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 .
Status of the Application
Claims 1 and 3-12 have been examined in this application. This communication is a Final Rejection in response to the "Amendment" and Remarks" filed on 05/04/26.
Drawings
The drawings are objected to under 37 CFR 1.84(h)(3) because the plane upon which each sectional view is taken, is not indicated on the view from which the section is cut.
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.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required:
establish antecedent basis in the specification for the following claimed subject matter: “a gas backfill system provides a pressurized gas to the container […] to prevent a vacuum over a predetermined pressure therein”.
Claim Interpretation
For the purpose of applying prior art the following broadest reasonable interpretations are applied. The disclosure does not set forth uncommon, special, or otherwise explicit definitions for terms for which the following aforementioned broadest reasonable interpretations are provided. These broadest reasonable interpretations do not appear inconsistent with Applicant’s disclosure.
Broadest Reasonable Interpretations
In regards to claim 31,
the term vacuum is interpreted in accordance with the following definitions obtained on 08/03/26 from The American Heritage dictionary (see attached): “a space in which the pressure is significantly lower than atmospheric pressure”; and, “containing air or other gas at a reduced pressure”.
For the purpose of this office action vacuum is interpreted as a space containing air or other gas at a reduced pressure.
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 1 and 3-12 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”. These factors include, but are not limited to:
(A) The breadth of the claims;
(B) The nature of the invention;
(C) The state of the prior art;
(D) The level of one of ordinary skill;
(E) The level of predictability in the art;
(F) The amount of direction provided by the inventor;
(G) The existence of working examples; and
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
A conclusion of lack of enablement means that, based on the evidence regarding each of the above factors, the specification, at the time the application was filed, would not have taught one skilled in the art how to make and/or use the full scope of the claimed invention without undue experimentation. In re Wright, 999 F.2d 1557, 1562, 27 USPQ2d 1510, 1513 (Fed. Cir. 1993).
The determination that “undue experimentation” would have been needed to make and use the claimed invention is not a single, simple factual determination. Rather, it is a conclusion reached by weighing all the above noted factual considerations. In re Wands, 858 F.2d at 737, 8 USPQ2d at 1404.
As per claim 1, the claim requires inter alia “a gas backfill system provides a pressurized gas to the container […] to prevent a vacuum over a predetermined pressure therein”. It is unclear how the application enables one of ordinary skill in the art to make and or use an invention commensurate with the aforementioned subject matter. Specifically, and in accordance with the definition afforded to the term “vacuum” as set forth herein under title “Claim Interpretation”, it is unclear how the specification enables a system to prevent a reduced pressure of gas contained in a space from exceeding a predetermined pressure.
Claims 3-12 depend from claim 1 and thus inherit the deficiencies thereof.
Claims 1 and 3-12 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 written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
As per claim 1, the limitation “a gas backfill system provides a pressurized gas to the container […] to prevent a vacuum over a predetermined pressure therein” fails to find support in the application as originally filed and is therefore considered new matter.
Claims 3-12 depend from claim 1 and thus inherit the deficiencies thereof.
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 and 3-12 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.
As per claim 1, the limitation “to prevent a vacuum over a predetermined pressure therein” is ambiguous. Specifically, it is unclear to what particular feature “therein” pertains.
Further, as per claim 1, the term “flexible” is ambiguous. Specifically, the term “flexible” is a relative term for which the specification lacks some standard for measuring the degree intended. A claim that requires the exercise of subjective judgment without restriction may render the claim indefinite. See MPEP § 2173.05(b).
Further, as per claim 1, the limitation “to prevent a vacuum over a predetermined pressure therein” is ambiguous at least because the limitation is not enabled under 35 USC § 112 (a) as set forth herein. The scope of the limitation is uncertain because the limitation is not enabled.
Further, as per claim 1, the limitation “therein” is ambiguous. Specifically, it is unclear to what particular feature “therein” pertains.
Claims 3-12 depend from claim 1 and thus inherit the deficiencies thereof.
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 1, 3-4, and 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over US 6843391 to Jones in view of Applicant Admitted Prior Art (AAPA) in view of US 3746036 to Hunt et al in view of Official Notice.
As per claim 1, and as the examiner can understand the claim, Jones discloses a beverage dispensing system for dispensing a fluid, comprising:
a container (1) with the fluid therein (Col. 2, Ln. 59);
a pump (6) for pumping the fluid from the container to dispense it (Col. 2, Ln. 39-44; Fig. 3); and
a gas backfill system (2, 10, 3, 4) in communication with the container;
wherein the gas backfill system provides a pressurized gas to the container as the fluid is pumped from the container to prevent a vacuum therein (Col. 2, Ln. 59-61; Col. 3, ln. 34-39);
the gas backfill system comprises a valve (4) in communication with a carbon dioxide supply (10) with gas therein and the valve opening to introduce carbon dioxide into the container in order to keep pressure within the keg within a predetermined level (Col. 3, Ln. 36-49).
