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 .
Response to Amendment
Claims 1, 6, 9-11, 14, 20-27 are pending.
Claims 26, and 27 are newly added.
Claims 1, 6, 9, 10, 20, 24 are currently amended.
Claims 2-5, 7-8, 12, 13 are canceled.
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 (i.e., changing from AIA to pre-AIA ) 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.
Claim(s) 1, 6, 9, 10, 11,14, 23, and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mmondon (Travel Containers Travel Size Bottles with Flip Cap Squeezable Refillable Toiletry (clear), NPL) in view of Unicorn (Article name: Sliding Doors (1997); NPL) and Menceles (US 20040040959).
Regarding claim 1, Mmondon discloses, A container comprising a floor (See annotated fig. below), a side wall (See annotated fig. below) arranged to extend upwardly from the floor, and a filler neck (See annotated fig. below) coupled to an upper end of the side wall and arranged to extend upwardly from the side wall, wherein the floor, the side wall, and the filler neck include a polymeric material (Material: PET plastic) and define an interior product-receiving space, wherein the overall profile is provided by a height of the container, a length of the container, and a width of the container, wherein: (i) two of the height, the length, and the width are less than or equal to 8.9916 centimeters (3.54 inches) (See annotated fig. below), and (ii) one of the height, the length and the width is less than or equal to 3.81 centimeters (1.5 inches) (See annotated fig. below).
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Mmondon does not explicitly disclose the volume is about 54 milliliters.
Unicorn discloses a container having volume of 54 ml and therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Mmondon to have volume of 54 ml as taught by Unicorn for the purpose of holding extra content.
With regards to the limitation “wherein the container has an overall profile that is greater than a predetermined, reclaim profile defined by a rectangular aperture formed in a sorting screen, the rectangular aperture having a length equal to 5.0038 centimeters (1.97 in.) and a width equal to 3.7084 centimeters (1.46 inches),” by meeting the limitations of the previous paragraph “a container with height and length of 3.54 in. or less and a width of 1.5 in of less”, then the overall profile should be greater than that of the rectangular aperture with “a length less than or equal to 5.08 centimeters (2 inches) and a width less than or equal to 3.81 centimeters (1.5 inches)”, and thereby preventing the bottle from passing through.
The limitation “such that the container cannot pass through the rectangular aperture at any orientation” is considered to be intended use. Examiner asserts that the recitation of intended use or purpose of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use or fulfilling said purpose, then it meets the claim.
Mmondon discloses, the height to be greater than 2 inches and less than or equal to 3.54 inches, the length of the container is less than or equal to 2.425 in and, however fails to disclose, the length to be greater than or equal to 2 inches and width to be 1.15 inches. Menceles is in the field of endeavor and discloses to have bottles of many sizes depending on the purpose (para20).It is considered to be a matter of design choice. It would have been an obvious matter of design choice to have length of the bottle to be 2.425 in. and width to be 1.15 inches suggested by Menceles since such a modification would have involved a mere change in the size of a component and would allow for the container to fit in a small space when traveling or storing in a cabinet while also providing improved stability as a result of the wider base. A change in size is generally recognized as being within the level of ordinary skill in the art. 1
Regarding claim 6, Mmondon discloses, wherein the height of the container is defined between a bottom of the floor to a top of the filler neck (See annotated fig. of claim 1), the length of the container is defined between a first side of the side wall to an opposite second side of the side wall (See annotated fig. below), and the width of the container is defined between a front of the side wall and a back of the side wall (See annotated fig. below).
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Regarding claim 9, Mmondon discloses, A container comprising a floor (See annotated fig. below), a side wall (See annotated fig. below) arranged to extend upwardly from the floor, and a filler neck (See annotated fig. below) coupled to an upper end of the side wall and arranged to extend upwardly from the side wall, wherein the floor, the side wall, and the filler neck include a polymeric material (Material: PET plastic)and define an interior product-receiving space having a volume within a range of about 50 milliliters to about 60 milliliters (Capacity: 50 ml / 1.7 oz) , wherein a height of the container is defined between a bottom of the floor to a top of the filler neck (See annotated fig. below), a length of the container is defined between a first side of the side wall to an opposite second side of the side wall (See annotated fig. below), and a width of the container is defined between a front of the side wall and a back of the side wall (See annotated fig. below).
