DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Election/Restrictions
No claims are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group and Species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 09/26/2022.
Applicants are reminded that they had expressly admitted that Species I-IV are obvious variants of each other on page 11 of the Election filed on 09/26/2022 in prior application 17/247,135 (of which the present application is a Continuation Application thereof) and the Examiner had found Species I as claimed in at least in claim 1 of prior application 17/247,135 and as represented in Fig. 1A of prior application 17/247,135 as being unpatentable over the prior art of record in the rejections presented at paragraphs 10, 11, 16-18, and 21 of the Final Office Action in prior application 17/247,135 mailed on 05/09/2024, and that the applicant’s admission had therefore been used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other Species II-IV as being obvious variants of Species I and in which case it appeared that claims 26-36 of prior application 17/247,135 were particularly directed to Species IV.
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 14-22 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.
In regard to claim 14, lines 17-19, the phrase “said synergistic effect characterized by a knockdown of at least 88% of flying insects that enter the spatiotemporal window” renders the claim vague and indefinite since this limitation represents the results of experimentation with the desired invention and does not represent the actual structure of the desired invention nor a functional limitation associated with the desired invention, and that instead the limitation represents an attempt to claim an act of Mother Nature in that the cooperation of the flying insects must be accounted for in order to achieve the 88% knockdown of flying insects that enter the spatiotemporal window.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-11 and 14-22 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over WO 93/22909 to Somerville in view of Applicant’s admission in the Election filed on 09/26/2022 in prior application 17/247,135 that Species I-IV are obvious variants over one another.
In regard to claims 1 and 14 and Species I of prior application 17/247,135, Somerville discloses a three-dimensional flying insect station (flat, two-dimensional container) comprising outer surfaces (surfaces defining the flat, two-dimensional container) having a black color (black shadow images of flies on the front side 2 and also transparent material of the container can be shaded with a colour such as yellow, orange, or red), a substantially reflective property (transparent material of the container can be shaded with a colour such as yellow, orange, or red, wherein the color seen by a person represents the wavelength of light that is being reflected), wherein the surfaces are configured to provide depth to the flying insect station (two-dimensional configuration of container) and allow for the killing of flying insects staged thereon (any insects staged upon the outer surfaces defining the flat, two-dimensional container can eventually consume the water soluble insecticide 5 present in the water solution); an enclosed cavity (single-chamber fly trap defines a cavity therein) adjacent the outer surfaces; and an attractant (5-8) held in the enclosed cavity (see Fig. 1); and a vent (1) to allow a plume of attractant to surround the outer surfaces (attractant can be emitted from within the trap to ambient); wherein the enclosed cavity is defined by a frame (frame defined by the structure shown in Fig. 1 which defines the hollow space which is the cavity that holds attractant 5-8) in which the attractant is held (5-8) and through which the vent (1) is defined; wherein the flying insect station does not include a light source or a heating source (only the water soluble tablets of sugar 6 and yeast 7 and water 8 are used to attract the insects; also see page 10, line 28 to page 12, line 9); and wherein the black color, the substantially reflective property, and the attractant in combination create a synergistic effect greater than if used alone (the visual attraction provided by black shadow images of flies on the front side 2, transparent material of container which may be shaded with a color, and attractant 5-8 collectively provide attractants that are catered to the visual and scent/taste cues of target flying insects species; see pages 7, 10, and 11 of the spec.).
Therefore in regard to claims 1-11 and 14-22 of the present application, since applicant has expressly admitted that Species I-IV are obvious variants of each other on page 11 of the Election filed on 09/26/2022 in prior application 17/247,135 (of which the present application is a Continuation Application thereof) and the Examiner has found Species I as claimed in at least claim 1 of prior application 17/247,135 and as represented in Fig. 1A of prior application 17/247,135 as being unpatentable over the prior art of record in the rejection presented above in the preceding paragraph, the applicant’s admission has therefore been used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other Species II-IV as being obvious variants of Species I and in which case it appears that claims 1-11 and 14-22 are particularly directed to Species IV.
Claim 1-11 and 14-22 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over WO 93/22909 to Somerville in view of Heath et al. 5,907,923 or Ernsberger, IV 6,625,922 and Rimback 5,685,109 and further in view of Applicant’s admission in the Election filed on 09/26/2022 in prior application 17/247,135 that Species I-IV are obvious variants over one another.
