DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
2. This is an office action in response to Applicant's arguments and remarks filed on 02/19/2026. Claims 1, 3-17, and 19-20 are pending in the application. Claims 14-17 have been withdrawn and claims 1, 3-13, and 19-20 are being examined herein.
Status of Objections and Rejections
3. The rejection of claims 1 under 35 U.S.C. 103 as being unpatentable over Lynch in view of Shah, further in view of Lowry is maintained.
The rejection of claims 10 under 35 U.S.C. 103 as being unpatentable over Lynch in view of Shah, further in view of Lowry is withdrawn in view of Applicant's amendment.
New grounds of rejection under 35 U.S.C. 103 are necessitated by the amendments.
Response to Arguments
4. In the arguments presented on 6-8 of the amendment, the Applicant argues that secondary reference Shah fails to teach the recited claim 1 limitation of 4.8 g/s at 94 psi because Shah mentions how too high of a flow rate can lead to an overwhelming fragrance experience, the spray rate is decreased in a compressed gas propellant (i.e., Lynch), and the parameters regarding the insert do play a role on flow rate.
The Examiner does not find these arguments persuasive. Even if Shah cautions away from too high of a spray rate in multiple contexts, this does not take away from the fact that the all of the structural limitations of claim 1 are taught by the Lynch/Shah/Lowry combination (thus, the modified device of the instant combination is fully capable of a spray rate at 4.8 g/s at 94 psi utilizing the defined “SPRAY RATE TEST METHOD” because there is no structural difference between the recited claim 1 structure and said combination). If there truly is a difference between the Lynch/Shah/Lowry combination and the instant application, the Examiner recommends Applicant amend the claim with a structural limitation that sets it apart from the prior art.
Per MPEP 2114,II, claims cover what a device is, not what a device does. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed (i.e., “SPRAY RATE TEST METHOD”) does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim.
In the arguments presented on 8-9 of the amendment, the Applicant argues that Shah teaches an aerosol system and thus would not apply said teachings to a non-aerosol manually-activated trigger sprayer.
Applicant’s arguments with respect to the rejection(s) of claim(s) 10 under 35 U.S.C. 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Dodd (US 6131820 A) evidenced by ScienceInsights (cited in PTO-892 form), further in view of Horiuchi et al. (US 20120018539 A1), further in view of Lynch (US 20180154033 A1).
Claim Interpretation
5. The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
6. This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier.
Such claim limitation(s) is/are:
“RHEOLOGY TEST METHOD” in claim 1;
“SPRAY RATE TEST METHOD” in claims 1 and 10;
“SPRAY D(4,3) NORMALIZED TEST METHOD” in claim 19;
“D(90)” in claim 20.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 103
7. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
8. Claims 1 and 3-9 are rejected under 35 U.S.C. 103 as being unpatentable over Lynch et al. (US 20180154033 A1, provided in Applicant’s IDS filed 12/08/2022), further in view of Shah (US 20130008982 A1, provided in Applicant’s IDS filed 12/08/2022), further in view of Lowry et al. (US 8276835 B2, cited in prior office action).
Regarding claim 1, Lynch teaches a spray product (sprayable product, Fig. 1 and [0103-0106]) comprising: a reservoir ([0023]), a composition contained within a reservoir (“the sprayable product may include a spray engine and a container. The freshening composition may be disposed in the container”, [0106]),
wherein the composition has a yield stress greater than zero and less than 1,000 mPa as determined by the RHEOLOGY TEST METHOD (“the freshening compositions may exhibit a yield stress as measured according to the YIELD STRESS PERFORMANCE METHOD disclosed herein of greater than 0 Pascals (Pa) and less than about 1.0 Pa, or about 0.05 Pa to about 0.5 Pa”, [0113]; because the yield stress is within Applicant’s claimed range, the composition of Lynch fully has the capability of having the claimed yield stress ranges according to Applicant’s RHEOLOGY TEST METHOD) and a viscosity in a range of about 1 mPa-s to about 20 mPa-s (“the spray shear viscosity of the composition may be less than… about 0.02 Pa-s”, [0037], where it is deemed the range of Lynch is disclosed with a low viscosity “in order to be sprayable and/or produce a consumer-acceptable spray pattern”, [0037]; the range as claimed by Lynch is more important on the upper limits of the range (as a higher shear viscosity results in a more difficult time spraying or an inability to spray), so the 0-1 mPa-s discrepancy is thus anticipated; thus, the prior art describes the claimed range with sufficient specificity to anticipate the limitation).
