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
All previous 35 USC 112 rejections have been overcome.
Applicant's arguments filed 12/3/2025 in response to Office Action 9/5/2025 have been fully considered but are not persuasive for at least the following reasons:
Regarding claim 1, Applicant argues that since primary prior art Nicmanis teaches pipe 60 is preferably constant diameter [0100] it would not be obvious to make its end portion narrowed/funnel shape using secondary prior art Emrick (page 7 para 6, page 8 para last, page 9 paras 1-2). Examiner disagrees, pointing out that Nicmanis does not say that at [0100]. Nicmanis mentions the foaming section 15/25 of 60 can either have “a constant cross sectional area” [0098] or “does not have a constant cross sectional area” [0100]. Regardless, please see a detailed analysis in the rejection below for why it is obvious.
Regarding claim 1 (i.e. of old Emrick claim 10), Applicant argues that Emrick combined with Nicmanis does not teach the pipe itself, as “a single-piece” as amended, with tapering/narrowing end portion. They also state that Emrick’s narrowing end portion must be movable and pivotable, therefore the end portion 40 cannot be made integral as a single-piece (page 8, lines 1-6). Examiner disagrees, pointing out that Emrick never discloses freely pivoting, nor moving explicitly. Emrick does disclose “Weight connector member 41 [of end portion weight 40] has one end friction fit coupled in a fluid tight manner to the free end of flexible siphoning tube" (col 5, lines 16-17, Figs 1-2), wherein “friction fit” here necessarily at least means “not freely movable”. The section the Applicant cites means that 40 extends further into the container [only] as the tube swings, not on its own (e.g. freely). Please see a detailed analysis in the rejection below of the new combination showing a single-piece pipe that narrows at the end portion.
Regarding claim 1, Applicant argues that since the combination does not solve the same problem as the instant invention it’s not an obvious combination (page 9, para last). Examiner disagrees, pointing out that at least one criteria must be met of the same problem or same field of endeavor for a reference to be properly used as prior art. This prior art is at least in the same field of endeavor.
Regarding claim 1, Applicant argues that a smaller cross section of pipe (i.e. the amended narrowing end portion) has not been found in the prior art (page 10, lines 8-13). Examiner disagrees, pointing out that the amendment of at least “single-piece” has narrowed the claim to necessitate a new ground of rejection, wherein the examiner uses prior art of a single-piece pipe with a narrowing end portion. Please see a detailed analysis in the rejection below.
Regarding claim 5, Applicant argues that the examiner has improperly rejected the shape claim term “obliquely” with KSR rationale – since the narrowing/funnel shape is what “obliquely” means – because there is disclosed criticality for optimum flow through the shape (page 10, lines 1-7). Examiner points out that claim 5 was not rejected using shape change KSR rationale, nor was “obliquely” cited as the funnel shape end portion under broadest reasonable interpretation, rendering the argument moot. “Obliquely” is the pipe relative angle not the end portion itself alone.
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.
Claims 1-2 and 5-14 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Regarding claim 1, “the end portion of the suction pipe” lacks antecedent basis. Examiner interprets as “a portion of the one pipe end of the suction pipe” (having the “pipe opening in the region of the container bottom”, line 12).
Regarding claim 6, “the pipe end being arranged in an upper region of the container interior” is impossible since “the pipe end” is the end having the pipe opening “in the region of the container bottom” first in claim 1 line 12. This is not a 35 USC 112a because the Figures and specification are clear. Examiner interprets “the pipe end” as “the one pipe end” or “the pipe end portion” (having the pipe opening).
Regarding claim 7, the limitation “the pipe end is arranged in an upper third of the container interior” is equally impossible as claim 6, see above.
Claims 2 and 5-14 are rejected for depending upon rejected parent claim 1.
Claim 7 is also rejected for depending upon rejected parent claim 6.
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 is incorrect, any correction of the statutory basis 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.
Claims 1-2, 5-14 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub 20150360853 by Nicmanis (hereinafter “Nicmanis”) as evidenced by US Pat 2390871 issued to Conway (hereinafter “Conway”) and evidenced by US Pat 4603794 issued to DeFord et al. (hereinafter “DeFord”) in view of US Pat 5979715 issued to Emrick (hereinafter “Emrick”) in view of US Pat 3656657 issued to Smith et al. (hereinafter “Smith”).
