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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 8/21/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Drawings
The drawings are objected to under 37 CFR 1.83(a) because they fail to show the “aerosol containers” and “spray valves” as described in the specification and claims. Any structural detail that is essential for a proper understanding of the disclosed invention should be shown in the drawing. MPEP § 608.02(d).
The drawings are also objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “actuating position” (See Claim 20) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
The drawings are also objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference characters not mentioned in the description: #111ba (See Fig. 3), #23a (See Figs. 3 and 4), and #23b (See Figs. 3 and 4).
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 Objections
Claims 14, 16-18, and 20 are objected to because of the following informalities:
In Claim 14 Line 3, “the receptacle” should be revised to “a receptacle of the one or more receptacles” to ensure clarity in the claim.
In Claim 16 Line 2, “either or both an upper and a lower end” should be revised to “either or both of an upper end and a lower end” to ensure proper grammar.
In Claim 17 Lines 1-2, “wherein the receptacle having the receiving opening formed on its upper end is upwardly or downwardly angled” should be revised to “wherein the receptacle has the receiving opening formed on its upper end and is upwardly or downwardly angled” to ensure proper grammar.
In Claim 17 Line 3, “such that angle” should be revised to “such that an angle” to ensure proper grammar.
In Claim 18 Lines 1-2, “wherein the receptacle having the receiving opening formed on its lower end, is perpendicular” should be revised to “wherein the receptacle also has the receiving opening formed on its lower end and is perpendicular” to ensure clarity in the claim.
In Claim 20 Lines 4-5, “the third portion activates spray valve of the aerosol container” should be revised to “the third portion activates the spray valve of the aerosol container” to ensure proper grammar and clarity in the claim.
In Claim 20 Line 6, “movable from the actuating position” should be revised to “wherein the trigger assembly is movable from the actuating position” to ensure proper grammar.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
The “resilient member” in Claim 23 which uses the generic placeholder “member” coupled with functional language without reciting sufficient structure.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitations:
The “resilient member” in Claim 23 corresponds to the disclosure in Page 9 of the Specification which states, “Concurrently, the fourth portion 24 being a resilient member, is configured to provide a substantial amount of resistance when either or both the first portion 21 and the second portion 22 receives the force through being pushed or pulled inwards”. Furthermore, Fig. 2 shows #24 as a spring structure. Therefore, based on the disclosure and the claims as a whole the examiner interprets the “resilient member” in Claim 23 to be a spring and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claims 13-24 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 enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
There are many factors to be considered when determining whether there is sufficient evidence to support a determination that a disclosure does not satisfy the enablement requirement and whether any necessary experimentation is “undue”. In the instant case, Applicant fails to include sufficient amount of direction as to how an aerosol container having a spray valve is used with the claimed spray gun to be activated by both an upwards and downwards movement of the third portion.
Claim 13 recites “A spray gun for use with one or more aerosol containers comprising:a handle grip for a user to hold the spray gun; and a trigger assembly that enables a direction of spray generally away from the user, which is pivotal with respect to the handle grip, having a trigger body formed by one or more portions that include a first portion, a second portion, and a third portion ;wherein the first portion and the second portion of the trigger assembly each are at opposing sections of the handle grip, and they respectively enable movement of the third portion for activating spray valves of the aerosol containers when either the first portion is triggered by a palm of the user's hand for the third portion to move in an upwards direction to activate corresponding spray valves of the aerosol containers or the second portion is triggered by fingers of the user's hand for the third portion to move in a downwards direction to activate corresponding spray valves of the aerosol containers”. The claims do not describe additional features of the spray valve or aerosol container.
The disclosure, as originally filed, does not disclose, in drawings and specification, how a spray valve of an aerosol container is disposed in the spray gun to accomplish being triggered by the third portion moving downwards and by the third portion moving upwards. The drawings, which are objected to as noted above, do not show any aerosol container or spray valves. Page 8 of the Specification states “Besides that, the third portion 23 has a rounded shape and is disposed in between the upper end and the lower end of the receptacle, in which the position of the third portion 23 is on a central horizontal axis with respect to the pivot point 25. Advantageously, the rounded shape of third portion 23 facilitates a higher precision of actuation of the spray valve of the aerosol container when said third portion 23 is moved either upwards or downwards upon triggering either or both the first portion 21 and the second portion 22. This is due to the rounded shape of the third portion 23 corresponding to the shape of the spray valve.”. However, this disclosure of the third portion shape and the spray valve shape is not sufficient for one of ordinary skill in the art to understand how the spray gun is operated to perform the claimed function of the spray valve being activated by both an upwards and downwards movement of the third portion. .
The invention is drawn to a spray gun for use with aerosol containers. Other known aerosol containers in the art, such as the one shown in Fig. 1 of US 2010/0051652 A1 to Becker (“Becker”) are activated by a valve that is pressed in a single downwards direction rather than an upwards direction and a downwards direction. No working examples have been provided of aerosol containers that are activated by being pressed in both an upwards direction and a downwards direction.
