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
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10/6/2025 has been entered.
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 63, 66, 73, 74, 76 and 77 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 63 recites the limitation, “multiple 3-sided wedge-shaped receptacles” in line 12 of the claim. It is unclear whether “multiple…receptacles” of line 12 is the same or different as “one or more receptacles” as recited in line 4 of the claim. It is unclear whether “multiple…receptacles” are in addition to “one or more receptacles” or if “multiple…receptacles” are further limiting “one or more receptacles”. As such the claim is indefinite for failing to distinctly claim the invention. Claims 66, 73, 74, 76 and 77 are also rejected under 35 USC 112(b) by virtue of their dependency on claim 63.
Claim Rejections - 35 USC § 103
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 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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 67 is/are rejected under 35 U.S.C. 103 as obvious over Lyons et al. (U.S. Patent Pub. No. 2018/0072553) in view of Jaiswal et al. (U.S. Patent Pub. No. 2018/0199584), Dvorak (U.S. Patent No. 9,975,684), Mitchell (U.S. Patent Pub. No. 2009/0120815) and Anson et al. (U.S. Patent No. 8,464,633).
Regarding claims 67, Lyons et al. discloses a personal portable fluid dispensing apparatus (title; figure 2, reference #100) comprising:
a vessel (figures 2-4, reference #114);
lever rotatably and mechanically coupled to the vessel (figures 27 and 28, reference #147, 152 and 153 (reference #153 is part of lever and is rotatably coupled to vessel); [0228]-[0229]);
a base attached below to the vessel (figure 4, reference #115; or alternatively, figures 2 and 3, reference #118).
While the reference does not explicitly disclose the specific dimensions. The reference discloses wherein the apparatus is a portable handheld water bottle, and it is known in the art that a portable handheld water bottle falls within the claimed dimensions. Furthermore, as evidenced by the produced reference sold to the public, the reference falls within the claimed dimensions (https://www.amazon.com/gp/product/B081QWDJ9D/ref=as_li_tl?ie=UTF8&camp=1789&creative=9325&creativeASIN=B081QWDJ9D&linkCode=as2&tag=mbr08-20&linkId=ecc6aff0a52e488e16fcf66e8c9031e8). Alternatively, it would have been obvious to having ordinary skill in the art at the time the invention was filed to modify the apparatus of Lyons et al. to have a height of 6-25 inches and a cross-sectional dimension of about 2.5 to 5 inches so that the apparatus can be easily carried around to many different places while still holding enough drinkable liquid (Lyons et al. [0161]) and because since such a modification would have involved a mere change in the size (or dimension) of a component. A change in size (dimension) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
However, the reference does not explicitly disclose a mixer mounted as a separate component within the vessel.
Jaiswal et al. teaches another device for producing a food product (title). The reference teaches a mixer that is capable to be automatically activated in response to sensing movement of the apparatus and mounted as a separate component within the vessel (reference #190; [0043]; [0084]; [0103]; [0128]; table 1 (presence of material in vessel indicates movement of dispenser which is considered a sensed movement of vessel since the dispenser is an element of the vessel; as well as user activation is a sensed movement of the apparatus)). It is noted that the limitation is directed to a manner of operating the disclosed mixer, and neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” There is no claimed structural limitation imparted on the mixer, such as a sensor, that interfaces with the mixer to permit this functional intended use.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the mixer of Jaiswal et al. within the vessel of Lyons et al. One of ordinary skill in the art would reasonably expect such a combination to be suitable given that both references teach devices for producing a food product. One of ordinary skill in the art would be motivated to provide a mixer within the vessel because the mixer stirs and agitates the constituents within the vessel to form a homogenous final food product.
While the reference discloses other dispensing modules to release and blend the materials (reference #113; [0171]), including a striker (figures 25-29, reference #141; [0199]; [0217]; [0221]; [0223]-[0229]), the reference does not explicitly disclose wherein the striker is configured to pierce through one or more packets, wherein the lever is mechanically connected to the striker to activate the striker. Dvorak discloses wherein the striker is configured to pierce through one or more packets, wherein the lever is mechanically connected to the striker to activate the striker (reference #401a, 410 and 416; column 16, lines 12-26; column 17, lines 48-64) and Mitchell discloses wherein the striker is configured to pierce through one or more packets, wherein the lever is mechanically connected to the striker to activate the striker (see figures 3A and 3B, reference #26; [0053]). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the dispensing module of Lyons et al. to pierce through one or more packets, wherein the lever is mechanically connected to the striker to activate the striker as taught by Dvorak and Mitchell, because selecting one of known designs for a dispensing module would have been considered obvious to one having ordinary skill in the art at the time the invention was filed and because said dispensing and mixing module would operate equally well as the one disclosed by Lyons et al.
