DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the AIA first to file provisions. 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.
Application Status
This office action is in response to the claims filed 7/17/2024.
Claims 1-21 are currently pending and being examined.
Information Disclosure Statement
The 2 IDS documents have been considered. See the attached PTO 1449 forms.
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 4-6, 8-10 (and their dependents) 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.
Regarding Claim 4:
Claim 4 recites “the closure element comprise tear-off element” which is grammatically incorrect as well as lacking sufficient antecedent basis for “the closure element” since independent claim 1 recites both “a protective cap” and “a removable closure element”, both interpreted to be considered as closure elements. Further, the poor grammar leads to indefinite metes and bounds regarding whether one or more than one tear-off elements are claimed. For examination purposes, the limitation in claim 4 is being interpreted as “the removable closure element comprises a tear-off element”.
Regarding Claims 4-6 and 8-10:
Claims 5-6 and 8-10 also recite “the closure element” which also lack antecedent basis.
Claims dependent on claims 4-6 and 8-10 are therefore also rejected as being dependent on a rejected claim.
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 of this title, 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-7, 9-19, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Mutterle US 7,175,057 in view of Painchaud et al. US 9,592,934.
Regarding claim 1:
Mutterle teaches a liquid dispenser (10) comprising: a liquid reservoir (within 11) for receiving liquid ([0035]); a bottle body (11) surrounding the liquid reservoir; a delivery head (12) fastened to the bottle body, the delivery head having a delivery opening (122); a protective cap (13) attachable to the delivery head, the protective cap having a cap interior (within 13); wherein the delivery head has a substantially flat upper annular face (123) and an applicator neck having an outside, the annular face surrounding the applicator neck and the protective cap being held in a form-fitting or force-fitting manner on the outside of the applicator neck in the attached state (see FIG. 3), the applicator neck having an elongate shape with a substantially cylindrical shell face and an end face (at 122) penetrated by the delivery opening.
Mutterle does not teach the protective cap having at least one ventilation opening and ambient air being flowable into the cap interior through the at least one ventilation opening when the protective cap is in an attached state; a removable closure element having a shipping state preventing ambient air from making its way through the at least one ventilation opening to the delivery opening.
Painchaud discloses a related liquid dispenser wherein the protective cap (16) has at least one ventilation opening (82) and ambient air being flowable into the cap interior through the at least one ventilation opening when the protective cap is in an attached state and a removable closure element (96/98) having a shipping state preventing ambient air from making its way through the at least one ventilation opening to the delivery opening (col. 11, lines 37-47).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to modify the dispenser of Mutterle, by providing the protective cap with at least one ventilation opening and ambient air being flowable into the cap interior through the at least one ventilation opening when the protective cap is in an attached state, and a removable closure element having a shipping state preventing ambient air from making its way through the at least one ventilation opening to the delivery opening, as taught by Painchaud, since this would properly seal the cap off prior to use, and allow for residual evaporation when in use, as described by Painchaud (col. 11, lines 37-47).
Regarding claim 2:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 1, as discussed above, wherein the delivery head has a shell region (Mutterle, just inside of 132/133 in FIG. 3) adjoining the annular face, the protective cap has a coupling portion with an internal cross section at least as large as an external contour of the annular face (shown in FIG. 3 near 134), the internal cross section of the coupling portion in the attached state resting on the shell region (shown in FIG. 3), the protective cap has a casing portion (e.g., portions above 134) adjoining the coupling portion and having an internal cross section tapering in a stepped manner (e.g., internal threads and/or the 90 degree flange/step between numerals 134 and 13 in FIG. 3) relative to the coupling portion, the applicator neck in the attached state of the protective cap being disposed within the casing portion (shown in FIG. 3).
Regarding claim 3:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 2, as discussed above, wherein the at least one ventilation opening penetrates the casing portion (i.e., the proposed ventilation openings would be in the casing portion of the protective cap).
Regarding claim 4:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 1, as discussed above, wherein the removable closure element comprises a tear-off element (96) integral with the protective cap, the tear-off element in the shipping state being connected in a materially integral manner to a periphery surrounding the at least one ventilation opening and, for opening the at least one ventilation opening, being removable from the protective cap by a tensile force (via tongue 98).
Regarding claim 5:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 1, as discussed above, wherein the closure element comprises is attached to the protective cap, the adhesive tape in the shipping state covering the at least one ventilation opening.
The combination of Mutterle and Painchaud does not explicitly teach adhesive tape securing the removable closure element to the protective cap.
However, Examiner takes official notice that adhesive tape is an old and well-known means for non-permanently securing similar elements in a variety of applications and it would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to modify the dispenser of the combination of Mutterle and Painchaud, by securing the removable closure element to the protective cap with adhesive tape, since this is an old and well-known method for quickly attaching elements and allowing them to later be detached.
Regarding claim 17:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 5, as discussed above, wherein the adhesive tape is applied to the protective cap so as to circumferentially surround the protective cap in a region of a casing portion of the protective cap (envisaged in Painchaud FIG. 10).
