DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claim 7 is objected to because of the following informalities:
Claim 7 recites the phrase “consisting a five-layered material” which is believed to be a typographical error. Claim 7 should instead recite “consisting of a five-layered material”.
Claim 7 recites the limitation “blow mounding” in line 15 which is believed to be a typographical error. Claim 7 should instead reciting “blow moulding .
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 7 and 11 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 7 recites the limitation "the container (601)" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Claim 1, from which claim 7 depends, does not previously recite a container (601). It is thus unclear as to what the container (601) refers. For purposes of examination, claim 7 is interpreted as instead reciting “wherein the cap is fitted onto a container (601), wherein the container (601)…” as supported by the instant specification Page 2.
Claim 11 is indefinite as the recitation of possible elements is not properly claimed in the alternative. Treatment of claims reciting alternatives is not governed by the particular format used (e.g., alternatives may be set forth as "a material selected from the group consisting of A, B, and C" or "wherein the material is A, B, or C"). See, e.g., the Supplementary Examination Guidelines for Determining Compliance with 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications ("Supplementary Guidelines"), 76 Fed. Reg. 7162, 7166 (February 9, 2011). Alternative expressions are permitted if they present no uncertainty or ambiguity with respect to the question of scope or clarity of the claims. A Markush grouping is a closed group of alternatives, i.e., the selection is made from a group "consisting of" (rather than "comprising" or "including") the alternative members. Abbott Labs., 334 F.3d at 1280, 67 USPQ2d at 1196. If a Markush grouping requires a material selected from an open list of alternatives (e.g., selected from the group "comprising" or "consisting essentially of" the recited alternatives), the claim should generally be rejected under 35 U.S.C. 112(b) as indefinite because it is unclear what other alternatives are intended to be encompassed by the claim. If a claim is intended to encompass combinations or mixtures of the alternatives set forth in the Markush grouping, the claim may include qualifying language preceding the recited alternatives (such as "at least one member" selected from the group), or within the list of alternatives (such as "or mixtures thereof"). Id. at 1281. See MPEP 2173.05(h). For the purposes of examination claim 7 will be interpreted as reciting “is selected from the group consisting of
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Villanyi (US 2001086 A) (previously cited) in view of Howling (US 1361861 A) (newly cited) and Sterling (US 2940107 A) (newly cited).
Regarding claim 1, Villanyi teaches a dauber applicator containing a container cap having a cavity and a dauber metal applicator wire comprising a first end that holds a blob (swab), a second end, and a linear intermediate portion extending between and connecting the first end and the second end (Villanyi, Col. 1 Lines 15-20, Col. 2 Lines 18-24, Col. 2 Line 45 – Col. 3 Line 31, Figs. 1-2 and 5 – see annotated Fig. 2 below). Villanyi teaches a holding means (stopper/plug) over the second end, wherein the holding means is of a cylindrical shape and comprises a first portion and a second portion, wherein a cross-sectional area of the first portion and the second portion is such that the first portion fits within the cavity by press fitting (Villanyi, Col. 1 Lines 15-20, Col. 2 Lines 18-24, Col. 2 Line 45 – Col. 3 Line 31, Figs. 1-2 and 5 – see annotated Fig. 2 below). Regarding the limitation of the holding means being molded, this is considered a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (See MPEP 2113). The holding means structure of the prior art discloses a product which reasonably appears to be either identical or substantially identical to the claimed product-by-process holding means structure subjected to the process steps of molding, and therefore absent any objective evidence showing to the contrary, the addition of the process limitations of claim 1 does not provide a patentable distinction over the prior art. Regarding the limitation of the holding means being over an entirety of the second end, Villanyi teaches that the second dauber applicator wire is frictionally connected to the holding means but may also extend through the cap or rely solely on frictional contact and thus may not extend through the cap and thus be fully covered by the holding means (Villanyi, Col. 2 Line 45 – Col. 4 Line 10). Villanyi teaches the second portion is positioned between the cavity, fitted with the first portion therein, and the linear intermediate portion, wherein the first portion includes a depression that is a trench formed on an axially upper surface thereof, wherein the second end is vertically terminated below the depression, and wherein the depression fits into a swelling of the cavity that is a ridge (Villanyi, Col. 1 Lines 15-20, Col. 2 Lines 18-24, Col. 2 Line 45 – Col. 3 Line 31, Figs. 1-2 and 5 – see annotated Fig. 2 below).