While the reference discloses multiple wedge-shaped receptacles (figures 17 and 18, reference #137) configured to retain two or more wedge-shaped packets that contain ingestible materials that can be selectively added to the vessel (figure 17 and 18, reference #101), the reference fails to disclose wherein the wedge-shaped receptacles are 3-sided. It is well known in the art that the receptacles can have a variety of shapes of configurations, including 3-sided, circular, trapezoidal, polygonal, etc. (evidenced by Lyons et al. figures 17 and 18, reference #137, figure 48, reference #4804; Anson et al. figure 3, reference #190A, B, C). The change in configuration of shape of a device is obvious absent persuasive evidence that the particular configuration is significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify wedge-shaped receptacle of Lyons et al. to include a variety of receptacle shapes, as taught by Lyons et al. and Anson et al. An ordinary skilled artisan at the time the invention was filed would have been motivated to do the foregoing in order to provide the desired dissolved flow rate (Anson et al. column 10, lines 5-26).
Claim(s) 63, 66, 73, 74, 76 and 77 is/are rejected under 35 U.S.C. 103 as obvious over Lyons et al. (U.S. Patent Pub. No. 2018/0072553) in view of Jaiswal et al. (U.S. Patent Pub. No. 2018/0199584) and Anson et al. (U.S. Patent No. 8,464,633).
Regarding claim 63, Lyons et al. discloses a personal portable fluid dispensing apparatus (title; figure 2, reference #100) comprising:
a vessel (figures 2-4, reference #114); and
a dispenser in communication with the vessel (figures 2-4, 17, 18, reference #113), the dispenser comprising:
one or more receptacles (figures 17 and 18, reference #137) configured to retain one or more packets that contain ingestible materials that can be selectively added to the vessel (figure 17 and 18, reference #101);
a striker configured to contact a packet in a receptacle (figures 25-29, reference #141; [0199]; [0217]; [0221]; [0223]-[0229]) (it is noted that the limitation “striker” has not specified a particular shape or structure of the striker, only that it is a structure that is configured to contact a packet; and as such, reference #141 reads on the limitation because it is a structure that axially contacts the receptacle to provide pressure to release the contents into the vessel);
a base attached below to the vessel (figure 4, reference #115; or alternatively, figures 2 and 3, reference #118).
While the reference does not explicitly disclose the specific dimensions. The reference discloses wherein the apparatus is a portable handheld water bottle, and it is known in the art that a portable handheld water bottle falls within the claimed dimensions. Furthermore, as evidenced by the produced reference sold to the public, the reference falls within the claimed dimensions (https://www.amazon.com/gp/product/B081QWDJ9D/ref=as_li_tl?ie=UTF8&camp=1789&creative=9325&creativeASIN=B081QWDJ9D&linkCode=as2&tag=mbr08-20&linkId=ecc6aff0a52e488e16fcf66e8c9031e8). Alternatively, it would have been obvious to having ordinary skill in the art at the time the invention was filed to modify the apparatus of Lyons et al. to have a height of about 8-15 inches and a cross-sectional dimension of about 2.5 to 5 inches so that the apparatus can be easily carried around to many different places while still holding enough drinkable liquid (Lyons et al. [0161]) and because since such a modification would have involved a mere change in the size (or dimension) of a component. A change in size (dimension) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
However, the reference does not explicitly disclose a mixer mounted as a separate component within the vessel, and wherein the mixer is capable to be activated in response to motion of the apparatus.
Jaiswal et al. teaches another device for producing a food product (title). The reference teaches a mixer mounted as a separate component within the vessel, wherein the mixer is capable to be activated in response to motion of the apparatus (Jaiswal et al. reference #190; [0043]; [0084]; [0103]; [0128]; table 1 (presence of material in vessel indicates motion of dispenser which is considered a detected motion of vessel since the dispenser is an element of the vessel; as well as user activation is a motion of the apparatus)). It is noted that the limitation is directed to a manner of operating the disclosed mixer, and neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” There is no claimed structural limitation imparted on the mixer, such as a sensor, that interfaces with the mixer to permit this functional intended use.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the mixer of Jaiswal et al. within the vessel of Lyons et al. One of ordinary skill in the art would reasonably expect such a combination to be suitable given that both references teach devices for producing a food product. One of ordinary skill in the art would be motivated to provide a mixer within the vessel because the mixer stirs and agitates the constituents within the vessel to form a homogenous final food product.
