DETAILED ACTION
-Specification
The amendment filed 2/10/26 is objected to because
Applicant’s disclosure states on Pages 3 and 4, the “jacket 7” is made of a pair of mating bell curves with mating tails; however, no bell curves are illustrated in the figures. Figure 1 illustrates an ellipse, which is not a bell curve as there is no tail. It appears applicant is attempting to use the term “bell curve” contrary to its widely accepted meaning, which is confusing and improper. At this point, it appears this may be another translational error. While there is support for “curves” there is not support for any bell curves in applicant’s figures.
Drawings
The replacement figures were received on 2/10/26. These drawings are objected to.
-The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “mirror image bell curves with a tail end of each of said bell curves being in mating contact with a tail end of the opposite bell curve” of claim 1, the “capsule” of claim 4 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Previously, with the translation issues, the office understood claim 1 to be claiming the neck opening of the flexible pouch (see Fig 2) was formed by two bell curves because these are the only bell curves illustrated; however, applicant has now amended the disclosure and claims to require that the jacket (7) and not the flexible pouch (5) has this arrangement, but there are no figures that illustrate a jacket having this shape. Instead every cross-sectional image illustrates the jacket as a tube and not with any type of bell curve with tails. This drawing objection is now necessary with applicant’s recent amendment.
Corrected drawing sheets in compliance with- 37 CFR 1.121(d) 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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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(s) 4 is/are 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 4: this claim recites “a capsule having a profile shape symmetric to the profile shape of the jacket”; however, this directly contradicts applicant’s figures and claim 1. Claim 1 requires the jacket profile shape is two mating bell curves, but the only “capsule” discussed is the handle formed by the grip element (see Page 6 of applicant’s disclosure) and this is clearly illustrated as a cylinder (see Figs 2 & 6-7) and no bell curve is shown. The language “symmetric” also does not appear anywhere in applicant’s disclosure. These are new matter rejections.
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.
Claim(s) 1-7 is/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 pre-AIA the applicant regards as the invention.
Claim 1: This claim requires the jacket has a profile shape formed of “a pair of oppositely disposed mirror image bell curves with a tail end of each of said bell curves being in mating contact with a tail of the opposite bell curve”; however, Figures 3-5 illustrate this jacket as being tubular shaped or cylindrical and not having any sort of bell curvature in any of its profiles, making it unclear what exactly is being claimed. Is applicant attempting to redefine the term “bell curve” contrary to its ordinary meaning or is this a translation error? For examination purposes, the claim will be treated as reciting “the jacket has a profile shape that is round” since is what is illustrated and disclosed in the application. Clarification or correction is requested.
Claim 7: recites “said one or more folded sheets” without antecedent basis. Clarification or correction is requested.
Claim Rejections - 35 USC § 102/103
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 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 the appropriate paragraphs of 35 U.S.C. 102 and 103 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
102(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.
103: 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, 5, and 7, as best understood, is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious Bouix (US 20030015211).
Claim 1: Bouix discloses a container (30) comprising: a jacket (6), a flexible cartridge (30), and a closing/gripping element (4); wherein the flexible cartridge is made by forming sheet-like material into a pouch or bag-like structure with the two sheets of material sealed on at least three edges [0036-0037] with an opening at one end (32). This opening is sealed with a fitment (see Figs 3-4) that has a series of bottom wedge shaped flanges (57, see Figs 3-4) and these flanges are illustrated to be in the shape of two bell curves oppositely disposed with their tails meeting (see Fig 4). This description [0036-0037] means that the flexible cartridge housed inside the jacket has a cross-sectional, or profile, shape symmetric to the shape of the fitment bottom. In other words, the flexible pouch profile also includes a pair of oppositely disposed mirror image bell curves with a tail end of each of said bell curve being in mating contact with a tail of the opposite bell curve and forming a central reservoir area therebetween. The office also notes that this “bell curve” feature being claimed in relation to the jacket does not appear to be illustrated by applicant and instead applicant appears to disclose the jacket as a cylindrical tube, which is what Bouix discloses and so it is interpreted to meet the claim.
However, alternatively, if applicant disagrees that Bouix teaches the jacket having the bell curve shape, then Bouix discloses the invention essentially as claimed except for the jacket having this tapered shape. However, since it has been held by the courts that a change in shape or configuration, without any criticality in operation of the device, is nothing more than one of numerous shapes that one of ordinary skill in the art will find obvious to provide based on the suitability for the intended final application. See MPEP 2144.04(IV)(B). It appears that the disclosed device would perform equally well shaped as disclosed by Bouix at least because the shape illustrated by Bouix is also the shape illustrated by applicant, as best understood,
Claim 2: Bouix discloses the flexible cartridge can be formed from a folded rectangular (see Fig 2) sheet [0036-0037] and the flexible cartridge is provided with a neck (28) carrying the flanged fitment/collar (see Figs 3-4); the collar/fitment also carries at least one round support projection (58) and a threaded area (40) for engagement with the closing element (4, see Fig 2).
