DETAILED ACTION
The Office acknowledges receipt of the Applicant’s response and amendments filed 5 February 2026.
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 .
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 “storage volume includes ribs within the housing to guide the powder within the housing” 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 § 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.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 8, 10-11 and 14-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hunt (GB 191004619 A) in view of Galda (US Patent 4,961,986) in view of Huels et al. (US 2016/0288945 A1) hereinafter referred to as Huels in view of Shining Aluminum Packaging (http://www.cnshining.com/allproducts/bottle/aluminum-powder-bottle; Recovered 22 October 2017) hereinafter referred to as Shining in view of Donnet et al. (US 2018/0015006 A1) hereinafter referred to as Donnet in view of Watkins et al. (US Patent 9,139,324 B1) hereinafter referred to as Watkins in view of Ban (US Patent 5,848,516).
Regarding claim 1, Hunt discloses a storage device (figs. 1-3) for powder (Limitation of intended use - pg. 1 lines 33-41) used for treatment of a tooth (This is a limitation of intended use. Per pg. 1 lines 33-41, Hunt is capable of being used to store powder for treatment of a tooth and it therefore meets this limitation of the claim), the storage device comprising:
a housing (A; pg. 2 line 7-8) surrounding a storage volume, and
a closable (via B) opening (opening surrounded by a, a1) through which the storage volume is accessible (figs. 1-3),
wherein the storage device has a tapered shape (figs. 1-3; tapering from wider portion of “A” to narrower neck portion at “a”) towards the opening,
wherein within the storage volume powder (pg. 1 lines 33-41) is accommodated,
wherein the housing is made of a rigid non-plastic material (pg. 2 lines 6-9 – “thin sheet metal”),
wherein the rigid material (pg. 2 lines 6-9 – “thin sheet metal”) is air tight and/or humidity tight (pg. 1 line 26 – “liquid-tight joint”; pg. 2 lines 14-17 – “no liquid or powder can escape the bottle”; Sheet metal is known to be air tight and/or humidity tight).
The Office deems Hunt to disclose wherein the rigid material is air tight and/or humidity tight. Wherein the Applicant may argue that Hunt does not specifically disclose wherein the rigid material is air tight and/or humidity tight, in the Office Action of 8 May 2024 the Office alternatively took Official notice under 35 USC 103a that it would have been obvious to one of ordinary skill in the art before effective filing to have the rigid material of Hunt be air and/or humidity tight. Bottles formed of sheet metal are notoriously well known for being able to keep the contents from being exposed to outside air and/or humidity. Doing so better helps protect the contents from spoilage or contamination. The common knowledge or well-known in the art statement has been taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice in the immediate response to that action (MPEP 2144.03 C).
Hunt fails to disclose wherein the opening is covered by a sealing operculum, being a disposable element, which is used only once.
However, Galda teaches a storage device (“bottle(s)” – col. 1 lines 17-23, col. 6 line 50-52), a housing surrounding a storage volume (col. 1 lines 17-23 – “bottles of pharmaceuticals, foods, beverages, etc”, col. 6 lines 50-52 – “after filling of the bottle”; figs. 2-3), and a closable (via 20 and/or 30) opening (40) through which the storage volume is accessible, wherein the opening is covered by a sealing operculum (20 – col. 6 lines 50-68), being a disposable element (This is a limitation of Intended Use; col. 7 lines 8-29 – Demonstrates how the operculum 20 can be completely removed and therefore disposed of), which is used only once (Limitation of Intended Use; col. 1 lines 19-20 - “an indication if the contents have been tampered with”; col. 6 lines 50-68, col. 7 lines 8-29; it is capable of being used only once).
Given the teachings of Galda (col. 1 lines 10-24; col. 7 lines 26-28), it would have been obvious to one of ordinary skill in the art before the time of effective filing to modify the invention of Hunt to include the operculum of Galda. Doing so would allow the contents to be better safeguarded to preserve freshness, would allow for tampering of the contents to be more easily spotted and would allow for a user to reapply the cap once the operculum was removed so that the contents could be resealed but easily accessed.
