DETAILED ACTION
Response to Amendment
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.
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) 1-7, 10-11, 14, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Argenta Innovation LTD (WO 2019/164410; hereafter Argenta).
In regard to claim 1, Argenta discloses a winged capsule (1) for delivery of a substance to an animal (see at least par. [0001], [0002]), the winged capsule comprising: a capsule (2) having a bottom wall (bottom of tubular wall; see Fig. 3 for a close-up view or plunger 12; or element 12 or element 4) and a tubular wall (see tubular wall in Figs. 1-2) extending from the bottom wall, the tubular wall and the bottom wall defining an inner space adapted to contain the substance (see par. [0003], [0140], [0173]-[0174]), and the bottom wall having an aperture (see the opening of 2 at the bottom portion or aperture 13 of element 12 or apertures 11 of 4) adapted to deliver the substance to the animal (see at least par. [0077]-[0080] and [0191]-[0192]); and a capsule retainer (3) including a central wing portion (at and around 18) connected to the capsule and wings (portions 7, 8, 9 of 3) connected to and extending laterally from the central wing portion along a wing plane (see at least Fig. 1), the central wing portion having a maximum central width (see at least Fig. 7), wherein each of the wings has a distal end (at 10) having a distal width and an intermediate section between the distal end and the central wing portion (any portion between 10 and 18 can be considered the intermediate zone), the intermediate section having a width narrowing from a width adjacent the central wing portion to the distal width (see par. [0093]-[0095]),
Argenta discloses wherein the width of the intermediate section of the wings begins at a distal edge of the central wing portion and ends at the distal width (the distal edge of the central wing portion can be considered any portion as the claim fails to provide a structural indentifier) but Argenta fails to expressly disclose wherein the intermediate section width is at most 70% of a length of the wing extending from the distal edge of the central wing portion to the distal end.
The instant disclosure describes the parameters of intermediate section width as being merely preferable, and does not describe intermediate section width as contributing any unexpected results to the system. The instant disclosure only provides literal support for the limitation (see par. [0028] of the pg-publication of the instant application) but fails to discuss any benefit or purpose to the recited width. Furthermore, there is no discussion that the recited width works better than or to the exclusion of other widths. As such, parameters such as the intermediate section width are considered to be matters of design choice, well within the skill of the ordinary artisan, obtained through routine experimentation in determining optimum results. Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention that the limitation of the intermediate section width would be dependent on the actual application of the system and, thus would be a design choice based on the actual application. Argenta does disclose the width of the wing or wings may vary along the length of the wing (see par. [0093]), the width of the wing may decrease from the end of the wing closest to the body to the end of the wing furthest from the body (see par. [0094]), and wherein the width of the wing may be substantially constant from the end of the wing closest to the body up to a point, and then may decrease from the point to the end of the wing furthest from the body (see par. [0095]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the intermediate section width to the claimed range because Argenta expressly teaches that the width of the wing is a feature that can be modified. Optimizing the dimension of a recognized result-effective variable to meet a design requirement of a particular application would have been a matter of routine engineering judgment and would have yielded the predictable result of a wing with the recited intermediate section width.
In regard to claim 2, Argenta discloses wherein the capsule has an outer cross-section width measured perpendicularly to a longitudinal extent of the wings, wherein the maximum central width is at least 60% of the outer cross-section width of the capsule (see par. [0093]-[0095]; the width of the wings can decrease as moved away from the central portion; if the central portion is wider than the wings, this condition is met).
In regard to claim 3, Argenta discloses wherein the capsule retainer (3) includes a localized flexure area (area adjacent 7) within the central wing portion of the capsule retainer (see par. [0262]; the area 7 is more rigid than the other areas but is configured to bend at some forces).
In regard to claim 4, Argenta discloses wherein the capsule retainer (3) comprises a transverse rib (portion of rib 15 extending from center to edge; see Fig. 7) in the central wing portion, and extending distally from the transverse rib along the wing plane, lateral edge ribs (outer lateral ribs 15; see Fig. 7) and an intermediate longitudinal rib (middle portion of ribs 15 between the lateral edge ribs (see at least Fig. 7).
In regard to claim 5, Argenta discloses wherein at least one of the lateral edge ribs and the intermediate longitudinal rib comprises a notch within the central wing portion (see U-shaped notches in Fig. 8).
In regard to claim 6, Argenta discloses wherein the central wing portion comprises a localized flexure area (area adjacent 7).
In regard to claim 7, Argenta discloses wherein the localized flexure area (area adjacent 7) comprises reduced height rib portions of the lateral edge ribs and/or the intermediate longitudinal rib (see par. [0127]-[0128]; any height can be considered reduced from another greater height).
In regard to claim 10, Argenta discloses wherein the lateral edge ribs and the intermediate longitudinal ribs extend distally from the localized flexure area (see Figure 7; the localized flexure area can be considered to end before the portion 7 ends).
In regard to claim 11, Argenta discloses wherein the central wing portion comprises a transverse rib (15) and the transverse rib includes a cavity (18), a width of the transverse rib being greater than a diameter of the cavity (see Figs. 1, 2, and 7).
In regard to claim 14, Argenta discloses wherein the capsule has a top portion adjacent a bottom portion (see Fig. 1), the bottom portion including the bottom wall (4), the bottom wall having a flat surface section encircling the aperture (11) and having a first thickness, a rounded circumferential edge surface (at 6 in Fig. 3), and a reinforcement section (where 20 meets 19 in Figure 3) between the flat surface section and the rounded radial edge surface, the reinforcement section having a second thickness greater than the first thickness (see Fig. 3).
In regard to claim 26, Argenta discloses wherein the capsule retainer (3) comprises a top surface (see Fig. 1) and a bottom surface opposite the top surface (see Fig. 2), lateral edge ribs (10) and intermediate longitudinal ribs (15) extending from the top surface, and bottom ribs (15) extending from the bottom surface (see par. [0121]- the ribs can be positioned on the top and bottom surface of the wings).
Response to Arguments
Applicant’s arguments with respect to the claim(s) 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
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 THEODORE J STIGELL whose telephone number is (571)272-8759. The examiner can normally be reached M-F 9-5:30 EST.
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THEODORE J. STIGELL
Primary Examiner
Art Unit 3783
/THEODORE J STIGELL/Primary Examiner, Art Unit 3783
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