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 Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Toh et al. (US 10,675,646).
Toh et al. discloses a discharge pump (170 with 270) for a refillable container (see the Abstract), the refillable container including: an outer container (110, Figs. 1-2); an inner container (210) accommodated in the outer container (Fig. 2); and a lid member (140) configured to close an opening of the outer container (Figs. 1-2), the discharge pump being configured to be attached to the lid member (Fig. 4) and being configured to suck and discharge a liquid matter inside the inner container (Fig. 4), the discharge pump comprising: a tubular cylinder portion (185) which is to be fixed to a pump attachment port body (142) provided on a top plate of the lid member (Figs. 4-5); a discharge nozzle (175 with 172) which is provided to an upper part of the tubular cylinder portion (Fig. 4), and serves also as an operation portion for a piston (187; Col. 18, lines 54-60) inside the tubular cylinder portion (Figs. 4-5); and a suction tube (270, Fig. 3) which is connected to a connection tube portion (171) provided to a lower part of the tubular cylinder portion (Fig. 5), and is configured to be inserted into a suction port (216) provided in an upper surface of the inner container (Fig. 3) when the opening of the outer container is closed by the lid member (Figs. 4-5), wherein the suction tube includes: a small-diameter tube portion (250) which is airtightly fitted onto an outer periphery of the connection tube portion provided to the lower part of the tubular cylinder portion (via 246; Figs. 4-5; Col. 11, line 65 - Col. 12, line 10), and is configured to suck in the liquid matter inside the inner container; and a large-diameter tube portion (254) which is continuous to an upper end of the small-diameter tube portion (Col. 12, lines 11-12), and is loosely fitted with an outer periphery of the tubular cylinder portion (Figs. 3-5) so as to form a gap between the tubular cylinder portion and the large-diameter tube portion (gap between 185 and 254; see Fig. 5, in which inner surface 256 of large-diameter tube portion is clearly separated from 185), the large-diameter tube portion having a diameter which is larger than that of the small-diameter tube portion, and wherein the large-diameter tube portion has a first ventilation hole (243, Fig. 3) for allowing communication between an inside of the inner container and the gap between the tubular cylinder portion and the large-diameter tube portion (243 provides a passageway between 257 and 213; Col. 12, lines 52-55; see annotated Fig. 5 below which indicates location of gap within 257 and location of 243 on first portion 241; Col. 12, lines 56-57).
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Fig. 5 of Toh et al., cropped and annotated by Examiner
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 2 is rejected under 35 U.S.C. 103 as being unpatentable over Toh et al. in view of Choquart et al. (US 8,978,932).
Toh et al. discloses the discharge pump of claim 1, as described in the above rejection under 35 U.S.C. 102(a)(1). Toh et al. further disclose that the tubular cylinder portion includes a cylinder tube (body of 185 above 171, Fig. 5), but do not disclose that the cylinder tube has a second ventilation hole for allowing communication between an inside of the cylinder tube and the gap between the tubular cylinder portion and the large-diameter tube portion.
Choquart et al. teach a discharge pump (device for sampling; Col. 3, lines 52-57) having a tubular cylinder portion (6, Figs. 2a-2b), a large-diameter tube portion (15, Figs. 3a-3b), and a piston (29), the tubular cylinder portion including a cylinder tube (6a) with a ventilation hole (9; Col. 4, lines 1-2; Figs. 2a-2b) for allowing communication between an inside of the cylinder tube and a gap (21) between the tubular cylinder portion and the large-diameter tube portion (Col. 5, lines 15-18 and 42-45), the ventilation hole being formed in a tubular wall of the cylinder tube (Figs. 2a-2b) on a side of the cylinder tube which communicates with an outside air (Col. 1, lines 33-38) and outside a moving range of the piston (Choquart et al. note that the pump is illustrated at the end of a dispensing stroke, but it is apparent from the figures that the ventilation hole could be above the upper end of the stroke as well). Choquart et al. teach that this hole is configured to communicate with a hole in the large-diameter tube portion in order to create a path for outside air to enter a fluid reservoir while minimizing the risk of leakage (Col. 5, lines 39-54).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to provide the cylinder tube of Toh et al. with a second ventilation hole on a side communicating with an outside air and outside a moving range of the piston, as taught by Choquart et al., in order to provide an additional and/or alternative pathway for air to enter the inner container after fluid is dispensed, with a low risk of leakage.
