Detailed Action
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Double Patenting
2. 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 and 6-16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 12,568,950. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitations of claims 1 and 6-16 of the present application are disclosed in claims 1-16 of the ‘950 patent.
Claims 2-5 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 12,568,950 in view of CN Patent No. 203928908 to Wang.
Referring to claims 2-5, claims 1-16 of the ‘950 patent further discloses a cap covering the ignition system as seen in claim 9, but does not disclose a pull pin ignition system having a gripping element being a finger ring that is connected to an internal ignition system by a connecting element being a chain, cable, string or wire. Wang does disclose a pull pin ignition system – at 5-10, having a gripping element being a finger ring – at 5, connected to the internal ignition system – at 11, by a connecting element being a cable/wire – at 6 – see figures 1-2. Therefore it would have been obvious to one of ordinary skill in the art to take the device of claims 1-16 of the ‘950 patent and add the pull pin ignition system with a finger ring and connecting cable/wire of Wang, so as to yield the predictable result of allowing the user to manually operate the device while keeping their hands away from the igniting components as desired.
Claim Interpretation
3. The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Regarding claims 1 and 17, applicant invokes 35 U.S.C. 112(f) means plus function analysis with respect to the claimed self-ignition system and as seen in applicant’s originally filed disclosure the self-ignition system is detailed as a prime load as seen in paragraph [0010] of applicant’s originally filed specification and as a strike pad and ignition button as seen in paragraph [0018] of applicant’s originally filed specification.
Regarding claims 2 and 19, applicant does not invokes 35 U.S.C. 112(f) means plus function analysis with respect to the claimed pull pin ignition system in that applicant has not claimed any associated functional claim limitations related to the pull pin ignition system.
Referring to claims 3 and 19, applicant does not invoke 35 U.S.C. 112(f) means plus function analysis with respect to the claimed gripping element in that applicant has not claimed any associated functional claim limitations related to the gripping element. Further, applicant does invoke 35 U.S.C. 112(f) means plus function analysis with respect to the claimed connecting element in claim 3 and the claimed element connecting the gripping element in claim 19 and as seen in applicant’s originally filed disclosure the connecting element is detailed as the connecting element may be a twisted or untwisted wire, a chain, a cable, a string and the like as detailed in paragraph [0036] of applicant’s originally filed specification. Specific to claim 3, applicant does not invoke 35 U.S.C. 112(f) means plus function analysis with respect to the claimed integrated internal ignition system in that applicant does not claim any associated functional claim limitations related to the integrated internal ignition system.
Claim Rejections - 35 USC § 112
4. 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 2-5 and 17-20 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.
Claim 2 is 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. It is unclear as to whether the pull pin ignition system in claim 1, is the same or different than the self-ignition system of parent claim 1.
Claim 3 is 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. It is unclear as to whether the internal ignition system is the same or different than the self-ignition system of parent claim 1 and the pull pin ignition system of parent claim 2. Further, applicant invokes 35 U.S.C. 112(f) means plus function analysis with respect to the claimed connecting element as detailed earlier in paragraph 3 of this office action and as seen in paragraph [0036] of applicant’s originally field specification the connecting element is detailed as, the connecting element may be a twisted or untwisted wire, a chain, a cable, a string and the like, and the phrase “and the like” renders the claim indefinite in that it is unclear as to whether other types of connecting elements than those disclosed are being contemplated by the claim.
Claim 17 recites the limitation "the cap" in line 4. There is insufficient antecedent basis for this limitation in the claim. Further, it is unclear as to whether the gasser cartridge detailed in line 5 of claim 17 is the same or different than the cartridge detailed in line 1 of claim 17.
Claim 19 is 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. Applicant invokes 35 U.S.C. 112(f) means plus function analysis with respect to the claimed element connecting the gripping element as detailed earlier in paragraph 3 of this office action and as seen in paragraph [0036] of applicant’s originally field specification the connecting element is detailed as, the connecting element may be a twisted or untwisted wire, a chain, a cable, a string and the like, and the phrase “and the like” renders the claim indefinite in that it is unclear as to whether other types of connecting elements than those disclosed are being contemplated by the claim.
