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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 5/28/2026 has been entered.
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.
Claims 2-4, 7 and 8 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.
Regarding claim 2, it is unclear if the inlet opening of claim 2 is the same as the inlet opening of the sleeve of claim 1, or if the sleeve has two different inlet openings.
Claim 7 has the same issue.
The remainder of the claims are rejected for depending from claims 2 and 7.
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) 1-11 and 16-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wallace (2009/0256000) in view of Kinoshita (JP2009149329A)
Regarding claim 1, Wallace shows a drinking straw (10) for a package being filled with a pourable food product; the drinking straw being configured to be at least partially inserted into a package main body of the package (Fig 6, 7); the drinking straw comprises: - a tubular main body (11) including a coupling portion (a portion of the outer surface of 11 that touches 12) extending along a central axis (fig 1), the tubular main body having an outer diameter (the outer diameter of section 11) and oppositely located first and second ends (fig 1); and - a sleeve (12) fitted on and surrounding at least the coupling portion (fig 1) of the tubular main body so that the second end of the tubular main body is surrounded by the sleeve (fig 1, (the second end of 11 is being considered the left half of 11 as shown in fig 1, 12 surrounds at least a portion of that half ); wherein the sleeve possesses an outer surface (fig 1) and comprises an abutment portion (14) configured to abut onto an inner surface of the package main body after a partial insertion of the drinking straw into the package main body and during a movement of the drinking straw out of the package main body for impeding and/or hindering and/or blocking a removal and a separation of the drinking straw out of and from the package main body (fig 2D); wherein the abutment portion terminates at an abutment profile at a free end of sleeve (fig 1), the abutment profile surrounding a part of the coupling portion of the tubular main body (fig 1), the outer surface of the abutment profile being positioned radially outwardly of the outer surface of an immediately adjacent portion of the tubular main body (fig 1) that extends along the central axis and that is immediately adjacent the part of the coupling portion of the tubular main body (fig 1) so that the abutment profile after being positioned in the package main body abuts the inner surface of the package main body during the movement of the drinking straw out of the package main body (fig 7), wherein the sleeve comprises an inlet opening at an end of the sleeve opposite the free end of the sleeve (the opening on the left of 12 in fig 1), the second end of the tubular main body that is surrounded by the sleeve terminating at a free end of the tubular main body (fig 1), the free end of the tubular main body being located closer to the inlet opening of the sleeve than to the abutment profile at the free end of the sleeve (fig 1).
But fails to teach that the abutment profile is a frustoconical shaped abutment portion.
Kinoshita teaches a straw (1) that that has abutment profile (1d) that is a frustoconical shaped abutment portion.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the application was effectively filed to use the conical abutment profile of Kinoshita on the free end of the sleeve 12 of Wallace, instead of he multiple piece abutment profile of Wallace, in order to make the abutment profiled stronger and still perform the function of keeping the straw inside the container.
Regarding claim 2, wherein the sleeve comprises an end portion (inlet) having an inlet opening (inlet to 12 on the right Fig 1) configured to allow for the introduction of the pourable food product into the drinking straw (it allows the drinking straw to pass through the sleeve so that pourable food product can enter the drinking straw)
Regarding claim 3, wherein the tubular main body comprises the first end of the tubular main body has an outlet opening (outlet of 11, fig 1) configured to allow for the outflow of the pourable food product from the drinking straw (the outlet of 11 can perform this function); wherein the second end of the tubular main body is interposed between the frustoconical shaped abutment portion and the inlet opening (fig 1).
Regarding claim 4, wherein the coupling portion is spaced apart from the inlet opening (fig 1).
Regarding claim 5, wherein the sleeve comprises an engagement portion (the portion that touching the outer surface of 11) fitted to and surrounding the coupling portion (fig 1).
Regarding claim 6, wherein the abutment portion is connected to the engagement portion (fig 1); wherein the abutment portion tapers from the abutment profile towards the engagement portion (fig 1).
Regarding claim 7, wherein the sleeve comprises an end portion having an inlet opening (left side of 12, fig 1) configured to allow for the introduction of the pourable food product into the drinking straw; wherein the engagement portion is interposed between the abutment portion and the end portion (fig 1).
Regarding claim 8, wherein the end portion extends from the engagement portion and is not in contact and/or is not fitted onto the coupling portion (the coupling portion can be considered to be a small section of the outer surface of 11 that abuts the upstream end of 12. That way the downstream opening of 12 is not in contact with the coupling portion. The term (portion is extremely broad).