Lynch mentions a testing method for the spray product, comprising an actuator (“the actuator deployed with a consistent force”, [0177]), and a nozzle (“A new bottle with new trigger sprayer and new nozzle is used for each sample replicate analyzed”, [0177]), but is silent to the limitations of a valve in composition communication with the reservoir; an actuator in mechanical communication with the valve; a nozzle having an outlet orifice; a swirl chamber in composition communication with the outlet orifice; and a plurality of swirl chamber inlet channels in composition communication with the swirl chamber, wherein the outlet orifice is defined by an outlet orifice diameter and an outlet orifice axial length, wherein the outlet orifice diameter is at least 0.4 mm, and wherein a ratio of the outlet orifice diameter to the outlet orifice axial length is from about 1.3:1 to about 3.5:1.
Shah teaches an aerosol dispenser (aerosol dispenser assembly 10, Fig. 1) to dispense a compressed gas product ([0027]). The dispenser comes with a composition valve in composition communication with the reservoir (valve assembly 13, Fig. 1, where “valve assembly 13 is used to selectively release the contents from the container 11 to the atmosphere”, [0028]); an actuator in mechanical communication with the valve (actuator body 18 is mounted on top of the valve stem 15, Fig. 1); a nozzle having an outlet orifice (nozzle insert 21 that defines an exit orifice shown generally at 22, Fig. 1); a swirl chamber in composition communication with the outlet orifice (swirl chamber 31, Fig. 2-3); and a plurality of swirl chamber inlet channels in composition communication with the swirl chamber (plurality of inlet ports 30, Fig. 4), wherein the outlet orifice is defined by an outlet orifice diameter (outlet orifice 22 having diameter d-o, Fig. 2) and an outlet orifice axial length (outlet orifice 22 having axial length lO, Fig. 2), wherein a ratio of the outlet orifice diameter to the outlet orifice axial length is from about 1.3 to about 3.5 (adjusting the ratio lO/dO to be in the range of about 0.4 to about 0.6, [0016], to which dO/lO would be 1.67 to 2.5, as this range is more limiting than the applicant’s claimed range).
Applicant’s invention is directed to a spray nozzle for dispensing a structured composition and optimizes the spray characteristics for spraying a composition having a yield stress. Shah teaches optimization for spraying a compressed gas product, of which “the insert, system, and method can provide a dispensed compressed gas product with a remarkably constant flow rate and with a remarkably constant particle size”, which is a form of optimizing a spray (abstract). Lynch teaches a freshening composition with a yield stress that is structurally similar to applicant’s spraying composition. Therefore, Lynch and Shah are both considered to be analogous to the claimed invention.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Lynch’s freshening composition within a spraying container by incorporating Shah’s teachings of a valve to release the container’s spray product, a nozzle having an outlet orifice for dispensing the spray product, a swirl chamber with a plurality of inlet channels to provide a fluid pathway (Shah [0033]), with the outlet orifice diameter having a ratio between 1.67 and 2.5, because doing so minimizes “a change in flow rate of a compressed gas product and minimizing an increase in particle size of the compressed gas product dispensed from a container through a dispenser assembly that includes an insert” (Shah [0016], where insert 21 has the swirl chamber, inlets, and outlet orifice, Fig. 2).
It would have also been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have had a reasonable expectation of success to formulate the claimed range of an outlet orifice diameter of at least 0.4 mm through routine optimization (see MPEP 2144.05,II) because, under the assumption that the ratios in Table 1 and 3 were to be kept constant as shown in Insert A/5 (i.e., the lo, Ds, Ls values were proportioned accordingly for the ratios of listed variables to be identical to that of Insert A/5 when the do value is, for example, 0.4 mm), the outlet orifice diameter being at least 0.4 mm would yield a similar, if not identical spray/flow rate and particle size.
Assuming arguendo, Lowry teaches an aerosol product having an aqueous composition (Fig. 10), to which “the outlet orifice has a diameter of at least 0.3 mm together with the inlet channels being short, such as less than 0.5 mm” (see abstract), which overlaps with Applicant’s claimed range of at least 0.4 mm.
