The present application is being examined under the pre-AIA first to invent provisions.
DETAILED ACTION
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 20-22, and 24-26 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Frazier (US 2005/0191113 A1).
Regarding claim 1, Frazier teaches a device comprising a conditioning agent contained in a sealed conditioning agent container (adhesion promotion primer in a crushable glass ampoule; claims 8 and 13), the conditioning agent container being disposed internally of a flexible outer walled container (outer deformable tube; claim 13), wherein the outer flexible walled container is configured so that pressure applied to the outer flexible walled container causes release of the conditioning agent from the conditioning agent container (Fig. 3). The outer flexible walled container has a uniform diameter extending between open and closed ends (Figures). The sealed conditioning agent container of Frazier is disposed internally of a flexible outer walled container in a snug fit relationship in which the wall of the outer container is contiguous with the wall of the sealed conditioning agent container (see Figures). Further, regarding claims 1 and 21, it would have been obvious to one of ordinary skill in the art to have provided the glass ampoule contiguous with the wall of the deformable tube so that force applied to deform the tube can crush the ampoule and release fluid. Regarding claims 1 and 24, the device of Frazier has an outlet nozzle 12/13 to permit dispensing the liquid (control valve section; see claim 13 and Fig. 2). The nozzle of Frazier constitutes a closure section connected to the open end of the outer container that secures the conditioning agent container within said outer container. Further regarding claim 24, the flow path therethrough constitutes a flow channel allowing liquid to flow through the nozzle to an outlet at a distal end of the nozzle.
Further regarding claim 1, Frazier does not teach that the outer tube must comprise a plastics material. Frazier teaches that the preferred material is a polyethylene resin (claim 4 and ¶ [0044]). It would have been obvious to one of ordinary skill in the art at the time of the invention to use polyethylene resin (a plastics material) since Frazier teaches that it is preferred.
While Frazier does expressly define 13 as a distinct rim tapering section (par. 43), Frazier does not require that said section is formed of a distinct unitary component welded to the tube body. However, it is noted that Frazier does teach that the resin material comprising the tube 11 is capable of welding by a variety of methods (par. 44). Absent a showing of criticality, the choice to form the tube body and the rim tapering section 13 from a single piece or component pieces is considered prima facie obvious, as one of ordinary skill could have made a functionally equivalent device via welding of component pieces with predictable results and a reasonable expectation of success. Again, Frazier explicitly teaches that the material should be weldable, and welding is considered to be a conventional means of joining suitable component pieces. The rim tapering section constitutes an opening/outlet at the distal end of the device. Regarding claims 25 and 26, such a welded component could either be seated within the open end of the outer tubular structure, as claimed, seated outside of the open end of the outer tubular structure, or be joined at their respective ends of substantially identical diameter. Said options could have been implemented with predictable results and a reasonable expectation of success. Selection from these options is considered prima facie obvious (MPEP 2143 I. (E)). In the alternative/in addition, offsetting of the diameters of the two sections to be welded to enable an overlapping portion would result in a greater potential surface area for welding (greater than simply joining the ends together), thus strengthening the weld, even allowing for a combination of friction fit and weld. Such techniques are considered to be conventionally known means of joining. It would have been obvious to one of ordinary skill in the art at the time of the invention to utilize such conventional means, including those claimed, to effective join the sections together to form the container and dispensing nozzle of Frazier.
Further regarding claim 1, Frazier does not teach that the outer wall container is made of a first material and the nozzle is made of a second material that is more rigid than the first material. Frazier teaches that compression of the brush element must be set to give an appropriate flow rate (¶ [0049]-[0052]). It would have been obvious to one of ordinary skill at the time of the invention to reinforce the nozzle portion with a more rigid material in order to prevent distortion of the brush which would necessarily negatively affect the operation of the device.
Alternatively, the nozzle of Frazier is welded to the brush fibers, which will necessarily result in a more rigid material than that of the flexible container walls.
Regarding claim 20, the conditioning agent container of Frazier is glass.
Regarding claim 22, the device of Frazier has a control valve section of a predetermined porous density (a bundled fiber applicator; claim 13 and Fig. 2), which would allow the fluid to flow but retain the broken glass fragments. In addition, Frazier explicitly teaches the use of filter plug 66 intended to prevent any glass shards from entering the valve (col. 3, lines 61-65).
Claim 23 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Frazier (US 2005/0191113 A1) as applied to claim 1 above, and further in view of Hatton et al. (US Patent No. 5,451,345).
Frazier teaches a device according to claim 1, as shown above.
Frazier does not teach any particular fluid composition.
Hatton teaches a conditioning agent comprising a hygroscopic solvent (acetone) and one or more primers (organosilanes) (col. 6, lines 31-35).
Regarding claim 23, one of ordinary skill in the art at the time of the invention could have selected any viscous fluid, including the compound of Hatton, for the invention of Frazier with predictable results and a reasonable expectation of success.
Response to Arguments
Applicant's arguments filed October 9, 2025 have been fully considered but they are not persuasive. Applicant has amended claim 1 to require that the nozzle portion is a “unitary component” distinct from the tube body. Applicant further points out that the tapered rim section 13 of Frazier is not separate from the deformable outer tube body 11, arguing that the device of Frazier is “far” different from the claimed invention. The Office respectfully disagrees. The newly added limitations have been addressed above. Frazier notably teaches that the resin material for the body is weldable. Absent a showing of unexpected results, the Office fails to find the mere distinction of a single part versus welded component portions, especially within the context of the presently claimed invention (a tube/nozzle for dispensing a fluid), as an inventive concept. Welding is a conventionally known joining means, and one of ordinary skill would have expected a tube/nozzle formed via welding of component parts to perform functionally identically to a substantially identical device formed of a single piece.
