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 .
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “engaging element” in claim 1.
The following 3-Prong Test is used to detail the invocation of 35 U.S.C. 112(f) pertaining to the aforementioned limitation:
The generic place holder, “element,” is identified as a replacement for the generic “means for,” and is not indicative of any specific known, limiting feature.
“element” is modified by the functional language “engaging.” The generic placeholder is set forth by the function it performs.
A lack of sufficient structure for achieving the claimed function follows the aforementioned limitation.
Thus, claim 1 and dependent claims 3-8, 10, and 14-15 (by virtue of dependency) are given the broadest reasonable interpretation set forth by the specifications to mean: “a screw thread or a snap fit arrangement,” as stated on p. 3 ll. 22-23 of Applicant’s Specification.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 and 5-7, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Goodman (US 8267610 B2) in view of Marbet et al. (US 20140138410 A1) hereinafter “Marbet.”
Regarding claim 1, Goodman discloses a dispenser (dispensing apparatus 100) comprising: a reservoir (reservoir container 110) which contains a gel (cleansing solution 105 which refers to a liquid, gel or vapor, col. 1 ll. 65-67) comprising water (it is common in the art to dilute cleaning solutions with water or solvent), wherein the gel is suitable for application to a sheet of paper (dispensing onto tissue, col. 2 ll. 35-37); and an applicator (dispersion component 130 and pump assembly 120) configured to apply the gel to the sheet of paper (col. 2 ll. 35-37), wherein the applicator comprises: a pump (pumping assembly 120), an actuator (dispersion component 130), and an application surface (concave depression 135) which is oriented perpendicular to an axis of elongation of the applicator (perpendicular to line A, fig. 1) and has a plurality of apertures (holes 140); wherein, when the pump is fed with the gel, actuation of the actuator causes the pump to move the gel through the apertures (col. 2 ll. 48-52) so that the gel is dispensed simultaneously through each of the apertures (facilitated by channels 190); wherein the reservoir is removably engageable with the applicator (col. 5 ll. 14-16); wherein the applicator comprises an engaging element (screw-on cap 120) configured to removably engage the applicator with the reservoir such that (col. 5 ll. 9-11), when engaged, the pump of the applicator draws the gel from the reservoir when the actuator is actuated; and wherein the applicator is elongate (refer to fig. 5). However, Goodman remains silent to the actuator is provided on a side of the applicator and is actuatable in a direction which is perpendicular to an axis of elongation of the applicator. Marbet teaches the actuator (manual actuation member 34) is provided on a side of the applicator (refer to fig. 1) and is actuatable in a direction which is perpendicular to an axis of elongation of the applicator (34 actuates in the direction of the spring 36, which is perpendicular to elongation axis A1 and A2, fig, 1). It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the actuator. In doing so, one skilled in the art can mechanically separate the applicator from the actuator increasing hygienics by decreasing user contact with the applicator.
Regarding claim 5, in addition to the limitations of claim 1, the already modified dispenser further teaches wherein the application surface is circular (Goodman: refer to the shape of 135 in fig. 6).
Regarding claim 6, in addition to the limitations of claim 1, the already modified dispenser further teaches a gel conduit (Goodman: channels 190) between the pump and the apertures which comprises a splitter section (Goodman: circular rib 137) configured to split a flow of gel into equal parts and to direct those equal parts to corresponding apertures (Goodman: refer to fig. 7).
Regarding claim 7, in addition to the limitations of claim 1, the already modified dispenser further teaches wherein the application surface is concave (Goodman: concave depression 135, col. 2 para. 6).
Regarding claim 10, in addition to the limitations of claim 1, the already modified dispenser further teaches a reclosable lid (Goodman: multifunctional cap 160 and lid 150), wherein a tab (Goodman: lid 150) on the lid covers the actuator when the lid is closed (Goodman: refer to fig. 2b).
Claims 2-4 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Goodman (US 8267610 B2) and Marbet et al. (US 20140138410 A1) in view of Tapocik (US 20210078019 A1).
