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 .
Response to Arguments
Applicant's arguments filed 01/27/2026 have been fully considered but they are not persuasive.
In response to applicant's argument that the references of record do dispenser a fluid of the claimed pH value, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. First, the container of Van Geel is inherently capable of holding a multitude of liquids including those with a pH 1-4, and there is nothing in the reference disclaiming otherwise. If anything, the intended use of laundry detergent with Van Geel encompasses detergents of many pH values.
Further Applicant argues that Anderson teaches a ph of 4.5 thus does not teach the liquid as claimed having a pH of 4. However, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v.Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). Here, Anderson expressly states that fluid may container a pH modifier for the user to adjust as desired (para. 78), and when giving the ranges states “may range from about,” thus one having ordinary skill in the art would not be obscured from selecting a pH of 4. Further, the specification of this application is silent to anything new and unexpected occurring when a pH value of .5 less than that disclosed by Anderson. Additionally, Applicant appears to have placed no criticality on any particular pH (see Specification para. 37 where the liquid composition “can have” a pH as claimed) and it appears that the device of Van Geel in view of Anderson would work appropriately if used with a liquid composition having the claimed pH.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 6-9, 11, 12, and 15-20 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-15 of copending Application No. 18/143,676 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claimed invention only differs (from the copending application) around recitations of the product to be dispensed from the container in which the container of the copending application of 18/143,676 is inherently capable of holding as well.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claim(s) 1-13 and 15-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Van Geel et al. (US 2013/075414 A1) and further in view of Anderson et al. (US 2021/0340464 A1) and Bragg et al. (US 2024/0132259 A1).
Re: Claim 1, Van Geel discloses the claimed invention including a laundry product comprising a liquid composition having a pH value (Para. 1, laundry detergent) ; and a container comprising a base, a sidewall (6) extending from said base to a neck (Fig. 1, Para. 16 and 38, container with neck, containers inherently have sidewalls to in fact contain fluid); and a closure (1), wherein said closure comprises: a top profile (3) having an exterior surface (23) and an interior surface (20) opposite said exterior surface; a spud (20) projecting from said interior surface (Depicted in Fig. 3);
a hinge (11) engaging said top profile to a main body (2) (Fig. 3));
wherein the top profile is engaged by the hinge to move from a closed position (Fig. 2) to an open position (Fig. 3); and
wherein the hinge has at least two stable low energy states (Figs. 8A & 8C) and an energy state (Fig. 8B) between the two stable low energy states that is higher than each of the two low energy states (Para. 49, full open stable state, fully closed stable state, and a high energy opening state when profile moves from closed to open);
an abutment (19) in said main body sealingly engaged with said spud (Para. 45, sealing engaged with one another), wherein said abutment extends around a longitudinal axis (YY) passing through said top profile and said spud (Depicted in Fig. 3); a collar (18) engaged with said abutment and oriented away from said top profile, wherein said collar is engaged with said neck by threads (14) (Figs. 2-3, Para. 39, collar engaged with neck by threading); a floor (13) peripherally bounded by said abutment; a sealing member (4) that is at least part of said floor and a tab (30) extending from said sealing member towards said top profile (Depicted in Fig. 3, Para. 54, sealing member with tab that’s is part of the floor) except for expressly stating a frangible boundary around the sealing member. However, Bragg teaches a sealing member (231) with tab (235) that is peripherally bounded by a frangible boundary (232) extending around said longitudinal axis (Fig. 6) such that said sealing member and said abutment are a continuous single constitutive material (Depicted in Fig. 7).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include the sealing member configuration with tab as taught by Bragg, since Bragg states in paragraph 24, that such a modification provides a frangible perimeter to make it easier to break than surrounding areas.
Van Geel discloses dispensing any number of detergents (Para. 1) except for expressly stating the laundry product with a pH 1-6. However, the device of Van Geel is inherently capable of holding any laundry product including one as introduced by Anderson. Anderson teaching a laundry product comprising a liquid composition having a pH from 1 to 6 (Para. 45, 4.5 pH liquid laundry product). It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include the liquid composition with a pH between 1-6 as taught by Anderson, since Anderson states in paragraph 8 that this provides an advantage of the compositions that they suitable for use in machine ware wash and clean-in-place, and another advantage of the compositions is that they provide effective sanitizing in low temperature conditions. Still a further advantage of the compositions, is that they have low odor properties.