It would have also been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Shah’s modification of a valve to release the container’s spray product, a nozzle having an outlet orifice for dispensing the spray product, a swirl chamber with a plurality of inlet channels to provide a fluid pathway (Shah [0033]), with the outlet orifice diameter having a ratio between 1.67 and 2.5 to Lynch’s spray product composition by incorporating an outlet orifice diameter between 0.3 and 0.5 mm (i.e., between 0.4 to 0.5 mm) because, under the assumption that the ratios in Table 1 and 3 were to be kept constant as shown in Insert A/5 (i.e., the lo, Ds, Ls values were proportioned accordingly for the ratios of listed variables to be identical to that of Insert A/5 when the do value is, for example, 0.4 mm), a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (see MPEP 2144.05,I). The burden is shifted to Applicant to provide evidence on the contrary.
Regarding the limitation “wherein, at a pressure of 94 psi, the spray product produces a spray having a spray rate of at least 4.8 g/s according to the SPRAY RATE TEST METHOD”, this limitation is directed to the function of the apparatus and/or the manner of operating the apparatus. All the structural limitations of the claim has been disclosed by the Lynch/Shah/Lowry and the apparatus of the Lynch/Shah/Lowry combination is capable of spraying at least a rate of 4.8 g/s at a container pressure of 94 psi according to Applicant’s SPRAY RATE TEST METHOD. As such, it is deemed that the claimed apparatus is not differentiated from the applicant' s invention (see MPEP §2114).
NOTE: this is a recitation of intended use / functional language, and so long as the prior art structure reads on the instant claimed structure, this limitation would be met because the same structure would be capable of the same function; in this case, Lynch teaches the composition with a yield stress and viscosity contained within a reservoir, Shah’s modification of a valve, actuator, nozzle, swirl chamber, inlet channels, and ratio of the outlet orifice diameter to the outlet orifice axial length being from about 1.3:1 to 3.5:1, and Lowry’s modification of an outlet orifice diameter of at least 0.4 mm, which is structurally identical to Applicant’s claim 1. Thus the Lynch/Shah/Lowry combination is fully capable of achieving a spray rate of at least 4.8 g/s at a container pressure of 94 psi via Applicant’s SPRAY RATE TEST METHOD.
Per MPEP 2114,II, claims cover what a device is, not what a device does. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim.
Regarding claim 3, modified Lynch teaches a spray product (see claim 1 rejection above), but is silent to the structure of the reservoir/container and the dispenser the spray product is stored in, specifically the ratio of the outlet orifice diameter to outlet orifice axial length being from 1.5 to 3.2.
Shah teaches an aerosol dispenser (aerosol dispenser assembly 10, Fig. 1) to dispense a compressed gas product ([0027]). The dispenser comes with a composition valve in composition communication with the reservoir (valve assembly 13, Fig. 1, where “valve assembly 13 is used to selectively release the contents from the container 11 to the atmosphere”, [0028]); an actuator in mechanical communication with the valve (actuator body 18 is mounted on top of the valve stem 15, Fig. 1); a nozzle having an outlet orifice (nozzle insert 21 that defines an exit orifice shown generally at 22, Fig. 1); a swirl chamber in composition communication with the outlet orifice (swirl chamber 31, Fig. 2-3); and a plurality of swirl chamber inlet channels in composition communication with the swirl chamber (plurality of inlet ports 30, Fig. 4), wherein the outlet orifice is defined by an outlet orifice diameter (outlet orifice 22 having diameter d-o, Fig. 2) and an outlet orifice axial length (outlet orifice 22 having axial length lO, Fig. 2), wherein a ratio of the outlet orifice diameter to the outlet orifice axial length is from about 1.5 to about 3.2 (adjusting the ratio lO/dO to be in the range of about 0.4 to about 0.6, [0016], to which dO/lO would be 1.67 to 2.5, as this range is more limiting than the applicant’s claimed range).
Applicant’s invention is directed to a spray nozzle for dispensing a structured composition and optimizes the spray characteristics for spraying a composition having a yield stress. Shah teaches an optimization for spraying a compressed gas product, of which “the insert, system, and method can provide a dispensed compressed gas product with a remarkably constant flow rate and with a remarkably constant particle size”, which is a form of optimizing a spray (abstract). Lynch teaches a freshening composition with a yield stress that is structurally similar to applicant’s spraying composition. Therefore, Lynch and Shah are both considered to be analogous to the claimed invention.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Lynch’s freshening composition within a spraying container by incorporating Shah’s teachings of a valve to release the container’s spray product, a nozzle having an outlet orifice for dispensing the spray product, a swirl chamber with a plurality of inlet channels to provide a fluid pathway (Shah [0033]), with the outlet orifice diameter having a ratio between 1.67 and 2.5, in order to “minimize a change in flow rate of a compressed gas product and minimizing an increase in particle size of the compressed gas product dispensed from a container through a dispenser assembly that includes an insert” (Shah [0016], where insert 21 has the swirl chamber, inlets, and outlet orifice, Fig. 2).