Hunt discloses wherein an opening (opening surrounded by a, a1) such that the powder can be dispensed (pg. 1 line 35; also pg. 2 lines 5-6) out of the storage device in a defined manner. Hunt does not disclose wherein the opening has a spout.
Hunt discloses wherein the rigid material is metal (pg. 2 lines 6-9 – “thin sheet metal”) but does not disclose wherein the material is aluminum.
However, Huels teaches a similar storage device (bottle #1 – fig. 1) comprising a housing (2, 3, 4) made of a rigid non-plastic material (paragraphs 0008 and 0028) wherein the opening (paragraph 0038 – “an opening of the bottle main body 2”) has a spout (#9, 10; figs. 1 and 4; paragraph 0038 – “The edge 9 of the neck 3 of the bottle 1 is formed by an overturned portion 10 of the neck 3 having the shape of a bead… the edge 9 is of a curved design”) and wherein the rigid material is aluminum (paragraphs 0008, 0028).
Given the teachings of Huels, it would have been obvious to one of ordinary skill in the art before the time of effective filing to have the opening of Hunt have a spout as in Huels. Providing spouts to openings were well-known in the art to provide consistently of flow with regards to the contents and also provided the advantage of smoothing out the edge of the container to prevent it from accidentally cutting a user.
Furthermore, given the teachings of Huels (paragraph 0008), it would have been obvious to one of ordinary skill in the art before the time of effective filing to make the housing out of aluminum. Both Hunt and Huels are concerned with bottles made of metal and having them maintain a rigid shape. Aluminum was a strong, rigid and lightweight material and as such would be desired for bottle construction.
Hunt as modified by Huels above discloses the rigid material is aluminum but does not disclose wherein the housing has a wall thickness between 0.7 mm and 1.2 mm.
However, Shining teaches a storage device for powder (p. 1 – “Aluminum Powder Bottle”; p. 2 – “Usage: Powder”) comprising a housing made of rigid non-plastic material, wherein the rigid material is aluminum (p. 1 – “Aluminum Powder Bottle”; p. 2 “Material: 99.7% aluminum”), and wherein the housing has a wall thickness between 0.7 mm and 1.2 mm (p. 2 – “Thickness(mm): 0.5-0.8”).
Given the teachings of Shining (e.g. a thickness of 0.8 mm), it would have been obvious to one of ordinary skill in the art prior to the time of effective filing to have the aluminum housing of Hunt as modified by Huels have a thickness between 0.7mm and 1.2 mm. Shining demonstrates that it was known in the art of aluminum bottles for powder to be constructed such that they had at thickness of between 0.7mm and 1.2 mm. The value of 0.8 mm cited by Shining puts the prior art in the claimed range. Doing so would provide the necessary strength for the bottle of this type and purpose of use (e.g. containing powder), while still making available the benefits of being lightweight by virtue of being made of aluminum.
Hunt discloses a powder (pg. 1 lines 33-41; pg. 2 lines 34-37), but does not specifically disclose wherein the powder is a dental powder comprising sodium bicarbonate, glycine, calcium carbonate, aluminum trihydroxide, erythritol, hydroxylapatite, threhalose or tagatose.
However, Donnet teaches that common powders for storing and consumer use (paragraph 0007) include dental powders comprising sodium bicarbonate (paragraphs 0012-0013, 0016), glycine (paragraphs 0016-0017, 0041), calcium carbonate (paragraph 0016), aluminum trihydroxide (paragraph 0016), erythritol (paragraphs 0016-0017, 0034), hydroxylapatite, threhalose or tagatose.
Given the teachings of Donnet, it would have been obvious to one of ordinary skill in the art before the time of effective filing to have the powder of Hunt be the dental powder of Donnet. Hunt is already concerned with storing and preserving powder material for consumer use. Donnet teaches that a common and well-known type of powder that is in need of protective storage and is used by consumers is that of dental powder. Doing so would allow a seller to meet market demand and allow the products to be held in a sealed container thus improving their shelf life.