Van Geel as modified by Anderson discloses said liquid composition has a reserve acidity to pH 4.0 of at least about 1 (Anderson: Para. 45, 75, 78, pH may be made lower as desired).
Re: Claim 2, Van Geel as modified by Anderson in the rejection of claim 1 above discloses said liquid composition has a viscosity less than 2 mPa-s according to ASTM D2169-99 at 60 rpm and 22 C (Anderson: Para. 142 can be made to desired viscosity).
Re: Claim 3 and 10, Van Geel as modified by Anderson in the rejection of claim 1 above discloses said liquid composition comprises from about 30 percent by weight to about 90 percent by weight of said liquid composition of water (Anderson: Para. 68, water may be 50 percent by weight).
Re: Claim 4, Van Geel as modified by Anderson in the rejection of claim 1 above discloses said liquid composition comprises from about 0.01 percent by weight to about 20 percent by weight of said liquid composition of perfume (Anderson: Para. 73, perfume may be 5 percent by weight).
Re: Claim 5 and 13, Van Geel as modified by Anderson in the rejection of claim 1 above discloses said liquid composition comprises from about 10 percent by weight to about 50 percent by weight of said liquid composition of polycarboxylic acid of citric acid and/or salt thereof (Anderson: Para. 63, polycarboxylic acid is citric acid may be 40 percent by weight).
Re: Claim 6 and 15, Van Geel discloses the claimed invention including said closure further comprises a spout (6) projecting from said floor towards said top profile (Depicted in Fig. 3), wherein said spout extends at least partially around said longitudinal axis and is nearer to said longitudinal axis than said abutment (Depicted in Figs. 3).
Re: Claim 7, Van Geel discloses the claimed invention including a container in an unopened state is devoid of a membrane seal on said neck (Para. 39, closure placed onto an open neck of a container to close it).
Re: Claim 8 and 16, Van Geel discloses the claimed invention including sealing member is at least partially peripherally bound by said spout (Depicted in Fig. 5).
Re: Claim 9, Van Geel as modified by Bragg in the rejection of claim 1 above discloses the claimed invention including said sealing member, said abutment, and said spout are a continuous single constitutive material (Bragg: Depicted in Figs. 5-7 built of a single continuous material).
Re: Claim 10, Van Geel as modified by Anderson in the rejection of claim 1 above discloses the claimed invention including said liquid composition comprises from about 30 percent by weight to about 90 percent by weight of said liquid composition of water.
Re: Claim 11, Van Geel discloses the claimed invention including said container is devoid of adhesive on said neck (Para. 38, threading to a container).
Re: Claim 12, Van Geel discloses the claimed invention including said container in an unopened state is devoid of a membrane seal on said neck (Para. 39, closure placed onto an open neck of a container to close it).
Re: Claim 17, Van Geel discloses the claimed invention including said spout has a dispensing lip (21) and said longitudinal axis can be between said dispensing lip and said hinge (Fig. 3, the axis can be between lip and hinge), wherein a drain back channel is defined by part of said abutment, part of said spout, and part of said floor connecting said abutment and said spout (Fig. 3, abutment, spout and floor form a drain back channel), wherein when said closure is in a position such that said dispensing lip is above said collar said drain back channel is sloped in a direction away from beneath said dispensing lip (Depicted in Fig. 3).
Re: Claim 18, Van Geel discloses a pull tab positioned between said floor and said top profile (Para. 54, tab positioned between floor and top profile) except for expressly stating the tab is loop shaped. However, Bragg teaches said tab is a loop (Bragg: Depicted Fig. 7). It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include a loop pull tab as taught by Bragg, since Bragg states in paragraph 25, that such a modification allows a user to insert one or more fingers therein to grasp and remove it.
Re: Claim 19, Van Geel discloses the claimed invention including said spud is a continuous flange extending around said longitudinal axis (Depicted in Fig. 3)
Re: Claim 20, the rejections from claims 6 and 9 above cover the limitations recited in this claim.
Conclusion
THIS ACTION IS MADE FINAL. 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 CHARLES P. CHEYNEY whose telephone number is (571)272-9971. The examiner can normally be reached Monday - Friday, 8:00 am - 4:30 pm.
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/CHARLES P. CHEYNEY/Primary Examiner, Art Unit 3754