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 .
Examiner’s Comment
The examiner noticed that there does not appear to be a power of attorney document present in the file wrapper, despite it appearing as if the applicant is being represented by a power of attorney in prosecution. The examiner requests that the applicant submit a power of attorney with their response. The examiner notes that, without a power of attorney on record, the examiner is unable to discuss details of the case over the phone with anyone other than the named applicant(s) on the application. See MPEP 402 for guidance.
Drawings
The drawings are objected to for including photographs. Per 37 CFR 1.84 (b)(1), photographs are not ordinarily permitted unless photographs are the only practicable medium for illustrating the claimed invention (e.g. electrophoresis gels, blots, auto-radiographs, cell cultures). Further, photographs must be of sufficient quality so that all details in the photographs are reproducible in the printed patent. The photographs in the drawings do not meet these conditions for acceptance, and as such, the examiner requires black and white line drawing(s) in place of the photograph(s) present.
Specification
The disclosure is objected to because of the following informalities:
¶00093: “the longitudinal tube body includes a hollow space configured to load into the longitudinal tube body” is unclear.
Appropriate correction is required.
Claim Objections
Claim 1, 4-5, and 7-8 are objected to because of the following informalities:
Claim 1, lines 6&9 and Claim 7, lines 9&12: “wherein the longitudinal tube body (104) comprising” should read –wherein the longitudinal body (104) comprises—
Claim 1, line 10: “wherein the hollow space (108) configured” should read -- wherein the hollow space (108) is configured—
Claim 1, lines 14&15 and Claim 7, lines 16 and 18: “wherein the longitudinal body (104) configured to” should read –wherein the longitudinal body (104) is configured to—
Claim 1, line 15 and claim 7, line 18: “in air” should read –into the air--.
Claim 3, line 21: “wherein the combustible material comprising” should read –wherein the combustible material comprises--
Claim 5, line 29 and claim 9, line 25: “the pesticide composition comprising” should read –the pesticide composition comprises—
It appears there is a typo in claim 5, line 30 and claim 9, line 26, as best understood: “and/” seems as if it should read –and—or –and/or—depending on the applicant’s intention. If it is changed to and, the examiner suggests changing “natural ingredients, natural and synthetic pyrethroid compound,” to –natural ingredients, natural pyrethroid compound, and synthetic pyrethroid compound,-- or –natural ingredients, natural and synthetic pyrethroid compounds,-- depending on the applicant’s intention, given it does not appear as if a pyrethroid compound (singular) could be synthetic and natural simultaneously.
Claim 7, line 15: “self-igniting head” should read –self-igniting head—
Claim 4 and Claim 8: “external or internal surface” should read --the external or internal surface—
Appropriate correction is required.
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 1-10 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.
Claims 1 and 7 recite “a pesticide composition loaded on at least one of an external surface, and an internal surface of the longitudinal tube body,” and “wherein the hollow space (108) configured to load the pesticide composition into the longitudinal tube body.” In the second limitation quoted, it is unclear how a hollow space, which amounts to empty volume, may perform a function of loading a pesticide composition into the longitudinal tube body (perhaps the applicant means that the hollow space is configured to hold pesticide composition therein or that the hollow space holds pesticide composition therein?). As a note – given the functional nature of the limitation, the pesticide composition is not actually required to be located inside the longitudinal body and/or hollow space with this claim (MPEP 2114), rather just that the hollow space be functionally capable of loading the composition into the body, as best understood, should the applicant wish to claim otherwise, amendments must be made.
Claim 1 recites that the body “is employed with or without a self-igniting head (110), or without the self-igniting head to initiate combustion, wherein the longitudinal tube body (104) configured to ignite using the self-igniting head (110) or an ignition mechanism.” This limitation as a whole is unclear, particularly in whether the applicant is or is not requiring the self-igniting head as a part of their device, this lack of clarity seems to be exacerbated by potential grammatical issues in this limitation. Further, claim 2, which depends on claim 1 recites “wherein the self-igniting head (110) is positioned on the at least one of the distal end (106b) of the longitudinal tube body (104).” Given, as best understood, neither the self-igniting head, nor the distal end are positively required by claim 1, it is unclear how this claim serves to further limit the applicant’s invention, or what claimed elements are even required.
