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 preliminary amendment filed on 8/22/2024 has been entered.
Election/Restrictions
Applicant’s election without traverse of Group I, drawn to claims 1-17 and 25-26 in the reply filed on 6/2/2026 is acknowledged. Claims 18-14 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 6/2/2026.
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.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not 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 not 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 function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “dispensing mechanism” in claims 1, 11, 16 and 25-26; the specification cites “a lead screw” as a “dispensing mechanism” ([0112]).
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1-6, 9, 11, 15 and 25-26 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by deVirag (US 2009/0028629).
Regarding claim 1, deVirag discloses an apparatus (fig.1-9), comprising: a body (304) defining a receptacle; a cap (418) configured to be removably coupled to an axial end of the body ([0036]); a container (302) removably disposable within the receptacle (see fig.3), the container defining an internal volume configured to contain a substance ([0034]); and a dispenser (306, 310, 312) coupled to the container, the dispenser including: a dispenser cap (402) coupled to an axial end of the container, at least one dispensing opening defined through the dispenser cap (via 408, 410, 412, 414), and a dispensing mechanism at least partially disposed within the container and configured to be selectively actuated to dispense the substance through the at least one dispensing opening (via 306, 310, 312).
Regarding claim 2, deVirag discloses an outer surface of the dispenser cap includes: a first curved surface defining a first curvature; and a second curved surface defining a second curvature that is different from the first curvature (see curvatures of 416).
Regarding claim 3, deVirag discloses the at least one dispensing opening is defined in a central location of the outer surface of the dispenser cap that is located between the first curved surface and the second curved surface (see location of 408 in fig.4C; see also [0035]).
Regarding claim 4, deVirag discloses the central location is substantially flat (see fig.4).
Regarding claim 5, deVirag discloses the central location defines a third curvature different from the first curvature and the second curvature (see curvatures on 410, 412, 414).
Regarding claim 6, deVirag discloses an outer surface of the dispenser cap defines a dome-shaped portion (see fig.4).
Regarding claim 9, deVirag discloses the at least one dispensing opening includes at least three openings (see fig.4).
Regarding claim 11, deVirag discloses the dispensing mechanism is configured to be selectively actuated by being rotated about a longitudinal axis of the dispenser, and the at least one dispensing opening is configured to dispense a predetermined amount of the substance in response to a full rotation of the dispensing mechanism about the longitudinal axis of the dispenser ([0030], via rotation of threaded member 306).
Regarding claim 15, deVirag discloses the dispenser cap further comprises: at least one ridge extending axially outward from an outer surface of the dispenser cap, the at least one ridge disposed radially outwards of the at least one dispensing opening (see ridges around 410, 412, 414, 408) .
Regarding claim 25, deVirag discloses a method for dispensing a substance through an apparatus (fig.1-9) that comprises a body (304) defining a receptacle (see fig.3), a cap (418) removably coupled to a first axial end of the body, a container (302) removably disposable within the receptacle and defining an internal volume containing a substance ([0034]), and a dispenser including a dispenser cap (402) coupled to a first axial end of the container proximate to the first axial end of the body (at marked area 302) and defining at least one dispensing opening therethrough (see 402 with openings 410, 412, 414), and a dispensing mechanism (306, 310, 312) configured to be selectively actuated to dispense the substance through the at least one dispensing opening ([0035]), the method comprising: exposing the dispenser cap to an external environment responsive to removal of the cap from the first axial end of the body (see fig.4A, B, C); responsive to actuation of the dispensing mechanism, causing a predetermined amount of the substance to be dispensed through the at least one dispensing opening onto an outer surface of the dispenser cap ([0035-0036]); responsive to the outer surface of the dispenser cap contacting an external surface, applying at least a portion of the predetermined amount of the substance on the external surface ([0035-0036] and claim 13, via application surface 416, sponge or brush onto hair); and isolating the dispenser cap from the external environment responsive to replacement of the cap on the first axial end (via 418; [0036]).