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Mmondon discloses a height greater than or equal to 5.08 centimeters (2 inches) but does not disclose, a length greater than 2 inches and a width less than or equal to 1 inch.
Menceles is in the field of endeavor and discloses to have bottles of many sizes depending on the purpose (para20).It is considered to be a matter of design choice. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Mmondon to have a length of 2.425 inches and a width to be 1 inch as suggested by Menceles since such a modification would have involved a mere change in the size of a component and would allow for the container to fit in a small space when traveling or storing in a cabinet while also providing improved stability as a result of the wider base. A change in size is generally recognized as being within the level of ordinary skill in the art. 2
Regarding claim 10, with regards to the limitation “wherein the container has an overall profile that is greater than a predetermined, reclaim profile defined by a rectangular aperture formed in a sorting screen, the rectangular aperture having a length equal to 5.0038 centimeters (1.97 inches) and a equal to 3.7084 centimeters (1.46 inches),” by meeting the limitations of the previous independent claim 9 “wherein two of the height, the length, and the width of the container are greater than or equal to 5.08 centimeters (2 inches), and one of the height, the length, and the width of the container is less than or equal to 2.54 centimeters (1 inch).”, the overall profile should be greater than that of the rectangular aperture with “a length less than or equal 5.0038 centimeters (1.97 inches) and a width less than or equal to 3.7084 centimeters (1.46 inches)”, and thereby preventing the bottle from passing through.
The limitation “such that the container cannot pass through the rectangular aperture at any orientation” is considered to be intended use. Examiner asserts that the recitation of intended use or purpose of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use or fulfilling said purpose, then it meets the claim. Herein, Mmondon as modified has the structures and therefore, is capable of performing the limitation as claimed.
Regarding claim 11, Mmondon as modified discloses, the height of the container is less than or equal to 8.9916 centimeters (3.54 inches) (See annotated fig. of claim 9), the length of the container is less than or equal to 6.1595 centimeters (2.425 inches), and the width of the container is less than or equal to 2.54 centimeters (1 inch) (See claim 9 as modified).
Regarding claim 14, Mmondon disclose, the container.
While Mmondon does not disclose the limitation “the container is configured to maintain a profile greater than the predetermined, reclaim profile after being subjected to a compression force of at least 10 psi” is considered to be functional language. The prior art of Mmondon as modified has all the structures required perform the claimed functional limitation. Hence, the prior art is inherently capable of performing the limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the claim is not patentable and is fully met by the reference. (See MPEP 2114(I)). See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. Herein, since both prior art as modified and instant application are the same, the prior art in inherently capable of performing the limitation.
Regarding claim 23, the limitation “the overall profile provides means for blocking the container from passing all the way through the rectangular aperture at any orientation relative to the rectangular aperture and for establishing a predetermined volume of the container equal to the volume.” is considered to be intended use. Examiner asserts that the recitation of intended use or purpose of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use or fulfilling said purpose, then it meets the claim. Herein, since the container of Mmondon as modified has the overall profile, it is capable of performing limitation as claimed.
Regarding claim 26, Mmondon discloses, the filler neck has a diameter less than the length and the width.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mmondon-Unicorn-Menceles or as applied to claim 9 in view of Unicorn (Article name: Sliding Doors (1997); NPL).
Regarding claim 20 Mmondon does not explicitly disclose the volume is about 55 milliliters and
Unicorn discloses a container having volume of 54 ml and therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Mmondon to have volume of 54 ml as taught by Unicorn for the purpose of holding extra content.
Mmondon as modified discloses a volume of 54 ml; the term about is used to account for slight manufacturing tolerances, and the volume may be within 2 milliliters of the stated value and therefore Mmondon as modified considered to have met the scope of limitation as claimed since 54 is within the claimed range.
