DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 17 June 2026 has been entered.
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 Diekhoff et al. (US Patent 5,718,352) hereinafter referred to as Diekhoff in view of Bourgeois (US 2018/0186122 A1) in view of Russell (US Patent 1,602,126) in view of Donnet et al. (US 2018/0015006 A1) hereinafter referred to as Donnet.
Regarding claim 1, Diekhoff discloses a storage device (#90, figs. 28-29 and #106, fig. 32) for powder used for treatment of a tooth (Limitation of Intended use; col. 1 lines 17-20 – “a variety of products”), the storage device comprising:
a housing (91, 94) surrounding a storage volume, and
a closable opening (opening at #100) through which the storage volume is accessible,
wherein the opening has a collar (100, 101, 102) surrounding the opening, wherein a thread (99) is formed within the collar, and wherein the opening is covered by a sealing operculum (19 or 28) that hermetically seals the opening (col. 4 lines 45-55; col. 5 lines 11-18);
wherein a variety of products are accommodated within the storage volume (col. 1 lines 17-20 – “a variety of products”);
wherein the storage device has a tapered shape (figs. 28-29 and 32) towards the closable opening, wherein the tapered shape is an at least two-staged tapered shape (tiers defined by #96 or 108; col. 10 lines 24-30, col. 11 lines 15-29), and wherein the at least two-staged tapered shape is configured to reduce formation of a blockage due to powder agglomeration within the tapered shape (This is a limitation of intended use. According to the Applicant’s own Specification, p. 6 of 13 lines 9-17, “Accordingly, the powder is smoothly discharged out of the storage device. In more detail, using the two staged tapered shape a creation of a blockage due to powder agglomeration in a tapered section is reliably avoided. That is, a stable arc formation of the particles in the area of the tapered section is prevented. As a result, the powder flows out of the storage device in a continuous and smooth manner. According to a further aspect of the disclosure, the tapered shape is composed of a plurality of tapered portions. Accordingly, a smooth discharge of powder is guaranteed even if the grain size of the powder is relatively small”. Based on the Applicant’s Specification, the Office deems that an at least two-staged tapered shape (i.e. not one continuous surface arcing surface) would result in the claimed effect of reduced formation of a blockage due to powder agglomeration. As such, the at least two-tiered shape of figs. 28-29 and 32 of Diekhoff is deemed to disclose such a structure and would therefore reduce formation of a blockage due to powder agglomeration within the tapered shape.),
wherein the housing is made of a rigid non-plastic material, and wherein the rigid non-plastic material is aluminum (col. 9 lines 47-52); and
wherein the housing is air tight and/or humidity tight (col. 4 lines 45-55).
The Office deems Diekhoff to disclose wherein the housing made from the rigid non-plastic aluminum is air tight and/or humidity tight. Wherein the Applicant may argue that Diekhoff does not specifically disclose wherein the housing is air tight and/or humidity tight, in the Office Action of 8 May 2024 the Office alternatively took Official notice that it would have been obvious to one of ordinary skill in the art before effective filing to have the rigid material of the housing be air and/or humidity tight. Bottles formed of aluminum 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).
Wherein the Applicant may argue that Diekhoff does not disclose wherein the opening is covered by a sealing operculum that hermetically seals the opening, the Office alternatively points to Bourgeois.
Bourgeois teaches wherein the opening (5, 6) is covered by a sealing operculum (10; figs. 1-15) that hermetically seals (paragraphs 0002-0003) the opening of a container having drugs, medicine or food (paragraph 0003).
Given the teachings of Bourgeois (paragraphs 0002-0003), it would have been obvious to one of ordinary skill in the art before the time of effective filing to incorporate the sealing operculum of Bourgeois with the invention of Diekhoff. Doing so would isolate the contents of the container from the environment and provide tamper protection for the container.
Diekhoff discloses wherein the opening has a collar (100, 101, 102) surrounding the opening, wherein a thread (99) is formed within the collar and wherein a variety of products are accommodated within the storage volume (col. 1 lines 17-20 – “a variety of products”), but fails to disclose an internal thread is formed within the collar and wherein powder is accommodated within the storage volume.
However, Russell teaches wherein the opening (opening near #4 seen in fig. 2) has a collar (2) surrounding the opening, wherein an internal thread (5; fig. 2, pg. 1 lines 72-79) is formed within the collar, and wherein powder (pg. 1 lines 1-10, 28-30, 57-59; pg. 2 lines 1-7) is accommodated within the storage volume (1).
