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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of co-pending Application No. 18/816,482 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the current application are taught by the subject matter of the claims of the co-pending application. Their specific relationship and similarities are discussed highlighted in the table below:
Claims
Current application 18/816,511
Co-pending application 18/816,482
1
A nozzle for dispensing an oral care composition comprising: an orifice having a central axis; and fins partially occluding the orifice, wherein each of the fins has an upper surface and a lower surface.
A method for dispensing an oral care composition comprising: dispensing the oral care composition through a nozzle to form a dispensed composition, wherein the nozzle comprises: an orifice having a central axis and an orifice diameter; and fins partially occluding the orifice, wherein each of the fins has an upper surface and a lower surface, wherein the dispensed composition has an increased flavor display compared to a control dispensed composition made by dispensing the oral care composition through a control nozzle comprising an unobstructed, circular orifice having the orifice diameter.
2
The nozzle of claim 1, a center of the orifice is occluded.
The method of claim 1, wherein a center of the orifice is occluded.
3
The nozzle of claim 1, a central hub, wherein the fins are coupled to the central hub.
The method of claim 1, wherein the nozzle further comprises a central hub, wherein the fins are coupled to the central hub.
4
The nozzle of claim 1, the fins are not in contact with a central hub.
The method of claim 1, wherein the fins are not in contact with a central hub.
5
The nozzle of claim 1, the upper surface of each of the fins is distal of the orifice.
The method of claim 1, wherein the upper surface of each of the fins is distal of the orifice.
6
The nozzle of claim 1, the lower surface of each of the fins is proximal of the orifice.
The method of claim 1, wherein the lower surface of each of the fins is proximal of the orifice.
7
The nozzle of claim 1, the lower surface of each of the fins is distal of the orifice.
The method of claim 1, wherein the lower surface of each of the fins is distal of the orifice.
8
The nozzle of claim 1, an on-axis extrusion area and an off-axis extrusion area.
The method of claim 1, wherein the nozzle further comprises an on-axis extrusion area and an off-axis extrusion area.
9
The nozzle of claim 1, a sidewall defining the orifice, wherein the sidewall comprises an inner wall, a rim, and an outer wall.
The method of claim 1, wherein the nozzle further comprises a sidewall defining the orifice, wherein the sidewall comprises an inner wall, a rim, and an outer wall.
10
The nozzle of claim 9, each of the fins further comprise an outer end that extends to the outer wall of the sidewall.
The method of claim 9, wherein each of the fins further comprise an outer end that extends to the outer wall of the sidewall.
11
The nozzle of claim 9, the lower surface of each of the fins extends from the inner surface of the sidewall.
The method of claim 9, wherein the lower surface of each of the fins extends from the inner surface of the sidewall.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 4-6, 8-11, and 13-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ekdahl (US PN 2,103,111).
Regarding claims 1 and 16-20, Ekdahl discloses a tube (item 10, figure 1) that contains an oral care composition (the tube is capable of holding viscous paste-like products, column 1, lines 16-20) comprising:
a cap (item 12, figure 1) coupled to the tube,
wherein the cap comprises an integral nozzle (nozzle 14 in the opening 13 of cap 12, nozzle 14 is integrally assembled with cap 12, figure 1), the nozzle comprising:
an orifice (opening of nozzle 14, see annotated figure 1 below) having a central axis;
a sidewall defining the orifice (see annotated figure 1 below);
fins (see annotated figure 1 below) partially occluding the orifice (see annotated figure 1 below), wherein each of the fins has an upper surface and a lower surface (the fins comprises an upper surface and a lower surface, figures 2 and 5);
wherein the fins extend from the sidewall in line with the orifice (see annotated figure 1 below); and
wherein extruding the oral care composition through the nozzle with at least a portion of the oral care composition is extruded off-axis from the central axis of the orifice (when material is extruded it exits through a central orifice and through off-axis slits of the nozzle, figures 1-5, column 1, lines 4-8),
wherein extruding is carried out by applying pressure to the tube (column 1, lines 22-28).
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Figure 1: Annotated Fig. 2 and Fig. 5 of Ekdahl
Regarding claim 4, Ekdahl discloses that the fins are not in contact with a central hub (there is no central hub as the fins extends from circular periphery of nozzle 14 and extend partially over the orifice, figure 5).
Regarding claim 5, Ekdahl discloses that that the upper surface of each of the fins is distal of the orifice (upper surface is farther from inner orifice, figures 2 and 5).
Regarding claim 6, Ekdahl discloses that the lower surface of each of the fins is proximal of the orifice (lower surface is closer to the inner orifice, figures 2 and 5).
Regarding claim 8, Ekdahl discloses that an on-axis extrusion area and an off-axis extrusion area (the paste-like material exits from the central orifice and the openings formed by the fins, figure 5).
Regarding claim 9, Ekdahl discloses that the sidewall comprises an inner wall, a rim, and an outer wall (figures 2 and 5).
Regarding claim 10, Ekdahl discloses that each of the fins further comprise an outer end that extends to the outer wall of the sidewall (figure 5).
Regarding claim 11, Ekdahl discloses that that the lower surface of each of the fins extends from the inner surface of the sidewall (figure 5).