While the reference discloses multiple wedge-shaped receptacles (figures 17 and 18, reference #137) configured to retain two or more wedge-shaped packets that contain ingestible materials that can be selectively added to the vessel (figure 17 and 18, reference #101), the reference fails to disclose wherein the wedge-shaped receptacles are 3-sided. It is well known in the art that the receptacles can have a variety of shapes of configurations, including 3-sided, circular, trapezoidal, polygonal, etc. (as evidenced by Lyons et al. figures 17 and 18, reference #137, figure 48, reference #4804; Anson et al. figure 3, reference #190A, B, C). The change in configuration of shape of a device is obvious absent persuasive evidence that the particular configuration is significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify wedge-shaped receptacle of Lyons et al. to include a variety of receptacle shapes, as taught by Lyons et al. and Anson et al. An ordinary skilled artisan at the time the invention was filed would have been motivated to do the foregoing in order to provide the desired dissolved flow rate (Anson et al. column 10, lines 5-26).
Regarding claim 66, Lyons et al. in view of Jaiswal et al. and Anson et al. discloses all the limitations as set forth above. The reference as modified also discloses wherein the mixer is capable to be activated in response to a detected motion of the apparatus (Jaiswal et al. [0043]; [0084]; [0103]; [0128]; table 1 (presence of material in vessel indicates motion of dispenser which is considered a detected motion of vessel since the dispenser is an element of the vessel; as well as user activation is a motion of the apparatus)). It is noted that the limitation is directed to a manner of operating the disclosed mixer, and neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” There is no claimed structural limitation imparted on the mixer, such as a sensor, that interfaces with the mixer to permit this functional intended use.
Regarding claim 73, Lyons et al. in view of Jaiswal et al. and Anson et al. discloses all the limitations as set forth above. The reference as modified further discloses wherein the apparatus comprises a controller and a sensor unit, and the mixer is capable to be activated via the controller and sensor unit in response to motion of the apparatus (Jaiswal et al. reference #190, 320, 340; [0043]; [0046]; [0084]; [0014];[0128]; [0103]; table 1).
Regarding claim 74, Lyons et al. in view of Jaiswal et al. and Anson et al. discloses all the limitations as set forth above. The reference as modified further discloses wherein the apparatus comprises a controller and a sensor unit, and the mixer is capable to be activated via the controller and sensor unit in response to motion of the apparatus (Jaiswal et al. reference #190, 320, 340; [0043]; [0046]; [0084]; [0014];[0128]; [0103]; table 1).
Regarding claim 76, Lyons et al. in view of Jaiswal et al. and Anson et al. discloses all the limitations as set forth above. The reference as modified further discloses wherein the apparatus comprises multiple wedge-shaped packets that comprise ingestible material (figures 17 and 18, reference #101).
Regarding claim 77, Lyons et al. in view of Jaiswal et al. and Anson et al. discloses all the limitations as set forth above. The reference as modified further discloses wherein the apparatus comprises multiple wedge-shaped packets that comprise ingestible material (figures 17 and 18, reference #101).
Claims 63, 66, 67, 73, 74, 76 and 77 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dvorak (U.S. Patent No. 9,975,684) in view of Jaiswal et al., Lyons et al. and Anson et al.
Regarding claims 63 and 66, Dvorak discloses a personal portable fluid dispensing apparatus (abstract) comprising:
a vessel (reference #407); and
a dispenser (reference #400), comprising one or more receptacles capable to retain one or more packets that contain ingestible materials that can be selectively added to the vessel (reference #415); a striker (reference #410 and 416).
While the reference does not explicitly disclose the specific dimensions. The reference discloses wherein the apparatus is a portable handheld water bottle, and it is known in the art that a portable handheld water bottle falls within the claimed dimensions. It would have been obvious to having ordinary skill in the art at the time the invention was filed to modify the apparatus of Dvorak to have a height of about 8-15 inches and a cross-sectional dimension of about 2.5 to 5 inches so that the apparatus can be easily carried around to many different places while still holding enough drinkable liquid and because since such a modification would have involved a mere change in the size (or dimension) of a component. A change in size (dimension) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
However, the reference does not explicitly disclose a mixer mounted as a separate component within the vessel, and configured to be activated in response to motion of the apparatus.