Regarding claim 1, Nicmanis teaches a pressure container (Fig 2, 20) comprising:
a container body (Fig 2, 37) having a container interior (defined by 21 and 23), wherein at an upper end of the container body an end portion is formed integrally with the container body (a top end portion of 37), which has a container opening (Fig 2, opening 39), and wherein the container body has a container bottom arranged at a lower end and formed integrally with the container body (a bottom end portion of 37);
a valve disposed in and/or at the end portion (Fig 2, valve 27); and
a suction pipe (Fig 2, [0106], [0125], conduit 60 “communicates” the solution necessarily by “suction”), which is arranged in the container interior and is connected fixedly and fluid-tightly to the valve (necessarily is a fluid-tight connection, because there would not be suction to function as intended for dispensing if it were not fluid-tight),
a pipe interior of the suction pipe being fluidically connected to a passage opening of the valve (Fig 2, an interior of 60 is shown fluidly connected to a passage 45 of the valve 27), and the suction pipe extending in the direction of the container bottom into a region of the container bottom and having a pipe opening in the region of the container bottom (Fig 2, pipe opening 33), wherein
the pipe opening is formed at a pipe end of the suction pipe (Fig 2, 33 is at a pipe 60 end), and wherein
the valve (27) has an internal channel having a first inlet end that receives the suction pipe (Fig 2, a first inlet has an internal channel which is valve inlet 45, that receives the pipe) and a second outlet end that comprises a valve outlet opening (Fig 2, a second outlet is valve outlet 57), wherein the first inlet end and the valve outlet opening are vertically aligned (Fig 2, 57 is shown vertically aligned with 45; see annotated Figure 2 below).
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But Nicmanis does not explicitly teach that the inlet end that receives the suction pipe therein.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Nicmanis inlet-pipe arrangement, with evidence from Conway (Fig 1, pipe branch 19 is in connector 20) to better resist the pipe detaching due to internal pipe pressure in use because the pipe cannot expand when in the inlet, such that the valve inlet end receives the pipe inside, instead of outside like Nicmanis, as it is no more than a simple substitution of one way of attaching (Not the whole pipe being replaced) for another that is known in the art for pipe to valve attachment and would only produce predictable results. MPEP 2144.06 II.
In addition, and in the alternative, if an argument may be made that Nicmanis does not explicitly teach a vertically aligned valve inlet to valve outlet, then it would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Nicmanis inlet-outlet arrangement to be vertically aligned, with evidence from DeFord (Fig 1, a valve outlet 2 in this embodiment is offset from a valve inlet, but in Figure 5, the valve outlet 2 is vertically aligned with the valve inlet) since: (a) DeFord identifies a finite number of predictable solutions for being an outlet; (b) it has been held that rearranging parts of an invention involves only routine skill in the art (In re Japikse, 86 USPQ 70); and (c) shifting the position of the valve outlet would involve only routine skill in the art and yield the predictable result of releasing the fluid out to be used. MPEP 2144.04 VI-C.
Also in light of dependent claims, the pipe opening 33 of Nicmanis is obvious to vertically align and be always perpendicular to the container bottom for the same reasons, but replacing (c) with shifting the position of the pipe opening would involve only routine skill in the art and yield the predictable result of suctioning contents.
But Nicmanis/Conway/DeFord does not explicitly teach the suction pipe is a single-piece having a narrowing bottom end portion of the single-piece.
Emrick, however, teaches the end portion of the suction pipe narrows toward the container bottom (Fig 4, D2 indicates as smaller cross-section than D1 of a pipe’s end portion that also is for the other regions of the suction pipe, forming a funnel-shaped pipe end narrowing the pipe wall and its opening space toward the container bottom).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the bottom pipe end/region of Nicmanis with a smaller cross section bottommost end as taught by Emrick in order to advantageously be able to maximize use of container contents by getting into a bottom corner better (Emrick, col 3, lines 40-41).
