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 .
DETAILED ACTION
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-18, drawn to a smart beverage container, classified in B65D 90/51.
II. Claim 19, drawn to a computer-implemented method, classified in G16C 20/80.
III. Claim 20, drawn to a method of manufacturing, classified in G01N 33/14.
The inventions are independent or distinct, each from the other because:
Inventions [II,III] and I are related as process and apparatus for its practice. The inventions are distinct if it can be shown that either: (1) the process as claimed can be practiced by another and materially different apparatus or by hand, or (2) the apparatus as claimed can be used to practice another and materially different process. (MPEP § 806.05(e)). In this case the apparatus as claimed can be used to practice another and materially different process such as one without a power source or a user interface and a display.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
--the inventions have acquired a separate status in the art in view of their different classification;
--the inventions require a different field of search (e.g., searching different classes/subclasses or electronic resources, or employing different search strategies or search queries).
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
During a telephone conversation with Nirajan Singh on October 29th, 2025 a provisional election was made with traverse to prosecute the invention of Group I, claims 1-18. Affirmation of this election must be made by applicant in replying to this Office action. Claims 19 and 20 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 10 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 10 the phrase " like" renders the claim(s) indefinite because the claim(s) include(s) elements not actually disclosed (those encompassed by "or the like"), thereby rendering the scope of the claim(s) unascertainable. See MPEP § 2173.05(d).
This is seen with respect to the recitation of “inflammatory biomarkers like cytokines “proteins like enzymes or antibodies” and “metabolites like vitamins.”
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 10, in all of the above “like” recitations recite a broad, genus-type recitation followed by a species-type recitation which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 16 and 17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The metes and bounds of the sought arrangement of the container as in claims 16 and 17 are indefinitely defined as the relative arrangement among the recited at least two walls of the body are with respect to elements that are not positively claimed and are drawn to prospective workpieces in that of the communication interface and thermoelectric generator film.
Clarification is required.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 10 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 10 is drawn to particular biomarkers wherein the choice of biomarkers is not necessitated given that related claim 8 provides for a choosing of one or more of biomarkers, viruses, and/or bacteria. It appears that Applicant intends to initially recite within claim 10 something on the order of “…wherein the biomarker is configured to detect biomarkers, and the one or more biomarkers comprise…”. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 (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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-5, 7-11, and 13-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hood et al. (US 2011/0050431), hereafter Hood, in view of Rognrud et al. (US 2021/0341409), hereafter Rognrud.
With regard to claim 1, Hood discloses a smart beverage container for analyzing saliva comprising a body (see fig. 1 of container 100) comprising a top edge with a saliva absorbing rim area configured to collect saliva of a user (salivary fluid collection unit at the top edge with a reservoir and absorbent material, par.[0057]), a biosensor coupled to the body and configured to receive power from a power source, a flow network between the saliva absorbing rim area and the biosensor (sensor 110, pars.[0028,0049,0057,0087,0114]), wherein the biosensor is configured to analyze the saliva and to provide a result of the analysis to a communication interface (pars.[0043,0047,0056,0062] with respect to the biosensor configured to analyze the saliva and provide a result to communication interface as in the external device 300). With regard to claim 2, Examiner asserts that a communication interface is not a positively claimed element of the beverage container and is drawn to a prospective workpiece not afforded patentable weight; Hood (as modified below) discloses all of the positively recited elements of the smart beverage container and the biosensor thereof is fully capable of providing a result to a near-field communication chip in as much as recited and required herein (see also as in par.[0043] wherein the sensor signal may be a radio frequency signal). Likewise, as in cl. 3, the communication interface is not a positively claimed element of the beverage container and is drawn to a prospective workpiece not afforded patentable weight and Hood (as modified below) discloses all of the positively recited elements of the smart beverage container and the biosensor thereof is fully capable of providing a result to a communication interface that is configured as claimed in as much as recited and required herein. With regard to claim 4, Hood discloses a display device located on an external side of the body and configured to visualize the result of the analysis ([par.[0064], fig. 3, for example). With regard to claim 5, Hood discloses that the display is a microencapsulated electrophoretic display device as given by an E-ink display (par.[0064]). With regard to claim 7, Hood discloses a display as in an electronic paper display given by an E-ink display (par.[0064]). With regard to claims 8-10, Hood discloses that the biosensor is configured to detect one or more biomarkers, viruses, and/or bacteria, and biomarkers as in cl. 10 such as in proteins, antibodies, metabolites (par.[0041], for example), and is an amperometric biosensor (par.[0112]). With regards to claims 13-16, the power source is not a positively claimed element of the container and is drawn to an intended workpiece that is not attributed patentable weight; Hood (as modified below) discloses all of the positively claimed elements, including the biosensor as-claimed that is an amperometric biosensor that may be used with power sources, and is fully capable of being used with such a power source in as much as recited and required herein. Further, as in cls. 16-17, in as much as understood herein, Hood discloses the beverage body has two side walls and an air gap between the two side walls (par.[0029] and air vents between the at least to side walls of the body of the container [and alternatively/also providing insulated regions between], wherein, as discussed above, the communication interface and thermoelectric generator film are drawn to prospective workpieces not afforded patentable weight.