Response to Arguments
Applicant's arguments filed 1/22/2026 have been fully considered but they are not persuasive. Applicant first argues that “the fluid delivery component 270, the second dip tube 250, and the basket 254 of Toh do not constitute a suction tube of a discharge pump, as required by claim 1” and supports this argument by noting that the disclosure of Toh et al. describes element 270 as being a component of refill cartridge 200, which is described as being replaceable separately from the pump (Remarks, first two paragraphs of Page 9).
In addition to addressing the newly presented limitations in the amendment, the above rejection of claim 1 under 35 U.S.C. 102(a)(1) clarifies that the suction tube of Toh et al. is considered to be part of the discharge pump, in accordance with the claim. Though Applicant correctly notes that Toh et al. do not explicitly disclose the same refill/replacement method as the instant application, the differences described by Applicant are limited to the manner in which the device is used, rather than the structure or function of the device components.
It is noted that the intended use described by Applicant (Remarks, second paragraph of Page 8) is not explicitly recited in the claims. Nevertheless, in response to applicant's argument that Toh et al. does not disclose a suction tube of a discharge pump, 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. In this case, the assembled device of Toh et al. meets all of the structural limitations of claim 1, as detailed in the above rejection, and is further capable of being used in an equivalent manner.
This is supported in the disclosure of Toh et al. describing 170 and 270 as being coupled together such that they move as one component, separate from the inner container, during disassembly (“Thus, as the pump sub-system 170 moves away from the dispenser body 110, the fluid delivery component 270 moves relative to the cartridge body 210 due to its coupling to the first dip tube 171 until the fluid delivery component 270 contacts the cartridge lid 265.”; Col. 18, lines 42-46; see Figs. 10-11). Furthermore, Toh et al. notes that the cartridge cap/lid is optional (Col. 13, lines 30-32), thus a configuration is disclosed wherein element 270 would remain coupled to the discharge pump in a manner that allows the assembled components to be freely removed from or inserted into a separable inner container, as determined by the user.
Applicant further argues that Toh et al. “does not disclose a first ventilation hole for allowing communication between an inside of the inner container and the gap between the tubular cylinder portion and the large-diameter tube portion, as required by claim 1” (Remarks, second full paragraph of Page 10). Applicant notes that “Toh does not clearly disclose that the vent passageways 243 are holes that connect the inside and outside of the first portion 241 of the basket 254” and that “the fact that the vent passageway 243 may, or may not, provide a passageway between the basket cavity 257 and the fluid cavity 213 is irrelevant, as claim 1 requires that the first ventilation hole allows communication between an inside of the inner container and the gap between the tubular cylinder portion and the large-diameter tube portion” (Remarks, last two paragraphs of Page 9 - first two paragraphs of Page 10). According to Examiner’s best understanding, Applicant is suggesting that (i) a ”passageway” is not a “hole” and (ii) cavity 257 of Toh et al. does not include the recited “gap” and/or cavity 213 of Toh et al. does not represent an inside of the inner container.
With respect to point (i), Merriam-Webster defines a “passageway” as “a way that allows passage”, and a “hole” as “an opening through something” (see attached NPL documents). Examiner sees no patentable distinction between the two terms in the context of the claim, especially considering the written description of vent passageway 243 in Toh et al., reproduced on Page 9 of the Remarks. If Applicant wishes to create such a distinction, the relevant structure must be further delineated in the claim language. With respect to point (ii), the above rejection of claim 1 under 35 U.S.C. 102(a)(1) includes an annotated version of Fig. 5 of Toh et al. to clarify the location of 243 between an inside of the inner container and the gap between the tubular cylinder portion and the large-diameter tube portion. Thus, feature 243 of Toh et al. satisfies the limitations of the claimed first ventilation hole.
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. 8. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL C PATTERSON whose telephone number is (571)270-5558. The examiner can normally be reached M-F 7:30-4:00 CST.
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/MICHAEL C PATTERSON/Examiner, Art Unit 3754
/PAUL R DURAND/Supervisory Patent Examiner, Art Unit 3754 April 24, 2026
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