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 .
Claim Objections
Claim(s) 40-56 is/are objected to because of the following informalities:
Claim 40, Ln. 5-6 recites “the triggering” which should read “the trigger ring”
Appropriate correction is required.
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.
Claim(s) 41-47 is/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 pre-AIA the applicant regards as the invention.
Claim 41 recites the limitation “the actuation member comprises an actuation member body and an actuation protrusion axially protruding from the actuation member body” in Ln. 2-3 which deems the claim indefinite. The actuation member of claim 40 is interpreted as invoking 35 U.S.C. 112(f) and the disclosed actuation member 3000 includes separate structures to perform the two particular functions recited by claim 40 of driving the delivery tube holder to pivot and driving the trigger ring to move. The instant claim does not invoke 35 U.S.C. 112(f) because of the particular structure it recites for the actuation member. However, the recited structure of the actuation member is only sufficient to perform one of the functions recited by claim 40 (i.e. driving the trigger ring to move). The claim fails to recite any structure of the actuation member sufficient to perform the other function recited by claim 40 of driving the delivery tube holder to pivot. The claim is thus unfairly broad as claim 40 required structure to perform the claimed function of driving the delivery tube holder to pivot (based upon the 35 U.S.C. 112(f) interpretation) while the instant claim fails to recite any structure to perform that same function. It is suggested to add to the claim a structure of the actuation member which is disclosed as driving the delivery tube holder to pivot (e.g. rib 3400).
Claim 44 recites the limitation “the plurality of actuation protrusions” in Ln. 2. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination the claim will instead be read as dependent on claim 43, which provides the proper antecedent basis.
Claim 45 three times recites the term “preferably” which deems the claim indefinite. The term "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 46 three times recites the term “preferably” which deems the claim indefinite. The term "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim(s) 41-47 is/are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 41 recites the limitation “the actuation member comprises an actuation member body and an actuation protrusion axially protruding from the actuation member body” in Ln. 2-3. The actuation member of claim 40 is interpreted as invoking 35 U.S.C. 112(f) and the disclosed actuation member 3000 includes separate structures to perform the two particular functions recited by claim 40 of driving the delivery tube holder to pivot and driving the trigger ring to move. The instant claim does not invoke 35 U.S.C. 112(f) because of the particular structure it recites for the actuation member. However, the recited structure of the actuation member is only sufficient to perform one of the functions recited by claim 40 (i.e. driving the trigger ring to move). The claim fails to recite any structure of the actuation member sufficient to perform the other function recited by claim 40 of driving the delivery tube holder to pivot. The claim is thus improper under 35 U.S.C. 112(d) as it attempts to broaden the claim by essentially removing structure required by the claim upon which it depends (i.e. a structure of the actuation member which drives the delivery tube holder to pivot). It is suggested to add to the claim a structure of the actuation member which is disclosed as driving the delivery tube holder to pivot (e.g. rib 3400). Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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: “actuation member” in claims 40 and 57 (“actuation” as function and “member” as nonce term, see MPEP 2181).
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.
The corresponding structure for the “actuation member” is best understood from the specification as at least: actuation member 3000 including rib 3400 to pivot the delivery tube holder (¶0092) and actuation member body 3200 and an actuation protrusion 3600 to drive the trigger ring (¶0103) (e.g. Figs. 9 & 12).
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.
Allowable Subject Matter
Claims 40-59 are allowed over the prior art.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 40, the prior art fails to teach or suggest a trigger assembly for an atomizer including all elements and functionality recited by the instant claim. Several notes are made about the language and limitations of the claim. Firstly, the term “ring” is given a plain meaning definition of a circular band. The term “ring” is clearly distinguishable from elongated structures which would instead be considered as cylinders. Second, the “delivery tube holder” is best understood as a holder of a structure which includes a delivery tube of the atomizer. Third, the claim requires a direct interaction between the trigger ring and the delivery tube holder as the trigger ring is specifically recited as either stopping axial movement of the delivery tube holder or allowing axial movement of the delivery tube holder. Fourth, the actuation member is noted above as invoking 35 U.S.C. 112(f) and its disclosed structure of actuation member 3000 includes separate parts rib to perform the recited driving of the delivery tube holder to pivot (rib 3400) and driving of the trigger ring to move (actuation member body 3200 and an actuation protrusion 3600). Fifth, the action of the actuation member must directly cause the delivery tube holder to pivot and the trigger ring to move.
The closest prior art to the instant claim is Stuart (U.S. Pub. 2022/0323696) which teaches a coordinated operation of movement between button 112 (Figs. 3 & 5A-5H), cam component 108 (Figs. 2A-2B & 5A-5H) and follower component 104 (Figs. 4 & 5A-5H). Button 112 is relatable to the claimed actuation member, cam component 108 is relatable to the claimed trigger ring and follower component 104 is relatable to the claimed delivery tube holder. However, Stuart fails to read on the overall requirements of the instant claim at least because follower component 104 is not caused to pivot by any action of button 112. Instead, follower component 104 only moves axially in response to button 112 (¶0091; Fig. 5H vs. Fig. 5F).
No other prior art is alternately found which includes the particular locking and unlocking between a trigger ring and a delivery tube holder together with the required pivoting of the delivery tube holder and movement of the trigger ring in response to an actuation member which would be at least a functional equivalent of the disclosed actuation member 3000.
It is thus found that one having ordinary skill in the art at the time of the effective filing of the invention would only have arrived at the instantly claimed invention by way of improper hindsight reasoning.
It is noted that claim 41 does not invoke 35 U.S.C. 112(f).
Regarding claim 57, the claim is found allowable for the same reasons discussed above in regard to claim 40.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure, see PTO-892 for additional attached references.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH D BOECKER whose telephone number is (571)270-0376. The examiner can normally be reached M-F 9:00 AM - 4:00 PM.
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/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785
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