DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
2. Applicants' election with traverse of claims 1-3, 6-7, 11-16, 19-20, Species AL Figures 1-2, 3A-3C in the reply filed on 5/22/2026 is acknowledged. The traversal is on the ground(s) that the species are not patentably distinct and do not impose a serious search and examination burden. This is not found persuasive because the species of claimed invention are clearly not related in terms of their modes of operation. For example, in the elected species of Figures 1-2, 3A-3C, wherein turning the top cap in a first direction and/or pushing the top cap toward the second end provides force to break the breakable seal, such that the first substance is ejected from the body. On the other hand, in the species of Figures 4A-4B, wherein the top cap includes a puncturing device; and turning the top cap in a first direction and/or pushing the top cap toward a bottom end causes the puncturing device to break the breakable seal, thereby ejecting the first substance from the body into the container. Further, the species of claims 4 and 17, the top cap includes a plunging device (not shown). Clearly, there exist unrelated features among the species of claimed invention, which will require a separate search area for each species and thus, impose a burden in search and examination for the Examiner. The requirement is still deemed proper and is therefore made FINAL.
3. Claims 4-5, 8-10, 17-18 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim. Applicants timely traversed the restriction (election) requirement in the reply filed on 5/22/2026.
Claim Objections
4. Claim 6 is objected to because of the following informalities: claim 6, line 1, “receptable” should be --receptacle--. Appropriate correction is required.
Claim Rejections - 35 USC § 102
5. 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.
6. 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.
7. Claims 1-3, 7, 13-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wagner et al. (EP3228559).
Wagner et al. disclose an apparatus for storing a first substance intended for mixing with a second substance as seen in Figure 6, which comprises a hollow body/two-way container (2) for storing the first substance, the hollow body having: a first opening at a first end, an outer wall of the first end comprising one or more first threads (15) as seen in Figure 6; and a second opening at a second end, the second opening being sealed via a breakable seal (7), an inner wall of the second end comprising one or more grooves (10) for engaging one or more second threads of a container (1) as seen in Figure 6; a top cap (4) detachably coupled to the first end via the one or more first threads, the top cap sealing the first opening when coupled to the first end as seen in Figure 6; wherein the body has a cylinder shape as seen in Figure 6; wherein turning the top cap in a first direction and/or pushing the top cap toward the second end provides force to break the breakable seal, such that the first substance is ejected from the body as seen in Figure 6; wherein: turning the top cap in a second direction detaches the top cap from the body; and the first substance is accessible via the first opening based on detaching the top cap from the body as seen in Figure 6. The apparatus shown by Wagner et al. will perform the method recited in claims 13-16 during normal operational use of the apparatus.
8. Claims 1, 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Guglielmini et al. 2013/0233444.
Guglielmini et al. disclose an apparatus (10) for storing a first substance intended for mixing with a second substance as seen in Figure 3, which comprises a hollow body (25) for storing the first substance, the hollow body having: a first opening at a first end, an outer wall of the first end comprising one or more first threads as seen in Figure 6A; and a second opening at a second end, the second opening being sealed via a breakable seal (40), an inner wall of the second end comprising one or more grooves (27) for engaging one or more second threads of a container (15); a top cap (20) detachably coupled to the first end via the one or more first threads, the top cap sealing the first opening when coupled to the first end as seen in Figure 3; wherein: a receptable (30) for storing ingredients is coupled with the top cap; and the receptacle is housed within the body as seen in Figure 6A.
Claim Rejections - 35 USC § 103
9. 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.
10. Claims 11-12, 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Wagner et al. (EP3228559).
Wagner et al. have taught all the features of the claimed invention except that a volume of content is at least 0.1 fl oz and a respective diameter of each of the first opening and the second opening is at least 12 mm. It would have been an obvious matter of design choice to a person of ordinary skill in the art before the effective filing date of the application to have the volume of content of Wagner et al. to be at least 0.1 fl oz and the respective diameter of each of the first opening and the second opening to be at least 12 mm because applicants have not disclosed that having the volume of content to be at least 0.1 fl oz and having the respective diameter of each of the first opening and the second opening to be at least 12 mm provide an advantage, are used for a particular purpose, or solve a stated problem. One of ordinary skill in the art, furthermore, would have expected the volume of content and the diameter of the openings of Wagner et al., and applicants’ invention, to perform equally well with either the volume to be dispensed taught by Wagner et al. or the range in claims 11-12 and 19-20. Therefore, it would have been prima facie obvious to modify Wagner et al. to obtain the invention as specified in claims 11-12 and 19-20 because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art of Wagner et al.
Conclusion
11. The prior art made of record and not relied upon is considered pertinent to applicants' disclosure.
12. Any inquiry concerning this communication or earlier communications from the examiner should be directed to FREDERICK C NICOLAS whose telephone number is (571)272-4931. The examiner can normally be reached Monday-Thursday 8:00 AM -: 4:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Paul R. Durand can be reached at 571-272-4459. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/FREDERICK C NICOLAS/Primary Examiner, Art Unit 3754
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