DETAILED ACTION
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 present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claim 17 is objected to because of the following informalities:
Claim 17 recites “configured to accommodate powder of a green stem and/or leaf”. It would appear the claim should recite ‘configured to accommodate a powder of a green stem and/or leaf’.
Appropriate correction is required.
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.
Claims 1, 3 – 5, and 7 – 19 are rejected under 35 U.S.C. 103 as being unpatentable over Gillespie US 2016/0122089.
Regarding claims 1, 4, 5, and 7, Gillespie discloses a stick container (10) which comprises a container main body (18) in which one end region (30) and another end region (28) in an axial direction of a cylindrical body made of a flexible material (flexible wall material) are sealed by a first sealing region (30) and a second sealing region (28), respectively, and has a longitudinal direction in the axial direction. The first sealing region has a first sealing portion (40) and a second sealing portion (38) disposed along a width direction of the stick container, and the first sealing portion has a longer sealing length in the longitudinal direction than the second sealing portion (paragraph [0033] – [0038] and fig. 1 – 3). The container main body has, in a non-sealing portion (24) located on a side of the second sealing region of the second sealing portion and on a lateral side in the width direction with respect to the first sealing portion, a tear guide portion (60) that allows the non-sealing portion to be torn along the width direction, and an opening is formed by tearing the non-sealing portion from the tear guide portion (paragraph [0045]), and a ratio of an opening width of the opening would set to 0.4 (less than ½ the width of the container body) (paragraph [0030]). An end edge of the first sealing region (38/42/40) has an inclined portion (48) that is inclined such that a sealing length in the longitudinal direction of the first sealing region decreases from a side of the first sealing portion (40) toward a side of the second sealing portion (38) along the width direction of the container (fig. 3) and the stick container would be capable of accommodating a powdery composition.
Further regarding claims 1 and 7, Gillespie discloses the end edge of the first sealing region (38/42/40) has a stepped shape (48) extending outward in the width direction from both ends of the inclined portion. Given that the width of the second sealing portion (38) would have a maximum width of as great as 0.4999 of the width of the container main body (less than half the width) (paragraph [0030]) and that the portion of the stepped shape (48) beginning at the interior edge of the first sealing portion (40) would then be located further away from the centre of the container main body it is seen that the first sealing region (40) would be formed such that a width of a portion located on a side of the first sealing portion of the inclined portion is smaller than a width of a portion located on a side of the second sealing portion of the inclined portion.
With respect to the ratio of a width of a portion of the first sealing portion other than the inclined portion to the width of the second sealing portion Gillespie discloses that the width of the second sealing portion, i.e., the area sealed by the spout would be variable and conveniently sized for dispensing product depending on the product to be contained (paragraph [0030]) which is to say that the particular ratio of the width of the portion of the first sealing portion other than the inclined portion to the width of the second sealing portion would be a result effective variable which the ordinarily skilled artisan would commonly and routinely optimize. Once it was known to optimize the ratio of said widths it is not seen that patentability would be predicated on the specific ratio absent clear and convincing evidence to the contrary. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages. It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions (MPEP § 2144.05 II.).
Regarding claim 3, Gillespie discloses the end edge of the first sealing region (38/42/40) has a stepped shape (48) extending outward in the width direction from both ends of the inclined portion. Given that the width of the second sealing portion (38) would have a maximum width of as great as 0.4999 of the width of the container main body (less than half the width) (paragraph [0030]) and that the portion of the stepped shape (48) beginning at the interior edge of the first sealing portion (40) would then be located further away from the centre of the container main body it is seen that the first sealing region (40) would be formed such that a width of a portion located on a side of the first sealing portion of the inclined portion is smaller than a width of a portion located on a side of the second sealing portion of the inclined portion.
Regarding claims 8 and 9, Gillespie discloses the opening width of the opening would be at least .25 the width of the container body (1/4 the width of the container body) (paragraph [0030]) which is to say that Gillespie discloses the ratio of the opening width to the entire width of the stick container would be 0.8 or less (0.25).
Regarding claim 10, once it was known to provide a stick container with an opening it is not seen that patentability would be predicated on the specific width of the opening. Limitations relating to the width of the opening would not be sufficient to patentably distinguish over the prior art. The mere scaling up of a prior art opening width capable of being scaled up, if such were the case, would not establish patentability in a claim to a prior art opening width so scaled. Where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed opening width of the stick container and a stick container having the claimed relative opening width dimensions would not perform differently than the prior opening width, the claimed stick container opening width would not be patentably distinct from the prior stick container’s opening width (MPEP § 2144.04 IV.A.).
Regarding claim 11, the stick container disclosed by Gillespie would obviously be capable of accommodating the powdery composition having a bulk specific gravity of 0.5 g/cm3 or less.
Regarding claim 12, the stick container disclosed by Gillespie would obviously be capable of accommodating the powdery composition having a bulk specific gravity of 0.45 g/cm3 or less.
Regarding claim 13, the stick container disclosed by Gillespie would obviously be capable of accommodating the powdery composition having a bulk specific gravity of 0.4 g/cm3 or less.
Regarding claim 14, the stick container disclosed by Gillespie would obviously be capable of accommodating the powdery composition having a bulk specific gravity of 0.35 g/cm3 or less.
Regarding claim 15, the stick container disclosed by Gillespie would obviously be capable of accommodating the powdery composition having a bulk specific gravity of 0.10 g/cm3 or more.
Regarding claim 16, the stick container disclosed by Gillespie would obviously be capable of accommodating the powdery composition having an average particle diameter of 5 µm or more and 350 µm or less.
