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 .
DETAILED ACTION
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 16-30 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding Claim 16, the phrase "for example" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claims 17-30 are rejected based on their dependency on a rejected claim.
Regarding Claim 21, the claim recites the limitation "the part of the cover" in line 1. There is insufficient antecedent basis for this limitation in the claim. For purpose of applying prior art, it would be construed as referring to the “cover part” recited in Claim 20.
Regarding Claim 22, the claim recites the limitation "the part of the cover" in line 3. There is insufficient antecedent basis for this limitation in the claim. For purpose of applying prior art, it would be construed as referring to the “cover part” recited in Claim 20.
Regarding Claim 23, the term “thin” in line 2 is a relative term which renders the claim indefinite. The term “thin” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Also, the phrase "such as" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding Claim 29, the phrase "such as" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 16-21, 25-27, 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Polsak et al. (DE 4119536 A1, see machine translations) in view of Chen (WO 2009/083802 A2) and Zemel et al. (US 2016/0279130 A1).
Regarding Claims 16, 17, and 18, Polsak discloses a cap reservoir device for a food bottle (infusion bottle, see first paragraph following ‘Description’, page 1) comprising a container with a neck (bottle neck 2, Fig. 4) on which the cap reservoir device is intended to be assembled to hermetically close the interior of the container, the cap reservoir device comprising:
- a cap comprising a base part (closure cap 15, Fig. 4) adapted to be fixed to the neck of the bottle (Page 4, third paragraph),
- a capsule (container 16, Fig. 4) disposed in the cap forming a chamber partially closed by a bottom wall (bottom part 19, Fig. 4); characterized in that the cap reservoir device further comprises:
soluble nuggets comprising an active component (active substance 4 in tablet form, page 4, last paragraph).
While the chamber is hermetically sealed (page 3, second paragraph), Polsak is silent to the chamber being filled with a gas hermetically closed by the capsule and the cap, a removable actuator comprising a perforator configured to perforate, cut or break the bottom wall, and wherein the active component of the soluble nuggets are surrounded by an envelope or a matrix of a soluble food substance protecting the active component against chemical alteration.
Chen is relied on to teach a bottled container having a cap reservoir device (see 10 of Fig. 1) which facilitates the release of active components such as tea polyphenol to mix with the liquid within the container (see abstract), wherein the chamber in which the active components are being stored is filled with a gas (inert gas, paragraph 19) hermetically closed by the capsule and the cap (airtight, paragraph 19) which provides longer shelf life. Therefore, since both Polsak and Chen are directed to storing an active component separate from a liquid foodstuff, it would have been obvious to one of ordinary skill in the art to store the active component in a chamber that is sealed with an inert gas to extend the shelf-life of the active component.
Chen also teaches a removable actuator (movable member 25, paragraph 21) comprising a perforator configured to break the bottom wall (engages closure barrier 24, paragraph 21) which facilitates the release of the active component into the container. Since both Chen and Polsak are directed to dispensing solid foodstuff through breaking a bottom part of a cap reservoir device, it would have been obvious to one of ordinary skill in the art to substitute equivalents known for the same purpose (see MPEP 2144.06). Additionally, it would have been obvious to one of ordinary skill in the art to modify the cap reservoir device with an actuator for the purpose of preventing the user from directly contacting the active component.
As to the limitation of wherein the active component of the soluble nuggets are surrounded by an envelope or a matrix of a soluble food substance protecting the active component against chemical alteration, Zemel is relied on to teach a process of formulating compositions with active components in tablet form that disintegrate when exposed to an aqueous environment (paragraph 165). The amount of disintegrant, such as tapioca (as per Claim 17), is selected such that a desired rate of release of the active ingredient is achieved (paragraph 165). Therefore, since both Polsak and Zemel are directed to the disintegration of tablets in aqueous environments, it would have been obvious to one of ordinary skill in the art to incorporate the active component into a matrix of soluble food substance to achieve the desired degree of disintegration of the tablet when dispensed into the liquid. Since Zemel is also directed to delivering active components for pharmaceutical purposes (increasing energy metabolism), and discloses the claimed tapioca, the disintegrant of Zemel is construed to protect the active component against chemical alteration.
Regarding Claim 18, Polsak is not specific to any particular active components and therefore is silent to comprising one or more plant extract. However, Zemel discloses a tablet comprising biologically active agent which can have various natural sources such as plant extracts (see paragraph 60). Therefore, since both Polsak and Zemel and directed to delivering active substances, it would have been obvious to one of ordinary skill in the art to comprise plant extract based on product choice and the desired therapeutic effect.
Regarding Claim 19, Polsak further teaches that the base part of the cap comprises a crown with an internal thread configured to be screwed onto an external thread of a neck of a bottle (lower region 17 screwed onto the bottle neck, page 4, third paragraph).
Regarding Claim 20, Polsak further teaches that the cap comprises a cover part adapted to sealingly cover the opening formed at the end of the neck of the bottle (closure cap 6, see page 4, fourth paragraph). Polsak does not teach wherein the cap is integrally formed with the base part; however, where the difference is merely an integration of parts, the court held “that the use of a one piece construction instead of the structure disclosed in [the prior art] would be merely a matter of obvious engineering choice” In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965). See MPEP 2144.04.V.B.
Regarding Claim 21, Polsak further teaches that the part of the cover comprises a removable flexible central part (closure cap 6 which can be pressed or screwed, page 4, fourth paragraph). Therefore, since the cover is removable, it is construed to be capable of allowing access to the pusher of the actuator in order to move the perforator to perforate the bottom wall of the capsule.
