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 .
Response to Amendment
Claims 1, 8, 10 & 13 have been amended. The amendment to claim 10 overcomes the 112b rejection filed in the previous Office Action
Claim 20 has been cancelled.
Claim 21 is newly added.
Claims 1-19 & 21 are pending.
Drawings
The drawings were received on 07/08/2026. These drawings are acceptable.
Response to Arguments
Applicant's arguments filed 07/08/2026 have been fully considered but they are not persuasive. Regarding claim 1, Applicant argues that the amendment to independent claim 1 is not taught by the prior art (pg. 8, lines 3-4). However, the Examiner disagrees. The amendment to claim 1 recites, “a lower hollow end extending transversely to the straight hollow tube, the lower hollow end having an outlet opening disposed at a terminal end thereof”. Musterman (US 10,940,990) discloses a lower hollow end extending transversely to the straight hollow tube, the lower hollow end having an outlet opening disposed at a terminal end thereof, as outlined in the rejection below.
Applicant further argues that element 52 of the cited reference (Musterman US 10,940,990) is not “lower hollow end” and rather is a “transition conduit port” (pg. 8, lines 5-7). However, the Examiner disagrees. While Musterman does identify element 52 as a “transition conduit port”, someone of ordinary skill in the art could identify this feature as a “lower hollow end” as claimed in the instant application.
Applicant further argues that the structure of Musterman is specifically designed to build up pressure in the expansion chamber and force foam insulation material through a small orifice at high velocity, which is fundamentally different from the claimed structure (pg. 8, line 19-21). However, Examiner disagrees. While Musterman is intended to dispense foam insulation, both Musterman and the instant application are considered in the same field of endeavor of dispensing nozzles.
Regarding claim 8, Applicant argues that the amendment to independent claim 8 is not taught by the combination of cited references (pg. 9, lines 1-9). However, the Examiner disagrees because the combination of Murray and Musterman teaches the limitation “a lower hollow end extending transversely to the straight hollow tube, the lower hollow end having an outlet opening disposed at a terminal end thereof”. Murray teaches a diving nozzle positioned at a purge station and Musterman teaches a lower hollow end extending transversely to the straight hollow tube, the lower hollow end having an outlet opening disposed at the terminal end thereof. 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 Murray to incorporate the teachings of Musterman and provide a purge pipe with a lower angled end to aim the flow of purge gas to a specific location in the package.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the knowledge generally available to one of ordinary skill in the art would motivate them to combine the cited references.
Regarding claim 13, Applicant argues that the amendment to independent claim 13 is not taught by the prior art (pg. 11, lines 22-26). However, the Examiner disagrees because the combination of Murray and Musterman teaches the limitation “directing a flow of purge gas towards a side of the package via the angled lower end, wherein the lower end discharges the purge gas in a swirling-manner within the package”. Murray discloses a nozzle which dispenses purge gas and directs the flow of purge gas to a side of the package. Element 106 in Murray would deflect the gas away from the center of the package and towards the sides of the package. Musterman discloses an angled lower end which is capable of discharging purge gas towards a side of the package. As stated in the As-Filed Specification in Paragraph 0050, “The lower end 204 may facilitate the distribution of purging gas 110 to sides of the pouch 12; thus, generating a swirl of gas within the pouch”. Since the lower angled end of Musterman can direct the flow of purging gas towards a side of the pouch, it can subsequently generate a swirl of gas within the pouch, as stated by the As-Filed Specification. 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 Murray to incorporate the teachings of Musterman and provide a purge pipe with a lower angled end to aim the flow of purge gas to a specific location in the package.
Regarding claim 3, 19 & 21, Applicant argues that the previous Office Action incorrectly concluded that Applicant placed no criticality on the claimed angle range of 110 – 160 degrees as recited by claim 3 (pg. 13, lines 8-16). However, Examiner disagrees. According to Paragraph [0051] of the As-Filed Specification, Applicant has placed criticality on “the purge portion 200 (e.g. purge pipe) with an angled lower end 204 removes 75% more oxygen from within the pouch than a straight tube”. As per the specification cited by Applicant, critically is placed on the fact that the lower end needs to be angled rather than criticality of the angle. It appears that Applicant has placed no criticality the angle range of the lower hollow end. Paragraph 0051 of the As-Filed specification provides examples of preferred angle ranges for the lower angled end, rather than explicit criticality. An angled lower end is taught by the cited reference as outlined in the rejection below.
