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 .
Application Status
Claims 1-4, 6-9, 11-12, 14-15 are pending and have been examined in this application. Claims 1, 3, 6, 8, 11, 12, 14 are amended, claims 2, 4, 7, 9, 15 are original or previously presented, claims 5, 10, 13 are cancelled.
Information Disclosure Statement
As of the date of this action, an information disclosure statement (IDS) has been filed on 07/24/2025 and reviewed by the Examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 4, 9, 12 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claims 4, 9, and 12 are dependent on claims 1, 6, and 11 respectively. Claims 1, 6, and 11 recite the glue being liquid, and then claims 4, 9, and 12 all recite that the blue glue layer may be blue liquid glue, blue glue from a blue stick of glue, glue with blue glitter, and non-drying photo mount glue, which appears to go from a narrow limitation (the blue glue being liquid) to a broader limitation (the blue glue can be selected from the group and does not have to be liquid).
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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) 1-4, 6-9, 11-12, 14-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over NPL Double-Sided Sticky Insect Traps AM Leonard 2020 in view of (CN 108669032 A) to Liu and (US 20130081324 A1) to Diclaro.
In regards to claim 1, Leonard teaches a rectangular shaped fly trap device for trapping live flies without toxicants, comprising: a plurality of single sheets stacked together having a rectangular shape configuration (Leonard; pack of 25, each single sheet being a sticky sheet, see Product Information and FIGs where the shape is rectangular); each of the single sheets having a front side and a rear side (Leonard; sheets having a front and rear side), the front side of each of the single sheets having black line patterns on a black grid over a solid colored background (Leonard; see FIG below and listing where black line patterns form a black grid over a solid blue colored surface), the black line patterns include individual black lines (Leonard; see FIG below where each line is an individual line); and a layer of glue overlaying the front side of each sheet forming a blue sticky surface on the front side of each sheet (Leonard; see Product Information, where the sheet is blue with a sticky adhesive layer on top so as to trap insects thereby forming a blue sticky surface on the front side of each sheet), and the black line patterns are visible through the layer of glue (Leonard; see FIG below where the black lines are visible through glue), wherein each sheet with the sticky surface and black line pattern is exposed for a selected period of time, and then discarded (These adhesive boards are capable of performing the function of being exposed for a selected period of time, and then discarded; see Product Information which describes hanging individual sheets in a garden or landscape to capture insects).
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Leonard fails to explicitly teach wherein the glue is blue, each black line between approximately 1 mm and approximately one inch which are wide enough for live flies into believing the black lines are crevices and cracks to hide from in order to avoid desiccation; wherein the layer of blue glue is formed from liquid glue consisting of dyes having a color of Pantone 115-5C blue color, wherein the liquid blue glue maintains a sticky state after being applied.
Liu teaches wherein the glue is blue (Liu; “the blue sticky surface coating mixed with the sticker of blue afterglow material”) wherein the layer of blue glue is formed from liquid glue consisting of dyes having a color of blue (Liu; explicitly states the glue is liquid; mixed with the blue afterglow material) wherein the liquid blue glue maintains a sticky state after being applied (Liu; explicitly states the glue is liquid and is sticky to catch insects, and is dyed blue).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Leonard such that the glue is specifically a blue color liquid glue that maintains stickiness to catch insects such as taught by Liu. The motivation for doing so would be to enhance the visibility of the color in dark or dimmer settings, allowing for greater visibility of the blue color such that insects are attracted to the blue color for longer periods of time.
Leonard as modified by Liu fail to explicitly teach where the glue is specifically Pantone 115-5C blue color, and each black line between approximately 1 mm and approximately one inch which are wide enough for live flies into believing the black lines are crevices and cracks to hide from in order to avoid desiccation.
Diclaro teaches each black line between approximately 1 mm and approximately one inch which are wide enough for live flies into believing the black lines are crevices and cracks to hide from in order to avoid desiccation (Diclaro; [0130] where the lines can range from 1/16” – 1” wideor ¼”-1/2” wide; and see abstract where the black lines over a blue background or on a sticky surface card can be used to simulate a harborage to attract flying insects/appearing as cracks or crevices).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the thickness of the lines to be between 1 mm and 1 inch in width to simulate cracks/crevices/harborage on blue sticky backgrounds to attract flies such as taught by Diclaro. The motivation for doing so would be to enhance the visual attractant to encourage flies to land on the sticky surface and be caught.