Claim 20 recites the limitation "the activation portions" in line 2. There is insufficient antecedent basis for this limitation in the claim. Further, it is unclear as to whether the gasser cartridge detailed in claim 20 is the same or different than the cartridge detailed in parent claim 17. Further, it is unclear as to whether the firing pin structure detailed in claim 20 is the same or different than the internal firing pin structure detailed in parent claim 19.
Claim Rejections - 35 USC § 102
5. In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by U.S. Patent No. 5,917,142 to Chang.
Referring to claim 1, Chang discloses a rodent gasser comprising, a cartridge – at 22, containing a gaseous composition for fumigating rodents – see figures 6-7 and column 2 where the device of Chang is capable of producing gases that can be used for fumigating, and a self-ignition system – at 26,28 and the ignition compound at the head of cartridge 22 not shown in the drawings but detailed in column 2 lines 13-18 and lines 50-62, for igniting the gaseous composition in the cartridge - at 22 - see figures 6-7 and column 2. Regarding the 35 U.S.C. 112(f) means plus function analysis with respect to the claimed self-ignition system, Chang discloses a strike pad and ignition button – at 26,28 and a prime load – at the ignition compound at the head of cartridge 22 not shown in the drawings but detailed in column 2 lines 13-18 and lines 50-62 consistent with applicant’s originally filed disclosure.
Claim Rejections - 35 USC § 103
6. In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claim(s) 2-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang as applied to claim 1 above, and further in view of Wang.
Referring to claims 2-5, Chang further discloses the ignition system is covered by a cap – at 30, covering the ignition system – at 22,26,28 – see figures 3-5. Chang does not disclose a pull pin ignition system having a gripping element being a finger ring that is connected to an internal ignition system by a connecting element being a chain, cable, string or wire. Wang does disclose a pull pin ignition system – at 5-10, having a gripping element being a finger ring – at 5, connected to the internal ignition system – at 11, by a connecting element being a cable/wire – at 6 – see figures 1-2. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang and add the pull pin ignition system with a finger ring and connecting cable/wire of Wang, so as to yield the predictable result of allowing the user to manually operate the device while keeping their hands away from the igniting components as desired. Regarding the 35 U.S.C. 112(f) means plus function analysis with respect to the claimed connecting element, item 6 of Wang is a cable/wire consistent with applicant’s originally filed disclosure.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang as applied to claim 1 above, and further in view of U.S. Patent Application Publication No. 2015/0329437 to Hultman et al.
Referring to claim 6, Chang does not disclose the composition including 30-60 w% of at least one of potassium nitrate or sodium nitrate and 6-30wt% of carbon or charcoal. Hultman et al. does disclose the composition including 30-60 wt% of at least one of potassium nitrate or sodium nitrate - see paragraphs [0018] thru [0020] and claim 2, and 6-30 wt% of carbon or charcoal - see carbon in paragraph [0020] and claim 2. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang and add the composition containing the claimed percentages of potassium nitrate and carbon as disclosed by Hultman et al., so as to yield the predictable result of allowing for the device to produce the desired quantity of gas at a controlled rate as desired.
Claim(s) 7-8 and 10-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang as modified by Hultman et al. as applied to claim 6 above, and further in view of CN Patent No. 101638350 to Chen et al.
Referring to claims 7 and 11, Chang as modified by Hultman et al. further discloses the composition further includes at least one of less than 2 wt% dextrin; up to 10 wt% sawdust up to 20 wt% ground rock or minerals; and up to 20 wt% sugar – see 11-16% sugar in paragraph [0017] of Hultman et al., but does not disclose the composition includes up to 20 wt% of calcium carbonate. Chen et al. does disclose the composition further includes oil up to 6 wt% and calcium carbonate up to 20 wt% - see the English abstract. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang as modified by Hultman et al. and add the composition including up to 20% sugar as disclosed by Hultman et al. and including oil up 6 wt% and calcium carbonate up to 20 wt% as disclosed by Chen et al., so as to yield the predictable result of making the gaseous composition less toxic to the user during use.