Regarding claim 10 Applicant argues that the limitations are not taught by the cited references. However, Examiner the disagrees because the combination of Murray and Musterman teaches the limitation “directing a flow of purge gas towards a side of the package via the angled lower end, wherein the lower end discharges the purge gas in a swirling-manner within the pouch”. Murray discloses a nozzle which dispenses purge gas and directs the flow of purge gas to a side of the package. Element 106 in Murray would deflect the gas away from the center of the package and towards the sides of the package. Musterman discloses an angled lower end which is capable of discharging purge gas towards a side of the package. As stated in the As-Filed Specification in Paragraph 0050, “The lower end 204 may facilitate the distribution of purging gas 110 to sides of the pouch 12; thus, generating a swirl of gas within the pouch”. Since the lower angled end of Musterman can direct the flow of purging gas towards a side of the pouch, it can subsequently generate a swirl of gas within the pouch, as stated by the As-Filed Specification. 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 Murray to incorporate the teachings of Musterman and provide a purge pipe with a lower angled end to aim the flow of purge gas to a specific location in the package.
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 & 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Musterman (US 10,940,990).
Regarding claim 1, Musterman discloses;
A diving nozzle for purging a package with purging gas, comprising:
a straight hollow tube (Fig. 1, 102); and
a lower hollow end (Fig. 4, 52) extending transversely to the straight hollow tube, the lower hollow end (Fig. 4, 52) having an outlet opening disposed at the terminal end thereof (see annotated Fig. 4 below).
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Regarding claim 6, in addition to the limitations in claim 1, Musterman discloses;
a shield (Fig. 4, 105) disposed on the straight hollow tube at a position above a transition
between the straight hollow tube and the lower end. (See annotated Fig. 1 below)
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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 2-4 are rejected under 35 U.S.C. 103 as being unpatentable over Musterman (US 10,940,990).
Regarding claim 2, in addition to the limitations in claim 1, Musterman is silent regarding wherein the lower end is arranged at an obtuse angle relative to the straight hollow tube. Instead, Musterman discloses a lower hollow end (Fig.1, 52) positioned at an angle with respect to the longitudinal axis of the straight hollow tube (Fig. 4, 102). The Federal Circuit has held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. MPEP 2144.04(IV)(A) (discussing Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Musterman by causing the angle of the lower hollow end to be between an obtuse angle. Applicant appears to have placed no criticality on any particular angle (see Specification wherein it is required simply that the lower end “is arranged at an angle α, e.g., an obtuse angle”) and it appears that the device of Musterman would work appropriately if made within the claimed range of and obtuse angle.
Regarding claim 3, in addition to the limitations in claim 1, Musterman is silent regarding wherein an axis of the lower hollow end is arranged at an angle of 110° to 160° relative to a longitudinal axis of the straight hollow tube. Instead, Musterman discloses a lower hollow end (Fig.1, 52) positioned at an angle with respect to the longitudinal axis of the straight hollow tube (Fig. 4, 102). The Federal Circuit has held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. MPEP 2144.04(IV)(A) (discussing Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Musterman by causing the angle of the lower hollow end to be between 110-160 degrees. Applicant appears to have placed no criticality on any particular angle range (see Specification wherein it is required simply that the lower end “is arranged at an angle (e.g., 110-160, in particular 135)”) and it appears that the device of Musterman would work appropriately if made within the claimed range of 110-160 degrees.
Regarding claim 4, in addition to the limitations in claim 3, Musterman is silent regarding wherein the angle between the axis of the lower hollow end and the longitudinal axis of the straight hollow tube is about 135°. Instead, Musterman discloses a lower hollow end (Fig.1, 52) positioned at an angle with respect to the longitudinal axis of the straight hollow tube (Fig. 4, 102). The Federal Circuit has held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. MPEP 2144.04(IV)(A) (discussing Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Musterman by causing the angle of the lower hollow end to be about 135 degrees. Applicant appears to have placed no criticality on any particular angle (see Specification wherein it is required simply that the lower end “is arranged at an angle (e.g., 110-160, in particular 135)”) and it appears that the device of Musterman would work appropriately if made within the claimed range of about 135 degrees.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Musterman (US 10,940,990) in view of Domizio (US 20090008479).
Regarding claim 5, in addition to the limitations in claim 1, Musterman does not expressly disclose wherein an inner transition from the straight hollow tube to the lower hollow end is rounded. However, Domizio teaches wherein an inner transition from the straight hollow tube to the lower hollow end is rounded (see annotated Fig. 2 below).
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The advantage of a rounded inner transition is to more efficiently direct the flow of fluids. 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 Musterman to incorporate the teachings of Domizio and provide a rounded inner transition from the straight hollow tube to the angled lowered end to provide a more efficient flow path for fluids.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Musterman (US 10,940,990 B1) in view of Kido et al (US 20090145934).
