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 § 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 1-15 and 22 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.
In regard to claim 1, an antecedent basis for “the dispenser surface” (see the last line) has not been defined.
In regard to claim 11, an antecedent basis for “the venting state” (see the last line) has not been defined. It appears “the venting state” should be “the vented state” (see line 4).
In regard to claim 22, an antecedent basis for “the dispenser surface” (see the last line) has not been defined.
Claim Rejections - 35 USC § 102
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 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jones (U.S. Patent 5,522,155).
In regard to claim 1, the Jones reference discloses a dispensing product comprising:
a dispenser 4 (see Figure 1); and
a vented cap 11, 20 (see Figure 2) attached to the dispenser, the vented cap comprising:
a cap 11; and
a vent plug 20, wherein the vent plug is movable from a delivery state (see Figure 3) to a vented state (see Figure 2 and column 4, lines 20-31); wherein the vented cap is configured to provide ventilation to the dispenser surface; i.e., the vented cap, when in the vented state, will provide ventilation to the inner surface of the dispenser (i.e., “the dispenser surface”).
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.
Claims 2, 3, 16, 21 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Jones.
In regard to claim 2, although the Jones reference does not disclose the dispenser is an ophthalmic dispenser, as claimed, it is the examiner’s position it would have been obvious to one of ordinary skill in the art at the time the invention was made the dispenser can be any type of dispenser, including an ophthalmic dispenser, without effecting the overall operation of the device, especially since the Applicant has disclosed the vented cap may be used with any type of dispenser (see paragraph 0043) and the Jones reference does not limit the type of dispenser which may be employed.
In regard to claim 3, although the Jones reference does not disclose the use of a tear strip in the cap, the examiner takes official notice that such caps commonly include a tear strip in order to indicate to a user whether or not the product within the container has been tampered. Accordingly, it would have been obvious to one of ordinary skill in the art at the time the invention was made the Jones device can include such a tear strip in order to indicate to a user whether or not the product within the container has been tampered.
In regard to claim 16, the Jones reference discloses a method of assembling a dispensing product comprising:
providing a dispenser 4;
providing a cap 11;
providing a vent plug 20; and
inserting the vent plug into the cap until the vent plug seals with the cap (see Figure 3), forming a vented cap.
Although the Jones reference does not disclose the vent plug 20 is inserted into the cap 11 prior to assembling the vented cap 11, 20 to the dispenser 4, it is the examiner’s position it would have been obvious to one of ordinary skill in the art at the time the invention was made the vented cap 11, 20 can be assembled either before or after the cap 11 is assembled to the dispenser without effecting the overall operation of the device, especially since the Applicant has not indicated inserting the vent plug to the cap prior to assembling the vented cap to the dispenser is critical to the overall operation of the device the Jones reference does not limit the order in which the cap, vent plug and dispenser are assembled.
In regard to claim 21, the vent plug is movable from a delivery state (see Figure 3) to a vented state (see Figure 2).
In regard to claim 22, as discussed above, the vented cap is configured to provide ventilation of the dispenser surface.
Allowable Subject Matter
Claims 4-10 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Claims 11-15 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
Claims 17 and 18 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant’s arguments with respect to claims 1 and 16 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
THIS ACTION IS MADE FINAL. 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 DAVID J WALCZAK whose telephone number is (571)272-4895. The examiner can normally be reached Monday-Friday 6:30-4:00.
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, David Angwin can be reached at 571-270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DJW
5/27/26
/DAVID J WALCZAK/Primary Examiner, Art Unit 3754
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