PNG
media_image1.png
614
447
media_image1.png
Greyscale
Villanyi Fig. 2 – Annotated
Villanyi is silent regarding the applicator wire being a single stranded dauber metal applicator wire wherein the second end has a twisted shape
Howell teaches a dauber applicator comprising a single stranded dauber metal applicator wire comprising a first end holding a blob and a second end covered by a holding means wherein the second end has a twisted shape (Howell, Col. 1 Lines 12-39, Col. 2 Lines 64-80, and Figs 1-3).
Villanyi and Howell are analogous art as they both teach dauber applicators comprising an applicator wire having a first end holding a blob and a second end covered by a holding means. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used the single stranded dauber metal applicator wire of Howell with a twisted second end as the dauber applicator wire of Howell. This would allow for a wire that can hold a blob and be secured in the holding means without rotation of the wire (Howell, Col. 1 Lines 40-49).
Modified Villanyi is silent regarding the first portion/depression being detachably fitted to prevent circular motion of the holding means during application.
Sterling teaches a dauber Applicator comprising a cap (finger gripping portion) and a holding means (bottle engaging portion), wherein the cap and holding means each comprise vertical walls having grooves (see friction ribs, 17) that allow for a frictional fit between the cap and holding means to prevent circular (see axial) motion of the holding means during application (Sterling, Col. 1 Lines 37-48, Col. 2 Line 7 – Col. 3 Line 21, and Figs. 5-6). Sterling teaches the cap and holding means are frictionally fit and can be detached with enough force and therefore teaches they are detachably fitted together (Sterling Col. 2 Line 7 – Col. 3 Line 21 and Figs. 5-6).
Modified Villanyi and Sterling are analogous art as they both each dauber applicators comprising a cap and a holding means. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included grooves (frictional ribs) in the swelling of the cap of modified Villanyi and friction fit the cap and holding means. This would allow for a cap and holding means that can separate with enough force but do not separate and remain together during normal application (Sterling, Col. 2 Line 7 – Col. 3 Line 21).
Regarding claim 2, modified Villanyi teaches the first end is a hold for holding the blob (Villanyi Fig. 2 – see annotated Fig. 2 above; Howell, Col. 1 Lines 12-18).
Regarding claim 10, modified Villanyi teaches the holding means fits into grooves of the cavity via interference fit (see friction) (Sterling, Col. 2 Line 7 – Col. 3 Line 21).
Claims 7 is rejected under 35 U.S.C. 103 as being unpatentable over Villanyi in view of Howling and Sterling as applied to claim 1 above, further in view of Kani (US 20110178222 A1) (previously cited).
Regarding claim 7, modified Villanyi teaches all of the elements of the claimed invention as stated above for claim 1. Modified Villanyi further teaches the cap is fitted onto a container.
Modified Villanyi is silent regarding the container being a plastic multi-layered container consisting of a five-layered material assembly enabled to store an adhesive solution, wherein the five-layered material assembly of the plastic multi-layered container consists of a first layer/inner layer of solvent resistant, chemical resistant thermoplastic polymeric material selected from nylon or EVOH, wherein the polymeric material is non-reactive to cement/primer solvent material inside the container, wherein the five-layered material assembly comprises a second layer/tie layer and fourth layer/tie layer of thermoplastic resin polymer, wherein the five-layered material assembly comprises a third layer/central layer of a mixture of a HDPE, a thermoplastic polymer, and a thermoplastic adhesive resin polymer, wherein the third layer/central layer improves a shelf life and durability of the cement/primer solvent material inside the container, wherein the third layer/central layer is composed of waste material obtained during blow molding of the plastic multi-layered container, wherein the five-layered material assembly comprises a firth layer/outer layer of a thermoplastic HDPE.