Regarding claim 26, deVirag discloses a method for dispensing a substance through an apparatus (fig.1-9) that comprises a body (304) defining a receptacle (see fig.3), a cap (418) removably coupled to a first axial end of the body, a container (302) removably disposable within the receptacle and defining an internal volume containing a substance ([0034]), and a dispenser including a dispenser cap (402) coupled to a first axial end of the container proximate to the first axial end of the body and defining at least one dispensing opening (410, 412, 414) therethrough, and a dispensing mechanism (306, 310, 312) configured to be selectively actuated to dispense the substance through the at least one dispensing opening ([0035]), the method comprising: exposing the dispenser cap to an external environment responsive to removal of the cap from the first axial end of the body (removal of 418); responsive to the cap being coupled to the dispensing mechanism proximate to a second axial end of the body opposite the first axial end and being rotated by a predetermined amount, causing actuation of the actuating mechanism to cause a predetermined amount of the substance to be dispensed through the at least one dispensing opening onto an outer surface of the dispenser cap (via 310 and 312 and [0035]); responsive to the outer surface of the dispenser cap contacting an external surface, applying at least a portion of the predetermined amount of the substance on the external surface (see [0036] and claim 13, via application surface 416, sponge or brush onto hair); and isolating the dispenser cap from the external environment responsive to replacement of the cap on the first axial end (via 418).
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 7 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over
deVirag (US 2009/0028629) in view of Swaile (US 2015/0201735).
Regarding claim 7, deVirag is silent in disclosing the at least one dispensing opening is disposed at an apex of the dome-shaped portion. However, Swaile teaches the commonality of having at least one dispensing opening being disposed at an apex of the dome-shaped portion (see 22 in fig.3 and [0034]). It would have been obvious to one having ordinary skill in the art before the effective filling date of the application to modify the dispensing outlet shape of deVirag to an apex domed shape as taught by Swaile, in order to better conform to a body surface during the use.
Regarding claim 12, deVirag is silent in disclosing the predetermined dispensing amount of the substance is between about 0.2 grams and about 2 grams. However, Swaile teaches the commonality of dispensing a dose of about 0.2 grams and about 2 grams of substance ([0034]). It would have been obvious to one having ordinary skill in the art before the effective filling date of the application to import the teaching of Swaile with regard to the dose amount into the device of deVirag, in order to prevent excessive use of the substance.
Claims 8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over
deVirag (US 2009/0028629) in view of Bonnin (FR 3042692 A1).
deVirag discloses all the features of the invention except the at least one dispensing opening includes one or more slots; and the at least three openings are three slots that are arranged parallel to one another. However, Bonnin teaches the commonality of the at least one dispensing opening to include one or more slots; and the at least three openings are three slots that are arranged parallel to one another (see attached translation, page 4, ll.29-34). It would have been obvious to one having ordinary skill in the art before the effective filling date of the application to modify the dispensing openings of deVirag to slots as taught by Bonnin, in order to prevent contamination of the substance.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over
deVirag (US 2009/0028629) in view of Clark (US 6,907,876).
deVirag is silent in disclosing the body includes a plurality of slots such that the container, when disposed within the receptacle, can be visible through the plurality of slots. However, Clark teaches the commonality of a body that includes a plurality of slots such that the container, when disposed within the receptacle, can be visible through the plurality of slots (see slots 170 in fig.13). It would have been obvious to one having ordinary skill in the art before the effective filling date of the application to modify the body of deVirag as such to include slots as taught by Clark, in order to observe the movement of the container.
State of the Prior Arts
Regarding claims 1 and 25-26, the prior arts to deVirag (US 2009/0028629), Roh (US 2019/0082810), Hwang (US 11,084,646), Holtzman (US 2022/0248827) and Nakahira (WO 2021182156 A1) as cited in PTO-892, either individually or in combination are disclosing/teaching significant pertinent structures or features to the applicant’s claimed invention with regard to an apparatus having a body defining a receptacle; a cap coupled to an axial end of the body; a container removably disposable within the receptacle and defining an internal volume configured to contain a substance; and a dispenser coupled to the container, the dispenser including: a dispenser cap coupled to an axial end of the container, at least one dispensing opening defined through the dispenser cap, and a dispensing mechanism at least partially disposed within the container to selectively actuate to dispense the substance through the at least one dispensing opening. It appears that claims 1 and 25-26 do not provide any inventive concept over the cited prior arts.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Bob Zadeh whose telephone number is (571)270-5201. The examiner can normally be reached Monday-Friday 8am-4pm E.
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/BOB ZADEH/Primary Examiner, Art Unit 3754
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