Leonard as modified by Liu and Diclaro fail to explicitly teach where the glue is specifically Pantone 115-5C blue color.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Leonard as modified by Liu to make an obvious matter of design choice to have the blue glue be specifically a “Pantone 115-5C” blue color, since applicant has not disclosed that the “Pantone 115-5C” blue color solves any stated problem or is for any particular purpose over other similar shades of blue Additionally, it has been held that matters relating to ornamentation only which have no mechanical function, such as between the Pantone 115-5C color and another similar blue, cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Additionally, Leonard, and Diclaro, teaches that providing black lines on a blue surface is effective for attracting flies, but is silent to the specific “pantone shade” of color of blue being utilized as being Pantone 115-5C. However, "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Leonard and Diclaoro each represent prior art which teaches that the combination of black lines, or black lines resembling cracks/crevices placed on a blue background are effective in attracting flies. With the teachings of Leonard, Diclaro, and Liu, one of ordinary skill in the art before the effective filing date of the claimed invention would be aware that the specific blue color, shade, or hue determines contrast or visibility between the black lines and the color. Consequently, the color is considered to be a result effective variable. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have configured the glue to have a color of Pantone 115-5C for the purpose of having a light blue color contrasting with the dark black lines and as a matter of routine optimization of contrast and visibility, with predictable results.
Specifically, applicant discusses the advantages of the color blue in attracting insects to the adhesive sheet, and Leonard, Liu, and Diclaro demonstrate these same advantages where the color blue is selected for its advantageous effects of attracting insects to be trapped on the surface. Though the specification recites that the “Pantone 115-5C” blue color may be used, there is no criticality to this specific shade of blue over other shades of blue. Applicant’s affidavit asserts that the lighter blue color of Pantone 115-5C is more effective than the darker blue of Leonard’s card, however determining a range of blues which would be most effective in providing contrast with the lines that resemble cracks or crevices, such as suggested by Diclaro, and attracting flies would only require routine experimentation, and that there is no specific criticality to Pantone 115-5C over another shade of blue that provides similar contrast. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify the combination of Lenoard, Liu, and Diclaro such that the blue glue is of Pantone 115-5C or another light blue as doing so would enhance the contrast and visibility between the colored background and the black lines of the invention.
In regards to claim 2, Leonard as modified by Liu and Diclaro teach the rectangular shaped fly trap device of claim 1, wherein the black line patterns include black geometrical shapes selected from the group consisting of different size rectangle crack shapes, parallelogram crack shapes, curve and crescent crack shapes (Leonard; the black line patterns are long thin rectangle crack shapes, the rectangular lines in the horizontal direction being different sizes compared to the rectangular lines in the vertical direction; the rectangular lines also being parallelogram crack shapes) (Diclaro; the black lines are long thin rectangle crack shapes [0130]).
In regards to claim 3, Leonard as modified by Liu and Diclaro teach the rectangular shaped fly trap device of claim 1, further comprising: a peel and stick cover sheet overlaying the front side of each sheet, wherein removing the peel and stick cover sheet exposes the blue sticky surface (Leonard; see Product Information, Product Features which describes an Easy-peel film, and Product Benefits which says “Easy-peel film maintains trap stickiness), wherein each sheet with the sticky surface and black line pattern is exposed for a selected period of time, and then discarded (These adhesive boards are capable of performing the function of being exposed for a selected period of time, and then discarded with the trapped live flies; see Product Information which describes hanging individual sheets in a garden or landscape to capture insects).
In regards to claim 4, Leonard as modified by Liu teach the rectangular shaped fly trap device of claim 1, wherein the layer of blue glue is selected from the group consisting of blue liquid glue, blue glue from a blue stick of glue, glue with blue glitter, and non-drying photo mount glue (Liu; explicitly states the glue is liquid).
