DETAILED ACTION
The preliminary amendment filed October 22, 2024 has been entered. Claims 1-20 remain pending.
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 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. Currently, no claim limitation is being interpreted as invoking 35 U.S.C. 112(f).
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 9, 13-17 and 19 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.
Regarding claims 9 and 19, the limitation “the second end” is indefinite because the claims recite both a second end of the body and a second end of the opener. Therefore, it is impossible to determine which second end is being referenced. For further examination, “the second end” of in claims 9 and 19 is considered the second end of the opener.
Regarding claim 13, the limitation “the passageway” in line 11 renders the claim indefinite because the limitation lacks antecedent basis in the claim. It appears that “the passageway” and “a passage” as recited in line 3 are the same limitation and will be treated as such for further examination. However, consistent terminology must be used. Claims 14-17 (see statement “c” regarding claims 16 and 17, below) are rejected based on their dependence from claim 13.
Regarding claims 16 and 17, the claims recite “The method of claim 1,” but claim 1 is drawn to a connector and not to a method. Claims 16 and 17 are considered as depending from claim 13 for further examination.
Double Patenting
Applicant is advised that should claims 8-10 be found allowable, claims 18-20 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m). Claims 18-20 are identical to claims 8-10.
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of U.S. Patent No. 12,129,097 (the ‘097 patent) in view of US Patent Application Publication 2002/0066677 to Moscovitz (Moscovitz). Regarding claims 1 and 13, all of the limitations of the claims are disclosed by or inherent to claims 1 and 15 of the ‘097 patent except for the first container having an opening of a width of a first distance, the opener having a width of a second distance, wherein the first and second distances are substantially the same. Moscovitz teaches a connector (10’’’ in the embodiment of Fig. 8) comprising: a body (the body that forms connector 10’’’) that defines a first end (upper end to which container 12’’’ connects), a second end (lower end having threads 19’’’ to which a bottle is connected), and a passageway that extends between the first end and the second end (the internal passage through the body), wherein the first end and second end are configured to attach to a first container and a second container (12’’’ and the bottle, respectively; see [0030]), respectively, wherein the passageway provides a pathway between the first and second containers when the first and second containers are attached to the first and second ends, respectively (when both containers are connected and the seal on container 12’’’ broken, a fluid path exists from container 12’’’ to the bottle through the connector 10’’’), the first container defines an opening having a width of a first distance (shown in Fig. 8); and an opener (13’’’ having protruding portion 24’’’) having a width of a second distance (shown in Fig. 8), wherein the first and second distances are substantially the same (shown in Fig. 8; the width of the opening of the first container and with width of the opener are substantially equal); the opener configured to engage and open the first container for release of a fluid from within the first container through the passageway and into the second container when the first and second containers are attached to the first and second ends, respectively ([0030]; the protruding portion 24’’’ ruptures the seal on the container 12’’’ when the coupling is made). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of claims 1 and 15 of the ‘097 patent to include the opening of the container and the opener having substantially the same width as taught by Moscovitz such that the opener fully opens the first container when connected to help ensure complete transfer of the fluid material. Claims 2-12 recite the same limitations as claims 2-12 of the ‘097 patent. Claims 14-17 recite the same limitations as claims 16-19 of the ‘097 patent. Claims 18-20 recite the same limitations as claims 8-10 of the ‘097 patent.
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.
Claims 1-6, 8-16 and 18-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent Application Publication 2002/0066677 to Moscovitz (Moscovitz).
Regarding claim 1, Moscovitz discloses a connector (10’’’ in the embodiment of Fig. 8) comprising: a body (the body that forms connector 10’’’) that defines a first end (upper end to which container 12’’’ connects), a second end (lower end having threads 19’’’ to which a bottle is connected), and a passageway that extends between the first end and the second end (the internal passage through the body), wherein the first end and second end are configured to attach to a first container and a second container (12’’’ and the bottle, respectively; see [0030]), respectively, wherein the passageway provides a pathway between the first and second containers when the first and second containers are attached to the first and second ends, respectively (when both containers are connected and the seal on container 12’’’ broken, a fluid path exists from container 12’’’ to the bottle through the connector 10’’’), the first container defines an opening having a width of a first distance (shown in Fig. 8); and an opener (13’’’ having protruding portion 24’’’) having a width of a second distance (shown in Fig. 8), wherein the first and second distances are substantially the same (shown in Fig. 8; the width of the opening of the first container and with width of the opener are substantially equal); the opener configured to engage and open the first container for release of a fluid from within the first container through the passageway and into the second container when the first and second containers are attached to the first and second ends, respectively ([0030]; the protruding portion 24’’’ ruptures the seal on the container 12’’’ when the coupling is made).
