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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
In claim 1 recites the limitations “the first tube layer” and “the second tube layers” in line 4. These is insufficient antecedent basis for this limitation in the claim. Claim limitation should be corrected to read “a first tube layer” and “a second tube layer”.
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 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.
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 discloses A method of making a dip tube(Abstract), providing an extruded concentric two-layer starting tube comprising first and second tube layers (Abstract), 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 (¶[0006]), 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]).
However, Wolkenstoerfer does not explicitly disclose wherein the dip tube is substantially invisible when disposed in a liquid fragrance product in a glass container.
Elmeguenni disclose wherein the dip tube is substantially invisible (¶[0004]) when disposed in a liquid fragrance product in a glass container (¶[0002]).
Elmeguenni and Wolkenstoerfer are both considered to be analogous to the claimed invention because they are in the same field of dip tube.
Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Wolkenstoerfer to incorporate the teaching of Elmeguenni to have container be made out of glass and the dip tube invisible in solution, thereby improve the look of the perfume bottle (¶0004]) The simple substitutions of one known element for another 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.).
However, the modified Wolkenstoerfer does not explicitly the first tube layer comprising a non-fluoropolymer having a refractive index and a thickness configured to be transparent in a liquid fragrance product disposed in a glass container, 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,
Wang disclose the first tube layer comprising a non-fluoropolymer (Page 2 line having a refractive index and a thickness configured to be transparent in a liquid fragrance product disposed in a glass container (page 2 line 20- 25), 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 (page 6 line 10-22),
Wang and the modified Wolkenstoerfer are considered to be analogous to the claimed invention because both are in the same field of dip tubing. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modified the combination Wolkenstoerfer and Elmeguenni to incorporate the teaching of Wang and provide a first tube layer comprising a non-fluoropolymer line having a refractive index and a thickness configured to be transparent in a liquid fragrance product (Page 1 line 15-20). Doing so would hide the functional parts of the devices in the solution improve the look.
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)).
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)
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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)).
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).
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).
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])
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 hold 8-10 fluid ounces as in claim 9.
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.
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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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/K.H.S./Examiner, Art Unit 1771
/KRISHNAN S MENON/Primary Examiner, Art Unit 1771
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