In regards to claim 6, Leonard teaches a rectangular shaped fly trap device for trapping live flies without toxicants, comprising: a plurality of single sheets stacked together having a rectangular shape configuration (Leonard; pack of 25, each single sheet being a sticky sheet, see Product Information and FIGs where the shape is rectangular); each of the single sheets having a front side and a rear side (Leonard; sheets having a front and rear side), the front side of each of the single having a layer of glue overlaying the front side forming a blue sticky surface on the front side of each sheet (Leonard; see Product Information, where the sheet is blue with a sticky adhesive layer on top so as to trap insects thereby forming a blue sticky surface on the front side of each sheet); and black line patterns on a black grid overlaying the layer of glue (Leonard; see FIG and listing where black line patterns form a black grid over a solid blue colored surface, overlaid with the glue) the black line patterns include individual black lines (Leonard; see FIG where the black lines are individual black lines), and the black line patterns are visible through the layer of glue (Leonard; the black lines visible through the layer of adhesive) wherein each sheet with the blue sticky surface and black line pattern is exposed for a selected period of time, and then discarded (These adhesive boards are capable of performing the function of being exposed for a selected period of time, and then discarded; see Product Information which describes hanging individual sheets in a garden or landscape to capture insects).
Leonard fails to explicitly teach wherein the glue is blue, each black line between approximately 1mm to approximately one inch which is wide enough for live flies into believing the black lines are crevices and cracks to hide from in order to avoid desiccation, wherein the layer of blue glue is formed from liquid glue consisting of dyes having a color of Pantone 115-5C blue color, and wherein the liquid blue glue maintains a sticky state after being applied.
Liu teaches wherein the glue is blue (Liu; “the blue sticky surface coating mixed with the sticker of blue afterglow material”) wherein the layer of blue glue is formed from liquid glue consisting of dyes having a color of blue (Liu; explicitly states the glue is liquid; mixed with the blue afterglow material) wherein the liquid blue glue maintains a sticky state after being applied (Liu; explicitly states the glue is liquid and is sticky to catch insects, and is dyed blue).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Leonard such that the glue is specifically a blue color liquid glue that maintains stickiness to catch insects such as taught by Liu. The motivation for doing so would be to enhance the visibility of the color in dark or dimmer settings, allowing for greater visibility of the blue color such that insects are attracted to the blue color for longer periods of time.
Leonard as modified by Liu fail to explicitly teach where the glue is specifically Pantone 115-5C blue color, and each black line between approximately 1 mm and approximately one inch which are wide enough for live flies into believing the black lines are crevices and cracks to hide from in order to avoid desiccation.
Diclaro teaches each black line between approximately 1 mm and approximately one inch which are wide enough for live flies into believing the black lines are crevices and cracks to hide from in order to avoid desiccation (Diclaro; [0130] where the lines can range from 1/16” – 1” wideor ¼”-1/2” wide; and see abstract where the black lines over a blue background or on a sticky surface card can be used to simulate a harborage to attract flying insects/appearing as cracks or crevices).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the thickness of the lines to be between 1 mm and 1 inch in width to simulate cracks/crevices/harborage on blue sticky backgrounds to attract flies such as taught by Diclaro. The motivation for doing so would be to enhance the visual attractant to encourage flies to land on the sticky surface and be caught.
Leonard as modified by Liu and Diclaro fail to explicitly teach where the glue is specifically Pantone 115-5C blue color.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Leonard as modified by Liu to make an obvious matter of design choice to have the blue glue be specifically a “Pantone 115-5C” blue color, since applicant has not disclosed that the “Pantone 115-5C” blue color solves any stated problem or is for any particular purpose over other similar shades of blue Additionally, it has been held that matters relating to ornamentation only which have no mechanical function, such as between the Pantone 115-5C color and another similar blue, cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Additionally, Leonard, and Diclaro, teaches that providing black lines on a blue surface is effective for attracting flies, but is silent to the specific “pantone shade” of color of blue being utilized as being Pantone 115-5C. However, "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Leonard and Diclaoro each represent prior art which teaches that the combination of black lines, or black lines resembling cracks/crevices placed on a blue background are effective in attracting flies. With the teachings of Leonard, Diclaro, and Liu, one of ordinary skill in the art before the effective filing date of the claimed invention would be aware that the specific blue color, shade, or hue determines contrast or visibility between the black lines and the color. Consequently, the color is considered to be a result effective variable. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have configured the glue to have a color of Pantone 115-5C for the purpose of having a light blue color contrasting with the dark black lines and as a matter of routine optimization of contrast and visibility, with predictable results.