And in conjunction, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the suction pipe narrowing bottom end portion “a single-piece”, since it has been held that the use of a one piece construction (Smith, col 3, lines 22-25, Fig 1, shows and discloses a single-piece narrowing end portion of a suction pipe which is bottom orifice 11 of dip tube 3, wherein “the ratio of bottom orifice diameter 11 to the dip tube internal diameter is from about 1:2 to 1:10”, meaning 11 is smaller, and 11 is single-piece) instead of the structure disclosed in the prior art (Erick, at least two piece) would be merely a matter of obvious engineering choice. MPEP 2144.04 V-B.
Regarding claim 2, Nicmanis further teaches the pipe opening is arranged in a lower tenth of the container interior (Fig 2, 33 is shown in a lower tenth of the container; [0112] “aerosol can… 200 mm” tall, means the drawing can be used for proportions since the disclosure fixes the height of aerosol container 20 and thereby also the relative height position of 60 within).
Regarding claim 5, Nicmanis further teaches the pipe end is formed obliquely (Fig 2, the end of 60 proximal to 33 is shown extending oblique to the container center axis (as Applicant discloses)).
Regarding claim 6, Nicmanis further teaches the suction pipe is U-shaped (Fig 2, a U shape of the pipe is shown), the pipe end being arranged in an upper region of the container interior (Fig 2, a pipe end (see USC 112b above) proximal to 35 is shown in an upper region of the container).
Regarding claim 7, Nicmanis further teaches the pipe end is arranged in an upper third of the container interior (Fig 2, the 35 end is shown in an upper third of the container; [0112] “aerosol can… 200 mm” tall, means the drawing can be used for proportions since the disclosure fixes the height of aerosol container 20 and thereby also the relative height position of 60 within).
Regarding claim 8, Nicmanis further teaches at least one wall opening is formed in a pipe wall of the suction pipe in an upper region of the suction pipe (Fig 2, a wall opening 35 is in a pipe wall portion of 60, and 35 is in the overall upper upward region of 60 relative to its position in the container).
Regarding claim 9, Nicmanis further teaches the at least one wall opening is arranged in an upper third of the container interior (Fig 2, 35 is shown in an upper third of the container; [0112] “aerosol can… 200 mm” tall, means the drawing can be used for proportions since the disclosure fixes the height of aerosol container 20 and thereby also the relative height position of 60 within).
Regarding claim 10, Nicmanis/Conway/DeFord/Emrick/Smith further teaches the pipe opening has a smaller cross-section than the other regions of the suction pipe (Emrick/Smith, narrowing end portion narrows so is smaller than cylindrical other regions of the pipe). See details in the parent claim 1 rejection above, including the motivation for a person of ordinary skill in the art to modify.
Regarding claim 11, Nicmanis/Conway/DeFord/Emrick/Smith further teaches the pipe opening (Nicmanis, 33) is vertically aligned with a pipe outlet (DeFord modifying Nicmanis above), wherein the pipe outlet is located within the first inlet end (Conway modifying Nicmanis above). See details in the parent claim 1 rejection above, including the motivation for a person of ordinary skill in the art to modify.
Regarding claim 12, Nicmanis further teaches the suction pipe is fixed within the container interior (Fig 2, the pipe 60 is shown fixed inside the container).
Regarding claim 13, Nicmanis further teaches the pipe opening is always arranged in the region of the container bottom (Fig 2, 33 is arranged in a region proximal the container bottom).
Regarding claim 14, Nicmanis/Conway/DeFord/Emrick/Smith further teaches the pipe opening is always aligned perpendicular to the container bottom (DeFord modifying Nicmanis above). See details in the parent claim 1 rejection above, including the motivation for a person of ordinary skill in the art to modify.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See attached PTO-892.
US 4091966 – similar to embodiment in instant Fig 4 (Fig 2)
US 6202943 – narrowing pipe opening end portion but separate (Fig 18)
WO 2025101513 – narrowing pipe end portion (Figs 17-20)
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 ERIC C BALDRIGHI whose telephone number is (571)272-4948. The examiner can normally be reached M-F 7:30-5:00 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Jenness can be reached on 5712705055. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIC C BALDRIGHI/Examiner, Art Unit 3733
/DON M ANDERSON/Primary Examiner, Art Unit 3733