Jaiswal et al. teaches another device for dispensing and producing a food product (title; abstract). The reference teaches a mixer that is capable to be activated in response to a detected motion of the apparatus and mounted as a separate component within the vessel (reference #190; [0043]; [0084]; [0128]; [0103]; table 1 (presence of material in vessel indicates movement of dispenser which is considered a detected movement of vessel since the dispenser is an element of the vessel; as well as user activation is a detected movement of the apparatus)). It is noted that the limitation is directed to a manner of operating the disclosed mixer, and neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” There is no claimed structural limitation imparted on the mixer, such as a sensor, that interfaces with the mixer to permit this functional intended use.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the mixer of Jaiswal et al. within the vessel of Dvorak. One of ordinary skill in the art would reasonably expect such a combination to be suitable given that both references teach devices for dispensing and producing a food product. One of ordinary skill in the art would be motivated to provide a mixer within the vessel because the mixer stirs and agitates the constituents within the vessel to form a homogenous final food product.
However, the reference does not disclose a base attached below to the vessel. Jaiswal et al. teaches another device for dispensing and producing a food product (title; abstract). The reference teaches a base attached below to the vessel (figures 1 and 2, reference #20C). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the base of Jaiswal et al. attached below the vessel of Dvorak. One of ordinary skill in the art would reasonably expect such a combination to be suitable given that both references teach devices for dispensing and producing a food product. One of ordinary skill in the art would be motivated to provide a base in order to support and power the vessel.
While the reference discloses multiple receptacles configured to retain two or more packets that contain ingestible materials that can be selectively added to the vessel (reference #415), the reference fails to disclose wherein the receptacles are 3-sided wedge-shaped. It is well known in the art that the receptacles can have a variety of shapes of configurations, including 3-sided, circular, trapezoidal, polygonal, etc. (as evidenced by Lyons et al. figures 17 and 18, reference #137, figure 48, reference #4804; Anson et al. figure 3, reference #190A, B, C). The change in configuration of shape of a device is obvious absent persuasive evidence that the particular configuration is significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the receptacle of Dvorak. to include a variety of receptacle shapes, as taught by Lyons et al. and Anson et al. An ordinary skilled artisan at the time the invention was filed would have been motivated to do the foregoing in order to provide the desired dissolved flow rate (Anson et al. column 10, lines 5-26).
Regarding claim 67, Dvorak discloses a personal portable fluid dispensing apparatus (abstract) comprising:
a vessel (reference #407); and
a lever rotatably and mechanically coupled to the vessel (reference #401a and 410);
a striker capable to pierce through one or more packets, wherein the lever is mechanically connected to the striker to active the striker (reference #401a, 410 and 416; column 16, lines 12-26; column 17, lines 48-64).
While the reference does not explicitly disclose the specific dimensions. The reference discloses wherein the apparatus is a portable handheld water bottle, and it is known in the art that a portable handheld water bottle falls within the claimed dimensions. It would have been obvious to having ordinary skill in the art at the time the invention was filed to modify the apparatus of Dvorak to have a height of 6-25 inches and a cross-sectional dimension of about 2.5 to 5 inches so that the apparatus can be easily carried around to many different places while still holding enough drinkable liquid and because since such a modification would have involved a mere change in the size (or dimension) of a component. A change in size (dimension) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
However, the reference does not explicitly disclose a mixer mounted as a separate component within the vessel.
Jaiswal et al. teaches another device for dispensing and producing a food product (title; abstract). The reference teaches a mixer that is capable to be automatically activated in response to sensing movement of the apparatus and mounted as a separate component within the vessel (reference #190; [0043]; [0084]; [0128]; [0103]; table 1 (presence of material in vessel indicates movement of dispenser which is considered a sensed movement of vessel since the dispenser is an element of the vessel; as well as user activation is a sensed movement of the apparatus)). It is noted that the limitation is directed to a manner of operating the disclosed mixer, and neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” There is no claimed structural limitation imparted on the mixer, such as a sensor, that interfaces with the mixer to permit this functional intended use.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the mixer of Jaiswal et al. within the vessel of Dvorak. One of ordinary skill in the art would reasonably expect such a combination to be suitable given that both references teach devices for dispensing and producing a food product. One of ordinary skill in the art would be motivated to provide a mixer within the vessel because the mixer stirs and agitates the constituents within the vessel to form a homogenous final food product.
