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 § 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) 1-7, 14, 16, 18 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weintraub, et al. (“Weintraub”) (U.S. Pub. 2015/0027034) in view of Walters (U.S. Pat. 6,491,187).
Regarding claim 1, Weintraub discloses an array (Fig. 13) of pesticidal products comprising:
a first pesticidal product comprising an aerosol container (Fig. 13: 102, Fig. 1: 2) comprising a reservoir, an actuator assembly (¶ [0053]: “The first package 2 shown in FIG. 1 includes a manual aerosol container 10 having treatment material 8 disposed therein. In another embodiment, an automatic actuator may be utilized in lieu of and/or in conjunction with the manual actuator.”), and a first pesticidal (see labels on containers in Figs. 1 and 2: “Attack Bugs, Control Bugs”) composition (¶ [0053]: “treatment material”) stored within the first pesticidal product reservoir; and
a second pesticidal product comprising a container (Fig. 13: 104, Fig. 2: 4) comprising a reservoir, a nozzle (28), and a second pesticidal (see labels on containers in Figs. 1 and 2: “Attack Bugs, Control Bugs”) composition (¶ [0053]: “treatment material”) stored within the second pesticidal product reservoir, wherein the second pesticidal product is shelved in an upright orientation (seen in Fig. 13).
Weintraub is silent that the first pesticidal product comprising an aerosol container comprising a resting plane such that the first pesticidal product may be shelved in an inverted orientation.
Walters discloses an aerosol container (20A) comprising a resting plane such it may be shelved in an inverted orientation (col. 8, lines 35-37: “The aerosol dispensing device 10A of the present invention enables the aerosol container 20A to be stored in an inverted position.”)
Therefore, it would have been obvious to one with ordinary skill in the art, prior to the effective filing date of the claimed invention, to substitute Weintraub’s aerosol container with Walters’ aerosol container, which comprises a resting plane such it may be shelved in an inverted orientation, since doing so would be a mere substitution of one known aerosol container configuration for another known aerosol container configuration with the expected results that the substituted aerosol container would still dispense the aerosol product under the pressure of an aerosol propellant. (see MPEP 2143 I B).
Regarding claim 2, the combination discloses that the first pesticidal product is stored in an inverted orientation, as modified by Walters, on a store shelf separate from the second pesticidal product that is stored in an upright orientation in a way that first and second pesticidal product packages are visible to a consumer during the consumer's purchasing decision process. (see Fig. 13 of Weintraub)
Regarding claim 3, Weintraub discloses that the first and second pesticidal products are designed to be sold individually. (Weintraub: ¶ [0046]: “Each consumer product comprises a distinct article that has its own functional and utilitarian benefit in connection with the activity independent of the other consumer products or distinct articles.”)
Regarding claim 4, Weintraub the first and second pesticidal products comprise a common brand name. (¶ [0009]: “In all of these non-limiting examples, a single manufacturer, or in other instances a group of manufacturers, may supply the entire stream of consumer products in the regimen for completing a task.”)
Regarding claim 5, Weintraub discloses that the products can include insect repellants, insecticides, air fresheners, all-purpose cleaners, carpet cleaners, window cleaners, candles, floor cleaners, furniture polishes, disinfecting wipes, detergents, car polishes, and the like (¶ [0049]) but does not mention an herbicide.
However, referring to the dispensing apparatus that is intended to be used for dispensing an herbicide, while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. See MPEP Ex parte Masham, 2 USPQ2d 1647 (1987). In this case, Weintraub’s first and second containers are capable of dispensing an herbicide or an insecticide or an insect repellent.
Regarding claim 6, Weintraub discloses the first and second containers are capable of dispensing insecticides. (¶ [0049])
Furthermore, while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. See MPEP Ex parte Masham, 2 USPQ2d 1647 (1987).
Regarding claim 7, Weintraub discloses in ¶ [0047]: “In one particular example, the tasks of a pest management regimen comprise attacking, controlling, and preventing pests such as insects. For purposes of discussion, "attacking" may be effected by an aerosol and may kill or otherwise knockdown bugs. "Controlling" may be accomplished by a product directed to a surface or other substrate that works over a period of time.” The combination’s containers are capable of dispensing an array of pesticidal products, such as (¶ [0057]: “the treatment material 8 disclosed in the embodiments herein may be an insect repellant or insecticide disposed within a carrier liquid”)
Therefore, while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. See MPEP Ex parte Masham, 2 USPQ2d 1647 (1987).
