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 Objections
Claims 43 and 44 are objected to because of the following informalities: They are not present on the most recent claim set, and there is no recitation regarding these claims as to their status. If applicant wishes to cancels these claims that must clearly set out in the claim set and remarks. Until official correction is made, the rejection of these claims will remain in place below. Appropriate correction is required.
Response to Arguments
Applicant's arguments filed 09/15/2025 have been fully considered but they are not persuasive.
Applicant argues that the Office action below contends that top cover (20) is not elastically deformable or detachably fastened. However, the office below points to structure (37) for reading on the claim language of a top portion. First the top portion (37) is capable of elastic movement due its spring (29) suspension (Col. 3, lines 53-55). Secondly the Applicant argues that sensor module cannot be detachably fastened, however then argues that the sensor module can be separated from the holder by being “completely disassembled,” and that this is different from detachably fastened. It’s unclear how a device that can be completely disassembled is not also capable of being detachable fastened. Further delineation is needed to adequately define the claimed invention from the prior art of record.
Applicant argues that Official notice cannot be relied upon for teaching the art recognized equivalence of screws, a clamping mechanism, a spring-loaded element, a snap-lock connection, a clip connection, and a combination thereof. However, official notice unsupported by documentary evidence may be taken by the examiner where the facts asserted to be well-known, or to be common knowledge in the art, are “capable of such instant and unquestionable demonstration as to defy dispute.” In re Ahlert, 424 F.2d 1088, 1091, 165 USPQ 418, 420 (CCPA 1970) . Here, a screw is a well-known fastener in the art for connecting two disparate parts together, and Applicant further attests to the well-known nature of all the other types of fasteners in the specification and claim 27 below. One having ordinary skill in the art would be well reprise of screws, clamps, snap in, clips etc. all for their ability of attaching two parts together. Confusingly, Applicant tries to equate a spring to a screw for fastening in attempt at dissuading that one having ordinary skill would not readily place a screw with the above fasteners (since one could select anything to fasten?). However, this line of reasoning only bolsters that a worker in the art could readily apply even more structures that of which are not mentioned in this application for fastening. Thus, the user selecting from various interchangeable fasteners is well within common knowledge in the art.
Additionally, the Applicant has placed no criticality on any specific type of fastener, stating in the specification (p 10 & 11, lines 33-37 & 1-2), the present invention is not limited to any particular fastening member, and can be alternatively any of the above cited. It is reasonable for the examiner in an action to take official notice of facts by asserting that certain limitations in a dependent claim are old and well-known expedients in the art without the support of documentary evidence provided the facts so noticed are of notorious character and serve only to “fill in the gaps” which might exist in the evidentiary showing made by the examiner to support a particular ground of rejection. In re Zurko, 258 F.3d 1379, 1385, 59 USPQ2d 1693, 1697 (Fed. Cir. 2001); Ahlert, 424 F.2d at 1092, 165 USPQ at 421.
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(s) 23, 25-27, 29, 30, 32-36, 38-41, 43, and 44 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wu (US Patent No. 8,215,299) as applied to claim 23 above.
Re: Claim 23, 38, and 39, Wu discloses the claimed invention including a re-usable sensor module for use with a container (15), the sensor module comprising: an elastically deformable capsule with a top portion (37) having a top surface and a bottom surface (25) that is opposite and faces away from the top surface of the capsule (Fig. 1, Col. 3, lines 53-55, elastically deformable component), wherein the top surface of the capsule that is adapted to receive a bottom portion of the container thereon such that the bottom portion of the container contacts the top surface of the capsule (Fig. 4); a first sensor (27) arranged within the capsule and configured to measure a parameter associated with an elastic deformation (29) of the capsule resulting from actuation of a dispenser or presence of the container (Col. 3, lines 56-63, actuation count); and a processor (25) arranged within the capsule (Col. 3, lines 56-58, MCU implicitly includes a processing unit) and coupled to the first sensor, wherein the processor is configured to at least temporarily record at least one of the parameter and an event associated (Col. 3 & 4, lines 56-63 & 1-5, actuation count recorded) therewith, wherein: the sensor module further comprises a fastening member (25b) positioned on the bottom surface of the capsule (Fig. 1 depicts fasteners extending from the bottom of the module), wherein the fastening member is configured to detachably fasten the sensor module to a holder (10, 20) for the container (Figs. 3-4).
Re: Claim 25, Wu discloses the claimed invention including in the fastening member is detachable from the sensor module (Depicted in Fig. 1).
Re: Claim 26, Wu discloses the claimed invention including a lower portion of the capsule has the bottom surface which is planar for properly aligning the sensor module relative to the holder when placed thereon (Figs. 3-4).