Specifically, applicant discusses the advantages of the color blue in attracting insects to the adhesive sheet, and Leonard, Liu, and Diclaro demonstrate these same advantages where the color blue is selected for its advantageous effects of attracting insects to be trapped on the surface. Though the specification recites that the “Pantone 115-5C” blue color may be used, there is no criticality to this specific shade of blue over other shades of blue. Applicant’s affidavit asserts that the lighter blue color of Pantone 115-5C is more effective than the darker blue of Leonard’s card, however determining a range of blues which would be most effective in providing contrast with the lines that resemble cracks or crevices, such as suggested by Diclaro, and attracting flies would only require routine experimentation, and that there is no specific criticality to Pantone 115-5C over another shade of blue that provides similar contrast. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify the combination of Lenoard, Liu, and Diclaro such that the blue glue is of Pantone 115-5C or another light blue as doing so would enhance the contrast and visibility between the colored background and the black lines of the invention.
In regards to claim 7, Leonard as modified by Liu teach the rectangular shaped fly trap device of claim 6, wherein the black line patterns include black geometrical shapes selected from the group consisting of different size rectangle crack shapes, parallelogram crack shapes, curve and crescent crack shapes (Leonard; the black line patterns are long thin rectangle crack shapes, the rectangular lines in the horizontal direction being different sizes compared to the rectangular lines in the vertical direction; the rectangular lines also being parallelogram crack shapes) (Diclaro; the black lines are long thin rectangle crack shapes [0130]).
In regards to claim 8, Leonard as modified by Liu teach the rectangular shaped fly trap device of claim 6, further comprising: a peel and stick cover sheet overlaying the front side of each sheet, wherein removing the peel and stick cover sheet exposes the blue sticky surface (Leonard; see Product Information, Product Features which describes an Easy-peel film, and Product Benefits which says “Easy-peel film maintains trap stickiness), wherein each sheet with the sticky surface and black line pattern is exposed for a selected period of time, and then discarded (These adhesive boards are capable of performing the function of being exposed for a selected period of time, and then discarded with the trapped live flies; see Product Information which describes hanging individual sheets in a garden or landscape to capture insects).
In regards to claim 9, Leonard as modified by Liu teach the rectangular shaped fly trap device of claim 6, wherein the layer of blue glue is selected from the group consisting of blue liquid glue, blue glue from a blue stick of glue, glue with blue glitter, and non-drying photo mount glue (Liu; explicitly states the glue is liquid).
In regards to claim 11, Leonard teaches a method of forming a fly trap device, comprising the steps of: applying black line patterns on a black grid over a solid colored background of a front side of a single rectangular sheet (Leonard; see FIG below and listing where black line patterns form a black grid over a solid blue colored surface; see Product Information and FIGs where the shape is rectangular), the black line patterns include individual black lines (Leonard; see FIG below where each line is an individual line), and applying the glue layer to the front side of a single rectangular sheet (Leonard; sticky adhesive layer is applied to the top to trap insects), and the black line patterns are visible through the layer of glue (Leonard; see FIG the lines are visible through the adhesive), wherein the glue layer remains in a sticky state after being applied to the front side of the single rectangular sheet (Leonard; see Product Information, where the sheet is blue with a sticky adhesive layer on top so as to trap insects thereby forming a sticky surface that remains sticky to trap insects).
Leonard fails to explicitly teach wherein the glue is blue and liquid, each black line between approximately 1mm and approximately one inch which is wide enough for live flies into believing the black lines are crevices and cracks to hide from in order to avoid desiccation; selecting a blue glue layer from a liquid glue consisting of dyes having a color of Pantone 115-5C blue color.
Liu teaches wherein the glue is blue and liquid, selecting a blue glue layer from a liquid glue consisting of dyes having a color of blue color (Liu; “the blue sticky surface coating mixed with the sticker of blue afterglow material”; disclosure of Liu stating the glue is liquid).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Leonard such that the glue is specifically a blue color and liquid when applied such as taught by Liu. The motivation for doing so would be to enhance the visibility of the color in dark or dimmer settings, allowing for greater visibility of the blue color such that insects are attracted to the blue color for longer periods of time. Additionally, being a liquid material would allow for easy application of the glue.
Leonard as modified by Liu fail to explicitly teach where the glue is specifically Pantone 115-5C blue color, and each black line between approximately 1 mm and approximately one inch which is wide enough for live flies into believing the black lines are crevices and cracks to hide from in order to avoid desiccation.