Referring to claim 8, Chang as modified by Hultman et al. and Chen et al. further discloses the composition includes dextrin - see 3-8% in the English abstract of Chen et al., but does not disclose less than 2 wt% dextrin. However, the claimed percentage of dextrin disclosed by Chen et al. is close in quantity to the claimed percentage and as seen in applicant's originally filed disclosure there is no criticality placed on the dextrin being less than 2 wt% in that applicant discloses the dextrin between 0-10 wt%. Therefore since the percentage of dextrin in the composition as disclosed by Chen et al. is in close proximity to the claimed values and since applicant places no criticality on the claimed values of dextrin and since the percentages of dextrin being between 3-8% as disclosed by Chen et al. are within the range of 0-10% disclosed by applicant's originally filed disclosure, it would have been obvious to one of ordinary skill in the art to take the device of Chang as modified by Hultman et al. and Chen et al. and use any suitable amount of dextrin including the claimed less than 2 wt%, so as to yield the predictable result of making the gaseous composition less toxic to the user during use while allowing for the device to produce the desired quantity of gas at a controlled rate as desired.
Referring to claim 10, Chang as modified by Hultman et al. and Chen et al. further discloses the composition includes up to 20 wt% ground rock or minerals – see the 15-25% of the mineral gypsum detailed in the English abstract of Chen et al. which has portions of its range in the 0-20% mineral claimed. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang as modified by Hultman et al. and Chen et al. and add the minerals disclosed by Chen et al., so as to yield the predictable result of making the gaseous composition less toxic to the user during use while allowing for the device to produce the desired quantity of gas at a controlled rate as desired.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang as modified by Hultman et al. and Chen et al. as applied to claim 7 above, and further in view of U.S. Patent No. 4,397,321 to Stuetz.
Referring to claim 9, Chang as modified by Hultman et al. and Chen et al. does not disclose the composition includes sawdust up to 10 wt%. Stuetz does disclose a smoke generating composition that includes sawdust up to 10 wt% - see 1-10% sawdust detailed in column 3 lines 10-56. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang as modified by Hultman et al. and Chen et al. and add the up to 10 wt% sawdust as disclosed by Stuetz, so as to yield the predictable result of making the composition form natural materials that would be safer to the user as desired.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang as applied to claim 1 above, and further in view of Hultman et al., further in view of Chen et al. and further in view of U.S. Patent Application Publication No. 2003/0036335 to Juy.
Referring to claim 12, Chang does not disclose the composition includes: about 45 wt% potassium nitrate; about 45 wt% sulfur; about 8 wt% charcoal or carbon; and about 1.6 wt% dextrin. Hultman et al. does disclose the composition includes, 35 wt% potassium nitrate - see 35% in paragraph [0020], about 8 wt% carbon – see 1 to 15% of carbon in paragraph [0020] and claims 2 and 8. Chen et al. does disclose the composition includes 40 wt% potassium nitrate – see the English abstract, and the composition includes 3 wt% dextrin - see the English abstract of Chen et al. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang and add the composition having potassium nitrate, carbon and dextrin in the percentages as disclosed by Hultman et al. and Chen et al., so as to yield the predictable result of allowing for the device to produce the desired quantity of gas at a controlled rate as desired. Chang as modified by Hultman et al. and Chen et al. does not disclose 45 wt% potassium nitrate, 45 wt% sulfur and 1.6 wt% dextrin. However, Chang as modified by Hultman et al. and Chen et al. discloses potassium nitrate in a quantity of 35-40% as seen in paragraph [0020] of Hultman et al. and the English abstract of Chen et al., close to the claimed 45% quantity claimed and applicant has not placed any criticality on the 45% of potassium nitrate in that applicant discloses between 30-60% potassium nitrate can be used. