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 .
Claim Rejections - 35 USC § 102
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 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) 1-2, 5-6, 8-9, 11-13, 15-18, 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hendrickson et al (US 3,567,077, cited by IDS), hereinafter Hendrickson.
Regarding claim 1, Hendrickson teaches a spout protector (10, Fig 1-3) for protecting a neck portion or a spout (32) of a container (11), the spout protector comprising an outer wall portion (12); a bottom portion (14) that extends radially inwardly (as shown in Fig 2-3) from a lower portion (intersection of 14 & 12) of the outer wall portion; and a raised portion (15) that extends vertically upwardly from the bottom portion (as shown in Fig 2-3, raised portion is extending vertically upwardly toward 35); wherein the outer wall portion is substantially circular (as shown in Fig 1).
Hendrickson further teaches in claim 2 wherein the raised portion includes a generally circular sidewall (as shown in Fig 1-3) and an upper portion (29) connected to the sidewall;
in claim 5 wherein the outer wall portion of the spout protector comprises a tapered or angled portion (as shown in Fig 2-3);
in claim 6 wherein the outer wall portion includes an upper portion and a lower portion that is radially offset from the upper portion of the outer wall portion (as shown in Fig 1);
in claim 8 wherein the upper portion of the raised portion includes an aperture (30);
in claim 9 wherein the spout protector is formed as a single, unitary component (as shown in Fig 2-3);
in claim 11 wherein a diameter of the spout protector is greater than an outer diameter of a neck finish of an associated container (as shown in Fig 2);
in claim 12 wherein an outermost diameter of the spout protector is less than an outermost width of an associated container (as shown in Fig 2); and
in claim 13 wherein a diameter of the spout protector is smaller than an outer diameter of a neck finish of an associated container (as shown in Fig 2, diameter of 30 is smaller than the diameter of the neck 20).
Regarding claim 15, Hendrickson teaches an assembly comprising a spout protector (10, Fig 1-3) comprising an outer wall portion (12), a bottom portion (14) that extends radially inwardly (as shown in Fig 2-3) from a lower portion (intersection of 14 & 12) of the outer wall portion, and a raised portion (15) that is disposed vertically upwardly from the bottom portion (as shown in Fig 2-3, raised portion is extending vertically upwardly toward 35); and a container (11) including a neck portion (20) and a spout (32); wherein the raised portion of the spout protector extends above the spout of the container (as shown in Fig 2/3, raised portion 15 extends to 35 which is past 32).
Hendrickson further teaches in claim 16 wherein the raised portion encloses or covers the spout of the container (as shown in Fig 3);
in claim 17 wherein an outermost diameter of the bottom portion of the spout protector is greater than a diameter of a neck finish of the container (as shown in Fig 2);
in claim 18 wherein an overall diameter of the spout protector is less than an outer width of the container (as shown in Fig 2); and
in claim 20 wherein the container is a spray or aerosol container (Col 1, Ln 52) and the spout comprises a nozzle (Col 1, Ln 52-58).
Claim(s) 1-2, 5-6, 8-13, 15-18, 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Patton (US 2,973,114)
Regarding claim 21, Patton teaches a spout protector (18, Fig 1) for protecting a neck portion or a spout (28) of a container (10), the spout protector comprising an outer wall portion (29); and a top portion (37); wherein the outer wall portion includes a lower portion (17) having a bottom surface (near 19); the bottom surface is configured to contact a portion of a container (at 16); and the top portion is configured to be disposed over a spout (28) of said container (as shown in Fig 1).
Claim(s) 22 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Frohn (EP 0235348 A1).
Regarding claim 22, Frohn teaches a plurality of layers of containers, comprising: a first layer including a plurality of containers (10, Fig 1-6; Machine Translation Pg 1, ¶1); a second layer including a plurality of containers (Machine Translation Pg 1, ¶1); wherein the second layer is provided above the first layer (Fig 6), and more than one of the plurality of the containers in the first layer include a spout protector (34) that extends vertically above a spout (30) of the respective container (best shown in Fig 1).
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) 3-4, 10, 14, 19 are rejected under 35 U.S.C. 103 as being unpatentable over Hendrickson.
Regarding claims 3-4, Hendrickson is silent wherein the spout protector is comprised of a polymer or plastic and wherein the spout protector is comprised of high-density polyethylene (HDPE), polyethylene (PE), or polyethylene terephthalate (PET).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to make the spout protector out of HDPE, PE, or PET plastic. Applicant has not disclosed that whether any of the above choices achieves any unexpected results. Therefore, it would have been prima facie obvious to further modify Hendrickson to arrive at the claimed invention as specified in claims 3-4because such a modification would have been a mere design consideration. (See MPEP 2144.04 (I)).
Regarding claim 10, Hendrickson is silent wherein the spout protector is formed in two or more pieces that are combined or used in combination. Instead, Hendrickson teaches a single or unitary design in the figures.
At the time the invention was made, it would have been obvious matter of design choice to a person of ordinary skill in the art to use two or more pieces to form the spout protector. Applicant has not disclosed the use of two or more pieces provides an advantage, is used for a particular purpose, or solves a stated problem. One of ordinary skill in the art, furthermore, would have expected Hendrickson’s single piece spout protector to perform equally well because both types of manufacture are equally capable of forming a spout protector.
Accordingly, it would have been obvious one of ordinary skill in the art at the effective filing date of the claimed invention to modify Hendrickson to obtain the invention as claimed because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art of Hendrickson.
Regarding claims 14 & 19, Hendrickson is silent wherein a height of the spout protector is a minimum of 0.125 inches (3.18 mm) above a spout height of an associated container. Instead, Hendrickson does not specify any dimensions or scale in the figures. The Federal Circuit has held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. MPEP 2144.04 (IV)(A) (discussing Gardner v. Tec Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)). Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Hendrickson’s device to have any suitable dimensions, including those claimed. Applicant appears to have placed no criticality on any particular spout protector height (see Specification) and it appears that Hendrickson’s device would work equally well if made within the claimed range of spout height.
Claim(s) 7 is rejected under 35 U.S.C. 103 as being unpatentable over Hendrickson, in view of Brogna et al (US 4,949,526), hereinafter Brogna.
Regarding claim 7, Hendrickson teaches substantially all features of the claimed invention except for wherein the spout protector is configured to be nested within a portion of an identical spout protector. Attention is directed to Brogna that teaches wherein the spout protector (70, Fig 15) is configured to be nested within a portion of an identical spout protector (as shown in Fig 15-16. Examiner notes that although Brogna does not positively recite a spout portion, the lid as taught performs the same function as Applicant’s invention, i.e., protecting the spout (in this case, the container mouth) and prevent spilling. Therefore, the lid is recognized as an equivalent since it performs the same function, in the same manner as the spout means disclosed by Applicant).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the spout protector used in Hendrickson’s device with a nestable spout protector, in view of Brogna’s teaching. Since both systems were art-recognized equivalents at the time of the invention and both systems were used for the same purpose, i.e., to protect a spout, one of ordinary skill in the art would have found it obvious to make the substitution on the basis of its suitability for the intended use.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2004/0026450 to Rohr et al is directed to the state of the art as a relevant teaching of the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER C CHIANG whose telephone number is (571)270-5613. The examiner can normally be reached Mon-Fri 10 AM- 6 PM EST.
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/JENNIFER C CHIANG/Primary Examiner, Art Unit 3754