However, the reference does not disclose a base attached below to the vessel. Jaiswal et al. teaches another device for dispensing and producing a food product (title; abstract). The reference teaches a base attached below to the vessel (figures 1 and 2, reference #20C). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the base of Jaiswal et al. attached below the vessel of Dvorak. One of ordinary skill in the art would reasonably expect such a combination to be suitable given that both references teach devices for dispensing and producing a food product. One of ordinary skill in the art would be motivated to provide a base in order to support and power the vessel.
While the reference discloses multiple receptacles configured to retain two or more packets that contain ingestible materials that can be selectively added to the vessel (reference #415), the reference fails to disclose wherein the receptacles are 3-sided wedge-shaped. It is well known in the art that the receptacles can have a variety of shapes of configurations, including 3-sided, circular, trapezoidal, polygonal, etc. (as evidenced by Lyons et al. figures 17 and 18, reference #137, figure 48, reference #4804; Anson et al. figure 3, reference #190A, B, C). The change in configuration of shape of a device is obvious absent persuasive evidence that the particular configuration is significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the receptacle of Dvorak. to include a variety of receptacle shapes, as taught by Lyons et al. and Anson et al. An ordinary skilled artisan at the time the invention was filed would have been motivated to do the foregoing in order to provide the desired dissolved flow rate (Anson et al. column 10, lines 5-26).
Regarding claim 73, Dvorak in view of Jaiswal et al., Lyons et al. and Anson et al. discloses all the limitations as set forth above. The reference as modified further discloses wherein the apparatus comprises a controller and a sensor unit, and the mixer is capable to be activated via the controller and sensor unit in response to motion of the apparatus (Jaiswal et al. reference #190, 320, 340; [0043]; [0046]; [0084]; [0014];[0128]; [0103]; table 1).
Regarding claim 74, Dvorak in view of Jaiswal et al., Lyons et al. and Anson et al. discloses all the limitations as set forth above. The reference as modified further discloses wherein the apparatus comprises a controller and a sensor unit, and the mixer is capable to be activated via the controller and sensor unit in response to motion of the apparatus (Jaiswal et al. reference #190, 320, 340; [0043]; [0046]; [0084]; [0014];[0128]; [0103]; table 1).
Regarding claim 76 and 77, Dvorak in view of Jaiswal et al., Lyons et al. and Anson et al. discloses all the limitations as set forth above. The reference as modified further discloses wherein the apparatus comprises multiple wedge-shaped packets that comprise ingestible material (Dvorak packets reference #415, columns 17, lines 42-47 modified by Lyons et al. and Anson et al. to be wedge-shaped (Lyons et al. figure 17, reference #137 and figure 48B and Anson et al. figure 3, reference #140A, B, C)).
Claims 63, 66, 67, 73, 74, 76 and 77 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mitchell in view of Jaiswal et al., Lyons et al. and Anson et al.
Regarding claim 63, Mitchell discloses a personal portable fluid dispensing apparatus (abstract; figure 1) comprising:
a vessel (figures 1 and 3, reference #12); and
a dispenser in communication with the vessel (figures 1-3, reference #10), the dispenser comprising:
one or more receptacles configured to retain one or more packets that contain ingestible materials that can be selectively added to the vessel (figures 2a and 2c, reference #16, 42 and 44);
a striker configured to contact a packet in a receptacle (figures 2c, 3A and 3B, reference #49);
a base attached below to the vessel (figure 1, bottom surface of reference #12 is a base to walls of vessel 12).
While the reference does not explicitly disclose the specific dimensions. The reference discloses wherein the apparatus is a portable handheld water bottle, and it is known in the art that a portable handheld water bottle falls within the claimed dimensions. It would have been obvious to having ordinary skill in the art at the time the invention was filed to modify the apparatus of Mitchell to have a height of about 8-15 inches and a cross-sectional dimension of about 2.5 to 5 inches so that the apparatus can be easily carried around to many different places while still holding enough drinkable liquid and because since such a modification would have involved a mere change in the size (or dimension) of a component. A change in size (dimension) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
However, the reference does not explicitly disclose a mixer mounted as a separate component within the vessel, and wherein the mixer is capable to be activated in response to motion of the apparatus.
