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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/20/2026 has been entered.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the said transition segment extends over at least about 80% of the length of the tube body, of claim 4, must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 4 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Regarding claim 4, there is no support for the term “said transition segment extends over at least about 80% of the length of the tube body.” This is not described or shown.
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 5, 8-19 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 5 recites the limitation "said elongate opening" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "said elongate opening" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 9 recites the limitation "said elongate opening" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "substantially circular profile" in line 15. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "substantially flat-oval profile" in line 15. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the distal end opening" in line 19. There is insufficient antecedent basis for this limitation in the claim.
Claim 12 recites the limitation "said elongate opening" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites the limitation "said elongate opening" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 16 recites the limitation "the central opening" in lines 2, 3 and 4 . There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 18, it is unclear if the elongated opening is the same as the central opening if they are different openings.
Claim 19 recites the limitation "substantially circular profile" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "substantially flat-oval profile" in line 4. There is insufficient antecedent basis for this limitation in the claim.
The remainder of the claim are rejected for depending from a rejected base claim.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Porter (2021/0015282) in view of McCrea (5,038,476).
Regarding claim 1, Porter shows A lip-pucker avoiding drinking straw (60) comprising: a continuous tubular body (14) defining an internal elongated conduit having a distal end (bottom) and a proximal end (top) configured for engagement by user's lips while used as a drinking straw, the tubular body configured to retain its configuration during use (it is made of stainless steel), said internal conduit being configured to provide a smooth flow path substantially free of turbulence (fig 2a); the distal end defining a substantially circular fluid opening (fig 2a);
But fails to disclose the proximal end defining a substantially flat-oval fluid opening, the flat-oval opening being defined by a continuous, smoothly curved wall portion having opposing long sides separated by a predetermined distance smaller than the diameter of the distal end opening; and a transition segment formed in said body between said distal and adjacent the proximal end, the transition segment having a gradually changing cross-sectional profile from said circular distal end to said flat-oval proximal end; wherein the total cross-sectional area at said proximal end and through said transition segment is not substantially less than the cross-sectional area at said distal end.
However, McCrea teaches a straw with a spoon end (fig 1). The spoon end defining a substantially flat-oval fluid opening (16), the flat-oval opening being defined by a continuous, smoothly curved wall portion having opposing long sides separated by a predetermined distance smaller than the diameter of the distal end opening (fig 1, 2; 16 is shorter in height that the diameter of in inside of 22as shown in figure 1); and a transition segment formed in said body between said distal and adjacent the proximal end (fig 1, 2), the transition segment having a gradually changing cross-sectional profile from said circular distal end to said flat-oval proximal end (fig 1, 2); wherein the total cross-sectional area at said proximal end and through said transition segment is not substantially less than the cross-sectional area of the straw (fig 1, 2).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the application was effectively field to add the spoon end of McCrea to an end of the straw of Porter, in order to be able to use the straw as a spoon and a straw.
Regarding claims 2 , further comprising a bending segment (66) adapted to provide a bend in said tube body.
Regarding claim 3 and 11, wherein said tube body made of a material selected from the group consisting of stainless steel ([0017]), durable plastic, silicon rubber, paper, or lightweight degradable plastic.
Regarding claim 4, as best as understood, said transition segment of Porter as modified above, extends over at least about 80% of the length of the tube body, in the same way as the transition segment extends over at least about 80% of the length of the tube body in the present invention.
Regarding claim 5 and 12, wherein the cross-sectional area of the elongated opening through said transition segment and at said proximal end is substantially equal to the cross-sectional area of said elongated opening at said distal end (the oval opening is smaller in height, but larger in width, so the cross-sectional area of the elongated opening through said transition segment and at said proximal end is substantially equal to the cross-sectional area of said elongated opening at said distal end. McCrea shows this)
Regarding claim 6 and 15, wherein the oblong profile at the proximal end provides a generally flattened lip-contact surface (McCrea, fig 1) adapted to conform to the natural relaxed shape of a user's mouth.
Regarding claims 7 and 14, wherein said transition segment changes profile gradually and continuously from circular to oblong without any step change in wall curvature or interior surface contour (McCrea fig 1, 2).
Regarding claim 10, Porter shows A lip-pucker avoiding drinking straw (60) comprising:(i) a tube body 14) configured to retain its configuration during use (made form steel), the tube body having a long axis and having a distal end and a proximal end (fig 1) configured for engagement by a user's lips while used as a drinking straw, said tube body defining an inner elongated central fluid opening having a circular cross- section at said distal end and through majority length of said tube body (fig 2a), a bending segment (66) adapted to provide a bend in said tube body
But fails to disclose having a flat-oval cross-section at the proximal end, the proximal end opening being defined by a continuous-curve tube wall having a pre-determined distance between opposing long sides, the distance between the long sides defining height of the tube body at the proximal end, said height being smaller than diameter of the circular opening at the distal end; and a transition segment of said tube body and said central opening, adjacent said proximal end- having a sectional profile which changes gradually and continuously from the substantially circular profile of said tube body to the substantially flat-oval profile at said proximal end of said tube body; where total sectional area of said central opening at said proximal end and through said transition segment is not substantially less than the sectional area of said central opening at said distal end, wherein the distal end opening has a pre-determined diameter, which is greater than the height of the opening at the proximal end, and wherein said internal opening is configured to provide a smooth flow path substantially free of turbulence or internal flow obstruction during use.
