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 .
The present application is being examined under the pre-AIA first to invent provisions.
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.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The factual inquiries 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wolkenstoerfer et al. (Patent Application Publication US 20180117295 A1, hereinafter Wolkenstoerfer) in view of Wang et al. (International Publication WO 2024020518 A1, hereinafter Wang) and Elmeguenni et al. (Patent Application Publication US 20170106390 A1).
Regarding claim 1,Wolkenstoerfer, teaches a method of making a dip tube, configured for attachment to a nozzle spray pump assembly liquid (¶[0002] and ¶[0004]). The method comprising steps of: providing an extruded concentric two-layer starting tube comprising a first tube layer and a second tube layer (¶[0008] ¶[0039] ¶[0024]), the first tube layer comprising a non-fluoropolymer (¶[0015] and ¶[0024]) having a refractive index and a thickness, the second tube layer comprising a dissolvable polymer that provides structural integrity of the two-layer starting tube during attachment to a nozzle spray pump assembly (¶[0055]), attaching the two-layer starting tube to the nozzle spray pump assembly by securing a surface portion of the first tube layer to an adjacent surface portion of a dispensing channel of the nozzle spray pump assembly (¶[0055]), dissolving the second layer of the two-layer starting tube while the adjacent surface portions of the starting tube and nozzle spray pump assembly remain secured (¶[0055]).
Wolkenstoerfer fails to teach the first tube layer having a refractive index and a thickness configured to be transparent in a liquid fragrance product disposed in a glass container and wherein the remaining first tube layer secured to the nozzle spray pump assembly is thus configured for use as an invisible dip tube disposed in a liquid fragrance in a glass container, however Elmeguenni disclose wherein the dip tube is substantially invisible in liquid (¶[0068]) when disposed in a liquid fragrance product in a glass container ([¶0002)] and ¶[0062]) therefore a having an implicit refractive index and thickness to be transparent in the glass container.
Regarding the claim limitation “disposed in a liquid fragrance product in a glass container” is intended use, if a prior art structure is capable of performing the intended use as recited, then it meets the limitations of the claim (In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997); MPEP §2111.02 II). One of ordinary skill in the art would understand dip tubes could be place in different containers.
Elmeguenni and Wolkenstoerfer are both considered to be analogous to the claimed invention because they are in the same field of dip tube with pump assembly. Therefore, it would have been obvious to someone of ordinary skill in the art before the claimed filling date of the claimed invention to have modified Wolkenstoerfer to incorporate the teaching of Elmeguenni to have a dip tube that is invisible in soliton therefore improving looks (Elmeguenni ¶[0004]). The combing of two previously unintegrated features of similar devices is likely to be obvious when predictable results are achieved. See KSR International Co. v. Teleflex Inc., 550 U.S. 398, 415-421, USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, A).
Alternatively, it would have been obvious to someone of ordinary skill in art before the claimed filling date of the claimed invention to have modified Elmeguenni with the teaching of Wolkenstoerfer to have a two-layer dip tube in order to bind one layer to the pump assembly increase the strength of the connection (¶[0017]). The combing of two previously unintegrated features of similar devices is likely to be obvious when predictable results are achieved. See KSR International Co. v. Teleflex Inc., 550 U.S. 398, 415-421, USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, A).
Furthermore, Wang also explicitly teaches the first tube layer having a refractive index and a thickness configured to be transparent in a liquid fragrance container (Page 2 line 20-25) product disposed in a glass and wherein the remaining first tube layer secured to the nozzle spray pump assembly (Page 6 line 10-22).
Wang and modified Wolkenstoerfer are both considered to analogous to the claimed invention because they are in the same field of dip tube with pump assembly, Therefore, it would have been obvious to someone of ordinary skill in the art before the claimed filling date of the claimed invention to have modified Wolkenstoerfer with the teaching of Wang do have a dip tube invisible in solution to be aesthetically pleasing (Page 1 lines 6-15). The combing of two previously unintegrated features of similar devices is likely to be obvious when predictable results are achieved. See KSR International Co. v. Teleflex Inc., 550 U.S. 398, 415-421, USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, A).
Regarding the claim limitation “product disposed in a glass” is intended use, if a prior art structure is capable of performing the intended use as recited, then it meets the limitations of the claim (In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997); MPEP §2111.02 II).