Claim(s) 21-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mmondon (Travel Containers Travel Size Bottles with Flip Cap Squeezable Refillable Toiletry (clear), NPL) in view of Durand (US 20080245757).
Regarding claim 21, Mmondon discloses, A container comprising a floor (See annotated fig. below), a side wall (See annotated fig. below) arranged to extend upwardly from the floor, and a filler neck (See annotated fig. below) coupled to an upper end of the side wall and arranged to extend upwardly from the side wall, wherein the floor, the side wall, and the filler neck include a polymeric material (Material: PET plastic) and define an interior product-receiving space having a volume within a range of about 50 milliliters to about 60 milliliters (Capacity: 50 ml / 1.7 oz), and wherein: (i) two of the height, the length, and the width are less than or equal to 8.9916 centimeters (3.54 inches) (See annotated fig. below), and (ii) one of the height, the length and the width is less than or equal to 3.81 centimeters (1.5 inches) (See annotated fig. below), wherein the overall profile is provided by a height of the container, a length of the container, and a width of the container
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With regards to the limitation “wherein the container has an overall profile that is greater than a predetermined, reclaim profile defined by a rectangular aperture formed in a sorting screen, the rectangular aperture having a length equal to about 5.08 centimeters (2 inches) and a width equal to about 3.81 centimeters (1.5 inches),” by meeting the limitations of the previous paragraph “a container with height and length of 3.54 in. or less and a width of 1.5 in of less”, then the overall profile should be greater than that of the rectangular aperture with “a length equal to about 5.08 centimeters (2 inches) and a width equal to about 3.81 centimeters (1.5 inches)”, and thereby preventing the bottle from passing through.
The limitation “such that the container cannot pass through the rectangular aperture at any orientation” is considered to be intended use. Examiner asserts that the recitation of intended use or purpose of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use or fulfilling said purpose, then it meets the claim.
However, Mmondon does not disclose, the container has a weight less than or equal to 15 grams.
Durand discloses, a container having a weight less than 15 grams (para 21).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Mmondon to have container that has a weight less than 15 grams as taught by Durand since they are “cheaper to produce, and are also particularly environment-friendly.” (Para 3; Durand).
Regarding claim 22, Mmondon as above, discloses, the container. The limitations “the container has a top load resistance greater than 100 lbf.” is considered to be functional language. The prior art of Mmondon has all the structures required perform the claimed functional limitation. Since, the prior art of Mmondon as modified has bottle that is substantially identical to that of the claims; claimed properties or function are presumed to be inherent. See MPEP 2112.01. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the claim is not patentable and is fully met by the reference. (See MPEP 2114(I)). See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art.
Claim(s) 24, and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mmondon – Unicorn-Menceles as applied to claim 1 above, and further in view of Durand (US 20080245757).
Regarding claim 24, Mmondon as modified does not disclose, the container has a weight less than or equal to 15 grams.
Durand discloses, a container having a weight less than 15 grams (para 21).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Mmondon to have container that has a weight less than 15 grams as taught by Durand since they are “cheaper to produce, and are also particularly environment-friendly.” (Para 3; Durand)
Regarding claim 25, Mmondon as above, discloses, the container. The limitations “the container has a top load resistance greater than 190 lbf.” is considered to be functional language. The prior art of Mmondon has all the structures required perform the claimed functional limitation. Since, the prior art of Mmondon as modified has bottle that is substantially identical to that of the claims; claimed properties or function are presumed to be inherent. See MPEP 2112.01. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the claim is not patentable and is fully met by the reference. (See MPEP 2114(I)). See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art.
Claim(s) 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mmondon-Unicorn-Menceles as applied to claim 1 above, and further in view of Weaver (US 5261544).
Regarding claim 27, Mmondon as modified does not disclose the sidewall is formed to include an upper side wall ridge extending along the width and a lower side wall ridge extending along a width and spaced apart from the upper side wall ridge, the upper and lower side wall ridges being spaced further from a central axis of the filler neck than a panel positioned vertically between the upper and lower side wall ridges.