Regarding claim 7, in addition to the limitations of claim 1, Musterman does not expressly disclose wherein the lower end extends transversely from the straight hollow tube in a first and a second direction. However, Kido teaches wherein the lower end extends transversely from the straight hollow tube in a first and a second direction (Fig.4, 12). The advantage of utilizing a lower end extending transversely from the straight hollow tube in a first and second direction is to obtain a flow speed in an intended direction in the pouch. 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 Musterman to incorporate the teachings of Kido and provide a nozzle that is extending transversely from the straight hollow tube in a first and second direction in order to obtain a flow speed in an intended direction in the pouch Kido(11: 5-6).
Claims 8-19 & 21 are rejected under 35 U.S.C. 103 as being unpatentable over Murray (US 20140076457) in view of Musterman (US 10,940,990 ).
Regarding claim 8, Murray discloses a fill machine for filling a pouch with a product, comprising;
a purge station (Fig.1, 30);
a diving nozzle (Fig. 2, 46; [0028]) positioned at the purge station;
the diving nozzle including;
a straight hollow tube (Fig. 3, 50) with an inlet (Fig. 3, 58) coupled to a supply of purging gas (Fig. 3, 90; [0039]);
the lower end having an outlet opening (Fig. 3, 55) disposed at a terminal end thereof;
wherein the straight hollow tube and the lower hollow end define a flow path for purging gas, (Fig. 4, 50 & 54 define a flow path for the purging gas)
and wherein the lower hollow end directs the purging gas towards a side of the pouch (Fig. 4, 54 would direct the flow of gas towards the bottom side of the pouch).
Murray does not expressly disclose a lower hollow end extending transversely to the straight hollow tube. However, Musterman teaches a lower hollow end (Fig. 1, 52) extending transversely to the straight hollow tube (Fig. 1, 102). The advantage of a purge pipe with an angled lower end is to aim the flow of purge gas to a specific location in the package. 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 Murray to incorporate the teachings of Musterman and provide a purge pipe with a lower angled end to aim the flow of purge gas to a specific location in the package.
Regarding claim 9, in addition to the limitations in claim 8, Murray further discloses wherein the supply of purging gas includes one or more of N2, CO2, and O2 ([0040], The purging gas is optionally an inert gas such as N2 or CO2 or O2).
Regarding claim 10, in addition to the limitations in claim 8, Murray further discloses wherein the lower hollow end configured to direct a flow of purging gas towards one side (Fig. 4, 18) of the pouch to facilitate discharging the purging gas in a swirling-manner within the pouch (Fig. 4, 106 would deflect the flow of purging gas to side 18 of the pouch. Per paragraph 0050 of the As-Filed Specification, the lower end may facilitate the distribution of purging gas to sides of the pouch, thus generating a swirl of gas within the pouch. Since element 106 in Murray would facilitate the distribution of gas to sides of the pouch, it would generate a swirl of gas within the pouch).
Regarding claim 11, in addition to the limitations in claim 8, Murray further discloses wherein the lower end being vertically displaceable into and out of the pouch ([0031], the vertical displacement mechanism vertically displaces the entire diving nozzle).
Regarding claim 12, in addition to the limitations in claim 8, Murray further discloses wherein the lower end is configured to direct a flow of purging gas towards a first side (Fig. 4, 18) and a second side (Fig. 4, 18) of the pouch, and the first side is opposite the second side (Fig. 4, 106 deflects the flow of purging gas to Fig. 4, 18, wherein element 18 are sides of the package which are opposite each other).
Regarding claim 13, Murray discloses a method for purging a package, comprising:
moving a purge pipe with a lower end into an interior of the package ([0031], the vertical displacement mechanism vertically displaces the entire diving nozzle);
and directing a flow of purge gas to a side of the package via the lower end, wherein the lower end discharges the purge gas in a swirling-manner within the package (Fig. 4, 106 would deflect the flow of purging gas side 18 of the pouch. Per paragraph 0050 of the As-Filed Specification, the lower end may facilitate the distribution of purging gas to sides of the pouch, thus generating a swirl of gas within the pouch. Since element 106 in Murray would facilitate the distribution of gas to sides of the pouch, it would generate a swirl of gas within the pouch).
