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 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.
Claim(s) 1-4 and 7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Walters et al. (US Patent No. 7,246,722).
Re: Claim 1, Walters discloses the claimed subject matter including a multidirectional aerosol dispensing device, comprising:
an aerosol container (B) extending between a top portion (21A) and a bottom portion (22B) for containing an aerosol product and an aerosol propellant therein (Fig. 31-32);
an aerosol valve (100B) located at the bottom portion of the aerosol container (Fig. 31-32);
the aerosol valve having a valve stem (102B) for displacing the aerosol valve from a biased closed position (Fig. 32) to an open position (Fig. 58) upon a movement of the valve stem to discharge the aerosol product from the valve stem (Figs. 3-4);
an undercap (60B) having a sidewall (15) extending between a top portion (40B) and a bottom portion (50B) (Figs. 4-5);
the undercap mounted to the aerosol container with the top portion of the undercap being adjacent to the bottom portion of the aerosol container (Figs. 4-5);
the bottom portion of the undercap terminating in a base surface (55B) for supporting the aerosol dispensing device on a supporting surface (18A) to store the aerosol dispensing device in an inverted position (Fig. 32); and
an actuator lever (80B, 90B), located adjacent the sidewall of the undercap being movably mounted relative to the undercap and configured to move the valve stem when the actuator lever is move (Figs 32).
Re: Claim 2, Walters discloses the claimed invention including the undercap comprises a rotatable portion, wherein the rotatable portion of the undercap is rotatable into a first rotational position relative to the aerosol container for enabling the actuator to move the valve stem upon movement of the actuator lever for discharging the aerosol product from the valve stem in a generally downwardly direction (Fig. 28, discharging position, angled downward); and wherein the rotatable portion of the undercap is rotatable into a second rotational position relative to the aerosol container for inhibiting the actuator lever from moving the valve stem (Figs. 51-52, rotated close position).
Re: Claim 3, Walters discloses the claimed invention including the valve stem is biased towards the actuator lever(Col. 19, lines 38-45, valve spring).
Re: Claim 4, Walters discloses the claimed invention including the side wall of the undercap is concave (54B) (Figs. 33-34).
Re: Claim 7, Walters discloses the claimed invention including the aerosol product is selected from the group consisting of an air freshener product, a pest control product, a cleaning product, a car care product, a personal care product, and combinations thereof (Col. 13, lines 51-53, any aerosol product maybe used).
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.
Claim(s) 5 and 11-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Walters et al. (US Patent No. 7,246,722) as applied to claim 1 above.
Re: Claim 5, Walters discloses the claimed invention except for the downward angle of the dispensing being .05 to 5 degrees off the longitudinal axis. However, in the embodiment of Fig. 62, Walters discloses the valve stem displaces the aerosol valve to the closed position, an exit orifice of the valve stem is substantially parallel to the base surface of the bottom portion of the undercap and, when the valve stem displaces the aerosol valve to the open position, a spray axis of the valve stem is at a dispensing angle relative to a longitudinal axis of the device (Depicted in Fig. 66) and the dispensing angle is from about 0.5 degrees to about 5 degrees except for expressly stating that range. (Fig. 66, the longitudinal axis is the horizontal axis of the device). The Federal Circuit has 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. MPEP 2144.04(IV)(A) (discussing 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)). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Walters in view of the embodiment of Fig. 62 by causing the angle of dispensing to be between 0.5 degrees to about 5 degrees. Applicant appears to have placed no criticality on any particular angle (see Specification wherein it is required simply that the angle “may be” a variety of ranges) and it appears that the device of embodiment 32 Walters would work appropriately if made within the claimed range of angle.
Re: Claim 11, Walters discloses the claimed subject matter including a multidirectional aerosol dispensing device, comprising:
an aerosol container (B) extending between a top portion (21A) and a bottom portion (22B) for containing an aerosol product and an aerosol propellant therein (Fig. 31-32);
an aerosol valve (100B) located at the bottom portion of the aerosol container (Fig. 31-32);
the aerosol valve having a valve stem (102B) for displacing the aerosol valve from a biased closed position (Fig. 32) to an open position (Fig. 58) upon a movement of the valve stem to discharge the aerosol product from the valve stem (Figs. 3-4);
a cylindrical undercap (60B) having a sidewall (15) extending between a top portion (40B) and a bottom portion (50B) (Figs. 4-5) except for expressly stating the diameter and height. However,
the undercap mounted to the aerosol container with the top portion of the undercap being adjacent to the bottom portion of the aerosol container (Figs. 4-5);
the bottom portion of the undercap terminating in a base surface (55B) for supporting the aerosol dispensing device on a supporting surface (18A) to store the aerosol dispensing device in an inverted position (Fig. 32); and
an actuator lever (80B, 90B), located adjacent the sidewall of the undercap being movably mounted relative to the undercap and configured to move the valve stem when the actuator lever is move (Figs 32) except expressly stating the height and diameter of the undercap and the diameter of the base surface. However, the Federal Circuit has 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. MPEP 2144.04(IV)(A) (discussing 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)). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Walters by causing the cylindrical undercap has a minimum diameter of from about 30 mm to about 70 mm and a height of from about 45 mm to about 80 mm; and the base surface has a diameter from about 40 mm to about 90 mm. Applicant appears to have placed no criticality on any particular diameter or height for the claimed structures (see Specification wherein it is required simply that the angle “may have” a dimension in the above ranges) and it appears that the device of Walters would work appropriately if made within the claimed dimensions.