Regarding Claim 25, Polsak further teaches that the capsule comprises a side wall sealingly connected to the bottom wall before actuation (see upper part 18 and bottom part 19, Fig. 4), the side wall being fixed to the base part (lower part 17) of the cap and intended to be inserted inside the neck of the container (container 1, Fig. 4).
Regarding Claim 26, Chen further teaches that the actuator comprises a pusher comprising a rod (25) extending in a cover part of the cap and the perforator (28) disposed adjacent to the bottom wall (see Fig. 7).
Regarding Claim 27, Chen further teaches that the rod comprises a hook (31) engaging a fixing part of the capsule to retain the actuator in a position (see Fig. 1 and Fig. 3 which depicts a similar engagement). In this case, the hook is retained by the actuator via a contour lip (similarly shown in Fig. 8), where it is the lip is capable of retaining the actuator in the actuated position (when the hook 31 is moved beyond the contoured lips) after the force has been applied to allow mixing of the contents. As to the limitation of being in a “lower” position, Chen further notes that “different types of movable members 25 and forces may be applied” (paragraph 21). Therefore, since Chen also discloses an embodiment that involves pushing of an actuator into a lower position (paragraph 26), it would have been obvious to one of ordinary skill in the art to modify the actuator to be retained in the lower position based on engineering design choice.
Regarding Claim 30, Polsak further teaches a food bottle comprising a container and a neck forming the opening of the container (see Bottle 1, Fig. 1), the neck comprising an external thread and an internal surface, and a cap reservoir device according to claim 16, screwed onto the neck hermetically closing the interior of the container (screwed onto the bottle neck 2, page 4, third paragraph).
Claim(s) 22, 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 16, further in view of Love et al. (US 2018/0093803 A1).
Regarding Claim 22, the combination is silent to wherein the cap comprises a top part forming a leaf relative to the base part, removable from a closed position covering the part of the cover of the cap so not to be able to actuate the pusher of the actuator, at an open or removed position allowing the actuation of the pusher of the actuator. Love is relied on to teach a container closure with a compartment for holding a food product therein (see abstract) which is released into the bottle container via an actuator (60) to be mixed with a liquid (see Fig. 6). Love also teaches a container cap comprising a top part (59) that forms a leaf relative to the base part, removable from a closed position (Fig. 9) covering the part of the cover of the cap so not to be able to actuate the pusher of the actuator, at an open or removed position allowing the actuation of the pusher of the actuator (Fig. 6). Therefore, since both Polsak and Love are directed to caps comprising a chamber for holding foodstuff that is dispensed by means of an actuator, it would have been obvious to one of ordinary skill in the art to attach the cover to the cap base part such that the cover is retained by the cap base. As discussed in Claim 20, making the cap integral with the base part would have been an obvious matter of engineering choice. Also, it would have been obvious to substitute equivalents known for the same purpose (See MPEP 2144.06).
Regarding Claim 23, the combination is silent to the particular material of the bottom wall. Love is relied on to further teach a bottom wall made of PET film material which is construed to be a thin flexible material (see paragraph 42). PET is selected to facilitate predictable and effective rupturing or breaking so that the contents are easily ejected. Since Polsak is also directed to rupturing the bottom wall, it would have been obvious to one of ordinary skill in the art to use PET film material to provide a predictable and effective rupturing material.
Claim(s) 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 16, further in view of Zhang (US 2018/0297769 A1).
Regarding Claim 28, the combination is silent to wherein the device comprises a plurality of soluble nuggets, at least one nugget having active components different from at least one other nugget. Zhang is relied on to teach an instant mixing container comprising several compartments which holds two or more materials that are different (see abstract and paragraph 3). Zhang is also directed to pharmaceutical products to be mixed with liquid (see paragraph 24). Therefore, since both Polsak and Zhang are directed to delivering pharmaceutical components to liquid, it would have been obvious to one of ordinary skill in the art to store a plurality of soluble nuggets with different active components based on the desired therapeutic effects.
Claim(s) 24, 29 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 16, further in view of Presche (DE 102018105326 A1-see machine translations).
Regarding Claim 24, the combination is silent to wherein the capsule comprises a fixing part in the form of a flange fixed to the base part of the cap. Presche is relied on to teach similar construction of a cap reservoir device comprising means of storing and dispensing food materials stored therein via an actuator (see abstract). Presche also teaches an embodiment where the base part of the cap comprises a flange fixed to the cap (see 5 of Fig. 8). This portion of the cap similarly engages with the threaded portion of the bottle neck as shown on Fig. 9. Therefore, Presche is also directed to a cap device to be threaded onto a bottle neck, it would have been obvious to one of ordinary skill in the art to further comprise a flange based on engineer design choice.
Regarding Claim 29, while it can be construed that the cap of Polsak is disposable, the combination is silent to wherein the capsule and the actuator are composed of one or more molded polymers, such as injected PET. Presche is relied on to teach similar construction of a cap reservoir device comprising means of storing and dispensing food materials stored therein via an actuator (see abstract). The cap material of Presche is made from injection molded polymers such as PET (see page 2, second to last paragraph). Therefore, since both Presche and Polsak are directed to cap reservoirs configured to engage with bottle necks, it would have been obvious to one of ordinary skill in the art to use known materials suitable for the same purpose. Furthermore, the particular material would have been an obvious matter of engineering choice.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THANH H NGUYEN whose telephone number is (571)270-0346. The examiner can normally be reached 10am-6pm.
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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792