DETAILED ACTION
Final
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/Arguments
Claims 1-25 are pending. Claims 1, 3-5, 7-12, 16-20 are currently amended. Claims 21-25 are newly added. It appears that no new matter has been entered. The amendments to the claims have required further search and/or consideration and addition of alternative prior art to meet the breadth of the claims as amended. The amendments to the claims have overcome the 35 USC 112 second paragraph rejections and are withdrawn. The replacement sheets have corrected the drawing objections and are withdrawn. The amendments to the claims have overcome the claim objections and are withdrawn.
With regard to the remarks, Applicant argues that the application of the primary reference for the protuberance limitation was improper, but the limitation was subject to viewpoint perspective/lack of objective meaningful reference as to which direction the protuberance should be considered. This has been corrected via the amendment, and requiring additional search and consideration which has been addressed as seen below.
Applicant remarks that the shape of the body must be read only in context of the written description of the application, but respectfully, the remarks are not commensurate in scope with the claim language, and appear to narrowly tailor the limitations to arguably require that such are imported into the claim limitations themselves.
The office must read the claim limitations as broadly as reasonable in context with the written description and the prior art and it is improper to import limitations from the written description into the claims without positively reciting means plus function nonce style language or special definitions. MPEP 2111, 2173.05(q). So the remarks cannot be found persuasive.
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, regarding the combination of Mühlemann in view of Rousselet, it is noted that the rejection relies upon the factual teachings of Mühlemann and Rousselet in combination with a rationale that underpins the combination, that of the user experience customization and that a change of form or shape is within the ordinary skill in the art. So the remarks are not persuasive.
The amendments to the claims have been addressed via Mühlemann in view of Rousselet and Defert; and in the alternative in view of Defert in view of Rousselet.
This action must be made Final.
Claim Rejections - 35 USC § 103
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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 3-6, 11-13, 15, 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mühlemann (US 2020/0180824) and further in view of Rousselet (US 2002/0175137) and Defert (WO 2022/171752);
Claim(s) 7-10, 21-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mühlemann in view of Rousselet as applied to claim 1 and further in view of Fracasso (US 9067704);
Claim(s) 16-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mühlemann in view of Rousselet as applied to claim 1 and further in view of Lasfargues (US 2011/0226792);
In the alternative: Claim(s) 1, 3-12, 21, 23-25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Defert and further in view of Rousselet (US 2002/0175137.)
Mühlemann discloses in claim 1: (see at least annotated figures 1 and 3 below)
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A head (1 figure 1) for manufacturing a flexible tube for containing a liquid or pasty product (the phrase considered a statement of intended use as it does not add meaningful structural limitation to the body of the claimed apparatus under MPEP 2114), comprising an upper wall (at 21) and an annular side wall (at 20), a lower end edge (of 70) of which extends in a radial plane (at 1002 as so defined by 70), said head comprising a dispensing orifice (at 22) and a protuberance (at 27 figure 2) which extends axially downward from an inner face of said head to a free end, a free lower end portion of said protuberance projecting axially downward from said radial plane (axially away from the plane), said projecting portion being eccentric with respect to a center of the head (as shown, 27 is radially offset in a certain eccentricity), characterized in that the lower end edge has [a circular] shape extending along a major axis (at 1004, 1006) in the plane (P) and having two main vertices (each axis has at least two vertices that cross the shape at diametrically opposed locations at 1008 and 1010 respectively) at each end of the major axis (so crossing the shape), the protuberance being arranged in the vicinity of one main vertex (adjacent or in the axial vicinity of 1008.) Mühlemann does not disclose: an oblong shape; the protuberance extends axially downward from an inner face of said head to a free end, a free lower end portion of said protuberance projecting axially downward from said radial plane, said projecting portion being eccentric with respect to a center of the head, but Rousselet discloses: an oblong shape for the head (20/30 figure 1a is oblong with the hinge aligned the major axis for the purpose of for example user experience customization; Defert teaches: the protuberance (3/4 extending from orifice 2) extends axially downward from an inner face (10/10a) of said head (1) to a free end (4), a free lower end portion (that of 4 figure 4) of said protuberance projecting axially downward from said radial plane (d), said projecting portion being eccentric and the orifice being off center with respect to a center of the head (as shown and discussed, abstract, and for the purpose of for example, allowing the tube head to be detected and/or located by the manufacturing assembling machines for accurate and efficient quality throughput production; as well as for providing for example an off centered orifice for fluid flow dispensing close to the edge of tube head providing localized output.)