Regarding claim 4, modified Lynch teaches wherein the composition comprises a plurality of particles and a structurant system (see [0025] and Fig. 1, also [0030-0033]).
Regarding claim 5, modified Lynch teaches wherein the structurant system comprises xanthan gum and a polysaccharide selected from the group consisting of: konjac gum, locust bean gum, tara gum, and combinations thereof (Fig. 1, [0033]).
Regarding claim 6, modified Lynch teaches wherein the spray product further comprises a pre-compression pump assembly (“pre-compression-type trigger sprayer”, [0104]).
Regarding claim 7, modified Lynch teaches wherein the composition has a viscosity in a range of about 1 mPa-s to about 15 mPa-s (less than about 0.02 Pa-s”, [0037]). It is deemed the range of Lynch is disclosed with a low viscosity “in order to be sprayable and/or produce a consumer-acceptable spray pattern” ([0037]). The range as claimed by Lynch is more important on the upper limits of the range (as a higher shear viscosity results in a more difficult time spraying or an inability to spray), so the 0-1 mPa-s discrepancy is thus anticipated. The prior art describes the claimed range with sufficient specificity to anticipate the limitation.
Regarding claim 8, modified Lynch teaches wherein the composition has a viscosity in a range of about 1 mPa-s to about 10 mPa-s (“the spray shear viscosity of the composition may be… less than about 0.01 Pa-s”, [0037]). It is deemed the range of Lynch is disclosed with a low viscosity “in order to be sprayable and/or produce a consumer-acceptable spray pattern” ([0037]). The range as claimed by Lynch is more important on the upper limits of the range (as a higher shear viscosity results in a more difficult time spraying or an inability to spray), so the 0-1 mPa-s discrepancy is thus anticipated. The prior art describes the claimed range with sufficient specificity to anticipate the limitation.
Regarding claim 9, modified Lynch teaches wherein the composition has a viscosity in a range of about 1 mPa-s to about 5 mPa-s (“the spray shear viscosity of the composition may be… less than about 0.01 Pa-s”, [0037]). It is deemed the range of Lynch is disclosed with a low viscosity “in order to be sprayable and/or produce a consumer-acceptable spray pattern” ([0037]). The range as claimed by Lynch is more important on the upper limits of the range (as a higher shear viscosity results in a more difficult time spraying or an inability to spray), so the 0-1 mPa-s discrepancy is thus anticipated. The prior art describes the claimed range with sufficient specificity to anticipate the limitation.
9. Claims 10-13 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Dodd (US 6131820 A) evidenced by ScienceInsights (cited in PTO-892 form), further in view of Horiuchi et al. (US 20120018539 A1), further in view of Lynch (US 20180154033 A1).
Regarding claim 10, Dodd teaches a spray product (a manually actuated pump dispenser 20, Fig. 1) comprising:
a reservoir (container 22, Fig. 1);
a composition contained within the reservoir (liquid product in container 22, Fig. 1 and col.2, lines 50-51),
a pump assembly in composition communication with the reservoir (pump body 21, Fig. 1 and col.2, lines 49-51), the pump assembly comprising a piston (piston 28, Fig. 1);
a valve in composition communication with the pump assembly (valve assembly 54, Fig. 1);
a manually-activated spray actuator (trigger actuator 33, Fig. 1) in mechanical communication with the valve (col. 4, 2nd paragraph);
a nozzle (nozzle cap 43, Fig. 1) having an outlet orifice (44, Fig. 1);
wherein the spray product is a non-aerosol manually-actuated trigger sprayer (Fig. 1 and “trigger actuated pump sprayer” stated in abstract, where non-aerosol is inherent to this trigger sprayer because, as ScienceInsights evidences, “Non-aerosol means a product that dispenses its contents without using pressurized gas. Instead of relying on a chemical propellant sealed inside a pressurized can, non-aerosol products use a mechanical pump, trigger, or squeeze mechanism that you activate with your own hand”, p.1, 1st paragraph).
Dodd fails to teach the features of:
a swirl chamber in composition communication with the outlet orifice; and
a plurality of swirl chamber inlet channels in composition communication with the swirl chamber,
wherein the outlet orifice is defined by an outlet orifice diameter and an outlet orifice axial length, wherein the outlet orifice diameter is at least 0.4 mm, and wherein a ratio of the outlet orifice diameter to the outlet orifice axial length is from about 1.3:1 to about 3.5:1.