Re: Claim 27, Wu discloses the claimed invention including a fastening member in the shape of screws except for the claimed fasteners. However, it would have been obvious to one having ordinary skill in the art at the time of the effective filing date to use any of the claimed fasteners since the examiner takes Official Notice of the equivalence of screws, a clamping mechanism, a spring-loaded element, a snap-lock connection, a clip connection, and a combination thereof for their use in the dispensing art and the selection of any of these known equivalents to fasten would be within the level of ordinary skill in the art.
Re: Claim 29, Wu discloses the claimed invention except the top portion of the sensor module is made from an elastically deformable material. However, Lynn discloses the claimed invention including the top portion of the sensor module is made from an elastically deformable material (Col. 8, lines 4-10, top portion flexes, thus inherently made of a material capable of elastic deformation)
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include a dome shaped top surface as taught by Lynn, since the court held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Re: Claim 30, Wu discloses the claimed invention including the first sensor (27) is one of a force sensor, a pressure sensor and a mechanical switch (Col. 4, lines 5-11, mechanical switch).
Re: Claim 32, Wu discloses the claimed invention including the event is representative of a respective actuation of the dispenser Col. 3 & 4, lines 56-63 & 1-5, actuation count recorded).
Re: Claim 33, Wu discloses the claimed invention including the processor is configured to determine, based on at least one of the parameter and the event, at least one of a current filling level of the container and an exchange of the container (Col. 5, lines 30-34, current fill level attained).
Re: Claim 34, Wu discloses the claimed invention including the processor is configured to repeatedly acquire the parameter at predefined points in time (Col. 5, lines 12-30, at different times).
Re: Claim 35, Wu discloses the claimed invention including the processor is configured to repeatedly acquire the parameter at configured thresholds (Col. 5, lines 12-30, threshold number of actuations).
Re: Claim 36, Wu discloses the claimed invention including the processor is coupled to a light-emitting element (26) (Col. 4, lines 5, display screen commonly include light emitting elements for ready reading).
Re: Claim 40, Wu discloses the claimed invention including the holder comprises a lever (10) configured as a pumping arm to activate a pumping mechanism (11) mounted to a dispensing opening of the container (Fig. 3, Col. 3, 34-45, user grips the holder and press on a grooved surface to actuate a pump mechanism).
Re: Claim 41, Wu discloses the claimed invention including the holder is a frame configured to be mounted to a patient's bed or a wall (Figs. 1, Col. 1, lines 15-35, device contains medicine and is implicitly capable of being mounted to a bed or wall for a patient for ready use).
Re: Claim 43-44, Wu discloses the claimed invention including the sensor module has at least one surface configured to align with (Depicted in Fig. 1 cut outs for engaging with holder portion) and/or engage a portion (23) of the holder to prevent rotation of the sensor module within the holder (Figs. 1 and 2).
Claim(s) 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wu (US Patent No. 8,215,299) as applied to claim 23 above, and further in view of Hennigan et al. (US Patent 9,117,361).
Re: Claim 28, Wu discloses the claimed invention except depicting a dome shaped top surface. However, Hennigan discloses the top portion (120) of the sensor module is dome-shaped. (Fig. 1).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include a dome shaped top surface as taught by Hennigan, since the court held that the configuration of the claimed feature was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed feature was significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Claim(s) 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wu (US Patent No. 8,215,299) as applied to claim 23 above, and further in view of Johnson et al. (US 2017/0018166 A1).
Re: Claim 31, Wu discloses the claimed invention except for the parameter expressly being a weight of the container. However, Johnson discloses using a sensor gathering a parameter representative of a weight of the container (Para. 125, weight parameter).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include a weight parameter as taught by Johnson, since Johnson states in paragraph 125 that such a modification provides real time monitoring of the amount of product remaining in the container rather than just gathering actuation events which only provide an estimate.
Claim(s) 37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wu (US Patent No. 8,215,299) as applied to claim 23 above, and further in view of Jongejan et al. (US 2007/0023034 A1).
Re: Claim 37, Wu discloses the claimed invention except for the parameter expressly being a weight of the container. However, Jongejan discloses the claimed invention including the sensor module comprises a second sensor (30) configured to detect at least one of a movement and a position of the sensor module (Para. 47, detects if the sensor module is positioned close to the user’s mouth).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include a second sensor as taught by Jongejan, since Jongejan states in paragraph 47 that such a modification provides real time monitoring of the of the position of the sensor such that it may place itself in sleep mode when no motion is detected).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES P. CHEYNEY whose telephone number is (571)272-9971. The examiner can normally be reached Monday - Friday, 8:00 am - 4:30 pm.
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/CHARLES P. CHEYNEY/Primary Examiner, Art Unit 3754