Weaver discloses, sidewall is formed to include an upper side wall ridge (35a) extending along the width and a lower side wall ridge (35b) extending along a width and spaced apart from the upper side wall ridge (Fig. 1) , the upper and lower side wall ridges being spaced further from a central axis of the filler neck than a panel positioned vertically between the upper and lower side wall ridges.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Mmondon to incorporate sidewall is formed to include an upper side wall ridge extending along the width and a lower side wall ridge extending along a width and spaced apart from the upper side wall ridge, the upper and lower side wall ridges being spaced further from a central axis of the filler neck than a panel positioned vertically between the upper and lower side wall ridges as taught by Weaver for the purpose of enabling the container to be gripped securely (Col. 3; lines 59-66).
Claim(s) 1, 6, 9-11, 14, and 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sinide (Refillable & Reusable Travel Containers, NPL) in view of Menceles (US 20040040959).
Regarding claim 1, Sinide discloses, A container comprising a floor (See annotated fig. below), a side wall (See annotated fig. below) arranged to extend upwardly from the floor, and a filler neck (See annotated fig. below) coupled to an upper end of the side wall and arranged to extend upwardly from the side wall, wherein the floor, the side wall, and the filler neck include a polymeric material (Material description: Material Plastic) and define an interior product-receiving space.
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Sinide does not explicitly disclose the volume is about 54 milliliters and 55 ml respectively .
Unicorn discloses a container having volume of 54 ml and therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Sinide to have volume of 54 ml as taught by Unicorn for the purpose of holding extra content.
Sinide is designed for travel and therefore concerned with size, while Sinide does not explicitly disclose, wherein: (i) two of the height, the length, and the width are less than or equal to 8.9916 centimeters (3.54 inches), and (ii) one of the height, the length and the width is less than or equal to 3.81 centimeters (1.5 inches); Menceles is in the field of endeavor and discloses to have bottles of many sizes depending on the purpose (para20).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Sinide to have a container with height and length of 3.54 in. or less and a width of 1.5 in of less as suggested by Menceles since such a modification would have involved a mere change in the size of a component and would allow for the container to fit in a small space when traveling or storing in a cabinet.
With regards to the limitation “wherein the container has an overall profile that is greater than a predetermined, reclaim profile defined by a rectangular aperture formed in a sorting screen, the rectangular aperture having a length equal to about 5.0038 centimeters (1.97 inches) and a width equal to about 3.7084 centimeters (1.46 inches),” by meeting the limitations of the previous paragraph “a container with height and length of 3.54 in. or less and a width of 1.5 in of less”, the overall profile should be greater than that of the rectangular aperture with “a length less than or equal to 5.0038 centimeters (1.97 inches) and a width less than or equal to 3.7084 centimeters (1.46 inches)”, and thereby preventing the bottle from passing through.
The limitation “such that the container cannot pass through the rectangular aperture at any orientation” is considered to be intended use. Examiner asserts that the recitation of intended use or purpose of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use or fulfilling said purpose, then it meets the claim. Herein, the prior art of Sinide has the structure as claimed and therefore is considered to be capable of performing this limitation as claimed.
Sinide does not explicitly discloses, wherein at least the two of the height, the length, and the width of the container are greater than or equal to 5.08 centimeters (2 inches) and the height of the container is less than or equal to 8.9916 centimeters (3.54 inches), the length of the container is less than or equal to 6.1595 centimeters (2.425 inches), and the width of the container is less than or equal to (1.15 inches). Menceles is in the field of endeavor and discloses to have bottles of many sizes depending on the purpose (para20).It is considered to be a matter of design choice. It would have been an obvious matter of design choice to have at least the two of the height, the length, and the width of the container are greater than or equal to 5.08 centimeters (2 inches) and the height of the container is less than or equal to 8.9916 centimeters (3.54 inches), the length of the container is less than or equal to 6.1595 centimeters (2.425 inches), and the width of the container is less than or equal to (1.15 inches), as suggested by Menceles since such a modification would have involved a mere change in the size of a component and would allow for the container to fit in a small space when traveling or storing in a cabinet. A change in size is generally recognized as being within the level of ordinary skill in the art. 3
Regarding claim 6, Sinide discloses, wherein the height of the container is defined between a bottom of the floor to a top of the filler neck, the length of the container is defined between a first side of the side wall to an opposite second side of the side wall, and the width of the container is defined between a front of the side wall and a back of the side wall.
