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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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(s) 1-2, 3, 5, 6, 8, and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holcomb (US Patent No. 2,968,441).
Re: Claim 1-2, Holcomb discloses the claimed invention including a nozzle for spraying a fluid of an aerosol container, the nozzle comprising:
a proximal region (25) configured to receive a fluid transportation tube (18) which is configured to provide fluid communication with the aerosol container (Fig. 1);
a distal region (26) comprising an output through hole (22) (Figs. 1 and 3), the output through hole having a diameter of a suitably small diameter and a length as depicted in Fig. 3 except for stating the through hole has a diameter of 0.08 mm-0.12mm, and having a length between 2 and 6 mm. 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 no 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 Holcomb by causing the through hole diameter to be between 0.08 mm-0.12mm, and having a length between 2mm-6 mm. Applicant appears to have placed no criticality on any particular diameter or length (see Specification wherein it is required simply that the device “may” have the claimed dimensions) and it appears that the device of Holcomb would work appropriately if made within the claimed dimensions.
Re: Claim 3, Holcomb discloses the claimed invention including a nozzle output tube (20), the nozzle output tube including the output through hole and being inserted in the distal region (Fig. 3).
Re: Claim 5, Holcomb discloses the claimed invention including a holder (23, 24, 25) extending between an open proximal end and an open distal end, the holder comprising:
a proximal internal channel (25) configured to receive the fluid transportation tube (Fig. 1); and
a distal internal channel (23) configured to receive the nozzle output tube (Figs. 1, 3).
Re: Claim 6, Holcomb discloses the claimed invention including the holder further comprises a middle internal channel (24) connecting the proximal internal channel with the distal internal channel (Depicted in Fig. 1).
Re: Claim 8, Holcomb discloses the claimed invention including the middle internal channel has a diameter (Fig. 1) except for expressly stating between 0.2 and 0.9 mm. 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 no 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 Holcomb by causing the middle internal channel has a diameter between 0.2 and 0.9 mm. Applicant appears to have placed no criticality on any particular diameter (see Specification wherein it is required simply that the device “may” have the claimed dimensions) and it appears that the device of Holcomb would work appropriately if made within the claimed diameter.
Re: Claim 9, Holcomb discloses the claimed invention including the nozzle further comprises a nozzle output tube retainer (21) surrounding at least a distal portion of the holder (Fig. 3), the output tube retainer having a flange (21) protruding beyond the open distal end of the holder and preventing the nozzle output tube to move out of the distal internal channel of the holder (Fig. 3, prevents output tube from moving out of the holder).
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holcomb (US Patent No. 2,968,441) as applied to claim 3 above, and further in view of Ogawa (US 2018/0257847 A1).
Re: Claim 4, Holcomb discloses the claimed invention except expressly stating the output tube is made from polyether ether ketone. However, Ogawa teaches an output tube (1) made of polyether ether ketone (Para. 38, output tube made of PEEK).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to use polyether ether ketone as taught by Ogawa, since such a modification is known in the art for its chemical resistance, durability, low toxicity and high strength to weight ratio and it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Claim(s) 10, 12, 13, and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holcomb (US Patent No. 2,968,441) as applied to claim 3 above, and further in view of Bonham (US Patent No. 6,783,037).
Re: Claim 10 and 19, Holcomb discloses the claimed invention including a head for an aerosol container, the head comprising:
a base (12 )configured to be coupled to the aerosol container (10), the base comprising an outlet portion(15);
a nozzle (18, 23) connected to the base;
a fluid transportation tube on the base that extends from the outlet portion and outside the base into the nozzle except for the tube extending from within the base through the outlet portion. However, Bonham teaches the art recognized equivalence of a fluid transportation tube extending from within the base (Fig.7) or from the outside of the base (Fig. 8) as taught by Holcomb. It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to extend the tube from within head to the outside as taught by Bonham, since Bonham expressly shows the equivalence of tube extending from within (fig. 7) and tube extending from without (fig. 8) for their use in the dispensing art and the selection of any of these known equivalents to extend a tube from a nozzle would be within the level of ordinary skill in the art.