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing of the invention to provide for Mühlemann as taught in Rousselet, an oblong shape for the head as taught in Rousselet where the oblong shape can have the hinge aligned the major axis, all for the purpose of for example user experience customization, where it is noted that such a modification involves a mere change in the form or shape of a component. A change in form or shape is generally recognized as being within the level of ordinary skill in the art. In re Dailey, 149 USPQ 47 (CCPA 1976);
And it would have been further obvious to one of ordinary skill in the art at the time of filing of the invention to provide Mühlemann as taught in Defert with a protuberance that extends from an orifice axially downward from an inner face of said head to a free end as taught in Defert, where a free lower end portion of the protuberance can project axially downwards from a radial plane of the head, with the projecting portion being eccentric and the orifice being off center with respect to a center of the head as taught in Defert, all for the purpose of for example, allowing the tube head to be detected and/or located by the manufacturing assembling machines for accurate and efficient quality throughput production; as well as for providing for example an off centered orifice for fluid flow dispensing close to the edge of tube head providing localized output.
Mühlemann discloses (as modified for the reasons discussed above) in claim 3: The head according to claim 1, wherein the dispensing orifice is arranged in the extension (i.e. within a radial outer circumferential extension…) of the protuberance (as shown.)
Mühlemann discloses (as modified for the reasons discussed above) in claim 4: The head according to claim 1, said tube head comprising a folding cover (at 3) connected to the head by a hinge (at 4) and movable between an open position and a closed position, said head, the folding cover and the hinge consisting of a single piece (integrally formed together via injection molding ph 0032 where 3 can snap onto 2 via a snapping hinge 4, and where all the parts are formed together via injection molding.)
Mühlemann discloses (as modified for the reasons discussed above) in claim 5: The head according to claim 4, wherein the head is configured so that, when the cover is in the closed position, the head has a flat upper surface (1012 figure 3 is flat upper surface.)
Mühlemann discloses (as modified for the reasons discussed above) in claim 6: The head according to claim 4, wherein the cover comprises a tab (26 is a tabbed surface) allowing easy opening of the cover by a user's finger (as a gripping action per ph 0036.)
Mühlemann discloses (as modified for the reasons discussed above) in claims 7 and 21: said head having a height (h1the head has a certain height); Mühlemann does not explicitly disclose: the height between 5 and 20 mm, in particular between 8 and 12 mm, although Fracasso (US 9067704) teaches: the height between 5 and 20 mm, in particular between 8 and 12 mm (3 and 11 mm, Col 9 ln 53-55, for the purpose of providing an appropriate size and shape for the cap for user experience).
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing of the invention to provide for Mühlemann as taught in Fracasso, with the height between 3 and 11 mm (which is within the ranges of 5 and 20 mm, in particular between 8 and 12 mm and meets the limitations under MPEP 2131) as taught in Fracasso, for the purpose of providing an appropriate size and shape for the head for user experience.
Mühlemann discloses (as modified for the reasons discussed above) in claims 8 and 22: wherein the length d of the head along its major axis (B) is (a certain distance). Mühlemann does not explicitly disclose; the length between 15 and 75 mm, in particular between 30 and 50 mm, although Fracasso teaches: the height is between 3mm and 11 mm, Col 9 ln 53-55, and the ratio of extension to main axis transition area is 2.5, providing a length of 22 mm, Col 2 ln 63-65, and all for the purpose of providing an appropriate size and shape for the cap for user experience).