Regarding claim 2, in addition to the limitations of claim 1, the already modified dispenser remains silent to wherein the apertures are sized so that in use equal volumes of gel are dispensed through each of the apertures. However, Tapocik teaches wherein the apertures are sized so that in use equal volumes of gel are dispensed through each of the apertures, since apertures (120A-120F) have equal surface area (p. 3 para. 0044), defined in part by diameter, Dp, and receive equal initial pressure, the volumetric flow rate is equivalent between apertures). It would have been prima facie obvious to one having ordinary skill in the art modify the apertures size and number. In doing so, one skilled in the art can increase the efficiency of the spray (Tapocik: p. 3 para. 0044).
Regarding claim 3, in addition to the limitations of claim 1, the already modified dispenser remains silent to wherein the applicator comprises between 3-9 apertures or 6 apertures. Tapocik teaches wherein the applicator comprises between 3-9 apertures or 6 apertures (p. 3 para. 0044 specifically teaches 6 apertures (outer holes 120A-120E and inner hole 120F)). It would have been prima facie obvious to one having ordinary skill in the art modify the apertures size and number. In doing so, one skilled in the art can increase the efficiency of the spray and ensure that spraying will occur upon actuation of the pump (Tapocik: p. 3 para. 0044).
Regarding claim 4, in addition to the limitations of claim 1, the already modified dispenser remains silent to wherein the apertures are arranged symmetrically on the application surface of the applicator. However, Tapocik teaches wherein the apertures are arranged symmetrically on the application surface of the applicator (due to the dimensional relationships taught in fig. 6 and para. 0044, the exists symmetry at least from Dp along D2 to Dc). It would have been prima facie obvious to one having ordinary skill in the art modify the apertures size and number. In doing so, one skilled in the art can increase the efficiency of the spray (Tapocik: p. 3 para. 0044).
Regarding claim 8, in addition to the limitations of claim 1, Goodman and Marbet remain silent to the largest distance between the apertures is between 25-35mm or 28mm. Instead, Tapocik teaches wherein the largest distance between the apertures is a function of D1 and D2 (referring to fig. 6). The Federal Circuit has held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. MPEP 2144.04(IV)(A) (discussing Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Goodman and Marbet in view of Tapocik by causing the largest distance between apertures to be between 25-35mm or 28mm. Applicant appears to have placed no criticality on any particular range (See Specification wherein the largest distance is preferably between 25-35mm and is more preferably 28-30mm, or 28mm, p. 2 para. 8) and it appears the device of Goodman and Marbet in view of Tapocik would work appropriately if made within the claimed range of distance (Tapocik only requires that the distances be equal, para. 0044).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Goodman (US 8267610 B2) and Marbet et al. (US 20140138410 A1) in view of Kennedy et al. (US 20090014474 A1).
Regarding claim 14, in addition to the limitations of claim 1, the already modified dispenser discloses the apertures and pump but remain silent to their arrangement to dispense between 0.1 -1 ml or 0.25-0.35 ml of gel per actuation of the actuator. Kennedy teaches the apertures and pump are arranged to dispense at least 0.3 ml of gel per actuation of the actuator (p.5 para. 0062). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the volume dispensed of Kennedy to be between 0.25-0.35 ml as Applicant has appeared to place no criticality on the claimed range (See p. 4 para. 6 of Applicant’s Specification here “The apertures and pump may be arranged to dispense between 0.1-1 ml, preferably 0.25-0.35 ml and more preferably 0.3 ml or 0.5 ml, of gel per actuation of the actuator”). Since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05(I).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Goodman (US 8267610 B2) and Marbet et al. (US 20140138410 A1) in view of Borod (US 5335855 A).
Regarding claim 15, in addition to the limitations of claim 1, the already modified dispenser discloses the gel, however, remains silent to the gel comprises an extract of an aloe plant. Borod teaches the gel comprises an extract of an aloe plant (col. 2 ll. 47-51). It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the gel. In doing so, the dispenser of Goodman in view of Marbet, which is already capable of dispensing gel, can be utilized for therapeutic applications.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Hofland et al. (US 9440056 B2) for the multi-aperture gel dispenser including a circular application surface, a splitter, a removable cap, and volume control.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER STEVEN PARISI whose telephone number is (571)270-5490. The examiner can normally be reached Mon - Fri 8:00 - 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, David Angwin can be reached at (571) 270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/CHRISTOPHER S. PARISI/Examiner, Art Unit 3754
/DAVID P ANGWIN/Supervisory Patent Examiner, Art Unit 3754
Prosecution Insights