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 .
Continued Examination Under 37 CFR 1.114
2. A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11/26/2025 has been entered.
Claim Rejections - 35 USC § 103
3. 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.
4. Claims 1, 4-10, 12-27, 30, and 32-33, are rejected under 35 U.S.C.103 as being unpatentable over Montgomery (US 2008/0274066) in view of Wilcox et al. (US 2014/0323993).
Regarding claim 1, Montgomery discloses a whitening pen 10 comprising: (a) a whitening composition in reservoir 20; (b) a body 10 comprising the reservoir 20 containing the whitening composition (Figs. 3-4; paragraph [0067]).
The pen 10 further comprises: (c) a rotating portion 22; and (d) a dosing indicator, i.e. clicking or twisting mechanism wherein each click or twist indicates a dose (paragraph 70). That is, Montgomery discloses dosing indicator feedback in tactile clicking mechanism within the body and rotating portion. However, Montgomery fails to disclose a visible first and second indicator symbols/markings on the body to indicate a full rotation once aligned.
Wilcox et al. discloses an applicator device dispensing a pre-determined dose of medication (abstract). Wilcox et al. specifically discloses:
[0087] “An audible indication may otherwise be achieved by means of a ratchet mechanism. Alternatively or in addition thereto, the dial knob may have a visible indicator, such as on an external side wall, that aligns with a visible indicator on the cartridge. The indicators are aligned at the commencement of rotation of the drive knob, moving out of alignment during rotation, and back into alignment after a complete revolution of the dial knob.”
Therefore, Wilcox discloses the dosing indicator consisting of a first dosing indicator symbol on the body, and a second dosing indicator symbol on the rotating portion, wherein the correct amount of the whitening composition is dispensed upon a full rotation of the rotating portion, and wherein a full rotation of the rotating portion is indicated by the first dosing indicator symbol and the second dosing indicator symbol being aligned at the start of the full rotation and after rotating the rotating portion in a single direction, as claimed.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Montgomery by incorporating a visible indicator on the rotating portion/dial knob that aligns with a visible indicator on the cartridge body to indicate to the user that a full rotation has been turned in order for a correct dosage of medicament being dispensed as taught by Wilcox.
As to claims 4-5, Montgomery discloses the whitening composition comprising hydrogen peroxide (paragraph 3). As to claim 6, Montgomery discloses the whitening pen 10 comprising an applicator 21 with felt tip 14 (Fig. 3) or brush 16 (Fig. 4).
As provided in the rejection of claim 1, Montomery discloses dosing indicator feedback in tactile clicking mechanism within the body and rotating portion (paragraph 70), failing to provide visible first and second indicator symbols on the exterior of the device. As to claims 7-10, 12, and 32-33, Wilcox et al. discloses various types of visible indicators ([0052] “complementary indicators, such as an arrow on the dial body and unlocked and locked symbols on the applicator body for guiding a user when fitting the dial assembly to the applicator body”), or part revolution indicators, to indicate scale volume ([0086]-[0087] “cartridge may also include “part revolution” indicators … so that a user can determine when a fraction of a … dose has been dispensed”). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Montomery to include such various visible indicators, e.g. a line, an arrow/triangle, a picture free of letter, etc. as taught by Wilcox et al. as suitable visible graphical indicators while yield the same or predictable results. Note that such visual indication of symbols/shapes would have been obvious design choice(s) within the skill of an artisan absent persuasive evidence that the particular shape/configuration was significant. See MPEP §§ 2144.04.
As to claim 13, Montgomery the applicator 21 comprises one or more orifices in fluid communication with the reservoir (Figs. 3-4; paragraph [0067]).
As to claim 14, Montgomery discloses a dose of tooth whitening composition ranges from 0.01 ml to 3.0 ml (paragraph 70); Wilcox et al. disclose 0.1 g of medicament is dispensed per click, effectively indicate that the amount of material being dispensed in a full rotation is of optimizable variable. Therefore, such claimed range of about 0.1 of the whitening composition being dispense with one full rotation gwould have been obvious to one having ordinary skill in art at the time the invention was made since it has been held that discovering an optimum or workable ranges is well within the skill of an artisan via routine experimentation in order to improve upon what is already generally known. See MPEP §§ 2144.05.
Regarding claims 15-26, Montgomery in view of Wilcox et al. discloses the invention substantially as claimed as detailed above with respect to claims 1, 4-10, and 12 as detailed above. Particularly to claims 16-19, note that Montgomery discloses an oral care composition being the whitening composition (abstract) containing a peroxide, fluoride, and/or metal ion zinc (paragraph [0031]). As to claim 27, Montgomery’s embodiment of Fig. 3 shows the device has a felt tip 14 which is free of bristles as claimed.
Regarding claim 30, Montgomery in view of Wilcox et al. discloses the invention substantially as claimed as detailed above with respect to claim 1 as detailed above. Particularly to claim 30, Montgomery discloses an oral care composition being fluoride and/or peroxide (paragraphs 3, 31, 51).
Response to Arguments
5. Applicant's arguments regarding the claim amendments have been fully considered but are moot in view of the new ground(s) of rejection under Montgomery in view of Wilcox et al. as detailed above.
Montgomery discloses dosing indicator feedback in tactile clicking mechanism within the body and rotating portion. However, Montgomery fails to disclose a visible first and second indicator symbols/markings on the body to indicate a full rotation once aligned.
Wilcox et al. discloses an applicator device dispensing a pre-determined dose of medication (abstract), and wherein “the dial knob may have a visible indicator, such as on an external side wall, that aligns with a visible indicator on the cartridge. The indicators are aligned at the commencement of rotation of the drive knob, moving out of alignment during rotation, and back into alignment after a complete revolution of the dial knob” (see Wilcox et al. paragraph [0087]), which is equivalent to the dosing indicator, as claimed. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Montgomery by incorporating a visible indicator on the rotating portion/dial knob that aligns with a visible indicator on the cartridge body to indicate to the user that a full rotation has been turned in order for a correct dosage of medicament being dispensed as taught by Wilcox.
Conclusion
6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Examiner HAO D. MAI whose telephone number is (571)270-3002. The examiner can normally be reached on Mon-Fri 8:00-4:30. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eric Rosen can be reached on (571) 270-7855. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HAO D MAI/
Examiner, Art Unit 3772