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 Species O in the reply filed on 3 December 2025 is acknowledged.
No Claims have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 3 December 2025.
Claim 10 is withdrawn as not being directed to the elected species: “wherein the insect-attracting substance is released over a first time period and the second insect-attracting substance is released over a second time period occurring after the first time period” - no mention of time periods, overlapping or otherwise, is found in the description in the elected embodiment.
Claim 11 is withdrawn as not being directed to the elected species: “wherein the insect-attracting substance is configured to be detectable by an insect for approximately a 2-meter radius from the insect trap portion” is discussed in relation to unelected trap 110. Traps 210 & 510 are discussed in a relation to a 1 meter radius.
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 1-9, 12-15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential structural cooperative relationships of elements, such omission amounting to a gap between the necessary structural connections. See MPEP § 2172.01. The omitted structural cooperative relationships are: the protrusion in claim 1 is not claimed as a portion of anything else, or connected with another claimed element. Conversely, the protrusion is claimed in functional relationship with another element (base portion) which is not positively claimed (at least not until, and solely in, claim 15).
Similarly, each adhesive surface is unattached to another claimed element. Additionally, it is unclear what is meant by “wherein the adhesive surface engages a bottom portion of the front housing” since “engage: c: to interlock with: mesh; also: to cause (mechanical parts) to mesh” (Merriam Webster Dictionary). It is not readily apparent what features are being interlocked or meshed to meet the common definition.
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.
Claims 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Harris (US 7191560 B2) in view of Finn et al. (US 20030145511 A1, “Finn”).
For Claim 1, Harris discloses a removable insect trap portion (as defined by the components claimed below, the device of Harris is a removable insect trap) comprising:
a. a front housing (30) comprising a convex outward-facing surface and a concave inner-facing surface (in the same manner as the instant invention, the profile of 30 is curved);
b. a protrusion (one of 24 or outlet prongs Figs. 6-7) configured to engage with a base portion;
c. an adhesive surface (32) configured to adhere to a flying insect, wherein the adhesive surface engages a bottom portion of the front housing (Fig. 1) and extends from the bottom portion to a top portion of the front housing (Fig. 1);
d. a cup (12) joined to the front housing (indirectly, Fig. 1), wherein the cup comprises a bottom surface, an open end (Col. 1, line 60-Col. 2, line 2); and
wherein an insect-attracting substance is contained within the cup (Col. 1, line 60-Col. 2, line 2).
Harris is silent to the cup comprising a lip protruding from a perimeter of the open end;
e. a removable tab having a sealing end and a grip end, wherein the sealing end is affixed to the lip of the cup and configured to cover the open end of the cup creating a seal between the lip and the sealing end of the removable tab.
Finn, like prior art above, teaches an insect control device (title, disclosure) comprising a cup (24) comprising a lip (25) protruding from a perimeter of open end ¶0051;
e. a removable tab having a sealing end (46) and a grip end (49), wherein the sealing end is affixed to the lip of the cup and configured to cover the open end of the cup creating a seal between the lip and the sealing end of the removable tab (Fig. 4).
Therefore, it would have been obvious to one of ordinary skill in the art before the claimed invention was effectively filed to modify the cup 12 of Harris with a removable seal and the sealed contents as taught by Finn, in order to allow for the device to be easily moved and/or shipped and/or to avoid drying out of the lure substance, yielding predictable results.
For Claim 2, Harris in view of Finn teaches the removable insect trap portion of Claim 1, and Finn further teaches wherein the cup comprises a carrier material impregnated with the insect-attracting substance (the mixture of slow acting poison and food material discussed in ¶0016).
For Claim 3, Harris in view of Finn teaches the removable insect trap portion of Claim 1, and Harris further discloses wherein the cup is positioned adjacent to the concave inner-facing surface of the front housing (Fig. 1).
For Claim 4, Harris in view of Finn teaches the removable insect trap portion of Claim 3, and Harris further discloses wherein the cup is joined to the front housing in the bottom portion of the front housing (cup 12 is within the bottom region formed by cover 30).
For Claim 5, Harris in view of Finn teaches the removable insect trap portion of Claim 1, and Harris further discloses wherein the protrusion extends below the bottom surface of the cup (at least a bottom element of 24 and/or outlet prongs shown in Fig. 5 are below the cup 12).
For Claim 6, Harris in view of Finn teaches the removable insect trap portion of Claim 1, and Harris further discloses wherein the cup is positioned between the protrusion and the front housing (the cup 12 is between the outlet prongs and the cover 30).