Hunt discloses wherein the storage device (figs. 1-3) has a cylindrical shape (“A”; figs. 1-3; pg. 2 line 6 – “body of the bottle”; pg. 2 line 10 – “has its side wall b screw-threaded to enable it to be screwed upon the neck a”), wherein the opening (opening surrounded by a, a1) is provided at one axial side (top side as seen in figs. 1-3) of the cylindrical storage device, and wherein the opening is a circular opening (pg. 1 line 24 – “tubular cap”; pg. 2 line 10 – “has its side wall b screw-threaded to enable it to be screwed upon the neck a”), but fails to disclose the diameter of the opening is in a range of 0.01 to 0.5 times the mean diameter of the cylindrical storage device.
However, Watkins teaches a similar storage device (bottle #10 – fig. 1) comprising a housing (14, 16 and 18) made of a rigid non-plastic material (col. 4 lines 7-8 – “The container 10 may be an aluminum drawn and ironed container”) wherein the storage device has a cylindrical shape (fig. 1; col. 3 line 67), wherein the opening (20) is provided at one axial side (fig. 1 – top side) of the cylindrical storage device, and wherein the opening is a circular opening (fig. 1; col. 4 lines 30-33 – “The rolled curl 24 may, for example, have an outside diameter "D1" of about 1.047 in and an inside diameter "D2" of about 0.849 in.”) and the diameter (col. 4 lines 30-33 – “inside diameter "D2" of about 0.849 in.”) of the opening is in a range of 0.01 to 0.5 times (0.849 in / 2.400 in = 0.35375.) the mean diameter (col. 4 lines 25-27 – “the container 10 may, for example, have… an outside diameter "B" of about 2.400 in”) of the cylindrical storage device.
Given the teachings of Watkins, it would have been obvious to one of ordinary skill in the art before effective filing to have the ratio of the opening diameter and mean diameter of the cylindrical storage of Hunt be such that the diameter of the opening was in a range of 0.01 to 0.5 times the mean diameter of the cylindrical storage device. Both Hunt and Watkins are concerned with bottles made of drawn metal and having them maintain a rigid shape. Having the diameter of the opening is in a range of 0.01 to 0.5 times the mean diameter of the cylindrical storage device was a known and common ratio used within the art that could be useful in facilitating pouring at a desired rate by having an opening of appropriate size relative to the size of the storage area.
Alternatively, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. The general conditions are deemed to have been disclosed as detailed above. Even if granting previous Applicant’s arguments, which the Office doesn’t concede and which were previously responded to, it would still have been obvious to arrive within the claimed range given the similarity of conditions disclosed and taught by the prior art and the desire of bottle manufacturers to craft a bottle to particular dimensions to serve the purposes of different pour rates and volume capacities (MPEP 2144.05 I, II)
Hunt discloses a storage device (figs. 1-3) for powder comprising a housing (A; pg. 2 line 7-8) surrounding a storage volume, but fails to disclose wherein the storage volume includes ribs within the housing to guide the powder within the housing.
However, Ban teaches a storage device (figs. 1 and 10) for powder (Abstract) comprising a housing (1) surrounding a storage volume includes ribs (1a, 1b, 1c) within (col. 4 lines 14-21; figs. 3a-c) the housing to guide the powder within the housing (Limitation of Intended Use; col. 8 line 63 – col. 9 line 5; col. 10 lines 37-44).
Given the teachings of Ban (col. 4 lines 21-42; col. 8 line 63 – col. 9 line 5; col. 10 lines 37-44), it would have been obvious to one of ordinary skill in the art before the time of effective filing to modify the invention of Hunt as modified above such that it had ribs within the housing. Doing so helps to provide additional rigidity to the container to prevent deformation. Adding ribs also provides a feature that helps to prevent or break up any powder that has begun to cake and allows for better flows of powder.