In regard to claims 1 and 14 and Species I of prior application 17/247,135, Somerville discloses an attraction station for killing synanthropic flies comprising: a dark, reflective panel (flat, two-dimensional container with black shadow images of flies on the front side 2 and also transparent material of the container can be shaded with a colour such as yellow, orange, or red), said panel comprising vents (1) and adapted for mounting against a wall (flat surfaces of the container are adapted for mounting against a wall; see page 12, lines 17-20); and wherein the attraction station does not include a light source or a heating source (only the water soluble tablets of sugar 6 and yeast 7 and water 8 are used to attract the insects; also see page 10, line 28 to page 12, line 9); and attractants (5-8) within the panel (see Fig. 1), wherein the attractant is on a backside of the panel (attractants 5-8 are behind front side 2) and beneath the panel (attractants 5-8 are beneath a majority of front side 2 in the lower volume), but does not disclose an attractant housing positioned adjacent the panel to provide a plume of attractant which surrounds the panel or wherein the attractant housing includes an enclosed cavity on a backside of the panel and beneath the panel. Heath et al. and Ernsberger, IV disclose a flying insect station (10 OR 10) comprising a dark panel (main body 12 is painted OR see col. 5, line 28 to col. 6, line 15) comprising vents (14 OR 14) and a surface geometry that is tapered (10 of Ernsberger, IV in Figs. 1-2), rounded (10 of Heath et al. in Fig. 1b), or planar (10 of Heath et al. has planar ends 16, 17 OR 12 of Ernsberger, IV is planar); an attractant housing (28, 30 OR 29, 30) positioned adjacent the panel to provide a plume of attractant which surrounds the panel; wherein the attractant housing (28, 30 OR 29, 30) includes an enclosed cavity (cavity inside 28 & volume defined within release membrane 30 where attractants are stored OR cavity defined by container 29) on a backside of the panel (28,30 are positioned behind the outer wall of 12 OR 29,30) and beneath the panel (28,30 are positioned below the upper end of 12 via 18); wherein the station does not include a light source or heating source. It would have been obvious to one of ordinary skill in the art to modify the station of Somerville such that an attractant housing is positioned adjacent the panel to provide a plume of attractant which surrounds the panel and wherein the attractant housing includes an enclosed cavity on a backside of the panel and beneath the panel in view of Heath et al. or Ernsberger, IV in order to provide an alternative form of attractant which is housed so that it cannot spill or be easily dispersed from the panel to prevent a mess from being made while still allowing the attractant plumes to flow freely forwardly and upwardly therefrom for dispersal thereof versus the liquid attractant within the panel of Somerville which may spill out of the panel. Somerville discloses wherein materials used to configure the flying insect station are weather resistant (transparent material is inert toward moisture) and heat resistant (wall of trap can be rigid and of materials such as polymeric plastics for example polyethylene or polypropylene and the like which are heat resistant materials in that normal operating temperatures do not cause failure of the material; no specific or particular degree of heat resistance being claimed), but do not disclose the materials used to configure the flying insect station which are UV resistant. Rimback discloses a trap (10) for flying insects which is transparent (see col. 2, line 31) and formed of a single piece of UV-resistant plastic material which provides protection so that the trap will not degrade when exposed to sunlight (PETG; see abstract line 6 & col. 2, lines 27-30). It would have been obvious to one of ordinary skill in the art to modify the materials used to configure the flying insect station of Somerville such that they are UV resistant in view of Rimback in order to provide a trap which will not degrade when exposed to sunlight.
Therefore in regard to claims 1-11 and 14-22 of the present application, since applicant has expressly admitted that Species I-IV are obvious variants of each other on page 11 of the Election filed on 09/26/2022 in prior application 17/247,135 (of which the present application is a Continuation Application thereof) and the Examiner has found Species I as claimed in at least claim 1 of prior application 17/247,135 and as represented in Fig. 1A of prior application 17/247,135 as being unpatentable over the prior art of record in the rejection presented above in the preceding paragraph, the applicant’s admission has therefore been used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other Species II-IV as being obvious variants of Species I and in which case it appears that claims 1-11 and 14-22 are particularly directed to Species IV.
Claim 1-11 and 14-22 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over WO 2009/084900 to Lim in view of Applicant’s admission in the Election filed on 09/26/2022 in prior application 17/247,135 that Species I-IV are obvious variants over one another.