Regarding claim 9, wherein the engagement portion has an external transversal extension being smaller than an external cross-sectional extension of the abutment portion (an engagement portion can be chosen to have a shorter length then a chosen abutment portion).
Regarding claim 10, wherein a wall thickness of the engagement portion is substantially equal to a wall thickness of the abutment portion (fig 1).
Regarding claim 11, as to the recited process of “the abutment portion is obtained from an insertion of a coning tool having a heated cone-shaped portion into a tubular precursor; wherein the cone-shaped portion is configured to form and define the abutment portion”, such is a product by process recitation. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or an obvious variant from a product in the prior art, the claim is unpatentable even though the prior product was made by a different process (see MPEP 2113).
Regarding claim 16 the straw of Wallace as modified above is fully capable of being applied to and removed from a package being filled with pourable food product.
Additionally, if the examiner calls the entire downstream half of the straw 11 the second end, then at least a portion of the second end of 11 is surrounded by the sleeve 12.
Wallace teaches using adhesive to glue 12 to 11 [0029].
Regarding claim 17, wherein the sleeve includes oppositely disposed first and second ends (fig 1), the frustoconical-shaped abutment portion (Kinoshita) tapering in a narrowing manner from the first end of the sleeve toward the engagement portion of the sleeve (fig 1).
Regarding claim 18, wherein the frustoconical- shaped abutment portion (from Kinoshita) of the sleeve includes an abutment profile configured to abut onto the inner surface of package main body, the abutment profile being an end surface of the sleeve located at a first end of the sleeve (fig 1), the frustoconical-shaped abutment portion tapering in a narrowing manner from the abutment profile toward a second end of the sleeve that is located opposite the first end of the sleeve (fig 1).
Regarding claim 19, wherein the frustoconical- shaped abutment portion of the sleeve includes an abutment profile configured to abut onto the inner surface of package main body, the abutment profile being an end surface of the sleeve located at a first end of the sleeve (fig 1), the frustoconical-shaped abutment portion (Kinoshita) tapering in a narrowing manner from the abutment profile to an interface section of the sleeve (fig 1), the frustoconical-shaped abutment portion having an inner surface, at least a part of the inner surface of the frustoconical-shaped abutment portion between the abutment profile and the interface section facing towards and being spaced from the outer peripheral surface of the tubular main body (fig 1).
Claim(s) 12-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bettle, Jr. et al. (5,201,459) in view of Wallace (2009/0256000) as modified by Kinoshita (JP2009149329A) above
Regarding claim 12, Bettle, Jr. et al shows a package main body (10) filled with a pourable food product (inherent to a package for use with a straw) and a drinking straw (22),
But fails to disclose the drinking straw is that of claim 1.
However, Wallace as modified above shows the straw of claim 1 as described above.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the application was effectively field to use the straw of Wallace as modified above with the package of Bettle, Jr. et al, instead of straw 22, in order to have a straw that is retained in the package by the abutment portion, as taught by Wallace (fig 7).
Regarding claim 13, wherein the package main body comprises a main opening (14, Bettle) allowing for the introduction of the drinking straw into the package main body; wherein the abutment portion is configured to abut against a section of the inner surface positioned at a rim delimiting the main opening (fig 7, Wallace).
Regarding claim 14, wherein a maximum cross-sectional extension of the abutment portion is larger than a maximum transversal extension of the main opening (since the main opening is in Bettle is the size of the straw, and element 5 of Wallace as modified above has a diameter larger than the straw, then a maximum cross-sectional extension of the abutment portion is larger than a maximum transversal extension of the main opening).
Regarding claim 15, wherein the package main body comprises a pierceable separation membrane (fig 2, Bettle) covering the main opening; wherein the sleeve comprises an end portion (6) having an inlet opening (fig 2) configured to allow for the introduction of the pourable food product into the drinking straw and being configured to pierce the separation membrane during an insertion of the drinking straw into the package main body (fig 2, Bettle).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-19 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON J BOECKMANN whose telephone number is (571)272-2708. The examiner can normally be reached M-F 9am to 5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arthur Hall can be reached at (571) 270-1814. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JASON J BOECKMANN/Primary Examiner, Art Unit 3752 7/2/2026
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