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing of the invention to provide for Mühlemann as taught in Fracasso, with the tube head length of about 22 mm to about 35 mm depending on the height of the head (which would fall between 15 and 75 mm, in particular between 30 and 50 mm and meets the limitations under MPEP 2131) as taught and/or suggested in Fracasso, all for the purpose of providing an appropriate size and shape for the head for user experience.
Mühlemann discloses (as modified for the reasons discussed above) in claims 9 and 23: wherein a ratio (d/h1) of the length (d) of the head over the height (b1) of the head is (defined by the height and length/diameter of the head); Mühlemann does not explicitly disclose, the ratio between 2 and 6, in particular between 3 and 5; but Fracasso teaches: the height is between 3mm and 11 mm, Col 9 ln 53-55, and the ratio of extension to main axis transition area is 2.5, providing a length of 22 mm, Col 2 ln 63-65, and all for the purpose of providing an appropriate size and shape for the cap for user experience).
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing of the invention to provide for Mühlemann as taught in Fracasso, with the height of the head to the tube head length ratio of 2.5 to 2.3 (which would fall between the ratio between 2 and 6, in particular between 3 and 5, and meets the limitations under MPEP 2131) as taught and/or suggested in Fracasso, all for the purpose of providing an appropriate size and shape for the head for user experience.
Mühlemann discloses (as modified for the reasons discussed above) in claims 10 and 24: wherein the projecting portion has a height (h2) (the projecting portion has such a height); Mühlemann does not explicitly disclose: a projecting portion height of between 1.5 and 6 mm, or between 2 and 4 mm; although Fracasso teaches: the height between 1 mm and 6 mm, Col 3 ln 6-8, all for the purpose of providing an appropriate size and shape for the cap for user experience;
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing of the invention to provide Mühlemann as taught in Fracasso with the height between 1 mm and 6 mm, as taught in Fracasso, all for the purpose of providing an appropriate size and shape for the cap for user experience.
Mühlemann discloses (as modified for the reasons discussed above) in claims 11 and 25: wherein a thickness of the material at the upper wall and the annular side wall is (a certain thickness); but Mühlemann does not disclose: the material thickness between 0.3 and 2 mm, or between 0.5 and 1 mm; Rousselet teaches: a material thickness of 0.2 mm to about 1 mm (see ph 0046, and all for the purpose of for example providing the necessary structural rigidity to hold the shape of the head and/or tube as the case may be);
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing of the invention to provide Mühlemann as taught in Rousselet, with a material thickness of 0.2 mm to about 1 mm which includes for example 0.75 mm thickness, and all for the purpose of for example providing the necessary structural rigidity to hold the shape of the head and/or tube as the case may be.
Mühlemann discloses (as modified for the reasons discussed above) in claim 12: The head according to claim 1, characterized in that the head is made of a plastic material (ph 0031); but does not disclose, although Rousselet teaches using: polyethylene (ph 0033 for the purpose of for example injection blow molding) or (i.e. “or” indicating alternative grouping under MPEP 2131) high density polyethylene (HDPE);
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing of the invention to provide Mühlemann as taught in Rousselet a plastic material formed of polyethylene all for the purpose of for example injection blow molding the head as taught in Mühlemann.
Mühlemann discloses (as modified for the reasons discussed above) in claim 13: The head according to claim 6, characterized in that the head comprises an integrity indicator (at 50 figure 3.)
Mühlemann discloses (as modified for the reasons discussed above) in claim 15: The head according to claim 13, characterized in that the integrity indicator comprises an axially projecting tongue (at 60) made in one piece with an associated first one of the cover (3) or (MPEP 2131) the side wall, a free end (at 6) of the tongue being fixed to the other one of the cover or the side wall, the tongue having a breakage initiator (50) arranged along a joint plane (at 53) between the cover and the side wall.