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Regarding claim 9, Sinide discloses, A container comprising a floor (See annotated fig. below), a side wall (See annotated fig. below)arranged to extend upwardly from the floor, and a filler neck (See annotated fig. below) coupled to an upper end of the side wall and arranged to extend upwardly from the side wall, wherein the floor, the side wall, and the filler neck include a polymeric material (See product description) define an interior product-receiving space having a volume within a range of about 50 milliliters to about 60 milliliters (Product description Included Components4 x 50ML Spray Bottles (Mixed Color)). Wherein a height of the container is defined between a bottom of the floor to a top of the filler neck (See annotated fig. below), a length (See annotated fig. below) of the container is defined between a first side of the side wall to an opposite second side of the side wall, and a width (See annotated fig. below) of the container is defined between a front of the side wall and a back of the side wall.
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However, Sinide does not explicitly disclose wherein two of the height, the length, and the width of the container are greater than or equal to 5.08 centimeters (2 inches), and one of the height, the length, and the width of the container is less than or equal to 2.54 centimeters (1 inch), Menceles is in the field of endeavor and discloses to have bottles of many sizes depending on the purpose (para 20).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Sinide to have a container wherein two of the height, the length, and the width of the container are greater than or equal to 5.08 centimeters (2 inches), and one of the height, the length, and the width of the container is less than or equal to 2.54 centimeters (1 inch) as suggested by Menceles since such a modification would have involved a mere change in the size of a component and would allow for the container to fit in a small space when traveling or storing in a cabinet.
Regarding claim 10, Sinide discloses, the container has an overall profile.
With regards to the limitation “the container has an overall profile that is greater than a predetermined, reclaim profile defined by a rectangular aperture formed in a sorting screen, the rectangular aperture having a length less than or equal to 5.0038 centimeters (1.97 inches) and a width less than or equal to 3.7084 centimeters (1.46 inches)” by meeting the limitations of the previous independent claim 9 “wherein two of the height, the length, and the width of the container are greater than or equal to 5.08 centimeters (2 inches), and one of the height, the length, and the width of the container is less than or equal to 2.54 centimeters (1 inch).”, the overall profile should be greater than that of the rectangular aperture with “a length less than or equal 5.0038 centimeters (1.97 inches) and a width less than or equal to 3.7084 centimeters (1.46 inches)”, and thereby preventing the bottle from passing through.
The limitation “such that the container cannot pass through the rectangular aperture at any orientation” is considered to be intended use. Examiner asserts that the recitation of intended use or purpose of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use or fulfilling said purpose, then it meets the claim.
Regarding claim 11, Sinide does not explicitly disclose, the height of the container is less than or equal to 8.9916 centimeters (3.54 inches), the length of the container is less than or equal to 6.1595 centimeters (2.425 inches), and the width of the container is less than or equal to 2.54 centimeters (1 inch). Menceles is in the field of endeavor and discloses to have bottles of many sizes depending on the purpose (para20). It is considered to be a matter of design choice. It would have been an obvious matter of design choice to have the height of the container is less than or equal to 8.9916 centimeters (3.54 inches), the length of the container is less than or equal to 6.1595 centimeters (2.425 inches), and the width of the container is less than or equal to 2.54 centimeters (1 inch), as suggested by Menceles since such a modification would have involved a mere change in the size of a component and would allow for the container to fit in a small space when traveling or storing in a cabinet. A change in size is generally recognized as being within the level of ordinary skill in the art.4
Regarding claim 14, Sinide disclose, the container.