Claim 3: Bouix discloses the device further comprising an applicator body (8+10, Figs 2 & 10) comprising a rod (8) carrying an applicator head (10) at one end and a hollow head at an opposite end of the rod; wherein the hollow head is provided at its top with a flange (see annotations) surrounding a rod cavity (see annotations) forming a hollow of the hollow head (see annotations).
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Claim 5: Bouix discloses the closing element comprises a closing cap (4); wherein the closing cap is attached to the applicator rod (see Fig 2), thereby keeping the applicator rod in a fixed position (see Fig 10).
Claim 7: Bouix discloses the flexible cartridge can comprise multiple layers [0035] and be made of a plastic [0035], which is an inert hydrophobic non-breathable material that can be stacked and joined [0035-0037].
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 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.
Claims 4 and 6, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over Bouix (US 20030015211) in view of Choi (US 20110103872).
Claim 4: Bouix discloses the closing element including a cap/capsule (4) having a round profile shape with a round central inside cavity (see Fig 10) and an exterior forming a grip area. Bouix discloses the invention essentially as claimed except for the capsule having a profile shape symmetric to the profile shape of the jacket; and the closing element including a jag on an entirety of an inner wall for engagement with the rod cavity of the hollow head.
Choi, however, teaches a container (20) comprising a closing cap element (100+40) joined to a rod (41) carrying an applicator (see Fig 7 & annotations); wherein the rod includes a rod cavity formed by a surrounding flange at one end (see annotations) with this rod cavity receiving a mating protrusion that extends from a top surface of an inner wall of the cap having a same shape as the rod cavity (see annotations) and at least one jag forming the screw threading on an entirety of an inner wall of the cap assists in holding the rod and the rod cavity in position. It is common sense that this arrangement would provide a more stable connection between the cap and the rod. Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing (or the time of invention if Pre-AIA ) to modify the container of Bouix by providing the mating protrusion and jag arrangement between the rod and the cap in view of Choi in order to provide additional stability to the connection between the cap and the rod.
Modified Bouix discloses the invention essentially as claimed except for the cap having a symmetric shape to the jacket. However, it would have been obvious to one of ordinary skill in the art at the time of filing to modify the cap to comprise a same mirrored bell curve shape, since it has been held by the courts that a change in shape or configuration, without any criticality in operation of the device, is nothing more than one of numerous shapes that one of ordinary skill in the art will find obvious to provide based on the suitability for the intended final application. See MPEP 2144.04(IV)(B). It appears that the disclosed device would perform equally well shaped as disclosed by Bouix or modified Bouix.
Claim 6: Bouix discloses the rod cavity being in the shape of a truncated cone (see annotations) and discloses the invention essentially as claimed except for a top surface of an inner wall of the cap having a matching truncated conical protrusion that engages with the rod cavity. Choi, however, teaches a container (20) comprising a closing cap element (100+40) joined to a rod (41) carrying an applicator (see Fig 7 & annotations) and the rod includes a rod cavity surrounded by a flange at one end (see annotations) with this rod cavity receiving a mating protrusion that extends from a top surface of an inner wall of the cap having a same shape as the rod cavity (see annotations). It is common sense that this arrangement would provide a more stable connection between the lid and the rod. Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing (or the time of invention if Pre-AIA ) to modify the container of Bouix by providing a mating protrusion extending from a top inner wall of the cap with a same shape as the already existent truncated conical rod cavity of Bouix in view of Choi in order to provide additional stability to the connection between the cap and the rod. This would result in a truncated cone shaped protrusion extending from a top inner wall of the cap thereby meeting the claim limitations.
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Response to Arguments
Applicant's arguments filed 2/10/26 have been fully considered but they are not persuasive.
Applicant’s arguments are moot as a new interpretation of the reference is used to address the newly amended claims.
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 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer Gill whose telephone number is (571)270-1797. The examiner can normally be reached on Monday-Thursday 9:00am-5:00pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Eric Rosen, can be reached on 571-270-7855. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER GILL/
Examiner, Art Unit 3772
/NICHOLAS D LUCCHESI/Primary Examiner, Art Unit 3772
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