Regarding claim 8, Hunt discloses wherein the storage device has a shape of a bottle (figs. 1-3; pg. 2 lines 5-10).
Regarding claim 10, Hunt as modified by Galda above discloses wherein the sealing opercula (Galda - 20) is made of aluminum (Galda – col. 6 lines 21-27, col. 7 lines 29-32).
Regarding claim 11, Hunt discloses wherein the opening (opening surrounded by a, a1) has a thread (figs. 1-3; pg. 1 lines 34-36; pg. 2 lines 9-10) to which a dispensing device (B, d – pg. 2 lines 34-37) and/or a lid element (B – pg. 2 lines 9-10) can be screwed (pg. 2 lines 9-10) so as to releasably close the opening (pg. 2 lines 15-18).
Regarding claim 14, Hunt as modified by Galda, Huels, Shining, Donnet, Watkins and Ban (see rejection of claim 1) discloses a method of storing a powder comprising:
providing a storage device according to claim 1 (see rejection of claim 1 above), having a rigid, non-plastic housing (Hunt - A; pg. 2 line 7-8) surrounding a storage volume (Hunt - pg. 1 lines 33-41; Galda - col. 1 lines 17-23 – “bottles of pharmaceuticals, foods, beverages, etc”, col. 6 lines 50-52 – “after filling of the bottle”; figs. 2-3), and an opening (Hunt - opening surrounded by a, a1; Galda - 40) through which the storage volume is accessible and that can be closed by a lid element (Hunt - B; pg. 2 lines 9-17; Galda - 30),
filling the powder into the storage device (Hunt - pg. 2 line 12; This step is also inherent insofar as the powder needed to be place into the storage device for it to be there; Galda – col. 6 lines 50-52), and
closing the storage device in a hermetically manner (Hunt - pg. 1 lines 37-41 – “a liquid or powder tight joint”; pg. 2 lines 15-17 – “no liquid or powder can escape”; Galda – col. 6 lines 50-68).
Hunt discloses a powder, but does not specifically disclose a powder used in treatment of tooth.
However, Donnet teaches that common powders for storing and consumer use (paragraph 0007) include powder used in treatment of tooth (paragraphs 0012-0013, 0016-0017).
Given the teachings of Donnet, it would have been obvious to one of ordinary skill in the art before the time of effective filing to have the powder of Hunt be the dental powder of Donnet. Hunt is already concerned with storing and preserving powder material for consumer use. Donnet teaches that a common and well-known type of powder that is in need to protective storage and is used by consumers is that of dental powder. Doing so would allow a seller to meet market demand and allow the products to be held in a sealed container thus improving their shelf life.
The Office deems Hunt as modified by Galda, Huels, Shining, Donnet, Watkins and Ban to disclose all the claimed limitations.
Wherein the Applicant may argue that filling the powder into the storage device is not disclosed or inherently disclosed by Hunt in view of Galda, the Office previously took official notice in the Office Action of 8 May 2024 that it would have been obvious to one of ordinary skill in the art before the time of effective filing to include the step of filling the powder into the storage device. It was notoriously well-known in the art for containers to be constructed and then to be filled with the contents that they would later be used to store. Given that Hunt contains powder, supplying the powder via a filling step would be a necessary and desired means of achieving this end goal. The common knowledge or well-known in the art statement has been taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice in the immediate response to that action (MPEP 2144.03 C).
Wherein the Applicant may argue that the disclosed closing the storage device of Hunt is not in a hermetically manner, the Office previously took official notice in the Office Action of 8 May 2024 that it would have been obvious to one of ordinary skill in the art before the time of effective filing to have the closing be in a hermetic manner. Hunt discloses liquid-tight and powder-tight seals for the container via the screw cap B with a washer. This has been a well-known means of achieving a hermetic seal in the art. Providing such a seal would help to provide great protection for the contents and prevent the contents from leaking out into the surrounding environment which is something Hunt is concerned with. The common knowledge or well-known in the art statement has been taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice in the immediate response to that action (MPEP 2144.03 C) .
