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 .
Response to Arguments
Applicant's arguments filed 04/14/2026 have been fully considered but they are not persuasive.
Applicant argues that de Laforcade doesn’t teach the claim amendments of the bottom surface of the annular wall being below the top surface. However, drawings and pictures can anticipate claims if they clearly show the structure which is claimed. In re Mraz, 455 F.2d 1069, 173 USPQ 25 (CCPA 1972). MPEP 2125. In this case, annotated Fig. 1 below clearly depicts a bottom of the annular wall below the top surface.
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.
Claim 22 is 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 22 recites the limitation "an annular wall" and “a bottom” in line 2. It is unclear if applicant is referring back to the annular wall introduced in claim 1 or intends to introduce another. There is insufficient antecedent basis for this limitation in the claim.
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(s) 1-4, 9, and 20-26 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by De Laforcade (US Patent No. 5,743,440).
Re: Claim 1, De Laforcade discloses the claimed invention including an article comprising:
a container (2) comprising a concavity on a top surface (11) (Fig. 1),
wherein the concavity comprises an annular neck (6), an inset surface (12), and a peripheral surface (5) (Fig. 1),
wherein the peripheral surface extends in a first direction away from the top surface (Depicted in Fig. 1),
wherein the annular neck extends toward the top surface (Depicted in Fig. 1), and
wherein the annular neck comprises a first hole(6) that provides access to an internal volume of the container (Fig. 1); and
a pump assembly (7) that is configured to mate to the annular neck (Depicted in Fig. 1),
wherein at least a portion of the pump assembly extends into the first hole (Depicted in Fig. 1),
wherein the pump assembly comprises a pump head (9) that is configured to selectively transition from a neutral position to a pressed position to actuate the pump assembly (Col. 4, lines 38-46, neutral position then pressed to actuate); and
wherein the pump head comprises an annular wall (94), and when the pump head is in the neutral position, a bottom of the annular wall is below the top surface (Depicted in Annotated Fig. 1 below).
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Re: Claim 2, De Laforcade discloses the claimed invention including the annular neck of the container comprises a first thread (61) and the pump assembly comprises a mounting cap (8) comprising a second thread (81), wherein the pump assembly is configured to mate to the container by engagement of the first thread to the second thread (Fig. 1, Col. 4, lines 5-12, threading).
Re: Claim 3, De Laforcade discloses the claimed invention including the pump head comprises an annular wall (94), wherein when the pump head is in the pressed position at least a portion of the annular wall is positioned between the annular neck and the peripheral surface and between the top surface and the inset surface (Fig. 1, when in pressed position annual wall oriented between neck and peripheral surface).
Re: Claim 4, De Laforcade discloses the claimed invention including when the pump head is in the neutral position at least a portion of the annular wall is between the annular neck and the peripheral surface and the top surface and the inset surface (Fig. 1 depicts the bottom edge of the annular wall below the top surface and oriented between the annular neck and peripheral surface).
Re: Claim 9, De Laforcade discloses the claimed invention including the container comprises defines only one internal volume (Depicted in Fig. 1).
Re: Claim 20, De Laforcade discloses the claimed invention including the first thread is a male thread configuration and the second thread is a female thread configuration (Fig. 1, Col. 4, lines 5-12, threading).
Re: Claim 21, De Laforcade discloses the claimed invention including the pump assembly comprises the pump head, a mounting cap (8), and a pump cartridge (71) (Depicted in Fig. 1).
Re: Claim 22, De Laforcade discloses the claimed invention including the pump head comprises an annular wall (94), wherein a bottom of the annular wall is below a topmost point of the peripheral surface in both the neutral position and the pressed position (Depicted in Fig. 1).
Re: Claim 23, De Laforcade discloses the claimed invention including the pump assembly comprises a positive displacement pump mechanism (Col. 4, lines 38-46, positive displacement pump).
Re: Claim 24, De Laforcade discloses the claimed invention including the pump assembly is configured to mate to the annular neck by a clip, a friction fit, a cam fit, a snap fit, or a barb (Col. 4, lines 11-12, snap fit).