Diclaro teaches each black line between approximately 1 mm and approximately one inch which is wide enough for live flies into believing the black lines are crevices and cracks to hide from in order to avoid desiccation (Diclaro; [0130] where the lines can range from 1/16” – 1” wideor ¼”-1/2” wide; and see abstract where the black lines over a blue background or on a sticky surface card can be used to simulate a harborage to attract flying insects/appearing as cracks or crevices).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the thickness of the lines to be between 1 mm and 1 inch in width to simulate cracks/crevices/harborage on blue sticky backgrounds to attract flies such as taught by Diclaro. The motivation for doing so would be to enhance the visual attractant to encourage flies to land on the sticky surface and be caught.
Leonard as modified by Liu and Diclaro fail to explicitly teach where the glue is specifically Pantone 115-5C blue color.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the thickness of the lines to be between 1 mm and 1 inch in width to simulate cracks/crevices/harborage on blue sticky backgrounds to attract flies such as taught by Diclaro. The motivation for doing so would be to enhance the visual attractant to encourage flies to land on the sticky surface and be caught.
Leonard as modified by Liu and Diclaro fail to explicitly teach where the glue is specifically Pantone 115-5C blue color.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Leonard as modified by Liu to make an obvious matter of design choice to have the blue glue be specifically a “Pantone 115-5C” blue color, since applicant has not disclosed that the “Pantone 115-5C” blue color solves any stated problem or is for any particular purpose over other similar shades of blue Additionally, it has been held that matters relating to ornamentation only which have no mechanical function, such as between the Pantone 115-5C color and another similar blue, cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Additionally, Leonard, and Diclaro, teaches that providing black lines on a blue surface is effective for attracting flies, but is silent to the specific “pantone shade” of color of blue being utilized as being Pantone 115-5C. However, "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Leonard and Diclaoro each represent prior art which teaches that the combination of black lines, or black lines resembling cracks/crevices placed on a blue background are effective in attracting flies. With the teachings of Leonard, Diclaro, and Liu, one of ordinary skill in the art before the effective filing date of the claimed invention would be aware that the specific blue color, shade, or hue determines contrast or visibility between the black lines and the color. Consequently, the color is considered to be a result effective variable. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have configured the glue to have a color of Pantone 115-5C for the purpose of having a light blue color contrasting with the dark black lines and as a matter of routine optimization of contrast and visibility, with predictable results.
Specifically, applicant discusses the advantages of the color blue in attracting insects to the adhesive sheet, and Leonard, Liu, and Diclaro demonstrate these same advantages where the color blue is selected for its advantageous effects of attracting insects to be trapped on the surface. Though the specification recites that the “Pantone 115-5C” blue color may be used, there is no criticality to this specific shade of blue over other shades of blue. Applicant’s affidavit asserts that the lighter blue color of Pantone 115-5C is more effective than the darker blue of Leonard’s card, however determining a range of blues which would be most effective in providing contrast with the lines that resemble cracks or crevices, such as suggested by Diclaro, and attracting flies would only require routine experimentation, and that there is no specific criticality to Pantone 115-5C over another shade of blue that provides similar contrast. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify the combination of Lenoard, Liu, and Diclaro such that the blue glue is of Pantone 115-5C or another light blue as doing so would enhance the contrast and visibility between the colored background and the black lines of the invention.
In regards to claim 12, Leonard as modified by Liu teach the method of forming the fly trap of claim 11, wherein the step of selecting the blue glue layer includes the step of: selecting the blue glue layer from the group consisting of blue liquid glue, blue glue from a blue stick of glue, glue with blue glitter, and non-drying photo mount glue (Liu; explicitly states the glue is liquid).
In regards to claim 14, Leonard as modified by Liu teach the method of claim 11, further comprising the step of: applying a peel and stick cover sheet overlaying the front side of the single rectangular sheet (Leonard; see Product Information, Product Features which describes an Easy-peel film, and Product Benefits which says “Easy-peel film maintains trap stickiness), wherein removing the peel and stick cover sheet exposes the blue sticky surface for a selected period of time, and then the single rectangular sheet is discarded (These adhesive boards are capable of performing the function of being exposed for a selected period of time, and then discarded with the trapped live flies; see Product Information which describes hanging individual sheets in a garden or landscape to capture insects; wherein the peel and stick cover sheet would have to be removed in normal application in order to capture insects).