While Sinide does not disclose the limitation “the container is configured to maintain a profile greater than the predetermined, reclaim profile after being subjected to a compression force of at least 10 psi” is considered to be functional language. The prior art of Sinide as modified has all the structures required perform the claimed functional limitation. Hence, the prior art is inherently capable of performing the limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the claim is not patentable and is fully met by the reference. (See MPEP 2114(I)). See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. Herein, since both prior art as modified and instant application are the same, the prior art in inherently capable of performing the limitation.
Regarding claim 23, the limitation “the overall profile provides means for blocking the container from passing all the way through the rectangular aperture at any orientation relative to the rectangular aperture and for establishing a predetermined volume of the container equal to the volume.” is considered to be intended use. Examiner asserts that the recitation of intended use or purpose of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use or fulfilling said purpose, then it meets the claim. Herein, since the container of Sinide as modified has the overall profile, it is capable of performing limitation as claimed.
Claim(s) 21-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sinide (Refillable & Reusable Travel Containers, NPL) in view of Durand (US 20080245757).
Regarding claim 21, Sinide discloses, Regarding claim 1, Sinide discloses, A container comprising a floor (See annotated fig. below), a side wall (See annotated fig. below) arranged to extend upwardly from the floor, and a filler neck (See annotated fig. below) coupled to an upper end of the side wall and arranged to extend upwardly from the side wall, wherein the floor, the side wall, and the filler neck include a polymeric material (Material description: Material: Plastic) and define an interior product-receiving space having a volume within a range of about 50 milliliters to about 60 milliliters (Product description Included Components4 x 50ML Spray Bottles (Mixed Color)).
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Sinide is designed for travel and therefore concerned with size, while Sinide does not explicitly disclose, wherein: (i) two of the height, the length, and the width are less than or equal to 8.9916 centimeters (3.54 inches), and (ii) one of the height, the length and the width is less than or equal to 3.81 centimeters (1.5 inches); Menceles is in the field of endeavor and discloses to have bottles of many sizes depending on the purpose (para20).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Sinide to have a container with height and length of 3.54 in. or less and a width of 1.5 in of less as suggested by Menceles since such a modification would have involved a mere change in the size of a component and would allow for the container to fit in a small space when traveling or storing in a cabinet.
With regards to the limitation “wherein the container has an overall profile that is greater than a predetermined, reclaim profile defined by a rectangular aperture formed in a sorting screen, the rectangular aperture having a length equal to about 5.08 centimeters (2 inches) and a width equal to about 3.81 centimeters (1.5 inches),” by meeting the limitations of the previous paragraph “a container with height and length of 3.54 in. or less and a width of 1.5 in of less”, the overall profile should be greater than that of the rectangular aperture with “a length equal to about 5.08 centimeters (2 inches) and a width equal to about 3.81 centimeters (1.5 inches)”, and thereby preventing the bottle from passing through.
The limitation “such that the container cannot pass through the rectangular aperture at any orientation” is considered to be intended use. Examiner asserts that the recitation of intended use or purpose of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use or fulfilling said purpose, then it meets the claim. However, Sinide does not disclose, the container has a weight less than or equal to 15 grams.
Durand discloses, a container having a weight less than 15 grams (para 21).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Sinide to have container that has a weight less than 15 grams as taught by Durand since they are “cheaper to produce, and are also particularly environment-friendly.” (Para 3; Durand)
Regarding claim 22, Sinide as above, discloses, the container. The limitations “the container has a top load resistance greater than 100 lbf.” is considered to be functional language. The prior art of Sinide has all the structures required perform the claimed functional limitation. Since, the prior art of Sinide as modified has bottle that is substantially identical to that of the claims; claimed properties or function are presumed to be inherent. See MPEP 2112.01. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the claim is not patentable and is fully met by the reference. (See MPEP 2114(I)). See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art.
Claim(s) 24, and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sinide- Menceles as applied to claim 9 above, and further in view of Durand (US 20080245757).
Regarding claim 24, Sinide as modified does not disclose, the container has a weight less than or equal to 15 grams.