Jones does not disclose: a nozzle, and the pump for pumping the fluid to the nozzle; the container comprising flexible plastic walls; and the particular structure of the valve or the valve being a “vacuum regulator” valve; the carbon dioxide supply containing pressurized gas.
In regards to the limitations drawn to a nozzle, Applicant failed to properly traverse the examiner’s assertion of Official Notice in the office action dated 02/25/26 and therefore the following is now considered admitted prior art (see MPEP § 2144.03(C)): draft beverage systems commonly have a nozzle placed at a terminal outlet for directing a beverage into a receptacle. It therefore would have been obvious for one of ordinary skill in the art at the time the application was effectively filed to provide such a nozzle downstream of the pump of Jones, in the system of Jones, for similarly directing a beverage into a receptacle.
In regards to the limitation drawn to the material of the container walls of Jones, Jones is silent. However, Applicant failed to properly traverse the examiner’s assertion of Official Notice in the office action dated 02/25/26 and therefore the following is now considered admitted prior art (see MPEP § 2144.03(C)): it is well known to form a keg wall with plastic—the plastic inherently having some degree of flexibility, i.e. flexible plastic walls. Therefore, it would have been obvious for one of ordinary skill in the art at the time the application was effectively filed, in view of the aforementioned silence of Jones, to form the walls of the container of Jones from flexible plastic as claimed.
In regards to the limitation requiring the particular structure of the valve or the valve being a “vacuum regulator” valve. Hunt teaches a valve (Fig. 4) being triggered by vacuum (Col. 5, Ln. 35-37; “the outlet at a pressure below atmospheric pressure) to allow passage of fluid. It would have been obvious for one of ordinary skill in the art at the time the application was effectively filed, in view of the aforementioned silence of Jones-AAPA combination regarding the structure of the valve, to provide the valve of Hunt for maintained pressure within the keg at a predetermined level –wherein that valve is triggered by vacuum and therefore constitutes a “vacuum regulator”.
In regards to the limitation requiring the carbon dioxide supply to contain the pressurized gas, Jones further discloses: a compressor providing pressurized gas (Col. 2, Ln. 52-53) to maintain a required top pressure within the container (Col. 3, Ln. 20-23); and, the carbon dioxide supply supplying gas to the container when the compressor is unable to maintain the required top pressure within the container. Jones fails to explicitly disclose the carbon dioxide supply containing pressurized gas, however, the office makes Official Notice that it is old and well known in the art to provide carbon dioxide in a pressurized supply container and it therefore would have been obvious for one of ordinary skill in the art at the time the application was effectively filed to provide the carbon dioxide supply of Jones as such for reasons including to provide the pressurized gas to the container when the compressor is unable to maintain the required top pressure within the container.
As per claim 3, Jones further discloses an inlet communicating with the carbon dioxide supply and an outlet in communication with the container (inherent). Hunt further discloses the vacuum regulator valve comprises an inlet having an inlet membrane (212) in communication with the fluid supply and an outlet having an outlet membrane (12).
As per claim 4, Hunt further discloses the vacuum regulator valve opens when an outlet force on the outlet membrane exceeds an inlet force on the inlet membrane (Col. 5, Ln. 35-41).
As per claim 10, Jones further discloses a spout of the container (outlet of the container), wherein the spout is offset from an edge of the container (Fig. 2).
As per claim 11, Jones further discloses the container comprises a flat bottom wall and a rounded top wall (see Figure A, below).
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Figure A: US 6843391, Fig. 3 - annotated
Claims 5-9 are rejected under 35 U.S.C. 103 as being unpatentable over US 6843391 to Jones in view of Applicant Admitted Prior Art (AAPA) in view of US 3746036 to Hunt et al in view of Official Notice as applied to claim 1 above, and further in view of US 3231154 to Johnston.
As per claim 5, Jones further discloses a coupler (2) and the coupler comprising the valve (4). The Jones-AAPA-Hunt combination omits the particular structure of the coupler. Johnston teaches a beverage dispense system comprising a container (20) and a gas backfill system (30, 44, 26, 32), wherein the gas backfill system comprising a gas-fluid adaptor (44) in communication with the container (Fig. 1-2), a gas valve (26, 32; Col. 4, ln. 30-33), and a beverage dispensing conduit (38). It would have been obvious for one of ordinary skill in the art at the time the application was effectively filed, in view of the aforementioned silence in the Jones-Official Notice-Hunt combination, to provide the coupler according to the aforementioned teachings from Johnston –wherein the pump is downstream the beverage dispensing conduit and the adapter is therefore in communication with the pump, as claimed.
