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
Claims 1, 3-6, 8-13 are pending.
Claims 1, 3-6 are currently amended.
Claim 2, and 7 is canceled.
Claims 13 is withdrawn.
Claim Rejections - 35 USC § 103
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.
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, 3-6, and 8-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Davidson (US D459156 ) in view of Wikipedia (hereinafter “Wiki”).
Regarding claim 1, Davidson discloses, An alcoholic drink tasting glass (Fig.1-5; Description) comprising: sidewalls (See annotated fig. below) and a base (See annotated fig. below) which define a volume (See annotated fig. below)for accommodating a liquid , a conical depression (See annotated fig. below) formed in the base and located inside the volume of the alcoholic drink tasting glass and wherein the conical depression is formed by sidewalls which have a constant curvature.
However, Davidson does not explicitly disclose, wherein the alcoholic drink tasting glass is formed from soda-lime glass.
Wiki discloses, beverage container are made of soda-lime glass.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Davidson to make the glass of soda-lime glass as it is known to be “inexpensive, chemically stable, reasonably hard, and extremely workable.”.
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The limitation “the conical depression is configured to distribute the alcoholic liquid when poured into the alcoholic drink tasting glass,wherein the conical depression is configured to reduce a splash of the alcoholic liquid when poured into the alcoholic drink tasting glass” is considered to be functional language. The prior art of Davidson as modified has all the structures required perform the claimed functional limitation. Hence, the prior art is inherently capable of performing the limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the claim is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. See MPEP 2173.05(g). Herein the glass of Davidson has all the structure as claimed and is considered to be capable of “distribute the alcoholic liquid when poured […] and reduce a splash of the alcoholic liquid when poured into the alcoholic drink tasting glass”.
The limitation “the soda-lime glass interacts with ethanol in the alcoholic liquid when the alcoholic liquid is poured into the alcoholic drink tasting glass, and wherein the soda-lime glass interaction with the ethanol decreases an amount of ethanol to be vaporized from the alcoholic liquid” is considered to be intended use. Examiner asserts that the recitation of intended use or purpose of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use or fulfilling said purpose, then it meets the claim. Herein, the soda-lime glass of Davidson is just as the instant application as claimed and therefore is expected to perform the same i.e. interact with ethanol when alcoholic liquid is poured and interaction with the ethanol decreases an amount of ethanol to be vaporized from the alcoholic liquid.
Regarding claim 3, Davidson discloses, the conical depression has a symmetry axis which is perpendicular to the base (Fig. 5; depression is shown to be symmetric).
Regarding claim 4, 5, and 6; Davidson discloses a conical depression but does not explicitly disclose, a volume defined by the depression is between 0.5 ml and 3 ml, and a volume defined by the depression is less than 1 ml and a depth of the depression is between 6 mm and 10 mm. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have a volume defined by the depression is between 0.5 ml and 3 ml, and a volume defined by the depression is less than 1 ml and a depth of the conical depression is between 6 mm and 10 mm, since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See MPEP 2144.05(II A). This is done for the purpose of improving aeration when pouring drink in the glass.
Regarding claim 8, Davidson discloses, the base comprising an ice (See annotated fig. below) but does not disclose, an ice having a thickness of between 20mm and 50mm.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have an ice having a thickness of between 20mm and 50mm since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See MPEP 2144.05(II A). This is done for the purpose of making the glass bottom heavy thus allowing for improved stability while also minimizing thermal exchange in between any surface the glass is kept and the beverage.
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Regarding claim 9, Davidson discloses the sidewalls form a bulb (Fig. 1-5).
Regarding claim 10, Davidson discloses, the sidewalls have a convergent portion (as it goes towards the bottom/base) and a divergent portion (as the wall goes towards the opening), wherein the divergent portion forms a mouth of the glass (Fig. 1, 5).
Regarding claim 11, Davidson discloses a sidewall with a curvature radii but does not explicitly disclose, a curvature radii of the sidewalls are between 50 mm and 60mm. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have a curvature radii of the sidewalls are between 50 mm and 60mm since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See MPEP 2144.05(II A). This is done for the purpose of improving while allowing an user to swirl the beverage at an ideal rate that allows for elevated experience.
