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 1-18 and 20 have been examined in this application. This communication is the first action on the merits. No Information Disclosure Statement (IDS) has been filed with this application.
Election/Restrictions
During a telephone conversation with Marc Hankin on 02/17/26 a provisional election was made without traverse to prosecute Invention I, claims 1-18 and 20. Affirmation of this election must be made by applicant in replying to this Office action. Claim 19 is withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Restriction to one of the following inventions is required under 35 U.S.C. 121:
Invention I, claims 1-18 and 20
Invention II, claims 1 and 19
The inventions are distinct, each from the other because of the following reasons:
Inventions I and II are directed to related products. The related inventions are distinct if: (1) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect; (2) the inventions do not overlap in scope, i.e., are mutually exclusive; and (3) the inventions as claimed are not obvious variants. See MPEP § 806.05(j). In the instant case, the inventions as claimed have a materially different design – e.g. Invention I requires a releasing structure including a deformable upper portion, and Invention II requires a rotatable upper portion wherein a sealing structure blocks said lower opening when said upper portion is in a first rotatable position, and wherein said sealing structure does not block said lower opening when said upper portion is in a second rotatable position. Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants.
Restriction for examination purposes as indicated is proper because all these inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because at least the following reason(s) apply:
(a) the inventions have acquired a separate status in the art in view of their different classification;
(b) the inventions have acquired a separate status in the art due to their recognized divergent subject matter;
(c) the inventions require a different field of search (for example, searching different classes/subclasses or electronic resources, or employing different search queries);
In this particular case, the inventions require: different search queries.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103(a) of the other invention.
Applicant is reminded that upon the cancellation of claims to a non-elected invention, the inventorship must be amended in compliance with 37 CFR 1.48(b) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. Any amendment of inventorship must be accompanied by a request under 37 CFR 1.48(b) and by the fee required under 37 CFR 1.17(i).
The following are suggested formats for either a Certificate of Mailing or Certificate of Transmission under 37 CFR 1.8(a). The certification may be included with all correspondence concerning this application or proceeding to establish a date of mailing or transmission under 37 CFR 1.8(a). Proper use of this procedure will result in such communication being considered as timely if the established date is within the required period for reply. The Certificate should be signed by the individual actually depositing or transmitting the correspondence or by an individual who, upon information and belief, expects the correspondence to be mailed or transmitted in the normal course of business by another no later than the date indicated.
Drawings
The drawings are objected to:
as failing to comply with 37 CFR 1.84(p)(5) because they include the reference character(s) not mentioned in the description: e.g. “28.8±0.3” and “30.7±0.3” and “GATE” and 1 in circle and 2 in circle (Fig. 1a-1b). Please review all reference characters in the drawings for compliance with 37 CFR 1.84(p)(5).
under 37 CFR 1.84(h)(3) because:
the planes upon which each sectional view is taken, is not indicated on the view from which the section is cut;
sectional views omit required hatching (Fig. 5);
under 37 CFR 1.84(b) because they include photographs. The Office will accept photographs only if they are the only practicable medium for illustrating the claimed invention.
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 disclosure is objected to because of the following informalities: “upper seal” should be “upper portion” ([0057]).
Appropriate correction is required.
Claim Objections
Claims 2 and 20 are objected to because of the following informalities: “wherein seal engaging structure” should be “wherein the seal engaging structure”.
Claim 8 is objected to because of the following informalities: “mouths” should be “mouth”.
Appropriate correction is required.
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.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
In regards to claim 1, claim limitations “sealing structure” and “releasing structure” have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses a generic placeholder “structure” and coupled with functional language “sealing” and “releasing” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholders are not preceded by a structural modifier. Since the claim limitation(s) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, limitation “sealing structure” has been interpreted to cover the limitations of claim 4 and equivalents thereof, and limitation “releasing structure” has been interpreted to cover the limitations of claims 2 and 5.
In regards to claims 18 and 20, claim limitation “reinforcement structure” has been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses a generic placeholder “structure” and coupled with functional language “reinforcement” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholders are not preceded by a structural modifier. Since the claim limitation(s) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, limitation “reinforcement structure” has been interpreted to cover “spokes” and equivalents thereof.
If applicant wishes to provide further explanation or dispute the examiner’s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action.
If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112 , sixth paragraph, applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
For more information, see MPEP § 2173 et seq. and Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011).
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 18 and 20 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 claims 18 and 20, the limitation “a reinforcement structure configured to increase rigidity of said flange” is ambiguous. Specifically, it is unclear to what reference “increase” pertains, and therefore the scope of the claim cannot be determined.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-9, 17, 18, and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 8490786 to Rohr et al.
As per claims 1-9, 14-17, 18, and 20, and as the examiner can understand the claims, Rohr discloses a dispensing cap (Fig. 7-12) comprising:
a chamber (140);
a sealing structure (190);
a releasing structure (150, 180);
a container engagement portion (110) comprising one or more threads forming a frictional sealing surface (Col. 3, ln. 3-5; Fig. 8);
an additive (Col. 4, ¶ 1); and
a tamper seal (130);
wherein said releasing structure comprises an upper portion (150) and a seal engaging structure (180);
wherein seal engaging structure extends away from said upper portion (Fig. 8);
wherein said upper portion is deformable (Col. 3, Ln. 13-18);
wherein said sealing structure comprises a stem and a flange (Fig. 8);
wherein said seal engaging structure engages said stem (Fig. 8);
wherein said chamber comprises an open mouth (Fig. 12);
wherein said flange covers said open mouth when said upper portion is not deformed (Fig. 8);
wherein deforming said upper portion is configured to cause said flange to not cover said open mouth (Fig. 12);
wherein said additive is stored in said chamber (Col. 4, ¶ 1);
wherein said tamper seal is configured to be broken if said upper portion is deformed (Col. 3, Ln. 47-53); and
wherein said sealing structure comprises a reinforcement structure (see Figure A - below) configured to increase rigidity of said flange.
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Figure A: US 8490786, Fig 8 - annotated
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 10-13 are rejected under 35 U.S.C. 103 as being unpatentable over US 8490786 to Rohr et al.
As per claims 10-13, Rohr discloses the claimed invention except for the particular physical characteristics of the dose held in the chamber. However, it would have been obvious for one of ordinary skill in the art at the time the application was effectively filed to use the dispensing cap to dispense a dosage of medicinal additive in any of the available physical forms of medicinal additive—i.e. including powder, liquid, and solid.
Conclusion
The prior art made of record in FORM PTO-892 and not relied upon is considered pertinent to applicant's disclosure.
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 February 18, 2026