Regarding claim 15, Hunt as modified by Donnet discloses having a liquid-tight seal (Hunt - pg. 1 lines 37-41) and wherein the powder is suspectable to humidity conditions (Donnet - paragraphs 0012, 0046), but does not disclose wherein the step of filling takes place under a predetermined humidity condition.
The Office previously took official notice in the Office Action of 8 May 2024 that it would have been obvious to one of ordinary skill in the art before the time of effective filing to have the step of filling take place under a predetermined humidity condition. Hunt is already concerned with sealing the contents of the storage device. Donnet further elaborates that exposure to moisture can create problems for such powders in terms of their storage. Given this, it would have been logical to one of ordinary skill in the art to control for the initial humidity conditions during the filling step to both not expose the powder to unwanted moisture and to ensure that the moisture content of the air in the sealed container was not hazardous to the long-term storage of the powder. The common knowledge or well-known in the art statement has been taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice in the immediate response to that action (MPEP 2144.03 C).
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hunt (GB 191004619 A) in view of Galda (US Patent 4,961,986) in view of Huels (US 2016/0288945 A1) Shining (http://www.cnshining.com/allproducts/bottle/aluminum-powder-bottle; Recovered 22 October 2017) in view of Donnet (US 2018/0015006 A1) in view of Watkins (US Patent 9,139,324 B1) in view of Ban (US Patent 5,848,516) in view of Diekhoff et al. (US Patent 5,718,352) hereinafter referred to as Diekhoff.
Regarding claim 5, Hunt discloses wherein the storage device has a tapered shape (figs. 1-3; tapering from wider portion of “A” to narrower neck portion at “a”) towards the opening, but does not disclose wherein the tapered shape is a at least a two staged tapered shape.
However, Diekhoff teaches a similar storage device (90; figs. 28-29) comprising a housing (91, 94) made of a rigid non-plastic, aluminum material (col. 9 lines 47-51), wherein the storage device has a tapered shape (figs. 28-29) towards the opening (near #99) and wherein the tapered shape is a at least a two staged tapered shape (figs. 28-29; col. 10 lines 24-34).
Given the teachings of Diekhoff (col. 10 lines 24-34), it would have been obvious to one of ordinary skill in the art before the time of effective filing to have the taper of Hunt (as modified above) be a at least a two staged tapered shape. Doing so could be aesthetically pleasing and may minimize the appearance of any wrinkles that may form during multiple necking operations.
Response to Arguments
Applicant's arguments filed 5 February 2026 have been fully considered but they are not persuasive.
The Applicant’s arguments are deemed to be primarily directed toward the new limitation of the ribs within the housing. This feature is deemed to be obvious in view of Ban as detailed in the action above.
The Applicant appears to also allege impermissible hindsight in general terms, but does not appear to point to specific combinations of references. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Each of the cited teaching references are of related art and/or are concerned with problems that the base reference art is also concerned with. The Applicant’s arguments as they pertain to hindsight appear to try to draw a very narrow scope around the field of endeavor (e.g. “unstable granular flow in sealed dental powder containers”) and then argue any art that strays slightly out of that narrow field is not applicable art and ought not be considered for combination. This argument is not persuasive. Container art is often applicable to other container art regardless of the specific contents because there is commonalities of purpose and need. Means for packaging powders are often applicable to powders that aren’t just dental powders. It is not necessary that the prior art combination arrive at the claimed combination for the same reasons as the Applicant has articulated in their disclosure, it is only required at all claimed elements be present in the combination. It is determined that the prior art renders the claimed features of the instant invention as taught and/or suggested by the prior art and the common understanding of the field of art before the time of effective filing.
The Office is not apprised of any other specific arguments made towards the previously cited art.
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 ANDREW M TECCO whose telephone number is (571)270-3694. The examiner can normally be reached M-F 11a-7p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anna Kinsaul can be reached at (571) 270-1926. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW M TECCO/ Primary Examiner, Art Unit 3731