Regarding claim 12, Davidson discloses the glass comprises 65-75 percent silicon dioxide (See fig. below) , 10-20 percent sodium oxide (See fig. below), and 2-16 percent calcium oxide (See fig. below).
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Claim(s) 1 is/are rejected under 35 U.S.C. 103 as being unpatentable over Davidson (US D459156 ) in view of D'Orefice (US 3608766) as evidenced by NPL (Wikipedia).
Regarding claim 1, Davidson discloses, An alcoholic drink tasting glass (Fig.1-5; Description) comprising: sidewalls (See annotated fig. below) and a base (See annotated fig. below) which define a volume (See annotated fig. below)for accommodating a liquid , a conical depression (See annotated fig. below) formed in the base and located inside the volume of the alcoholic drink tasting glass and wherein the conical depression is formed by sidewalls which have a constant curvature.
However, Davidson does not explicitly disclose, wherein the alcoholic drink tasting glass is formed from soda-lime glass.
D'Orefice discloses, beverage glass made of soda-lime glass (Col. 2; lines 9).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Davidson to make the glass of soda-lime glass as it is known to be inexpensive, chemically stable, reasonably hard, and extremely workable.1
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The limitation “the conical depression is configured to distribute the alcoholic liquid when poured into the alcoholic drink tasting glass,wherein the conical depression is configured to reduce a splash of the alcoholic liquid when poured into the alcoholic drink tasting glass” is considered to be functional language. The prior art of Davidson as modified has all the structures required perform the claimed functional limitation. Hence, the prior art is inherently capable of performing the limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the claim is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. See MPEP 2173.05(g). Herein the glass of Davidson has all the structure as claimed and is considered to be capable of “distribute the alcoholic liquid when poured […] and reduce a splash of the alcoholic liquid when poured into the alcoholic drink tasting glass”.
The limitation “the soda-lime glass interacts with ethanol in the alcoholic liquid when the alcoholic liquid is poured into the alcoholic drink tasting glass, and wherein the soda-lime glass interaction with the ethanol decreases an amount of ethanol to be vaporized from the alcoholic liquid” is considered to be intended use. Examiner asserts that the recitation of intended use or purpose of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use or fulfilling said purpose, then it meets the claim. Herein, the soda-lime glass of Davidson is just as the instant application as claimed and therefore is expected to perform the same i.e. interact with ethanol when alcoholic liquid is poured and interaction with the ethanol decreases an amount of ethanol to be vaporized from the alcoholic liquid.
Response to Arguments
Applicant's arguments filed 12/23/2025 have been fully considered but they are not persuasive.
Firstly, the applicant argues that the prior art of Davidson fails to disclose a “conical depression” to that the examiner respectfully disagrees. The word conical is defined as “resembling a cone especially in shape” (merriam-webster)2 and the depression of Davidson is clearly shows to have a cone shape.
The applicant further argues that the instant application better distribute the liquid. The limitation as claimed in considered functional language and the prior art as presented is considered to be capable of performing this limitation.
The applicant argues that tasting glass of claim 1 is not storage container and is not recycled and therefore, one of ordinary skill in the art would not be motivated to modify the prior art of Davidson. the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the prior art provides many reason to utilize soda-lime glass i.e. inexpensive along with other motivations. The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006)
Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. The NPL of Wiki explicitly states the use of soda-lime glass along with motivation for usage as such a person of ordinary skill in the art would look at NPL such as WIKI as it is disclosed before the effective filling date of the claimed invention.
Applicants argument with regards to soda-lime interacting with ethanol is not persuasive since the prior art of Davidson is also made of the same material and expected to perform the same as the instant application.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 SANJIDUL ISLAM whose telephone number is (571)272-7670. The examiner can normally be reached Monday-Friday 8:30 -5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Orlando E. Aviles can be reached at 571-270-5531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SANJIDUL ISLAM/Examiner, Art Unit 3736
/ORLANDO E AVILES/Supervisory Patent Examiner, Art Unit 3736
1 https://en.wikipedia.org/wiki/Soda%E2%80%93lime_glass
2 https://www.merriam-webster.com/dictionary/conical