With regard to claim 1, Hood does not specifically disclose a microfluidic network comprising a plurality of channels configured to direct the collected saliva to the biosensor.
Rognrud discloses a non-invasive cancer detection system wherein the device includes a container for receiving a liquid biological sample from the subject where it is then to be contacted with a sensor therein (abstract). Rognrud discloses that the sample travels through a plurality of microchannels via capillary action toward the sensor elements (par.[0103], for example).
It would have been obvious to one of ordinary skill in the art to modify Hood to utilize a microfluidic network comprising a plurality of channels configured to direct the collected saliva to the biosensor such as suggested by the analogous art of Rognrud in that of non-invasive biological sample testing in which microchannels (i.e. microfluidic channels) provide a suitable and effective fluid-delivery mechanism for delivering the small sample volume by capillary action to the sensor for interaction thereat wherein Hood likewise provides discussion to sample delivery via capillary action (par.[0114]), and such modification would have a reasonable expectation of success therein.
As in claim 11, the saliva absorbing material and its functionality to impart capillary flow therethrough to the sensor provides that the saliva absorbing material is porous and as modified above with Rognrud provides an obvious modification to Hood in realizing a fluid pathway in directing the absorbed saliva therethrough and to the microfluidic channels for effective passage to the sensor as would likewise be appreciated in Hood.
Claim(s) 6 is is/are rejected under 35 U.S.C. 103 as being unpatentable over Hood in view of Rognrud as applied to claims 1-5, 7-11, and 13-17 above, and further in view of Abramson (US 2012/0160725).
Hood/Rognrud does not specifically disclose the saliva absorbing rim area comprises a removable plastic film seal or paper seal covering the saliva absorbing rim area.
Abramson discloses a beverage container 400 with a protective film that can comprise drug testing material in various locations (par.[0043], fig. 4, for example).
It would have been obvious to one of ordinary skill in the art to modify Hood/Rognrud to provide the saliva absorbing rim area comprises a removable plastic film seal or paper seal covering the saliva absorbing rim area such as suggested by the analogous art of Abramson to a sample testing beverage container in which a protective film at the absorbing rim area in Hood/Rognrud would be appreciated in order to prevent contamination or interfering elements from admission thereat before the desired time of use.
Allowable Subject Matter
Claims 12 and 18 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: The prior art of record does not teach or fairly suggest that the microfluidic network has a dendritic distribution, an upper end comprising a higher number of channels being connected to the saliva absorbing rim area and a lower end comprising a lower number of channels being connected to the biosensor as recited in claim 12, and wherein claim 18 is dependent therefrom and provides further details.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Skafidas et al. (US 2019/0150836) discloses a saliva testing system in a handheld device wherein the saliva is provided through a microfluidic channel to the sensor, which is relevant to Applicant’s field of endeavor.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NEIL N TURK whose telephone number is (571)272-8914. The examiner can normally be reached M-F 930-630.
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, Jill Warden can be reached at 571 272-1267. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NEIL N TURK/Primary Examiner, Art Unit 1798