Regarding claim 2, Moscovitz discloses the first end is configured for sealed attachment to the first container (via corresponding protrusions 30 and 32; see [0030]).
Regarding claim 3, Moscovitz discloses the second end is configured for sealed attachment to the second container (via threads 19’’’).
Regarding claim 4, Moscovitz discloses the fluid is a concentrate ([0003] describes concentrated products mixed with liquid to be diluted).
Regarding claim 5, Moscovitz discloses the first container is a concentrate container (container 12’’’ contains the concentrate to be mixed with liquid in the bottle).
Regarding claim 6, Moscovitz discloses the second container is a mix and storage container (bottle connected to 19’’’ both stores and mixes the liquid and concentrate after the fluid is dispensed from container 12’’’).
Regarding claims 8 and 18, Moscovitz discloses the opener comprises a first end (the lower end of breaking cap 13’’’ which is attached to the wall of the body of the connector; see Fig. 8) and a second end (the upper end of protruding portion 24’’’), wherein the first end of the opener is attached to the body (Fig. 8), and wherein the second end of the opener extends in a direction towards the first end of the body (Fig. 8; the upper end of the opener extends toward the first (upper) end of the body).
Regarding claims 9 and 19, Moscovitz discloses the second end of the opener defines a tapered shape (clearly shown in Fig. 8).
Regarding claims 10 and 20, Moscovitz discloses the opener defines an interior to form a portion of the pathway (fluid flows through the interior of the opener via the openings 26’’’).
Regarding claim 11, Moscovitz discloses the first end and the second end define a first opening and a second opening (each end of the body has an opening into which container 12’’’ and the bottle can be inserted, respectively; see Fig. 8 and [0030]).
Regarding claim 12, Moscovitz discloses the body defines an interior that is substantially cylindrical in shape (Fig. 8 clearly shows the body having an interior that is substantially cylindrical).
Regarding claim 13, Moscovitz discloses a method of utilizing a connector (10’’’), the method comprising: providing a connector comprising: a body (body forming connector 10’’’) that defines a first end (upper end), a second end (lower end), and a passage that extends between the first end and the second end (fluid path extending through the body), wherein the passage provides a pathway between the first end and the second end (Fig. 8); and an opener (breaking cap 13’’’ having protruding portion 24’’’) attached to the body (Fig. 8) and having a width of a first distance (shown in Fig. 8); attaching the second end to a second container (the bottle connected to threads 19’’’); and attaching the first end to a first container (12’’’) to thereby cause the opener to engage and open the first container for release of a fluid from within the first container through the passageway and into the second container ([0030]); wherein the first container defines an opening having a second distance (shown in Fig. 8) and the first and second distances are substantially the same (shown in Fig. 8; the width of the opening of the first container and with width of the opener are substantially equal).
Regarding claim 14, Moscovitz discloses the first end is configured for sealed attachment to the first container (via corresponding protrusions 30 and 32; see [0030]).
Regarding claim 15, Moscovitz discloses the second end is configured for sealed attachment to the second container (via threads 19’’’).
Regarding claim 16, Moscovitz discloses the fluid is a concentrate ([0003] describes concentrated products mixed with liquid to be diluted).
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 7 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Moscovitz in view of US Patent 6,237,649 to Moisio et al. (Moisio).
Regarding claims 7 and 17, Moscovitz discloses the connector of claim 1 and method of claim 13 (see above), but does not disclose a gasket positioned and configured to provide a seal between the first end and the first container when the first container is attached to the first end. Moisio teaches a connector (4) having a gasket (sealing plug 18 is a gasket) positioned and configured to provide a seal between the first end (upper end) and the first container (3) when the first container is attached to the first end, to prevent leaking of the fluid and aid in directing the fluid only to the second container. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included a gasket for sealing the first end to the first container when coupled as taught by Moisio in the connector and method of Moscovitz to prevent leaking of the fluid and aid in directing the fluid only to the second container.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and claimed invention.
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/NICOLAS A ARNETT/Primary Examiner, Art Unit 3753 September 23, 2025