Re: Claim 12, Walters discloses the claimed invention including the aerosol valve is a slotted valve (Fig. 32, depicts a slot for the aerosol valve with spring to move within).
Re: Claim 13, Walters discloses the claimed invention including the undercap comprises a rotatable portion, wherein the rotatable portion of the undercap is rotatable into a first rotational position relative to the aerosol container for enabling the actuator to move the valve stem upon movement of the actuator lever for discharging the aerosol product from the valve stem in a generally downwardly direction (Fig. 28, discharging position, angled downward); and wherein the rotatable portion of the undercap is rotatable into a second rotational position relative to the aerosol container for inhibiting the actuator lever from moving the valve stem (Figs. 51-52, rotated close position).
Re: Claim 14, the rejection from claim 5 above covers the limitations recited in this claim.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Walters et al. (US Patent No. 7,246,722) as applied to claim 1 above, and further in view of Green (US Patent No. 6,652,704).
Re: Claim 6, Walters discloses the claimed invention including the aerosol valve except for further particulars of said valve. However, Green teaches an aerosol valve that is a check valve (104) and wherein the device further comprises:
a dip tube (26) with a first end extending to and in fluid communication with the top portion of the aerosol container and a second end extending to the bottom portion of the aerosol container (Green: Fig. 4);
the check valve having a first inlet (94) in fluid communication with the second end of the dip tube, a second inlet (104) in fluid communication with aerosol container, and an outlet (46) in fluid communication with the aerosol valve (Green: Fig. 4);
the check valve having a first position when the aerosol container is spatially oriented such that the top portion of the aerosol container is above the bottom portion of the aerosol container and a second position when the aerosol container is spatially oriented such that the top portion of the aerosol container is below the bottom portion of the aerosol container (Col. 4, lines 17-25, can dispense upright, inverted or at any other angle),
wherein when the check valve is in the first position the check valve closes the first inlet preventing liquid communication between the first inlet and the dip tube (Fig. 4 depicts check valve with shadow lines in alternating positions); and
wherein when the check valve is in the second position the check valve closes the second inlet preventing liquid communication between the second inlet and the aerosol container (Fig. 4 depicts check valve with shadow lines in alternating positions).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include the claimed aerosol valve with check valve as taught by Green, since Green states in column 4, lines 17-20 that such a modification be held at any angle and still produce a satisfactory spray pattern, thus he contents of the aerosol container empty completely, thereby avoiding waste when held in any position.
Claim(s) 8-10, 15, 16, and 18-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Walters et al. (US Patent No. 7,246,722) as applied to claim 7 above, and further in view of Mui et al. (US 20230189820 A1).
Re: Claim 8, Walters discloses the claimed invention including any aerosol product maybe used (Col. 13, lines 51-53, any aerosol product maybe used) except for expressly stating the aerosol product is a pest control product selected from the group consisting of an insecticide, an herbicide, and combinations thereof (Para. 22, pest control fluid). However, Mui teaches a product is a pest control product selected from the group consisting of an insecticide, an herbicide, and combinations thereof (Para. 22, pest control fluid).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include a pesticide product as taught by Mui, since Walters states in col. 13, lines 51-53 that it should be understood that various other aerosol products may be dispensed by the bottom dispensing aerosol device of the present invention, and further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Re: Claim 9, Walters as modified by Mui in the rejection of claim 8 above discloses the claimed invention including the pest control product comprises a pest control composition comprising from about 45% to about 99% by weight of the composition of water (Mui; Para. 107, 45-99 percent water).