Regarding claim 14, Weintraub discloses that the first and second reservoir are plastic. (¶ [0056])
Regarding claim 16, Weintraub, as modified by Walters, discloses that the first pesticidal product discharges substantially parallel to a longitudinal axis of the reservoir (Walters: col. 1, lines 15-17 and Fig. 3) and the second pesticidal product discharges substantially perpendicular to a longitudinal axis of the reservoir (Weintraub: Fig. 2: pump sprayers which discharges perpendicular to a longitudinal axis of the reservoir)
Regarding claims 18 and 19, Weintraub discloses the first pesticidal product has a 2D indicia (44a) and the second pesticidal product as a 2D indicia (44b) but doesn’t specify that the indicia represent a plant or an insect (claim 18) or a crawling insect or a flying insect (claim 19); however, it would have been an obvious matter of design choice to one with ordinary skill in the art, prior to the effective filing date of the claimed invention, to use any number of symbols or indicia as a marker or indicator for consumers to associate with the particular consumer product and/or package. (¶ [0058])
Claim(s) 8 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weintraub and Walters as applied to claim 1 above, and further in view of Moore, et al. (“Moore”) (U.S. Pub. 2013/0183392).
Regarding claim 8, Weintraub discloses that the containers are capable of dispensing an insecticide or an insect repellent (¶ [0057]: “the treatment material 8 disclosed in the embodiments herein may be an insect repellant or insecticide disposed within a carrier liquid”).
The combination is silent in specifying the formulation of the second pesticidal composition.
Moore teaches (¶ [0005]) that “DEET (N,N,diethyl-meta-toluamide) is the active ingredient of many commercial insect repellants. It can be dispersed into the air, typically being mixed with a carrier solvent and evaporated to provide the repellant effect. It can also be applied topically. In various concentrations, it provide its insect repellant effects for several hours.”
Therefore, it would have been obvious to one with ordinary skill in the art, prior to the effective filing date of the claimed invention, to borrow the teaching of Moore by using DEET since it is an old and well-known insect repellant.
Regarding claim 9, Weintraub discloses that the containers are capable of dispensing an insecticide or an insect repellent (¶ [0057]: “the treatment material 8 disclosed in the embodiments herein may be an insect repellant or insecticide disposed within a carrier liquid”).
The combination is silent in specifying the formulation of the first or second pesticidal composition.
Moore teaches (¶ [0007]) an insect repellant composition selected from the following: geraniol, thyme oil, vanillin, soybean oil, lemon oil, cinnamon oil, rosemary oil, clove oil, cedar oil and/or a castor oil-based emulsifier.
Therefore, it would have been obvious to one with ordinary skill in the art, prior to the effective filing date of the claimed invention, to borrow the ingredients taught by Moore since they are an effective insect repellant.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weintraub and Walters as applied to claim 1 above, and further in view of Smith, et al. (“Smith”) (U.S. Pub. 2005/0003990).
Regarding claim 10, Weintraub discloses that the containers are capable of dispensing an insecticide or an insect repellent (¶ [0057]: “the treatment material 8 disclosed in the embodiments herein may be an insect repellant or insecticide disposed within a carrier liquid”).
The combination is silent in specifying the formulation of the first or second pesticidal composition.
Smith discloses a composition used as a pesticide (¶ [0015]: “When provided as a pesticide”) which when an “organic solvent is included in the concentrate, it can be provided in an amount of between about 0.1 wt. % and about 99 wt. %, between about 5 wt. % and about 50 wt. %, and between about 10 wt. % and about 30 wt. %.” (¶ [0085])
Therefore, it would have been obvious to one with ordinary skill in the art, prior to the effective filing date of the claimed invention, to borrow the ingredients as taught by Smith, wherein the first pesticidal product has a VOC from about 5% to about 45% by weight of the first pesticidal composition, and the second pesticidal product has a VOC from about 0.1% to about 3% by weight of the second pesticidal composition, , 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, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) MPEP 2144.05
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weintraub and Walters as applied to claim 1 above, and further in view of Synek (U.S. Pat. 5,612,048).
Regarding claim 11, Weintraub discloses that the containers are capable of dispensing an insecticide or an insect repellent (¶ [0057]: “the treatment material 8 disclosed in the embodiments herein may be an insect repellant or insecticide disposed within a carrier liquid”).
The combination is silent in specifying the formulation of the first or second pesticidal composition.
Synek discloses a pesticide composition with a moisture barrier component is employed according to the invention in an amount from about 5 to 15 wt %, more particularly 7 to 12 wt %, based on the entire weight of the pesticide composition.