However, McCrea shows a straw with a spoon end (fig 1), the spoon end having a flat-oval cross-section at the proximal end (fig 1), the proximal end opening being defined by a continuous-curve tube wall having a pre-determined distance between opposing long sides (fig 2), the distance between the long sides defining height of the tube body at the proximal end, said height being smaller than diameter of the circular opening at the distal end (fig 1); and a transition segment of said tube body and said central opening, adjacent said proximal end having a sectional profile which changes gradually and continuously from the substantially circular profile of said tube body to the substantially flat-oval profile at said proximal end of said tube body (fig 1, 2); where total sectional area of said central opening at said proximal end and through said transition segment is not substantially less than the sectional area of said central opening at said distal end (fig 1, 2), wherein the distal end opening has a pre-determined diameter, which is greater than the height of the opening at the proximal end (fig 1, 2), and wherein said internal opening is configured to provide a smooth flow path substantially free of turbulence or internal flow obstruction during use (fig 1, 2).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the application was effectively field to add the spoon end of McCrea to an end of the straw of Porter, in order to be able to use the straw as a spoon and a straw.
Regarding claim 16, where the sectional area of said central opening at said proximal end and through said transition segment is not substantially less than the sectional area of said central opening at said distal end and is further not substantially greater than the sectional area of said central opening at said distal end (fig 1, 2 McCrea)
Regarding claim 18, Porter shows A drinking straw (60), comprising an elongated tubular body with an elongated opening (fig 2a), the body having a cylindrical distal portion (fig 1), a proximal portion (fig 1), and a bending segment (66) formed between the distal portion and the proximal portion, said cylindrical portion being defined by an outer cylindrical wall and being formed with a central opening extending through the distal portion (fig 2a), said central opening having a circular cross-section (fig 2a),
But fails to disclose said proximal portion having a flat-oval cross-section and a flat oval proximal end opening, the proximal end opening being defined by a continuous-curve inner tube wall having a pre- determined distance between opposing long sides, the distance between the long sides defining height of the tubular body at the proximal end, said height being smaller than diameter of the central opening in the distal portion, said proximal end being configured for engagement by user's lips without lip puckering by the user, wherein said elongated opening being configured to provide a smooth flow path substantially free of turbulence.
McCrea shows a straw with a spoon end (fig 1, the spoon end having a flat-oval cross-section and a flat oval proximal end opening (fig 1, 2), the proximal end opening being defined by a continuous-curve inner tube wall having a pre- determined distance between opposing long sides, the distance between the long sides defining height of the tubular body at the proximal end, said height being smaller than diameter of the central opening in the distal portion (fig 1), said proximal end being configured for engagement by user's lips without lip puckering by the user, wherein said elongated opening being configured to provide a smooth flow path substantially free of turbulence (fig 1, 2).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the application was effectively field to add the spoon end of McCrea to an end of the straw of Porter, in order to be able to use the straw as a spoon and a straw.
Regarding claim 19, wherein the tubular body further comprises a transition segment of said tubular body and said central opening, near said proximal end, the transition segment having a sectional profile which changes gradually from the substantially circular profile of said tubular body to the substantially flat-oval profile at said proximal end of said tube body (McCrea).
Regarding claims 8, 9, 13 and 17, Porter as modified above shows all aspects of the applicant’s invention as in claims 1 and 10, but fails to disclose the sectional area of said central opening at said proximal end and through said transition segment is slightly greater than the sectional area of said central opening at said distal end.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Porter as modified above to so that the sectional area of said central opening at said proximal end and through said transition segment is slightly greater than the sectional area of said central opening at said distal end, since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC., Inc., 725 F.2d 1338, 220 USPQ 77 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984).
In this case, the device of Porter as modified above would not operate differently with the sectional area of said central opening at said proximal end and through said transition segment is slightly greater than the sectional area of said central opening at said distal end, since the straw of Porter as modified above and the claimed straw are identical in every other way and sectional area of said central opening at said proximal end and through said transition segment to be slightly greater than the sectional area of said central opening at said distal end will not affect the function of the straw. Further, it appears that applicant places no criticality in the claimed range.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-19 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON J BOECKMANN whose telephone number is (571)272-2708. The examiner can normally be reached M-F 9am to 5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arthur Hall can be reached on (571) 270-1814. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JASON J BOECKMANN/Primary Examiner, Art Unit 3752 4/7/2026