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 .
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: the limitations “connecting means” and “snap-fitting means” lacks antecedent basis in the specification. The examiner recommends amending the claim limitation “snap-fitting means,” in claim 8 to “snap-fastening means” and “connection means 30” to “connecting means 30,” in applicant’s specification.
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.
The following 3-Prong Test is used to detail the invocation of 35 U.S.C. 112(f) pertaining to the limitation “dispensing means” in claim 1:
The generic place holder, “means,” is identified and is not indicative of any specific known, limiting feature.
“means” is modified by the functional language “dispensing.” The generic placeholder is set forth by the function it performs.
A lack of sufficient structure for achieving the claimed function follows the aforementioned limitation.
Thus, the limitation “dispensing means” in claim 1 is given the broadest reasonable interpretation set forth by the Specification to mean: “a self-priming pump with non-return system” Applicant’s Specification, p. 2 l. 18-19.
The following 3-Prong Test is used to detail the invocation of 35 U.S.C. 112(f) pertaining to the limitation “connecting means” in claim 1:
The generic place holder, “means,” is identified and is not indicative of any specific known, limiting feature.
“means” is modified by the functional language “connecting.” The generic placeholder is set forth by the function it performs.
A lack of sufficient structure for achieving the claimed function follows the aforementioned limitation.
Thus, the limitation “connecting means” in claim 1, and depending claims, is given the broadest reasonable interpretation set forth by the Specification to mean: an interconnection container for fixing the bottle in position relative to the outer container while connecting to the outer container. Applicant’s Specification, p. 2 ll. 9-12. Please note, in the interpretation above, “connecting means” as recited in claim 1 is interpreted as analogous to “connection means 30,” in Applicant’s Specification. See the Specification objection above.
The following 3-Prong Test is used to detail the invocation of 35 U.S.C. 112(f) pertaining to the limitation “connection means of said interconnection container” in claim 3:
The generic place holder, “means,” is identified and is not indicative of any specific known, limiting feature.
“means” is modified by the functional language “connection.” The generic placeholder is set forth by the function it performs.
A lack of sufficient structure for achieving the claimed function follows the aforementioned limitation.
Thus, the limitation “connection means” in claim 3 is given the broadest reasonable interpretation set forth by the Specification to mean: “at least one receiving seat of an edge of said mouth of the container,” Applicant’s Specification, p. 5 ll. 1-2.
The following 3-Prong Test is used to detail the invocation of 35 U.S.C. 112(f) pertaining to the limitation “snap-fitting means” in claim 8:
The generic place holder, “means,” is identified and is not indicative of any specific known, limiting feature.
“means” is modified by the functional language “snap-fitting.” The generic placeholder is set forth by the function it performs.
A lack of sufficient structure for achieving the claimed function follows the aforementioned limitation.
Thus, the limitation “snap-fitting” in claim 8 is given the broadest reasonable interpretation set forth by the Specification to mean: “an undercut edge which engages to a corresponding edge,” Applicant’s Specification, p. 5 ll. 26-28. Please note, the “snap-fitting means” is being interpreted as analogous to the “snap-fastening means,” as described in Applicant’s Specification.
The following 3-Prong Test is used to detail the invocation of 35 U.S.C. 112(f) pertaining to the limitation “locking means” in claim 9:
The generic place holder, “means,” is identified and is not indicative of any specific known, limiting feature.
“means” is modified by the functional language “locking.” The generic placeholder is set forth by the function it performs.
A lack of sufficient structure for achieving the claimed function follows the aforementioned limitation.
Thus, the limitation “locking means” in claim 9 is given the broadest reasonable interpretation set forth by the Specification to mean: “two or more elastic locking tabs cooperating with the dispensing unit” which keep the dispensing unit in place with respect to the outer container. Applicant’s Specification, p. 5 l. 34 to p. 6 l. 13.
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 1-12 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.
Claim 1 recites the limitation “said perfume" in l. 3. There is insufficient antecedent basis for this limitation in the claim. The examiner recommends positively reciting the limitation in the body of the claim to establish proper antecedent basis.
Claims 2-12 are rejected as they depend from a rejected base claim.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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, 3-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by El Hassain (US 11471903 B2).
Regarding claim 1, El Hassain discloses an apparatus for dispensing a perfume, comprising: a dispensing unit comprising a bottle (container 4) suitable for receiving said perfume to be dispensed (col. 10 ll. 14-17) and a manually operable dispensing means (pump 7) for dispensing said perfume (col. 11 ll. 38-44); an outer container (body 2) provided with a mouth (upper edge 2c) suitable to allow the insertion of said dispensing unit inside said outer container (fig. 11a and 11b); a connecting means (upper connector 17, retaining part 26, and ring 24) of said dispensing unit to said outer container suitable to allow the removable coupling of said dispensing unit to said outer container (figs. 11a-11b).