Murray does not expressly disclose a purge pipe with an angled lower end. However, Musterman teaches a purge pipe with an angled lower hollow end (Fig.1, 52). The advantage of a purge pipe with an angled lower end is to aim the flow of purge gas to a specific location in the package. 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 Murray to incorporate the teachings of Musterman and provide a purge pipe with a lower angled end to aim the flow of purge gas to a specific location in the package.
Regarding claim 14, in addition to the limitations in claim 13, Murray further discloses a method for purging a package, comprising:
directing the flow of purge gas to another side of the package via the lower end (Fig. 4, 106 is configured to direct the flow of purge gas to both sides of the package Fig. 4, 18; wherein element 18 are sides of the package which are opposite each other);
and wherein the another side is opposite the side of the package. (Fig. 4, 106 is configured to direct the flow of purge gas to both sides of the package Fig. 4, 18; wherein element 18 are sides of the package which are opposite each other).
Murray does not expressly disclose an angled lower end. However, Musterman teaches a purge pipe with an angled lower end (Fig. 1, 52). The advantage of a purge pipe with an angled lower hollow end is to aim the flow of purge gas to a specific location in the package. 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 Murray to incorporate the teachings of Musterman and provide a purge pipe with a lower angled end to aim the flow of purge gas to a specific location in the package.
Regarding claim 15, in addition to the limitations in claim 14, Murray further discloses a method for purging a package, wherein:
the flow of purge gas is directed simultaneously to both the side and the another side of the package (Fig. 4, 106 deflects the flow of purging gas to both sides of the package Fig. 4, 18; wherein element 18 are sides of the package which are opposite each other).
Regarding claim 16, in addition to the limitations in claim 13, Murray further discloses a method for purging a package, wherein:
The purge pipe (Fig.3, 50) includes an inlet (Fig. 3, 58) coupled to a supply of purge gas (Fig. 3, 90).
Regarding claim 17, in addition to the limitations in claim 16, Murray further discloses a method for purging a package, wherein:
The supply of purging gas includes one or more of N2, CO2, and O2 ([0040], The purging gas is optionally an inert gas such as N2 or CO2 or O2).
Regarding claim 18, in addition to the limitations in claim 13, Murray further discloses a method for purging a package, wherein:
directing the flow of purge gas to the side of the package is performed after filling the package with a product to remove residual oxygen from the package after said filling ([0045]).
Regarding claim 19, in addition to the limitations in claim 13, Murray, as modified by Musterman in the rejection of claim 13 above, teaches an angled lower end is arranged at an obtuse angle relative to a longitudinal axis of a straight hollow tube of the purge pipe, except for expressly stating the angle range. However, the Federal Circuit has held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. MPEP 2144.04(IV)(A) (discussing Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Murray in view of Musterman by causing the angle of the lower hollow end to be between 110-160 degrees. Applicant appears to have placed no criticality on any particular angle range (see Specification wherein it is required simply that the lower end “is arranged at an angle (e.g., 110-160, in particular 135)”) and it appears that the device of Musterman in view of Murray would work appropriately if made within the claimed range of 110-160 degrees. 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 Murray to incorporate the teachings of Musterman and provide a purge pipe with a lower angled end arranged at an angle of 110° to 160° relative to a longitudinal axis of a straight hollow tube, to aim the flow of purge gas to a specific location in the package.
Regarding claim 21, in addition to the limitations in claim 8, Murray, as modified by Musterman in the rejection of claim 13 above, teaches an angled lower end is arranged at an obtuse angle relative to a longitudinal axis of a straight hollow tube, except for expressly stating the angle range. However, the Federal Circuit has held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. MPEP 2144.04(IV)(A) (discussing Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)). Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Murray in view of Musterman by causing the angle of the lower hollow end to be between 110-160 degrees. Applicant appears to have placed no criticality on any particular angle range (see Specification wherein it is required simply that the lower end “is arranged at an angle (e.g., 110-160, in particular 135)”) and it appears that the device of Musterman in view of Murray would work appropriately if made within the claimed range of 110-160 degrees. 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 Murray to incorporate the teachings of Musterman and provide a purge pipe with a lower angled end arranged at an angle of 110° to 160° relative to a longitudinal axis of a straight hollow tube, to aim the flow of purge gas to a specific location in the package.
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 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.
The prior art made of record and not relied upon is considered pertinent to Applicant's
disclosure. US Patent 20070158474 A1 is directed to the state of dispensing nozzles.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYANT K HUYNH whose telephone number is (571)272-8630. The examiner can normally be reached Monday - Friday 7:30-5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Angwin can be reached at (571)-270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/B.K.H./Examiner, Art Unit 3754
/DAVID P ANGWIN/Supervisory Patent Examiner, Art Unit 3754
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