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 .
Response to Amendment
This office action is in response to the reply filed on 2/12/2026, wherein claims 1, 22 were amended, claims 11-20 are cancelled, claims 24-30 are new. Claims 1-10 and 21-30 are pending.
Election/Restrictions
Newly submitted claims 24-30 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: the new species introduces new limitations not previously considered, for example the original species did not consider an arch between 180 and 270 degrees and the U-shaped slot being defined by walls.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 24-30 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added 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.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: item 17. Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 22 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. claim 22 states that the device is made of a "comestible" material. However, the as filed specification does not use the term "comestible" material.
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(s) 1 is/are rejected under 35 U.S.C. 102a(1) as being anticipated by Amazon SOLO Plastic Lid (see webpage attached).
With respect to claim 1, Amazon SOLO Plastic Lid discloses a device capable of being a bottle holder device, comprising: a substantially planar top surface (figure 1); an opening (figure 1) through the top surface; and a side wall (figure 1) that is arched and extending along a side of the top surface, wherein the side wall includes a substantially U-shaped receiving slot (figure 1) extending an entire length of the side wall, the U-shaped receiving slot including a ledge (bottom of u-shaped channel) extending inward from the side wall and defining a bottom wall of the U-shaped receiving slot, wherein the side wall is arched less than 360 degrees. (arch/curve in side wall is not over 360 degrees)
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Claim(s) 1-5, 8, 10, 21-23 is/are rejected under 35 U.S.C. 102a(1) as being anticipated by Miller (US 8881939 B2).
With respect to claim 1, Miller discloses a bottle holder device, comprising: a substantially planar top surface (324); an opening through the top surface (321a of figure 15-16); and a side wall (322) that is arched and extending along a side of the top surface; wherein the side wall includes a substantially U-shaped receiving slot (area between 323, 41 and 322) extending an entire length of the side wall, the U-shaped receiving slot including a ledge (323, 41) extending inward from the side wall and defining a bottom wall of the U-shaped receiving slot, wherein the side wall is arched less than 360 degrees. (length of wall is less than 360 degrees)
Examiner Note: figure 6 shows more details for parts featured in figures 15-16. The claims don’t limit the U-shaped receiving slot to only the side wall. Further depending on interpretation of side wall, 41 and an outer portion of 22 could be included in side wall definition, the top surface need not extend out to 22. The bounds of the top surface aren’t required to include the entirety of 322, the side wall could include portions of 322.
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With respect to claim 2, Miller teaches the bottle holder device of claim 1, wherein the opening (321a) is circular.
With respect to claim 3, Miller teaches the bottle holder device of claim 1, wherein a wall defining the opening (321a) is chamfered. (from figure 15 the device appears to have a chamfer around 321a, also visible in figure 4 as a closer view of a different embodiment)
With respect to claim 4, Miller teaches the bottle holder device of claim 3, wherein a chamfer of the opening slopes inward from the top surface towards a center of the opening. (from figure 15 the device appears to have a chamfer around 321a, also visible in figure 4 as a closer view of a different embodiment)
With respect to claim 5, Miller teaches a bottle holder device of claim 1, wherein a center of the opening (321a) is offset from a center of a widest width of the top surface.
With respect to claim 8, Miller teaches a bottle holder device of claim 1 made of a unitary construction of plastic, molded wax, or a biodegradable material. (col 4 lines 17-20)
With respect to claim 10, Miller teaches a bottle holder device of claim 1, wherein the receiving slot (portion below 324 that includes 323 to 322) is configured to fit over and be supported by a rim of a can. (can be supported by a topless can)
With respect to claim 21, Miller teaches a bottle holder device of claim 1, wherein the opening is configured to hold an inverted mini bottle. (No structural limitation written; Millers device is capable of this)
With respect to claim 22, Miller teaches a bottle holder device of claim 1, that is made of a comestible material. (col 6 lines 3-13).
Examiner Note: Comestible, like edible, is not limited to human consumption. This does not distinguish an organism. Microplastics are commonly consumed. Dogs are known to consume plastic components. Certain organism can digest plastics. Wax worms can digest polyethylene. Claims 7 and 19 state preference for a molded plastic. Polyethylene is a commonly used plastic in injection molding.
With respect to claim 23, Miller teaches wherein a bottom portion (inside surface of 322 or 323,41) of the substantially U-shaped receiving slot is parallel to an outside surface of the side wall.
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.
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) 6-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Miller (US 8881939 B2).
With respect to claim 6, the references as applied to claim 1, above, disclose all the limitations of the claims except for wherein a circumference of the side wall is shaped like a semicircle. However it is considered as a change of shape of Mllers design and not novel in view of the guidelines established In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). The application has presented no argument which shows that the particular configuration of their side edge length is significant or is anything more than one of numerous configurations a person of ordinary skill in the art would find obvious for the purpose of allowing placement and stabilization of bottles from Millers invention. See Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459.
With respect to claim 7, the references as applied to claim 1, above, disclose all the limitations of the claims except for wherein a circumference of the side wall is arched more than 180 degrees. However it is considered as a change of shape of Mllers design and not novel in view of the guidelines established In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). The application has presented no argument which shows that the particular configuration of their side edge length is significant or is anything more than one of numerous configurations a person of ordinary skill in the art would find obvious for the purpose of allowing placement and stabilization of bottles from Millers invention. See Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Miller (US 8881939 B2) in view of Byrns (US 4708254 A).
With respect to claim 9, the references as applied to claim 1, above, disclose all the limitations of the claims except for wherein the top surface includes a signage. However, in a similar field of endeavor, namely bottle holders, Byrns taught of including indicia in order to promote advertising (col 1 lines 48-50). It would have been obvious for someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the device of Miller to include indicia as taught by Byrns in order to allow advertising.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US-8881939-B2 OR US-6901976-B1 OR US-4708254-A OR US-D1042046-S OR US-11033131-B2 OR US-D731696-S OR US-D731697-S OR US-D731698-S OR US-11918544-B2 OR US-D650692-S OR US-20130306664-A1 OR US-20170128327-A1 OR US-20120234845-A1 OR US-20070272329-A1 OR US-20050029299-A1.
Response to Arguments
Applicant's arguments filed 2/12/2026 have been fully considered but they are not persuasive. Applicant believes the phrase "wherein the side wall is arched less than 360 degrees" overcomes the current rejection. However, applicant is taking a narrowed view of the term arched, it appears applicant wishes to use the term arch to refer to a perimeter/circumference. However, arch can also be viewed as the curve in the sidewall (like a fillet). The amazon prior art depicts a curved./filleted side wall (as best seen in cross sectional views), the fillet in this case does not go over 360 degrees.
Further the statement “a substantially U-shaped receiving slot extending an entire length of the inside of the side wall” can be interpreted as the U-shaped slot extends the same length as the inside of the side wall. The slot is not limited to extending only on the side wall.
Even if the U-shaped receiving slot was limited to just the side wall, the interpretation for side wall and top surface can be broad. For the prior art, 41 and an outer portion of 22 could be included in side wall definition, the top surface need not extend out to 22. The bounds of the top surface aren’t required to include the entirety of 322, the side wall could include portions of 322. Meaning that 323, 41 can also be considered part of the side wall. The planar top surface only needs to be a portion of 22.
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 extension fee 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 SYMREN K SANGHERA whose telephone number is (571)272-5305. The examiner can normally be reached Mon - Fri.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Stashick can be reached on (571)272-4561. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/S.K.S./Examiner, Art Unit 3735
/ERNESTO A GRANO/Primary Examiner, Art Unit 3735
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