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang as modified by Hultman et al. and Chen et al. and use any suitable quantity of potassium nitrate including the claimed about 45%, so as to yield the predictable result of allowing for the device to produce the desired quantity of gas at a controlled rate as desired. Chang as modified by Hultman et al. and Chen et al. further discloses the composition includes dextrin - see 3-8% in the English abstract of Chen et al., but does not disclose about 1.6 wt% dextrin. However, the claimed percentage of dextrin disclosed by Chen et al. is close in quantity to the claimed percentage and as seen in applicant's originally filed disclosure there is no criticality placed on the dextrin being about 1.6 wt% in that applicant discloses the dextrin between 0-10 wt%. Therefore since the percentage of dextrin in the composition as disclosed by Chen et al. is in close proximity to the claimed values and since applicant places no criticality on the claimed values of dextrin and since the percentages of dextrin being between 3-8% as disclosed by Chen et al. are within the range of 0-10% disclosed by applicant's originally filed disclosure, it would have been obvious to one of ordinary skill in the art to take the device of Chang as modified by Hultman et al. and Chen et al. and use any suitable amount of dextrin including the claimed about 1.6 wt%, so as to yield the predictable result of making the gaseous composition less toxic to the user during use while allowing for the device to produce the desired quantity of gas at a controlled rate as desired. Further, Juy discloses a gaseous composition including sulfur about 46 wt% - see for example paragraph [0010] and the 46% disclosed by Juy would meet the claim limitations of about 45% which would encompass values a close but below and above 45% such as the 46% disclosed by Juy. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang as modified by Hultman et al. and Chen et al. and add the composition including sulfur about 46 wt% as disclosed by Juy, so as to yield the predictable result of producing a sufficient quantity of gas as desired.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang as applied to claim 1 above, and further in view of Juy.
Referring to claim 13, Chang does not disclose the composition includes sulfur up to 50 wt%. Juy does disclose a gaseous composition including sulfur up to 50 wt% - see for example paragraphs [0010], [0011] and [0018]. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang and add the composition including sulfur up to 50 wt% as disclosed by Juy, so as to yield the predictable result of producing a sufficient quantity of gas as desired.
Claim(s) 14-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang as modified by Juy as applied to claim 13 above, and further in view of Chen et al.
Referring to claim 14, Chang as modified by Juy does not disclose the composition includes oil up to 6 wt%. Chen et al. does disclose the composition further includes oil up to 6 wt% - see the English abstract. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang as modified by Juy and add the composition including oil up 6 wt% as disclosed by Chen et al., so as to yield the predictable result of making the gaseous composition less toxic to the user during use.
Referring to claim 15, Chang as modified by Juy and Chen et al. further discloses the composition further includes calcium carbonate up to 20 wt% - see the English abstract of Chen et al. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang as modified by Juy and Chen et al. and add the composition including calcium carbonate up to 20 wt% as disclosed by Chen et al., so as to yield the predictable result of making the gaseous composition less toxic to the user during use.
Referring to claim 16, Chang as modified by Juy does not disclose the composition includes dextrin up to 10 wt%. Chen et al. does disclose the composition includes dextrin up to 10 wt% - see 3-8% in the English abstract. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang as modified by Juy and add the composition including dextrin up 10 wt% as disclosed by Chen et al., so as to yield the predictable result of making the gaseous composition less toxic to the user during use.
Claim(s) 17-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang in view of GB Patent No. 2492383 to Winkler and further in view of U.S. Patent No. 3,678,857 to Evans et al.