Claim 2 recites the limitation "the at least one of the distal end" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claims 4 and 8 contemplate that the pesticide composition is “stuffed or loaded on either external or internal surface.” It is unclear how a composition may be ‘stuffed’ on a surface; the use of the word ‘stuffed’ in this context does not align with the plain ordinary meaning of the term ‘stuffed’ as understood by a person having ordinary skill in the art, and the specification does not serve to redefine the term ‘stuffed’ with a special definition, therefore it is not wholly clear what the applicant is attempting to claim when they say the pesticide may be ‘stuffed’ on a surface.
Correspondence between the specification and claims is required by 37 CFR 1.75(d)(1), which provides that claim terms must find clear support or antecedent basis in the specification so that the meaning of the terms may be ascertainable by reference to the specification, and, per MPEP 2173.03, a claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification renders the scope of the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty. In re Moore, 439 F.2d 1232, 1235-36, 169 USPQ 236, 239 (CCPA 1971); In re Cohn, 438 F.2d 989, 169 USPQ 95 (CCPA 1971); In re Hammack, 427 F.2d 1378, 166 USPQ 204 (CCPA 1970).
Claims 1 and 7 recite a “self-igniting head to initiate combustion”. The term ‘self-igniting’ has an accepted meaning of ‘something that may ignite spontaneously without external spark or flame.’ However, when seemingly discussing the self-igniting head, the specification, as best understood, seems to attribute the self-igniting head as a device with an ignitable material such as potassium nitrate (e.g. a match), which “may lead to fire flame after being stroked against a striking surface” (¶00075). Should the head be simply a device with an ignitable material, like a match head, the device would not be considered ‘self-igniting’, as it would require external combustion to ignite (fire created by the transfer of red phosphorous on the striking surface to white phosphorous, the fire created lighting the ignitable material on the match head). This inconsistency makes the claim take on an unreasonable degree of uncertainty, particularly in whether the applicant is attempting to redefine the term ‘self-igniting’. Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The term “self-igniting” in claims 1 and 7 appear to be used by the claim/disclosure to mean “ignitable,” while the accepted meaning is something that may ignite spontaneously without an external spark or flame. The term is indefinite because the specification does not clearly redefine the term.
Claims 5 and 9 recite “wherein the pesticide composition comprising at least one of natural ingredients, natural and/ synthetic Pyrethroid compound and at least one excipient.” It is unclear whether the claim is requiring: at least one excipient AND at least one of: natural ingredients, natural pyrethroid compound, and synthetic pyrethroid compound; or at least one of: natural ingredients, natural pyrethroid compound, synthetic pyrethroid compound, and at least one excipient.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Buck (AT 000926 U1), hereinafter referred to as Buck, as best understood in light of the 112(b) issues addressed above.
Regarding claim 1:
Buck discloses a pesticidal device for controlling indoor and outdoor pests (device 4, Fig 2; title) , wherein said pesticidal device comprises:
a longitudinal tube body (tube 5, Fig 2; claim 3) formed using a combustible material (claim 2: cardboard, coated cardboard, or a multi-layer refined paper preparation), wherein the longitudinal tube body comprises at least one of a proximal end, and a distal end (see annotated Fig 2 below);
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a pesticide composition (active composition 6, Fig 2) loaded on at least one of an external surface, and an internal surface of the longitudinal tube body (loaded on internal surface per Fig 2), wherein the longitudinal tube body comprises a hollow space (hollow space is the hollow interior of tube in which active composition 5 is found, Fig 2), wherein the hollow space is configured to load the pesticide composition into the longitudinal tube body (see Fig 2); and
the longitudinal tube body is employed with or without a self-igniting head, or without the self-igniting head to initiate combustion (self-igniting head is friction head 7; ‘self’ igniting as best understood), wherein the longitudinal tube body is configured to ignite using the self-igniting head or an ignition mechanism (Pg 4, second ¶ up from ‘claims’), wherein the longitudinal tube body is configured to release pesticidal ingredients in air upon igniting for controlling a plurality of indoor and outdoor pests (Pg 4, last two ¶s before ‘claims’).
Regarding claim 2:
Buck discloses the limitations of claim 1 above and further discloses wherein the self-igniting head is positioned on the at least one of the distal end of the longitudinal tube body (see Fig 2).