Wherein the nozzle comprises a proximal region (25) configured to receive the fluid transportation tube (18) which is configured to provide fluid communication with the aerosol container (Fig. 1);
a distal region (26) including a nozzle output tube (20) comprising an output through hole (22) (Figs. 1 and 3), the output through hole having a diameter of a suitably small diameter and a length as depicted in Fig. 3 except for stating the through hole has a diameter of 0.05 mm-0.15mm, and having a length between 2 and 6 mm. 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 no 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 Ward by causing the through hole diameter to be between 0.08 mm-0.12mm, and having a length between 2mm-6 mm. Applicant appears to have placed no criticality on any particular diameter or length (see Specification wherein it is required simply that the device “may” have the claimed dimensions) and it appears that the device of Ward would work appropriately if made within the claimed dimensions.
Re: Claim 12, Holcomb discloses the claimed invention including the nozzle is attached to the outlet portion of the base (Depicted in Fig. 2).
Re: Claim 13, Holcomb discloses the claimed invention including the fluid transportation tube is flexible (Col. 3, lines 30-31, flexible tube).
Claim(s) 1-3, 5, 6, 8, 10, 12, 14, and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ward (US Patent No. 2,351,376).
Re: Claim 1-2, Ward discloses the claimed invention including a nozzle for spraying a fluid of an aerosol container, the nozzle comprising:
a proximal region (23) configured to receive a fluid transportation tube (17) which is configured to provide fluid communication with the aerosol container (Fig. 1);
a distal region (20) comprising an output through hole (21) (Figs. 1 and 3), the output through hole having a diameter of a suitably small diameter and a length as depicted in Fig. 3 except for stating the through hole has a diameter of 0.08 mm-0.12mm, and having a length between 2 and 6 mm. 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 no 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 Ward by causing the through hole diameter to be between 0.08 mm-0.12mm, and having a length between 2mm-6 mm. Applicant appears to have placed no criticality on any particular diameter or length (see Specification wherein it is required simply that the device “may” have the claimed dimensions) and it appears that the device of Ward would work appropriately if made within the claimed dimensions.
Re: Claim 3, Ward discloses the claimed invention including a nozzle output tube (18), the nozzle output tube including the output through hole and being inserted in the distal region (Fig. 1).
Re: Claim 5, Ward discloses the claimed invention including a holder (19, 22) extending between an open proximal end and an open distal end, the holder comprising:
a proximal internal channel (22) configured to receive the fluid transportation tube (Fig. 1); and
a distal internal channel (19) configured to receive the nozzle output tube (Figs. 1).
Re: Claim 6, Ward discloses the claimed invention including the holder further comprises a middle internal channel connecting the proximal internal channel with the distal internal channel (Fig. 1, Col. 2, lines 1-3, fluid tube screwed in until threads stop is the mid-section).
Re: Claim 8, Ward discloses the claimed invention including the middle internal channel has a diameter (Fig. 1) except for expressly stating between 0.2 and 0.9 mm. 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 no 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 Ward by causing the middle internal channel has a diameter between 0.2 and 0.9 mm. Applicant appears to have placed no criticality on any particular diameter (see Specification wherein it is required simply that the device “may” have the claimed dimensions) and it appears that the device of Holcomb would work appropriately if made within the claimed diameter.
Re: Claim 10, Ward discloses the claimed invention including a head for an aerosol container, the head comprising:
a base (12) configured to be coupled to the aerosol container (10), the base comprising an outlet portion (15);
a nozzle (T) connected to the base (Fig. 1);
a fluid transportation tube (17) within the base that extends through the outlet portion and outside the base into the nozzle, wherein
the nozzle comprises a proximal region (23) configured to receive a fluid transportation tube (17) which is configured to provide fluid communication with the aerosol container (Fig. 1);
a distal region (20) including a nozzle output tube (18) comprising an output through hole (21) (Figs. 1 and 3), the output through hole having a diameter of a suitably small diameter and a length as depicted in Fig. 3 except for stating the through hole has a diameter of 0.15mm or less, and having a length between 2 and 6 mm. 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 no 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 Ward by causing the through hole diameter to be between 0.15mm or less, and having a length between 2mm-6 mm. Applicant appears to have placed no criticality on any particular diameter or length (see Specification wherein it is required simply that the device “may” have the claimed dimensions) and it appears that the device of Ward would work appropriately if made within the claimed dimensions.
Re: Claim 12, Ward discloses the claimed invention including the nozzle is attached to the outlet portion of the base (Depicted in Fig. 1).
Re: Claim 14, Ward discloses the claimed invention including an elastically deformable actuator comprising:
a lever arm (L) (Fig. 1); and
a coupling portion (34) integrally formed with the lever arm and configured to be mounted around the fluid transportation tube (Depicted in Figs. 1-2), an aerosol valve exit (14) and a portion of an aerosol valve activator (25);
wherein the coupling portion is configured such that when the lever arm is deformed by a user, the coupling portion actuates on the valve activator of the aerosol container (Depicted in Figs. 1-2).