Regarding claims 17 – 19, Gillespie discloses that the stick container would be capable of containing edible food products, which would obviously include the powder of a green stem and/or leaf. The claim does not positively recite a powder of a green stem and/or leaf composition in the stick container, but merely that the stick container is “configured to”, that is capable of accommodating said composition as claimed, with a ratio of a green stem and/or leaf of 20% mass or more and comprising a dried and pulverized powder of a stem and/or leaf of barley which Gillespie’s container would clearly have been capable of doing.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Gillespie US 2016/0122089 in view of Kopp et al. US 5,371,997.
Regarding claim 20, as seen in figure 3 Gillespie discloses the sealing portion includes a linear portion (area at reference sign 38) which is orthogonal to the axial direction of a cylindrical body. Further, Gillespie discloses an end edge of the first sealing region (38/42/40) has an inclined portion (48) that is inclined such that a sealing length in the longitudinal direction of the first sealing region decreases from a side of the first sealing portion (40) toward a side of the second sealing portion (38) along the width direction of the container (fig. 3).
Claim 20 differs from Gillespie in the inclined portion being linear and inclined with respect to the linear portion.
Kopp discloses a stick container which comprises a container main body in which one end region and another end region in an axial direction of a cylindrical body made of a flexible material are sealed by a first sealing region and a second sealing region respectively and that has a longitudinal direction is the axial direction. The first sealing region (fig. 15) has a first sealing portion (31) and a second sealing portion (32) disposed along a width direction of the stick container, and the first sealing portion (31) has a longer sealing length in the longitudinal direction than the second sealing portion (32) and there is a tear guide portion that allows the first and second portions to be torn along the width direction (29).Further, Kopp discloses the first sealing portion includes the linear portion (31) orthogonal to the axial direction of the cylindrical body and the inclined portion (33) is linear and inclined with respect to the linear portion (col. 4, ln 17 – 20 and fig. 15). Kopp further discloses that the purpose of this first and second sealing portion arrangement is to control length to width ratio of the opening of the stick container (col. 4, ln 50 – 56) which is the applicant’s reason for doing so as well. Once it was known to provide a first sealing portion to include a linear portion orthogonal to the axial direction of a cylindrical body and the inclined portion that is linear and inclined with respect to the linear portion the substitution of one known first and second sealing portion arrangement, i.e., the first and second sealing portion arrangement of Gillespie, with another known first and second sealing portion arrangement, that is the first and second sealing portion arrangement of Kopp to obtain predictable results would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Response to Arguments
Applicant's arguments filed 19 September 2025 have been fully and carefully considered but they are not found persuasive.
Applicant urges that Gillespie is directed only to the holding of a human-consumable food product such as a viscous foodstuff and therefore not configured to accommodate a powdery composition and that it would be unreasonable to consider that Gillespie would accommodate a powdery composition. These urgings are not deemed persuasive.
First it is to be noted that just because Gillespie discloses the holding of viscous foodstuffs does not mean that the stick container of Gillespie would not be able to contain, i.e., hold a powdery composition. Further, in reciting that the stick container is “configured to” accommodate a powdery composition applicant is claiming that the stick container would be capable of accommodating a powdery composition which the stick container of Gillespie is certainly capable of doing and therefore it is not unreasonable at all to the ordinarily skilled artisan to consider said container of Gillespie could contain any number of compositions, powdery or otherwise. It is also noted that Gillespie discloses said container can be used to store and dispense any desired material which would include powdery compositions and the stick container is not limited in respect to what it could contain. (paragraph [0022]).
Applicant urges that in disclosing the “’spout” may have different widths Gillespie is not disclosing that the width of the “spout” would not be a result effective variable. This urging is not found persuasive.
Gillespie not only discloses that the “spout may have different widths but also discloses that said container would be capable of containing any composition that the ordinarily skilled artisan would desire to contain therein. Further, in disclosing that the cross section, i.e., the width of the spout could be sized to more conveniently dispense a product in a consumer’s mouth that would fairly lead the ordinarily skilled artisan to understand that the width of the spout could also be sized to conveniently dispense any composition, i.e., a powdery composition, into any orifice said composition be dispensed into.
Applicant urges non-limiting exemplary embodiments found in the disclosure as achieving balance and strength as well as the allowing of a powdery composition to be poured in a short period of time thus urging that Gillespie fails to recognize any particular width ratios of any seal regions. These urgings are not deemed persuasive.
In urging non-limiting exemplary embodiments of the disclosure applicant is urging limitations not found in the claims.
Applicant urges that Gillespie does not teach or suggest that an end edge of the first sealing region has an inclined portion that is inclined such that a sealing length in the longitudinal direction of the first sealing region decreases from a side of the first sealing portion toward a side of the second sealing portion along the width direction of the stick container where a ration of an entire width of a portion of the first sealing portion other that the inclined portion to a width of the second sealing portion is 0.1 or more and 0.8 or less and that the stick container is configured to accommodate a powdery composition. These urgings are not found persuasive.
As set forth above in the rejections with respect to the ratio of a width of a portion of the first sealing portion other than the inclined portion to the width of the second sealing portion Gillespie discloses that the width of the second sealing portion, i.e., the area sealed by the spout would be variable and conveniently sized for dispensing product depending on the product to be contained (paragraph [0030]) which is to say that the particular ratio of the width of the portion of the first sealing portion other than the inclined portion to the width of the second sealing portion would be a result effective variable which the ordinarily skilled artisan would commonly and routinely optimize. Once it was known to optimize the ratio of said widths it is not seen that patentability would be predicated on the specific ratio absent clear and convincing evidence to the contrary. Further, as above Gillespie discloses said container can be used to store and dispense any desired material which would include powdery compositions and the stick container is not limited in respect to what it could contain. (paragraph [0022]).
Applicant also urges that the rejections have been made using hindsight reasoning.
In response to applicant's urging 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).
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 CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 26 December 2025
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791