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No claims are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group and Species, there being no allowable generic or linking claim.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 12/18/2025 have been fully considered but they are not persuasive.
In regard to applicants’ argument that “Claims 1-13 stand rejected under 35 U.S.C. 103 as being unpatentable over…These rejections are respectfully traversed.”, the Examiner contends that applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
Applicant's arguments do not comply with 37 CFR 1.111(c) because they do not clearly point out the patentable novelty which he or she thinks the claims present in view of the state of the art disclosed by the references cited or the objections made. Further, they do not show how the amendments avoid such references or objections.
In regard to applicants’ statement that “Applicant Rescinds and Retracts Any Disclaimers or Admissions and Requests that the Examiner Re-evaluate the Art Previously Considered in Light of the Presently Pending Claims.”, the Examiner contends that applicants cannot rescind or retract any admission made in this or any related applications during prosecution or otherwise since applicants, 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), expressly admitted that Species I-IV are obvious variants of each other and that the Examiner has examined the present application and the pending claims on the merits based on applicants’ express admission on the record.
In regard to applicants’ argument that “Applicant never admitted in the present application that the currently pending claims relate to or are any of the Species I-IV as identified in the Requirement for Restriction dated September 16, 2022 in application number 17/247,135. Only the Examiner has asserted such in this application…”, the Examiner contends that the present application is a Continuation Application of prior application 17/247,135 and that therefore applicants’ admission on the record in parent application 17/247,135 in the Election filed on 09/26/2022 that Species I-IV were obvious variants over one another carried over to the prosecution of the present application.
In regard to applicants’ argument that “…the currently pending claims are NOT of ANY of species I-IV. Claims 1-11 and 14-22 as currently pending, at best, would relate to a distinct ‘species V’ which is NOT tied to any admission concerning species I-IV as identified in the Response to Election/Restriction filed September 26, 2022 in application number 17/247,135…”, the Examiner contends that applicants have not specifically explained how the limitations recited in currently pending claims 1-11 and 14-22 are directed to a newly determined species V and thus do not encompass any of species I-IV as set forth in the Restriction Requirement mailed on 09/16/2022 in prior application 17/247,135.
In regard to applicants’ argument that “Applicant respectfully submits Somerville, Heath, Ernsberger, Rimback, Lim, Applicant’s Admission or any combination thereof, do not teach, disclose, or suggest the features of the presently pending claims…claim 14 is further amended to include ‘a spatiotemporal window…’ and ‘said synergistic effect characterized by a knockdown of at least 88% of flying insects that enter the spatiotemporal window’…”, the Examiner contends that applicants’ are attempting to claim an aspect of the desired invention that does not represent either concrete structure or function of the desired invention. While the knockdown of at least 88% of flying insects that enter the spatiotemporal window may occur during use of the desired invention, it is not a limitation that is claiming the true function of the desired invention because the 88% efficacy of the desired invention in knocking down flying insects is dependent upon the cooperation of the flying insects in achieving the 88% efficacy by actually entering the spatiotemporal window. That is, there are other variables involved with achieving the knockdown of at least 88% of flying insects that are not due to either the structure or function of the desired invention and that are due to other uncontrollable factors such as the decisions by or the ability of the flying insects to actually enter the spatiotemporal window.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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.
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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
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