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 5-7 have been examined in this application. This communication is the first action on the merits. No Information Disclosure Statement (IDS) has filed with this application.
Election/Restrictions
Applicant’s election without traverse of Species VIII in the reply filed on 04/06/26 has been acknowledged. Newly added claim 17, requiring the first threaded portion having a shorter linear distance than the second portion, is not drawn to the elected species of Fig. 7 and therefore claim 17 is withdrawn from further consideration.
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 7 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.
As per claim 7, the claim lacks antecedent basis for “the amount of liquid”.
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 and 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over US 5381930 to Kalabakas in view of US 1924809 to Schuelke et al.
As per claim 1, Kalabakas discloses a metered dispensing assembly comprising:
a receptacle (16) that comprises a distal end and a proximate end (Fig. 1-2); and
a dispensing tube (42) that comprises a distal end and a proximate end;
wherein said dispensing tube comprises one or more apertures (45) and said dispensing tube extends through said distal end of said receptacle (Fig. 1);
wherein said one or more apertures and said dispensing tube are configured to allow a fluid to flow from a reservoir that contains a fluid to said receptacle (Fig. 1-2); and
wherein said one or more apertures are located on a section of said dispensing tube that is above said proximate end (Fig. 1) of said receptacle and said section of said dispensing tube is below said distal end of said receptacle (Fig. 1).
Kalabakas does not disclose a means to fix the dispensing tube to the receptacle. Schuelke teaches a metered dispensing assembly (Fig. 5) comprising a receptacle (1) and a dispensing tube (8) fixed to the receptacle wherein said receptacle comprises a first threaded portion (31) and said dispensing tube comprises a second threaded portion (30); and wherein said receptacle and said dispensing tube rotably engage one another through said first threaded portion and said second threaded portion (pg. 2, Ln. 128-133). It would have been obvious for one of ordinary skill in the art at the time the application was effectively filed to modify Kalabakas according to the aforementioned teachings from Schuelke to similarly fix the dispensing tube of Kalabakas to the receptacle of Kalabakas for reasons including to be able to use the device such that reliably measured volume can be obtained without movement of the tube relative to the receptacle.
As per claim 5, Kalabakas further discloses said metered dispensing assembly is made from plastic (Col. 8, Ln. 50-51).
As per claim 6, Kalabakas further discloses wherein said one or more apertures are located on an outer surface of said dispensing tube (Fig. 1) and said distal end of said dispensing tube is capped (43).
As per claim 7, the Kalabakas-Schuelke combination discloses the claimed invention except for the claimed functionality – wherein rotating said dispensing tube relative to said receptacle adjusts the amount of liquid receivable by said receptacle. However, it has been held that: a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations; a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art; and, if the prior art structure is capable of performing the intended use, then it meets the claim. See MPEP §2114(II). In addition, functional claim language that is not limited to a specific structure covers all devices that are capable of performing the recited function. Therefore, if the prior art discloses a device that can inherently perform the claimed function, a rejection under 35 U.S.C. 102 or 103 may be appropriate. See MPEP §2114(IV). Furthermore, when the structure recited in the prior art is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. See MPEP §2112.01(I). The Kalabakas-Schuelke combination discloses the claimed structure and is capable of being used such that rotating said dispensing tube relative to said receptacle adjusts the amount of liquid receivable by said receptacle – i.e. as the tube is rotated by threaded it into the receptacle, relative to the receptacle, the placement of the aperture with respect to the distal end of the receptacle changes thereby adjusting an amount of liquid receivable by said receptacle, as claimed.
Response to Arguments
In regards to the objections to the drawings issued in the non-final rejection dated 04/28/26, the amendment filed 08/28/26 appropriately addresses all and the objections are withdrawn.
In regards to the claim rejections under 35 USC § 112 issued in the non-final rejection dated 04/28/26, the amendment filed 08/28/26 appropriately addresses all and the rejections are withdrawn.
In regards to the claim rejections under prior art issued in the non-final rejection dated 04/28/26, the remarks filed 08/28/26 have been fully considered but are not found persuasive. Applicant requests withdrawal of the claim rejections by providing the following arguments:
Kalabakas and Schuelke fail to disclose, teach, or even suggest “wherein said receptacle comprises a first threaded portion and said dispensing tube comprises a second threaded portion; and wherein said receptacle and said dispensing tube rotatably engage one another through said first threaded portion and said second threaded portion”.
In regards to Schuelke, the threads corresponding to that on the tube of Schuelke do not allow the user to adjust height of the tube relative to upper and lower compartments of the receptacle of Schuelke
Kalabakas and Schuelke do not disclose that the tube used may be adjusted up or down by threaded rotation of the tube relative to said receptacle to adjust the amount of liquid receivable by said receptacle. While Schulke does disclose threaded components, the components of Schuelke that determine the amount of liquid receivable by the receptacle is the actual size of the receptacle (and not a relative height of the tube within the receptacle).
In response to arguments (A)-(B), and as similarly set forth previously, Kalabakas is cited as the primary reference for disclosing a metered dispensing assembly comprising a dispensing tube and receptacle and the tube comprising one or more apertures configured to allow a fluid to flow from a reservoir that contains a fluid to said receptacle. Kalabakakas does not disclose a means to fix the dispensing tube to the receptacle. Schuelke is cited for teaching a metered dispensing assembly comprising a dispensing tube fixed by threaded engagement to a receptacle, and it would have been obvious for one of ordinary skill in the art at the time the application was effectively filed to modify Kalabakas according to the aforementioned teachings from Schuelke to similarly fix the dispensing tube of Kalabakas to the receptacle of Kalabakas in view of the aforementioned silence in Kalabakas in regards to a means to fix the dispensing tube to the receptacle and for reasons including to be able to use the device such that reliably measured volume can be obtained without movement of the tube relative to the receptacle.
In response to argument (C), and as previously set forth, the Kalabakas-Schuelke combination discloses the claimed invention except for the claimed functionality – wherein rotating said dispensing tube relative to said receptacle adjusts the amount of liquid receivable by said receptacle. However, the Kalabakas-Schuelke combination discloses the claimed structure and is capable of being used such that rotating said dispensing tube relative to said receptacle adjusts the amount of liquid receivable by said receptacle – i.e. as the tube is rotated by threaded it into the receptacle, relative to the receptacle, the placement of the aperture with respect to the distal end of the receptacle changes thereby adjusting an amount of liquid receivable by said receptacle, as claimed.
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 with expire on the date the advisory action is mailed, and any extension fee 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 date of this final action.
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
/PAUL R DURAND/Supervisory Patent Examiner, Art Unit 3754 September 23, 2026
Prosecution Insights