Regarding claim 6:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 1, as discussed above, but does not teach wherein the closure element comprises an additional cap disposed in a cap interior of the protective cap and covering the delivery opening.
Painchaud discloses the closure element comprises an additional cap (46) disposed in a cap interior of the protective cap and covering the delivery opening (e.g., see FIG. 12).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to modify the dispenser of the combination of Mutterle and Painchaud by providing the closure element an additional cap disposed in a cap interior of the protective cap and covering the delivery opening, as taught by Painchaud, as a secondary means to seal off the opening prior to use, and thereby allowing the opening to be sealed each time the protective cap is secured to the bottle.
Regarding claim 18:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 6, as discussed above, further including: the additional cap is held on a shell face of the applicator neck in a force-fitting manner by clamping ribs on an internal side of the additional cap (Painchaud, see FIG. 12).
Regarding claim 7:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 6, as discussed above, wherein the additional cap in the shipping state is connected to the delivery head in a form-fitting manner by a coupling structure (e.g., 48A is at least form-fitting).
Regarding claim 19:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 7, as discussed above, wherein the annular face includes one or more of the following: holding structures forming undercuts (e.g., Mutterle’s threads between 123 and 13 near 134).
Regarding claim 9:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 1, as discussed above, further including a tubular casing forming the closure element, the applicator neck in the shipping state being surrounded by the tubular casing (shown in Mutterle’s figures).
Regarding claim 21:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 9, as discussed above, further including one or more of the following: the tubular casing is made of an elastic plastics material (Mutterle describes the use of plastics for the dispenser, which have some degree of elasticity).
Regarding claim 10:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 1, as discussed above, further including a substantially cylindrical shell face, the applicator neck in the shipping state being surrounded at least in a region of the delivery opening and in a region of the substantially cylindrical shell face by the closure element (see 96 in Painchaud FIG. 10).
The combination does not teach a plastics material forming the closure element.
However, it would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to modify the dispenser of the combination of Mutterle and Painchaud, by forming the closure element from a plastics material, since they are old and well-known in the art to be relatively inexpensive, pliable, and resistant to corrosion.
Regarding claim 11:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 1, including at least one of the following: the liquid dispenser is configured as a droplet dispenser ([0003]) and has a droplet-forming geometry disposed on an end face of the applicator neck, the droplet-forming geometry having an annular droplet-forming face including a breakaway edge configured to delimit the annular droplet-forming face on an outside (see FIG. 3).
Regarding claims 12 and 13:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 1, as discussed above, but does not explicitly teach: the applicator neck projects above the annular face by at least 9 mm, and the applicator neck comprises a polyolefin.
However, Examiner notes that both of these aspects would have been trivial design choices for a person having ordinary skill in the art and it would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to modify the dispenser to include the applicator neck projects above the annular face by at least 9 mm, and the applicator neck comprises a polyolefin, since it has been 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 is not patentably distinct from the prior art device (see MPEP 2144.04 IV. A.) and it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice (In re Leshin, 125 USPQ 416).
Regarding claim 14:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 1, as discussed above, further including at least one of the following: the liquid reservoir is filled with a pharmaceutical liquid (Mutterle, [0005]).
Regarding claim 15:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 1, as discussed above, further including at least one of the following: the delivery head has a liquid duct (127) connecting the liquid reservoir to the delivery opening.
Regarding claim 16:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 2, as discussed above, further including at least one of the following: the internal cross section of the coupling portion has a round shape (Mutterle, see FIG. 3).
Claims 8 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over the combination of Mutterle and Painchaud, as applied above, and further in view of Gadzic et al. US 2009/0008356.
Regarding claims 8:
The combination of Mutterle and Painchaud teaches the liquid dispenser as claimed in claim 1, as discussed above, but does not teach wherein the protective cap has a displaceable or rotatable segment forming the closure element, the closure element being movable between a closing position that closes the at least one ventilation opening and a releasing position that releases the at least one ventilation opening.
Gadzic discloses a related liquid dispenser with protective cap wherein the protective cap has a displaceable or rotatable segment (400) forming the closure element, the closure element being movable between a closing position that closes the at least one ventilation opening and a releasing position that releases the at least one ventilation opening ([0086]).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to modify the dispenser of the combination of Mutterle and Painchaud, by providing the protective cap a displaceable or rotatable segment forming the closure element, the closure element being movable between a closing position that closes the at least one ventilation opening and a releasing position that releases the at least one ventilation opening, as taught by Gadzic, since this would allow for more control of the ventilation opening, similar to a common salt shaker which can be opened and closed at will to both protect and dispense the contents of the bottle.
Regarding claim 20:
The combination of Mutterle, Painchaud, and Gadzic teaches the liquid dispenser as claimed in claim 8, as discussed above, further including one or more of the following: the displaceable or rotatable segment is guided on an outside on a casing portion (see 400 in FIG. 2 of Gadzic).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DARIUSH SEIF whose telephone number is (408) 918-7542. The examiner can normally be reached on Monday-Friday 9:30 AM-6:00 PM PST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ANNA KINSAUL can be reached on 571-270-1926. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DARIUSH SEIF/Primary Examiner, Art Unit 3731