with heating body 9 in the housing 2—[0046]); and a refill having a container (container 5) with a volatile material disposed therein and a wick in fluid communication with the volatile material (container 5 inserted into housing 2 contains the substance to be dispensed as well as a wick which projects upwards from the container 5 with a wick end 6—[0044]) and in thermal communication with the heater (heat transfer from heating body 9 to the wick end 6 occurs during operation of the device 1—[0047]),
wherein the heater is a dual-section heating element that includes a first section and a second section that is spaced from the first section (heating circuit includes a first heating resistor 19 and a second parallel-connected heating resistor 20 which are part of the heating body 9 of the heating device, with Figs. 5-6 showing a near-wick position of the heating body—see [0052]; Figs. 9-10 shows similar configuration when heating body 9 with resistors 19 and 20 is positioned in a remote-wick position—see [0055]; resistors 19 and 20 fairly define distinct, spaced apart sections of the heater).
The device of Augier is at least able to move the heating assembly (heating body 9) between a near-wick first configuration (Fig. 3), and a remote-wick second configuration (Fig. 4), the near-wick position achieving maximum heat transfer from the heating body (9) to the wick, and the remote-wick achieving a lesser amount of heat transfer to the wick ([0047]-[0048]). The temperature of the wick is greater in the near wick position (Fig. 6 shows temperature curve in near-wick position, Fig. 10 shows temperature curve in a remote-wick position—[0038], [0041]-[0042]). The configurations of Augier thus can be associated with distinct fragrance characteristics corresponding to the wick temperature(s) at each configuration.
Nonetheless, the device of Augier is configured so that the difference in temperature controls a substance delivery rate (i.e., an intensity) (see Augier at abstract, [0003]-[0006]), there being no other mechanism for altering the delivery rate independent of wick temperature. Thus, as similarly discussed with respect to DeWitt above, the device of Augier cannot reasonably output a similar intensity (substance delivery rate) of the first fragrance characteristic (associated with a first temperature) when the dispenser is in the first configuration as it does in the second fragrance characteristic (associated with a second temperature) when the dispenser is in the second configuration [because the differences in temperature associated with the different fragrance characteristics will also cause differences in intensity/delivery rate]. Additionally, Augier does not provide a clear indication that the heating section define a warm section and a cool section, with the wick being nearer the warm section in the first configuration and nearer the cool section in the second configuration.
Wright (US 2021/0322618 A1) also discloses a fragrance emitter with an adjustable heater position relative to a wick which enables changes in vapor emission (abstract); the device of Wright is does not meet the limitations of claim 5 at least for similar reasons as discussed with respect to Augier above.
Harrell et al. (US 2021/0015955 A1, cited in the IDS filed 26 June, 2026) teaches a fragrance diffuser (title) including a housing, wick, heater, and container having a fragrance-producing liquid therein (abstract), wherein the heater can be operated in different heating modes ([0070]) which would yield different wick temperatures, and wherein a diffusion rate out of the device can be adjusted by changing a number of output apertures which are blocked or adjusting a spacing between the wick and the heater ([0139]). Nonetheless, Harrell does not clearly teach a first configuration and a second configuration between which the proximity of the wick to a warm section and cool section of a heater is adjusted to achieve different wick temperatures (and thus different fragrance characteristics) while maintaining a constant or similar intensity.
Jenkins et al. (US 2016/0000956 A1, cited in the IDS filed 26 June, 2026) teaches a fragrance delivery device (abstract) including a reservoir for a fragrance liquid, a wick for receiving the fragrance liquid, and a heating coil around at least a portion for the wick ([0026]), wherein the device can adjust the output intensity of fragrance by variable convection, such as by controlling a fan ([0018]). The heating and fan mechanism allow for control of both temperature and intensity which could allow a different fragrance characteristic (corresponding to a wick temperature) to be output at similar intensities; nonetheless, Jenkins does not teach the claimed arrangement of a first and second configuration wherein the wick is either positioned nearer a smaller hot section of a heating element or a larger cool section of a heating element.