Given the teachings of Russell, it would have been obvious to one of ordinary skill in the art before the time of effective filing to modify the threads of Diekhoff to be internal threads as in Russell and to have the variety of products of Diekhoff be a powder as in Russell. By having the threads be internal threads provides for more sealing surface area on the inside of the container and thus helps to prevent the contents from exiting the container. Furthermore, Diekhoff is already concerned about housing a variety of products in a metal container with a pouring neck. Russell teaches that one such known type of product housed in a metal container with a pouring neck are powders. Doing so would help to meet customer demand for such products by providing them in a sealed and secure container.
Diekhoff as modified by Russell above discloses wherein powder is accommodated within the storage volume, but fails to disclose wherein the powder is a dental powder comprising sodium bicarbonate, glycine, calcium carbonate, aluminum trihydroxide, erythritol, hydroxylapatite, trehalose 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 Diekhoff as modified by Russell be the dental powder of Donnet. Diekhoff as modified by Russell 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.
Regarding claim 8, Diekhoff discloses wherein the storage device has a shape of a bottle (#90, figs. 28-29 and #106, fig. 32).
Regarding claim 10, Diekhoff as modified by Bourgeois above discloses wherein the sealing operculum is made of aluminum (Bourgeois - 10; figs. 1-15; #59, paragraphs 0157, 0171; #142, 147, 152, 162, paragraphs 0181-0184).
Regarding claim 11, Diekhoff as modified by Russell above discloses wherein the internal thread (Russell - 5) is configured to engage a dispensing device and/or a lid element (Russell - 8, 9) such that the dispensing device and/or the lid element is releasably secured to the collar (Russell - 2) and closes the opening (Russell - pg. 1 lines 72-79, pg. 2 lines 1-7).
Regarding claim 14, Diekhoff as modified by Bourgeois, Russell and Donnet above discloses a method of storing a powder comprising:
providing a storage device according to claim 1 (see rejection of claim 1 above);
filling the powder into the storage volume through the opening (Diekhoff – col. 7 lines 45-48 – “filled through the spout”; col. 9 lines 40-46 – “other product which will be put in the can”; Russell - pg. 1 lines 1-10, 28-30, 57-59; pg. 2 lines 1-7; This step is also inherent insofar as the powder needed to be place into the storage device for it to be there), and
closing the storage device in a hermetically manner (Bourgeois – via operculum 10, paragraphs 0002-0003; and/or Russell via closure 8, 9, pg. 1 lines 93-112, pg. 2 lines 1-7).
The Office deems Diekhoff as modified by Bourgeois, Russell and Donnet to disclose all the claimed limitations.
Wherein the Applicant may argue that the disclosed closing the storage device of Diekhoff as modified by Bourgeois, Russell and Donnet 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. Diekhoff as modified by Bourgeois, Russell and Donnet discloses liquid-tight and powder-tight seals for the container. 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 Diekhoff as modified by Bourgeois, Russell and Donnet 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, Diekhoff as modified by Bourgeois, Russell and Donnet discloses filling the powder into the storage volume (Diekhoff – col. 7 lines 45-48 – “filled through the spout”; col. 9 lines 40-46 – “other product which will be put in the can”; Russell - pg. 1 lines 1-10, 28-30, 57-59; pg. 2 lines 1-7; This step is also inherent insofar as the powder needed to be place into the storage device for it to be there), protecting the contents from environmental conditions (Bourgeois - paragraphs 0002-0003) 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. Diekhoff as modified by Bourgeois, Russell and Donnet 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 and obvious to one of ordinary skill in the art before the time of effective filing 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).
Response to Arguments
Applicant's arguments filed 17 June 2026 have been fully considered but they are not persuasive.
Applicant’s arguments have been addressed with a new ground of rejection necessitated by the Applicant’s amendment. As such, the Applicant’s arguments are directed toward a combination of references that are no longer being relied upon. In summary, the base reference of Diekhoff is deemed to disclose the claimed subject matter of an “at least two-staged tapered shaped”. The limitation of the shape being configured to reduce formation of a blockage of powder is, based on the Applicant’s own disclosure, deemed to be a result of the shape. The Office deems this to mean that any non-continuously arcing tapered shaped would result in the claimed function of preventing blockage of powder. The Applicant does not present any specific features, claimed or otherwise, that result in the reduction of the blockage other than there being multiple tiers. Diekhoff discloses such a shape and is therefore deemed to disclose a shape configured to reduce formation of a blockage due to powder agglomeration within the tapered shape as best understood in view of the instant disclosure.
New limitations regarding internal threads are deemed to be taught by Russell as detailed above.
Conclusion
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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/ANDREW M TECCO/ Primary Examiner, Art Unit 3731
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