In regard to claims 1 and 14 and Species I of prior application 17/247,135, Lim discloses a three-dimensional (the trap 10,20 must have three dimensions since it is an object that may be manipulated by the user; the sheet material from which 10,20 are formed minimally have a length, width, and thickness in three dimensions) flying insect station comprising surfaces (10, 20) having a black color (background portion 10 may be colored black; see para. 32), a substantially reflective property (trap portion 20 may be colored white, yellow, red or blue), and a surface geometry selected from the group consisting of: tapered, rounded, and planar (10 may be a square; see para. 33 or trap portion 20 can be in the form of a diamond, circle, triangle, inverted triangle, semicircle, and square), wherein the surfaces are configured to provide depth to the flying insect station (contrast between 10 & 20 provides perception of depth; also the thickness of the material of 10, 20 provides some depth); an attractant (trap portion may include attractants; see para. 29; also the limitation “attractant held in the cavity” does not apply to the embodiment of Fig. 1A which is being claimed in claim 21, and therefore it is not a limitation that is required to be interpreted for claims 1 and 21); no vent (since there is no vent disclosed with respect to the embodiment of Fig. 1A which is being claimed in claim 21, and therefore it is not a limitation that is required to be interpreted for claims 1 and 21); no wherein the cavity (the “cavity” does not apply to the embodiment of Fig. 1A which is being claimed in claim 21, and therefore it is not a limitation that is required to be interpreted for claims 1 and 21) is defined by a frame in which the attractant is held and through which the vent is defined (since there is no vent disclosed with respect to the embodiment of Fig. 1A which is being claimed in claim 21, and therefore it is not a limitation that is required to be interpreted for claims 1 and 21); wherein the flying insect station does not include a light source or a heating source; and wherein the black color, the substantially reflective property, and the attractant in combination create a synergistic effect greater than if used alone.
Therefore in regard to claims 1-11 and 14-22 of the present application, since applicant has expressly admitted that Species I-IV are obvious variants of each other on page 11 of the Election filed on 09/26/2022 in prior application 17/247,135 (of which the present application is a Continuation Application thereof) and the Examiner has found Species I as claimed in at least claim 1 of prior application 17/247,135 and as represented in Fig. 1A of prior application 17/247,135 as being unpatentable over the prior art of record in the rejection presented above in the preceding paragraph, the applicant’s admission has therefore been used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other Species II-IV as being obvious variants of Species I and in which case it appears that claims 1-11 and 14-22 are particularly directed to Species IV.
Response to Arguments
Applicant's arguments filed 03/23/2026 have been fully considered but they are not persuasive.
In regard to applicants’ argument that “The Office rejects claims 14-22 under 35 U.S.C. § 112(b) as indefinite…The 88% knockdown limitation is a specific numerical threshold that provides clear claim boundaries…The limitation measures only insects that actually enter the spatiotemporal window, not uncontrollable external factors…The specification provides guidance for determining whether the 88% threshold is met…Functional limitations characterizing device performance are routinely permitted…”, the Examiner contends that Figure 5 of the present application presents the % Knock Down After One Hour for the black colored surface, a reflective surface such as a mirror and an attractant provided to be most effective at knocking down the highest percentage (88%) of flies within a one hour window of time. The purported synergist effect characterized by a knockdown of at least 88% of flying insects that enter the spatiotemporal window was a result to be found through experimentation, wherein all of the conditions, factors and scenarios considered for each configuration of the insect station represented amongst the versions represented in the graph of Fig. 5 were not particularly disclosed in the specification at paragraph 0027 where the results of the experiment are discussed in detail. That is, the conditions that occurred during the experiment may have favored one particular configuration of the insect station due to factors such as the direction and amount of ambient light in the experiment space or the location of release of the insects with respect to the differently configured insect stations. The different variables can thus affect the percentage of knockdown for each insect station configuration in an unpredictable manner, thereby rendering the results of the experiment in its finding that a particular insect station was able to achieve the 88% rate of knockdown as less than a concrete feature of the present invention which can be claimed with certainty. Example features of the insect station of the present invention that may be positively claimed include the structure of the frame portion or the suppression means and the function of the vent as allowing a plume of attractant to surround surfaces adjacent and above the cavity. The efficacy of the insect station in achieving the knockdown effect of at least 88% of flying insects that enter the spatiotemporal window does not represent a feature of the present invention that can only be met when the conditions of the experiment are optimal for such to be achieved or when the insects involved in the experiment act in such a way that the knockdown effect of 88% is achieved, but it does not represent a positive structural feature or function of the present invention to be interpreted as a irrefutable feature of the insect station of the present invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DARREN W ARK whose telephone number is (571)272-6885. The examiner can normally be reached M-F 8:30-5.
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, Kimberly Berona can be reached at (571) 272-6909. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DARREN W ARK/Primary Examiner, Art Unit 3647
DWA
Prosecution Insights