Horiuchi teaches a manually-actuated trigger sprayer (1, Fig. 1-3 and “trigger-type pump”, [0028]) having a swirl chamber in composition communication with the outlet orifice (rotation chamber 20 in communication with outlet orifice 21, Fig. 1-2) and a plurality of swirl chamber inlet channels in composition communication with the swirl chamber (spray grooves 18 in fluid communication with rotation chamber 20, Fig. 2) in order to form a strong swirling flow for the content to be sprayed outside via the orifice ([0028]).
Horiuchi also teaches wherein the outlet orifice (21, Fig. 1) is defined by an outlet orifice diameter (Da, Fig. 3) and an outlet orifice axial length (La, Fig. 3), wherein the outlet orifice diameter is at least 0.4 mm (Table 1, Example 1 having Da at 0.4 mm), and wherein a ratio of the outlet orifice diameter to the outlet orifice axial length is from about 1.3:1 to about 3.5:1 (Table 1, Example 1 having La at 0.2 mm means the ratio of Da/La = 2.0), for the purpose of providing a wide-spraying angle ([0037]).
Dodd and Horiuchi are both considered to be analogous to the claimed invention because they are in the same field of manually-actuated trigger sprayers.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to: one, modify the spraying pump assembly of Dodd by incorporating a swirl chamber having a plurality of swirl chamber inlet channels as taught by Horiuchi in order to provide a strong swirling flow for the content to be sprayed outside via the orifice (Horiuchi, [0028]); and two, modify the nozzle cap’s outlet orifice of Dodd by incorporating a outlet orifice diameter of 0.4 mm and outlet axial length of 0.2 mm in order to provide a wide-spraying angle (Horiuchi, [0037]).
Modified Dodd teaches a composition contained within the reservoir, but is silent to the material composition of the liquid product, thus failing to teach “wherein the composition comprises a plurality of particles and a structurant system comprising xanthan gum a polysaccharide selected from the group consisting of: konjac gum, locust bean gum, tara gum, and combinations thereof”.
Lynch teaches a spray product that can be dispensed via a direct compression-type trigger sprayer ([0104]), wherein the composition comprises a plurality of particles and a structurant system comprising xanthan gum a polysaccharide selected from the group consisting of: konjac gum, locust bean gum, tara gum, and combinations thereof ([0007-0009]) in order to provide a freshening/deodorizing effect ([0005]).
Modified Dodd and Lynch are both considered to be analogous to the claimed invention because they are in the same field of manually-actuated trigger sprayers for liquid compositions.
Therefore, 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 liquid product of modified Dodd with the composition as taught by Lynch in order to provide a freshening/deodorizing effect (Lynch, [0005]).
Regarding the limitation “wherein, at a pressure of 94 psi, the spray product produces a spray having a spray rate of at least 4.8 g/s according to the SPRAY RATE TEST METHOD”, this limitation is directed to the function of the apparatus and/or the manner of operating the apparatus. All the structural limitations of the claim has been disclosed by the Dodd/Horiuchi/Lynch combination and the apparatus of the Dodd/Horiuchi/Lynch combination is capable of spraying at least a rate of 4.8 g/s at a container pressure of 94 psi according to Applicant’s SPRAY RATE TEST METHOD. As such, it is deemed that the claimed apparatus is not differentiated from the applicant' s invention (see MPEP §2114).
NOTE: this is a recitation of intended use / functional language, and so long as the prior art structure reads on the instant claimed structure, this limitation would be met because the same structure would be capable of the same function; in this case, Dodd in view of Horiuchi teaches a manually-activated trigger sprayer with the disclosed orifice parameters having a spraying composition, where Lynch teaches the spraying composition comprising a structurant system and a polysaccharide identical to Applicant’s claim 10, which is structurally identical to Applicant’s claim 10. Thus the Dodd/Horiuchi/Lynch combination is fully capable of yielding a spray rate of at least 4.8 g/s at a container pressure of 94 psi via Applicant’s SPRAY RATE TEST METHOD.
Per MPEP 2114,II, claims cover what a device is, not what a device does. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim.
Regarding claim 11, Lynch in the Dodd/Horiuchi/Lynch combination teaches wherein the composition has a viscosity in a range of about 1 mPa-s to about 20 mPa-s (“the spray shear viscosity of the composition may be… less than about 0.02 Pa-s”, [0037]). It is deemed the range of Lynch is disclosed with a low viscosity “in order to be sprayable and/or produce a consumer-acceptable spray pattern” ([0037]). The range as claimed by Lynch is more important on the upper limits of the range (as a higher shear viscosity results in a more difficult time spraying or an inability to spray), so the 0-1 mPa-s discrepancy is thus anticipated. The prior art describes the claimed range with sufficient specificity to anticipate the limitation.