As per claim 6, Johnston further discloses the gas-fluid adapter is in communication with the container and the valve via a gas path (58, 62).
As per claim 7, Johnston further discloses the gas-fluid adapter is in communication with the container and the pump via a fluid path (66).
As per claims 8-9, the Jones-AAPA-Hunt-Johnston combination as applied to claim 5 above discloses the claimed invention except for the container comprising a backfill closure. Johnston further discloses the container comprising a backfill closure (76, 90) comprising a check valve (90) and one or more ports (89). It would have been obvious for one of ordinary skill in the art at the time the application was effectively filed to further modify the Jones-Official Notice-Hunt-Johnston combination as applied to claim 5 above according to the aforementioned teachings from Johnston for reasons including to provide a means to close the container when the container is separated from the adapter.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over US 6843391 to Jones in view of Applicant Admitted Prior Art (AAPA) in view of US 3746036 to Hunt et al in view of Official Notice as applied to claim 1 above, and further in view of US 8348086 to Apps.
As per claim 12, the Jones-AAPA-Hunt combination discloses the claimed invention except for a particular plastic used for the semi-rigid container walls. Apps teaches a kegs comprising semi-rigid container walls made of polyethylene terephthalate (Claim 8). It would have been obvious for one of ordinary skill in the art at the time the application was effectively filed, in view of the aforementioned silence of the Jones-AAPA-Hunt combination, to similarly provide walls of the keg of Jones made from polyethylene terephthalate like taught by Apps.
Response to Arguments
In regards to the claim rejections under 35 USC § 112 issued in the office action dated 02/25/26, the amendment filed 05/04/26 appropriately addresses all and the rejections are withdrawn. The claim rejections under 35 USC § 112 contained in this office are necessitated by the amendment filed 05/04/26.
In regards to the claim rejections under 35 USC § 102 issued in the office action dated 02/25/26, the amendment field 05/04/26 overcomes the rejection and the rejection is withdrawn.
In regards to the claim rejections under 35 USC § 103 issued in the office action dated 02/25/26, Applicant requests withdrawal of the rejection by providing the following arguments:
Jones does not show a container with flexible walls, rather, Jones shows a conventional metal beer keg.
Hunt shows a conventional fuel pump and regulating diaphragm operating at atmospheric pressure.
In response to (A), and as set forth herein, the term “flexible” is ambiguous. Specifically, the term “flexible” is a relative term for which the specification lacks some standard for measuring the degree intended. A claim that requires the exercise of subjective judgment without restriction may render the claim indefinite. Moreover, in regards to the limitation drawn to the material of the container walls of Jones, Jones is silent. However, Applicant failed to properly traverse the examiner’s assertion of Official Notice in the office action dated 02/25/26 and therefore the following is now considered admitted prior art (see MPEP § 2144.03(C)): it is well known to form a keg wall with plastic—the plastic inherently having some degree of flexibility, i.e. flexible plastic walls.
In response to (B), and as set forth previously, Hunt teaches a valve (Fig. 4) being triggered by vacuum (Col. 5, Ln. 35-37; “the outlet at a pressure below atmospheric pressure) to allow passage of fluid. It would have been obvious for one of ordinary skill in the art at the time the application was effectively filed, in view of the aforementioned silence of Jones-AAPA combination regarding the structure of the valve, to provide the valve of Hunt for maintained pressure within the keg at a predetermined level –wherein that valve is triggered by vacuum and therefore constitutes a “vacuum regulator”.
Conclusion
18. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
19. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Randy Gruby, whose telephone number is (571) 272-3415. The examiner can normally be reached from Monday to Friday between 8:00 AM and 5:00 PM.
If any attempt to reach the examiner by telephone is unsuccessful, the examiner’s supervisor, Paul Durand, can be reached at (571) 272-4459.
Another resource that is available to applicants is the Patent Data Portal (PDP). Information regarding the status of an application can be obtained from the (PDP) system. For more information about the PDP system, see https://opsg-portal.uspto.gov/OPSGPortal/. Should you have questions on access to the PDP system, please feel free to contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).
/R.A.G/Examiner, Art Unit 3754
/FREDERICK C NICOLAS/Primary Examiner, Art Unit 3754
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