Mühlemann discloses (as modified for the reasons discussed above) in claim 16: A tube comprising the head according to claim 1 but does not disclose, although Lasfargues (US 2011/0226792) teaches: a flexible sleeve comprising at least 50% by mass of polyethylene (ph 0065-0072, provided for the purpose of for example, efficient manufacturing of a receptacle using readily available industrial materials.)
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing of the invention to provide Mühlemann as taught in Lasfargues with the receptacle as a flexible sleeve comprising at least 50% by mass of polyethylene as taught in Lasfargues, and provided for the purpose of for example, efficient manufacturing of a receptacle using readily available industrial materials.
Mühlemann discloses (as modified for the reasons discussed above) in claim 17: The tube according to claim 16, characterized in that a wall of the flexible sleeve has a thickness of between 150 μm and 400 μm (0.3 to 0.4 mm or 300 to 400 micrometers in thickness as taught in Lasfargues, for that of Mühlemann, and for the further purpose of providing a thin and lightweight container that is for example easily disposable.)
Mühlemann discloses (as modified for the reasons discussed above) in claim 18: The tube according to claim 16, wherein the flexible sleeve is fixed directly to the head (as modified by Lasfaruges for that of Mühlemann, via adhesive bonding, welding or the like, ph 0073); and where it would be further obvious to one of ordinary skill in the art for the reasons discussed above to provide Mühlemann as taught in Lasfargues the above, and for the purpose of for example maintaining a fluid tight sealed connection.
Mühlemann discloses (as modified for the reasons discussed above) in claim 19: A method of manufacturing a tube according to claim 16, Mühlemann does not disclose, although Lasfargues teaches, that the flexible sleeve is obtained by extrusion (ph 0065, for the purpose as mentioned above),
Accordingly, it would have been further obvious to one of ordinary skill in the art at the time of filing of the invention to provide the tube of Mühlemann as taught in Lasfargues to have the flexible sleeve produced or obtained by extrusion as taught in Lasfargues, and all for the purpose as mentioned above.
Mühlemann discloses (as modified for the reasons discussed above) in claim 20: The method of manufacturing a tube according to claim 16, Mühlemann does not disclose, although Lasfargues teaches in that the flexible sleeve is obtained by welding two edges of a laminated sheet (the bottom two edges ph 0073, for the purpose of closing the body;
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing of the invention to provide the tube of Mühlemann as taught in Lasfargues with the flexible sleeve being produced and/or obtained by welding two edges of a laminated sheet as taught in Lasfargues, all for the purpose of closing the body.
In the alternative:
Defert discloses in claim 1: A head (1 figures 1-6) for manufacturing a flexible tube (page 4 ELT, first full ph) for containing a liquid or pasty product, comprising an upper wall (10) and an annular side wall (20), a lower end edge of which extends in a radial plane (A), said head comprising a dispensing orifice (2) and a protuberance (3/4) which extends axially downward from an inner face (10/10a) of said head to a free end (4 end), a free lower end portion of said protuberance projecting axially downward from said radial plane, said projecting portion being eccentric with respect to a center of the head (full ph 4 pp 4), characterized in that the lower end edge has [a circular] shape extending along a major axis (as necessary) in the radial plane (P) and having two main vertices at each end of the major axis (again as defined by the plane), the protuberance being arranged in the vicinity of one main vertex (along d.)
Defert does not disclose: an oblong shape; but Rousselet discloses: an oblong shape for the head (20/30 figure 1a is oblong with the hinge aligned the major axis for the purpose of for example user experience customization;
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing of the invention to provide for Defert as taught in Rousselet, an oblong shape for the head as taught in Rousselet where the oblong shape can have the hinge aligned the major axis, all for the purpose of for example user experience customization, where it is noted that such a modification involves a mere change in the form or shape of a component. A change in form or shape is generally recognized as being within the level of ordinary skill in the art. In re Dailey, 149 USPQ 47 (CCPA 1976).;
Defert discloses (as modified for the reasons discussed above) in claim 3: The head according to claim 1, wherein the dispensing orifice is arranged in the axial extension of the protuberance (as shown.)