In regards to claim 15, Leonard as modified by Liu teach the method of claim 11, further wherein the black line patterns include the step of: providing black geometrical shapes selected from the group consisting of different size rectangle crack shapes, parallelogram crack shapes, curve and crescent crack shapes (Leonard; the black line patterns are long thin rectangle crack shapes, the rectangular lines in the horizontal direction being different sizes compared to the rectangular lines in the vertical direction; the rectangular lines also being parallelogram crack shapes) (Diclaro; the black lines are long thin rectangle crack shapes [0130]).
Response to Arguments
The affidavit under 37 CFR 1.132 filed 01/08/20256 is insufficient to overcome the rejection of claims 1-4, 6-9, 11-12, 14-15 based upon the 35 USC 103 rejection of Leonard as modified by Liu and Diclaro as set forth in the last Office action because:
Examiner has reviewed the affidavit submitted by applicant, however the affidavit fails to provide sufficient factual evidence to overcome the above-stated prima facie case of obviousness.
It is asserted that the experiments conducted are not commensurate in scope with the claimed invention, and therefore cannot show unexpected results. The claimed invention states that the liquid glue is the material which is dyed the blue color, and applicant’s affidavit appears to be comparing card colors rather than glue, and specifically comparing against the individual prior art reference of Leonard and therefore does not address the combination of what is suggested in the prior art. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In the instant case, the rejection is made in combination of Leonard, Liu, and Diclaro, where Liu is the reference utilized to teach that it is well known in the art to dye a liquid glue a blue color in order to attract insects. Applicant has not provided for the combination nor overcome the matter of routine experimentation to determine an effective shade of blue, and has only provided evidence for an argument against Leonard’s blue card, when the claimed subjectmatter is drawn towards a blue glue which is taught by Liu.
Furthermore, it is noted that several variables are changed between the test subjects, which make it unclear as to whether the results are effective due to the width of the black lines or the color of the card. The Affidavit argues the combination makes the device effective, however the width of the lines are suggested previously in the prior art (such as in the reference of Diclaro), and therefore it is unclear if the width of the lines improve the effectiveness (which is a result taught by Diclaro) or if the color of the card is what improves the effectiveness (which is a result-effective variable). It is therefore asserted that the experiments themselves do not provide clear results that would overcome the current rejection or clearly demonstrate that one blue is effective over another blue or that a line thickness is effective over another line thickness, since both are varied simultaneously through the experiment.
The test further fails to describe the conditions of the test, leaving it ambiguous as to whether or not the test was performed under the same environmental conditions.
Additionally, due to the above, it has not been established that the Pantone 115-5C blue color provides any significance over similar colors within the same bracket. The claims require the specific Pantone shade, yet the affidavit presents only one comparator and does not bracket the claimed parameters with adjacent shades to demonstrate a critical point or an unexpected peak. See MPEP § 716.02; In re Geisler, 116 F.3d at 1471–72; In re Peterson, 315 F.3d at 1330. Though blue cards were compared in the experiment, there does not appear to be any evidence to the fact that a Pantone 115-5C color provides exceptional results compared to other blues with its similar shade, hue, or saturation, and therefore there is not any evidence to assert that the Pantone 115-4C color is critical and as effective as another similar shade of blue. There is additionally no evidence that this color of glue provides unexpected results to other blue colors of glue.
To be persuasive, Applicant should submit additional comparative data that: (i) brackets the claimed Pantone shade with multiple nearby blues of glue, (ii) uses appropriate controls and replicates, and (iii) provides statistical analyses demonstrating a material, unexpected improvement attributable specifically to the claimed color.
An experiment testing card colors does not support the claimed subject-matter, when the claimed invention requires blue glue.
It is for these reasons that the examiner asserts that the affidavit does not overcome the rejection of prior art and the application of case law.
Applicant’s arguments with respect to claim(s) 1-4, 6-9, 11-12, 14-15 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Specifically, the arguments concerning the thickness of the lines are moot since Diclaro is introduced as teaching these limitations.
Applicant further argues against a Zhang reference, a Smith reference, a Simchoni reference, and a Bertram reference, none of which are applied in the rejection of record.
