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 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 1, 4-6, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Baldwin et al. (“Baldwin” hereinafter) (US PG PUB 2019/0282463) in view of Sugawara et al. (“Sugawara” hereinafter) (US PG PUB 2021/0323755).
Regarding claims 1 and 4, Baldwin teaches a pressure accumulation-type discharge product for a foamed food (paragraphs [001], [100]), comprising:
a can (container, paragraph [0095]);
a first inner pouch (bag, paragraph [0095]) disposed within the can and configured to contain a mixture of a first fluid food (active agent such as food, paragraphs [0005], [0065-0067], [0100]) and a foaming component comprising nitrous oxide and/or carbon dioxide (paragraphs [0005], [0103]), the first inner pouch being airtight so s to isolate an interior of the first inner pouch from a pressurized gas within the can, whereby an internal pressure of the first inner pouch is independently adjusted (the can comprises a package with a fluid product and a propellant gas mixed in to maintain the whipped product under pressure until most of it is dispensed, paragraph [0005]; also a “pressure generating and maintaining component” in the package can generate or maintain pressure inside the enclosed package, paragraph [0095]);
a pressurized gas (gas propellant, paragraph [0095], the container is pressurized with a propellant prior to the bag on valve package being entered in the container space) filling a space between the can and the first inner pouch; and
a discharge unit (dispensing valve, paragraph [0095]) coupled to the can and configured to discharge the mixture contained in the first inner pouch,
wherein the amount of foaming component mixed inside the formulation is from 0.01% w/w to about 15.00 % w/w (paragraphs [0103], [0112]) and various temperature and pressure conditions (paragraphs [0218], [0235]).
Sugawara teaches a pressurized aerosol can dispenser (figure 1A) comprising a formulation formed of a concentrate (item C, figure 1A) and a gas mixture (item R, paragraphs [0373-0374)] in a flexible container (item 14, figure 1A) arranged in an outer container (item 13, figure 1A), wherein the flexible container is airtight (paragraphs [0353], [0433], [0435]) from a propellant space (item P, figure 1A) formed between the flexible container and an outer container, wherein the amount of gas mixture to the concentrate is 2 to 8 times the amount of the nitrous oxide and/or the carbon dioxide dissolved to saturation in the first fluid food at an air temperature of 25° C and a pressure of 0.1 MPa (0.05 ml used for every 1 ml of concentrate, paragraph [0374]).
It would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to have combined the teachings of Baldwin and Sugawara to form an aerosol can assembly that comprises an airtight inner pouch or container around a propellant space formed inside the outer container in order prevent inadvertent mixture of the dispensing concentration and the propellant gas. Furthermore, it would be obvious to choose an appropriate amount of whipping/foaming agent in the invention that is suitable to form sufficient amount of foamed product without having too little or too much of the gas.
It is also worth noting that applicant has admitted that choosing the amount of foaming agent can be determined based on available information about the temperature, pressure, the amount of dissolved, and the components being used (paragraphs [0025-0028] of the specification). Thus, a person of ordinary skill in the art would be able to figure out the ideal or optimum amount of whipping/foaming agent that is necessary to create a desired dispensed foam product.
Regarding claim 5, Baldwin teaches that the container is suitable for holding any liquid food product such an alcoholic beverage (paragraphs [0065-0067], [0100], [0138]).
Regarding claims 6 and 8, Baldwin in combination with Sugawara teaches all of the structure and steps of filling the flexible pouch with a gas and a concentrate mixture (see rejection of claim 1) and filling a propellant in the inner space between the outer container and the flexible pouch. Therefore, under the principles of combination, if a prior art is capable of performing the claimed process or method, in its normal and usual operation, would necessarily describes a device capable of performing the different steps of the method or process, then the device claimed will be considered to be obvious by the prior art process or method. When the prior art process or method is the same as a process or method described in the specification for describing the claimed device, it can be assumed the process or method will obviously describe the claimed device capable of performing the different steps of the process or method. See MPEP § 2112.02.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Baldwin in view of Sugawara, as applied to claim 1, further in view of Nakajima (US PG PUB 2014/0246515).