Applicant argues that the compressed fiber strands welded to the tapered rim section/nozzle of Frazier is distinct from the claimed unitary nozzle being welded to the open end of the outer tubular structure. While the Office agrees with this assertion, it is not considered to be persuasive over the prior art, as the rejection does not rely upon this instance of welding to satisfy the claimed welding (see above).
Applicant argues that the brush like tipoff the compressed fiber strands of Frazier are distinct from the instantly claimed nozzle outlet at the distal end of the device. The Office respectfully disagrees in part. While the Office agrees that the brush like tip is distinct from the claimed opening of the nozzle, the Office does not agree with the assertion/interpretation that the tip of the applicator brush is the “outlet” end. As the Office interprets the tapered rim section 13 of Frazier as the equivalent nozzle to the claimed invention, it is the actual tapered end that constitutes the outlet at the distal end of the device. There is also nothing in the claimed invention excluding incorporation of such a brush like tip at the distal end of the nozzle.
Applicant argues that the reasoning of the Office that “it would have been obvious to reinforce the nozzle portion with a more rigid material in order to prevent distortion of the brush which would necessarily negatively affect the operation of the device” utilizes impermissible hindsight reasoning as knowledge gleaned only from Applicant’s disclosure. The Office respectfully disagrees. Frazier clearly teaches that the main body of the tube is squeezable in order to both break the glass ampule and to force the liquid through the nozzle for application. Frazier also clearly teaches that the fiber strands of element 18 are compressed at the midpoint 20 and rim section 13 of the tube, preferably by heat and pressure, and welded thereto (par. 49). The implication is that the material at the tapered rim section, which is sturdily holding compressed fiber strands in place, must surely be more rigid than the portion which is flexible enough to be squeezable by hand. Otherwise, a more flexible material would be ineffective to maintain the compression on the strands and would instead deform. Insomuch as Frazier does not expressly teach this, it would have been obvious to one of ordinary skill in the art to ensure use of a more rigid material to achieve the same effect. This is not gleaned only from Applicant’s disclosure, but taken from both the explicit and implicit teachings of Frazier. Furthermore, the Office has referenced several other conventionally known household examples of applicator tubes having relatively more flexible tube walls compared to relatively more rigid nozzle/outlet portions, including tubes of toothpaste, adhesive bonding agents/glues, caulking material, etc. (see Office action, mailed July 9, 2025, and repeated below). The notion to use a more rigid nozzle/outlet (than the main body) in an applicator tube is conventionally known in the art and thus cannot be considered inventive.
Applicant also argues that the welding of the flexible fiber strands to the tapered rim section has nothing to do with the relatively rigid material of the unitary nozzle component itself. The Office respectfully disagrees insomuch as the direct region of the tapered rim section in which the weld site occurs is expected to be relatively more rigid than the surrounding material distinct from the. Thermally fused plastic material tends to be more rigid than the surrounding plastic material which has not been subjected to said thermal treatment/fusing, especially when crosslinking occurs. While this would not necessarily effect the entire tapered rim section of the device of Frazier, at least a portion of the nozzle would be expected to be more rigid than the flexible tube body.
Applicant finally argues that the claimed unitary nozzle component, being more rigid than the outer tubular structure, is advantageous over Frazier in that the claimed device allows the nozzle component to maintain rigidity when the outer tubular structure is deformed, which in turn allows the liquid to flow through the unitary nozzle component to the outlet at the distal end of the device, which is “far” different from the production of a capillary flow of the liquid through the fiber strands of Frazier. The Office respectfully disagrees. Frazier uses capillary flow to apply the intended liquid. However, it is not clear how this relates to the rigidity of the nozzle portion. Frazier, too, requires that the main body of the tube is squeezed during use. There is no indication that the tapered rim section of the device of Frazier also becomes deformed, which would seemingly negate the intention of using capillary forces as the liquid would be able to otherwise escape though gaps in the deformed nozzle. Regardless, the Office has pointed out several conventionally known examples of dispenser tubes having relatively flexible walls and a rigid nozzle for dispensing, as discussed above. Use of a rigid nozzle in an applicator tube cannot, by itself, be considered inventive. Applicant’s argument that the rigidity of the claimed nozzle offers unexpected advantages over the prior art is not found to be persuasive.
Use of rigid nozzles compared to relatively less rigid and squeezable container walls is commonplace/conventionally known. Household examples include tubes of toothpaste, adhesive bonding agent (i.e. glues), caulking material, etc…. Use of sealed frangible containers inside of flexible walled containers is also disclosed, as taught by Frazier. While not meant to be dispensed, glow sticks work in part by breaking open a sealed liquid within a closed container. Instant cold packs, such as those used for sports injuries, similarly work by breaking a self-contained bag containing a liquid, which is further contained within a larger pouch. Given that both concepts are conventionally known, it is not clear how the instantly claimed invention could be considered inventive, absent a showing of unexpected results.
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 COLIN W SLIFKA whose telephone number is (571)270-5830. The examiner can normally be reached on Monday-Friday, 9:00 AM-5:30 PM.
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/Colin W. Slifka/ Primary Examiner, Art Unit 1732