Regarding claim 2, the modified Wolkenstoerfer discloses the method of making a dip tube in claim 1, the modified Wolkenstoerfer discloses the first tube layer comprises an outer tube layer and the second tube layer comprises an inner tube layer of the concentric two-layer starting tube (Wolkenstoerfer Fig 1 element 14’ 16’), the attaching step comprises securing an exterior surface portion of the outer tube layer to a matching interior surface portion (Wolkenstoerfer Section 0055) of the nozzle spray pump assembly (Elmeguenni Fig 1), the dissolving step comprises dissolving the inner tube layer of the two-layer starting tube (Wolkenstoerfer Section 0055 line 15-18) while the matching exterior and interior surface portions of the starting tube (Wolkenstoerfer Section 0041) and nozzle spray pump assembly remain secured (Elmeguenni Fig 1), and wherein the remaining outer tube layer secured (Elmeguenni Section 0055 line 15-18) to the nozzle spray pump assembly (Elmeguenni Fig 1)
Regarding the “configured for” limitations associated with the claimed structural features, the corresponding structures disclosed by modified Wolkenstoerfer are capable of the claimed configurations and functions. The claimed functional language does not distinguish the claimed structures from the prior art structures because the prior art structures are capable of performing the claimed functions (In re Schreiber, 128 F.3d 1473 (Fed. Cir. 1997)).
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Regarding claim 3, the modified Wolkenstoerfer discloses the method of making a dip tube in claim 1, the modified Wolkenstoerfer discloses wherein: the first tube layer comprises an inner tube layer and the second tube layer comprises an outer tube layer of the concentric two-layer starting tube (Wolkenstoerfer Fig 2 elements 12 14), the attaching step comprises securing an interior surface portion of the inner tube layer to a matching exterior surface portion (Wolkenstoerfer ¶[0055]) of the nozzle spray pump assembly (Elmeguenni Fig 1), the dissolving step comprises dissolving the outer tube layer of the two-layer starting tube (Wolkenstoerfer ¶[0055] line 15-18) while the matching interior and exterior surface portions of the starting tube (Wolkenstoerfer ¶[0041]) and nozzle pump assembly remain secured (Elmeguenni Fig 1), and wherein the remaining inner tube layer secured (Wolkenstoerfer ¶[0055] line 15-18) to the nozzle spray pump assembly (Elmeguenni Fig 1)
Regarding the “configured for” limitations associated with the claimed structural features, the corresponding structures disclosed by modified Wolkenstoerfer are capable of the claimed configurations and functions. The claimed functional language does not distinguish the claimed structures from the prior art structures because the prior art structures are capable of performing the claimed functions (In re Schreiber, 128 F.3d 1473 (Fed. Cir. 1997)).
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Regarding claim 4, the modified Wolkenstoerfer discloses the method of making a dip tube in claim 1, the modified Wolkenstoerfer discloses wherein the dissolvable second tube layer comprises the inner layer of the concentric two-layer starting tube (Wolkenstoerfer ¶[0055]).
Regarding claim 5, the modified Wolkenstoerfer discloses the method of making a dip tube in claim 1, the modified Wolkenstoerfer discloses wherein the dissolvable second tube layer comprises the outer layer of the concentric two-layer starting tube (Wolkenstoerfer ¶[0055]).
Regarding claim 6, the modified Wolkenstoerfer discloses the method of making a dip tube in claim 1, the modified Wolkenstoerfer discloses wherein the no fluoropolymer first tube layer has a thickness in a range of 10 to 100 micrometers, and the dissolvable second tube layer has a thickness in a range of 100 to 250 micrometers, resulting in a total wall thickness of the two layer starting tube in a range of 110 to 350 micrometers (Wolkenstoerfer ¶ [0042] and ¶ [0052]).
Regarding claim 7, the modified Wolkenstoerfer discloses the method of making a dip tube in claim 1, the modified Wolkenstoerfer discloses wherein the dip tube has a flexural modulus in a range of 200-3500 MPa (Wang Page 7 line 16-20). Alternatively, the modified Wolkenstoerfer is made of same material in the method, therefore it would be inherit to have the same flexural modulus (see MPEP 2112.01).
Regarding claim 8, the modified Wolkenstoerfer discloses the method of making a dip tube in claim 1, the modified Wolkenstoerfer discloses wherein the dip tube has a light transmittance in a range of 87-100% (Wang Page 4 line 30- 33 or Elmeguenni ¶[0070]).