Regarding claim 12, Horiuchi in the Dodd/Horiuchi/Lynch combination teaches wherein the ratio of the outlet orifice diameter to the outlet orifice axial length is from about 1.5:1 to about 3.2:1 (Table 1, Example 1 having Da at 0.4 mm and La at 0.2 mm means the ratio of Da/La = 2.0).
Regarding claim 13, modified Dodd teaches wherein the spray product further comprises a pre-compression pump assembly (“each inward (pressure) stroke applied to the piston upon each pull of the trigger increases the pressure of the liquid at the upstream side of valve 55 causing at least a portion of the valve periphery to disengage from inner wall 56 to thereby open the discharge permitting liquid under pressure to flow through passage 62 and out through orifice 44 as a spray or a stream”, col.4, 2nd paragraph).
Regarding claim 19, the limitation of “wherein the spray has a droplet volume size distribution D(4,3) value in a range of about 120 pm to about 300 pm” is an inherent result in view of the recited claim 10 structure taught by the Dodd/Horiuchi/Lynch combination with the intended use of “the SPRAY D(4,3) NORMALIZED TEST METHOD”. Thus, these limitations are directed to the function of the apparatus and/or the manner of operating the apparatus. All the structural limitations of the claim has been disclosed by the Dodd/Horiuchi/Lynch combination and the apparatus of the Dodd/Horiuchi/Lynch combination is capable of yielding the spray having a droplet volume size distribution D(4,3) value in a range of about 120 pm to about 300 pm when utilizing the SPRAY D(4,3) NORMALIZED TEST METHOD. As such, it is deemed that the claimed apparatus is not differentiated from the applicant' s invention (see MPEP §2114).
NOTE: this is a recitation of intended use / functional language, and so long as the prior art structure reads on the instant claimed structure, this limitation would be met because the same structure would be capable of the same function; in this case, Dodd in view of Horiuchi teaches a manually-activated trigger sprayer with the disclosed orifice parameters having a spraying composition, where Lynch teaches the spraying composition comprising a structurant system and a polysaccharide identical to Applicant’s claim 10, which is structurally identical to Applicant’s claim 10. Thus the Dodd/Horiuchi/Lynch combination is fully capable of yielding the spray having a droplet volume size distribution D(4,3) value in a range of about 120 pm to about 300 pm when utilizing the SPRAY D(4,3) NORMALIZED TEST METHOD.
Regarding claim 20, the limitation of “wherein the spray has a D(90) in a range of about 218 m to about 554 pm” is an inherent result in view of the recited claim 10 structure taught by the Dodd/Horiuchi/Lynch combination with the intended use of “the SPRAY D(90) NORMALIZED TEST METHOD”. Thus, these limitations are directed to the function of the apparatus and/or the manner of operating the apparatus. All the structural limitations of the claim has been disclosed by the Dodd/Horiuchi/Lynch combination and the apparatus of the Dodd/Horiuchi/Lynch combination is capable of yielding the spray has a D(90) in a range of about 218 m to about 554 pm when utilizing the SPRAY D(90) NORMALIZED TEST METHOD. As such, it is deemed that the claimed apparatus is not differentiated from the applicant' s invention (see MPEP §2114).
NOTE: this is a recitation of intended use / functional language, and so long as the prior art structure reads on the instant claimed structure, this limitation would be met because the same structure would be capable of the same function; in this case, Dodd in view of Horiuchi teaches a manually-activated trigger sprayer with the disclosed orifice parameters having a spraying composition, where Lynch teaches the spraying composition comprising a structurant system and a polysaccharide identical to Applicant’s claim 10, which is structurally identical to Applicant’s claim 10. Thus the Dodd/Horiuchi/Lynch combination is fully capable of yielding the spray has a D(90) in a range of about 218 m to about 554 pm when utilizing the SPRAY D(90) NORMALIZED TEST METHOD.
Conclusion
10. 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.
11. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Aham Lee whose telephone number is (703)756-5622. The examiner can normally be reached Monday to Thursday, 10:00 AM - 8:00 PM EST.
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/Aham Lee/Examiner, Art Unit 1758
/MARIS R KESSEL/Supervisory Patent Examiner, Art Unit 1758