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 .
Election/Restrictions
Applicant’s election without traverse of Species L in the reply filed on 2/10/2026 is acknowledged. Claims 1-8 and 14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Species A-K, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 2/10/2026.
Information Disclosure Statement
The information disclosure statement filed on 3/12/2024 fails to list the most pertinent prior art with regard to the scope of the invention as claimed in this instant application. With the IDS encompassing about 401 separate references, it would be a significant burden on the Office to have to key in and search all of the non-relevant references. Further, an applicant has a duty to not just disclose pertinent prior art references but to make a disclosure in such way as not to “bury” it within other disclosures of less relevant prior art. See Golden Valley Microwave Foods Inc. v. Weaver Popcorn Co. Inc., 24 U.S.P.Q.2d 1801 (N.D. Ind. 1992); Molins PLC v. Textron Inc., 26 U.S.P.Q.2d 1889, 1899 (D. Del. 1992); Penn Yan Boats, Inc. v. Sea Lark Boats, Inc. et al., 175 U.S.P.Q. 260, 272 (S.D. Fl. 1972).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 9-13 of this instant application are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 12-17 of U.S. Patent No. 11819147. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant Application Claims
Patent No. 11819147
9. (Original) A flowable food product dispenser, the dispenser comprising: a frame; a body coupled to the frame, the body defining a cavity for receiving a bag storing the flowable food product, wherein the body includes a bottom wall defining an opening and a fitment acceptor at least partly received in the opening; a valve configured to selectively allow the flowable food product to flow out of the bag; and a control system configured to control the valve to control an amount of flowable food product dispensed from the bag, the control system configured to receive an indication of a desired amount of flowable food product, open the valve, and track a time that the valve is open to dispense the desired amount of flowable food product.
12. A flowable food product dispenser, the dispenser comprising: a frame; a body coupled to the frame, the body defining a cavity for receiving a bag storing the flowable food product, wherein the body includes a bottom wall defining an opening and a fitment acceptor at least partly received in the opening, the fitment acceptor including forward and rearward sidewalls, wherein a radius of curvature of the forward sidewall differs from a radius of curvature of the rearward sidewall, wherein the radius of curvature of the forward sidewall and the radius of the curvature of the rearward sidewall correspond with radiuses of curvature of respective front and rear ends of a fitment of the bag such that the fitment of the bag is only insertable in the fitment acceptor in one relative orientation between the fitment and the fitment acceptor; a valve configured to selectively allow the flowable food product to flow out of the bag; and a control system configured to control the valve to control an amount of the flowable food product dispensed from the bag.
13. The dispenser of claim 12, wherein the control system is configured to receive an indication of a desired amount of the flowable food product, open the valve, and track a time that the valve is open in order to dispense the desired amount of the flowable food product.
10. (Original) The dispenser of claim 9, further comprising a user input device, wherein the control system is configured to receive an indication of a user engaging with the user input device and open the valve for as long as the user engages with the user input device.
14. The dispenser of claim 12, further comprising a user input device, wherein the control system is configured to receive an indication of a user engaging with the user input device and open the valve for as long as the user engages with the user input device.
11. (Original) The dispenser of claim 9, wherein the control system is further configured to determine a total amount of dispensed flowable food product over a period of time based on an amount of time that the valve is open over the period of time, and selectively provide an alert based on the total amount of dispensed flowable food product.
15. The dispenser of claim 12, wherein the control system is configured to sum a total amount of the flowable food product dispensed over a period of time based on an amount of time that the valve is open over the period of time, and selectively provide an alert based on the sum.
12. (Original) The dispenser of claim 9, further comprising a display and a temperature sensor, wherein the temperature sensor is positioned near the opening to determine a temperature of the flowable food product in the bag proximate to the opening, and wherein the display is configured to display the temperature.
16. The dispenser of claim 12, further comprising a display and a temperature sensor, wherein the temperature sensor is positioned near the opening in order to determine a temperature of the flowable food product in the bag proximate to the opening, and wherein the display is configured to display the temperature.
13. (Original) The dispenser of claim 9, further comprising a heating element configured to selectively heat the bag, wherein the control system is configured receive the temperature from the temperature sensor, and, in response, adjust power to the heating element to control an amount of heat provided to the bag.
17. The dispenser of claim 16, further comprising a heating element configured to selectively heat the bag, wherein the control system is configured receive the temperature from the temperature sensor, and in response, adjust power to the heating element to control an amount of heat provided to the bag.