Kani teach a container comprising a layer configuration of a/b1/b2 comprising a first/inner layer (a) comprising EVOH (Kani, Par. 0124 and 0134), a third/central layer (b1), and a fifth/outer layer (b2). Kani teaches the third/central layer comprises a thermoplastic resin that is a polyolefin based resin that comprises a blend (mixture) of high density polyethylene, a thermoplastic polymer (low density polyethylene) and a thermoplastic adhesive resin (EVA) (Kani, Par. 0062-0063 and 0124). Kani teaches the fifth/outer layer comprises a thermoplastic polymer that is HDPE (Kani, Par. 0062-0063 and 0124). Kani teaches second and fourth layers (tie layers/adherent resins) between the layers comprising a thermoplastic (see polyolefin/polyethylene) (Kani, Par. 0125-0126). Kani teaches the container has high barrier properties (Kani, Par. 0007 and 0120). Kani does not state that other layers required and thus the container consists of the five layers. Regarding the limitations of the solvent resistance, chemical resistance, non-reactivity, and improvement of shelf life, Kani teaches a 5 layer structure that is the same as the instant invention as stated above. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977), see MPEP 2112.01. Kani teaches a 5 layer container that is identical or substantially identical to the claimed container comprising the same materials as stated above. Therefore, absent objective evidence to the contrary, the layers of Kani would have inherently exhibited the claimed properties. Regarding the limitation of the third layer being composed of waste material obtained during blow molding, this is considered a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (See MPEP 2113). The container structure of the prior art discloses a product which reasonably appears to be either identical or substantially identical to the claimed product-by-process container structure subjected to the process steps of being formed of waste materials from blow molding, and therefore absent any objective evidence showing to the contrary, the addition of the process limitations of claim 7 does not provide a patentable distinction over the prior art.
Modified Villanyi and Kani are analogous art as they both teach containers. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used the container material of Kani as the container material of Villanyi. This would allow for high barrier properties (Kani, Par. 0007).
Claims 11 is rejected under 35 U.S.C. 103 as being unpatentable over Villanyi in view of Howling and Sterling as applied to claim 1 above, further in view of Sorenson et al (US 7344766 B1) (previously cited).
Regarding claim 11, modified Villanyi teaches all of the elements of the claimed invention as stated above for claim 1. Modified Villanyi is silent regarding the material of the holding means being selected from the group consisting of a thermoplastic material, HDPE, LDPE, polyethylene, polypropylene, polyvinyl chloride, polystyrene, polybenzimidazole, acrylic, nylon and Teflon, and EVOH.
Sorenson teaches the use of a stopper that is polyethylene for the purpose of obtaining superior leakage properties (Sorenson, Col. 3 Lines 17-19 and Col. 3 Lines 47-50)
Sorensen and modified Villanyi are analogous art as they both teach stoppers. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have use polyethylene as the material of the holding means for modified Villanyi. This would allow for superior leakage properties (Sorenson, Col. 3 Lines 17-19 and Col. 3 Lines 47-50).
Response to Arguments
Applicant’s remarks and amendments filed 04 February 2026 have been fully considered.
Applicant requests withdrawal of the rejections under 35 USC § 112 set forth in the previous office action.
The rejections under 35 USC § 112 set forth in the previous office action have been withdrawn due to the present claim amendments.
Applicant argues that the prior art of record does not teach the detachable connection during application. This is found moot.
New grounds of rejection have been made above. In the new grounds of rejection, newly cited Sterling is relied upon to render obvious the detachable connection during application.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS J KESSLER JR whose telephone number is (571)272-3075. The examiner can normally be reached 7:30-5:30 M-Th.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Aaron Austin can be reached at 571-272-8935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/THOMAS J KESSLER/Examiner, Art Unit 1782