Regarding claim 2, Baldwin and Sugawara taches a first inner pouch and that the discharge unit dispenses the contents of the first inner pouch but the prior arts are silent to having a second inner pouch and the discharge unit dispensing from both of the pouches.
Nakajima teaches a foam forming aerosol product (item 10, figure 1) comprising an outer can (item 11, figure 1), a discharge unit (item 21, figure 1), a first inner pouch (item 15A, figure 1) holding a first dispensing liquid (paragraph [0097]) and a second inner pouch (item 15B, figure 1) holding a second dispensing liquid (paragraph [0097]) independent from the first inner pouch, wherein the discharge unit dispenses contents of both of the pouches when a user desires to use the aerosol product (paragraph [0100]).
It would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to have modified the invention of Baldwin as taught by Nakajima to have two separate inner pouches holding different dispensing mixtures that can be dispensed by the same discharge unit. Such configruation provides dispensing multiple types of liquids or aerosols while being contained in the same aerosol can and kept separate until the dispensing operation. Also, it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art (See MPEP § 2144.04 (VI)).
Response to Arguments
Applicant's arguments filed 07/02/2026 regarding the rejection(s) of claim(s) 1-2, 4-6, and 8 under Baldwin, Sugawara, and Nakajima have been fully considered but they are not persuasive.
Applicant argued, that the prior arts do not render the independent claims 1 and 6 obvious because they do not teach that the first pouch comprises a first fluid food and a foaming component with independent pressure management of the first pouch and a separate propellant in a filling space between the can and the first pouch. Applicant also argued, that the combination of prior arts do not teach the amount of foaming agent dissolved in the first inner pouch as recited in the claim.
Before addressing the applicant’s arguments, examiner would like to point out that in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Also, regarding applicant’s arguments that the prior arts do not teach a pressure management system, examiner respectfully disagrees. Baldwin, at various point in its specification, discloses that a can or container comprises a bag-on-valve package with a first dispensing product with a whipping agent mixed in and a separate pressure generating/managing element (a propellant) in the can space formed by the can and the bagged package (see paragraphs [0005], [0095], [0100]). Baldwin clearly teaches that the gases like nitrous oxide and carbon dioxide can be used both a whipping agent and a propellant to maintain the pressure of the entire first pouch in the can. It is not clear how the applicant has found that Baldwin does not teach a pressure independence and a separate propellant.
Furthermore, both Baldwin and Sugawara teach that the pressurized gases like nitrous oxide and carbon dioxide (which are used as propellants and whipping agents) can be in various quantities in a dissolved form and mixed with a first fluid product at various different pressures and temperatures. Sugawara also explicitly teaches the amount of dissolved propellant gases in the final dispensing product to be between 0.02 ml to 0.05 ml per every 1 ml of the concentrate. Not only that, as recited previously, applicant has admitted that (in paragraphs [0025-0028]) of the specification that the foaming agent amount can be determined based on available information about the temperature, the pressure, and the amount of concentrate being used. Thus, figuring out the optimal foaming agent amount would be obvious in view of the teachings of Baldwin, Sugawara, and applicant’s own disclosure.
Applicant’s claim that their own mixture has obtained unexpected results does not preclude the possibility that the such configuration is not obtained from the teachings of the prior arts. Applicant’s invited to further amend the claim to recite their formulation with more clarity and precision and also show why the foaming agents taught by the prior art would not work equally well.
Lastly, regarding applicant’s argument that the foams produced by prior arts do not produce a dense, stable foam with low overrun, it is noted that the features upon which applicant relies (i.e., “a dense, stable foam with low overrun”) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
In response to applicant's argument that the prior arts may product a different foam than the one desired by the applicant’s disclosure, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
For all of these reasons, claims 1 and 6 remain rejected as being obvious over Baldwin and Sugawara as discussed in detail above. Dependent claims 4 and 8 also remain rejected under the same combination of prior arts while dependent claim 2 remains rejected under Baldwin in view of Sugawara, further modified by Nakajima as discussed in detail above.
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.
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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