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 .
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 1-20 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,097,877. Although the claims at issue are not identical, they are not patentably distinct from each other because the dependent claims present application include the recitation that the first encasement is coupled to the movable component and the second encasement is coupled to the fixed base, and that the first encasement is coupled to a peripheral wall, as set forth in parent case U.S. Patent No. 11,097,877.
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 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, 2, 5, 6, 11, 14, 15, 19 and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Reed et al. (U.S. 2005/0274819). Reed et al. teaches a scent delivery system 10 for a beverage, comprising a cap 16, 18, 20 attachable to a beverage container 12 proximate an opening of the beverage container (figure 2) to cover the opening, the cap at 16 operable to move, reversibly, between a closed position that prevents a liquid contained within the beverage container to flow outward from the beverage container and an open position that allows the liquid within the beverage container to flow outward while the cap is attached to the beverage container (typical of common “push/pull closures; paragraph [0019]), and a scented article 60 that couples to the cap and operable to generate a scent capable of stimulating an olfactory sensation of a user including during consumption of the liquid when the cap is in the open position (figure 5), wherein the cap comprises a fixed base (inner portion at 16) including a hole through which the liquid can flow out from, a movable component (outer cap of 16) coupled to the fixed base such that the movable component is able to move with respect to the fixed base between a first position to block the hole and put the cap in the closed position and a second position to unblock the hole and put the cap in the open position (commonly known in the art as typical function of push/pull cap), and a scent chamber 18, 20 comprising a first encasement 18 and a second encasement 20, wherein the first encasement includes a first inner wall 46 and a first outer wall (outwardly adjacent wall 46) that form a first channel between them, wherein the second encasement 20 includes a second inner wall 52 and a second outer wall 50 that form a second channel between them, wherein the first encasement is configured to attach the scented article 60 to one or both of the first inner wall and the first outer wall such that the scented article is disposed in the first channel so that a portion of the scented article is exposed to air when the movable component is in the second position (figure 3), and wherein the second encasement is positioned to align with the first encasement such that, when the movable component is in first position, (i) the first inner wall is in contact with the second inner wall and (ii) the first outer wall is in contact with the second outer wall to create a contact seal around the scented article (figure 2), wherein, when the cap 16, 18, 20 is in closed position (figure 2), the contact seal created by the cap encloses the scented article and locks in the scent.
Regarding claim 2, the first encasement 18 of the scent chamber is coupled to the movable component via its connection to the fixed base, and the second encasement 20 of the scent chamber is coupled to the fixed base via its connection with the first encasement.
Regarding claim 5, the second encasement 20 of the scent chamber is coupled to the movable component via a connection with the first encasement and fixed base, and the first encasement 18 of the scent chamber is coupled to the fixed base, as shown in figure 2.
Regarding claim 6, the first encasement 18 is disposed on an outer surface of the fixed base.
Regarding claim 11, at least one of the first inner wall, the second inner wall, the first outer wall, or the second outer wall includes a material (plastic) to mechanically compress against an interfacing surface of a corresponding wall to create the contact seal when the cap is in the closed position.
Regarding claim 14, the fixed base includes a cylinder and a plug, and wherein the movable component is moveably coupled to the cylinder and operable to move bidirectionally by sliding up and down with respect to the cylinder (figure 2).
Regarding claim 15, the scented article includes a ring (because it is a molded article fit within an annular channel.
Regarding claim 19, the scent delivery system is operable to repeatedly trap the scent generated by the scented article in the scent chamber and release the scent to an outer environment from the cap over a plurality of instances where a user moves the cap between the closed position and the open position (the components are capable of repeated use).
Regarding claim 20, beverage container (capable of housing a beverage) includes a sports bottle and the cap includes a nipple-type spout.
Conclusion
THIS ACTION IS NON-FINAL.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NIKI MARINA ELOSHWAY whose telephone number is (571)272-4538. The examiner can normally be reached Monday through Friday 7: 00 a.m. to 3:00 p.m.
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/NIKI M ELOSHWAY/Examiner, Art Unit 3736