Durand discloses, a container having a weight less than 15 grams (para 21).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Sinide to have container that has a weight less than 15 grams as taught by Durand since they are “cheaper to produce, and are also particularly environment-friendly.” (Para 3; Durand)
Regarding claim 25, Sinide as above, discloses, the container. The limitations “the container has a top load resistance greater than 190 lbf.” is considered to be functional language. The prior art of Sinide has all the structures required perform the claimed functional limitation. Since, the prior art of Sinide as modified has bottle that is substantially identical to that of the claims; claimed properties or function are presumed to be inherent. See MPEP 2112.01. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the claim is not patentable and is fully met by the reference. (See MPEP 2114(I)). See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sinide-Menceles as applied to claim 9 in view of Unicorn (Article name: Sliding Doors (1997); NPL).
Sinide does not explicitly disclose the volume is about 55 ml respectively .
Unicorn discloses a container having volume of 54 ml and therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Sinide to have volume of 54 ml as taught by Unicorn for the purpose of holding extra content.
Regarding claim 20, While, Sinide as modified discloses a volume of 54 ml; the term about is used to account for slight manufacturing tolerances, and the volume may be within 2 milliliters of the stated value and therefore Sinide as modified considered to have met the scope of limitation as claimed since 54 is within the claimed range.
Response to Arguments
Applicant's arguments filed 11/25/2025 have been fully considered but they are not persuasive.
Firstly, The applicant argues that the instant application will fall through the aperture due to the length and width of the bottle. The prior art of Mmondon is modifed to be just as the instant application. The instant application according to currently amended claim 1 has a length less than or equal to 2.452 inches and width 1.15 inches while the aperture has a length 1.97 in and width 1.46 in. The instant application claims the bottle of such dimension would not pass the aperture, as such the prior art as modified is not expected to pass either since the length of the modified container is 2.425 inches and width 1.15 inches . The prior art as modified and the instant application as claimed has the same dimension and therefore is expected to behave/perform the same.
The applicant argues that the prior art of Sinide does not teach any dimension and Sinide as modified is purely hindsight. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). The prior art of Sinide discloses all the structure as claimed except for the dimension. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit 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. Herein, the only different between the prior art and the instant application is sizing which is within the scope of one of ordinary skill in the art absent of unexpected result. Bottles come in many different sizes and shapes and it well known to make bottles of different dimension. Prior art such as Menceles explicitly discloses and provides evidence that these bottles come in many shapes and sizes.
The applicant further argues that the modification of Sinide's dimension will impact volume, to that the examiner also respectfully disagrees. The dimension can be changed without changing the volume by manipulating the thickness of the wall. The volume of a bottle can be increased by having thin wall and decreased by having thick wall.
The applicant further argues that the prior art of Sinide must perform the limitation unmodified for MPEP 2144.04(IV) to be applicable. However, the Mpep does not appear to state as the applicant claims.
The applicant further argues that the rejection based on design choice is not proper to that the examiner respectfully disagrees. Both prior art Sinide and Mmondon as modified discloses the bottle as claimed and therefore is expected to perform the same. The instant application fails to disclose what unexpected result is being yield by having the dimension as claimed. The invention as claimed or the specification as presented fails to provide criticality of such dimension.
Lastly, applicants argument with respect to claim 22, and 25 is not persuasive. The top load of bottle depends on many factors such as the dimension, material and build of the bottle. The bottles of Sinide and Mmondon as modified discloses the bottle as claimed and therefore is expected to perform the same. The instant application fails to disclose any distinguishing structure and where no distinguishing structure has been defined, the claim is not patentable and is fully met by the reference. (See MPEP 2114(I)).
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 SANJIDUL ISLAM whose telephone number is (571)272-7670. The examiner can normally be reached Monday-Friday 8:30 -5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Orlando E. Aviles can be reached at 571-270-5531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SANJIDUL ISLAM/ Examiner, Art Unit 3736
/ORLANDO E AVILES/ Supervisory Patent Examiner, Art Unit 3736
1 See MPEP 2144.04(IV)(A)
2 See MPEP 2144.04(IV)(A)
3 See MPEP 2144.04(IV)(A)
4 See MPEP 2144.04(IV)(A)