Re: Claim 10, Walters as modified by Mui in the rejection of claim 8 above discloses the claimed invention including the pest control composition comprises at least one active ingredient selected from the group consisting of corn mint oil, peppermint oil, spearmint oil, rosemary oil, thyme oil, citronella oil, clove oil, cinnamon oil, cedarwood oil, garlic oil, geranium oil, lemongrass oil, eugenol, geraniol, nerol, vanillin, 2-phenylethyl propionate, menthol, menthone, thymol, carvone, camphor, methyl salicylate, p-cymene, linalool, 1,8-cineole, alpha-pinene, bornyl acetate, gamma-terpinene, and mixtures thereof (Mui: Para. 107, any of the above claimed oils).
Re: Claim 15, the device Walters as modified by Mui is capable of performing the claimed method of providing a multidirectional aerosol dispensing device, the device comprising:
an aerosol container (B) extending between a top portion (21A) and a bottom portion (22B) for containing an aerosol product and an aerosol propellant therein (Fig. 31-32);
an aerosol valve (100B) located at the bottom portion of the aerosol container (Fig. 31-32);
the aerosol valve having a valve stem (102B) for displacing the aerosol valve from a biased closed position (Fig. 32) to an open position (Fig. 58) upon a movement of the valve stem to discharge the aerosol product from the valve stem (Figs. 3-4);
an undercap (60B) having a sidewall (15) extending between a top portion (40B) and a bottom portion (50B) (Figs. 4-5);
the undercap mounted to the aerosol container with the top portion of the undercap being adjacent to the bottom portion of the aerosol container (Figs. 4-5);
the bottom portion of the undercap terminating in a base surface (55B) for supporting the aerosol dispensing device on a supporting surface (18A) to store the aerosol dispensing device in an inverted position (Fig. 32); and
an actuator lever (80B, 90B), located adjacent the sidewall of the undercap being movably mounted relative to the undercap and configured to move the valve stem when the actuator lever is move (Figs 32);
wherein when the actuator lever is depressed, a plane of the bottom surface of the actuator lever is at an actuator pivot angle relative to a plane of the base surface of the bottom portion of the undercap and the actuator pivot angle is about 3 degrees to about 10 degrees (Fig. 58 depicts actuator pivot angle around 3 percent); and
dispensing the aerosol composition from the device (Col. 13, lines 51-53, any aerosol product maybe used) except for expressing stating a pest control composition. However, Mui teaches a product is a pest control product selected from the group consisting of an insecticide, an herbicide, and combinations thereof (Para. 22, pest control fluid).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include a pesticide product as taught by Mui, since Walters states in col. 13, lines 51-53 that it should be understood that various other aerosol products may be dispensed by the bottom dispensing aerosol device of the present invention, and further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Re: Claim 16, Walters discloses the claimed invention including the dispensing step is performed when the device is in an inverted orientation (Depicted in Fig. 58).
Re: Claim 18, the device Walters as modified by Mui is capable of performing the claimed method of the dispensing step comprises spraying the aerosol pest control composition at a spray rate except for expressly stating 1.25 g/s to about 3.5 g/s. However, it would have been obvious to one having ordinary skill in the art at the time of the effective filing date include the claimed spray rate range since it has been held 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.
Re: Claim 19, the device Walters as modified by Mui is capable of performing the claimed method of the dispensing step comprises spraying the aerosol pest control composition, wherein the sprayed aerosol pest control composition comprises a spray diameter except for expressly stating from about 2 inches to about 6 inches. However, it would have been obvious to one having ordinary skill in the art at the time of the effective filing date include the claimed spray diameter range since it has been held 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.
Re: Claim 20, the device Walters as modified by Mui is capable of performing the claimed method of the aerosol pest control composition, when dispensed through the aerosol dispensing device has a spray force except for expressly stating from about 2 gf to about 16 gf. However, it would have been obvious to one having ordinary skill in the art at the time of the effective filing date include the claimed spray force range since it has been held 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.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Walters et al. (US Patent No. 7,246,722) and Mui et al. (US 20230189820 A1). as applied to claim 15 above, and further in view of Green (US Patent No. 6,652,704).
Re: Claim 17, the device Walters as modified by Mui is capable of performing the claimed method except for expressly stating dispensing in an upright position (container bottom facing the ground). However, Green teaches he dispensing step is performed when the device is in either an inverted orientation or upright orientation in (column 4, lines 17-25, can dispense in any orientation).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include the claimed aerosol valve with check valve as taught by Green, since Green states in column 4, lines 17-20 that such a modification be held at any angle and still produce a satisfactory spray pattern, thus he contents of the aerosol container empty completely, thereby avoiding waste when held in any position.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. References cited on the PTO-892 teach dispensers having the relevant claim subject matter around aerosol dispensers with particular orientations.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES P. CHEYNEY whose telephone number is (571)272-9971. The examiner can normally be reached Monday - Friday, 8:00 am - 4:30 pm.
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/CHARLES P. CHEYNEY/Primary Examiner, Art Unit 3754