Defert discloses (as modified for the reasons discussed above) in claim 4: The head according to claim 1, said head comprising a folding cover (11) connected to the head by a hinge (12) and movable between an open position and a closed position, said head, the folding cover and the hinge consisting of a single piece (the cover and hinge move as a single piece.)
Defert discloses (as modified for the reasons discussed above) in claim 5: The head according to claim 4, wherein the head is configured so that, when the cover is in the closed position, the head has a flat upper surface (see figure 4.)
Defert discloses (as modified for the reasons discussed above) in claim 6: The head according to claim 4, wherein the cover comprises a tab (13) allowing easy opening of the cover by a user's finger.
Defert discloses (as modified for the reasons discussed above) in claim 7: The head according to claim 1, said head having a height (h1) of between 5 and 20 mm (ph 8 pp 6.)
Defert discloses (as modified for the reasons discussed above) in claim 8: The head according to claim 1, wherein a length (d) of the head along its major axis (B) is between 15 and 75 mm (ph 2 pp 7.)
Defert discloses (as modified for the reasons discussed above) in claim 9: The head according to claim 1, wherein a ratio (d/h1) of the length (d) of the head over the height (h1) of the head is between 2 and 6 (ph 2 pp 7).
Defert discloses (as modified for the reasons discussed above) in claim 10: The head according to claim 1, wherein the projecting portion has a height (h2) of between 1.5 and 6 mm (claim 11.)
Defert discloses (as modified for the reasons discussed above) in claim 11: The head according to claim 1, wherein a thickness of the material at the upper wall and the annular side wall is between 0.3 and 2 mm (claim 12.)
Defert discloses (as modified for the reasons discussed above) in claim 12: The head according to claim 1, characterized in that the head is made of a plastic material, in particular polyethylene (ph 9 pp 5) or high density polyethylene (HDPE).
Defert discloses (as modified for the reasons discussed above) in claim 21: The head according to claim 6, wherein said head has a height (h1) of between 8 and 12 mm (ph 8 pp. 6.)
Defert discloses (as modified for the reasons discussed above) in claim 22: The head according to claim 7, wherein a length (d) of the head along its major axis (B) is between 30 and 50 mm (ph 2 p. 7.)
Defert discloses (as modified for the reasons discussed above) in claim 23: The head according to claim 7, wherein a ratio (d/h1) of the length (d) of the head over the height (h1) of the head is between 3 and 5 (ph 3 pp. 7.)
Defert discloses (as modified for the reasons discussed above) in claim 24: The head according to claim 1, wherein the projecting portion has a height (h2) of between 2 and 4 mm (last ph pp. 6.)
Defert discloses (as modified for the reasons discussed above) in claim 25: The head according to claim 1, wherein a thickness of the material at the upper wall and the annular side wall is between 0.5 and 1 mm (ph 3 pp. 7.)
Allowable Subject Matter
Claims 2 and 14 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: the prior art fails to disclose or render obvious in claim 2 “the dispensing orifice is arranged in the center of the upper wall, at a (radial) distance from the protuberance” in combination with the other limitations set forth above. Claim 14 is allowable for the reasons previously indicated in the non final action mailed on 3/9/2026.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 MATTHEW W JELLETT, whose telephone number is 571-270-7497. The examiner can normally be reached on Monday-Friday (9:30AM-6:00PM EST).
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisors can be reached by phone. Ken Rinehart can be reached at (571)-272-4881, or Craig Schneider can be reached at (571) 272-3607. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Matthew W Jellett/Primary Examiner, Art Unit 3753
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