Therefore, it would have been obvious to one with ordinary skill in the art, prior to the effective filing date of the claimed invention, to borrow the ingredients as taught by Synek, wherein the first pesticidal composition comprises from about 5% to about 45% by weight of the first pesticidal composition of isopropyl alcohol, and the second pesticidal composition comprises from 0% to about 3% by weight of the second pesticidal composition of isopropyl alcohol since the range in amounts of the moisture barrier component may be more or less depending on factors such as the pesticide concentration, the presence of trace minerals, the sensitivity of the pesticide to moisture and the acidity or alkalinity of the overall composition (col. 3, lines 32-40), 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, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) MPEP 2144.05
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weintraub and Walters as applied to claim 1 above, and further in view of Yoshida, et al. (“Yoshida”) (U.S. Pub. 2003/0082244) and Zobitne, et al. (“Zobitne” (U.S. Pat. 5,998,484).
.Regarding claim 12, Weintraub discloses that the containers are capable of dispensing an insecticide or an insect repellent (¶ [0057]: “the treatment material 8 disclosed in the embodiments herein may be an insect repellant or insecticide disposed within a carrier liquid”).
The combination is silent in specifying the formulation of the first or second pesticidal composition.
Yoshida teaches (¶ [0090]) that [0090] insecticide or insect-repellent agent may contain other insecticide or insect-repellent agent, or an effect enhancing agent. Other insecticides include nereistoxin compounds such as bensultap, hiba oil, hiba neutral oil, fatty acids such as decanoic acid and octanoic acid.
Zobitne teaches (Abstract) a highly effective, broad spectrum, quick-acting, nonpoisonous insecticidal composition with synergistic kill ratio and kill time is provided when cornmint oil and sodium lauryl sulfate are combined as the essential active ingredients.
Therefore, it would have been obvious to one with ordinary skill in the art, prior to the effective filing date of the claimed invention, to borrow the ingredients taught by Coleman or Zobitne for either the first pesticidal composition or the second pesticidal composition based on the intended use of the pesticide.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weintraub and Walters as applied to claim 1 above, and further in view of Govindan Radhakrishnan (U.S. Pub. 2024/0166426).
Regarding claim 13, the combination does not mention the first pesticidal product has a particle size distribution DV90 of from about 400 microns to about 900 microns when sprayed and the second pesticidal product has a particle size distribution of from about 100 microns to about 300 microns when sprayed; however, Govindan Radhakrishnan discloses an aerosol dispenser and nozzle with reduced drip and teaches that “Various aspects of the valve assembly, supply channel, and/or nozzle may influence the particle size and flow rate.” (¶ [0002])
Govindan Radhakrishnan also teaches the dispenser may be designed that results in DV90 particle sizes, such as: (¶ [0093]: “greater than 100 microns”, ¶ [0101]: “The fully open Dv90 particle size range may be less than 15 microns, or may be less than 10 microns. The minimum Dv90 particle size may be in the range of about 60 microns to about 100 microns, or about 70 microns to about 90 microns. The closing maximum Dv90 particle size may be in the range of about 60 microns to about 100 microns, or about 80 microns to about 100 microns.”)
Therefore, it would have been obvious to one with ordinary skill in the art, prior to the effective filing date of the claimed invention, to design the valve assembly, supply channel, and/or nozzle such that the first pesticidal product has a particle size distribution DV90 of from about 400 microns to about 900 microns when sprayed and the second pesticidal product has a particle size distribution of from about 100 microns to about 300 microns when sprayed, 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, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) MPEP 2144.05
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weintraub and Walters as applied to claim 14 above, and further in view of Munagavalasa (U.S. Pub. 2008/0027143).
Regarding claim 15, the combination does not mention if the reservoirs of the containers are transparent. Munagavalasa discloses an insecticide dispenser with a reservoir (50) that is a transparent cylindrical container. (¶ [0030])
Therefore, it would have been obvious to one with ordinary skill in the art, prior to the effective filing date of the claimed invention, to design the first and second reservoirs from a transparent material to allow the user to check on the fill level of the reservoir.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weintraub and Walters as applied to claim 1 above, and further in view of Hornsby, et al. (“Hornsby”) (U.S. Pub. 2009/0032618).
Regarding claim 17, Weintraub does not mention if the second pesticidal product has a powered pump.
Hornsby discloses a power sprayer with a powered pump (30, 32, 34) that can be used to dispense insecticides, herbicides or the like (¶ [0010]).
Therefore, it would have been obvious to one with ordinary skill in the art, prior to the effective filing date of the claimed invention, to borrow the teaching of Hornsby to use a powered pump in the second pesticidal product to reduce fatigue by the user by eliminating the need to repeatedly squeezing a lever on a sprayer. (¶ [0003])
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See form PTO-892, attached.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL J MELARAGNO whose telephone number is (571)270-7735. The examiner can normally be reached Mon - Fri: 8 am - 5 pm +/- flex.
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/MICHAEL J. MELARAGNO/ Examiner, Art Unit 3754
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