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 2-17 are objected to because of the following informalities: Improper/awkward grammar in the preamble: “Closing structure according to…”, “Drinking device/according to…”) 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.
Claim 3, 4, 5, 7, 9, 11, and 16-17 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 3 recites the limitation "the convex sliding surface". There is insufficient antecedent basis for this limitation in the claim.
Claim 4 recites the limitation "a varying cross-sectional surface, preferably continuously increasing towards the aroma inlet end”. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 4 recites the broad recitation “a varying cross-sectional surface”, and the claim also recites “preferably continuously increasing towards the aroma inlet end” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. The claimed limitation will be interpreted as requiring the broader limitation.
Claim 7 recites the limitation "the first air duct section". There is insufficient antecedent basis for this limitation in the claim.
Claim 9 recites the limitation " a vent channel (92) connecting the outside atmosphere and a surface of the closing structure (10) which, when attached to the refillable vessel (20), faces an interior volume (22) of the vessel (20)". It is unclear which structure (“a vent channel” or a surface of the closure structure”) is being limited by “faces an interior volume of the vessel”. For the purposes of examination, it will be interpreted as the surface of the closing structure faces an interior of the vessel.
Claim 11 recites the limitation " wherein the vent channel section is preferably formed by a groove (86) in the first fixed part element (82) and/or the second fixed part element (84)”. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 11 recites the broad recitation of the vent channel, and the claim also recites “preferably formed by a groove (86) in the first fixed part element (82) and/or the second fixed part element (84)” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. The claimed limitation will be interpreted as requiring the broader limitation.
Claim 17 recites the limitation "further comprises a replaceable aroma container attached to the attachment structure". However, claim 17 depends from multiple dependent claim 16, which can depend from claim 4, claim 4 already including “an attached aroma container”, therefore it is unclear whether claim 17 would provide plural aroma containers or is intended to refer the aroma container of claim 4. For the purposes of examination, the limitation will be interpreted as the latter.
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.
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.
Claim(s) 1-3, 6, 8-11, and 14-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US PG pub No. 2021/007058 (McNamara et al. hereinafter).
In re claim 1, with reference to Figs. 1, 3, and 6 below, McNamara et al. discloses: A closing structure (20) attachable to and detachable from a refillable vessel (28) for containing a liquid, the closing structure comprising: a drinking straw (240) comprising an interior duct, a first end (shown adjacent 226) and a second end (shown in vessel 28) in a longitudinal direction of the drinking straw; an attachment structure (210) for attaching a replaceable aroma container, the aroma container having an interior aroma chamber, an air inlet opening and an air outlet opening (see “intended use” recitation below); a fixed element (22/26) either comprising an attachment means configured to attach the first end of the drinking straw (224, see Fig. 6) or being integrally formed with the drinking straw; the fixed element further comprising an air duct (222); and a fluid guiding duct (226/234) in fluid communication with the interior duct of the drinking straw (see Fig. 6); a movable element (24) attached to the fixed element and being rotationally movable relative to the fixed element, the movable element comprising a spout section (152); and at least one stop means for restricting the relative movement of the movable element relative to the fixed element (see portion of spout engaging element 22 in Fig. 7) such that the movable element is rotationally movable relative to the fixed element between a storing position (see Fig. 6) and an operational position (see Fig. 7).
It has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed (“an attachment structure for attaching a replaceable aroma container, the aroma container having an interior aroma chamber, an air inlet opening and an air outlet opening”) does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations, since the aroma container is not positively recited in the claim as being part of the closing structure. See MPEP 2114, II.
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In re claim 2, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention including wherein the movable element (24) comprises a convex sliding surface (156), and the fixed element (22/26) comprises a concave sliding surface (246) shaped and arranged to provide for a sliding movement of the convex sliding surface relative to and in contact with the concave sliding surface (paragraph 0028).
In re claim 3, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention including wherein the spout section has a mouth end (end of channel 154 shown near leader line 154 in Fig. 5); and a fluid channel (154) with a first opening at the mouth end and a second opening in the convex sliding surface (near end of 154 at 150 in Fig. 5).
In re claim 8, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention including wherein a narrowed section (234) in the fluid guiding duct, which narrowed section is closer to the first end (adjacent 226) of the drinking straw (240) than a position at which an opening of the air duct leading onto the fluid guiding duct is arranged (see region wherein air duct opening would “lead onto” the fluid guiding duct in Fig. 6at leader of element 246).
In re claim 9, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention including wherein a vent channel (216) connecting the outside atmosphere and a surface of the closing structure which, when attached to the refillable vessel, faces an interior volume of the vessel (see fig. 1, paragraph 0026).