Regarding claim 3, in addition to the limitations of claim 1, El Hassain further discloses wherein said connecting means comprises: an interconnection container (upper end portion 26d and upper connector 17) suitable for receiving and maintaining in a fixed position said bottle (upper end portion 26d, which receives the dispensing unit comprising the bottle thereby fixing it in place, figs. 1, 7, and 10 and col. 11 l. 50 to col 12 l. 7); and a connection means (upper connector 17) of said interconnection container to said mouth of said outer container (via internal lug R1, R2 of upper connector 17 with projections 203 and 203 of body 2, refer to figs. 1, 5, 6, 8A, 8B, and col. 23 ll. 23-52).
Regarding claim 4, in addition to the limitations of claim 3, El Hassain further discloses wherein said connection means comprises at least one seat (internal lug R1, R2) for receiving an edge of said mouth (col. 23 ll. 33-52).
Regarding claim 5, in addition to the limitations of claim 4, E Hassain further discloses wherein said seat is realized in an elastically yielding portion (flexible portion or portions SP) of said interconnection container (refer to fig. 8A and col. 23 ll. 33-52).
Regarding claim 6, in addition to the limitations of claim 1, El Hassain further discloses wherein said dispensing means of said dispensing unit comprises a dispensing pump (metering pump 7) applied to said bottle, with said dispensing pump preferably being a self-priming pump with a non-return system (col. 11 ll. 30-44, col. 12 ll. 32-34 describing the check valve—analogous to a non-return system—and self-priming via spring R7).
Regarding claim 7, in addition to the limitations of claim 3, El Hassain further discloses wherein said connecting means further comprises a fastening ring (upper connector 17 and retaining part 26) suitable to be connected in a removable way to said mouth of said outer container (refer to claim 11A and 11B, wherein both upper connector 17 and retaining part 26 (a component of inner unit 25) are removable from the mouth of the outer container).
Regarding claim 8, in addition to the limitations of claim 7, El Hassain further discloses wherein said fastening ring comprises a snap-fitting means for a snap-fitting connection to said mouth of said outer container (distal end 19r, which abuts with the undercut edge of lip 200A, snap-fitting between stops B1, B2 and catch C1, C2).
Regarding claim 9, in addition to the limitations of claim 7, El Hassain further discloses wherein said ring comprises a locking means (retaining reliefs 261 and 262) for locking said dispensing unit (at collar 21, fig. 2 and col. 11 l. 50 to col. 12 l. 7).
Regarding claim 10, in addition to the limitations of claim 9, El Hassain further discloses wherein said locking means comprises two or more elastic tabs (retaining reliefs 261 and 262) cooperating with said bottle and/or cooperating with said dispensing means of said dispensing unit (at collar 21 of metering pump 7, fig. 2, col. 11 l. 50 to col. 12 l. 7, and col. 17 ll. 45-55).
Regarding claim 11, in addition to the limitations of claim 1, El Hassain further discloses wherein said perfume is received non-pressurized within said bottle (as evidence by col. 12 ll. 28-34, the pump induces positive pressure in the metering chamber, aiding unpressurized fluid from the bottle to the outlet).
Regarding claim 12, in addition to the limitations of claim 1, El Hassain further discloses a dispensing unit comprising a bottle (container 4) suitable for receiving a perfume to be dispensed (col. 10 ll. 14-17) and a manually operable dispensing means (pump 7) for dispensing said perfume (col. 11 ll. 38-44), wherein said dispensing unit corresponds to said dispensing unit of an apparatus for dispensing a perfume according to claim 1 (refer to the rejection of claim 1).
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.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over El Hassain (US 11471903 B2) in view of Yerby et al. (US 20060048843 A1).
Regarding claim 2, in addition to the limitations of claim 1, El Hassain discloses said outer container, but remains silent to the outer container further comprises an aerosol container suitable for receiving products under pressure, with said aerosol container preferably complying with the European Aerosol Federation standards. Yerby teaches the outer container further comprises an aerosol container (aerosol container 20) suitable for receiving products under pressure (aerosol propellant 19), However, remains silent to said aerosol container preferably complying with the European Aerosol Federation standards. The courts have held that, when the only difference between the prior art and the claimed invention is a mere change in shape, such change is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant. See MPEP 2144.04(IV)(B) discussing In reDailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). Thus, it would have been prima facie obvious before the effective filing date of the claimed invention to modify the shape of the aerosol canister to be compliant with European Aerosol Federation (FEA) standards. Applicant appears to place no criticality on any specific configuration compliant with FEA standards and as such, compliance with said standards is an obvious design choice (see Specification: p. 2 ll. 6-8, where said aerosol can “can preferably be compliant with standards imposed by FEA”).
Additionally, it would’ve been prima facie obvious before the effective filing date of the claimed invention to replace the outer container with an aerosol container as such combination assists in the dispensing of the internal container’s fluid (Yerby: para. 0057).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Eicher et al. (US 20060016449 A1) for the inclusion of a pressurized outer container and non-pressurized inner container and Chen (US 9757751 B2) for the connecting structure between inner and outer containers.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER STEVEN PARISI whose telephone number is (571)270-5490. The examiner can normally be reached Mon - Fri 8:00 - 5:00 EST.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/CHRISTOPHER S. PARISI/Examiner, Art Unit 3754
/DAVID P ANGWIN/Supervisory Patent Examiner, Art Unit 3754