Applicant's arguments filed 01/08/2026 have been fully considered but they are not persuasive.
Applicant reiterates the arguments presented in the Affidavit, and argues that the darker blue color of the Leonard product is different from the Pantone 115-5C blue color of the claimed invention and argues that the prior art fails to teach the Pantone 115-5C blue color. Applicant further argues the tests conducted in the affidavit demonstrate that the Pantone 115-5C blue color trapped three times and nine times as many flies as the Leonard Dark blue color with black lines.
Examiner respectfully disagrees as stated in the response to the affidavit above, and asserts that the affidavit does not overcome the current rejection.
The affidavit and arguments do not overcome the rejection which asserts that this Pantone 115-5C blue color is a matter of design choice and/or routine experimentation. As stated in the rejection above, the prior art of Diclaro clearly indicates that it was well known in the art before the effective filing date of the claimed invention to use a blue background and black line combination to resemble cracks/crevices to attract flies or insects and trap them with adhesive. Liu further recites the effectiveness of dying the liquid glue blue. One of ordinary skill in the art would have determined the specific shade/saturation/hue of blue most effective for the application based on desired contrast between the lines or preferred color for visibility. Furthermore, there appears to be no reasoning as to why the Pantone 115-5C blue color is selected over another similar shade, saturation, or hue. When reviewing the Pantone colors, as a non-limiting example, the pantone color 13-4307 TCX Tropical Breeze and 14-4714 TCX Clear Tides are blues color which are similar to Pantone 115-5C blue. There is no indication as to why the color of the device being Pantone 115-5C blue color glue would not be as equally effective with these blues or other such similar blues, or why a blue color with a different hue or varied saturation would not be effective. As a result, it is asserted that choosing a specific color is reliant on other result effective variables, such as contrast, visibility, or design choice. The specific choice of a Pantone 115-5C blue color glue color is from a matter of routine experimentation or design choice, as the specification further provides no support for the criticality of this specific shade of blue.
Further, the claimed invention states that the liquid glue is the material which is dyed the blue color, and applicant’s affidavit appears to be comparing card colors rather than glue, and specifically comparing against the individual prior art reference of Leonard and therefore does not address the combination of what is suggested in the prior art. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In the instant case, the rejection is made in combination of Leonard, Liu, and Diclaro, where Liu is the reference utilized to teach that it is well known in the art to dye a liquid glue a blue color in order to attract insects. Applicant has not provided for the combination nor overcome the matter of routine experimentation to determine an effective shade of blue, and has only provided an experiment for an argument against Leonard’s blue card, when the claimed subjectmatter is drawn towards a blue glue. Furthermore, the experiment fails to rebut the criticality of the blue color itself over other similar blues, and instead demonstrates a test which combines features that are taught by the prior art as being effective against attracting flies, such as line thickness.
It is for these reasons that the examiner asserts that the affidavit and the arguments to the blue Pantone 115-5C does not overcome the rejection of prior art and the application of case law.
Applicant argues that the rejection is a mere statement of an “obvious matter of design choice” and that it is improper for the Patent Office to arbitrarily ignore any novel features of the claims or rely on common knowledge, and requests the office cite the references showing the use of the Pantone 115-5C blue color is obvious.
Examiner respectfully disagrees and notes that case law is specifically cited to indicate that no criticality has been demonstrated for an element of the claims, and that this element is not being ignored and ‘common knowledge’ is not being relied upon. Recitation of case law is provided to demonstrate to applicant that based on the suggestions of the prior art, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose a specific shade of blue through routine experimentation or design choice when criticality to the specific color chosen is absent from the disclosure.
Applicant additionally argues there is no suggestion to combine except based on hindsight.
Examiner respectfully disagrees. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In the instant case, the prior art reasonably suggests the claimed language as well as motivations for combining and suggestions of improved features which would enhance the ability of a fly trap device to trap flies. Leonard as a base reference teaches the rectangular sheets with black grid lines on a solid colored background, whereas Liu suggests the benefits of a blue dyed colored liquid glue to enhance visibility. Finally, Diclaro suggests the effectiveness of black lines of a width that resembles cracks or crevices against a blue background.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/KATELYN T TRUONG/Primary Examiner, Art Unit 3647