In re claim 10, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention including wherein the fixed part comprises a first fixed part element (26) and a second fixed part element (22) attached to the first fixed part element (26).
In re claim 14, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention including wherein the movable element comprises a means (164) for closing the vent channel in the storing position (see fig. 6).
In re claim 15, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention including wherein the aroma container is shaped such that it at least partially surrounds a portion of the fixed element.
Again note 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. See MPEP 2114, II. (The aroma container has still not be positively recited as being part of the closing structure).
In re claim 16 interpreted as being dependent from claim 1, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention including wherein a vessel (28) with an interior chamber (shown through upper opening 30 in Fig. 1) for holding a liquid; which interior chamber is open at a filling opening (30); and a closing structure (20) according to any of the preceding claims (claim 1 above) which is attachable to and detachable from the vessel (28) at or close to the filling opening (30) (see fig. 1).
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.
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) 6 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over McNamara et al.
In re claim 6, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention including wherein the air duct comprises an opening in the concave sliding surface of the fixed element.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have located the air duct of McNamara et al. elsewhere on the fixed element such as in the concave sliding surface, (since the convex/concave surfaces seal at 236, and not an area such as region at leader 246 in Fig. 6) 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 16, fourth and fifth paragraphs, applicant has not disclosed any criticality for the claimed limitations.
In re claim 11, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention including wherein the fixed part comprises a first fixed part element (26) and a second fixed part element (22) attached to the first fixed part element, but not wherein the vent channel comprises a vent channel section formed in an abutting surface between the first fixed part element and the second fixed part element, wherein the vent channel section is preferably formed by a groove in the first fixed part element and/or the second fixed part element.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to located the vent channel at a similar location, such as at an abutting surface of the first (26) and second (22) fixed part element (such as at abutting surface between 210 and 62 in Fig. 6), 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 18, second paragraph, applicant has not disclosed any criticality for the claimed limitations.
Claim(s) 4, 5, and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over McNamara et al. as applied to claim 1 and 16 above, and further in view of US PG Pub no. 2020/0178712 (Jager et al. hereinafter).
In re claim 4, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention except wherein the air duct has a first air duct section with an aroma inlet end which is in fluid communication with the air outlet opening of an attached aroma container, which first air duct section, in a longitudinal direction, has a varying cross-sectional surface, preferably continuously increasing towards the aroma inlet end.
However, with reference to Figs. 29 and 31, Jager et al. discloses a closing structure wherein an air duct (22) has a first air duct section with an aroma inlet end which is in fluid communication with the air outlet opening of an attached aroma container (20, see Fig. 1), which first air duct section, in a longitudinal direction, has a varying cross-sectional surface (see fig. 29).
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Therefore, it would have been obvious to have provided an air duct and aroma container as taught by Jager et al. to the closing structure of McNamara et al. such that the air duct feeds air to the fluid duct for the purposes of enhancing a users drinking experience (Jager et al. paragraph 0096).
In re claim 5, with reference to the Figs. noted above, McNamara et al. in view of Jager et al. disclose the claimed invention including wherein the first air duct section is essentially linear (see Jager et al. Fig. 1).
In re claim 17, with reference to the Figs. noted above, McNamara et al. in view of Jager et al. disclose the claimed invention including wherein the drinking device is for the retronasal perception of an aroma substance and further comprises a replaceable aroma container attached to the attachment structure of the closing structure (Jager et al., paragraph 0096).
Claim(s) 12 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over McNamara et al. as applied to claim 1 above, and further in view of US Pg Pub No. 2003/0111493 (Kao hereinafter).
In re claim 12, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention including wherein the at least one stop means comprises a stop member (158/162) attached to or integrally formed with the spout section (152), but not wherein the stop member is arranged such that, in the operational position, the stop member rests against an abutting surface of the fixed element.
However, Kao discloses a stop member (34) on a spout (3) wherein the stop member rests on an abutting surface of a fixed element (2) in an operational position (see Fig. 5), and can be hand operated to rotate the spout.
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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 McNamara et al. such that the stop means abuts the fixed element as taught by Kao for the purposes of facilitating retention of the spout in the operational position at surfaces which are parallel in the operational position to provide additional stability in the operational position (Kao paragraph 0019).
In re claim 13, with reference to the Figs. noted above, McNamara et al. discloses the claimed invention including wherein the stop member comprises an actuating member which is arranged such that the rotational movement of the spout section is hand operated by pressing on the actuating member.
It has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed (“such that the rotational movement of the spout section is hand operated”) does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. See MPEP 2114, II.
Allowable Subject Matter
Claim 7 is 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.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Jenness can be reached at 571-270-5055. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW T KIRSCH/ Primary Examiner, Art Unit 3733
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