Regarding claim 9, the modified Wolkenstoerfer discloses the method of making a dip tube in claim 1, the modified Wolkenstoerfer discloses wherein the dip tube is substantially invisible when disposed in the liquid fragrance (Elmeguenni ¶[0004]) in the glass container, the glass container is configured to hold 1 to 8 fluid ounces of the liquid fragrance and the refractive index of the glass is in a range of 1.5 to 1.6. The modified Wolkenstoerfer discloses a similar device as the claimed invention which also can spray fragrance and the dimension of a devices is obvious to modify (In re Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA 1980) (citing Best, 562 F.2d at 1255 See MPEP 2112 V).
Modified Wolkenstoerfer discloses a transparent container which could be glass as seen in claim 1, It is inherit, that same materials would have the same range of refractive index, (In Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985, See MPEP 2112.01)
Regarding claim 10, the modified Wolkenstoerfer discloses the method of making a dip tube in claim 1, the modified Wolkenstoerfer discloses wherein the non-fluoropolymer of the first tube layer comprises one or more of: a cycle olefin copolymer (COC), ethylene vinyl acetate (EVA), polypropylene (PP), polyethylene (PE), thermoplastic elastomer (TPU), polymer acetate (PA), polymethyl pentene (PMP), polyethylene terephthalate (PET), and polyethylene terephthalate glycol (PETg) (Wolkenstoerfer ¶[0008]).
Regarding claim 11, the modified Wolkenstoerfer discloses the method of making a dip tube in claim 1, the modified Wolkenstoerfer discloses wherein the dissolvable polymer of the second tube layer comprises one or more of: Polyvinyl alcohol (PVOH) (dissolvable in water) Polylactic Acid (PLA) (dissolvable in water) Polyethylene glycol (PEG) (dissolvable in water) Cellulose Acetate (dissolvable in ethanol) Polymethylmethacrylate (PMMA) (dissolvable in ethanol) (Wolkenstoerfer ¶[0015]).
Regarding claim 12, the modified Wolkenstoerfer discloses the method of making a dip tube in claim 1, the modified Wolkenstoerfer discloses wherein the dissolving process comprises disposing the two-layer starting tube (Wolkenstoerfer ¶[0006]). while attached to the nozzle spray pump assembly (Elmeguenni Fig 1) in a dissolving solution for dissolving the second tube layer (Wolkenstoerfer ¶[0055]).
Regarding claim 13, the modified Wolkenstoerfer discloses the method of making a dip tube in claim 1, the modified Wolkenstoerfer discloses wherein the second tube layer comprises the outer layer of the two-layer starting tube, and the dissolving process comprises rinsing the two-layer starting tube (Wolkenstoerfer ¶ [0006]). while attached to the nozzle spray pump assembly (Elmeguenni Fig 1) with a dissolving solution for dissolving the second tube layer (Wolkenstoerfer ¶[0055])
Response to Arguments
Applicant's arguments filed 09/28/2026 have been fully considered but they are not persuasive.
Arguments are addressed in claim 1 rejection.
Regarding to applicants’ arguments, Applicants argues against the individual references rather than the combination of references. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981)(MPEP 2145.VI)
Wolkenstoerfer teaches a two-layer dip tube attracted to pump assembly for a medical device, Elmeguenni teaches a dip tube that is placed in perfume glass bottle that is configured to be invisible in solution. One of ordinary skill in the art would understand dip tubes could be place in different containers. Wang explicitly teaches a two-layer dip tube made out of the same materials as applicants with a refractive index and a thickness configure to be invisible in solution as further proof the invisible dip tubes and the binding layer being invisible are well know it the art.
Regarding to applicants’ arguments that Wang teaches away claimed invention, applicant individually attacks Wang layers without addressing the combined teaching of Wolkenstoerfer and Elmeguenni. Examiner is using Wang to further prove that configuring the dip tube layers to be invisible in solution is obvious, Examiner is not claiming the structure of Wang dip tubes, only the teachings of make dip tubes invisible in solution.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Miller et al. (Patent Publication Application US20200399151-A1) discloses a spray bottle that holds 8-10 fluid ounces as in claim 9.
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 KYLE HARRISON SHIPMAN whose telephone number is (571)270-3197. The examiner can normally be reached Monday-Friday 7:30am-5:00pm.
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, Prem Singh can be reached at (571)272-6381. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE HARRISON SHIPMAN/Examiner, Art Unit 1771
/PREM C SINGH/Supervisory Patent Examiner, Art Unit 1771