Re: Claim 15, Ward discloses the claimed invention including an aerosol dispenser comprising:
a head (12); and
an aerosol container (10) comprising a valve assembly (15), the valve assembly comprising a valve exit (14) and a valve activator (25) for selectively opening a passage from an inside of the aerosol container to the valve exit (Depicted across Figs. 1-2),
wherein the head comprises
a base (12) configured to be coupled to the aerosol container (Fig. 1);
a nozzle (T) connected to the base (Fig. 1);
a fluid transportation tube (17) within the base that extends from the valve exit through the outlet portion to outside the base and into the nozzle (Depicted in Fig. 1), wherein
the nozzle comprises a proximal region (23) configured to receive a fluid transportation tube (17) which is configured to provide fluid communication with the aerosol container (Fig. 1);
a distal region (20) including a nozzle output tube (18) comprising an output through hole (21) (Figs. 1 and 3), the output through hole having a diameter of a suitably small diameter and a length as depicted in Fig. 3 except for stating the through hole has a diameter of 0.08 mm-0.12mm, and having a length between 2 and 6 mm. 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 no 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 Ward by causing the through hole diameter to be between 0.08 mm-0.12mm, and having a length between 2mm-6 mm. Applicant appears to have placed no criticality on any particular diameter or length (see Specification wherein it is required simply that the device “may” have the claimed dimensions) and it appears that the device of Ward would work appropriately if made within the claimed dimensions.
Claim(s) 4, 16, 17, and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ward (US Patent No. 2,351,376) as applied to claim 3 and 15 above respectively, and further in view of Ogawa (US 2018/0257847 A1).
Re: Claims 4 and 16, Ward discloses the claimed invention except expressly stating the output tube is made from polyether ether ketone. However, Ogawa teaches an output tube (1) made of polyether ether ketone (Para. 38, output tube made of PEEK).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to use polyether ether ketone as taught by Ogawa, since such a modification is known in the art for its chemical resistance, durability, low toxicity and high strength to weight ratio and it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Re: Claim 17, Ward discloses the claimed invention including a holder (19, 22) extending between an open proximal end and an open distal end, the holder comprising:
a proximal internal channel (22) configured to receive the fluid transportation tube (Fig. 1); and
a distal internal channel (19) configured to receive the nozzle output tube (Figs. 1).
Re: Claim 18, Ward discloses the claimed invention including the through hole having a diameter except for stating the through hole has a diameter of 0.08 mm-0.12mm. 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 no 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 Ward by causing the through hole diameter to be between 0.08 mm-0.12mm. Applicant appears to have placed no criticality on any particular diameter (see Specification wherein it is required simply that the device “may” have the claimed diameter) and it appears that the device of Ward would work appropriately if made within the claimed diameter.
Claim(s) 7 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ward (US Patent No. 2,351,376) as applied to claim 6 above, and further in view of Mason (US Patent No. 9,651,178).
Re: Claim 7 and 20, Ward discloses the claimed invention including the middle internal channel is formed between a first wall and a second wall (Fig. 1, threading serving as walls), wherein the first wall is configured as a stop for the fluid transportation tube (Fig. 1, Col. 2, lines 1-3, fluid tube screwed in until threads stop in the mid-section), except for expressly stating separate walls. However, Mason teaches a holder (24) with a middle internal channel (23) is formed between a first wall and a second wall (Fig. 1, threading serving as walls), wherein the first wall is configured as a stop for the fluid transportation tube and the second wall is configured as a stop for the fluid transportation tube (Fig. 3a, Col. 3, lines 58-67, holder with middle channel have a first and second wall on either side serving as stops).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include the holder with stop walls as taught by Mason, since Mason states col. 2, lines 17, 18, 26-30 that such a modification provides a constriction section that narrows the inner channel to a diameter substantially equal to the inner diameter of that of the extension tube, stopping the tube from crossing the center of the adapter, and creating a continuous and substantially uniform flow channel while ensuring each opposing ends of the tube are completely inserted into the holder for a secure connection
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. References cited on the PTO-892 provide additional examples of dispensers with extended fluid transportation tube.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES P. CHEYNEY whose telephone number is (571)272-9971. The examiner can normally be reached Monday - Friday, 8:00 am - 4:30 pm.
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/CHARLES P. CHEYNEY/Primary Examiner, Art Unit 3754