Regarding claim 3:
Buck discloses the limitations of claim 1 above and further discloses wherein the combustible material comprises a paper material (claim 2) configured to absorb the pesticide composition loaded on the longitudinal tube body (functional language: capable of absorbing some of the pesticide due to the porous nature of paper, and the fact that the pesticide is introduced as a viscous liquid composition onto the cardboard; further, capable of absorbing some of the pesticide after it is released into the air)
Regarding claim 4:
Buck discloses the limitations of claim 1 above and further discloses wherein the pesticide composition is formulated into a liquid form (viscous fluid per page 4, ¶4), a powder form, or combinations thereof and stuffed or loaded on either external or internal surface of the longitudinal tube body (see Fig 2).
Regarding claim 5:
Buck discloses the limitations of claim 1 above and further discloses wherein the pesticide composition comprising natural ingredients, natural and/ synthetic Pyrethroid compound and at least one excipient (claim 7).
Regarding claim 6:
Buck discloses the limitations of claim 1 above and further discloses wherein the plurality of indoor and outdoor pests are selected from the group consisting of arthropods such as insects, arachnids, centipedes, mosquitoes, houseflies, drain flies, Vespa spp. (Hornet), cockroaches, ants, bedbugs, spiders, mites, aphids, thrips, whiteflies, loopers, worms, beetles, leafrollers, moths, weevils including larvae and eggs (functional language: the pest control device releases hydrogen phosphide per disclosure, thereby the device is capable of controlling pests of the list above; hydrogen phosphide AKA phosphine is a known fumigant).
Regarding claim 7:
Buck discloses a method for controlling indoor and outdoor pests (title), wherein said method comprises:
Collecting a longitudinal tube body (tube 5, Fig 2; claim 3) composed with a combustible material (claim 2: cardboard, coated cardboard, or a multi-layer refined paper preparation), wherein the longitudinal tube body comprises at least one of a proximal end, and a distal end (see annotated Fig 2 below);
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loading, a pesticide composition (active composition 6, Fig 2) on at least one of an external surface, and an internal surface of the longitudinal tube body (active composition 6 metered into the hollow of tube 5 per Pg 4, ¶4; see Fig 2 – on internal surface of tube), wherein the longitudinal tube body comprises a hollow space (hollow space is the hollow interior of tube in which active composition 5 is found, Fig 2), wherein the hollow space is configured to load the pesticide composition into the longitudinal tube body (see Fig 2); and
igniting, the longitudinal tube body employed with or without self-igniting head to initiate combustion (Pg 4, second ¶ above ‘Claims’; self-igniting head is friction/reaming head 7), wherein the longitudinal tube body is configured to ignite using the self-igniting head or an ignition mechanism (Pg 4, second ¶ above ‘Claims’), wherein the longitudinal tube body is configured to release pesticidal ingredients in air upon igniting for controlling a plurality of indoor and outdoor pests (Pg 4, last two ¶s before ‘claims’).
Regarding claim 8:
Buck discloses the limitations of claim 7 above and further discloses wherein the pesticide composition is formulated into a liquid form (viscous fluid per page 4, ¶4), a powder form, or combinations thereof and stuffed or loaded on either external or internal surface of the longitudinal tube body (see Fig 2).
Regarding claim 9:
Buck discloses the limitations of claim 7 above and further discloses wherein the pesticide composition comprising at least one of natural ingredients, natural and/ synthetic Pyrethroid compound and at least one excipient (claim 7).
Regarding claim 10:
Buck discloses the limitations of claim 7 above and further discloses wherein the plurality of indoor and outdoor pests are selected from the group consisting of arthropods such as insects, arachnids, centipedes, mosquitoes, houseflies, drain flies, Vespa spp. (Hornet), cockroaches, ants, bedbugs, spiders, mites, aphids, thrips, whiteflies, loopers, worms, beetles, leafrollers, moths, weevils including larvae and eggs (functional language: the pest control device releases hydrogen phosphide per disclosure, thereby the device is capable of controlling pests of the list above; hydrogen phosphide AKA phosphine is a known fumigant).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Those references cited on the attached 892 form, but not cited in the rejections above exhibit similarities to the present invention, especially Sadahiro (US 3754861), Kaibe (WO 2024127904 A1), and Lilly (US 2720012).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BROOK V SCHMID whose telephone number is (571)270-0141. The examiner can normally be reached M-F 8:30-5:30ish.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joshua Huson, can be reached on 571-270-5301. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/B.V.S./Examiner, Art Unit 3642
/ASSRES H WOLDEMARYAM/Primary Examiner, Art Unit 3642