Regarding claim 13, Ekdahl discloses that a distance between the lower surface of the fins and the orifice varies over a length of the fins (the distance between the lower surface of the fins and the orifice will vary or taper over the length of the fin, figures 2 and 5).
Regarding claim 14, Ekdahl discloses that shape of the fins is a sector (fins are sector shaped, see annotated figure 1 above).
Regarding claim 15, Ekdahl discloses that each of the fins comprises a longitudinal portion (portion of sidewall transitioning to fins, figure 5) extending distally of the orifice, an axial portion (fins extending over orifice, figure 5) extending over the orifice, and a transitional portion (portion between edge of the fins to the angular transition portion between the fins and the sidewall, figure 5) coupling the longitudinal portion and the axial portion.
Claims 1-3, 5-7, and 9-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Musel et al. (“Musel” hereinafter) (US PN 3,123,259).
Regarding claim 1, Musel discloses a nozzle (item 13, figures 1 and 4) for dispensing an oral care composition (the container 4 is capable of holding any fluid or liquid that can be used for oral care, figure 2) comprising:
an orifice (inner cavity of insert 13 divided into opening windows by ribs 28, 29, 30, 31, figures 1, 2, and 4) having a central axis;
a sidewall defining the orifice (see annotated Figure 2 below);
and fins (item 28, 31, figure 4) partially occluding the orifice, wherein each of the fins has an upper surface and a lower surface (ribs 28 and 31 have an upper surface and a lower surface, figures 1 and 4),
wherein the fins extends from the sidewall in line with the orifice (see annotated Figure 2 below, the fins are extending in line with the sidewall and the orifice; furthermore, since “in line” limitation is broad any structure that is in the same plane, same direction, same angle can be considered to be “in line”).
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Figure 2: Annotated Fig. 4 of Musel
Regarding claim 2, Musel discloses a center (item 27, figure 4) of the orifice is occluded.
Regarding claim 3, Musel discloses a central hub (item 27, figure 4), wherein the fins are coupled to the central hub (see figure 4).
Regarding claim 5, Musel discloses that the upper surface of each of the fins is distal of the orifice (upper surface is farther from inner orifice, figure 4).
Regarding claim 6, Musel discloses that the lower surface of each of the fins is proximal of the orifice (lower surface is closer to the inner orifice, figure 4).
Regarding claim 7, Musel discloses that the lower surface of each of the fins is distal of the orifice (the lower surface of ribs 28 and 31 that connects with the hub 27 is farther from the opening of the inner cavity of insert 13, figure 4).
Regarding claim 9, Musel discloses that the sidewall comprises an inner surface, a rim, and an outer wall (side wall comprises an angled rim, an inner surface, and an outer surface, figure 4).
Regarding claim 10, Musel discloses that each of the fins further comprise an outer end that extends to the outer wall of the sidewall (figure 4).
Regarding claim 11, Musel discloses that the lower surface of each of the fins extends from the inner surface of the sidewall (figure 4).
Regarding claim 12, Musel discloses the fins are inclined relative to the central axis of the orifice (fins are angled, see figure 4).
Regarding claim 13, Musel discloses that a distance between the lower surface of the fins and the orifice varies over a length of the fins (because the fins extends from a top of the sidewall and contact the central hub horizontally, the distance between the lower surface of the fins and the orifice will vary or taper over the length of the fin, figure 4).
Response to Arguments
Applicant's arguments, in light of amended independent claim 1, filed 06/12/2026, regarding the rejection(s) of claims 1 and 4-20 under Sprague have been fully considered and are persuasive. Therefore, this rejection has been withdrawn.
Applicant's arguments, in light of amended independent claim 1, filed 06/12/2026, regarding the rejection(s) of claims 1-3 under Musel have been fully considered but they are not persuasive. Applicant argued, in light of amended independent claim 1, that Musel cannot anticipate the claim because it does not teach a nozzle wherein the fins extend from the sidewall in line with the orifice.
Examiner respectfully disagrees and would like to first point out and reiterate that the limitation “fins extends…in line with the orifice” is broad and can be considered to convey that the fins extend from the sidewall in the same plane, same direction (horizontal or vertical), and/or same angular relationship with the orifice. Given this broad language, figure 4 of Musel shows a sidewall (as pointed out in the annotated figure above) and fins 28, 31 that extend from the sidewall and end at the central hub 27. Here, the fins are extending in an angled vertical line with the orifice and thus teaches the limitation of claim 1. For these reasons, claim 1 remains rejected as being anticipated by Musel. Dependent claims 2-3, 5-7, and 9-13 are rejected as being anticipated by Musel as discussed in detail above.
Furthermore, prior art Ekdahl is relied upon to teach amended independent claim 1 which teaches that a circular sidewall of nozzle 14 extends vertically, wherein fins extend from this vertical sidewall in a horizontal direction in line with an opening/orifice of the nozzle. Ekdahl teaches all of the limitations of claim 1 and therefore, claim 1 remains rejected as being anticipated by Ekdahl. Dependent claims 4-6, 8-11, and 14-20 are rejected as being anticipated by Ekdahl as discussed in detail above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 VISHAL J PANCHOLI whose telephone number is (571)272-9324. The examiner can normally be reached Monday - Thursday (9 am - 7 pm).
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/Vishal Pancholi/Primary Examiner, Art Unit 3754
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