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
Claims 23 and 31 objected to because of the following informalities: awkward/improper grammar “flow geometry of the disk includes exterior annular slots an interior annular slots” 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.
Claims 21-28, 31, 32, and 35 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.
Claim 21 recites the limitation "A closure cap for a container for a bottle comprising…" in line 1. It is unclear what is meant by the limitation, whether the container is a bottle, the container is for the bottle, the cap is to be used with the bottle vs. the container, etc. For the purposes of examination, the limitation will be interpreted as “A closure cap for a bottle comprising…”
Claims 23 and 31 recite the limitation "the retention geometry of the disk". There is insufficient antecedent basis for this limitation in the claim.
Claims 27 and 35 recite the limitation "the opening". However, it is unclear which opening is being referred to by this limitation (the opening of the central deck portion or one of the one or more openings of the flow geometry). For the purposes of examination, the limitation will be interpreted as referring to the opening of the central deck portion.
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.
Claims 22 and 30 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. Claims 22 and 30 recite the language “wherein the flow geometry including the one or more flanges and the one or more openings are selectable to accommodate different fluids”. This language does not further limit the structure of claims 21 and 29 respectively, and recites only inherent functions of previously recited features of the flow disc. 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.
Double Patenting
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 21, 22, 25, 26, 28, 29, 30, 33, 34, and 36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2, 3, 15, and 16 of U.S. Patent No. 12,195,242 (Hiltser et al., “the Patent” hereinafter) in view of US Patent No. 6,315,160 (Gaiser et al. hereinafter). Although the claims at issue are not identical, they are not patentably distinct from each other because while the present application claims 21 and 29 are broader than the Patent claims 1 and 14 for lacking the cut-off blade, the Patent claims 2 and 15 substantially include the internal shaft limitations including wherein the internal shaft terminates at a non-planar end surface.
The Patent does not teach where the shaft is hollow and has a generally linear interior wall. However, Gaiser et al. teaches a closure cap (10) including a base (12) including an outer skirt (at 14), an inner skirt (at 34) connected by a peripheral deck portion (portion of 20 extending between 12 and 34, see Fig. 1), a central deck portion (26) having an opening (22) the opening aligned with an internal shaft (portion of 20 which depends downward and defines orifice 22, see Fig. 1), the internal shaft being hollow and having a generally linear interior wall see Fig. 1).
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[AltContent: arrow][AltContent: rect][AltContent: textbox (“Generally Linear” Interior Wall)][AltContent: arrow][AltContent: rect][AltContent: arrow][AltContent: textbox (Internal Shaft)]
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Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have modified the internal shaft of the Patent to have been hollow and generally linear in order to ensure passage of liquid therethrough during expelling of the contents (Gaiser et al. column 3, lines 52-56) (as in contrast a solid shaft would not allow expelling of contents through the orifice in the scope of the invention).
The Patent does not include the exact wording of “the base further including retention geometry to secure thereto a disk having flow geometry to accommodate flow of a fluid from a bottle through the closure cap” or “wherein the flow geometry includes one or more flanges and one or more openings in the disk”. However, these limitations are considered broader functional recitations of the Patent’s exterior annular wall and interior annular wall (as the one or more flanges), and partial annular slots including partial annular interior slots and partial annular exterior slots (as the one or more openings of the disk).
The Patent does not include the exact wording of “where a size and a configuration of elements of the flow geometry are selected based on fluid characteristics including a viscosity and a surface tension of the fluid”. However, this functional limitation merely broadly explains how a designer might choose flow geometry size/configuration of the Patent’s exterior/interior annular walls and slots.
Claim 23, 24, 31, and 32 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2 and 15 the Patent in view of Gaiser et al.
While claims 2 and 15 of the Patent in view of Gaiser et al. includes wherein the disk includes an exterior annular wall and flow geometry of the disk includes exterior slots an interior slots, the disk further comprises an interior annular wall, the Patent in view of Gaiser et al. does not disclose wherein the slots are annular, and the interior annular wall is disposed between the exterior annular slots and the interior annular slots.
However, note that the Applications “annular openings 50” of paragraph 0076 are shown as partial annular slots in Figs. 4 and 6.
Further, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have located the interior annular wall between the interior and exterior annular slots, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70. Please note that in the instant application, page paragraph 0078 applicant has not disclosed any criticality for the claimed limitations.
Claim 27 and 35 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2 and 15 of the Patent in view of Gaiser et al.
The Patent does not claim wherein the base further comprises an angled depression at a juncture where a central portion of the base meets with the opening.
However, with reference to Fig. 1 above, Gaiser et al. discloses an angled depression at a juncture where a central portion of the base meets with the opening.
It would have been obvious to one of ordinary skill in the art at the time of the invention to have formed the juncture of the base central portion and the opening as an angled depression for example to provide a chamfered surface to the junction prevent stress concentration in the material of the closure, and since the court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant (MPEP 2144.04, IV, B). Please note that in the instant application, paragraph 0097, applicant has not disclosed any criticality for the claimed limitations (i.e. the shape of the juncture of the central portion of the base and the opening).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW T KIRSCH whose telephone number is (571)270-5723. The examiner can normally be reached Mon-Fri, 9a-5p EST.
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/ANDREW T KIRSCH/Primary Examiner, Art Unit 3733