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 .
Status of the Application
Claims 1-3, 7, 9-11, 13, and 16 have been examined in this application. This communication is the first action on the merits. No Information Disclosure Statement (IDS) has been filed with this application.
Election/Restrictions
Applicant’s election with traverse of Invention I and Species II in the reply filed on 06/30/26 is acknowledged. Applicant identified claims 1-3, 7-11, 13, and 16 as reading on the elected species. However, claim 8 depends from withdrawn claim 6 and therefore claim 8 is withdrawn from further consideration.
Applicant's election with traverse is acknowledged. The traversal is on the ground(s) that:
there is no serious search and/or examination burden imposed by examining all alleged species because,
in regards to the election requirement between Species I-II, the office action does not indicate which features of the different species mandate the species election.
a search for rib structures of a liner discharge structure as recited in independent claims 1, 13, and 17 is certain to include references to several configurations, shapes, and spacing of rib structures as shown in Figs. 2-6.
a search for a liner discharge structure as recited in Invention I is certain to include references to methods of installing a liner discharge structure as recited in Invention II;
In response to (A), and as previously set forth in the office action dated 05/13/26, Species I is drawn to rib structure with non-triangular shape and uniform spacing between ribs [0046] while Species II is drawn to rib structure with non-triangular shape and non-uniform spacing between ribs [0046]. Moreover, claims 1 and 13 are examined herein as being drawn to the same species while claim 17 is drawn to a non-elected invention and has been withdrawn and not examined.
In response to (B), and as previously set forth in the office action dated 05/13/26, in the instant case the product as claimed can be used in a materially different process of using that product and restriction is therefore proper -e.g. a process not requiring passing the liner structure through a discharge spout. Restriction for examination purposes as indicated is proper because all these inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required at least because the inventions require different search queries.
The requirement is still deemed proper and is therefore made FINAL.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the following must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
“a liner passage […] enclosing a cross-sectional area substantially equal to a cross-sectional area of the discharge spout” (claims 1 and 13)
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1-3, 7, 9-11, 13, and 16 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.
As per claims 1, 10, and 13, the scope of “substantially” cannot be determined in context and the claim is therefore indefinite.
As per claims 3 and 13, the limitation “rigid” is a relative term for which the specification lacks some standard for measuring the degree intended- i.e. “rigid” with respect to what? A claim that requires the exercise of subjective judgment without restriction may render the claim indefinite. See MPEP § 2173.05(b).
As per claims 3 and 13, the limitation “flexible” is a relative term for which the specification lacks some standard for measuring the degree intended- i.e. “flexible” with respect to what? A claim that requires the exercise of subjective judgment without restriction may render the claim indefinite. See MPEP § 2173.05(b).
As per claim 9, the limitation “the flange” lacks antecedent basis in the claims.
Claims 2-3, 7, and 9-11 depend from claim 1 and thus inherit the deficiencies thereof.
Claim 16 depends from claim 13 and thus inherit the deficiencies thereof.
Claims 10-11 depend from claim 9 and thus inherit the deficiencies thereof.
Claim Rejections - 35 USC § 102
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 1-3 and 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2007/0267012 to McCarthy.
As per claims 1-3 and 13, and as the examiner can understand the claims, McCarthy discloses a liner discharge structure (Fig. 13-16) comprising:
a liner passage including a liner material and enclosing a cross-sectional area (Fig. 13-14), the liner passage including a first end (8) opposite a second end (8), wherein the liner material is flexible (6; [0178]);
a rib structure including a plurality of ribs (92, 4) extending at least partially along an extent of the liner passage between the first end and the second end (Fig. 13-14), wherein the rib structure is collapsable (“bendable” [0178]) and wherein at least one rib in the plurality of ribs is rigid ([0178], Ln. 6-8);
a base at the first end of the liner passage (Fig. 13-14); and
a flange (8) circumferentially coupled to the second end of the liner passage.
McCarthy does not disclose: the liner discharge structure adapted for insertion within a discharge spout of a container having a cross-section area substantially equal to the cross-sectional area enclosed by the liner material. However, it has been held that: a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations; 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; and, if the prior art structure is capable of performing the intended use, then it meets the claim. See MPEP §2114(II). In addition, functional claim language that is not limited to a specific structure covers all devices that are capable of performing the recited function. Therefore, if the prior art discloses a device that can inherently perform the claimed function, a rejection under 35 U.S.C. 102 or 103 may be appropriate. See MPEP §2114(IV). Furthermore, when the structure recited in the prior art is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. See MPEP §2112.01(I).McCarthy discloses the claimed structure and is capable of being used as claimed.
As per claims 7 and 16, McCarthy further discloses a first rib (4) in the plurality of ribs includes a first length greater than a second length of a second rib (92) in the plurality of ribs (Fig. 13-14).
As per claim 9, and as the examiner can understand the claim, McCarthy further discloses a flange (8). McCarthy does not disclose a cross-sectional area of the flange being greater than a cross-sectional area of a discharge spout –to which the liner discharge structure is adapted for insertion. However, it has been held that: a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations; 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; and, if the prior art structure is capable of performing the intended use, then it meets the claim. See MPEP §2114(II). In addition, functional claim language that is not limited to a specific structure covers all devices that are capable of performing the recited function. Therefore, if the prior art discloses a device that can inherently perform the claimed function, a rejection under 35 U.S.C. 102 or 103 may be appropriate. See MPEP §2114(IV). Furthermore, when the structure recited in the prior art is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. See MPEP §2112.01(I). McCarthy discloses the claimed structure and is capable of being used as claimed.
As per claim 10, and as the examiner can understand the claim, McCarthy further discloses the flange including a substantially circular profile (Fig. 13-14).
As per claim 11, McCarthy does not disclose a diameter of the flange being greater than a diameter of a discharge spout –to which the liner discharge structure is adapted for insertion. However, it has been held that: a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations; 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; and, if the prior art structure is capable of performing the intended use, then it meets the claim. See MPEP §2114(II). In addition, functional claim language that is not limited to a specific structure covers all devices that are capable of performing the recited function. Therefore, if the prior art discloses a device that can inherently perform the claimed function, a rejection under 35 U.S.C. 102 or 103 may be appropriate. See MPEP §2114(IV). Furthermore, when the structure recited in the prior art is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. See MPEP §2112.01(I). McCarthy discloses the claimed structure and is capable of being used as claimed.
Conclusion
The prior art made of record in FORM PTO-892 and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Randy Gruby, whose telephone number is (571) 272-3415. The examiner can normally be reached from Monday to Friday between 8:00 AM and 5:00 PM.
If any attempt to reach the examiner by telephone is unsuccessful, the examiner’s supervisor, Paul Durand, can be reached at (571) 272-4459.
Another resource that is available to applicants is the Patent Data Portal (PDP). Information regarding the status of an application can be obtained from the (PDP) system. For more information about the PDP system, see https://opsg-portal.uspto.gov/OPSGPortal/. Should you have questions on access to the PDP system, please feel free to contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).
/R.A.G/Examiner, Art Unit 3754
/PAUL R DURAND/Supervisory Patent Examiner, Art Unit 3754 August 21, 2026
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