Re: Claim 25, De Laforcade discloses the claimed invention including an article comprising:
a container (2) comprising a concavity on a top surface (11) (Fig. 1),
wherein the concavity comprises an annular neck (6), an inset surface (12), and a peripheral surface (5) (Fig. 1),
wherein the peripheral surface extends in a first direction away from the top surface (Depicted in Fig. 1),
wherein the annular neck extends toward the top surface (Depicted in Fig. 1), and
wherein the annular neck comprises a first hole(6) that provides access to an internal volume of the container (Fig. 1); and
a pump assembly (7) that is configured to mate to the annular neck (Depicted in Fig. 1),
wherein at least a portion of the pump assembly extends into the first hole (Depicted in Fig. 1),
wherein the pump assembly comprises a pump head (9) that is configured to selectively transition from a neutral position to a pressed position to actuate the pump assembly (Col. 4, lines 38-46, neutral position then pressed to actuate); and
wherein the pump head comprises an annular wall (94), that is concentric to and conforming closely to the peripheral surface of the concavity in the container (Fig. 3);
wherein when the pump head is in the pressed position, a bottom of the annular wall is below the top surface (Fig. 1 depicts neutral position and a bottom of the annular wall is below, thus if pressed will be further below).
Re: Claim 26, De Laforcade discloses the claimed invention including when the pump head is in the neutral position, a bottom of the annular wall is below the top surface (Depicted in Annotated Fig. 1 below).
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) 5, 10, and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over De Laforcade (US Patent No. 5,743,440).
Re: Claim 5, De Laforcade discloses a contour shape of the peripheral surface of the container is substantially similar to a contour shape of the annular wall of the pump head (Fig. 1, both walls extend in an axial direction and have flat surfaces similar to one another) with the only difference being the slanted nature of the peripheral wall. However, the court held that the configuration of the claimed plastic container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Re: Claim 10, De Laforcade discloses the claimed invention including when the pump head is in the neutral position, a first distance between an uppermost surface of the pump head and the top surface of the container except stating the distance is between 20mm-50mm. However, 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 having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of De Laforcade by causing the first distance to be between 20mm-50mm. Applicant appears to have placed no criticality on any particular distance (see Specification wherein it is required simply that the first distance is “optionally” in that range) and it appears that the device of De Laforcade would work appropriately if made within the claimed range of distance.
Re: Claim 11, De Laforcade discloses the claimed invention including when the pump head is in the pressed position, a second distance between an uppermost surface of the pump head and the top surface of the container except stating the distance is between 10mm-30mm. However, 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 having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of De Laforcade by causing the second distance to be between 10mm-30mm. Applicant appears to have placed no criticality on any particular distance (see Specification wherein it is required simply that the second distance is “optionally” in that range) and it appears that the device of De Laforcade would work appropriately if made within the claimed range of distance.
Claim(s) 6-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over De Laforcade (US Patent No. 5,743,440) as applied to claim 1 above, and further in view of Balzeau (US 2004/0079769 A1).
Re: Claims 6-8, De Laforcade discloses the claimed invention except for expressly stating using a polyethylene terephthalate preform for blow molding the container. However, Balzeau discloses using a polyethylene terephthalate preform for blow molding the container (Para. 11, 27, blow molded PET preform).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include a PET preform for molding a container as taught by Balzeau, since such a modification of using PET is known to provide a lightweight, strong, shatter-resistant, transparent, and highly recyclable, making it cost-effective for transport and ideal for packaging food, beverages, and personal care items by protecting contents with good oxygen/moisture barriers while offering clarity and design flexibility, while blow molding with a preform offers superior strength, clarity, and precise wall thickness control while also providing faster production for basic shapes, making it ideal for efficient, cost-effective, large-volume hollow items.
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 CHARLES P. CHEYNEY whose telephone number is (571)272-9971. The examiner can normally be reached Monday - Friday, 8:00 am - 4:30 pm.
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/CHARLES P. CHEYNEY/Primary Examiner, Art Unit 3754
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