The examiner does not know if the spray valve is a button or some other structure or if the spray valve is located on a top of the aerosol container or a side of the aerosol container. The Examiner, hence the public, would not know what aerosol container type and installation configuration is used with the claimed spray gun to meet the limitation of the first portion and the second portion being arranged such that they “respectively enable movement of the third portion for activating spray valves of the aerosol containers when either the first portion is triggered by a palm of the user's hand for the third portion to move in an upwards direction to activate corresponding spray valves of the aerosol containers or the second portion is triggered by fingers of the user's hand for the third portion to move in a downwards direction to activate corresponding spray valves of the aerosol containers”. Undue experimentations (in quality of experimentation needed to make or use the invention based on the content of the disclosure) must be performed to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention, since the specification fails to provide sufficient existence of working aerosol container examples used to meet the claimed functional limitation and there is insufficient direction provided by the inventor to determine how an aerosol container is used with the claimed spray gun to meet the claimed functional limitations. The lack of figures showing aerosol containers and information available in the specification consequently raise doubt as failing to comply with the enablement requirement.
Claims 14-24 depend from Claim 13, therefore Claims 14-24 are also rejected under 35 U.S.C. 112(a) for failing to comply with the enablement requirement because Claim 13 is not enabled.
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 13-24 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.
Claim 13 is indefinite because Lines 7-12 state “they respectively enable movement of the third portion for activating spray valves of the aerosol containers when either the first portion is triggered by a palm of the user's hand for the third portion to move in an upwards direction to activate corresponding spray valves of the aerosol containers or the second portion is triggered by fingers of the user's hand for the third portion to move in a downwards direction to activate corresponding spray valves of the aerosol containers” and it is not clear if multiple spray valves and aerosol containers are being claimed as being activated by the spray gun or not, since Line 1 states “spray gun for use with one or more aerosol containers” and then Lines 8, 10, and 12 each state “spray valves of the aerosol containers”. If only one aerosol container is used, it is not clear if a single spray valve or multiple spray valves apply to a single aerosol container. Page 9 of the Specification states “the third portion 23 is then configured to rotate about the pivot point 25 in a clockwise rotation and moves upwards to actuate the spray valve of the aerosol container, subsequently spraying content from said aerosol container. When the second portion 22 is triggered by the force exerted from the user's fingers, the third portion 23 is then configured to rotate about the pivot point 25 in a counter-clockwise rotation and moves downwards to actuate the spray valve of the aerosol container”. The drawings do not show any aerosol containers or spray valves, however based on the disclosure, it appears that when a single aerosol container is utilized, one spray valve corresponds to the aerosol container. For the purpose of examination, Claim 13 Lines 7-12 will be interpreted to state “they respectively enable movement of the third portion for activating a spray valve of an aerosol container when either the first portion is triggered by a palm of the user's hand for the third portion to move in an upwards direction to activate the spray valve of the aerosol container or the second portion is triggered by fingers of the user's hand for the third portion to move in a downwards direction to activate the spray valve of the aerosol container”. Furthermore, each instance of “the aerosol containers” in Claims 14, 16, and 22 will be interpreted as “the aerosol container”.
Claim 13 is also indefinite because Lines 4-5 state “a trigger body formed by one or more portions that include a first portion, a second portion, and a third portion”. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 13 recites the broad recitation “one or more portions”, and the claim also recites “a first portion, a second portion, and a third portion” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For the purpose of examination, Claim 13 Lines 4-5 will be interpreted to state “a trigger body formed by a plurality of portions that include a first portion, a second portion, and a third portion”.
Claims 14-24 depend from Claim 13, therefore Claims 14-24 are also rejected under 35 U.S.C. 112(b) for being indefinite since Claim 13 is indefinite.
Claim 20 is indefinite because Lines 6-7 state “movable from the actuating position to the original position through its fourth portion disposed adjacent to the trigger body for returning the trigger assembly to the original position” and there is improper antecedent basis for “its fourth portion” in the claim. It is not clear if a fourth portion was intended to be previously recited or not and whether “its fourth portion” is part of the “one or more portions” of the trigger body from Claim 13 or if it is something else. For the purpose of examination, Claim 20 Lines 6-7 will be interpreted to state “wherein the trigger assembly is movable from the actuating position to the original position through a fourth portion that is disposed adjacent to the trigger body for returning the trigger assembly to the original position”.
Claim 23 depends from Claim 20, therefore Claim 23 is also rejected under 35 U.S.C. 112(b) for being indefinite since Claim 20 is indefinite.
Claim 23 is also indefinite because Lines 1-2 state “wherein the fourth portion is a resilient member which is configured to provide a substantial amount of resistance” and the term “a substantial amount of resistance” is a relative term. The term “a substantial amount of resistance” is not defined by the claim and the specification does not provide a standard for ascertaining the requisite degree. Page 9 of the Specification merely states “the fourth portion 24 being a resilient member, is configured to provide a substantial amount of resistance when either or both the first portion 21 and the second portion 22 receives the force through being pushed or pulled inwards “. Thus, it is not clear what level of force is required to qualify as providing “a substantial amount of resistance”. For the purpose of examination, Claim 23 Lines 1-2 will be interpreted to state “wherein the fourth portion is a resilient member which is configured to provide resistance”.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See Notice of References Cited Form PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KEVIN E SCHWARTZ whose telephone number is (571)272-1770. The examiner can normally be reached Monday - Friday 9:00AM - 5:00PM MST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arthur O 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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/KEVIN EDWARD SCHWARTZ/Examiner, Art Unit 3752 March 3, 2026