Referring to claim 17, Chang discloses a method of using a rodent gasser that includes a cartridge – at 22, containing a gaseous composition for fumigating rodents – see figures 6-7 and column 2 where the device of Chang is capable of producing gases that can be used for fumigating and a self-ignition system – at 26,28 and the ignition compound at the head of cartridge 22 not shown in the drawings but detailed in column 2 lines 13-18 and lines 50-62, for igniting the gaseous composition in the cartridge - at 22 - see figures 6-7 and column 2, the method comprising the steps, taken by the user, of removing the cap – at 30, and exposing activation portions of the self-ignition system – at 26,28 – see figures 4-5, igniting the gasser cartridge using the self-ignition system – at 26,28 – see figures 3-5 and column 2 lines 13-18 and 50-62. Chang does not disclose placing the cartridge in a rodent den location, and retreating a safe distance away from the rodent den location before the gaseous composition in the cartridge is ignited to produce a pest fumigating gas or smoke. Winkler does disclose placing the cartridge – at A-C, in a pest den location – see paragraph [0013]. Therefore it would have been obvious to one of ordinary skill in the art to take the method of Chang and have the cartridge placed in a den of a pest to be fumigated as disclosed by Winkler, so as to yield the predictable result of ensuring the cartridge is sufficiently close to the animal to be controlled so as to properly effect the animal to be controlled. Evans et al. does disclose retreating a safe distance away from the deployed location before the gaseous composition in the cartridge is ignited to produce a pest fumigating gas or smoke – see column 3 lines 10-57 where a delayed ignition can be used and therefore a user of the device would be able to retreat after deploying the device and prior to ignition of the device. Therefore it would have been obvious to one of ordinary skill in the art to take the method of Chang and add the step of retreating a safe distance away from the location the composition is ignited as disclosed by Evans et al., so as to yield the predictable result of allowing the user to safely observe the device performing the method during operation. Regarding the 35 U.S.C. 112(f) means plus function analysis with respect to the claimed self-ignition system, Chang discloses a strike pad and ignition button – at 26,28 and a prime load – at the ignition compound at the head of cartridge 22 not shown in the drawings but detailed in column 2 lines 13-18 and lines 50-62 consistent with applicant’s originally filed disclosure.
Referring to claim 18, Chang as modified by Winkler and Evans et al. further discloses the step of placing the cartridge in a rodent den location includes placing the cartridge in an underground rodent burrow – see paragraph [0013] of Winkler. Therefore it would have been obvious to one of ordinary skill in the art to take the method of Chang as modified by Winkler and Evans et al. and have the cartridge placed in a den of a pest to be fumigated as disclosed by Winkler, so as to yield the predictable result of ensuring the cartridge is sufficiently close to the animal to be controlled so as to properly effect the animal to be controlled.
Claim(s) 19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang as modified by Winkler and Evans et al. as applied to claim 17 above, and further in view of Wang.
Referring to claim 19, Chang as modified by Winkler and Evans et al. does not disclose the self-ignition system includes a pull pin ignition system having a gripping element and an element connecting the gripping element to an internal firing pin structure. Wang does disclose the ignition system includes a pull pin ignition system – at 7-8,10, having a gripping element – at 6 and an element connecting the gripping element – at 5, to an internal firing pin structure – at 9,11 – see figures 1-2. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang as modified by Winkler and Evans et al. and add the pull pin ignition system with a finger ring and connecting cable/wire of Wang, so as to yield the predictable result of allowing the user to manually operate the device while keeping their hands away from the igniting components as desired. Regarding the 35 U.S.C. 112(f) means plus function analysis with respect to the claimed connecting element, item 6 of Wang is a cable/wire consistent with applicant’s originally filed disclosure.
Referring to claim 20, Chang as modified by Winkler Evans and Wang further discloses the step of removing the cap – at 30, and exposing the activation portions of the ignition system – at 25,26 – see figures 3-5 of Chang, including the steps of, removing the cap – at 30, from the gasser cartridge – 22 – see figures 3-5 of Chang, and pulling the gripping element – at 5 of Wang, to release the firing pin structure – at 9,11, and ignite the cartridge – see figures 1-2 of Wang where the combination of cartridge with cap of Chang incorporating the gripping element of Wang, the cap – at 30 of Chang would have to be removed prior to ignition which would be started by the gripping element – at 5 of Wang. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Chang as modified by Winkler and Evans et al. and add the pull pin ignition system with a finger ring and connecting cable/wire of Wang, so as to yield the predictable result of allowing the user to manually operate the device while keeping their hands away from the igniting components as desired.
Conclusion
7. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
The following patents are cited to further show the state of the art with respect to smoke generating devices/methods in general:
U.S. Pat. No. 6,412,416 to Rouse et al. – shows smoke generating device
U.S. Pub. No. 2011/0008264 to Negishi et al. – shows smoke generating device
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/DAVID J PARSLEY/Primary Examiner, Art Unit 3643
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