For Claim 7, Harris in view of Finn teaches the removable insect trap portion of Claim 1, and the resulting combination renders obvious wherein a portion of the grip end of the removable tab extends through an opening in the front housing (see the opening in housing Figs. 1-2 of Finn, the opening formed between two of 24 of Harris would provide the same opening for access).
For Claim 8, Harris in view of Finn teaches the removable insect trap of Claim 7.
Harris in view of Finn is silent to wherein the portion of the grip end extending through the opening is folded such that it overlaps a portion of the convex outward-facing surface of the front housing.
It would have been obvious to one of ordinary skill in the art before the claimed invention was effectively filed to modify the exposed portion of the grip of the pull tab of Harris in view of Finn with a fold such that the tab overlaps a portion of the outward-facing surface of the housing of the resulting device, since the Examiner takes Official Notice that such a folded arrangement for making it easy and clear to the user which element to grab, is exceedingly well known in the art.
For Claim 9, Harris in view of Finn discloses the removable insect trap portion of Claim 2, and Finn further teaches wherein the carrier material comprises a second insect-attracting substance (for instance, peanut butter, ¶0016, comprises sugar and peanuts and oils, any two of these elements are attractive to some insect).
Claims 12 & 13 are rejected under 35 U.S.C. 103 as being unpatentable over Harris in view of Finn as applied to claim 1 above, and further in view of Gardner (US 20040187377 A1).
For Claim 12, Harris in view of Finn teaches the removable insect trap portion of Claim 1.
Harris in view of Finn is silent to wherein the adhesive surface comprises an adhesive material comprising a styrene block copolymer.
Gardner, like prior art above, teaches an insect control device (title, disclosure) further comprising an adhesive material comprising a styrene block copolymer ¶0020.
Therefore, it would have been obvious to one of ordinary skill in the art before the claimed invention was effectively filed to modify the sticky surface of Harris in view of Finn with the styrene block copolymer taught by Gardner, in order to provide a well-known material for insect trapping, yielding predictable results.
For Claim 13, Harris as modified teaches the removable insect trap portion of Claim 12.
The above-modified reference is silent to wherein the adhesive material has a thickness of from about 0.01 mm to about 0.2 mm.
It would have been obvious to one having ordinary skill in the art before the claimed invention was effectively filed to provide the thickness of the adhesive on the sheet of Harris in view of Finn at a measurement of about 0.01 mm to about 0.2 mm, in order to provide enough material to catch insects, but not so much to weigh down the device or waste material, and since it has been held that 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 14 is rejected under 35 U.S.C. 103 as being unpatentable over Harris in view of Finn as applied to claim 1 above, and further in view of Brown et al. (US 6393759 B1, “Brown”).
For Claim 14, Harris in view of Finn teaches the removable insect trap portion of Claim 1.
Harris in view of Finn is silent to wherein the adhesive surface is transparent or translucent.
Brown, like prior art above, teaches an insect control device (title, disclosure) comprising an adhesive surface which is transparent (“transparent” Col. 8, lines 41-46).
Therefore, it would have been obvious to one of ordinary skill in the art before the claimed invention was effectively filed to modify the adhesive of the above-modified reference with a transparent adhesive as taught by Brown, in order for the trap to be undetectable by insects and users, yielding predictable results.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19015967 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claimed “removable tab” and “lid” are synonymous and function in the same fashion. Additionally, any mention of molasses is found unobvious over reference to ¶0016 of Finn (US 20030145511 A1), which lists molasses as a well-known attractant.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Allowable Subject Matter
Claim 15 might be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action, to include all of the limitations of the base claim and any intervening claims, and to overcome the formalities presented by the double patenting rejection.
Conclusion
The cited prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Special attention is drawn to the disclosures of US 8709337 B2, US 8740110 B2, US 3685199 A, US 3729858 A, DE 3840440 A1, US 5142815 A, US 5915948 A, WO 0240067 A1, US 20030079398 A1, DE 10236531 A1, WO 2005053389 A1, US 20100263260 A1 as disclosing an invention or aspects of the invention which are similar to those claimed and/or disclosed in the instant invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Morgan T. Jordan whose telephone number is (571)272-8141. The examiner can normally be reached M-Th 8:30-5:30.
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/MORGAN T JORDAN/Primary Examiner, Art Unit 3643