He et al. (US 2004/0033067 A1, cited in the IDS filed 26 June, 2026) indicates that it is conventional for vapor dispensing devices to include an adjustable venting configuration and/or components which selectivity adjust the proximity of a heating element to a wick of volatizable material ([0002]; also see [0058]). He does not suggest the particularly claimed arrangement of the wick with respect to warm and cool sections of a heater between a first and second configuration.
Woo et al. (US 2004/0265164 A1, cited in the IDS filed 26 June, 2026) teaches devices for scent delivery (title) and discusses an embodiment wherein an approximately constant rate of emission of perfume over a period of time is achieved, the embodiment configured such that a wick of a scent delivery device is heated to a temperature sufficient to volatize one or more components of the perfume which were not volatized at a lower heat ([0036]; claim 91); while this may amount to a general suggestion to control a flow rate of volatile material while varying wick temperature to achieve different fragrance characteristics, Woo does not suggest accomplishing such control with a device including the claimed multi section heating element and the claimed first and second device configurations.
Ultimately, no prior art was found which fairly teaches all limitations of claim 5 as understood, especially with respect to the device being configured so that a wick temperature can be controlled by adjusting a configuration of a wick with respect to a heater while also being configured to achieve similar flow rates of volatile material (intensities) off of the wick at different temperatures, and especially wherein the heater is a dual section heater and the wick configurations include a first configuration wherein the wick is positioned near a smaller warm section of the heater and a second configuration wherein the wick is positioned near a larger cool section of the heater.
Accordingly, the subject matter of claim 5 is found to be novel and non-obvious over the prior art.
Claims 6-9 contain allowable subject matter at least by virtue of dependency on claim 5.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Yamamoto (US 4,968,487) teaches A housing (casing 1); a heater (4) disposed within the housing; a refill having a container (1) with a volatile material (2) disposed therein and a wick (7) in fluid communication with the volatile material and in thermal communication with the volatile material (container 1 having liquid chemical agent 2 therein is removably accommodated in a and held by a case 3…the upper portion of the casing 3 is kept open, an dan annular heater or a pair of semi annular heater 4 is fixed to the open portion…a wick 7 is held by the inlet 6 [of container 1] in such a manner that the wick 7 substantially serves as a stopper and the upper portion of the wick 7 is disposed at the central portion of the annular heater 4—Fig. 1, column 11, lines 22-34),
Wherein the heater is a dual-section heating element that includes a first section and a second section that is spaced from the first section (pair of semi-annular heater 4—column 11, lines 25-28; a pair of semi-annular heaters fairly defines a heating element with a first section and second section, with at least some separation therebetween)
Butler et al. (US 2011/0284653 A1, cited in the IDS filed 26 June, 2026) teaches a heater which imparts a varying amount of heat to a wick, the variance imparted by varying the distance between the heater and the wick ([0016])
Kvietok et al. (US 2003/0175148 A1, cited in the IDS filed 26 June, 2026) discusses a device for controlling the release of a volatile material (title) wherein a position of a wick (62) is varied relative to heating elements (28) to vary a temperature increase of the wick [0077], wherein different volatile materials may be heated to different temperature [0010] and a fan cycle of the device may be adjusted ([0067]) such that the device can deliver a range of volatilization energies and adjust an intensity of volatilization energy application for each volatile material ([0091]).
Basaganas Millan (US 6,285,830 B1) teaches a device for the evaporation of volatile products with variable intensity (title) wherein a rate of evaporation is controlled by changing a relative position of the wick and the heating element (column 3, lines 49-59).
Vyas et al. (US 2022/0002633) at least acknowledges that a scent character of a volatile composition, specifically perfume compositions, can change at different temperatures ([0086]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRADY C PILSBURY whose telephone number is (571)272-8054. The examiner can normally be reached M-Th 7:30a-5:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, MICHAEL MARCHESCHI can be reached at (571) 272-1374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRADY C PILSBURY/Examiner, Art Unit 1799
/JENNIFER WECKER/Primary Examiner, Art Unit 1797
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