Jaiswal et al. teaches another device for dispensing and producing a food product (title; abstract). The reference teaches a mounted as a separate component within the vessel, and wherein the mixer is capable to be activated in response to motion of the apparatus (reference #190; [0043]; [0084]; [0128]; [0103]; table 1 (presence of material in vessel indicates motion of dispenser which is considered a detected motion of vessel since the dispenser is an element of the vessel; as well as user activation is a motion of the apparatus)). It is noted that the limitation is directed to a manner of operating the disclosed mixer, and neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” There is no claimed structural limitation imparted on the mixer, such as a sensor, that interfaces with the mixer to permit this functional intended use.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the mixer of Jaiswal et al. within the vessel of Mitchell. One of ordinary skill in the art would reasonably expect such a combination to be suitable given that both references teach devices for dispensing and producing a food product. One of ordinary skill in the art would be motivated to provide a mixer within the vessel because the mixer stirs and agitates the constituents within the vessel to form a homogenous final food product.
While the reference discloses multiple wedge-shaped receptacles configured to retain two or more wedge-shaped packets that contain ingestible materials that can be selectively added to the vessel (figures 2a and 2c, reference #16, 42 and 44), the reference fails to disclose wherein the wedge-shaped receptacles are 3-sided. It is well known in the art that the receptacles can have a variety of shapes of configurations, including 3-sided, circular, trapezoidal, polygonal, etc. (as evidenced by Mitchell figures 2a and 2c, reference #16, 42 and 44; Lyons et al. figures 17 and 18, reference #137, figure 48, reference #4804; Anson et al. figure 3, reference #190A, B, C). The change in configuration of shape of a device is obvious absent persuasive evidence that the particular configuration is significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify wedge-shaped receptacle of Mitchell to include a variety of receptacle shapes, as taught by Mitchell, Lyons et al. and Anson et al. An ordinary skilled artisan at the time the invention was filed would have been motivated to do the foregoing in order to provide the desired dissolved flow rate (Anson et al. column 10, lines 5-26).
Regarding claim 66, Mitchell as modified discloses all the limitations as set forth above. The reference as modified further discloses a mixer that is capable to be activated as recited (Jaiswal et al. [0043]; [0084]; [0128]; table 1 (presence of material in vessel indicates motion of dispenser which is considered a detected motion of vessel since the dispenser is an element of the vessel; as well as user activation is a motion of the apparatus)). It is noted that the limitation is directed to a manner of operating the disclosed mixer, and neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” There is no claimed structural limitation imparted on the mixer, such as a sensor, that interfaces with the mixer to permit this functional intended use.
Regarding claim 67, Mitchell discloses a personal portable fluid dispensing apparatus (abstract; figure 1) comprising:
a vessel (figures 1 and 3, reference #12); and
a striker configured to contact a packet in a receptacle (figures 2c, 3A and 3B, reference #49);
a striker capable to pierce through one or more packets, wherein the lever is mechanically connected to the striker to active the striker (see figures 3A and 3B, reference #26; [0053]); and
a base attached below to the vessel (figure 1, bottom surface of reference #12 is a base to walls of vessel 12).
While the reference does not explicitly disclose the specific dimensions. The reference discloses wherein the apparatus is a portable handheld water bottle, and it is known in the art that a portable handheld water bottle falls within the claimed dimensions. It would have been obvious to having ordinary skill in the art at the time the invention was filed to modify the apparatus of Mitchell to have a height of 6-25 inches and a cross-sectional dimension of about 2.5 to 5 inches so that the apparatus can be easily carried around to many different places while still holding enough drinkable liquid and because since such a modification would have involved a mere change in the size (or dimension) of a component. A change in size (dimension) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
However, the reference does not explicitly disclose a mixer mounted as a separate component within the vessel.