It is clear that all the elements of claims 9-13 of this instant application are to be found in claims 12-17 of the patent. The difference between claims of the application and the patent lies in the fact that the patent claim includes many more elements and is thus much more specific. Thus the invention of claims of the patent is in effect a “species” of the “generic” invention of claims of the application. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since claims of the application is anticipated by claims of the patent as cited in the above, the claims of the application are not patentably distinct from claims of the patent.
Following the rationale of in In re Goodman cited in the preceding paragraph, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer.
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.
Claims 9-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ophardt (US 2013/0119083).
Regarding claim 9, Ophardt discloses a flowable food product dispenser (fig.1-39), the dispenser comprising: a frame (lower portion of 924 below 884); a body (upper portion of 924 above 884) coupled to the frame, the body defining a cavity for receiving a bag (860; [0282]) storing the flowable food product ([0259]), wherein the body includes a bottom wall (884) defining an opening (see opening in fig.26) and a fitment acceptor (812) at least partly received in the opening (see fig.26); a valve ([0256], an option of using valve as a fluid discharge mechanism) configured to selectively allow the flowable food product to flow out of the bag; and a control system ([0246]-[0248]) configured to control the valve to control an amount of flowable food product dispensed from the bag ([0246], [0248]), the control system configured to receive an indication of a desired amount of flowable food product, open the valve, and track a time that the valve is open to dispense the desired amount of flowable food product ([0246] and [0338]-[0339]).
Regarding claim 10, Ophardt discloses a user input device, wherein the control system is configured to receive an indication of a user engaging with the user input device and open the valve for as long as the user engages with the user input device ([0247]-[0248], via “remote controller”).
Regarding claim 11, Ophardt discloses the control system is further configured to determine a total amount of dispensed flowable food product over a period of time based on an amount of time that the valve is open over the period of time, and selectively provide an alert based on the total amount of dispensed flowable food product ([0224]-[0225], “calculation”).
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 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over
Ophardt (US 2013/0119083) in view of Gutierrez (US 2003/0116584) and Bolger (US 2007/0157640).
Ophardt is silent in disclosing a display and a temperature sensor, wherein the temperature sensor is positioned near the opening to determine a temperature of the flowable food product in the bag proximate to the opening, and wherein the display is configured to display the temperature; and a heating element configured to selectively heat the bag, wherein the control system is configured receive the temperature from the temperature sensor, and, in response, adjust power to the heating element to control an amount of heat provided to the bag. However, Gutierrez teaches the commonality of having a flowable food product dispenser that includes a display and a temperature sensor, wherein the temperature sensor is positioned near the opening to determine a temperature of the flowable food product in the bag proximate to the opening ([0076], via 31-32; see fig.7-8), and wherein the display is configured to display the temperature; and a heating element configured to selectively heat the bag, wherein the control system is configured receive the temperature from the temperature sensor, and, in response, adjust power to the heating element to control an amount of heat provided to the bag ([0075], via heater 31, see fig.7-8 and “variable power density”). It would have been obvious to one having ordinary skill in the art before the effective filling date of the application to add a heating system as taught by Gutierrez to the flowable food product bag of Ophardt, in order to offer a drink at a desired temperature. Furthermore, regarding the display is configured to display the temperature of the food, Bolger teaches the obviousness of having a display unit within a dispensing system to show the temperature and an option to alter the power ([0023-2-0023]). It would have been obvious to one having ordinary skill in the art before the effective filling date of the application to add a temperature display unit as taught by Bolger to the flowable food product dispenser of Ophardt and Gutierrez in combination in order to operate the device efficiently.
Claims 15-17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Ophardt (US 2013/0119083) in view of Kurosawa (JP 2007291882 A).
Regarding claim 15, Ophardt discloses a flowable food product dispenser (fig.1-39), the dispenser comprising: a valve ([0256], an option of using valve as a fluid discharge mechanism) configured to selectively allow flowable food product to flow out of a bag (860; [0282]) storing the flowable food product ([0259]) received in the flowable food product ([0259]), dispenser; and a control system ([0246]-[0248]) configured to control the valve to control an amount of flowable food product dispensed from the bag ([0246], [0248]), the control system configured to: receive an input regarding a portion-controlled dispensing mode of operation or a manual mode of operation for the flowable food product dispenser (([0151], [0159], [0246]-[0247]).
Ophardt is silent in disclosing in response to the input indicating the portion-controlled mode of operation, open the valve and start a timer; and in response to the valve being opened for more than a predetermined time based on operation of the timer, closing the valve to cease dispensing of the flowable food product. However, Kurosawa teaches the commonality of having a dispensing system that includes in response to the input indicating the portion-controlled mode of operation, open the valve and start a timer; and in response to the valve being opened for more than a predetermined time based on operation of the timer, closing the valve to cease dispensing of the flowable food product (see attached translation, page 7, ll. 29-36; and page 11, ll. 9-17). It would have been obvious to one having ordinary skill in the art before the effective filling date of the application to modify the control unit of the device of Ophardt as such to include a time measuring device as taught by Kurosawa, in order to “minimize the leak loss” (see Kurosawa, page 8, ll. 14-17).
Regarding claim 16, Ophardt discloses the control system is further configured to receive an input regarding a desired portion size of flowable food product in the portion-controlled mode of operation and open the valve according to a preset amount of time associated with the desired portion size of flowable food product ([0159]).
Regarding claim 17, Ophardt discloses the input includes a continuous input that causes the manual mode of operation to be initiated and the valve to be opened as long as the continuous input remains ([0151], [0159], [0246]-[0247]).
Regarding claim 19, Ophardt discloses the control system is further configured to determine a total amount of dispensed flowable food product over a period of time based on an amount of time that the valve is open over the period of time, and selectively provide an alert based on the total amount of dispensed flowable food product ([0224]-[0225], “calculation”).
Claims 18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over
Ophardt (US 2013/0119083) in view of Kurosawa (JP 2007291882 A) as applied to claim 15 above, and further in view of Gutierrez (US 2003/0116584) and Bolger (US 2007/0157640).
Ophardt and Kurosawa in combination are silent in disclosing a heating element configured to selectively heat the bag, wherein the control system is configured receive a temperature from a temperature sensor, and, in response, adjust power to the heating element to control an amount of heat provided to the bag; and a display and a temperature sensor, wherein the temperature sensor is positioned to determine a temperature of the flowable food product in the bag, and wherein the display is configured to display the temperature. However, Gutierrez teaches the commonality of having a flowable food product dispenser that includes and a heating element configured to selectively heat the bag, wherein the control system is configured receive the temperature from the temperature sensor, and, in response, adjust power to the heating element to control an amount of heat provided to the bag ([0075], via heater 31, see fig.7-8 and “variable power density”); and a display and a temperature sensor, wherein the temperature sensor is positioned near the opening to determine a temperature of the flowable food product in the bag proximate to the opening ([0076], via 31-32; see fig.7-8), and wherein the display is configured to display the temperature. It would have been obvious to one having ordinary skill in the art before the effective filling date of the application to add a heating system as taught by Gutierrez to the flowable food product bag of Ophardt and Kurosawa in combination, in order to offer a drink at a desired temperature. Furthermore, regarding the display is configured to display the temperature of the food, Bolger teaches the obviousness of having a display unit within a dispensing system to show the temperature and an option to alter the power ([0023-2-0023]). It would have been obvious to one having ordinary skill in the art before the effective filling date of the application to add a temperature display unit as taught by Bolger to the flowable food product dispenser of Ophardt, Kurosawa and Gutierrez in combination in order to operate the device efficiently.
State of the Prior Arts
Regarding claims 9 and 15, the prior arts to Ophardt (US 2013/0119083), Gutierrez (US 2003/0116584), Bolger (US 2007/0157640), Kurosawa (JP 2007291882 A), Bertone (US 2002/0148858), Coffee (US 6,595,208), Eckenhausen (US 2003/0232115), McMahon (US 2006/0138167), Baron (US 2010/0176155), Reddy (US 2012/0325846), Corini (US 4,133,456) and Mullen (US 4,804,118) as cited in PTO-892, either individually or in combination disclosing/teaching significant pertinent structures or features to the applicant’s claimed invention with regard to a flowable food product dispenser having a frame; a body coupled to the frame, the body defining a cavity for receiving a bag storing the flowable food product and a bottom wall defining an opening and a fitment acceptor at least partly received in the opening; a valve to selectively allow the flowable food product to flow out of the bag; and a control system to control the valve to control an amount of flowable food product dispensed from the bag and to receive an indication of a desired amount of flowable food product, open the valve, and track a time that the valve is open to dispense the desired amount of flowable food product; and in response to the input indicating the portion-controlled mode of operation, open the valve and start a timer; and in response to the valve being opened for more than a predetermined time based on operation of the timer, closing the valve to cease dispensing of the flowable food product. It appears that claims 9 and 15 do not provide any inventive concept over the cited prior arts.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Bob Zadeh whose telephone number is (571)270-5201. The examiner can normally be reached Monday-Friday 8am-4pm E.
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/BOB ZADEH/Primary Examiner, Art Unit 3754