Jaiswal et al. teaches another device for dispensing and producing a food product (title; abstract). The reference teaches a mixer that is capable to be automatically activated in response to sensing movement of the apparatus and mounted as a separate component within the vessel (reference #190; [0043]; [0084]; [0128]; [0103]; table 1 (presence of material in vessel indicates movement of dispenser which is considered a sensed movement of vessel since the dispenser is an element of the vessel; as well as user activation is a sensed movement of the apparatus)). It is noted that the limitation is directed to a manner of operating the disclosed mixer, and neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” There is no claimed structural limitation imparted on the mixer, such as a sensor, that interfaces with the mixer to permit this functional intended use.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the mixer of Jaiswal et al. within the vessel of Mitchell. One of ordinary skill in the art would reasonably expect such a combination to be suitable given that both references teach devices for dispensing and producing a food product. One of ordinary skill in the art would be motivated to provide a mixer within the vessel because the mixer stirs and agitates the constituents within the vessel to form a homogenous final food product.
While the reference discloses multiple wedge-shaped receptacles configured to retain two or more wedge-shaped packets that contain ingestible materials that can be selectively added to the vessel (figures 2a and 2c, reference #16, 42 and 44), the reference fails to disclose wherein the wedge-shaped receptacles are 3-sided. It is well known in the art that the receptacles can have a variety of shapes of configurations, including 3-sided, circular, trapezoidal, polygonal, etc. (as evidenced by Mitchell figures 2a and 2c, reference #16, 42 and 44; Lyons et al. figures 17 and 18, reference #137, figure 48, reference #4804; Anson et al. figure 3, reference #190A, B, C). The change in configuration of shape of a device is obvious absent persuasive evidence that the particular configuration is significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify wedge-shaped receptacle of Mitchell to include a variety of receptacle shapes, as taught by Mitchell, Lyons et al. and Anson et al. An ordinary skilled artisan at the time the invention was filed would have been motivated to do the foregoing in order to provide the desired dissolved flow rate (Anson et al. column 10, lines 5-26).
Regarding claim 73, Mitchell as modified discloses all the limitations as set forth above. The reference as modified further discloses wherein the apparatus comprises a controller and a sensor unit, and the mixer is capable to be activated via the controller and sensor unit in response to motion of the apparatus (Jaiswal et al. reference #190, 320, 340; [0043]; [0046]; [0084]; [0014];[0128]; [0103]; table 1).
Regarding claim 74, Mitchell as modified discloses all the limitations as set forth above. The reference as modified further discloses wherein the apparatus comprises a controller and a sensor unit, and the mixer is capable to be activated via the controller and sensor unit in response to motion of the apparatus (Jaiswal et al. reference #190, 320, 340; [0043]; [0046]; [0084]; [0014];[0128]; [0103]; table 1).
Regarding claim 76, Michell as modified discloses all the limitations as set forth above. The reference as modified further discloses wherein the apparatus comprises multiple wedge-shaped packets that comprise ingestible material (figures 2a and 2c, reference #42).
Regarding claim 77, Michell as modified discloses all the limitations as set forth above. The reference as modified further discloses wherein the apparatus comprises multiple wedge-shaped packets that comprise ingestible material (figures 2a and 2c, reference #42).
Response to Arguments
Applicant's arguments filed 10/6/2025 have been fully considered but they are not persuasive.
Applicant argues the system of Jaiswal is much different from the system in Lyons and therefore a person skilled in the art would not have looked to a yogurt maker for a single component to import into the Lyons et al. device. Examiner finds this argument unpersuasive. First, Applicant’s statement is conclusory. Applicant has not provided any reason or evidence for why Jaiswal/a yogurt maker is a different system than Lyons/Dvorak/Mitchell, beyond just making the statement. Second, applicant makes the same argument for incorporating Jaiswal components into the other reference Mitchell, but still refers to them as Lyons et al. (see page 8 of Remarks). This only proves the point that Applicant is making conclusory arguments without saying why there would be no reason to combine. Jaiswal is directed to a device for producing and dispensing a food product, just like Lyons, Dvorak, and Mitchell. All references are in the same field of producing and dispensing food products and therefore one skilled in the art would look to all the references being combinable.
Applicant additionally argues that there is no disclosure cited of the dimensions Applicant discloses and claims. This is clearly not true, as the rejection of Mitchell/Jaiswal/Lyons/Anon addresses the modification of the apparatus of Mitchell to be within the claimed dimensions since a mere change in size is generally recognized as being within the level of ordinary skill in the art.
Applicant’s arguments with respect to the 3-sided wedge-shaped receptacle have been considered but are moot in view of Anon et al.
Conclusion
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/ELIZABETH INSLER/Primary Examiner, Art Unit 1774